1"}},{"from_name":"label","id":"908b75afd7fe497d93b666a9d051ebf0","to_name":"text","type":"labels","value":{"end":6452,"labels":["FAC"],"start":6283,"text":". Incised punctured wound 5 cm. x 3 cm.\n x chest cavity deep on the base of left side neck, 5 cm. from the left sterno clavicular joint with direction downwards."}},{"from_name":"label","id":"934ff9b2677b4af3ab159c79e7009111","to_name":"text","type":"labels","value":{"end":6555,"labels":["FAC"],"start":6462,"text":"2. Abrasion 4 cm. x 1 cm. on the right side forehead 3 cm. above right eye brows.\n 3."}},{"from_name":"label","id":"4e8c3a0012d04b949c7bb1e1fb8f91a0","to_name":"text","type":"labels","value":{"end":6564,"labels":["FAC"],"start":6556,"text":"Abrasion"}},{"from_name":"label","id":"1507d0c49b08450abf13a655502753ec","to_name":"text","type":"labels","value":{"end":6606,"labels":["FAC"],"start":6565,"text":"3 cm. x 2 cm. on right side forehead 3 cm"}},{"from_name":"label","id":"be659fd5cc6b431ca7c1174d00164d29","to_name":"text","type":"labels","value":{"end":6625,"labels":["FAC"],"start":6606,"text":". lateral to injury"}},{"from_name":"label","id":"f427fe6933b140bd89207015c340c643","to_name":"text","type":"labels","value":{"end":6717,"labels":["FAC"],"start":6626,"text":"No. 1.\n 4. Abrasion 2 cm. x 1cm. on the left side scapular region back.\n 5."}},{"from_name":"label","id":"21238cc47c1e4548862539ddc29e5db9","to_name":"text","type":"labels","value":{"end":6811,"labels":["FAC"],"start":6718,"text":"Incised wound 2 cm. x 1 cm. x skin deep on the left side back at inner angle of left scapula."}},{"from_name":"label","id":"d1ae4327bba54e4f9ff8920eed6f1b0f","to_name":"text","type":"labels","value":{"end":6932,"labels":["FAC"],"start":6811,"text":"\n 6. Incised punctured wound 3 cm. x 1 cm.\n chest cavity deep on left side back 4 cm. below injury No. 5."}},{"from_name":"label","id":"144ca5eba1db4d7489161bc8f3b917dd","to_name":"text","type":"labels","value":{"end":7259,"labels":["FAC"],"start":6933,"text":" On internal examination of the dead body he found that the sixth rit was cut under injury No. 6; the pleura was cut beneath the injuries No. 1 and 6, the left lung was cut through and through upper lobe was cut both under injury No.1 and 6 and the pericardium and the right side of the heart were cut by the injury No.1."}},{"from_name":"label","id":"1d5931cde5754c49ae92dbf947f239ef","to_name":"text","type":"labels","value":{"end":7369,"labels":["FAC"],"start":7260,"text":"Dr. Gupta opined that the death was due to shock and haemorrhage as a result of the injuries to vital organs."}},{"from_name":"label","id":"1b4f4dd82c7044d0954662b828af2013","to_name":"text","type":"labels","value":{"end":7531,"labels":["FAC"],"start":7379,"text":"Shri V.P. Singh (P.W.16) Station House Officer of Ganj Police Station took up investigation of the case registered on the complaint of Keramat Ali Khan."}},{"from_name":"label","id":"a7088417b3354e8a8006d26f8beb3792","to_name":"text","type":"labels","value":{"end":7760,"labels":["FAC"],"start":7532,"text":"Besides, interrogating him and the injured persons in the hospital on that very night, he inspected the place of occurrence, prepared a site plan and seized some blood stained earth from near the gate of the complainant's house."}},{"from_name":"label","id":"3401eb035d904ffea5fcc63985c8c75a","to_name":"text","type":"labels","value":{"end":7854,"labels":["FAC"],"start":7761,"text":"After completion of investigation he submitted charge-sheet against the nine accused persons."}},{"from_name":"label","id":"266836c7ec444039834531b3d9eb4d43","to_name":"text","type":"labels","value":{"end":7979,"labels":["FAC"],"start":7864,"text":"The appellants and the other accused persons pleaded not guilty and asserted that they had been falsely implicated."}},{"from_name":"label","id":"eccae0407a1c4742a66946d1be982769","to_name":"text","type":"labels","value":{"end":8136,"labels":["FAC"],"start":7980,"text":"In his statement recorded under Section 313 Dr.\nP.C.Chand Khan, however, admitted that earlier P.W.7 used to work at his workshop but P.W.6 weaned him away."}},{"from_name":"label","id":"8e23321fb4d54a6da785b8d803921efe","to_name":"text","type":"labels","value":{"end":8296,"labels":["FAC"],"start":8137,"text":"He also admitted that he had gone to the workshop of Faheem Khan with Shabbu and Ishtiad and asked him to hand over Aslam to him and that he had assaulted him."}},{"from_name":"label","id":"e582bc06f7914b708e1cacee9242797e","to_name":"text","type":"labels","value":{"end":8350,"labels":["FAC"],"start":8297,"text":"He however denied to have assaulted him with a knife."}},{"from_name":"label","id":"0797b55d37a4489bae6f3b432bf28ac7","to_name":"text","type":"labels","value":{"end":8536,"labels":["FAC"],"start":8351,"text":"As regards the incident in question, his version was that on that night there was a festivity in the house of his cousin Sajjan and Mahboob (since acquitted) to which he was an invitee."}},{"from_name":"label","id":"cd86b4163e414034810e200c2c3cd9bd","to_name":"text","type":"labels","value":{"end":8684,"labels":["FAC"],"start":8537,"text":"As Rafiouddin of their mohalla was also invited in that function he went to his house which was near the house of the complainant to accompany him."}},{"from_name":"label","id":"b1a5754e2aac48179766df3cbc5649ac","to_name":"text","type":"labels","value":{"end":8828,"labels":["FAC"],"start":8685,"text":"There, on hearing his voice, Shah Alam and Kaisher Khan came out with knives accompanied by Babar Khan and Irshad Khan and started beating him."}},{"from_name":"label","id":"8c40005702f24a2e90b57588094dcefb","to_name":"text","type":"labels","value":{"end":8954,"labels":["FAC"],"start":8829,"text":"When he cried aloud Shabbu (appellant), Sharif and Salim who were standing nearby and talking among themselves arrived there."}},{"from_name":"label","id":"a80b9d25719b4a5683b4631944b48823","to_name":"text","type":"labels","value":{"end":9066,"labels":["FAC"],"start":8955,"text":"When Shah Alam and his companions attempted to assault Shabbu and others, they in their defence assaulted them."}},{"from_name":"label","id":"a11ec186ba4a46f287d3078b8f6d1e45","to_name":"text","type":"labels","value":{"end":9147,"labels":["FAC"],"start":9067,"text":"As the ladies of the house had come out then they also sustained minor injuries."}},{"from_name":"label","id":"b04eb1a551474e4fbca36632f07b5094","to_name":"text","type":"labels","value":{"end":9327,"labels":["FAC"],"start":9148,"text":"Appellant Shabbu, in his statement under Section 313 Dr.P.C. admitted the assault on Faheem Khan in that afternoon but denied his presence at the time of the incident in question."}},{"from_name":"label","id":"32fe083082fa4714b3c794af16011e7b","to_name":"text","type":"labels","value":{"end":9443,"labels":["FAC"],"start":9329,"text":"To prove its case the prosecution examined sixteen witnesses but no witness was examined on behalf of the defence."}},{"from_name":"label","id":"1636340350214cdca1bbb1f7f3cf7d8f","to_name":"text","type":"labels","value":{"end":9555,"labels":["RLC"],"start":9444,"text":"On consideration of the evidence adduced the trial Court held that the prosecution case was unworthy of credit."}},{"from_name":"label","id":"81b1786f6e7f421292f77d0b11116c3d","to_name":"text","type":"labels","value":{"end":9854,"labels":["RLC"],"start":9555,"text":"\nOn appeal the learned Judges of the High Court found the evidence of the four eye-witnesses examined by the prosecution, namely, P.Ws. 1, 2, 4 and 5 convincing and the reasons given by the trial Court for disbelieving them and, for that matter, discarding the case of the prosecution were perverse."}},{"from_name":"label","id":"ae27b3772042469c8f228f04e8bc8e25","to_name":"text","type":"labels","value":{"end":10165,"labels":["ANALYSIS"],"start":9854,"text":"\n It was urgeo on behalf of the appellants that as the trial Court gave detailed reasons for disbelieving the evidence of the prosecution witnesses the High Court was not justified in interfering with the same even if another reasonably possible view of the evidence in favour of the prosecution might be taken."}},{"from_name":"label","id":"aa3aa0cdf1bd4b00a3ace35d687d072d","to_name":"text","type":"labels","value":{"end":10569,"labels":["ANALYSIS"],"start":10166,"text":"Having heard the learned counsel at length and seen the judgments of the learned Courts below in the light of the evidence on record, we find that the High Court committed no error or injustice in interfering with the order of acquittal for it has noticed all the salient features of the case in the judgment of the trial Court, discussed them well and disapproved them for cogent and justified reasons."}},{"from_name":"label","id":"f9a73c7354094f6489bf18bd8a52aa63","to_name":"text","type":"labels","value":{"end":10694,"labels":["ANALYSIS"],"start":10570,"text":"We are in complete agreement with the High Court that the judgment of trial Court was perverse and deserved to be set aside."}},{"from_name":"label","id":"fbc0c595507c4ea791de0a4b418f659b","to_name":"text","type":"labels","value":{"end":11022,"labels":["ANALYSIS"],"start":10696,"text":"In the context of the respective cases of the parties, it could not be - nor was it - disputed that an incident of assault took place in the night of May 26, 1977 in or around the residential premises of Keramat Ali Khan (P.W.1) in the backdrop of an earlier incident in the afternoon in which Faheem Khan (P.W.6) was injured."}},{"from_name":"label","id":"c795ed40b0cd4cdcae72236c5612baa8","to_name":"text","type":"labels","value":{"end":11178,"labels":["ANALYSIS"],"start":11023,"text":"It was also not disputed that in the incident in question Shah Alam met with his death while some others including appellant Chand Khan sustained injuries."}},{"from_name":"label","id":"e47bc09221ee4fb597c84d8c4bfea4c0","to_name":"text","type":"labels","value":{"end":11463,"labels":["ANALYSIS"],"start":11179,"text":"In that view of the matter the principal question that fell for determination before the learned Courts below was whether it took place within the residential premises of P.W.1 and in the manner as alleged by the prosecution or in the lane outside his house as claimed by the defence."}},{"from_name":"label","id":"d28c3ffa40994545b00bc72bd7ce57f9","to_name":"text","type":"labels","value":{"end":11774,"labels":["ANALYSIS"],"start":11464,"text":"To prove its version of the incident, the prosecution relied, needless to say, upon the evidence of the four eye-witnesses referred to earlier while the defence relied upon the statement of the accused including the appellant Chand Khan made under Section 313 Dr.P.C. and the circumstances appearing on record."}},{"from_name":"label","id":"a068f0fde5ca43bc83f451dbde5676bf","to_name":"text","type":"labels","value":{"end":12042,"labels":["ANALYSIS"],"start":11776,"text":"In negativing the prosecution version the trial Court first held, for reasons given, that the assault on Faheem Khan in the afternoon by Chand Khan could not be a motive for committing the murder of Shah Alam and that no other motive was ascribed by the prosecution."}},{"from_name":"label","id":"c74689e37a26406183842d3cde47b91f","to_name":"text","type":"labels","value":{"end":12435,"labels":["ANALYSIS"],"start":12043,"text":"Even if we proceed on the basis that the prosecution failed to prove the genesis or motive and that the above finding of the trial Court in this regard is unexceptionable still then this appeal cannot succeed on that score for proof of motive is not essential for success of a prosecution case where - as in the instant case - the ocular testimony in support of it is convincing and reliable."}},{"from_name":"label","id":"3ad24a1ba72d40d292bc16cd90a24eb8","to_name":"text","type":"labels","value":{"end":12711,"labels":["ANALYSIS"],"start":12436,"text":"Indeed, as our discussion to follow will show the findings recorded by the trial Court for discarding the evidence of the four eye witnesses are based either on presumption, surmise and conjecture or on undue and unjustified reliance upon minor and immaterial contradictions."}},{"from_name":"label","id":"1d1a65430bdd4851a9f2d02765068eb3","to_name":"text","type":"labels","value":{"end":12870,"labels":["ANALYSIS"],"start":12713,"text":"In dealing with the evidence of the four eye - witnesses the trial Court first observed that having regard to the incident that took place in that afternoon."}},{"from_name":"label","id":"c2d0f8fc219a4c4ea598eb920af76513","to_name":"text","type":"labels","value":{"end":13046,"labels":["ANALYSIS"],"start":12871,"text":"Faheem Khan and Shah Alam could only be the targets of the attack of the accused persons and not others, namely, Kaisher Khan, Babar Khan and Irshad Khan as testified by them."}},{"from_name":"label","id":"818e4f1792fb4e10a5e5f6ffd90cb50f","to_name":"text","type":"labels","value":{"end":13394,"labels":["ANALYSIS"],"start":13047,"text":"It next observed that if their evidence that Shah Alam and the above three persons were sitting together in front of the complainant's house and were talking to each other when the accused arrived there was to be believed, the latter could have caught hold of Shah Alam from out of those persons and put him to death in no time and then gone back."}},{"from_name":"label","id":"6f91ca4dd8be4d52a890a1d4e2b0208a","to_name":"text","type":"labels","value":{"end":13711,"labels":["ANALYSIS"],"start":13395,"text":"After making the above observations the trial Court held: \"It may be that the members of the complainant's house might have come-out at their door on hearing the noise and alarm of this incident and that they might be rebuking and even accusing these accused-persons on their assaulting Shah Alam etc\".\n "}},{"from_name":"label","id":"1f0fddc575c14881b1d9e1d01078a8c1","to_name":"text","type":"labels","value":{"end":14264,"labels":["ANALYSIS"],"start":13711,"text":" The trial Court also disbelieved the prosecution case as to the manner in which the accused persons entered into the house of the complainant and beat the female members and, in explaining away the injuries found on the persons of Sm. Naeema Parveen and Sm. Raees Begum, observed: \"........and truth of the matter appears to be that Sm. Naeema Parveen and Sm. Raees Begum had accidently sustained their injuries in this incident when they had entered in the arena of the fight for defending Shah Alam etc. from the assault of the accused.\"\n "}},{"from_name":"label","id":"72a50225586c48caa26e5c914cb44ef0","to_name":"text","type":"labels","value":{"end":14385,"labels":["ANALYSIS"],"start":14264,"text":" The High Court brushed aside the first of the above quoted findings of the trial Court with the following comments:"}},{"from_name":"label","id":"861b4afe70c248dfb1fb8acf5bfa4f73","to_name":"text","type":"labels","value":{"end":14784,"labels":["ANALYSIS"],"start":14386,"text":" \"The observation of the Additional Sessions Judge that the accused were likely to single out Shah Alam and to assault him alone in Shah Alam, Irshad Khan, Babar Khan and Kaiser Khan had been found sitting on the cot is misconceived and devoid of sense for Babar Khan the brother of Shah Alam and Kaisher Khan and Irshad Khan who were his close relatives could not have been silent soectators."}},{"from_name":"label","id":"5230c51e7b3d4462a045dc1a90f92fa9","to_name":"text","type":"labels","value":{"end":14863,"labels":["ANALYSIS"],"start":14785,"text":"It is for this reason that they had all sustained injuries around the cot.\"\n <"}},{"from_name":"label","id":"94a588d39ebd481796a69b2489b78055","to_name":"text","type":"labels","value":{"end":15174,"labels":["ANALYSIS"],"start":14863,"text":"SLE> As regards the other finding the High Court observed that in view of the nature of the injuries sustained by Sm.\n Naeema Parveen and Sm. Raees Begum and in the absence of any suggestion put forward by the defence that those injuries were caused accidentally the criticism of the trial Court was perverse.\n "}},{"from_name":"label","id":"04f2e2d671384f79beb7a75aa5d81295","to_name":"text","type":"labels","value":{"end":15312,"labels":["ANALYSIS"],"start":15174,"text":"On a close analysis of the materials on record we are of the opinion that the High Court was fully justified in making the above comments."}},{"from_name":"label","id":"6d39e9078b1c4be0b4e9b30cdd83538e","to_name":"text","type":"labels","value":{"end":15468,"labels":["ANALYSIS"],"start":15313,"text":"That Kaisher Khan (P.W.2), Babar Khan and Irshad Khan were present at the material time as testified by the four eye witnesses was admitted by the defence."}},{"from_name":"label","id":"4337216e252140c687a5136a8f1bf4c7","to_name":"text","type":"labels","value":{"end":15593,"labels":["ANALYSIS"],"start":15469,"text":"It was also admitted that besides Shah Alam the above three persons as well as lady members of the house sustained injuries."}},{"from_name":"label","id":"7bbb71005ff64d4686c43b26b2fd4aff","to_name":"text","type":"labels","value":{"end":15797,"labels":["ANALYSIS"],"start":15594,"text":"However, according to them, they had beaten Shah Alam and other male members in exercise of their right of private defence and the ladies sustained simple injuries as they had then come out of the house."}},{"from_name":"label","id":"eff62db0d3804175a9d319ed18bdd3b1","to_name":"text","type":"labels","value":{"end":15939,"labels":["ANALYSIS"],"start":15798,"text":"The trial Court therefore was not at all justified in disbelieving even the presence of Irshad Khan, Babar Khan and Kaisher Khan at the spot."}},{"from_name":"label","id":"50d5d1f1b80a492a84ff7e9a52301877","to_name":"text","type":"labels","value":{"end":16317,"labels":["ANALYSIS"],"start":15940,"text":" Then again, keeping in view the fact that the injuries sustained by Sm. Naeema Parveen could be caused by a sharp edged weapon only and it being not the case of the defence that they had with them any such weapon the finding of the trial Court that Sm. Naeema Parveen and Sm. Raees Begum had accidentally sustained their injuries must be said to be based on conjecture only."}},{"from_name":"label","id":"ac1b7cb578da41dcba3c074d1b2d2505","to_name":"text","type":"labels","value":{"end":16492,"labels":["ANALYSIS"],"start":16317,"text":"\n Another reason which weighed with the trial Court in disbelieving the prosecution case was that there were discrepancies in evidence as to the details and manner of assault."}},{"from_name":"label","id":"d9943dbe95924884aa4a1e9022ba8bb7","to_name":"text","type":"labels","value":{"end":16926,"labels":["ANALYSIS"],"start":16493,"text":"While detailing those discrepancies the trial Court observed: \"According to the complainant Keramat Ali Khan that cot was lying just in front of the main door of his house at a distance of only 2 to 3 steps from the door and the entire beating outside his house had taken place near that cot and the last fatal blow of the chhuri was also inflicted by Shabbu accused on Shah Alam at only 2 or 3 steps in front of his main door."}},{"from_name":"label","id":"823ebeead74b482a97e133b675102414","to_name":"text","type":"labels","value":{"end":17053,"labels":["ANALYSIS"],"start":16927,"text":"On the other hand, according to Sm. Naeema Parveen, that cot was lying at 6 or 7 steps in front of the main door of the house."}},{"from_name":"label","id":"e1821ab96d084f229ab60dd2ad120ce8","to_name":"text","type":"labels","value":{"end":17303,"labels":["ANALYSIS"],"start":17054,"text":"According to P.W. Kaisher Khan, to whom that cot belonged, the cot was lying by the side of his chapper, i.e., towards the north- west of the complainant's door and, according to him it was lying at 6 or 7 steps from that door towards the left side."}},{"from_name":"label","id":"94cbfde8ac1c4ae282b83cca9ae0b574","to_name":"text","type":"labels","value":{"end":17445,"labels":["ANALYSIS"],"start":17304,"text":"According to P.W. Mardan Mian alias Kallan Mian also, that cot was lying at 7 or 8 steps towards the north- west from the complainant's door."}},{"from_name":"label","id":"ff5c75ed0ed94cc0981eaf35704dbbab","to_name":"text","type":"labels","value":{"end":17452,"labels":["ANALYSIS"],"start":17446,"text":"P.W.\n "}},{"from_name":"label","id":"6c6cf8e61f1649e6adbc1671f843b148","to_name":"text","type":"labels","value":{"end":17576,"labels":["ANALYSIS"],"start":17452,"text":"Keraman Ali Khan, at first, stated before me that the accused-persons had beaten Shah Alam etc, towards the east of the cot."}},{"from_name":"label","id":"7d1341f089f84b6e9e3a066e6f83c459","to_name":"text","type":"labels","value":{"end":17714,"labels":["ANALYSIS"],"start":17577,"text":"Then he stated in the next breath that some of them were beating on one side, while the others were beating on the other side of the cot."}},{"from_name":"label","id":"9e37266381804f0eb2c6fbd45ea21c7f","to_name":"text","type":"labels","value":{"end":17862,"labels":["ANALYSIS"],"start":17715,"text":"Further on he stated that the victims were roaming around that cot, while being beaten, and the samething has been stated by some other witnesses.\""}},{"from_name":"label","id":"d03782a259924a40a9aee4c98f22cf4a","to_name":"text","type":"labels","value":{"end":18018,"labels":["ANALYSIS"],"start":17864,"text":" The discrepancies pointed out by the trial Court are patently of minor character and cannot detract from the evidentiary value of the eye-witnesses."}},{"from_name":"label","id":"a202a766e6e642239523b81e929afde7","to_name":"text","type":"labels","value":{"end":18156,"labels":["ANALYSIS"],"start":18019,"text":"The High Court was, therefore, fully justified in ignoring those discrepancies while dealing with the evidence of the four eye-witnesses."}},{"from_name":"label","id":"2cac0b7859794e4a87c67e7d003b447d","to_name":"text","type":"labels","value":{"end":18403,"labels":["ANALYSIS"],"start":18156,"text":"\n The next reason canvassed by the trial Court for disbelieving the prosecution case was that the evidence of P.Ws. Kaisher Khan (P.W.2) and Mardan Mian (P.W.4) only established that some of the accused persons had assaulted Shah Alam and not all."}},{"from_name":"label","id":"a9fecce3cb5c4fc29017ddeaaa00e107","to_name":"text","type":"labels","value":{"end":18841,"labels":["ANALYSIS"],"start":18404,"text":"Having recorded the above finding it was imperative for the trial Court to consider the case of the individual accused on their respective merits in the light of other evidence on record and not to outright reject the evidence of the two witnesses in its entirely for it is trite that the principle Single in uno. Falsus in omnibus\"\ndoes not apply to criminal trials and it is the duty of the Court to disengage the truth from falsenood."}},{"from_name":"label","id":"2e9d27fdfffa4a6d864916368c343e5c","to_name":"text","type":"labels","value":{"end":18970,"labels":["ANALYSIS"],"start":18841,"text":"\n The judgment of the trial Court is replete with similar such findings which the High Court has rightly not accepted as correct."}},{"from_name":"label","id":"4f0c9f9f8da0430cbdcb67a9ef5b9240","to_name":"text","type":"labels","value":{"end":19184,"labels":["ANALYSIS"],"start":18971,"text":"However, to avoid prolixity we refrain from detailing or discussing all of them and refer only to the concluding one to highlight the absurd and perverse approach of the trial Court in dispensing criminal justice."}},{"from_name":"label","id":"51e974f05a9140f7b417ceb0d8b369ba","to_name":"text","type":"labels","value":{"end":19195,"labels":["ANALYSIS"],"start":19185,"text":"It reads:-"}},{"from_name":"label","id":"c8242e11e07441cdac73edafb1ca2f05","to_name":"text","type":"labels","value":{"end":19304,"labels":["ANALYSIS"],"start":19196,"text":" \"It is quite probable that Shah Alam etc. miont be bearing grudge and ill-will against Chand Khan etc."}},{"from_name":"label","id":"ba7b8d15e1d54cf1b6512bbc58b66e23","to_name":"text","type":"labels","value":{"end":19735,"labels":["ANALYSIS"],"start":19305,"text":"On account of the noon incident of that day, in which the accused Chand Khan, Ishtiaq Khan and Shabbu had an altercation with P.W. Raheem Khan and had then beaten him; and it may be that Shah Alam etc. might have caught-hold of Chand Khan accused when he had gone to the house of Rafiquddin for calling him and that they might have taken him from there in front of the complainant's house and might have assaulted him with churis."}},{"from_name":"label","id":"1168f795e2754a58864820e133819110","to_name":"text","type":"labels","value":{"end":20108,"labels":["ANALYSIS"],"start":19736,"text":"Then, it is also quite probable that the accused Sharif Khan, Salim Khan and Shabbu might have arrived on the spot on hearing the alarm raised by Chand khan accused and that Shah Alam etc. might have tried to assault them also and thereupon they might have assaulted Shah Alam etc. with dandas and chhuri in defence of Chand Khan accused, as also in their own selfdefence."}},{"from_name":"label","id":"3c559017fca54844893be7e2cc6082ca","to_name":"text","type":"labels","value":{"end":20289,"labels":["ANALYSIS"],"start":20109,"text":"It has come in evidence that the house of Shabbu accused is situated quite near to the road crossing and that the house of Salim Khan accused is also situated in the same locality."}},{"from_name":"label","id":"f9a101a52c404cc1b95156f3129e9887","to_name":"text","type":"labels","value":{"end":20600,"labels":["ANALYSIS"],"start":20290,"text":"So, it is quite possible that the accused Shabbu, Salim Khan and Chand Khan might be standing at the road crossing near the house of Shabbu accused and might be talking to each-other at that time and that they might have reached the sput on hearing the alarm raised by Chand Khan accused.\"\n (emphasis supplied)"}},{"from_name":"label","id":"bade21a386c84c12ba52c722bd07db67","to_name":"text","type":"labels","value":{"end":20900,"labels":["ANALYSIS"],"start":20601,"text":" By frequent recourse to and reliance upon the words \"might be\" and \"might have\" in the above quoted passage the trial Court, instead of finding out which of the contending versions was correct and acceptable, gave out a version of its own relying solely on presumption, surmise and conjecture."}},{"from_name":"label","id":"fa21289c64c343fcbbbaec7133c05577","to_name":"text","type":"labels","value":{"end":21225,"labels":["ANALYSIS"],"start":20901,"text":"The trial Court would have been, on a proper discussion and aporaisal of the evidence, fully justified to hold that the prosecution case was unreliable and record an order of acquittal in favour of accused without going into the question as to whether the defence case was true, for burden of proof was upon the prosecution."}},{"from_name":"label","id":"5cb6bdeeaff24baabd1c30b6e65fde69","to_name":"text","type":"labels","value":{"end":21341,"labels":["ANALYSIS"],"start":21226,"text":"Equally justified the trial Court would have been in recording such an order if it found the defence case probable."}},{"from_name":"label","id":"030056db5c8a42cea657b355c1c5399d","to_name":"text","type":"labels","value":{"end":21439,"labels":["ANALYSIS"],"start":21342,"text":"But it was not at all justified to make out a third case entering into the domain of speculation."}},{"from_name":"label","id":"b2ec9e38a79b420b8e93ee4acd00dd62","to_name":"text","type":"labels","value":{"end":21604,"labels":["ANALYSIS"],"start":21440,"text":"The High Court was, therefore, right in basing its decision on a fresh and proper appraisal of the evidence leaving aside the obstinate findings of the trial Court."}},{"from_name":"label","id":"38d22fc4f7814884b7718876369b7561","to_name":"text","type":"labels","value":{"end":21722,"labels":["ANALYSIS"],"start":21605,"text":"Having gone through the record we do not find any reason to differ from the decision so arrived at by the High Court."}},{"from_name":"label","id":"d82764ee80b54b54a763f4369d3c4ffd","to_name":"text","type":"labels","value":{"end":22083,"labels":["ARG_PETITIONER"],"start":21722,"text":"\n Mr. Thakur, learned counsel for the appellants, however submitted that even if it was held that the reasons which weighed with the trial Court in recording the order of acquittal were faulty and unsustainable still then the order of acquittal was liable to be upheld for the evidence on record did not Justify the impugned Judgment rendered by the High Court."}},{"from_name":"label","id":"046a43753c2f4888a621eea0b4dc5461","to_name":"text","type":"labels","value":{"end":22312,"labels":["ARG_PETITIONER"],"start":22084,"text":"To bring home his contention Mr. Thakur urged that the incident that took place in the afternoon in which Faheem Khan was assaulted by Chand Khan might have been a motive for the former to assault the latter and not vice- versa."}},{"from_name":"label","id":"88419d1bbbe84011b71dc946cbc6e160","to_name":"text","type":"labels","value":{"end":22443,"labels":["ARG_PETITIONER"],"start":22313,"text":"In that context, Mr. Thakur urged, the defence version of the incident in question was more probable than that of the prosecution."}},{"from_name":"label","id":"751fad80e9ce4277b6e5477ef436cdd1","to_name":"text","type":"labels","value":{"end":22741,"labels":["ANALYSIS"],"start":22444,"text":"This contention of Mr. Thakur need not be gone into for we have earlier observed, and at the risk of repetition may again point out, that as the evidence on record clearly proves that the incident took place in the manner alleged by the prosecution absence or insufficency of motive is immaterial."}},{"from_name":"label","id":"b5058c09ca20411196a6edd15756f647","to_name":"text","type":"labels","value":{"end":23089,"labels":["ANALYSIS"],"start":22742,"text":"Mr. Thakur next submitted that the evidence of the prosecution withesses so far as it related to the assault on Sm. Naeema Praveen and Chand Khan inside the house was patently false; firstly. because no blood was found inside the house and secondly because no knife was produced by Sm. Naeema Praveen much less seized by the Investigation Officer."}},{"from_name":"label","id":"0409400ecb9f416f801e62163d6ecc54","to_name":"text","type":"labels","value":{"end":23446,"labels":["ANALYSIS"],"start":23090,"text":"In support of this contention he drew our attention to the evidence of the Investigation Officer (PW 16) wherein he stated that neither he had seen nor shown the vegetable cutting knife used by Sm. Naeema Praveen and that he had found blood at the place which was about 8 steps from the northern main door outside the house of Keramat Ali and nowhere else."}},{"from_name":"label","id":"25ca7c10c7fd4193a96bf5c103d3232d","to_name":"text","type":"labels","value":{"end":23500,"labels":["ANALYSIS"],"start":23447,"text":"We are not impressed by any of the above contentions."}},{"from_name":"label","id":"74e6cf0c4eaf4aa2993cddddf255d17e","to_name":"text","type":"labels","value":{"end":23673,"labels":["ANALYSIS"],"start":23500,"text":"\n There is no evidence on record to show that there was profuse bleeding from the injuries sustained by the two ladies and Chand Khan for blood to trickle down to the floor."}},{"from_name":"label","id":"14d6fe2c31d345c2ad5dd17bda02536b","to_name":"text","type":"labels","value":{"end":23843,"labels":["ANALYSIS"],"start":23674,"text":"On the contrary, the find of blood near the threshold of P.W.1's house fits in with the evidence of the eye- witnesses and the nature of injuries sustained by Shah Alam."}},{"from_name":"label","id":"1707b6e073984d728506a4abcf284c70","to_name":"text","type":"labels","value":{"end":24067,"labels":["ANALYSIS"],"start":23843,"text":"\nFrom the evidence of Sm. Naeema Praveen (PW 5) we get that when the accused persons started beating the members of their family inside their premises, she her mother and aunt (Raees Begum) started shouting and cursing them."}},{"from_name":"label","id":"4ca8c95f98de4a20b73713a7102556bd","to_name":"text","type":"labels","value":{"end":24139,"labels":["ANALYSIS"],"start":24068,"text":"Then, when they found Chand Khan was approaching them they went inside."}},{"from_name":"label","id":"41aedd8e7b3a457496e9c11271c79520","to_name":"text","type":"labels","value":{"end":24271,"labels":["ANALYSIS"],"start":24139,"text":"\nThere Ishtiaq Khan gave two chhuri blows on the left side of her face and Sharik Khan gave two danda blows to her aunt Raees Begum."}},{"from_name":"label","id":"484cd9972bd048719d2bdb165dff0dce","to_name":"text","type":"labels","value":{"end":24374,"labels":["ANALYSIS"],"start":24272,"text":"When she found Chand Khan was about to beat her mother, she struck him with a vegetable cutting knife."}},{"from_name":"label","id":"68e45ac4ce234ffea1d886ab4c46f279","to_name":"text","type":"labels","value":{"end":24490,"labels":["ANALYSIS"],"start":24375,"text":"The above evidence of P.W.5 stands substantially corroborated by the other three eye-witnesses referred to earlier."}},{"from_name":"label","id":"fd3e83852b4f4dfea6b0f849626e61af","to_name":"text","type":"labels","value":{"end":24616,"labels":["ANALYSIS"],"start":24491,"text":"Then again the nature of injuries as found by the doctor upon her, Sm. Raees Begum and Chand Khan fits in with her testimony."}},{"from_name":"label","id":"649a7e94121341e297961a4d58eade3b","to_name":"text","type":"labels","value":{"end":24781,"labels":["ANALYSIS"],"start":24617,"text":"In our opinion the best corroborative piece of evidence is furnished by the F.I.R. which was lodged by Keramat Ali (P.W.1) on the basis of what he heard from P.W.5."}},{"from_name":"label","id":"69562c2da786456384e3a48a0988afb8","to_name":"text","type":"labels","value":{"end":25065,"labels":["ANALYSIS"],"start":24782,"text":"In the F.I.R., which was lodged within two hours of the incident, the substratum of the entire prosecution case finds place including a statement that during the incident Sm. Naeema Praveen had, in defending herself, given a blow to one of the accused with a vegetable cutting knife."}},{"from_name":"label","id":"95fab53be9f341ddbd23cbf992912d3a","to_name":"text","type":"labels","value":{"end":25566,"labels":["ANALYSIS"],"start":25066,"text":"In view of the above statement recorded in the F.I.R., the Investigation Officer (P.W.16) ought to have taken steps to seize the knife even if P.W. 5 had not produced it for, one of the essential requisites of a proper investigation is collection of evidence relating to the commission of the offence and that necessarily includes, in a case of assault, seizure of the weapon of offence, but then failure to collect evidence and failure to produce evidence collected during investigation at the trial"}},{"from_name":"label","id":"0d2ca1904f1f4f86abb0e55446f0c048","to_name":"text","type":"labels","value":{"end":25617,"labels":["ANALYSIS"],"start":25567,"text":"carry two different connotations and consequences."}},{"from_name":"label","id":"3b900667593b4b81880ca7d6dfe4b4a4","to_name":"text","type":"labels","value":{"end":25862,"labels":["ANALYSIS"],"start":25618,"text":"While, the former may entitle the Court to hold the investigation to be perfunctory or tainted affecting the entire trial in case of the latter the Court may legitimately draw a presumption in accordance with Section 114(g) of the Evidence Act."}},{"from_name":"label","id":"ffb34c59694c4c319b6e5da871afb45e","to_name":"text","type":"labels","value":{"end":26098,"labels":["ANALYSIS"],"start":25863,"text":"As the case presented before us comes under the first category of failures we have to find out whether we will be justified in discarding the prosecution case solely for the remissness of the Investigating Officer in seizing the knife."}},{"from_name":"label","id":"1171bed51e4448cfbf79f6962972e6cc","to_name":"text","type":"labels","value":{"end":26429,"labels":["ANALYSIS"],"start":26099,"text":"The consistent and reliable evidence of the eye witnesses coupled with the nature of injuries sustained by some of them and Chand Khan and the fact that in the F.I.R. it has clearly been stated that one of the miscreants had been assaulted by a vegetable cutting knife do not persuade us to answer the question in the affirmative."}},{"from_name":"label","id":"fb57c3f395d84567bef483e0fbab2ac9","to_name":"text","type":"labels","value":{"end":26656,"labels":["ANALYSIS"],"start":26430,"text":"Mr. Thakur lastly submitted that the entire prosecution story was improbable for if really the incident had happened in the manner alleged by it, the persons present in P.W.1's house would have sustained more serious injuries."}},{"from_name":"label","id":"08ca521853b74dfa99d3d33974326bab","to_name":"text","type":"labels","value":{"end":26861,"labels":["RATIO"],"start":26657,"text":"We do not find any substance in this contention for it is evident that Shah Alam was the main target and the assault on others was carried out to thwart any resistance from those present in the courtyard."}},{"from_name":"label","id":"ed42e7aa27af40b79d331de4ea95e409","to_name":"text","type":"labels","value":{"end":27167,"labels":["RATIO"],"start":26861,"text":"\n As all the points raised by Mr. Thakur fail and as on a conspectus of the entire evidence we are fully satisfied that the conclusions drawn by the High Court, particularly regarding the roles played by the two appellants in the riot and the murder of Shah Alam are unexceptionable, we dismiss the appeal."}},{"from_name":"label","id":"0c6eebfb82f04e2b9aa486c5169f9f67","to_name":"text","type":"labels","value":{"end":27268,"labels":["RPC"],"start":27168,"text":"The appellants, who are on bail, shall now surrender to their bail bonds to serve out the sentences."}}]}],"string":"[\n {\n \"result\": [\n {\n \"from_name\": \"label\",\n \"id\": \"9587f2bcc8114accad4c16abec5d7948\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 104,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 0,\n \"text\": \"PETITIONER:\\nCHAND KHAN & ANR.\\n\\n Vs.\\n\\nRESPONDENT:\\nSTATE OF UTTAR PRADESH\\n\\nDATE OF JUDGMENT11/07/1995\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"e6e244c2c41a4dd2a9740784cfc25839\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 301,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 106,\n \"text\": \"BENCH:\\nMUKHERJEE M.K. (J)\\nBENCH:\\nMUKHERJEE M.K. (J)\\nANAND, A.S. (J)\\n\\nCITATION: 1995 SCC (5) 448\\n 1995 AIR 2140 1995 SCALE (4)276\\n JT 1995 (5) 329\\n\\nACT:\\n\\nHEADNOTE:\\n\\nJUDGMENT\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"5bbc16faa26b4fd3bf2c7c1b62178a4b\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 514,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 301,\n \"text\": \": THE 11TH DAY OF JULY, 1995 Present: Hon'ble Dr.Justice A.S.Anand Hon'ble Mr.Justice M.K.Mukherjee Mr.D.D.Thakur, Sr. Adv. Mr.Suman Kapoor, and Mr.Pankaj Kalra, Advs. with him for the appellants.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"558d98e00475411ab57ffccaf95c48fe\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 578,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 514,\n \"text\": \"\\nMr.Anis Ahmed Khan and Mr.A.S.Pundir, Advs. for the Respondent.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"f6e17104d86140298b41bf3a4b7aba42\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 595,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 578,\n \"text\": \"\\n J U D G M E N T\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"fab1b21a083440519f3052ba1650dcc1\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 708,\n \"labels\": [\n \"RLC\"\n ],\n \"start\": 596,\n \"text\": \"The following Judgment of the Court was delivered: IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"f14e25eac56e4a1d9d32a0da3f661dbc\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 717,\n \"labels\": [\n \"RLC\"\n ],\n \"start\": 709,\n \"text\": \"CRIMINAL\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"8f230cb9654a4ee289a0dc7f0563258e\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 839,\n \"labels\": [\n \"RLC\"\n ],\n \"start\": 718,\n \"text\": \"APPEAL NO. 716 OF 1991 Chand Khan and anr.\\n Versus State of Uttar Pradesh J U D G M E N T M.K. MUKHERJEE\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"873f0590571c48d98f99a2eeff547648\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 845,\n \"labels\": [\n \"RLC\"\n ],\n \"start\": 839,\n \"text\": \". J.\\n \"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"b9786ed736ff4f8faaf274d40cb861aa\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 1108,\n \"labels\": [\n \"RLC\"\n ],\n \"start\": 845,\n \"text\": \"Chand Khan and Shabbu, the two appellants before us, and seven others were placed on trial before an Additional Sessions Judge of Rampur to answer common charges under Sections 452, 302/149, 325/149, 324/149 and 323/149 of the Indian Penal Code (`IPC' for short).\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"4741edae3b2049c4928826c22592bb16\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 1267,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 1109,\n \"text\": \"Against five of them, including the two appellants, a charge under Section 148 IPC and against the other four a charge under Section 147 IPC were also framed.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"f62f4b923d5a4449a2642d77f6f30819\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 1353,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 1268,\n \"text\": \"Besides, a separate charge under Section 302 IPC was framed against appellant Shabbu.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"e17dac1f340c4b73b817447947d12895\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 1442,\n \"labels\": [\n \"RLC\"\n ],\n \"start\": 1354,\n \"text\": \"The trial ended in an order of acquittal recorded in favour of all the persons araigned.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"c64142f117944331bddc8da966ce7f55\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 1621,\n \"labels\": [\n \"RLC\"\n ],\n \"start\": 1443,\n \"text\": \"Aggrieved thereby the State of Uttar Pradesh preferred an appeal which was partly allowed by the High Court by setting aside the acquittal of the two appellants and three others.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"0ad697649fbf485f9badef61fb912ab9\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 1939,\n \"labels\": [\n \"RLC\"\n ],\n \"start\": 1622,\n \"text\": \"After setting aside their acquittal the High Court convicted the two appellants for the offence under Section 302 IPC as also for the other offences for which they were charged and sentenced them to suffer imprisonment for life for the former conviction and for the period already undergone for the other convictions.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"d455808dc0ee46b09353b2333b7798bc\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 2116,\n \"labels\": [\n \"RLC\"\n ],\n \"start\": 1939,\n \"text\": \"\\nThe other three were convicted of all the charges levelled against them except the one under Section 302/149 IPC and sentenced to imprisonment for the period already undergone.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"31d4eb8307424905ba080240a2c66dbb\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 2290,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 2116,\n \"text\": \"\\nAssailing the above order of conviction and sentence only the two appellants have filed this appeal invoking their statutory right under Section 379 Criminal Procedure Code.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"f861410bbc5d4845b5e7e407e34e6926\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 2540,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 2290,\n \"text\": \"\\n Facts which are not in dispute are that Shah Alam (the deceased), his cousin Faheem Khan (P.W.6) and appellant Chand Khan were carrying on business of Karchobi from two separate workshops in Mohalla Gher Pipalwala within the police station of Ganj.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"1fdfb7d52fe44fb89b12d31e40b1ea28\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 2778,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 2541,\n \"text\": \"Aslam (P.W.7), a boy aged about 7/8 years, had been working for the appellant Chand Khan in his business but a few days before the incident out of which the present appeal arises he left his services and joined the set-up of Faheem Khan.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"40d835206ec44c869a3bc8072b3327c5\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 2969,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 2779,\n \"text\": \"On May 26, 1977 at or about 1 P.M.\\nthe two appellants and accused Ishtiaq Khan went to the workshop of Faheem Khan and asked him to release Aslam so that he could work with Chand Khan again.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"81563bd1e96648e28ca989be57a26571\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 3024,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 2970,\n \"text\": \"When Faheem Khan refused to oblige they assaulted him.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"1709fc5ecaaa44fea41a0729605df75b\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 3101,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 3025,\n \"text\": \"For that incident, he lodged a complaint with the police the same afternoon.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"0acc06e552cc44428bbc2194e212d28f\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 3410,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 3101,\n \"text\": \"\\nHowever, according to the prosecution Shah Alam and Faheem Khan used to carry on their above business jointly but as adequate accommodation was not available at one and the same place they were maintaining two workshops, one in the house of one Allah Rakha Khan and the other in the terrace of Md.\\nJama Khan.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"f7686f86614240d4869b60ae59b196e9\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 3729,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 3412,\n \"text\": \"The prosecution version of the incident is that on the same night (on May 26, 1977) the two appellants along with the other accused persons went to the house of Shah Alam to teach him a lesson for the report his business partner Faheem Khan had lodged against some of them earlier in the afternoon for assaulting him.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"ac10c38fc21146228e6953ac544fe25f\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 3837,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 3730,\n \"text\": \"For that purpose the two appellants went armed with Knives and the rest with other weapons including danda.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"fa81fcb721fb45fd9073415ce17b14ce\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 3969,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 3838,\n \"text\": \"Shah Alam was then sitting on a cot in the open space in front of his house along with Irshad Khan, Babar Khan and Kaisher (P.W.2).\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"41ac83decc024b48958f6a6a77eb752b\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 4054,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 3970,\n \"text\": \"Immediately after entering the premises the accused persons started assaulting them.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"07e61befb2c8487b97ec312efeccaf35\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 4173,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 4055,\n \"text\": \"Chand Khan gave two knife blows to Shah Alam and some others hit Irshad Khan, Babar Khan and Kaisher Khan with dandas.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"7e41112895ae4eb0ba84a0bf7136517a\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 4389,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 4174,\n \"text\": \"When the victims cried aloud, Keramat Ali Khan (P.W.1), father of the deceased Shah Alam, who was inside the house came out and some people from the mohalla including Kallan Mian @ Mardan Mian (P.W.4) arrived there.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"90138731e6fa4960be2c3c15a8c3819a\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 4576,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 4390,\n \"text\": \"In the meantime some of the miscreants including Chand Khan entered into the house of Keramat and assaulted his daughter Sm. Naeema Parveen (P.W.5) and his sister-in-law Sm. Raees Begum.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"6f0e030c13244a38b0a1bd063f5c9acd\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 4743,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 4577,\n \"text\": \"When Sm. Naeema Parveen found that Chand Khan was about to beat her mother she picked up a knife used for cutting vegetables which was lying nearby and assaulted him.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"1e407136e2314d398bb7bc377897167e\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 4840,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 4743,\n \"text\": \"\\nWhile coming out of the house Shabhu thrust his knife on the neck of Shah Alam felling him down.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"539d4baa5a7f4ddda12b4842c5cc4d43\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 4868,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 4841,\n \"text\": \"All of them then fled away.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"53ce6333bb384bc48150acea5a759f3b\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 4992,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 4869,\n \"text\": \"Keramat Ali Khan arranged immediate hospitalisation of all the injured including Shah Alam, whose condition was precarious.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"544ca71dedb94bddad911c2283e0960d\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 5061,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 4993,\n \"text\": \"Before, however, any treatment could be administered Shah Alam died.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"e604831a28f84a09b8286ae536f82c3d\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 5217,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 5062,\n \"text\": \"While in the hospital Keramat Ali Khan got a complaint written by Asmat Ali Khan (P.W.9) as per his dictation and forwarded the same to the police station.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"8e1b64026e5848738c215490d2108e03\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 5399,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 5219,\n \"text\": \"At the hospital, Dr. S.P. Pandey (P.W.3) examined Sm.\\nNaeema Parveen (P.W.5), Irshad Khan, Babar Khan, Sm. Raees Begum and Kaisher Khan (P.W.2) and found injuries on their persons.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"3d6f029a7c03443d93d6e139ecddec8b\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 5578,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 5400,\n \"text\": \"P.W.5 had two incised wounds which, according to P.W.3, could be caused by sharp edged weapon and the other four had sustained contusions, which could be caused by blunt weapons.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"fcbe6e06c0a740369bda19d4226f3cc0\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 5721,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 5579,\n \"text\": \"Chand Khan, who was also brought under arrest to the hospital in that very night as he had injuries on his person, was also examined by P.W.3.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"f0ed33d0a2ae406a932707302bbe3d7e\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 5839,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 5722,\n \"text\": \"He found three incised wounds on his person, all of which, according to him, could be caused by a sharp edged weapon.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"2d421904fa0d43f38a8404e73b2ff3eb\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 5987,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 5840,\n \"text\": \"Besides, P.W.3 examined Faheem Khan for injuries which, he alleged, were sustained by him in the incident that took place earlier in the afternoon.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"8f6a30d33e594173b609cb3dbc092d7a\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 6104,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 5988,\n \"text\": \"According to P.W.3 the two stab injuries he found on his person were likely to have been caused by a pointed weapon.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"675d41174cf74157b9ae87043204a316\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 6218,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 6104,\n \"text\": \"\\n The post-mortem examination on the body of Shah Alam was held by Dr. O.N. Gupta on the following day (27.5.1977)\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"9cda1af3ba9e4030a3885b2eb8ff1f8e\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 6277,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 6219,\n \"text\": \"He found the following external injuries on his person:- <\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"e1761e0b321c4eef95223d246f6e8b4a\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 6283,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 6277,\n \"text\": \"SLS> 1\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"908b75afd7fe497d93b666a9d051ebf0\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 6452,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 6283,\n \"text\": \". Incised punctured wound 5 cm. x 3 cm.\\n x chest cavity deep on the base of left side neck, 5 cm. from the left sterno clavicular joint with direction downwards.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"934ff9b2677b4af3ab159c79e7009111\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 6555,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 6462,\n \"text\": \"2. Abrasion 4 cm. x 1 cm. on the right side forehead 3 cm. above right eye brows.\\n 3.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"4e8c3a0012d04b949c7bb1e1fb8f91a0\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 6564,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 6556,\n \"text\": \"Abrasion\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"1507d0c49b08450abf13a655502753ec\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 6606,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 6565,\n \"text\": \"3 cm. x 2 cm. on right side forehead 3 cm\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"be659fd5cc6b431ca7c1174d00164d29\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 6625,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 6606,\n \"text\": \". lateral to injury\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"f427fe6933b140bd89207015c340c643\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 6717,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 6626,\n \"text\": \"No. 1.\\n 4. Abrasion 2 cm. x 1cm. on the left side scapular region back.\\n 5.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"21238cc47c1e4548862539ddc29e5db9\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 6811,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 6718,\n \"text\": \"Incised wound 2 cm. x 1 cm. x skin deep on the left side back at inner angle of left scapula.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"d1ae4327bba54e4f9ff8920eed6f1b0f\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 6932,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 6811,\n \"text\": \"\\n 6. Incised punctured wound 3 cm. x 1 cm.\\n chest cavity deep on left side back 4 cm. below injury No. 5.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"144ca5eba1db4d7489161bc8f3b917dd\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 7259,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 6933,\n \"text\": \" On internal examination of the dead body he found that the sixth rit was cut under injury No. 6; the pleura was cut beneath the injuries No. 1 and 6, the left lung was cut through and through upper lobe was cut both under injury No.1 and 6 and the pericardium and the right side of the heart were cut by the injury No.1.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"1d5931cde5754c49ae92dbf947f239ef\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 7369,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 7260,\n \"text\": \"Dr. Gupta opined that the death was due to shock and haemorrhage as a result of the injuries to vital organs.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"1b4f4dd82c7044d0954662b828af2013\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 7531,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 7379,\n \"text\": \"Shri V.P. Singh (P.W.16) Station House Officer of Ganj Police Station took up investigation of the case registered on the complaint of Keramat Ali Khan.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"a7088417b3354e8a8006d26f8beb3792\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 7760,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 7532,\n \"text\": \"Besides, interrogating him and the injured persons in the hospital on that very night, he inspected the place of occurrence, prepared a site plan and seized some blood stained earth from near the gate of the complainant's house.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"3401eb035d904ffea5fcc63985c8c75a\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 7854,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 7761,\n \"text\": \"After completion of investigation he submitted charge-sheet against the nine accused persons.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"266836c7ec444039834531b3d9eb4d43\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 7979,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 7864,\n \"text\": \"The appellants and the other accused persons pleaded not guilty and asserted that they had been falsely implicated.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"eccae0407a1c4742a66946d1be982769\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 8136,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 7980,\n \"text\": \"In his statement recorded under Section 313 Dr.\\nP.C.Chand Khan, however, admitted that earlier P.W.7 used to work at his workshop but P.W.6 weaned him away.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"8e23321fb4d54a6da785b8d803921efe\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 8296,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 8137,\n \"text\": \"He also admitted that he had gone to the workshop of Faheem Khan with Shabbu and Ishtiad and asked him to hand over Aslam to him and that he had assaulted him.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"e582bc06f7914b708e1cacee9242797e\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 8350,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 8297,\n \"text\": \"He however denied to have assaulted him with a knife.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"0797b55d37a4489bae6f3b432bf28ac7\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 8536,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 8351,\n \"text\": \"As regards the incident in question, his version was that on that night there was a festivity in the house of his cousin Sajjan and Mahboob (since acquitted) to which he was an invitee.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"cd86b4163e414034810e200c2c3cd9bd\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 8684,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 8537,\n \"text\": \"As Rafiouddin of their mohalla was also invited in that function he went to his house which was near the house of the complainant to accompany him.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"b1a5754e2aac48179766df3cbc5649ac\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 8828,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 8685,\n \"text\": \"There, on hearing his voice, Shah Alam and Kaisher Khan came out with knives accompanied by Babar Khan and Irshad Khan and started beating him.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"8c40005702f24a2e90b57588094dcefb\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 8954,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 8829,\n \"text\": \"When he cried aloud Shabbu (appellant), Sharif and Salim who were standing nearby and talking among themselves arrived there.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"a80b9d25719b4a5683b4631944b48823\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 9066,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 8955,\n \"text\": \"When Shah Alam and his companions attempted to assault Shabbu and others, they in their defence assaulted them.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"a11ec186ba4a46f287d3078b8f6d1e45\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 9147,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 9067,\n \"text\": \"As the ladies of the house had come out then they also sustained minor injuries.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"b04eb1a551474e4fbca36632f07b5094\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 9327,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 9148,\n \"text\": \"Appellant Shabbu, in his statement under Section 313 Dr.P.C. admitted the assault on Faheem Khan in that afternoon but denied his presence at the time of the incident in question.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"32fe083082fa4714b3c794af16011e7b\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 9443,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 9329,\n \"text\": \"To prove its case the prosecution examined sixteen witnesses but no witness was examined on behalf of the defence.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"1636340350214cdca1bbb1f7f3cf7d8f\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 9555,\n \"labels\": [\n \"RLC\"\n ],\n \"start\": 9444,\n \"text\": \"On consideration of the evidence adduced the trial Court held that the prosecution case was unworthy of credit.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"81b1786f6e7f421292f77d0b11116c3d\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 9854,\n \"labels\": [\n \"RLC\"\n ],\n \"start\": 9555,\n \"text\": \"\\nOn appeal the learned Judges of the High Court found the evidence of the four eye-witnesses examined by the prosecution, namely, P.Ws. 1, 2, 4 and 5 convincing and the reasons given by the trial Court for disbelieving them and, for that matter, discarding the case of the prosecution were perverse.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"ae27b3772042469c8f228f04e8bc8e25\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 10165,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 9854,\n \"text\": \"\\n It was urgeo on behalf of the appellants that as the trial Court gave detailed reasons for disbelieving the evidence of the prosecution witnesses the High Court was not justified in interfering with the same even if another reasonably possible view of the evidence in favour of the prosecution might be taken.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"aa3aa0cdf1bd4b00a3ace35d687d072d\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 10569,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 10166,\n \"text\": \"Having heard the learned counsel at length and seen the judgments of the learned Courts below in the light of the evidence on record, we find that the High Court committed no error or injustice in interfering with the order of acquittal for it has noticed all the salient features of the case in the judgment of the trial Court, discussed them well and disapproved them for cogent and justified reasons.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"f9a73c7354094f6489bf18bd8a52aa63\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 10694,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 10570,\n \"text\": \"We are in complete agreement with the High Court that the judgment of trial Court was perverse and deserved to be set aside.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"fbc0c595507c4ea791de0a4b418f659b\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 11022,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 10696,\n \"text\": \"In the context of the respective cases of the parties, it could not be - nor was it - disputed that an incident of assault took place in the night of May 26, 1977 in or around the residential premises of Keramat Ali Khan (P.W.1) in the backdrop of an earlier incident in the afternoon in which Faheem Khan (P.W.6) was injured.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"c795ed40b0cd4cdcae72236c5612baa8\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 11178,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 11023,\n \"text\": \"It was also not disputed that in the incident in question Shah Alam met with his death while some others including appellant Chand Khan sustained injuries.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"e47bc09221ee4fb597c84d8c4bfea4c0\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 11463,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 11179,\n \"text\": \"In that view of the matter the principal question that fell for determination before the learned Courts below was whether it took place within the residential premises of P.W.1 and in the manner as alleged by the prosecution or in the lane outside his house as claimed by the defence.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"d28c3ffa40994545b00bc72bd7ce57f9\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 11774,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 11464,\n \"text\": \"To prove its version of the incident, the prosecution relied, needless to say, upon the evidence of the four eye-witnesses referred to earlier while the defence relied upon the statement of the accused including the appellant Chand Khan made under Section 313 Dr.P.C. and the circumstances appearing on record.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"a068f0fde5ca43bc83f451dbde5676bf\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 12042,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 11776,\n \"text\": \"In negativing the prosecution version the trial Court first held, for reasons given, that the assault on Faheem Khan in the afternoon by Chand Khan could not be a motive for committing the murder of Shah Alam and that no other motive was ascribed by the prosecution.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"c74689e37a26406183842d3cde47b91f\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 12435,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 12043,\n \"text\": \"Even if we proceed on the basis that the prosecution failed to prove the genesis or motive and that the above finding of the trial Court in this regard is unexceptionable still then this appeal cannot succeed on that score for proof of motive is not essential for success of a prosecution case where - as in the instant case - the ocular testimony in support of it is convincing and reliable.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"3ad24a1ba72d40d292bc16cd90a24eb8\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 12711,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 12436,\n \"text\": \"Indeed, as our discussion to follow will show the findings recorded by the trial Court for discarding the evidence of the four eye witnesses are based either on presumption, surmise and conjecture or on undue and unjustified reliance upon minor and immaterial contradictions.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"1d1a65430bdd4851a9f2d02765068eb3\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 12870,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 12713,\n \"text\": \"In dealing with the evidence of the four eye - witnesses the trial Court first observed that having regard to the incident that took place in that afternoon.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"c2d0f8fc219a4c4ea598eb920af76513\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 13046,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 12871,\n \"text\": \"Faheem Khan and Shah Alam could only be the targets of the attack of the accused persons and not others, namely, Kaisher Khan, Babar Khan and Irshad Khan as testified by them.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"818e4f1792fb4e10a5e5f6ffd90cb50f\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 13394,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 13047,\n \"text\": \"It next observed that if their evidence that Shah Alam and the above three persons were sitting together in front of the complainant's house and were talking to each other when the accused arrived there was to be believed, the latter could have caught hold of Shah Alam from out of those persons and put him to death in no time and then gone back.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"6f91ca4dd8be4d52a890a1d4e2b0208a\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 13711,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 13395,\n \"text\": \"After making the above observations the trial Court held: \\\"It may be that the members of the complainant's house might have come-out at their door on hearing the noise and alarm of this incident and that they might be rebuking and even accusing these accused-persons on their assaulting Shah Alam etc\\\".\\n \"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"1f0fddc575c14881b1d9e1d01078a8c1\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 14264,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 13711,\n \"text\": \" The trial Court also disbelieved the prosecution case as to the manner in which the accused persons entered into the house of the complainant and beat the female members and, in explaining away the injuries found on the persons of Sm. Naeema Parveen and Sm. Raees Begum, observed: \\\"........and truth of the matter appears to be that Sm. Naeema Parveen and Sm. Raees Begum had accidently sustained their injuries in this incident when they had entered in the arena of the fight for defending Shah Alam etc. from the assault of the accused.\\\"\\n \"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"72a50225586c48caa26e5c914cb44ef0\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 14385,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 14264,\n \"text\": \" The High Court brushed aside the first of the above quoted findings of the trial Court with the following comments:\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"861b4afe70c248dfb1fb8acf5bfa4f73\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 14784,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 14386,\n \"text\": \" \\\"The observation of the Additional Sessions Judge that the accused were likely to single out Shah Alam and to assault him alone in Shah Alam, Irshad Khan, Babar Khan and Kaiser Khan had been found sitting on the cot is misconceived and devoid of sense for Babar Khan the brother of Shah Alam and Kaisher Khan and Irshad Khan who were his close relatives could not have been silent soectators.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"5230c51e7b3d4462a045dc1a90f92fa9\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 14863,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 14785,\n \"text\": \"It is for this reason that they had all sustained injuries around the cot.\\\"\\n <\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"94a588d39ebd481796a69b2489b78055\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 15174,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 14863,\n \"text\": \"SLE> As regards the other finding the High Court observed that in view of the nature of the injuries sustained by Sm.\\n Naeema Parveen and Sm. Raees Begum and in the absence of any suggestion put forward by the defence that those injuries were caused accidentally the criticism of the trial Court was perverse.\\n \"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"04f2e2d671384f79beb7a75aa5d81295\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 15312,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 15174,\n \"text\": \"On a close analysis of the materials on record we are of the opinion that the High Court was fully justified in making the above comments.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"6d39e9078b1c4be0b4e9b30cdd83538e\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 15468,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 15313,\n \"text\": \"That Kaisher Khan (P.W.2), Babar Khan and Irshad Khan were present at the material time as testified by the four eye witnesses was admitted by the defence.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"4337216e252140c687a5136a8f1bf4c7\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 15593,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 15469,\n \"text\": \"It was also admitted that besides Shah Alam the above three persons as well as lady members of the house sustained injuries.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"7bbb71005ff64d4686c43b26b2fd4aff\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 15797,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 15594,\n \"text\": \"However, according to them, they had beaten Shah Alam and other male members in exercise of their right of private defence and the ladies sustained simple injuries as they had then come out of the house.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"eff62db0d3804175a9d319ed18bdd3b1\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 15939,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 15798,\n \"text\": \"The trial Court therefore was not at all justified in disbelieving even the presence of Irshad Khan, Babar Khan and Kaisher Khan at the spot.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"50d5d1f1b80a492a84ff7e9a52301877\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 16317,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 15940,\n \"text\": \" Then again, keeping in view the fact that the injuries sustained by Sm. Naeema Parveen could be caused by a sharp edged weapon only and it being not the case of the defence that they had with them any such weapon the finding of the trial Court that Sm. Naeema Parveen and Sm. Raees Begum had accidentally sustained their injuries must be said to be based on conjecture only.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"ac1b7cb578da41dcba3c074d1b2d2505\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 16492,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 16317,\n \"text\": \"\\n Another reason which weighed with the trial Court in disbelieving the prosecution case was that there were discrepancies in evidence as to the details and manner of assault.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"d9943dbe95924884aa4a1e9022ba8bb7\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 16926,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 16493,\n \"text\": \"While detailing those discrepancies the trial Court observed: \\\"According to the complainant Keramat Ali Khan that cot was lying just in front of the main door of his house at a distance of only 2 to 3 steps from the door and the entire beating outside his house had taken place near that cot and the last fatal blow of the chhuri was also inflicted by Shabbu accused on Shah Alam at only 2 or 3 steps in front of his main door.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"823ebeead74b482a97e133b675102414\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 17053,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 16927,\n \"text\": \"On the other hand, according to Sm. Naeema Parveen, that cot was lying at 6 or 7 steps in front of the main door of the house.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"e1821ab96d084f229ab60dd2ad120ce8\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 17303,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 17054,\n \"text\": \"According to P.W. Kaisher Khan, to whom that cot belonged, the cot was lying by the side of his chapper, i.e., towards the north- west of the complainant's door and, according to him it was lying at 6 or 7 steps from that door towards the left side.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"94cbfde8ac1c4ae282b83cca9ae0b574\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 17445,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 17304,\n \"text\": \"According to P.W. Mardan Mian alias Kallan Mian also, that cot was lying at 7 or 8 steps towards the north- west from the complainant's door.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"ff5c75ed0ed94cc0981eaf35704dbbab\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 17452,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 17446,\n \"text\": \"P.W.\\n \"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"6c6cf8e61f1649e6adbc1671f843b148\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 17576,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 17452,\n \"text\": \"Keraman Ali Khan, at first, stated before me that the accused-persons had beaten Shah Alam etc, towards the east of the cot.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"7d1341f089f84b6e9e3a066e6f83c459\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 17714,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 17577,\n \"text\": \"Then he stated in the next breath that some of them were beating on one side, while the others were beating on the other side of the cot.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"9e37266381804f0eb2c6fbd45ea21c7f\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 17862,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 17715,\n \"text\": \"Further on he stated that the victims were roaming around that cot, while being beaten, and the samething has been stated by some other witnesses.\\\"\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"d03782a259924a40a9aee4c98f22cf4a\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 18018,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 17864,\n \"text\": \" The discrepancies pointed out by the trial Court are patently of minor character and cannot detract from the evidentiary value of the eye-witnesses.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"a202a766e6e642239523b81e929afde7\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 18156,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 18019,\n \"text\": \"The High Court was, therefore, fully justified in ignoring those discrepancies while dealing with the evidence of the four eye-witnesses.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"2cac0b7859794e4a87c67e7d003b447d\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 18403,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 18156,\n \"text\": \"\\n The next reason canvassed by the trial Court for disbelieving the prosecution case was that the evidence of P.Ws. Kaisher Khan (P.W.2) and Mardan Mian (P.W.4) only established that some of the accused persons had assaulted Shah Alam and not all.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"a9fecce3cb5c4fc29017ddeaaa00e107\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 18841,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 18404,\n \"text\": \"Having recorded the above finding it was imperative for the trial Court to consider the case of the individual accused on their respective merits in the light of other evidence on record and not to outright reject the evidence of the two witnesses in its entirely for it is trite that the principle Single in uno. Falsus in omnibus\\\"\\ndoes not apply to criminal trials and it is the duty of the Court to disengage the truth from falsenood.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"2e9d27fdfffa4a6d864916368c343e5c\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 18970,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 18841,\n \"text\": \"\\n The judgment of the trial Court is replete with similar such findings which the High Court has rightly not accepted as correct.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"4f0c9f9f8da0430cbdcb67a9ef5b9240\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 19184,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 18971,\n \"text\": \"However, to avoid prolixity we refrain from detailing or discussing all of them and refer only to the concluding one to highlight the absurd and perverse approach of the trial Court in dispensing criminal justice.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"51e974f05a9140f7b417ceb0d8b369ba\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 19195,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 19185,\n \"text\": \"It reads:-\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"c8242e11e07441cdac73edafb1ca2f05\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 19304,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 19196,\n \"text\": \" \\\"It is quite probable that Shah Alam etc. miont be bearing grudge and ill-will against Chand Khan etc.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"ba7b8d15e1d54cf1b6512bbc58b66e23\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 19735,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 19305,\n \"text\": \"On account of the noon incident of that day, in which the accused Chand Khan, Ishtiaq Khan and Shabbu had an altercation with P.W. Raheem Khan and had then beaten him; and it may be that Shah Alam etc. might have caught-hold of Chand Khan accused when he had gone to the house of Rafiquddin for calling him and that they might have taken him from there in front of the complainant's house and might have assaulted him with churis.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"1168f795e2754a58864820e133819110\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 20108,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 19736,\n \"text\": \"Then, it is also quite probable that the accused Sharif Khan, Salim Khan and Shabbu might have arrived on the spot on hearing the alarm raised by Chand khan accused and that Shah Alam etc. might have tried to assault them also and thereupon they might have assaulted Shah Alam etc. with dandas and chhuri in defence of Chand Khan accused, as also in their own selfdefence.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"3c559017fca54844893be7e2cc6082ca\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 20289,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 20109,\n \"text\": \"It has come in evidence that the house of Shabbu accused is situated quite near to the road crossing and that the house of Salim Khan accused is also situated in the same locality.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"f9a101a52c404cc1b95156f3129e9887\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 20600,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 20290,\n \"text\": \"So, it is quite possible that the accused Shabbu, Salim Khan and Chand Khan might be standing at the road crossing near the house of Shabbu accused and might be talking to each-other at that time and that they might have reached the sput on hearing the alarm raised by Chand Khan accused.\\\"\\n (emphasis supplied)\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"bade21a386c84c12ba52c722bd07db67\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 20900,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 20601,\n \"text\": \" By frequent recourse to and reliance upon the words \\\"might be\\\" and \\\"might have\\\" in the above quoted passage the trial Court, instead of finding out which of the contending versions was correct and acceptable, gave out a version of its own relying solely on presumption, surmise and conjecture.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"fa21289c64c343fcbbbaec7133c05577\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 21225,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 20901,\n \"text\": \"The trial Court would have been, on a proper discussion and aporaisal of the evidence, fully justified to hold that the prosecution case was unreliable and record an order of acquittal in favour of accused without going into the question as to whether the defence case was true, for burden of proof was upon the prosecution.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"5cb6bdeeaff24baabd1c30b6e65fde69\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 21341,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 21226,\n \"text\": \"Equally justified the trial Court would have been in recording such an order if it found the defence case probable.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"030056db5c8a42cea657b355c1c5399d\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 21439,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 21342,\n \"text\": \"But it was not at all justified to make out a third case entering into the domain of speculation.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"b2ec9e38a79b420b8e93ee4acd00dd62\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 21604,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 21440,\n \"text\": \"The High Court was, therefore, right in basing its decision on a fresh and proper appraisal of the evidence leaving aside the obstinate findings of the trial Court.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"38d22fc4f7814884b7718876369b7561\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 21722,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 21605,\n \"text\": \"Having gone through the record we do not find any reason to differ from the decision so arrived at by the High Court.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"d82764ee80b54b54a763f4369d3c4ffd\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 22083,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 21722,\n \"text\": \"\\n Mr. Thakur, learned counsel for the appellants, however submitted that even if it was held that the reasons which weighed with the trial Court in recording the order of acquittal were faulty and unsustainable still then the order of acquittal was liable to be upheld for the evidence on record did not Justify the impugned Judgment rendered by the High Court.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"046a43753c2f4888a621eea0b4dc5461\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 22312,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 22084,\n \"text\": \"To bring home his contention Mr. Thakur urged that the incident that took place in the afternoon in which Faheem Khan was assaulted by Chand Khan might have been a motive for the former to assault the latter and not vice- versa.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"88419d1bbbe84011b71dc946cbc6e160\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 22443,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 22313,\n \"text\": \"In that context, Mr. Thakur urged, the defence version of the incident in question was more probable than that of the prosecution.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"751fad80e9ce4277b6e5477ef436cdd1\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 22741,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 22444,\n \"text\": \"This contention of Mr. Thakur need not be gone into for we have earlier observed, and at the risk of repetition may again point out, that as the evidence on record clearly proves that the incident took place in the manner alleged by the prosecution absence or insufficency of motive is immaterial.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"b5058c09ca20411196a6edd15756f647\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 23089,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 22742,\n \"text\": \"Mr. Thakur next submitted that the evidence of the prosecution withesses so far as it related to the assault on Sm. Naeema Praveen and Chand Khan inside the house was patently false; firstly. because no blood was found inside the house and secondly because no knife was produced by Sm. Naeema Praveen much less seized by the Investigation Officer.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"0409400ecb9f416f801e62163d6ecc54\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 23446,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 23090,\n \"text\": \"In support of this contention he drew our attention to the evidence of the Investigation Officer (PW 16) wherein he stated that neither he had seen nor shown the vegetable cutting knife used by Sm. Naeema Praveen and that he had found blood at the place which was about 8 steps from the northern main door outside the house of Keramat Ali and nowhere else.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"25ca7c10c7fd4193a96bf5c103d3232d\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 23500,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 23447,\n \"text\": \"We are not impressed by any of the above contentions.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"74e6cf0c4eaf4aa2993cddddf255d17e\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 23673,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 23500,\n \"text\": \"\\n There is no evidence on record to show that there was profuse bleeding from the injuries sustained by the two ladies and Chand Khan for blood to trickle down to the floor.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"14d6fe2c31d345c2ad5dd17bda02536b\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 23843,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 23674,\n \"text\": \"On the contrary, the find of blood near the threshold of P.W.1's house fits in with the evidence of the eye- witnesses and the nature of injuries sustained by Shah Alam.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"1707b6e073984d728506a4abcf284c70\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 24067,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 23843,\n \"text\": \"\\nFrom the evidence of Sm. Naeema Praveen (PW 5) we get that when the accused persons started beating the members of their family inside their premises, she her mother and aunt (Raees Begum) started shouting and cursing them.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"4ca8c95f98de4a20b73713a7102556bd\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 24139,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 24068,\n \"text\": \"Then, when they found Chand Khan was approaching them they went inside.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"41aedd8e7b3a457496e9c11271c79520\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 24271,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 24139,\n \"text\": \"\\nThere Ishtiaq Khan gave two chhuri blows on the left side of her face and Sharik Khan gave two danda blows to her aunt Raees Begum.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"484cd9972bd048719d2bdb165dff0dce\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 24374,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 24272,\n \"text\": \"When she found Chand Khan was about to beat her mother, she struck him with a vegetable cutting knife.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"68e45ac4ce234ffea1d886ab4c46f279\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 24490,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 24375,\n \"text\": \"The above evidence of P.W.5 stands substantially corroborated by the other three eye-witnesses referred to earlier.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"fd3e83852b4f4dfea6b0f849626e61af\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 24616,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 24491,\n \"text\": \"Then again the nature of injuries as found by the doctor upon her, Sm. Raees Begum and Chand Khan fits in with her testimony.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"649a7e94121341e297961a4d58eade3b\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 24781,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 24617,\n \"text\": \"In our opinion the best corroborative piece of evidence is furnished by the F.I.R. which was lodged by Keramat Ali (P.W.1) on the basis of what he heard from P.W.5.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"69562c2da786456384e3a48a0988afb8\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 25065,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 24782,\n \"text\": \"In the F.I.R., which was lodged within two hours of the incident, the substratum of the entire prosecution case finds place including a statement that during the incident Sm. Naeema Praveen had, in defending herself, given a blow to one of the accused with a vegetable cutting knife.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"95fab53be9f341ddbd23cbf992912d3a\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 25566,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 25066,\n \"text\": \"In view of the above statement recorded in the F.I.R., the Investigation Officer (P.W.16) ought to have taken steps to seize the knife even if P.W. 5 had not produced it for, one of the essential requisites of a proper investigation is collection of evidence relating to the commission of the offence and that necessarily includes, in a case of assault, seizure of the weapon of offence, but then failure to collect evidence and failure to produce evidence collected during investigation at the trial\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"0d2ca1904f1f4f86abb0e55446f0c048\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 25617,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 25567,\n \"text\": \"carry two different connotations and consequences.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"3b900667593b4b81880ca7d6dfe4b4a4\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 25862,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 25618,\n \"text\": \"While, the former may entitle the Court to hold the investigation to be perfunctory or tainted affecting the entire trial in case of the latter the Court may legitimately draw a presumption in accordance with Section 114(g) of the Evidence Act.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"ffb34c59694c4c319b6e5da871afb45e\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 26098,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 25863,\n \"text\": \"As the case presented before us comes under the first category of failures we have to find out whether we will be justified in discarding the prosecution case solely for the remissness of the Investigating Officer in seizing the knife.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"1171bed51e4448cfbf79f6962972e6cc\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 26429,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 26099,\n \"text\": \"The consistent and reliable evidence of the eye witnesses coupled with the nature of injuries sustained by some of them and Chand Khan and the fact that in the F.I.R. it has clearly been stated that one of the miscreants had been assaulted by a vegetable cutting knife do not persuade us to answer the question in the affirmative.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"fb57c3f395d84567bef483e0fbab2ac9\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 26656,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 26430,\n \"text\": \"Mr. Thakur lastly submitted that the entire prosecution story was improbable for if really the incident had happened in the manner alleged by it, the persons present in P.W.1's house would have sustained more serious injuries.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"08ca521853b74dfa99d3d33974326bab\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 26861,\n \"labels\": [\n \"RATIO\"\n ],\n \"start\": 26657,\n \"text\": \"We do not find any substance in this contention for it is evident that Shah Alam was the main target and the assault on others was carried out to thwart any resistance from those present in the courtyard.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"ed42e7aa27af40b79d331de4ea95e409\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 27167,\n \"labels\": [\n \"RATIO\"\n ],\n \"start\": 26861,\n \"text\": \"\\n As all the points raised by Mr. Thakur fail and as on a conspectus of the entire evidence we are fully satisfied that the conclusions drawn by the High Court, particularly regarding the roles played by the two appellants in the riot and the murder of Shah Alam are unexceptionable, we dismiss the appeal.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"0c6eebfb82f04e2b9aa486c5169f9f67\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 27268,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 27168,\n \"text\": \"The appellants, who are on bail, shall now surrender to their bail bonds to serve out the sentences.\"\n }\n }\n ]\n }\n]"},"id":{"kind":"number","value":1744,"string":"1,744"},"data":{"kind":"string","value":"{\n \"text\": \"PETITIONER:\\nCHAND KHAN & ANR.\\n\\n Vs.\\n\\nRESPONDENT:\\nSTATE OF UTTAR PRADESH\\n\\nDATE OF JUDGMENT11/07/1995\\n\\nBENCH:\\nMUKHERJEE M.K. (J)\\nBENCH:\\nMUKHERJEE M.K. (J)\\nANAND, A.S. (J)\\n\\nCITATION: 1995 SCC (5) 448\\n 1995 AIR 2140 1995 SCALE (4)276\\n JT 1995 (5) 329\\n\\nACT:\\n\\nHEADNOTE:\\n\\nJUDGMENT: THE 11TH DAY OF JULY, 1995 Present: Hon'ble Dr.Justice A.S.Anand Hon'ble Mr.Justice M.K.Mukherjee Mr.D.D.Thakur, Sr. Adv. Mr.Suman Kapoor, and Mr.Pankaj Kalra, Advs. with him for the appellants.\\nMr.Anis Ahmed Khan and Mr.A.S.Pundir, Advs. for the Respondent.\\n J U D G M E N T The following Judgment of the Court was delivered: IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 716 OF 1991 Chand Khan and anr.\\n Versus State of Uttar Pradesh J U D G M E N T M.K. MUKHERJEE. J.\\n Chand Khan and Shabbu, the two appellants before us, and seven others were placed on trial before an Additional Sessions Judge of Rampur to answer common charges under Sections 452, 302/149, 325/149, 324/149 and 323/149 of the Indian Penal Code (`IPC' for short). Against five of them, including the two appellants, a charge under Section 148 IPC and against the other four a charge under Section 147 IPC were also framed. Besides, a separate charge under Section 302 IPC was framed against appellant Shabbu. The trial ended in an order of acquittal recorded in favour of all the persons araigned. Aggrieved thereby the State of Uttar Pradesh preferred an appeal which was partly allowed by the High Court by setting aside the acquittal of the two appellants and three others. After setting aside their acquittal the High Court convicted the two appellants for the offence under Section 302 IPC as also for the other offences for which they were charged and sentenced them to suffer imprisonment for life for the former conviction and for the period already undergone for the other convictions.\\nThe other three were convicted of all the charges levelled against them except the one under Section 302/149 IPC and sentenced to imprisonment for the period already undergone.\\nAssailing the above order of conviction and sentence only the two appellants have filed this appeal invoking their statutory right under Section 379 Criminal Procedure Code.\\n Facts which are not in dispute are that Shah Alam (the deceased), his cousin Faheem Khan (P.W.6) and appellant Chand Khan were carrying on business of Karchobi from two separate workshops in Mohalla Gher Pipalwala within the police station of Ganj. Aslam (P.W.7), a boy aged about 7/8 years, had been working for the appellant Chand Khan in his business but a few days before the incident out of which the present appeal arises he left his services and joined the set-up of Faheem Khan. On May 26, 1977 at or about 1 P.M.\\nthe two appellants and accused Ishtiaq Khan went to the workshop of Faheem Khan and asked him to release Aslam so that he could work with Chand Khan again. When Faheem Khan refused to oblige they assaulted him. For that incident, he lodged a complaint with the police the same afternoon.\\nHowever, according to the prosecution Shah Alam and Faheem Khan used to carry on their above business jointly but as adequate accommodation was not available at one and the same place they were maintaining two workshops, one in the house of one Allah Rakha Khan and the other in the terrace of Md.\\nJama Khan.\\n The prosecution version of the incident is that on the same night (on May 26, 1977) the two appellants along with the other accused persons went to the house of Shah Alam to teach him a lesson for the report his business partner Faheem Khan had lodged against some of them earlier in the afternoon for assaulting him. For that purpose the two appellants went armed with Knives and the rest with other weapons including danda. Shah Alam was then sitting on a cot in the open space in front of his house along with Irshad Khan, Babar Khan and Kaisher (P.W.2). Immediately after entering the premises the accused persons started assaulting them. Chand Khan gave two knife blows to Shah Alam and some others hit Irshad Khan, Babar Khan and Kaisher Khan with dandas. When the victims cried aloud, Keramat Ali Khan (P.W.1), father of the deceased Shah Alam, who was inside the house came out and some people from the mohalla including Kallan Mian @ Mardan Mian (P.W.4) arrived there.\\nIn the meantime some of the miscreants including Chand Khan entered into the house of Keramat and assaulted his daughter Sm. Naeema Parveen (P.W.5) and his sister-in-law Sm. Raees Begum. When Sm. Naeema Parveen found that Chand Khan was about to beat her mother she picked up a knife used for cutting vegetables which was lying nearby and assaulted him.\\nWhile coming out of the house Shabhu thrust his knife on the neck of Shah Alam felling him down. All of them then fled away. Keramat Ali Khan arranged immediate hospitalisation of all the injured including Shah Alam, whose condition was precarious. Before, however, any treatment could be administered Shah Alam died. While in the hospital Keramat Ali Khan got a complaint written by Asmat Ali Khan (P.W.9) as per his dictation and forwarded the same to the police station.\\n At the hospital, Dr. S.P. Pandey (P.W.3) examined Sm.\\nNaeema Parveen (P.W.5), Irshad Khan, Babar Khan, Sm. Raees Begum and Kaisher Khan (P.W.2) and found injuries on their persons. P.W.5 had two incised wounds which, according to P.W.3, could be caused by sharp edged weapon and the other four had sustained contusions, which could be caused by blunt weapons. Chand Khan, who was also brought under arrest to the hospital in that very night as he had injuries on his person, was also examined by P.W.3. He found three incised wounds on his person, all of which, according to him, could be caused by a sharp edged weapon. Besides, P.W.3 examined Faheem Khan for injuries which, he alleged, were sustained by him in the incident that took place earlier in the afternoon. According to P.W.3 the two stab injuries he found on his person were likely to have been caused by a pointed weapon.\\n The post-mortem examination on the body of Shah Alam was held by Dr. O.N. Gupta on the following day (27.5.1977) He found the following external injuries on his person:- 1. Incised punctured wound 5 cm. x 3 cm.\\n x chest cavity deep on the base of left side neck, 5 cm. from the left sterno clavicular joint with direction downwards.\\n 2. Abrasion 4 cm. x 1 cm. on the right side forehead 3 cm. above right eye brows.\\n 3. Abrasion 3 cm. x 2 cm. on right side forehead 3 cm. lateral to injury No. 1.\\n 4. Abrasion 2 cm. x 1cm. on the left side scapular region back.\\n 5. Incised wound 2 cm. x 1 cm. x skin deep on the left side back at inner angle of left scapula.\\n 6. Incised punctured wound 3 cm. x 1 cm.\\n chest cavity deep on left side back 4 cm. below injury No. 5.\\n On internal examination of the dead body he found that the sixth rit was cut under injury No. 6; the pleura was cut beneath the injuries No. 1 and 6, the left lung was cut through and through upper lobe was cut both under injury No.1 and 6 and the pericardium and the right side of the heart were cut by the injury No.1. Dr. Gupta opined that the death was due to shock and haemorrhage as a result of the injuries to vital organs.\\n Shri V.P. Singh (P.W.16) Station House Officer of Ganj Police Station took up investigation of the case registered on the complaint of Keramat Ali Khan. Besides, interrogating him and the injured persons in the hospital on that very night, he inspected the place of occurrence, prepared a site plan and seized some blood stained earth from near the gate of the complainant's house. After completion of investigation he submitted charge-sheet against the nine accused persons.\\n The appellants and the other accused persons pleaded not guilty and asserted that they had been falsely implicated. In his statement recorded under Section 313 Dr.\\nP.C.Chand Khan, however, admitted that earlier P.W.7 used to work at his workshop but P.W.6 weaned him away. He also admitted that he had gone to the workshop of Faheem Khan with Shabbu and Ishtiad and asked him to hand over Aslam to him and that he had assaulted him. He however denied to have assaulted him with a knife. As regards the incident in question, his version was that on that night there was a festivity in the house of his cousin Sajjan and Mahboob (since acquitted) to which he was an invitee. As Rafiouddin of their mohalla was also invited in that function he went to his house which was near the house of the complainant to accompany him. There, on hearing his voice, Shah Alam and Kaisher Khan came out with knives accompanied by Babar Khan and Irshad Khan and started beating him. When he cried aloud Shabbu (appellant), Sharif and Salim who were standing nearby and talking among themselves arrived there. When Shah Alam and his companions attempted to assault Shabbu and others, they in their defence assaulted them. As the ladies of the house had come out then they also sustained minor injuries. Appellant Shabbu, in his statement under Section 313 Dr.P.C. admitted the assault on Faheem Khan in that afternoon but denied his presence at the time of the incident in question.\\n To prove its case the prosecution examined sixteen witnesses but no witness was examined on behalf of the defence. On consideration of the evidence adduced the trial Court held that the prosecution case was unworthy of credit.\\nOn appeal the learned Judges of the High Court found the evidence of the four eye-witnesses examined by the prosecution, namely, P.Ws. 1, 2, 4 and 5 convincing and the reasons given by the trial Court for disbelieving them and, for that matter, discarding the case of the prosecution were perverse.\\n It was urgeo on behalf of the appellants that as the trial Court gave detailed reasons for disbelieving the evidence of the prosecution witnesses the High Court was not justified in interfering with the same even if another reasonably possible view of the evidence in favour of the prosecution might be taken. Having heard the learned counsel at length and seen the judgments of the learned Courts below in the light of the evidence on record, we find that the High Court committed no error or injustice in interfering with the order of acquittal for it has noticed all the salient features of the case in the judgment of the trial Court, discussed them well and disapproved them for cogent and justified reasons. We are in complete agreement with the High Court that the judgment of trial Court was perverse and deserved to be set aside.\\n In the context of the respective cases of the parties, it could not be - nor was it - disputed that an incident of assault took place in the night of May 26, 1977 in or around the residential premises of Keramat Ali Khan (P.W.1) in the backdrop of an earlier incident in the afternoon in which Faheem Khan (P.W.6) was injured. It was also not disputed that in the incident in question Shah Alam met with his death while some others including appellant Chand Khan sustained injuries. In that view of the matter the principal question that fell for determination before the learned Courts below was whether it took place within the residential premises of P.W.1 and in the manner as alleged by the prosecution or in the lane outside his house as claimed by the defence. To prove its version of the incident, the prosecution relied, needless to say, upon the evidence of the four eye-witnesses referred to earlier while the defence relied upon the statement of the accused including the appellant Chand Khan made under Section 313 Dr.P.C. and the circumstances appearing on record.\\n In negativing the prosecution version the trial Court first held, for reasons given, that the assault on Faheem Khan in the afternoon by Chand Khan could not be a motive for committing the murder of Shah Alam and that no other motive was ascribed by the prosecution. Even if we proceed on the basis that the prosecution failed to prove the genesis or motive and that the above finding of the trial Court in this regard is unexceptionable still then this appeal cannot succeed on that score for proof of motive is not essential for success of a prosecution case where - as in the instant case - the ocular testimony in support of it is convincing and reliable. Indeed, as our discussion to follow will show the findings recorded by the trial Court for discarding the evidence of the four eye witnesses are based either on presumption, surmise and conjecture or on undue and unjustified reliance upon minor and immaterial contradictions.\\n In dealing with the evidence of the four eye - witnesses the trial Court first observed that having regard to the incident that took place in that afternoon. Faheem Khan and Shah Alam could only be the targets of the attack of the accused persons and not others, namely, Kaisher Khan, Babar Khan and Irshad Khan as testified by them. It next observed that if their evidence that Shah Alam and the above three persons were sitting together in front of the complainant's house and were talking to each other when the accused arrived there was to be believed, the latter could have caught hold of Shah Alam from out of those persons and put him to death in no time and then gone back. After making the above observations the trial Court held: \\\"It may be that the members of the complainant's house might have come-out at their door on hearing the noise and alarm of this incident and that they might be rebuking and even accusing these accused-persons on their assaulting Shah Alam etc\\\".\\n The trial Court also disbelieved the prosecution case as to the manner in which the accused persons entered into the house of the complainant and beat the female members and, in explaining away the injuries found on the persons of Sm. Naeema Parveen and Sm. Raees Begum, observed: \\\"........and truth of the matter appears to be that Sm. Naeema Parveen and Sm. Raees Begum had accidently sustained their injuries in this incident when they had entered in the arena of the fight for defending Shah Alam etc. from the assault of the accused.\\\"\\n The High Court brushed aside the first of the above quoted findings of the trial Court with the following comments: \\\"The observation of the Additional Sessions Judge that the accused were likely to single out Shah Alam and to assault him alone in Shah Alam, Irshad Khan, Babar Khan and Kaiser Khan had been found sitting on the cot is misconceived and devoid of sense for Babar Khan the brother of Shah Alam and Kaisher Khan and Irshad Khan who were his close relatives could not have been silent soectators. It is for this reason that they had all sustained injuries around the cot.\\\"\\n As regards the other finding the High Court observed that in view of the nature of the injuries sustained by Sm.\\n Naeema Parveen and Sm. Raees Begum and in the absence of any suggestion put forward by the defence that those injuries were caused accidentally the criticism of the trial Court was perverse.\\n On a close analysis of the materials on record we are of the opinion that the High Court was fully justified in making the above comments. That Kaisher Khan (P.W.2), Babar Khan and Irshad Khan were present at the material time as testified by the four eye witnesses was admitted by the defence. It was also admitted that besides Shah Alam the above three persons as well as lady members of the house sustained injuries. However, according to them, they had beaten Shah Alam and other male members in exercise of their right of private defence and the ladies sustained simple injuries as they had then come out of the house. The trial Court therefore was not at all justified in disbelieving even the presence of Irshad Khan, Babar Khan and Kaisher Khan at the spot. Then again, keeping in view the fact that the injuries sustained by Sm. Naeema Parveen could be caused by a sharp edged weapon only and it being not the case of the defence that they had with them any such weapon the finding of the trial Court that Sm. Naeema Parveen and Sm. Raees Begum had accidentally sustained their injuries must be said to be based on conjecture only.\\n Another reason which weighed with the trial Court in disbelieving the prosecution case was that there were discrepancies in evidence as to the details and manner of assault. While detailing those discrepancies the trial Court observed: \\\"According to the complainant Keramat Ali Khan that cot was lying just in front of the main door of his house at a distance of only 2 to 3 steps from the door and the entire beating outside his house had taken place near that cot and the last fatal blow of the chhuri was also inflicted by Shabbu accused on Shah Alam at only 2 or 3 steps in front of his main door. On the other hand, according to Sm. Naeema Parveen, that cot was lying at 6 or 7 steps in front of the main door of the house. According to P.W. Kaisher Khan, to whom that cot belonged, the cot was lying by the side of his chapper, i.e., towards the north- west of the complainant's door and, according to him it was lying at 6 or 7 steps from that door towards the left side. According to P.W. Mardan Mian alias Kallan Mian also, that cot was lying at 7 or 8 steps towards the north- west from the complainant's door. P.W.\\n Keraman Ali Khan, at first, stated before me that the accused-persons had beaten Shah Alam etc, towards the east of the cot. Then he stated in the next breath that some of them were beating on one side, while the others were beating on the other side of the cot. Further on he stated that the victims were roaming around that cot, while being beaten, and the samething has been stated by some other witnesses.\\\"\\n The discrepancies pointed out by the trial Court are patently of minor character and cannot detract from the evidentiary value of the eye-witnesses. The High Court was, therefore, fully justified in ignoring those discrepancies while dealing with the evidence of the four eye-witnesses.\\n The next reason canvassed by the trial Court for disbelieving the prosecution case was that the evidence of P.Ws. Kaisher Khan (P.W.2) and Mardan Mian (P.W.4) only established that some of the accused persons had assaulted Shah Alam and not all. Having recorded the above finding it was imperative for the trial Court to consider the case of the individual accused on their respective merits in the light of other evidence on record and not to outright reject the evidence of the two witnesses in its entirely for it is trite that the principle Single in uno. Falsus in omnibus\\\"\\ndoes not apply to criminal trials and it is the duty of the Court to disengage the truth from falsenood.\\n The judgment of the trial Court is replete with similar such findings which the High Court has rightly not accepted as correct. However, to avoid prolixity we refrain from detailing or discussing all of them and refer only to the concluding one to highlight the absurd and perverse approach of the trial Court in dispensing criminal justice. It reads:- \\\"It is quite probable that Shah Alam etc. miont be bearing grudge and ill-will against Chand Khan etc. On account of the noon incident of that day, in which the accused Chand Khan, Ishtiaq Khan and Shabbu had an altercation with P.W. Raheem Khan and had then beaten him; and it may be that Shah Alam etc. might have caught-hold of Chand Khan accused when he had gone to the house of Rafiquddin for calling him and that they might have taken him from there in front of the complainant's house and might have assaulted him with churis. Then, it is also quite probable that the accused Sharif Khan, Salim Khan and Shabbu might have arrived on the spot on hearing the alarm raised by Chand khan accused and that Shah Alam etc. might have tried to assault them also and thereupon they might have assaulted Shah Alam etc. with dandas and chhuri in defence of Chand Khan accused, as also in their own selfdefence. It has come in evidence that the house of Shabbu accused is situated quite near to the road crossing and that the house of Salim Khan accused is also situated in the same locality. So, it is quite possible that the accused Shabbu, Salim Khan and Chand Khan might be standing at the road crossing near the house of Shabbu accused and might be talking to each-other at that time and that they might have reached the sput on hearing the alarm raised by Chand Khan accused.\\\"\\n (emphasis supplied) By frequent recourse to and reliance upon the words \\\"might be\\\" and \\\"might have\\\" in the above quoted passage the trial Court, instead of finding out which of the contending versions was correct and acceptable, gave out a version of its own relying solely on presumption, surmise and conjecture. The trial Court would have been, on a proper discussion and aporaisal of the evidence, fully justified to hold that the prosecution case was unreliable and record an order of acquittal in favour of accused without going into the question as to whether the defence case was true, for burden of proof was upon the prosecution. Equally justified the trial Court would have been in recording such an order if it found the defence case probable. But it was not at all justified to make out a third case entering into the domain of speculation. The High Court was, therefore, right in basing its decision on a fresh and proper appraisal of the evidence leaving aside the obstinate findings of the trial Court. Having gone through the record we do not find any reason to differ from the decision so arrived at by the High Court.\\n Mr. Thakur, learned counsel for the appellants, however submitted that even if it was held that the reasons which weighed with the trial Court in recording the order of acquittal were faulty and unsustainable still then the order of acquittal was liable to be upheld for the evidence on record did not Justify the impugned Judgment rendered by the High Court. To bring home his contention Mr. Thakur urged that the incident that took place in the afternoon in which Faheem Khan was assaulted by Chand Khan might have been a motive for the former to assault the latter and not vice- versa. In that context, Mr. Thakur urged, the defence version of the incident in question was more probable than that of the prosecution. This contention of Mr. Thakur need not be gone into for we have earlier observed, and at the risk of repetition may again point out, that as the evidence on record clearly proves that the incident took place in the manner alleged by the prosecution absence or insufficency of motive is immaterial. Mr. Thakur next submitted that the evidence of the prosecution withesses so far as it related to the assault on Sm. Naeema Praveen and Chand Khan inside the house was patently false; firstly. because no blood was found inside the house and secondly because no knife was produced by Sm. Naeema Praveen much less seized by the Investigation Officer. In support of this contention he drew our attention to the evidence of the Investigation Officer (PW 16) wherein he stated that neither he had seen nor shown the vegetable cutting knife used by Sm. Naeema Praveen and that he had found blood at the place which was about 8 steps from the northern main door outside the house of Keramat Ali and nowhere else. We are not impressed by any of the above contentions.\\n There is no evidence on record to show that there was profuse bleeding from the injuries sustained by the two ladies and Chand Khan for blood to trickle down to the floor. On the contrary, the find of blood near the threshold of P.W.1's house fits in with the evidence of the eye- witnesses and the nature of injuries sustained by Shah Alam.\\nFrom the evidence of Sm. Naeema Praveen (PW 5) we get that when the accused persons started beating the members of their family inside their premises, she her mother and aunt (Raees Begum) started shouting and cursing them. Then, when they found Chand Khan was approaching them they went inside.\\nThere Ishtiaq Khan gave two chhuri blows on the left side of her face and Sharik Khan gave two danda blows to her aunt Raees Begum. When she found Chand Khan was about to beat her mother, she struck him with a vegetable cutting knife. The above evidence of P.W.5 stands substantially corroborated by the other three eye-witnesses referred to earlier. Then again the nature of injuries as found by the doctor upon her, Sm. Raees Begum and Chand Khan fits in with her testimony. In our opinion the best corroborative piece of evidence is furnished by the F.I.R. which was lodged by Keramat Ali (P.W.1) on the basis of what he heard from P.W.5. In the F.I.R., which was lodged within two hours of the incident, the substratum of the entire prosecution case finds place including a statement that during the incident Sm. Naeema Praveen had, in defending herself, given a blow to one of the accused with a vegetable cutting knife. In view of the above statement recorded in the F.I.R., the Investigation Officer (P.W.16) ought to have taken steps to seize the knife even if P.W. 5 had not produced it for, one of the essential requisites of a proper investigation is collection of evidence relating to the commission of the offence and that necessarily includes, in a case of assault, seizure of the weapon of offence, but then failure to collect evidence and failure to produce evidence collected during investigation at the trial carry two different connotations and consequences. While, the former may entitle the Court to hold the investigation to be perfunctory or tainted affecting the entire trial in case of the latter the Court may legitimately draw a presumption in accordance with Section 114(g) of the Evidence Act. As the case presented before us comes under the first category of failures we have to find out whether we will be justified in discarding the prosecution case solely for the remissness of the Investigating Officer in seizing the knife. The consistent and reliable evidence of the eye witnesses coupled with the nature of injuries sustained by some of them and Chand Khan and the fact that in the F.I.R. it has clearly been stated that one of the miscreants had been assaulted by a vegetable cutting knife do not persuade us to answer the question in the affirmative. Mr. Thakur lastly submitted that the entire prosecution story was improbable for if really the incident had happened in the manner alleged by it, the persons present in P.W.1's house would have sustained more serious injuries. We do not find any substance in this contention for it is evident that Shah Alam was the main target and the assault on others was carried out to thwart any resistance from those present in the courtyard.\\n As all the points raised by Mr. Thakur fail and as on a conspectus of the entire evidence we are fully satisfied that the conclusions drawn by the High Court, particularly regarding the roles played by the two appellants in the riot and the murder of Shah Alam are unexceptionable, we dismiss the appeal. The appellants, who are on bail, shall now surrender to their bail bonds to serve out the sentences.\\n\"\n}"}}},{"rowIdx":94,"cells":{"meta":{"kind":"string","value":"{\n \"group\": \"Tax\"\n}"},"annotations":{"kind":"list like","value":[{"result":[{"from_name":null,"id":"3ab5646f1f2a4dcd9336fcc5572d43a7","to_name":null,"type":null,"value":{"end":123,"labels":["PREAMBLE"],"start":0,"text":" 1/22\n\nIN THE HIGH COURT OF KARNATAKA, BENGALURU\n\n DATED THIS THE 30TH DAY OF JULY, 2018\n\n PRESENT\n\n"}},{"from_name":null,"id":"3b697a10c68c4f28b9ca8c9f5232511f","to_name":null,"type":null,"value":{"end":134,"labels":["PREAMBLE"],"start":123,"text":"THE HON'BLE"}},{"from_name":null,"id":"ed3d6a0311a54b6db5536c57ffb41d08","to_name":null,"type":null,"value":{"end":161,"labels":["PREAMBLE"],"start":135,"text":"DR. JUSTICE VINEET KOTHARI"}},{"from_name":null,"id":"d08f541f0fa248178e92c710f6f1ac02","to_name":null,"type":null,"value":{"end":176,"labels":["PREAMBLE"],"start":161,"text":"\n\n AND"}},{"from_name":null,"id":"359391f034f143f7b90996a26b3aa474","to_name":null,"type":null,"value":{"end":269,"labels":["PREAMBLE"],"start":176,"text":"\n\n THE HON'BLE MRS. JUSTICE S. SUJATHA\n\n INCOME TAX APPEAL NO.105 OF 2007\n\nBETWEEN:"}},{"from_name":null,"id":"91b880fe4e3e46e6822578c323ad56c7","to_name":null,"type":null,"value":{"end":383,"labels":["PREAMBLE"],"start":269,"text":"\n\n1. THE COMMISSIONER OF INCOME-TAX\n CENTRAL CIRCLE, C.R.BUILDING\n QUEENS ROAD\n BANGALORE."}},{"from_name":null,"id":"13de7b519cb34e97ab5460313f543021","to_name":null,"type":null,"value":{"end":502,"labels":["PREAMBLE"],"start":383,"text":"\n\n2. THE DEPUTY COMMISSIONER OF INCOME-TAX\n CIRCLE-11(3), C.R.BUILDING\n QUEENS ROAD\n BANGALORE."}},{"from_name":null,"id":"b98e79bdd79c4557a4d26b1a33ffd124","to_name":null,"type":null,"value":{"end":591,"labels":["PREAMBLE"],"start":502,"text":"\n ...APPELLANTS"}},{"from_name":null,"id":"fe8a91b86539473c9b531e2a915bb530","to_name":null,"type":null,"value":{"end":736,"labels":["PREAMBLE"],"start":601,"text":"(BY MR. K.V. ARAVIND, ADV.)\n\nAND:\n\n M/S.LUWA INDIA PVT. LTD.\n II STAGE, INDUSTRIAL SUBURB\n YESHWANTHPUR\n BANGALORE."}},{"from_name":null,"id":"616d06e86e064561bd8359cc153d701c","to_name":null,"type":null,"value":{"end":833,"labels":["PREAMBLE"],"start":777,"text":"...RESPONDENT\n\n (BY MR. S.PARTHASARATHI &\n MRS"}},{"from_name":null,"id":"c38dbb9ab96641cf84470d57435ded9b","to_name":null,"type":null,"value":{"end":1865,"labels":["PREAMBLE"],"start":833,"text":". SOUMYA K., ADV. )\n\n The Commissioner of Income-Tax & Anr.\n vs.\n\n M/s.Luwa India Pvt. Ltd.\n\n 2/22\n\n * * *\n THIS INCOME TAX APPEAL IS FILED UNDER SECTION\n260A OF THE INCOME TAX ACT, 1961, PRAYING TO\nFORMULATE THE SUBSTANTIAL QUESTIONS OF LAW STATED\nTHEREIN AND ALLOW THE APPEAL AND SET ASIDE THE\nORDER PASSED BY THE INCOME-TAX APPELLATE TRIBUNAL,\nBANGALORE IN ITA No.67/BANG/2005 DATED 06.07.2006\nCONFIRMING THE ORDER OF THE APPELLATE COMMISSIONER\nAND CONFIRM THE ORDER PASSED BY THE DY.,\nCOMMISSIONER OF INCOME TAX, CIRCLE-11(3), BANGALORE\nIN THE INTEREST OF JUSTICE AND EQUITY.\n\n THIS INCOME TAX APPEAL IS COMING ON FOR ORDERS"}},{"from_name":null,"id":"7c093e2ef46d4b6c85b9d08c1ffdced5","to_name":null,"type":null,"value":{"end":1956,"labels":["PREAMBLE"],"start":1866,"text":"THIS DAY, S. SUJATHA J., MADE THE FOLLOWING:-\n\n O R D E R"}},{"from_name":null,"id":"1e201469894c4c30b41a244f3992f648","to_name":null,"type":null,"value":{"end":2074,"labels":["NONE"],"start":1956,"text":"\n Mr. K.V. Aravind, Adv. for Appellants - Revenue Mr. S.Parthasarathi & Mrs. Sowmya K., Advs for Respondent - Assessee"}},{"from_name":null,"id":"58ed383cc63e43e2b84834f14ff24ed1","to_name":null,"type":null,"value":{"end":2654,"labels":["RLC"],"start":2075,"text":"This Income Tax Appeal filed by the Appellant- Revenue earlier came to be disposed of by a co-ordinate Bench of this Court on 03.11.2011, on the ground that the appeal was not maintainable due to the tax effect involved being less than the prescribed monetary limit of Rs.20 lakhs in the Instructions issued by Central Board of Direct Taxes in 2011 (for short the `CBDT').\n The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 3/22 "}},{"from_name":null,"id":"070d5e37f6f241c89f8d7e48602c4290","to_name":null,"type":null,"value":{"end":3719,"labels":["FAC"],"start":2654,"text":"2. The matter was remanded back to this Court by orders of the Hon'ble Supreme Court by a common order passed in some Civil Appeals, including the lead Civil Appeal No.16815 of 2017 @ SLP (C) No.1425 of 2014 (THE COMMISSIONER OF INCOME TAX, BANGALORE-I & ANOTHER vs. M/S.GEMINI DISTILLERIES) reported in (2017) 398 ITR 343 decided on 12.10.2017, but the said order of the two- judges Bench of Hon'ble Supreme Court in the case of M/s. Gemini Distilleries (supra) came to be explained by a later decision of the Hon'ble Supreme Court in the case of DIRECTOR OF INCOME-TAX vs. S.R.M.B.\nDAIRY FARMING (P.) LTD. reported in (2018) 400 ITR 9 (SC) decided on 23.11.2017 about the retrospective application of the CBDT Circulars with regard to monetary limits for maintaining the pending appeals The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 4/22 before the Hon'ble High Court under Section 260A of the Income Tax Act."}},{"from_name":null,"id":"3928ab37610d49b6bd52bb416b716551","to_name":null,"type":null,"value":{"end":4582,"labels":["PRE_RELIED"],"start":3720,"text":"The Hon'ble Supreme Court in S.R.M.B.Dairy Farming (P.) Ltd. (supra) held as under:- \"Appeal to High Court Monetary limits for litigation by Department Circular to apply to pending appeals but Circular not to be applied by court ipso facto when matter has cascading effect or where common principles involved in large number of matters Income Tax Act, 1961 ss. 260A, 268A Instruction No.3 of 2011, dated 9-2-2011.\n The view adopted by the Delhi High Court making the circular applicable to pending matters came up before a three- Judges Bench of this Court in SLP (C) No.CC 13694 of 2011 titled CIT v. Surya Herbal Ltd. when the following order was passed on August 29, 2011: \"Delay condoned.\n The Commissioner of Income-Tax & Anr.\n vs.\n M/s."}},{"from_name":null,"id":"aa9e3ab892504639a18be6c157d07163","to_name":null,"type":null,"value":{"end":4592,"labels":["PRE_RELIED"],"start":4582,"text":"Luwa India"}},{"from_name":null,"id":"5473237cadc84829af66376582f2841b","to_name":null,"type":null,"value":{"end":4602,"labels":["PRE_RELIED"],"start":4593,"text":"Pvt. Ltd."}},{"from_name":null,"id":"6633882c06a04bc49e9c76715b720670","to_name":null,"type":null,"value":{"end":4608,"labels":["PRE_RELIED"],"start":4602,"text":"\n 5/22"}},{"from_name":null,"id":"0ae7ca0d6fe44698b37fec5d3ee7ed76","to_name":null,"type":null,"value":{"end":4808,"labels":["PRE_RELIED"],"start":4609,"text":"Liberty is given to the Department to move the High Court pointing out that the Circular dated February 9, 2011 should not be applied ipso facto, particularly, when the matter has a cascading effect."}},{"from_name":null,"id":"39631bb4defc4ddb9ec70f74231ccaf5","to_name":null,"type":null,"value":{"end":4960,"labels":["PRE_RELIED"],"start":4809,"text":"There are cases under the Income-tax Act, 1961 in which a common principle may be involved in subsequent group of matters or a large number of matters."}},{"from_name":null,"id":"7c7551b861d443acaf95147836d918f9","to_name":null,"type":null,"value":{"end":5083,"labels":["PRE_RELIED"],"start":4961,"text":"In our view, in such cases if attention of the High Court is drawn, the High Court will not apply the circular ipso facto."}},{"from_name":null,"id":"2dc49f31ab3f494da542813215877483","to_name":null,"type":null,"value":{"end":5175,"labels":["PRE_RELIED"],"start":5084,"text":"For that purpose, liberty is granted to the Department to move the High Court in two weeks."}},{"from_name":null,"id":"c7b50df36b514bf7977394b331f66fa3","to_name":null,"type":null,"value":{"end":5234,"labels":["PRE_RELIED"],"start":5175,"text":"\n The Special Leave Petition is, accordingly, disposed of.\""}},{"from_name":null,"id":"28ff4cfeb4eb4f21a291da514396c9ea","to_name":null,"type":null,"value":{"end":5324,"labels":["ANALYSIS"],"start":5234,"text":"\n 20. The aforesaid order, in our view, actually should have laid the controversy to rest."}},{"from_name":null,"id":"42894f597cc64f68a681d75930ee53a9","to_name":null,"type":null,"value":{"end":5524,"labels":["ANALYSIS"],"start":5325,"text":"The retrospective applicability of the The Commissioner of Income-Tax & Anr.\n vs.\n "}},{"from_name":null,"id":"d84ba12761dc4e0bbfa4aff426d638e3","to_name":null,"type":null,"value":{"end":5532,"labels":["ANALYSIS"],"start":5524,"text":"M/s.Luwa"}},{"from_name":null,"id":"74a709ed11ec40c4a0f23c2a0f799289","to_name":null,"type":null,"value":{"end":5548,"labels":["ANALYSIS"],"start":5533,"text":"India Pvt. Ltd."}},{"from_name":null,"id":"64d57c25c5ab464d9035962847fec7e1","to_name":null,"type":null,"value":{"end":6004,"labels":["ANALYSIS"],"start":5550,"text":"6/22 Circular dated February 9, 2011 was not interfered with, but with two caveats (i) Circular should not be applied by the High Courts ipso facto when the matter had a cascading effect; (ii) where common principles may be involved in subsequent group of matters or a large number of matters.\nIt was opined that in such cases, the attention of the High Court would be drawn and the Department was even given liberty to move the High Court in two weeks."}},{"from_name":null,"id":"a168dd22b411489fb2139269d3c2d3c5","to_name":null,"type":null,"value":{"end":6082,"labels":["ANALYSIS"],"start":6005,"text":"In our view this order holds the field and should continue to hold the field."}},{"from_name":null,"id":"ead607400f2b453fbfd0168d3dd4dbe4","to_name":null,"type":null,"value":{"end":6640,"labels":["ANALYSIS"],"start":6082,"text":"\n 21. Unfortunately, this order was not brought to the notice of the subsequent two Judges Bench of this court in CIT v. Suman Dhamija again arising from a Delhi High Court order, wherein it was simply stated that since the appeals were preferred before 2011 and the instructions were dated February 9, 2011, the earlier cases would not The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 7/22 be covered by the instruction."}},{"from_name":null,"id":"c16357a7e6d84b2a84e35b074b9c4f14","to_name":null,"type":null,"value":{"end":6797,"labels":["ANALYSIS"],"start":6641,"text":"This order in turn had been followed by another two- Judges Bench in Civil Appeal No.16815 of 2017 titled CIT v. Gemini Distilleries dated October 12, 2017."}},{"from_name":null,"id":"f4e6357961dc4c63aeec38a7f50634e2","to_name":null,"type":null,"value":{"end":6950,"labels":["ANALYSIS"],"start":6797,"text":"\n 22. Once again, in another matter CIT v.\nCentury Park, the line adopted by the three- Judges Bench in Surya Herbal Ltd. Case (supra) has been followed."}},{"from_name":null,"id":"d7030585aa19458b83953d7d3ad2be49","to_name":null,"type":null,"value":{"end":7360,"labels":["PRE_RELIED"],"start":6950,"text":"\n 23. We have already given our imprimatur to the observations made by the Karnataka High Court in a detailed analysis in Ranka and Ranka case (supra), which was dealt with the litigation policy philosophy behind applying the circular and the benefit being extended in view thereof to all assesses where appeals have been pending, but below the financial limit, as otherwise an anomalous situation would arise."}},{"from_name":null,"id":"d2f4b05dca914c3f9dd11fcf3a846320","to_name":null,"type":null,"value":{"end":7552,"labels":["NONE"],"start":7360,"text":"\n The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 8/22"}},{"from_name":null,"id":"ae8b470403104a7ab9c03c06cd8d48e6","to_name":null,"type":null,"value":{"end":7697,"labels":["PRE_RELIED"],"start":7552,"text":" 24. We may also take note of the judgment of this court in Suchitra Components Ltd.\nv. CCE on the general principle of application of circulars."}},{"from_name":null,"id":"6fbbe6ebaf514795978469b050ac72bf","to_name":null,"type":null,"value":{"end":7915,"labels":["PRE_RELIED"],"start":7698,"text":"Reliance was placed on the view expressed in CCE v. Mysore Electricals Industries Ltd. opining that a beneficial circular has to be applied retrospectively while an oppressive circular has to be applied prospectively."}},{"from_name":null,"id":"3cc4713416fb495c9aca0b7c866a0cd2","to_name":null,"type":null,"value":{"end":8205,"labels":["ANALYSIS"],"start":7915,"text":"\n 25. We are of the view that the mater needs to be put to rest and a clarity be obtained in view of the impact of this issue on pending cases before the High Courts as well as the cases which have been disposed of by various High Courts by applying Circular of 2011 to pending litigations."}},{"from_name":null,"id":"46d0da0d4cb44c74abd7dca1f992ab94","to_name":null,"type":null,"value":{"end":8699,"labels":["ANALYSIS"],"start":8206,"text":"In our view the matter has been squarely put to rest taking further care of the interest of the Revenue by the order passed by the three-Judges Bench of this court in Surya Herbal Ltd. Case (supra), which had put two caveats even to The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 9/22 the retrospective application of the circular.\n "}},{"from_name":null,"id":"5a84c8be3ac640538a958391826d2134","to_name":null,"type":null,"value":{"end":8921,"labels":["ANALYSIS"],"start":8699,"text":"The subsequent orders have been passed by the two-Judges Bench without those orders being brought to the notice of the court, a duty which was cast on the Department to have done so to avoid the ambiguity which has arisen."}},{"from_name":null,"id":"d8b3f1e3474d486ea32796689393e082","to_name":null,"type":null,"value":{"end":9115,"labels":["ANALYSIS"],"start":8922,"text":"Thus, the said view of the three- Judges Bench would hold water and the circular would apply even to pending matters but subject to the two caveats provided in Surya Herbal Ltd. Case (supra).\n "}},{"from_name":null,"id":"bea383dc882f409c9d94d10b9b5f1eb8","to_name":null,"type":null,"value":{"end":9187,"labels":["ANALYSIS"],"start":9115,"text":"The appeals of the Revenue are, thus, dismissed in the aforesaid terms.\""}},{"from_name":null,"id":"18dedf532ca54ec0a878b34c1919df33","to_name":null,"type":null,"value":{"end":9609,"labels":["ANALYSIS"],"start":9187,"text":"\n 3. Recently, the CBDT has again revised the Instructions in this regard and besides para 13 specifically allowing withdrawal of pending appeals, the monetary limits for maintaining such Income Tax appeals before the High Court is raised from The Commissioner of Income-Tax & Anr.\n vs.\n M/s."}},{"from_name":null,"id":"13bd907920504d1fbb1935b83e504d15","to_name":null,"type":null,"value":{"end":9629,"labels":["ANALYSIS"],"start":9609,"text":"Luwa India Pvt. Ltd."}},{"from_name":null,"id":"25c59c4dc34040f388dfc001616d2449","to_name":null,"type":null,"value":{"end":9663,"labels":["ANALYSIS"],"start":9629,"text":"\n 10/22 Rs.20 lakhs to Rs.50 lakhs"}},{"from_name":null,"id":"b2db3eaab56743a7ae6ad81798d1fc3c","to_name":null,"type":null,"value":{"end":10087,"labels":["ANALYSIS"],"start":9663,"text":". The said Circular is quoted extenso below:- \"Circular No. 3/2018 F No. 279/Misc. 142/2007-ITJ (Pt) Government of India Ministry of Finance Department of Revenue Central Board Direct Taxes New Delhi the 11th July, 2018 Subject: Revision of monetary limits for filing of appeals by the Department before Income Tax Appellate Tribunal, High Courts and SLPs/appeals before Supreme Court - measures for reducing litigation-Reg."}},{"from_name":null,"id":"194a338e01e14adab20a1945592f7195","to_name":null,"type":null,"value":{"end":10365,"labels":["ANALYSIS"],"start":10087,"text":"\n Reference is invited to Board's Circular No.21 of 2015 dated 10.12.2015 wherein monetary limits and other conditions for filing departmental appeals (in Income-tax matters) before Income Tax Appellate Tribunal, High Courts and SLPs/appeals before Supreme Court were specified."}},{"from_name":null,"id":"f85e3485978248e8a242679388cca4d0","to_name":null,"type":null,"value":{"end":10700,"labels":["ANALYSIS"],"start":10367,"text":"2. In supersession of the above Circular, it has been decided by the Board that departmental appeals may be filed on merits before Income Tax The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 11/22"}},{"from_name":null,"id":"f730c446b5624e6691f2d22c93aabe9a","to_name":null,"type":null,"value":{"end":10841,"labels":["ANALYSIS"],"start":10701,"text":"Appellate Tribunal and High Courts and SLPs/appeals before Supreme Court keeping in view the monetary limits and conditions specified below."}},{"from_name":null,"id":"e58a9b08d25d4eb7a722570a0b2e0452","to_name":null,"type":null,"value":{"end":10972,"labels":["ANALYSIS"],"start":10843,"text":"3. Henceforth, appeals/SLPs shall not be filed in cases where the tax effect does not exceed the monetary limits given hereunder:"}},{"from_name":null,"id":"65e719c66e3047728666a11a621a42f4","to_name":null,"type":null,"value":{"end":11024,"labels":["ANALYSIS"],"start":10973,"text":"Sl. Appeals/SLPs in Monetary Limit (Rs.) No."}},{"from_name":null,"id":"8fb3df98e1e247658807a9e0669cea3c","to_name":null,"type":null,"value":{"end":11059,"labels":["ANALYSIS"],"start":11025,"text":"Income-tax matters 20,00,000 1"}},{"from_name":null,"id":"80866211e92f4c039edd0f2066aebcf3","to_name":null,"type":null,"value":{"end":11118,"labels":["ANALYSIS"],"start":11059,"text":". Before Appellate 50,00,000 1,00,00,000 Tribunal 2."}},{"from_name":null,"id":"36cccc229f4149e793411e0e1b10063b","to_name":null,"type":null,"value":{"end":11139,"labels":["ANALYSIS"],"start":11119,"text":"Before High Court 3."}},{"from_name":null,"id":"3af6aeb78d904d3c99277278fd99b16b","to_name":null,"type":null,"value":{"end":11297,"labels":["ANALYSIS"],"start":11140,"text":"Before Supreme Court It is clarified that an appeal should not be filed merely because the tax effect in a case exceeds the monetary limits prescribed above."}},{"from_name":null,"id":"6952ac0184a34271a84abe6061dcf880","to_name":null,"type":null,"value":{"end":11368,"labels":["ANALYSIS"],"start":11298,"text":"Filing of appeal in such cases is to be decided on merits of the case."}},{"from_name":null,"id":"79955269e7274348b406b2c8b442594d","to_name":null,"type":null,"value":{"end":11882,"labels":["ANALYSIS"],"start":11370,"text":"4. For this purpose, `tax effect' means the difference between the tax on the total income assessed and the tax that would have been chargeable had such total income been reduced by the amount of income in respect of the issues The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 12/22 against which appeal is intended to be filed (hereinafter referred to as `disputed issues')."}},{"from_name":null,"id":"354ba78b0d9a411db5d3a44cc09523d0","to_name":null,"type":null,"value":{"end":11958,"labels":["ANALYSIS"],"start":11882,"text":"\nFurther, `tax effect' shall be tax including applicable surcharge and cess."}},{"from_name":null,"id":"74b52f383daf4bc2921809b29472626d","to_name":null,"type":null,"value":{"end":12075,"labels":["ANALYSIS"],"start":11959,"text":"However, the tax will not include any interest thereon, except where chargeability of interest itself is in dispute."}},{"from_name":null,"id":"8cc01b8777b445e886c4f76525f0df4e","to_name":null,"type":null,"value":{"end":12189,"labels":["ANALYSIS"],"start":12075,"text":"\nIn case the chargeability of interest is the issue under dispute, the amount of interest shall be the tax effect."}},{"from_name":null,"id":"9e364979e4974dc689ab42b8f74c798c","to_name":null,"type":null,"value":{"end":12317,"labels":["ANALYSIS"],"start":12190,"text":"In cases where returned loss is reduced or assessed as income, the tax effect would include notional tax on disputed additions."}},{"from_name":null,"id":"37aaf03e3f94444fb83edc43cc1759ab","to_name":null,"type":null,"value":{"end":12444,"labels":["ANALYSIS"],"start":12317,"text":"\nIn case of penalty orders, the tax effect will mean quantum of penalty deleted or reduced in the order to be appealed against."}},{"from_name":null,"id":"b258c8bf40b14f778b146175b3a5e8bd","to_name":null,"type":null,"value":{"end":12603,"labels":["ANALYSIS"],"start":12444,"text":"\n 5. The Assessing Officer shall calculate the tax effect separately for every assessment year in respect of the disputed issues in the case of every assessee."}},{"from_name":null,"id":"41e5d3563cb04c6db7c127c56928efd5","to_name":null,"type":null,"value":{"end":12865,"labels":["ANALYSIS"],"start":12604,"text":"If, in the case of an assessee, the disputed issues arise in more than one assessment year, appeal can be filed in respect of such assessment year or years in which the tax effect in respect of the disputed issues exceeds the monetary limit specified in para 3."}},{"from_name":null,"id":"dd617fd1cb13441fadc368026b6cc52b","to_name":null,"type":null,"value":{"end":12913,"labels":["ANALYSIS"],"start":12866,"text":"No appeal The Commissioner of Income-Tax & Anr."}},{"from_name":null,"id":"618d100614e84c11909ae05ec239e3fd","to_name":null,"type":null,"value":{"end":13060,"labels":["ANALYSIS"],"start":12913,"text":"\n vs.\n M/s.Luwa India Pvt. Ltd."}},{"from_name":null,"id":"acf421d8cca4422aa92ef64cadc5eae0","to_name":null,"type":null,"value":{"end":13201,"labels":["ANALYSIS"],"start":13060,"text":"\n 13/22 shall be filed in respect of an assessment year or years in which the tax effect is less than the monetary limit specified in para 3."}},{"from_name":null,"id":"db4fc5e06a204567805cfa34bf925862","to_name":null,"type":null,"value":{"end":13321,"labels":["ANALYSIS"],"start":13202,"text":"In other words, henceforth, appeals can be filed only with reference to the tax effect in the relevant assessment year."}},{"from_name":null,"id":"d7c49c8f1d084a6cbf67a56b7f167eb2","to_name":null,"type":null,"value":{"end":13768,"labels":["ANALYSIS"],"start":13322,"text":"However, in case of a composite order of any High Court or appellate authority, which involves more than one assessment year and common issues in more than one assessment year, appeals shall be filed in respect of all such assessment years even if the tax effect is less than the prescribed monetary limits in any of the year(s), if it is decided to file appeal in respect of the year(s) in which tax effect exceeds the monetary limit prescribed."}},{"from_name":null,"id":"af3f76bb3c3e4c48ab194ac69afe1607","to_name":null,"type":null,"value":{"end":13889,"labels":["ANALYSIS"],"start":13769,"text":"In case where a composite order/ judgment involves more than one assessee, each assessee shall be dealt with separately."}},{"from_name":null,"id":"430eddd53520460f9eafbec74e845f8e","to_name":null,"type":null,"value":{"end":14247,"labels":["ANALYSIS"],"start":13891,"text":"6. Further, where income is computed under the provisions of section 115JB or section 115JC, for the purposes of determination of `tax effect', tax on the total income assessed shall be computed as per the following formula- The Commissioner of Income-Tax & Anr.\n vs.\n M/"}},{"from_name":null,"id":"8f49fd6b0f114decb3b0a70e473ca6a2","to_name":null,"type":null,"value":{"end":14269,"labels":["ANALYSIS"],"start":14247,"text":"s.Luwa India Pvt. Ltd."}},{"from_name":null,"id":"259a78c54782489ba2b66c2439172680","to_name":null,"type":null,"value":{"end":14963,"labels":["ANALYSIS"],"start":14269,"text":"\n 14/22 (A - B)+(C - D) where, A = the total income assessed as per the provisions other than the provisions contained in section 115JB or section 115JC (herein called general provisions); B = the total income that would have been chargeable had the total income assessed as per the general provisions been reduced by the amount of the disputed issues under general provisions; C = the total income assessed as per the provisions contained in section 115JB or section 115JC; D = the total income that would have been chargeable had the total income assessed as per the provisions contained in section 115JB or section 1I5JCwas reduced by the amount of disputed issues under the said provisions:"}},{"from_name":null,"id":"ab3a7c6eeaed4460b4cb7ba39427004d","to_name":null,"type":null,"value":{"end":15155,"labels":["NONE"],"start":14964,"text":"The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 15/22"}},{"from_name":null,"id":"f800e4045eaf45f09c8be7b332f4c7c5","to_name":null,"type":null,"value":{"end":15421,"labels":["ANALYSIS"],"start":15156,"text":"However, where the amount of disputed issues is considered both under the provisions contained in section 115JB or section 115JC and under general provisions, such amount shall not be reduced from total income assessed while determining the amount under item D.\n 7."}},{"from_name":null,"id":"a85befbacbd34028883cf97b3858b189","to_name":null,"type":null,"value":{"end":15844,"labels":["ANALYSIS"],"start":15422,"text":"In a case where appeal before a Tribunal or a Court is not filed only on account of the tax effect being less than the monetary limit specified above, the Pr.\nCommissioner of Income-tax/ Commissioner of Income Tax shall specifically record that \"even though the decision is not acceptable, appeal is not being filed only on the consideration that the tax effect is less than the monetary limit specified in this Circular\"."}},{"from_name":null,"id":"81e50c16dbd54f208e780fa027ceac22","to_name":null,"type":null,"value":{"end":15983,"labels":["ANALYSIS"],"start":15845,"text":"Further, in such cases, there will be no presumption that the Income-tax Department has acquiesced in the decision on the disputed issues."}},{"from_name":null,"id":"9d4488b0972d4af188aafeacd99f1748","to_name":null,"type":null,"value":{"end":16140,"labels":["ANALYSIS"],"start":15984,"text":"The Income-tax Department shall not be precluded from filing an appeal against the disputed issues in the case of the same assessee for any other assessment"}},{"from_name":null,"id":"df99253d6f3d427eb914491a2d65952f","to_name":null,"type":null,"value":{"end":16299,"labels":["NONE"],"start":16140,"text":" The Commissioner of Income-Tax & Anr.\n vs."}},{"from_name":null,"id":"bd15833625ad4091b66a4b238064f126","to_name":null,"type":null,"value":{"end":16332,"labels":["NONE"],"start":16299,"text":"\n M/s.Luwa India Pvt. Ltd.\n 16/22"}},{"from_name":null,"id":"9d280c8f39fd4b4d81b7f9a069b0f0e7","to_name":null,"type":null,"value":{"end":16479,"labels":["ANALYSIS"],"start":16332,"text":" year, or in the case of any other assessee for the same or any other assessment year, if the tax effect exceeds the specified monetary limits.\n 8."}},{"from_name":null,"id":"5f783d815361429da460eb3bcb9de627","to_name":null,"type":null,"value":{"end":16914,"labels":["ANALYSIS"],"start":16480,"text":"In the past, a number of instances have come to the notice of the Board, whereby an assessee has claimed relief from the Tribunal or the Court only on the ground that the Department has implicitly accepted the decision of the Tribunal or Court in the case of the assessee for any other assessment year or in the case of any other assessee for the same or any other assessment year, by not filing an appeal on the same disputed issues."}},{"from_name":null,"id":"b75bc21ec4a642ac8379249290cb2633","to_name":null,"type":null,"value":{"end":17290,"labels":["ANALYSIS"],"start":16915,"text":"The Departmental representatives/counsels must make every effort to bring to the notice of the Tribunal or the Court that the appeal in such cases was not filed or not admitted only for the reason of the tax effect being less than the specified monetary limit and, therefore, no inference should be drawn that the decisions rendered therein were acceptable to the Department."}},{"from_name":null,"id":"32b12b4794274be58bbc357d38592f30","to_name":null,"type":null,"value":{"end":18030,"labels":["STA"],"start":17291,"text":"Accordingly, they should impress upon the Tribunal or the Court that such cases do not have any precedent value and also bring to The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 17/22 the notice of the Tribunal/ Court the provisions of sub section (4) of section 268A of the Income-tax Act, 1961 which read as under : \"(4) The Appellate Tribunal or Court, hearing such appeal or reference, shall have regard to the orders, instructions or directions issued under sub-section (1) and the circumstances under which such appeal or application for reference was filed or not filed in respect of any case.\""}},{"from_name":null,"id":"e7858b1046a24439848c418505f33476","to_name":null,"type":null,"value":{"end":18239,"labels":["ANALYSIS"],"start":18030,"text":"\n 9. As the evidence of not filing appeal due to this Circular may have to be produced in courts, the judicial folders in the office of Pr.CsIT/ CsIT must be maintained in a systemic manner for easy retrieval."}},{"from_name":null,"id":"4e6bf3da77604fb8902c527230c88f37","to_name":null,"type":null,"value":{"end":19018,"labels":["ANALYSIS"],"start":18241,"text":"10. Adverse judgments relating to the following issues should be contested on merits notwithstanding that the tax effect entailed is less than the monetary limits specified in para 3 above or there is no tax effect: The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 18/22 (a) Where the Constitutional validity of the provisions of an Act or Rule is under challenge, or (b) Where Board's order, Notification, Instruction or Circular has been held to be illegal or ultra vires, or (c) Where Revenue Audit objection in the case has been accepted by the Department, or (d) Where the addition relates to undisclosed foreign assets/ bank accounts."}},{"from_name":null,"id":"23eab98dd7524cfc8754faed950a961b","to_name":null,"type":null,"value":{"end":19147,"labels":["ANALYSIS"],"start":19020,"text":"11. The monetary limits specified in para 3 above shall not apply to writ matters and Direct tax matters other than Income tax."}},{"from_name":null,"id":"ebc2fa8abbeb492393fa32ba77b620b8","to_name":null,"type":null,"value":{"end":19268,"labels":["ANALYSIS"],"start":19148,"text":"Filing of appeals in other Direct tax matters shall continue to be governed by relevant provisions of statute and rules."}},{"from_name":null,"id":"0fa4844bfe1a46698f66e2cba7a80c92","to_name":null,"type":null,"value":{"end":19497,"labels":["ANALYSIS"],"start":19269,"text":"Further, in cases where the tax effect is not quantifiable or not involved, such as the case of registration of trusts or institutions under section 12A/12AA of the IT Act, 1961 etc., filing The Commissioner of Income-Tax & Anr."}},{"from_name":null,"id":"eb1e954d80374e0bacad5e479f817890","to_name":null,"type":null,"value":{"end":19622,"labels":["ANALYSIS"],"start":19497,"text":"\n vs.\n M/"}},{"from_name":null,"id":"ef8ec8c410254765a8c325c6064c22e6","to_name":null,"type":null,"value":{"end":19628,"labels":["ANALYSIS"],"start":19622,"text":"s.Luwa"}},{"from_name":null,"id":"6bbe6b13dc3849edbdf48961f3a31a27","to_name":null,"type":null,"value":{"end":19638,"labels":["ANALYSIS"],"start":19629,"text":"India Pvt"}},{"from_name":null,"id":"af881bb361ad4559b51dbb3200f85937","to_name":null,"type":null,"value":{"end":19644,"labels":["ANALYSIS"],"start":19638,"text":". Ltd."}},{"from_name":null,"id":"7241c98920af4c8fa59a914cb6568b68","to_name":null,"type":null,"value":{"end":19811,"labels":["ANALYSIS"],"start":19644,"text":"\n 19/22 of appeal shall not be governed by the limits specified in para 3 above and decision to file appeals in such cases may be taken on merits of a particular case."}},{"from_name":null,"id":"e787cf7897bb4a37abbb3b4be8011664","to_name":null,"type":null,"value":{"end":19980,"labels":["ANALYSIS"],"start":19811,"text":"\n 12. It is clarified that the monetary limit of Rs. 20 lakhs for filing appeals before the ITAT would apply equally to cross objections under section 253(4) of the Act."}},{"from_name":null,"id":"c2392876aa5d4b339f0c7dab5afa9dea","to_name":null,"type":null,"value":{"end":20098,"labels":["ANALYSIS"],"start":19981,"text":"Cross objections below this monetary limit, already filed, should be pursued for dismissal as withdrawn/ not pressed."}},{"from_name":null,"id":"b5389aff259f4a9ab40e661cee1c4f7e","to_name":null,"type":null,"value":{"end":20184,"labels":["ANALYSIS"],"start":20099,"text":"Filing of cross objections below the monetary limit may not be considered henceforth."}},{"from_name":null,"id":"795daef83fa548df9a1d4c50ae6048d9","to_name":null,"type":null,"value":{"end":20388,"labels":["ANALYSIS"],"start":20184,"text":"\nSimilarly, references to High Courts and SLPs/appeals before Supreme Court below the monetary limit of Rs. 50 lakhs and Rs. 1 Crore respectively should be pursued for dismissal as withdrawn/ not pressed."}},{"from_name":null,"id":"6561539df760449988e49b876ab78b57","to_name":null,"type":null,"value":{"end":20488,"labels":["ANALYSIS"],"start":20389,"text":"References before High Court and SLPs/ appeals below these limits may not be considered henceforth."}},{"from_name":null,"id":"c0a71e8943464c069b8965ad3b5ba2a2","to_name":null,"type":null,"value":{"end":20904,"labels":["RPC"],"start":20490,"text":"13. This Circular will apply to SLPs/appeals/cross objections/references to be filed henceforth in SC/HCs/Tribunal and it shall The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 20/22 also apply retrospectively to pending SLPs/ appeals/cross objections/references."}},{"from_name":null,"id":"7646235d1ebc44fdbb8a2766789c7c5b","to_name":null,"type":null,"value":{"end":21003,"labels":["RPC"],"start":20905,"text":"Pending appeals below the specified tax limits in para 3 above may be withdrawn/not pressed.\"\n 14."}},{"from_name":null,"id":"747dfb5b75cd475a82c28f9cdfbe4a02","to_name":null,"type":null,"value":{"end":21060,"labels":["RPC"],"start":21004,"text":"The above may be brought to the notice of all concerned."}},{"from_name":null,"id":"956e02ed79a64a11a1af932893a34a30","to_name":null,"type":null,"value":{"end":21123,"labels":["ANALYSIS"],"start":21060,"text":"\n 15. This issue under Section 268A of the Income-tax Act 1961."}},{"from_name":null,"id":"6c77dc17b78b45c3b5eb7ef8d53e4cff","to_name":null,"type":null,"value":{"end":21155,"labels":["NONE"],"start":21123,"text":"\n 16. Hindi version will follow."}},{"from_name":null,"id":"3d16028d93914ae79dfd3988d655ad83","to_name":null,"type":null,"value":{"end":21224,"labels":["NONE"],"start":21155,"text":"\n Sd/- (11/07/2018) (Neetika Bansal) Director (ITJ), CBDT, New Delhi."}},{"from_name":null,"id":"32cda1b98b884c0081acb58ffc3f134a","to_name":null,"type":null,"value":{"end":21468,"labels":["ARG_PETITIONER"],"start":21226,"text":"4. Learned counsel for the appellant-Revenue with regard to paragraph No.20 of the judgment of the Hon'ble Supreme Court in the case of DIRECTOR OF INCOME TAX vs. S.R.M.B. DAIRY FARMING (P.) LTD.\n quoted above and in the case of CIT vs. SURYA"}},{"from_name":null,"id":"b1a40d6a784240f88de39ea530e60538","to_name":null,"type":null,"value":{"end":21905,"labels":["ARG_PETITIONER"],"start":21469,"text":"The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 21/22 HERBAL LTD. (supra) has submitted before us that the present appeal filed by Revenue neither has any cascading tax effect nor it involves any issues of common principles involved in a group of matters or a large number of matters."}},{"from_name":null,"id":"18413dd1ca314d6b9abc77e8f816a0ff","to_name":null,"type":null,"value":{"end":22206,"labels":["ANALYSIS"],"start":21906,"text":"Thus, the decision initially pointed out by the learned counsel for the appellant- Revenue in the case of CIT vs. M/S.GEMINI DISTILLERIES does not come in the way of the present appeal being withdrawn and the withdrawal of the appeal can be permitted as per recent CBDT Circular dated 11.07.2018.\n 5."}},{"from_name":null,"id":"7a8b125657014dc0836640f255057560","to_name":null,"type":null,"value":{"end":22283,"labels":["ANALYSIS"],"start":22207,"text":"Learned counsel for the respondent- Assessee does not dispute this position."}},{"from_name":null,"id":"c77d9f4d1ed3410188e5fb8c92edc471","to_name":null,"type":null,"value":{"end":22587,"labels":["RPC"],"start":22285,"text":"6. Accordingly, in view of the aforesaid reasons and the Circular dated 11.07.2018 issued by the The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 22/22"}},{"from_name":null,"id":"e0c17d52555c4059aad3395c20ae1448","to_name":null,"type":null,"value":{"end":22698,"labels":["RPC"],"start":22588,"text":"Central Board of Direct Taxes, the present appeal filed by the appellant-Revenue is permitted to be withdrawn."}},{"from_name":null,"id":"015f62aeab6f4823bf975cd09a974a8f","to_name":null,"type":null,"value":{"end":22763,"labels":["RPC"],"start":22698,"text":"\n The appeal is, accordingly, dismissed as withdrawn/not pressed."}},{"from_name":null,"id":"b1bdd90aaf70498fa9f99692b68b3358","to_name":null,"type":null,"value":{"end":22773,"labels":["RPC"],"start":22764,"text":"No costs."}},{"from_name":null,"id":"ebbef84ce4b94962a868240bf550fad1","to_name":null,"type":null,"value":{"end":22800,"labels":["NONE"],"start":22773,"text":"\n Sd/- JUDGE Sd/- JUDGE VMB"}}]}],"string":"[\n {\n \"result\": [\n {\n \"from_name\": null,\n \"id\": \"3ab5646f1f2a4dcd9336fcc5572d43a7\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 123,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 0,\n \"text\": \" 1/22\\n\\nIN THE HIGH COURT OF KARNATAKA, BENGALURU\\n\\n DATED THIS THE 30TH DAY OF JULY, 2018\\n\\n PRESENT\\n\\n\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"3b697a10c68c4f28b9ca8c9f5232511f\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 134,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 123,\n \"text\": \"THE HON'BLE\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"ed3d6a0311a54b6db5536c57ffb41d08\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 161,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 135,\n \"text\": \"DR. JUSTICE VINEET KOTHARI\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"d08f541f0fa248178e92c710f6f1ac02\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 176,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 161,\n \"text\": \"\\n\\n AND\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"359391f034f143f7b90996a26b3aa474\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 269,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 176,\n \"text\": \"\\n\\n THE HON'BLE MRS. JUSTICE S. SUJATHA\\n\\n INCOME TAX APPEAL NO.105 OF 2007\\n\\nBETWEEN:\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"91b880fe4e3e46e6822578c323ad56c7\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 383,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 269,\n \"text\": \"\\n\\n1. THE COMMISSIONER OF INCOME-TAX\\n CENTRAL CIRCLE, C.R.BUILDING\\n QUEENS ROAD\\n BANGALORE.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"13de7b519cb34e97ab5460313f543021\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 502,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 383,\n \"text\": \"\\n\\n2. THE DEPUTY COMMISSIONER OF INCOME-TAX\\n CIRCLE-11(3), C.R.BUILDING\\n QUEENS ROAD\\n BANGALORE.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"b98e79bdd79c4557a4d26b1a33ffd124\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 591,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 502,\n \"text\": \"\\n ...APPELLANTS\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"fe8a91b86539473c9b531e2a915bb530\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 736,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 601,\n \"text\": \"(BY MR. K.V. ARAVIND, ADV.)\\n\\nAND:\\n\\n M/S.LUWA INDIA PVT. 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Ltd.\\n\\n 2/22\\n\\n * * *\\n THIS INCOME TAX APPEAL IS FILED UNDER SECTION\\n260A OF THE INCOME TAX ACT, 1961, PRAYING TO\\nFORMULATE THE SUBSTANTIAL QUESTIONS OF LAW STATED\\nTHEREIN AND ALLOW THE APPEAL AND SET ASIDE THE\\nORDER PASSED BY THE INCOME-TAX APPELLATE TRIBUNAL,\\nBANGALORE IN ITA No.67/BANG/2005 DATED 06.07.2006\\nCONFIRMING THE ORDER OF THE APPELLATE COMMISSIONER\\nAND CONFIRM THE ORDER PASSED BY THE DY.,\\nCOMMISSIONER OF INCOME TAX, CIRCLE-11(3), BANGALORE\\nIN THE INTEREST OF JUSTICE AND EQUITY.\\n\\n THIS INCOME TAX APPEAL IS COMING ON FOR ORDERS\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"7c093e2ef46d4b6c85b9d08c1ffdced5\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 1956,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 1866,\n \"text\": \"THIS DAY, S. SUJATHA J., MADE THE FOLLOWING:-\\n\\n O R D E R\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"1e201469894c4c30b41a244f3992f648\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 2074,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 1956,\n \"text\": \"\\n Mr. K.V. Aravind, Adv. for Appellants - Revenue Mr. S.Parthasarathi & Mrs. Sowmya K., Advs for Respondent - Assessee\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"58ed383cc63e43e2b84834f14ff24ed1\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 2654,\n \"labels\": [\n \"RLC\"\n ],\n \"start\": 2075,\n \"text\": \"This Income Tax Appeal filed by the Appellant- Revenue earlier came to be disposed of by a co-ordinate Bench of this Court on 03.11.2011, on the ground that the appeal was not maintainable due to the tax effect involved being less than the prescribed monetary limit of Rs.20 lakhs in the Instructions issued by Central Board of Direct Taxes in 2011 (for short the `CBDT').\\n The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 3/22 \"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"070d5e37f6f241c89f8d7e48602c4290\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 3719,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 2654,\n \"text\": \"2. The matter was remanded back to this Court by orders of the Hon'ble Supreme Court by a common order passed in some Civil Appeals, including the lead Civil Appeal No.16815 of 2017 @ SLP (C) No.1425 of 2014 (THE COMMISSIONER OF INCOME TAX, BANGALORE-I & ANOTHER vs. M/S.GEMINI DISTILLERIES) reported in (2017) 398 ITR 343 decided on 12.10.2017, but the said order of the two- judges Bench of Hon'ble Supreme Court in the case of M/s. Gemini Distilleries (supra) came to be explained by a later decision of the Hon'ble Supreme Court in the case of DIRECTOR OF INCOME-TAX vs. S.R.M.B.\\nDAIRY FARMING (P.) LTD. reported in (2018) 400 ITR 9 (SC) decided on 23.11.2017 about the retrospective application of the CBDT Circulars with regard to monetary limits for maintaining the pending appeals The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 4/22 before the Hon'ble High Court under Section 260A of the Income Tax Act.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"3928ab37610d49b6bd52bb416b716551\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 4582,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 3720,\n \"text\": \"The Hon'ble Supreme Court in S.R.M.B.Dairy Farming (P.) Ltd. (supra) held as under:- \\\"Appeal to High Court Monetary limits for litigation by Department Circular to apply to pending appeals but Circular not to be applied by court ipso facto when matter has cascading effect or where common principles involved in large number of matters Income Tax Act, 1961 ss. 260A, 268A Instruction No.3 of 2011, dated 9-2-2011.\\n The view adopted by the Delhi High Court making the circular applicable to pending matters came up before a three- Judges Bench of this Court in SLP (C) No.CC 13694 of 2011 titled CIT v. Surya Herbal Ltd. when the following order was passed on August 29, 2011: \\\"Delay condoned.\\n The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"aa9e3ab892504639a18be6c157d07163\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 4592,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 4582,\n \"text\": \"Luwa India\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"5473237cadc84829af66376582f2841b\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 4602,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 4593,\n \"text\": \"Pvt. Ltd.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"6633882c06a04bc49e9c76715b720670\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 4608,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 4602,\n \"text\": \"\\n 5/22\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"0ae7ca0d6fe44698b37fec5d3ee7ed76\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 4808,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 4609,\n \"text\": \"Liberty is given to the Department to move the High Court pointing out that the Circular dated February 9, 2011 should not be applied ipso facto, particularly, when the matter has a cascading effect.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"39631bb4defc4ddb9ec70f74231ccaf5\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 4960,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 4809,\n \"text\": \"There are cases under the Income-tax Act, 1961 in which a common principle may be involved in subsequent group of matters or a large number of matters.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"7c7551b861d443acaf95147836d918f9\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5083,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 4961,\n \"text\": \"In our view, in such cases if attention of the High Court is drawn, the High Court will not apply the circular ipso facto.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"2dc49f31ab3f494da542813215877483\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5175,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 5084,\n \"text\": \"For that purpose, liberty is granted to the Department to move the High Court in two weeks.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"c7b50df36b514bf7977394b331f66fa3\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5234,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 5175,\n \"text\": \"\\n The Special Leave Petition is, accordingly, disposed of.\\\"\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"28ff4cfeb4eb4f21a291da514396c9ea\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5324,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 5234,\n \"text\": \"\\n 20. The aforesaid order, in our view, actually should have laid the controversy to rest.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"42894f597cc64f68a681d75930ee53a9\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5524,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 5325,\n \"text\": \"The retrospective applicability of the The Commissioner of Income-Tax & Anr.\\n vs.\\n \"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"d84ba12761dc4e0bbfa4aff426d638e3\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5532,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 5524,\n \"text\": \"M/s.Luwa\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"74a709ed11ec40c4a0f23c2a0f799289\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5548,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 5533,\n \"text\": \"India Pvt. Ltd.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"64d57c25c5ab464d9035962847fec7e1\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6004,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 5550,\n \"text\": \"6/22 Circular dated February 9, 2011 was not interfered with, but with two caveats (i) Circular should not be applied by the High Courts ipso facto when the matter had a cascading effect; (ii) where common principles may be involved in subsequent group of matters or a large number of matters.\\nIt was opined that in such cases, the attention of the High Court would be drawn and the Department was even given liberty to move the High Court in two weeks.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"a168dd22b411489fb2139269d3c2d3c5\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6082,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 6005,\n \"text\": \"In our view this order holds the field and should continue to hold the field.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"ead607400f2b453fbfd0168d3dd4dbe4\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6640,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 6082,\n \"text\": \"\\n 21. Unfortunately, this order was not brought to the notice of the subsequent two Judges Bench of this court in CIT v. Suman Dhamija again arising from a Delhi High Court order, wherein it was simply stated that since the appeals were preferred before 2011 and the instructions were dated February 9, 2011, the earlier cases would not The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 7/22 be covered by the instruction.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"c16357a7e6d84b2a84e35b074b9c4f14\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6797,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 6641,\n \"text\": \"This order in turn had been followed by another two- Judges Bench in Civil Appeal No.16815 of 2017 titled CIT v. Gemini Distilleries dated October 12, 2017.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"f4e6357961dc4c63aeec38a7f50634e2\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6950,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 6797,\n \"text\": \"\\n 22. Once again, in another matter CIT v.\\nCentury Park, the line adopted by the three- Judges Bench in Surya Herbal Ltd. Case (supra) has been followed.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"d7030585aa19458b83953d7d3ad2be49\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 7360,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 6950,\n \"text\": \"\\n 23. We have already given our imprimatur to the observations made by the Karnataka High Court in a detailed analysis in Ranka and Ranka case (supra), which was dealt with the litigation policy philosophy behind applying the circular and the benefit being extended in view thereof to all assesses where appeals have been pending, but below the financial limit, as otherwise an anomalous situation would arise.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"d2f4b05dca914c3f9dd11fcf3a846320\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 7552,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 7360,\n \"text\": \"\\n The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 8/22\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"ae8b470403104a7ab9c03c06cd8d48e6\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 7697,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 7552,\n \"text\": \" 24. We may also take note of the judgment of this court in Suchitra Components Ltd.\\nv. CCE on the general principle of application of circulars.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"6fbbe6ebaf514795978469b050ac72bf\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 7915,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 7698,\n \"text\": \"Reliance was placed on the view expressed in CCE v. Mysore Electricals Industries Ltd. opining that a beneficial circular has to be applied retrospectively while an oppressive circular has to be applied prospectively.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"3cc4713416fb495c9aca0b7c866a0cd2\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 8205,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 7915,\n \"text\": \"\\n 25. We are of the view that the mater needs to be put to rest and a clarity be obtained in view of the impact of this issue on pending cases before the High Courts as well as the cases which have been disposed of by various High Courts by applying Circular of 2011 to pending litigations.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"46d0da0d4cb44c74abd7dca1f992ab94\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 8699,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 8206,\n \"text\": \"In our view the matter has been squarely put to rest taking further care of the interest of the Revenue by the order passed by the three-Judges Bench of this court in Surya Herbal Ltd. Case (supra), which had put two caveats even to The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 9/22 the retrospective application of the circular.\\n \"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"5a84c8be3ac640538a958391826d2134\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 8921,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 8699,\n \"text\": \"The subsequent orders have been passed by the two-Judges Bench without those orders being brought to the notice of the court, a duty which was cast on the Department to have done so to avoid the ambiguity which has arisen.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"d8b3f1e3474d486ea32796689393e082\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 9115,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 8922,\n \"text\": \"Thus, the said view of the three- Judges Bench would hold water and the circular would apply even to pending matters but subject to the two caveats provided in Surya Herbal Ltd. Case (supra).\\n \"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"bea383dc882f409c9d94d10b9b5f1eb8\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 9187,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 9115,\n \"text\": \"The appeals of the Revenue are, thus, dismissed in the aforesaid terms.\\\"\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"18dedf532ca54ec0a878b34c1919df33\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 9609,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 9187,\n \"text\": \"\\n 3. Recently, the CBDT has again revised the Instructions in this regard and besides para 13 specifically allowing withdrawal of pending appeals, the monetary limits for maintaining such Income Tax appeals before the High Court is raised from The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"13bd907920504d1fbb1935b83e504d15\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 9629,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 9609,\n \"text\": \"Luwa India Pvt. Ltd.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"25c59c4dc34040f388dfc001616d2449\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 9663,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 9629,\n \"text\": \"\\n 10/22 Rs.20 lakhs to Rs.50 lakhs\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"b2db3eaab56743a7ae6ad81798d1fc3c\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 10087,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 9663,\n \"text\": \". The said Circular is quoted extenso below:- \\\"Circular No. 3/2018 F No. 279/Misc. 142/2007-ITJ (Pt) Government of India Ministry of Finance Department of Revenue Central Board Direct Taxes New Delhi the 11th July, 2018 Subject: Revision of monetary limits for filing of appeals by the Department before Income Tax Appellate Tribunal, High Courts and SLPs/appeals before Supreme Court - measures for reducing litigation-Reg.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"194a338e01e14adab20a1945592f7195\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 10365,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 10087,\n \"text\": \"\\n Reference is invited to Board's Circular No.21 of 2015 dated 10.12.2015 wherein monetary limits and other conditions for filing departmental appeals (in Income-tax matters) before Income Tax Appellate Tribunal, High Courts and SLPs/appeals before Supreme Court were specified.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"f85e3485978248e8a242679388cca4d0\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 10700,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 10367,\n \"text\": \"2. In supersession of the above Circular, it has been decided by the Board that departmental appeals may be filed on merits before Income Tax The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 11/22\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"f730c446b5624e6691f2d22c93aabe9a\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 10841,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 10701,\n \"text\": \"Appellate Tribunal and High Courts and SLPs/appeals before Supreme Court keeping in view the monetary limits and conditions specified below.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"e58a9b08d25d4eb7a722570a0b2e0452\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 10972,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 10843,\n \"text\": \"3. Henceforth, appeals/SLPs shall not be filed in cases where the tax effect does not exceed the monetary limits given hereunder:\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"65e719c66e3047728666a11a621a42f4\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 11024,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 10973,\n \"text\": \"Sl. Appeals/SLPs in Monetary Limit (Rs.) No.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"8fb3df98e1e247658807a9e0669cea3c\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 11059,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 11025,\n \"text\": \"Income-tax matters 20,00,000 1\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"80866211e92f4c039edd0f2066aebcf3\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 11118,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 11059,\n \"text\": \". Before Appellate 50,00,000 1,00,00,000 Tribunal 2.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"36cccc229f4149e793411e0e1b10063b\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 11139,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 11119,\n \"text\": \"Before High Court 3.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"3af6aeb78d904d3c99277278fd99b16b\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 11297,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 11140,\n \"text\": \"Before Supreme Court It is clarified that an appeal should not be filed merely because the tax effect in a case exceeds the monetary limits prescribed above.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"6952ac0184a34271a84abe6061dcf880\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 11368,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 11298,\n \"text\": \"Filing of appeal in such cases is to be decided on merits of the case.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"79955269e7274348b406b2c8b442594d\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 11882,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 11370,\n \"text\": \"4. For this purpose, `tax effect' means the difference between the tax on the total income assessed and the tax that would have been chargeable had such total income been reduced by the amount of income in respect of the issues The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 12/22 against which appeal is intended to be filed (hereinafter referred to as `disputed issues').\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"354ba78b0d9a411db5d3a44cc09523d0\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 11958,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 11882,\n \"text\": \"\\nFurther, `tax effect' shall be tax including applicable surcharge and cess.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"74b52f383daf4bc2921809b29472626d\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 12075,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 11959,\n \"text\": \"However, the tax will not include any interest thereon, except where chargeability of interest itself is in dispute.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"8cc01b8777b445e886c4f76525f0df4e\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 12189,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 12075,\n \"text\": \"\\nIn case the chargeability of interest is the issue under dispute, the amount of interest shall be the tax effect.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"9e364979e4974dc689ab42b8f74c798c\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 12317,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 12190,\n \"text\": \"In cases where returned loss is reduced or assessed as income, the tax effect would include notional tax on disputed additions.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"37aaf03e3f94444fb83edc43cc1759ab\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 12444,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 12317,\n \"text\": \"\\nIn case of penalty orders, the tax effect will mean quantum of penalty deleted or reduced in the order to be appealed against.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"b258c8bf40b14f778b146175b3a5e8bd\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 12603,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 12444,\n \"text\": \"\\n 5. The Assessing Officer shall calculate the tax effect separately for every assessment year in respect of the disputed issues in the case of every assessee.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"41e5d3563cb04c6db7c127c56928efd5\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 12865,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 12604,\n \"text\": \"If, in the case of an assessee, the disputed issues arise in more than one assessment year, appeal can be filed in respect of such assessment year or years in which the tax effect in respect of the disputed issues exceeds the monetary limit specified in para 3.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"dd617fd1cb13441fadc368026b6cc52b\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 12913,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 12866,\n \"text\": \"No appeal The Commissioner of Income-Tax & Anr.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"618d100614e84c11909ae05ec239e3fd\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 13060,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 12913,\n \"text\": \"\\n vs.\\n M/s.Luwa India Pvt. Ltd.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"acf421d8cca4422aa92ef64cadc5eae0\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 13201,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 13060,\n \"text\": \"\\n 13/22 shall be filed in respect of an assessment year or years in which the tax effect is less than the monetary limit specified in para 3.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"db4fc5e06a204567805cfa34bf925862\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 13321,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 13202,\n \"text\": \"In other words, henceforth, appeals can be filed only with reference to the tax effect in the relevant assessment year.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"d7c49c8f1d084a6cbf67a56b7f167eb2\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 13768,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 13322,\n \"text\": \"However, in case of a composite order of any High Court or appellate authority, which involves more than one assessment year and common issues in more than one assessment year, appeals shall be filed in respect of all such assessment years even if the tax effect is less than the prescribed monetary limits in any of the year(s), if it is decided to file appeal in respect of the year(s) in which tax effect exceeds the monetary limit prescribed.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"af3f76bb3c3e4c48ab194ac69afe1607\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 13889,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 13769,\n \"text\": \"In case where a composite order/ judgment involves more than one assessee, each assessee shall be dealt with separately.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"430eddd53520460f9eafbec74e845f8e\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 14247,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 13891,\n \"text\": \"6. Further, where income is computed under the provisions of section 115JB or section 115JC, for the purposes of determination of `tax effect', tax on the total income assessed shall be computed as per the following formula- The Commissioner of Income-Tax & Anr.\\n vs.\\n M/\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"8f49fd6b0f114decb3b0a70e473ca6a2\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 14269,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 14247,\n \"text\": \"s.Luwa India Pvt. Ltd.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"259a78c54782489ba2b66c2439172680\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 14963,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 14269,\n \"text\": \"\\n 14/22 (A - B)+(C - D) where, A = the total income assessed as per the provisions other than the provisions contained in section 115JB or section 115JC (herein called general provisions); B = the total income that would have been chargeable had the total income assessed as per the general provisions been reduced by the amount of the disputed issues under general provisions; C = the total income assessed as per the provisions contained in section 115JB or section 115JC; D = the total income that would have been chargeable had the total income assessed as per the provisions contained in section 115JB or section 1I5JCwas reduced by the amount of disputed issues under the said provisions:\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"ab3a7c6eeaed4460b4cb7ba39427004d\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 15155,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 14964,\n \"text\": \"The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 15/22\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"f800e4045eaf45f09c8be7b332f4c7c5\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 15421,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 15156,\n \"text\": \"However, where the amount of disputed issues is considered both under the provisions contained in section 115JB or section 115JC and under general provisions, such amount shall not be reduced from total income assessed while determining the amount under item D.\\n 7.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"a85befbacbd34028883cf97b3858b189\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 15844,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 15422,\n \"text\": \"In a case where appeal before a Tribunal or a Court is not filed only on account of the tax effect being less than the monetary limit specified above, the Pr.\\nCommissioner of Income-tax/ Commissioner of Income Tax shall specifically record that \\\"even though the decision is not acceptable, appeal is not being filed only on the consideration that the tax effect is less than the monetary limit specified in this Circular\\\".\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"81e50c16dbd54f208e780fa027ceac22\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 15983,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 15845,\n \"text\": \"Further, in such cases, there will be no presumption that the Income-tax Department has acquiesced in the decision on the disputed issues.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"9d4488b0972d4af188aafeacd99f1748\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 16140,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 15984,\n \"text\": \"The Income-tax Department shall not be precluded from filing an appeal against the disputed issues in the case of the same assessee for any other assessment\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"df99253d6f3d427eb914491a2d65952f\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 16299,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 16140,\n \"text\": \" The Commissioner of Income-Tax & Anr.\\n vs.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"bd15833625ad4091b66a4b238064f126\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 16332,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 16299,\n \"text\": \"\\n M/s.Luwa India Pvt. Ltd.\\n 16/22\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"9d280c8f39fd4b4d81b7f9a069b0f0e7\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 16479,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 16332,\n \"text\": \" year, or in the case of any other assessee for the same or any other assessment year, if the tax effect exceeds the specified monetary limits.\\n 8.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"5f783d815361429da460eb3bcb9de627\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 16914,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 16480,\n \"text\": \"In the past, a number of instances have come to the notice of the Board, whereby an assessee has claimed relief from the Tribunal or the Court only on the ground that the Department has implicitly accepted the decision of the Tribunal or Court in the case of the assessee for any other assessment year or in the case of any other assessee for the same or any other assessment year, by not filing an appeal on the same disputed issues.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"b75bc21ec4a642ac8379249290cb2633\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 17290,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 16915,\n \"text\": \"The Departmental representatives/counsels must make every effort to bring to the notice of the Tribunal or the Court that the appeal in such cases was not filed or not admitted only for the reason of the tax effect being less than the specified monetary limit and, therefore, no inference should be drawn that the decisions rendered therein were acceptable to the Department.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"32b12b4794274be58bbc357d38592f30\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 18030,\n \"labels\": [\n \"STA\"\n ],\n \"start\": 17291,\n \"text\": \"Accordingly, they should impress upon the Tribunal or the Court that such cases do not have any precedent value and also bring to The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 17/22 the notice of the Tribunal/ Court the provisions of sub section (4) of section 268A of the Income-tax Act, 1961 which read as under : \\\"(4) The Appellate Tribunal or Court, hearing such appeal or reference, shall have regard to the orders, instructions or directions issued under sub-section (1) and the circumstances under which such appeal or application for reference was filed or not filed in respect of any case.\\\"\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"e7858b1046a24439848c418505f33476\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 18239,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 18030,\n \"text\": \"\\n 9. As the evidence of not filing appeal due to this Circular may have to be produced in courts, the judicial folders in the office of Pr.CsIT/ CsIT must be maintained in a systemic manner for easy retrieval.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"4e6bf3da77604fb8902c527230c88f37\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 19018,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 18241,\n \"text\": \"10. Adverse judgments relating to the following issues should be contested on merits notwithstanding that the tax effect entailed is less than the monetary limits specified in para 3 above or there is no tax effect: The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 18/22 (a) Where the Constitutional validity of the provisions of an Act or Rule is under challenge, or (b) Where Board's order, Notification, Instruction or Circular has been held to be illegal or ultra vires, or (c) Where Revenue Audit objection in the case has been accepted by the Department, or (d) Where the addition relates to undisclosed foreign assets/ bank accounts.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"23eab98dd7524cfc8754faed950a961b\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 19147,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 19020,\n \"text\": \"11. The monetary limits specified in para 3 above shall not apply to writ matters and Direct tax matters other than Income tax.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"ebc2fa8abbeb492393fa32ba77b620b8\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 19268,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 19148,\n \"text\": \"Filing of appeals in other Direct tax matters shall continue to be governed by relevant provisions of statute and rules.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"0fa4844bfe1a46698f66e2cba7a80c92\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 19497,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 19269,\n \"text\": \"Further, in cases where the tax effect is not quantifiable or not involved, such as the case of registration of trusts or institutions under section 12A/12AA of the IT Act, 1961 etc., filing The Commissioner of Income-Tax & Anr.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"eb1e954d80374e0bacad5e479f817890\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 19622,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 19497,\n \"text\": \"\\n vs.\\n M/\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"ef8ec8c410254765a8c325c6064c22e6\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 19628,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 19622,\n \"text\": \"s.Luwa\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"6bbe6b13dc3849edbdf48961f3a31a27\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 19638,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 19629,\n \"text\": \"India Pvt\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"af881bb361ad4559b51dbb3200f85937\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 19644,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 19638,\n \"text\": \". Ltd.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"7241c98920af4c8fa59a914cb6568b68\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 19811,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 19644,\n \"text\": \"\\n 19/22 of appeal shall not be governed by the limits specified in para 3 above and decision to file appeals in such cases may be taken on merits of a particular case.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"e787cf7897bb4a37abbb3b4be8011664\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 19980,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 19811,\n \"text\": \"\\n 12. It is clarified that the monetary limit of Rs. 20 lakhs for filing appeals before the ITAT would apply equally to cross objections under section 253(4) of the Act.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"c2392876aa5d4b339f0c7dab5afa9dea\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 20098,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 19981,\n \"text\": \"Cross objections below this monetary limit, already filed, should be pursued for dismissal as withdrawn/ not pressed.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"b5389aff259f4a9ab40e661cee1c4f7e\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 20184,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 20099,\n \"text\": \"Filing of cross objections below the monetary limit may not be considered henceforth.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"795daef83fa548df9a1d4c50ae6048d9\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 20388,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 20184,\n \"text\": \"\\nSimilarly, references to High Courts and SLPs/appeals before Supreme Court below the monetary limit of Rs. 50 lakhs and Rs. 1 Crore respectively should be pursued for dismissal as withdrawn/ not pressed.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"6561539df760449988e49b876ab78b57\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 20488,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 20389,\n \"text\": \"References before High Court and SLPs/ appeals below these limits may not be considered henceforth.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"c0a71e8943464c069b8965ad3b5ba2a2\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 20904,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 20490,\n \"text\": \"13. This Circular will apply to SLPs/appeals/cross objections/references to be filed henceforth in SC/HCs/Tribunal and it shall The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 20/22 also apply retrospectively to pending SLPs/ appeals/cross objections/references.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"7646235d1ebc44fdbb8a2766789c7c5b\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 21003,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 20905,\n \"text\": \"Pending appeals below the specified tax limits in para 3 above may be withdrawn/not pressed.\\\"\\n 14.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"747dfb5b75cd475a82c28f9cdfbe4a02\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 21060,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 21004,\n \"text\": \"The above may be brought to the notice of all concerned.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"956e02ed79a64a11a1af932893a34a30\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 21123,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 21060,\n \"text\": \"\\n 15. This issue under Section 268A of the Income-tax Act 1961.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"6c77dc17b78b45c3b5eb7ef8d53e4cff\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 21155,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 21123,\n \"text\": \"\\n 16. Hindi version will follow.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"3d16028d93914ae79dfd3988d655ad83\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 21224,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 21155,\n \"text\": \"\\n Sd/- (11/07/2018) (Neetika Bansal) Director (ITJ), CBDT, New Delhi.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"32cda1b98b884c0081acb58ffc3f134a\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 21468,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 21226,\n \"text\": \"4. Learned counsel for the appellant-Revenue with regard to paragraph No.20 of the judgment of the Hon'ble Supreme Court in the case of DIRECTOR OF INCOME TAX vs. S.R.M.B. DAIRY FARMING (P.) LTD.\\n quoted above and in the case of CIT vs. SURYA\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"b1a40d6a784240f88de39ea530e60538\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 21905,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 21469,\n \"text\": \"The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 21/22 HERBAL LTD. (supra) has submitted before us that the present appeal filed by Revenue neither has any cascading tax effect nor it involves any issues of common principles involved in a group of matters or a large number of matters.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"18413dd1ca314d6b9abc77e8f816a0ff\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 22206,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 21906,\n \"text\": \"Thus, the decision initially pointed out by the learned counsel for the appellant- Revenue in the case of CIT vs. M/S.GEMINI DISTILLERIES does not come in the way of the present appeal being withdrawn and the withdrawal of the appeal can be permitted as per recent CBDT Circular dated 11.07.2018.\\n 5.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"7a8b125657014dc0836640f255057560\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 22283,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 22207,\n \"text\": \"Learned counsel for the respondent- Assessee does not dispute this position.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"c77d9f4d1ed3410188e5fb8c92edc471\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 22587,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 22285,\n \"text\": \"6. Accordingly, in view of the aforesaid reasons and the Circular dated 11.07.2018 issued by the The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 22/22\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"e0c17d52555c4059aad3395c20ae1448\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 22698,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 22588,\n \"text\": \"Central Board of Direct Taxes, the present appeal filed by the appellant-Revenue is permitted to be withdrawn.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"015f62aeab6f4823bf975cd09a974a8f\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 22763,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 22698,\n \"text\": \"\\n The appeal is, accordingly, dismissed as withdrawn/not pressed.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"b1bdd90aaf70498fa9f99692b68b3358\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 22773,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 22764,\n \"text\": \"No costs.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"ebbef84ce4b94962a868240bf550fad1\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 22800,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 22773,\n \"text\": \"\\n Sd/- JUDGE Sd/- JUDGE VMB\"\n }\n }\n ]\n }\n]"},"id":{"kind":"number","value":4278,"string":"4,278"},"data":{"kind":"string","value":"{\n \"text\": \" 1/22\\n\\nIN THE HIGH COURT OF KARNATAKA, BENGALURU\\n\\n DATED THIS THE 30TH DAY OF JULY, 2018\\n\\n PRESENT\\n\\nTHE HON'BLE DR. JUSTICE VINEET KOTHARI\\n\\n AND\\n\\n THE HON'BLE MRS. JUSTICE S. SUJATHA\\n\\n INCOME TAX APPEAL NO.105 OF 2007\\n\\nBETWEEN:\\n\\n1. THE COMMISSIONER OF INCOME-TAX\\n CENTRAL CIRCLE, C.R.BUILDING\\n QUEENS ROAD\\n BANGALORE.\\n\\n2. THE DEPUTY COMMISSIONER OF INCOME-TAX\\n CIRCLE-11(3), C.R.BUILDING\\n QUEENS ROAD\\n BANGALORE.\\n ...APPELLANTS\\n (BY MR. K.V. ARAVIND, ADV.)\\n\\nAND:\\n\\n M/S.LUWA INDIA PVT. LTD.\\n II STAGE, INDUSTRIAL SUBURB\\n YESHWANTHPUR\\n BANGALORE.\\n\\n ...RESPONDENT\\n\\n (BY MR. S.PARTHASARATHI &\\n MRS. SOUMYA K., ADV. )\\n\\n The Commissioner of Income-Tax & Anr.\\n vs.\\n\\n M/s.Luwa India Pvt. Ltd.\\n\\n 2/22\\n\\n * * *\\n THIS INCOME TAX APPEAL IS FILED UNDER SECTION\\n260A OF THE INCOME TAX ACT, 1961, PRAYING TO\\nFORMULATE THE SUBSTANTIAL QUESTIONS OF LAW STATED\\nTHEREIN AND ALLOW THE APPEAL AND SET ASIDE THE\\nORDER PASSED BY THE INCOME-TAX APPELLATE TRIBUNAL,\\nBANGALORE IN ITA No.67/BANG/2005 DATED 06.07.2006\\nCONFIRMING THE ORDER OF THE APPELLATE COMMISSIONER\\nAND CONFIRM THE ORDER PASSED BY THE DY.,\\nCOMMISSIONER OF INCOME TAX, CIRCLE-11(3), BANGALORE\\nIN THE INTEREST OF JUSTICE AND EQUITY.\\n\\n THIS INCOME TAX APPEAL IS COMING ON FOR ORDERS\\nTHIS DAY, S. SUJATHA J., MADE THE FOLLOWING:-\\n\\n O R D E R\\n Mr. K.V. Aravind, Adv. for Appellants - Revenue Mr. S.Parthasarathi & Mrs. Sowmya K., Advs for Respondent - Assessee This Income Tax Appeal filed by the Appellant- Revenue earlier came to be disposed of by a co-ordinate Bench of this Court on 03.11.2011, on the ground that the appeal was not maintainable due to the tax effect involved being less than the prescribed monetary limit of Rs.20 lakhs in the Instructions issued by Central Board of Direct Taxes in 2011 (for short the `CBDT').\\n The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 3/22 2. The matter was remanded back to this Court by orders of the Hon'ble Supreme Court by a common order passed in some Civil Appeals, including the lead Civil Appeal No.16815 of 2017 @ SLP (C) No.1425 of 2014 (THE COMMISSIONER OF INCOME TAX, BANGALORE-I & ANOTHER vs. M/S.GEMINI DISTILLERIES) reported in (2017) 398 ITR 343 decided on 12.10.2017, but the said order of the two- judges Bench of Hon'ble Supreme Court in the case of M/s. Gemini Distilleries (supra) came to be explained by a later decision of the Hon'ble Supreme Court in the case of DIRECTOR OF INCOME-TAX vs. S.R.M.B.\\nDAIRY FARMING (P.) LTD. reported in (2018) 400 ITR 9 (SC) decided on 23.11.2017 about the retrospective application of the CBDT Circulars with regard to monetary limits for maintaining the pending appeals The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 4/22 before the Hon'ble High Court under Section 260A of the Income Tax Act. The Hon'ble Supreme Court in S.R.M.B.Dairy Farming (P.) Ltd. (supra) held as under:- \\\"Appeal to High Court Monetary limits for litigation by Department Circular to apply to pending appeals but Circular not to be applied by court ipso facto when matter has cascading effect or where common principles involved in large number of matters Income Tax Act, 1961 ss. 260A, 268A Instruction No.3 of 2011, dated 9-2-2011.\\n The view adopted by the Delhi High Court making the circular applicable to pending matters came up before a three- Judges Bench of this Court in SLP (C) No.CC 13694 of 2011 titled CIT v. Surya Herbal Ltd. when the following order was passed on August 29, 2011: \\\"Delay condoned.\\n The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 5/22 Liberty is given to the Department to move the High Court pointing out that the Circular dated February 9, 2011 should not be applied ipso facto, particularly, when the matter has a cascading effect. There are cases under the Income-tax Act, 1961 in which a common principle may be involved in subsequent group of matters or a large number of matters. In our view, in such cases if attention of the High Court is drawn, the High Court will not apply the circular ipso facto. For that purpose, liberty is granted to the Department to move the High Court in two weeks.\\n The Special Leave Petition is, accordingly, disposed of.\\\"\\n 20. The aforesaid order, in our view, actually should have laid the controversy to rest. The retrospective applicability of the The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 6/22 Circular dated February 9, 2011 was not interfered with, but with two caveats (i) Circular should not be applied by the High Courts ipso facto when the matter had a cascading effect; (ii) where common principles may be involved in subsequent group of matters or a large number of matters.\\nIt was opined that in such cases, the attention of the High Court would be drawn and the Department was even given liberty to move the High Court in two weeks. In our view this order holds the field and should continue to hold the field.\\n 21. Unfortunately, this order was not brought to the notice of the subsequent two Judges Bench of this court in CIT v. Suman Dhamija again arising from a Delhi High Court order, wherein it was simply stated that since the appeals were preferred before 2011 and the instructions were dated February 9, 2011, the earlier cases would not The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 7/22 be covered by the instruction. This order in turn had been followed by another two- Judges Bench in Civil Appeal No.16815 of 2017 titled CIT v. Gemini Distilleries dated October 12, 2017.\\n 22. Once again, in another matter CIT v.\\nCentury Park, the line adopted by the three- Judges Bench in Surya Herbal Ltd. Case (supra) has been followed.\\n 23. We have already given our imprimatur to the observations made by the Karnataka High Court in a detailed analysis in Ranka and Ranka case (supra), which was dealt with the litigation policy philosophy behind applying the circular and the benefit being extended in view thereof to all assesses where appeals have been pending, but below the financial limit, as otherwise an anomalous situation would arise.\\n The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 8/22 24. We may also take note of the judgment of this court in Suchitra Components Ltd.\\nv. CCE on the general principle of application of circulars. Reliance was placed on the view expressed in CCE v. Mysore Electricals Industries Ltd. opining that a beneficial circular has to be applied retrospectively while an oppressive circular has to be applied prospectively.\\n 25. We are of the view that the mater needs to be put to rest and a clarity be obtained in view of the impact of this issue on pending cases before the High Courts as well as the cases which have been disposed of by various High Courts by applying Circular of 2011 to pending litigations. In our view the matter has been squarely put to rest taking further care of the interest of the Revenue by the order passed by the three-Judges Bench of this court in Surya Herbal Ltd. Case (supra), which had put two caveats even to The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 9/22 the retrospective application of the circular.\\n The subsequent orders have been passed by the two-Judges Bench without those orders being brought to the notice of the court, a duty which was cast on the Department to have done so to avoid the ambiguity which has arisen. Thus, the said view of the three- Judges Bench would hold water and the circular would apply even to pending matters but subject to the two caveats provided in Surya Herbal Ltd. Case (supra).\\n The appeals of the Revenue are, thus, dismissed in the aforesaid terms.\\\"\\n 3. Recently, the CBDT has again revised the Instructions in this regard and besides para 13 specifically allowing withdrawal of pending appeals, the monetary limits for maintaining such Income Tax appeals before the High Court is raised from The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 10/22 Rs.20 lakhs to Rs.50 lakhs. The said Circular is quoted extenso below:- \\\"Circular No. 3/2018 F No. 279/Misc. 142/2007-ITJ (Pt) Government of India Ministry of Finance Department of Revenue Central Board Direct Taxes New Delhi the 11th July, 2018 Subject: Revision of monetary limits for filing of appeals by the Department before Income Tax Appellate Tribunal, High Courts and SLPs/appeals before Supreme Court - measures for reducing litigation-Reg.\\n Reference is invited to Board's Circular No.21 of 2015 dated 10.12.2015 wherein monetary limits and other conditions for filing departmental appeals (in Income-tax matters) before Income Tax Appellate Tribunal, High Courts and SLPs/appeals before Supreme Court were specified.\\n 2. In supersession of the above Circular, it has been decided by the Board that departmental appeals may be filed on merits before Income Tax The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 11/22 Appellate Tribunal and High Courts and SLPs/appeals before Supreme Court keeping in view the monetary limits and conditions specified below.\\n 3. Henceforth, appeals/SLPs shall not be filed in cases where the tax effect does not exceed the monetary limits given hereunder: Sl. Appeals/SLPs in Monetary Limit (Rs.) No. Income-tax matters 20,00,000 1. Before Appellate 50,00,000 1,00,00,000 Tribunal 2. Before High Court 3. Before Supreme Court It is clarified that an appeal should not be filed merely because the tax effect in a case exceeds the monetary limits prescribed above. Filing of appeal in such cases is to be decided on merits of the case.\\n 4. For this purpose, `tax effect' means the difference between the tax on the total income assessed and the tax that would have been chargeable had such total income been reduced by the amount of income in respect of the issues The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 12/22 against which appeal is intended to be filed (hereinafter referred to as `disputed issues').\\nFurther, `tax effect' shall be tax including applicable surcharge and cess. However, the tax will not include any interest thereon, except where chargeability of interest itself is in dispute.\\nIn case the chargeability of interest is the issue under dispute, the amount of interest shall be the tax effect. In cases where returned loss is reduced or assessed as income, the tax effect would include notional tax on disputed additions.\\nIn case of penalty orders, the tax effect will mean quantum of penalty deleted or reduced in the order to be appealed against.\\n 5. The Assessing Officer shall calculate the tax effect separately for every assessment year in respect of the disputed issues in the case of every assessee. If, in the case of an assessee, the disputed issues arise in more than one assessment year, appeal can be filed in respect of such assessment year or years in which the tax effect in respect of the disputed issues exceeds the monetary limit specified in para 3. No appeal The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 13/22 shall be filed in respect of an assessment year or years in which the tax effect is less than the monetary limit specified in para 3. In other words, henceforth, appeals can be filed only with reference to the tax effect in the relevant assessment year. However, in case of a composite order of any High Court or appellate authority, which involves more than one assessment year and common issues in more than one assessment year, appeals shall be filed in respect of all such assessment years even if the tax effect is less than the prescribed monetary limits in any of the year(s), if it is decided to file appeal in respect of the year(s) in which tax effect exceeds the monetary limit prescribed. In case where a composite order/ judgment involves more than one assessee, each assessee shall be dealt with separately.\\n 6. Further, where income is computed under the provisions of section 115JB or section 115JC, for the purposes of determination of `tax effect', tax on the total income assessed shall be computed as per the following formula- The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 14/22 (A - B)+(C - D) where, A = the total income assessed as per the provisions other than the provisions contained in section 115JB or section 115JC (herein called general provisions); B = the total income that would have been chargeable had the total income assessed as per the general provisions been reduced by the amount of the disputed issues under general provisions; C = the total income assessed as per the provisions contained in section 115JB or section 115JC; D = the total income that would have been chargeable had the total income assessed as per the provisions contained in section 115JB or section 1I5JCwas reduced by the amount of disputed issues under the said provisions: The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 15/22 However, where the amount of disputed issues is considered both under the provisions contained in section 115JB or section 115JC and under general provisions, such amount shall not be reduced from total income assessed while determining the amount under item D.\\n 7. In a case where appeal before a Tribunal or a Court is not filed only on account of the tax effect being less than the monetary limit specified above, the Pr.\\nCommissioner of Income-tax/ Commissioner of Income Tax shall specifically record that \\\"even though the decision is not acceptable, appeal is not being filed only on the consideration that the tax effect is less than the monetary limit specified in this Circular\\\". Further, in such cases, there will be no presumption that the Income-tax Department has acquiesced in the decision on the disputed issues. The Income-tax Department shall not be precluded from filing an appeal against the disputed issues in the case of the same assessee for any other assessment The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 16/22 year, or in the case of any other assessee for the same or any other assessment year, if the tax effect exceeds the specified monetary limits.\\n 8. In the past, a number of instances have come to the notice of the Board, whereby an assessee has claimed relief from the Tribunal or the Court only on the ground that the Department has implicitly accepted the decision of the Tribunal or Court in the case of the assessee for any other assessment year or in the case of any other assessee for the same or any other assessment year, by not filing an appeal on the same disputed issues. The Departmental representatives/counsels must make every effort to bring to the notice of the Tribunal or the Court that the appeal in such cases was not filed or not admitted only for the reason of the tax effect being less than the specified monetary limit and, therefore, no inference should be drawn that the decisions rendered therein were acceptable to the Department. Accordingly, they should impress upon the Tribunal or the Court that such cases do not have any precedent value and also bring to The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 17/22 the notice of the Tribunal/ Court the provisions of sub section (4) of section 268A of the Income-tax Act, 1961 which read as under : \\\"(4) The Appellate Tribunal or Court, hearing such appeal or reference, shall have regard to the orders, instructions or directions issued under sub-section (1) and the circumstances under which such appeal or application for reference was filed or not filed in respect of any case.\\\"\\n 9. As the evidence of not filing appeal due to this Circular may have to be produced in courts, the judicial folders in the office of Pr.CsIT/ CsIT must be maintained in a systemic manner for easy retrieval.\\n 10. Adverse judgments relating to the following issues should be contested on merits notwithstanding that the tax effect entailed is less than the monetary limits specified in para 3 above or there is no tax effect: The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 18/22 (a) Where the Constitutional validity of the provisions of an Act or Rule is under challenge, or (b) Where Board's order, Notification, Instruction or Circular has been held to be illegal or ultra vires, or (c) Where Revenue Audit objection in the case has been accepted by the Department, or (d) Where the addition relates to undisclosed foreign assets/ bank accounts.\\n 11. The monetary limits specified in para 3 above shall not apply to writ matters and Direct tax matters other than Income tax. Filing of appeals in other Direct tax matters shall continue to be governed by relevant provisions of statute and rules. Further, in cases where the tax effect is not quantifiable or not involved, such as the case of registration of trusts or institutions under section 12A/12AA of the IT Act, 1961 etc., filing The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 19/22 of appeal shall not be governed by the limits specified in para 3 above and decision to file appeals in such cases may be taken on merits of a particular case.\\n 12. It is clarified that the monetary limit of Rs. 20 lakhs for filing appeals before the ITAT would apply equally to cross objections under section 253(4) of the Act. Cross objections below this monetary limit, already filed, should be pursued for dismissal as withdrawn/ not pressed. Filing of cross objections below the monetary limit may not be considered henceforth.\\nSimilarly, references to High Courts and SLPs/appeals before Supreme Court below the monetary limit of Rs. 50 lakhs and Rs. 1 Crore respectively should be pursued for dismissal as withdrawn/ not pressed. References before High Court and SLPs/ appeals below these limits may not be considered henceforth.\\n 13. This Circular will apply to SLPs/appeals/cross objections/references to be filed henceforth in SC/HCs/Tribunal and it shall The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 20/22 also apply retrospectively to pending SLPs/ appeals/cross objections/references. Pending appeals below the specified tax limits in para 3 above may be withdrawn/not pressed.\\\"\\n 14. The above may be brought to the notice of all concerned.\\n 15. This issue under Section 268A of the Income-tax Act 1961.\\n 16. Hindi version will follow.\\n Sd/- (11/07/2018) (Neetika Bansal) Director (ITJ), CBDT, New Delhi.\\n 4. Learned counsel for the appellant-Revenue with regard to paragraph No.20 of the judgment of the Hon'ble Supreme Court in the case of DIRECTOR OF INCOME TAX vs. S.R.M.B. DAIRY FARMING (P.) LTD.\\n quoted above and in the case of CIT vs. SURYA The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 21/22 HERBAL LTD. (supra) has submitted before us that the present appeal filed by Revenue neither has any cascading tax effect nor it involves any issues of common principles involved in a group of matters or a large number of matters. Thus, the decision initially pointed out by the learned counsel for the appellant- Revenue in the case of CIT vs. M/S.GEMINI DISTILLERIES does not come in the way of the present appeal being withdrawn and the withdrawal of the appeal can be permitted as per recent CBDT Circular dated 11.07.2018.\\n 5. Learned counsel for the respondent- Assessee does not dispute this position.\\n 6. Accordingly, in view of the aforesaid reasons and the Circular dated 11.07.2018 issued by the The Commissioner of Income-Tax & Anr.\\n vs.\\n M/s.Luwa India Pvt. Ltd.\\n 22/22 Central Board of Direct Taxes, the present appeal filed by the appellant-Revenue is permitted to be withdrawn.\\n The appeal is, accordingly, dismissed as withdrawn/not pressed. No costs.\\n Sd/- JUDGE Sd/- JUDGE VMB \"\n}"}}},{"rowIdx":95,"cells":{"meta":{"kind":"string","value":"{\n \"group\": \"Tax\"\n}"},"annotations":{"kind":"list like","value":[{"result":[{"from_name":null,"id":"1f8ece164fdc4cfeabb80ffb7e5a9283","to_name":null,"type":null,"value":{"end":36,"labels":["PREAMBLE"],"start":0,"text":" 1/13"}},{"from_name":null,"id":"56f9598a4df84effab010c6176aa6f06","to_name":null,"type":null,"value":{"end":344,"labels":["PREAMBLE"],"start":38,"text":"IN THE HIGH COURT OF KARNATAKA, BENGALURU\n\nDATED THIS THE 30TH DAY OF AUGUST 2018\n\nPRESENT\n\nTHE HON'BLE Dr.JUSTICE VINEET KOTHARI\n\n AND\n\nTHE HON'BLE Mrs.JUSTICE S.SUJATHA\n\nI.T.A.No.174 OF 2016\n\nBetween:\n\n1. Commissioner of\n Income Tax (Exemptions)\n Mangaluru.\n\n2."}},{"from_name":null,"id":"390636937a274fe5933319c597ee2ec5","to_name":null,"type":null,"value":{"end":429,"labels":["PREAMBLE"],"start":345,"text":"The Assistant ...Appellants\n Commissioner of Income Tax"}},{"from_name":null,"id":"a2983dc94b8c4861a13453061b0851a7","to_name":null,"type":null,"value":{"end":682,"labels":["PREAMBLE"],"start":430,"text":" ...Respondent\n Circle1(1), Mangaluru.\n\n(By Mr.Sanmathi E I, Advocate)\n\nAnd:\n\nMangalore Urban\nDevelopment Authority\nUrva Stores, Ashok Nagar,\nMangalore 575 006.\nPAN: AAALC0002E\n\n(By Mr.S.Parthasarathi, Advocate &\nMrs.Sheetal Borkar, Advocate)"}},{"from_name":null,"id":"146c17d9436b4aac81cd6f56c2097f17","to_name":null,"type":null,"value":{"end":973,"labels":["PREAMBLE"],"start":682,"text":"\n\n Vs.\n Mangalore Urban Development Authority\n\n 2/13"}},{"from_name":null,"id":"b4f5a7b7b062438d9ed6ff5f5b93d72c","to_name":null,"type":null,"value":{"end":1647,"labels":["PREAMBLE"],"start":984,"text":"This Income Tax Appeal is filed under Section 260-A of the\nIncome Tax Act 1961, arising out of order dated 11/03/2015\npassed in ITA No.695/Bang/2014, for the Assessment Year\n2010-11 praying to decide the foregoing question of law and / or\nsuch other questions of law as may be formulated by the Hon'ble\nCourt as deemed fit and set aside the appellate order dated\n11/03/2015 passed by the ITAT, `A' Bench, Bengaluru, in appeal\nproceedings No. ITA No.695/Bang/2014 for Assessment Year\n2010-11, as sought for in this appeal; and to grant such other\nrelief as deemed fit, in the interest of justice.\n\n This Income Tax Appeal coming on for Admission, this day\n"}},{"from_name":null,"id":"3c92b538b3b0465d90f3e48d71e068be","to_name":null,"type":null,"value":{"end":1732,"labels":["PREAMBLE"],"start":1647,"text":"S.Sujatha J. delivered the following:-\n\n JUDGMENT"}},{"from_name":null,"id":"5eecf44efc6344d4a7c0ddd5185f3ec8","to_name":null,"type":null,"value":{"end":1859,"labels":["NONE"],"start":1732,"text":"\n Mr.Sanmathi E.I., Adv. for Appellants Revenue.\nMr.S.Parthasarathi, Adv. & Mrs.Sheetal Borkar, Adv. for Respondent Assessee."}},{"from_name":null,"id":"1efe1e5d5d9b4187a12f6e2498a0d258","to_name":null,"type":null,"value":{"end":2307,"labels":["FAC"],"start":1861,"text":"1. Revenue has filed this appeal raising purported substantial questions of law under Section 260-A of the Income Tax Act, 1961 arising from the order of learned Tribunal dated 11.03.2015 in ITA No.695/BNG/2014 for the Assessment Year 2010-2011 - The Asst. Commissioner of Income-tax vs. Mangalore Urban Development Authority.\n Vs.\n Mangalore Urban Development Authority 3/13 2."}},{"from_name":null,"id":"9e0a7c7d009749459e436c268c71ee13","to_name":null,"type":null,"value":{"end":2426,"labels":["ISSUE"],"start":2308,"text":"The suggested substantial questions of law in the memo of appeal of Revenue are quoted below for ready reference:- \"1."}},{"from_name":null,"id":"35ea7fe7fd4f4812b63e1d6a473d4a5e","to_name":null,"type":null,"value":{"end":3119,"labels":["ISSUE"],"start":2427,"text":"Whether on the facts and in the circumstances of the case the Tribunal is right in holding that the assessee is eligible for carry forward of deficit of the assessee to the subsequent years when the income of a charitable or religious trust/institution is required to be computed by applying general commercial principles without referring to the regular provisions of Income Tax as contained under Chapter-IV and as such while arriving at the income of a charitable or religious trust/institution, various heads of income as contemplated under section 14 and specific provisions of computation of income under respective heads as envisaged under section 15 to 59 are not pressed into action?"}},{"from_name":null,"id":"3ee2901841f241b191fef79f120ed9a5","to_name":null,"type":null,"value":{"end":3604,"labels":["ISSUE"],"start":3121,"text":"2. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in holding that the assessee is Vs.\n Mangalore Urban Development Authority 4/13 entitled to carry forward of excess application without appreciating that the provisions of sections 70 to 80 of IT Act are not applicable to trusts as they only deal with carry forward and set off of loss and not excess expenditure or deficit?"}},{"from_name":null,"id":"df0c713491eb4fa5a462b1cf96e5efec","to_name":null,"type":null,"value":{"end":3946,"labels":["ISSUE"],"start":3604,"text":"\n 3. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in holding that assessee is entitled to claim depreciation on capital assets when it amounts to double deduction as the income of the assessee is already exempt and amended provisions of the Act also denies such claim for depreciation by Trust?\"\n 3."}},{"from_name":null,"id":"5d316d270ca84668b1d529564ecdc163","to_name":null,"type":null,"value":{"end":4282,"labels":["ARG_PETITIONER"],"start":3947,"text":"The learned counsel for Revenue submits that the controversy raised in the present appeal is covered by a decision of this Court in ITA No.231/2018 (D.D 14.08.2018), in the case of Pr. Commissioner of Income- Tax (Exemptions) and Another vs. M/s Green Wood High Vs.\n "}},{"from_name":null,"id":"a5b6ad9a72754ae29a639e74af878bfd","to_name":null,"type":null,"value":{"end":4332,"labels":["ARG_PETITIONER"],"start":4282,"text":"Mangalore Urban Development Authority 5/13 School."}},{"from_name":null,"id":"03d71186908046e39b4b238d1e20e32e","to_name":null,"type":null,"value":{"end":4415,"labels":["ARG_PETITIONER"],"start":4333,"text":"The relevant portion of the said order is extracted hereunder for ready reference:"}},{"from_name":null,"id":"76f3f42ca6fb4654a375ff4db3cb79d6","to_name":null,"type":null,"value":{"end":5301,"labels":["ARG_PETITIONER"],"start":4416,"text":"\"3. This Court in the case of `Commissioner of Income Tax-III, Pune v. Rajasthan & Gujarati Charitable Foundation Poona' [2018] 89 taxmann.com 127 [SC] with regard to allowability and Depreciation in the hands of Religious and Charitable Trust held as under: \"5. Learned Counsel at the Bar submitted that so far as the issue regarding claim of Depreciation under Section 32 of the Act is concerned, the controversy is no longer res integra, having been settled by the Hon'ble Supreme Court in the case of `Commissioner of Income Tax-III, Pune v. Rajasthan & Gujarati Charitable Foundation Poona' [2018] 89 taxmann.com 127 [SC], by which the Hon'ble Supreme Court has affirmed the view taken by the Bombay High Court in `Commissioner of Income Tax v.\n Institute of Banking Personnel Vs.\n Mangalore Urban Development Authority 6/13 Selection (IBPS)'"}},{"from_name":null,"id":"9924ec6d640f45bfbbd0345a9af13cb2","to_name":null,"type":null,"value":{"end":5323,"labels":["ARG_PETITIONER"],"start":5302,"text":"[2003] 131 Taxman 386"}},{"from_name":null,"id":"d49f413a3d0a4a6b955c8abe5028cbdb","to_name":null,"type":null,"value":{"end":5331,"labels":["ARG_PETITIONER"],"start":5324,"text":"[Bom.]."}},{"from_name":null,"id":"b29eaf37dc5f4698865b0d3beb3750ae","to_name":null,"type":null,"value":{"end":5483,"labels":["ARG_PETITIONER"],"start":5332,"text":"The relevant portion of the said Judgment of Bombay High Court as quoted by the Hon'ble Supreme Court and affirmed is quoted below for ready reference."}},{"from_name":null,"id":"17113f2cdcc442a0bb70ea49d81365b3","to_name":null,"type":null,"value":{"end":5633,"labels":["ARG_PETITIONER"],"start":5483,"text":"\n \"In the said judgment, [Bombay High Court] the contention of the Department predicated on double benefit was turned down in the following manner: 3."}},{"from_name":null,"id":"f5449356f4ab4c48a57d033a0304338a","to_name":null,"type":null,"value":{"end":5881,"labels":["ANALYSIS"],"start":5634,"text":"As stated above, the first question which requires consideration by this court is : whether depreciation was allowable on the assets, the cost of which has been fully allowed as application of income under section 11 in the past years?"}},{"from_name":null,"id":"243e74d91e7b442294613d4fe161f427","to_name":null,"type":null,"value":{"end":5947,"labels":["ANALYSIS"],"start":5882,"text":"In the case of CIT v. Munisuvrat Jain 1994 Tax Law Reporter, 1084"}},{"from_name":null,"id":"8f556652f62e491ab5e2f349f740b1bd","to_name":null,"type":null,"value":{"end":5974,"labels":["ANALYSIS"],"start":5948,"text":"the facts were as follows."}},{"from_name":null,"id":"a324327c539e4fc68cc4172d675ff1b3","to_name":null,"type":null,"value":{"end":6011,"labels":["ANALYSIS"],"start":5975,"text":"The assessee was a Charitable Trust."}},{"from_name":null,"id":"df2d30b6fa9e44fd9d51bc1faf9a8736","to_name":null,"type":null,"value":{"end":6147,"labels":["ANALYSIS"],"start":6012,"text":"It was registered Vs.\n Mangalore Urban Development Authority 7/13 as a Public Charitable Trust."}},{"from_name":null,"id":"590caed828b7493699a14cc9e0e1dfce","to_name":null,"type":null,"value":{"end":6199,"labels":["ANALYSIS"],"start":6148,"text":"It was also registered with the Commissioner, Pune."}},{"from_name":null,"id":"4fa39c9ad1824c64a1afcd88d4550f7f","to_name":null,"type":null,"value":{"end":6280,"labels":["ANALYSIS"],"start":6200,"text":"The assessee derived income from the temple property which was a Trust property."}},{"from_name":null,"id":"c6fa091998ba4f0a9715d83253de1d8d","to_name":null,"type":null,"value":{"end":6542,"labels":["ANALYSIS"],"start":6281,"text":"During the course of assessment proceedings for assessment years 1977-78, 1978- 79 and 1979-80, the assessee claimed depreciation on the value of the building at the rate of 2.5 per cent and they also claimed depreciation on furniture at the rate of 5 per cent."}},{"from_name":null,"id":"3ade8a14b3b0430e875398ffe9c5b0c2","to_name":null,"type":null,"value":{"end":6775,"labels":["ANALYSIS"],"start":6543,"text":"The question which arose before the court for determination was: whether depreciation could be denied to the assessee, as expenditure on acquisition of the assets had been treated as application of income in the year of acquisition?"}},{"from_name":null,"id":"9b41f3a140a54e93bcd057a3c78165d9","to_name":null,"type":null,"value":{"end":6926,"labels":["PRE_RELIED"],"start":6776,"text":"It was held by the Bombay High Court that section 11 of the Income Tax Act makes provision in respect of Vs.\n "}},{"from_name":null,"id":"3205abc60ccf4f6cb72831f2ef04f444","to_name":null,"type":null,"value":{"end":7128,"labels":["PRE_RELIED"],"start":6926,"text":"Mangalore Urban Development Authority 8/13 computation of income of the Trust from the properly held for charitable or religious purposes and it also provides for application and accumulation of income."}},{"from_name":null,"id":"1e3338b6a6494dfcbc516110a76d088e","to_name":null,"type":null,"value":{"end":7385,"labels":["ANALYSIS"],"start":7129,"text":"On the other hand, section 28 of the Income Tax Act deals with chargeability of income from profits and gains of business and section 29 provides that income from profits and gains of business shall be computed in accordance with section 30 to section 43C,"}},{"from_name":null,"id":"affbef9412fd47019670c914359c8fd6","to_name":null,"type":null,"value":{"end":7544,"labels":["ANALYSIS"],"start":7386,"text":"That, section 32(1) of the Act provides for depreciation in respect of building, plant and machinery owned by the assessee and used for the business purposes."}},{"from_name":null,"id":"c1f3d0c0dffe46e68de85bb3b2d53a2f","to_name":null,"type":null,"value":{"end":7601,"labels":["ANALYSIS"],"start":7545,"text":"It further provides for deduction subject to section 34."}},{"from_name":null,"id":"c384a7cd1d1a4370ace97a5f97cee5ac","to_name":null,"type":null,"value":{"end":7925,"labels":["ANALYSIS"],"start":7602,"text":"In that matter also, a similar argument, as in the present case, was advanced on behalf of the revenue, namely, that depreciation can be allowed as deduction only Vs.\n Mangalore Urban Development Authority 9/13 under section 32 of the Income Tax Act and not under general principles."}},{"from_name":null,"id":"c0fa1cb3188c4de3a53c45c470af9f6d","to_name":null,"type":null,"value":{"end":7959,"labels":["ANALYSIS"],"start":7926,"text":"The court rejected this argument."}},{"from_name":null,"id":"428812e1511a406f92b3fb3f1eedbcba","to_name":null,"type":null,"value":{"end":8156,"labels":["ANALYSIS"],"start":7960,"text":"It was held that normal depreciation can be considered as a legitimate deduction in computing the real income of the assessee on general principles or under section 11(1)(a) of the Income Tax Act."}},{"from_name":null,"id":"c36db1973f4b4e2cb86326529c75f2ae","to_name":null,"type":null,"value":{"end":8330,"labels":["ANALYSIS"],"start":8157,"text":"The court rejected the argument on behalf of the revenue that section 32 of the Income Tax Act was the only section granting benefit of deduction on account of depreciation."}},{"from_name":null,"id":"9670196e79bc4c4fab5707e036c12fa4","to_name":null,"type":null,"value":{"end":8628,"labels":["ANALYSIS"],"start":8331,"text":"It was held that income of a Charitable Trust derived from building, plant and machinery and furniture was liable to be computed in normal commercial manner although the Trust may not be carrying on any business and the assets in respect whereof depreciation is claimed may not be business assets."}},{"from_name":null,"id":"d9a0c69656d24315b3e3627453a53950","to_name":null,"type":null,"value":{"end":8639,"labels":["ANALYSIS"],"start":8629,"text":"In all Vs."}},{"from_name":null,"id":"fcf0961389694a31a18276769866c9d4","to_name":null,"type":null,"value":{"end":8894,"labels":["ANALYSIS"],"start":8698,"text":"Mangalore Urban Development Authority 10/13 such cases, section 32 of the Income Tax Act providing for depreciation for computation of income derived from business or profession is not applicable."}},{"from_name":null,"id":"4057f515a363416a92798e15cbeaf038","to_name":null,"type":null,"value":{"end":9116,"labels":["ANALYSIS"],"start":8894,"text":"\n However, the income of the Trust is required to be computed under section 11 on commercial principles after providing for allowance for normal depreciation and deduction thereof from gross income of the Trust."}},{"from_name":null,"id":"ed21384cce27465ba3a1a36a1171c75e","to_name":null,"type":null,"value":{"end":9283,"labels":["ANALYSIS"],"start":9117,"text":"In view of the aforestated Judgment of the Bombay High Court, we answer question No. 1 in the affirmative i.e., in favour of the assessee and against the department.\""}},{"from_name":null,"id":"76a78bc169a94347b072da4009b5929f","to_name":null,"type":null,"value":{"end":9297,"labels":["NONE"],"start":9283,"text":"\n xxxxxxx....."}},{"from_name":null,"id":"6c488d521bf8475590afaf9308d51265","to_name":null,"type":null,"value":{"end":9796,"labels":["PRE_RELIED"],"start":9297,"text":"\n 4. With regard to carrying forward of the losses for being set off against the income of the charitable trust for the present Assessment Year, the controversy is covered by the judgment in Vs.\n Mangalore Urban Development Authority 11/13 Commissioner of Income Tax (Exemptions) and another Vs. Ohio University Christ College rendered on 17.07.2018 in ITA.No.312/2016 and ITA No.313/2016, in which this Court held as under: xxxxxxx.....\n 18."}},{"from_name":null,"id":"b233f6b64f2841909381138ebec590d9","to_name":null,"type":null,"value":{"end":10116,"labels":["RATIO"],"start":9797,"text":"In view of the aforesaid findings of the learned Tribunal, allowing any expenditure of the earlier year which has been brought forward and set off in the year under consideration, is a justified finding of fact based on the correct interpretation of law and the judgment relied upon by it rendered by the cognate Bench."}},{"from_name":null,"id":"2b427941df6145658573b5561eff41b6","to_name":null,"type":null,"value":{"end":10168,"labels":["RATIO"],"start":10117,"text":"Therefore, the same does not call for interference."}},{"from_name":null,"id":"484c03fd130d4207a35d8712f2d9e30b","to_name":null,"type":null,"value":{"end":10925,"labels":["PRE_RELIED"],"start":10169,"text":"A similar view was also taken by the Division Bench of Bombay High Court in Commissioner of Income- tax v. Institute of Banking (2003) 264 ITR 110, wherein the Division Bench of Bombay High Court held that the income derived from the trust property has also got to be computed on commercial Vs.\n Mangalore Urban Development Authority 12/13 principles and if commercial principles are applied, then adjustment of expenses incurred by the trust for charitable and religious purposes in the earlier years against the income earned by the trust in the subsequent year will have to be regarded as application of income of the trust for charitable and religious purposes in the subsequent year."}},{"from_name":null,"id":"2d2e78290e3b4fb8b291a7b132628683","to_name":null,"type":null,"value":{"end":10935,"labels":["NONE"],"start":10925,"text":"\n xxxx...."}},{"from_name":null,"id":"c24d343289a6488da8f164bb64713fcc","to_name":null,"type":null,"value":{"end":11176,"labels":["RPC"],"start":10935,"text":"\n In view of the controversy covered by the above decisions of this Court, we are of the opinion that the substantial question of law as suggested by the appellants does not now arise for our further consideration in the present appeal.\"\n 4."}},{"from_name":null,"id":"1a8e79a890d5412eac4a3fc44b6b396e","to_name":null,"type":null,"value":{"end":11323,"labels":["RPC"],"start":11177,"text":"In view of the aforesaid, we are of the opinion that no substantial question of law arises for our further consideration in the present case also."}},{"from_name":null,"id":"b3b26886b81e4cdcb56b794b0c1fc848","to_name":null,"type":null,"value":{"end":11398,"labels":["RPC"],"start":11323,"text":"\n Vs.\n "}},{"from_name":null,"id":"236c50db94cb44eea564cff82ad3801f","to_name":null,"type":null,"value":{"end":11444,"labels":["RPC"],"start":11398,"text":"Mangalore Urban Development Authority 13/13 5."}},{"from_name":null,"id":"1f706bd2ec774b47968132fc5bb11891","to_name":null,"type":null,"value":{"end":11552,"labels":["RPC"],"start":11445,"text":"The appeal filed by the Revenue is accordingly dismissed in terms of the aforesaid judgments of this Court."}},{"from_name":null,"id":"c23231c1a78a44f8b5af33b267e90042","to_name":null,"type":null,"value":{"end":11563,"labels":["RPC"],"start":11552,"text":"\n No costs."}},{"from_name":null,"id":"acf6afca8aec44a5957ee88530bcf1bf","to_name":null,"type":null,"value":{"end":11591,"labels":["NONE"],"start":11563,"text":"\n Sd/- JUDGE Sd/- JUDGE dn/-"}}]}],"string":"[\n {\n \"result\": [\n {\n \"from_name\": null,\n \"id\": \"1f8ece164fdc4cfeabb80ffb7e5a9283\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 36,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 0,\n \"text\": \" 1/13\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"56f9598a4df84effab010c6176aa6f06\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 344,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 38,\n \"text\": \"IN THE HIGH COURT OF KARNATAKA, BENGALURU\\n\\nDATED THIS THE 30TH DAY OF AUGUST 2018\\n\\nPRESENT\\n\\nTHE HON'BLE Dr.JUSTICE VINEET KOTHARI\\n\\n AND\\n\\nTHE HON'BLE Mrs.JUSTICE S.SUJATHA\\n\\nI.T.A.No.174 OF 2016\\n\\nBetween:\\n\\n1. Commissioner of\\n Income Tax (Exemptions)\\n Mangaluru.\\n\\n2.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"390636937a274fe5933319c597ee2ec5\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 429,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 345,\n \"text\": \"The Assistant ...Appellants\\n Commissioner of Income Tax\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"a2983dc94b8c4861a13453061b0851a7\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 682,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 430,\n \"text\": \" ...Respondent\\n Circle1(1), Mangaluru.\\n\\n(By Mr.Sanmathi E I, Advocate)\\n\\nAnd:\\n\\nMangalore Urban\\nDevelopment Authority\\nUrva Stores, Ashok Nagar,\\nMangalore 575 006.\\nPAN: AAALC0002E\\n\\n(By Mr.S.Parthasarathi, Advocate &\\nMrs.Sheetal Borkar, Advocate)\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"146c17d9436b4aac81cd6f56c2097f17\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 973,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 682,\n \"text\": \"\\n\\n Vs.\\n Mangalore Urban Development Authority\\n\\n 2/13\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"b4f5a7b7b062438d9ed6ff5f5b93d72c\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 1647,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 984,\n \"text\": \"This Income Tax Appeal is filed under Section 260-A of the\\nIncome Tax Act 1961, arising out of order dated 11/03/2015\\npassed in ITA No.695/Bang/2014, for the Assessment Year\\n2010-11 praying to decide the foregoing question of law and / or\\nsuch other questions of law as may be formulated by the Hon'ble\\nCourt as deemed fit and set aside the appellate order dated\\n11/03/2015 passed by the ITAT, `A' Bench, Bengaluru, in appeal\\nproceedings No. ITA No.695/Bang/2014 for Assessment Year\\n2010-11, as sought for in this appeal; and to grant such other\\nrelief as deemed fit, in the interest of justice.\\n\\n This Income Tax Appeal coming on for Admission, this day\\n\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"3c92b538b3b0465d90f3e48d71e068be\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 1732,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 1647,\n \"text\": \"S.Sujatha J. delivered the following:-\\n\\n JUDGMENT\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"5eecf44efc6344d4a7c0ddd5185f3ec8\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 1859,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 1732,\n \"text\": \"\\n Mr.Sanmathi E.I., Adv. for Appellants Revenue.\\nMr.S.Parthasarathi, Adv. & Mrs.Sheetal Borkar, Adv. for Respondent Assessee.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"1efe1e5d5d9b4187a12f6e2498a0d258\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 2307,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 1861,\n \"text\": \"1. Revenue has filed this appeal raising purported substantial questions of law under Section 260-A of the Income Tax Act, 1961 arising from the order of learned Tribunal dated 11.03.2015 in ITA No.695/BNG/2014 for the Assessment Year 2010-2011 - The Asst. Commissioner of Income-tax vs. Mangalore Urban Development Authority.\\n Vs.\\n Mangalore Urban Development Authority 3/13 2.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"9e0a7c7d009749459e436c268c71ee13\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 2426,\n \"labels\": [\n \"ISSUE\"\n ],\n \"start\": 2308,\n \"text\": \"The suggested substantial questions of law in the memo of appeal of Revenue are quoted below for ready reference:- \\\"1.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"35ea7fe7fd4f4812b63e1d6a473d4a5e\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 3119,\n \"labels\": [\n \"ISSUE\"\n ],\n \"start\": 2427,\n \"text\": \"Whether on the facts and in the circumstances of the case the Tribunal is right in holding that the assessee is eligible for carry forward of deficit of the assessee to the subsequent years when the income of a charitable or religious trust/institution is required to be computed by applying general commercial principles without referring to the regular provisions of Income Tax as contained under Chapter-IV and as such while arriving at the income of a charitable or religious trust/institution, various heads of income as contemplated under section 14 and specific provisions of computation of income under respective heads as envisaged under section 15 to 59 are not pressed into action?\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"3ee2901841f241b191fef79f120ed9a5\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 3604,\n \"labels\": [\n \"ISSUE\"\n ],\n \"start\": 3121,\n \"text\": \"2. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in holding that the assessee is Vs.\\n Mangalore Urban Development Authority 4/13 entitled to carry forward of excess application without appreciating that the provisions of sections 70 to 80 of IT Act are not applicable to trusts as they only deal with carry forward and set off of loss and not excess expenditure or deficit?\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"df0c713491eb4fa5a462b1cf96e5efec\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 3946,\n \"labels\": [\n \"ISSUE\"\n ],\n \"start\": 3604,\n \"text\": \"\\n 3. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in holding that assessee is entitled to claim depreciation on capital assets when it amounts to double deduction as the income of the assessee is already exempt and amended provisions of the Act also denies such claim for depreciation by Trust?\\\"\\n 3.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"5d316d270ca84668b1d529564ecdc163\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 4282,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 3947,\n \"text\": \"The learned counsel for Revenue submits that the controversy raised in the present appeal is covered by a decision of this Court in ITA No.231/2018 (D.D 14.08.2018), in the case of Pr. Commissioner of Income- Tax (Exemptions) and Another vs. M/s Green Wood High Vs.\\n \"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"a5b6ad9a72754ae29a639e74af878bfd\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 4332,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 4282,\n \"text\": \"Mangalore Urban Development Authority 5/13 School.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"03d71186908046e39b4b238d1e20e32e\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 4415,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 4333,\n \"text\": \"The relevant portion of the said order is extracted hereunder for ready reference:\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"76f3f42ca6fb4654a375ff4db3cb79d6\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5301,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 4416,\n \"text\": \"\\\"3. This Court in the case of `Commissioner of Income Tax-III, Pune v. Rajasthan & Gujarati Charitable Foundation Poona' [2018] 89 taxmann.com 127 [SC] with regard to allowability and Depreciation in the hands of Religious and Charitable Trust held as under: \\\"5. Learned Counsel at the Bar submitted that so far as the issue regarding claim of Depreciation under Section 32 of the Act is concerned, the controversy is no longer res integra, having been settled by the Hon'ble Supreme Court in the case of `Commissioner of Income Tax-III, Pune v. Rajasthan & Gujarati Charitable Foundation Poona' [2018] 89 taxmann.com 127 [SC], by which the Hon'ble Supreme Court has affirmed the view taken by the Bombay High Court in `Commissioner of Income Tax v.\\n Institute of Banking Personnel Vs.\\n Mangalore Urban Development Authority 6/13 Selection (IBPS)'\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"9924ec6d640f45bfbbd0345a9af13cb2\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5323,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 5302,\n \"text\": \"[2003] 131 Taxman 386\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"d49f413a3d0a4a6b955c8abe5028cbdb\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5331,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 5324,\n \"text\": \"[Bom.].\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"b29eaf37dc5f4698865b0d3beb3750ae\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5483,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 5332,\n \"text\": \"The relevant portion of the said Judgment of Bombay High Court as quoted by the Hon'ble Supreme Court and affirmed is quoted below for ready reference.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"17113f2cdcc442a0bb70ea49d81365b3\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5633,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 5483,\n \"text\": \"\\n \\\"In the said judgment, [Bombay High Court] the contention of the Department predicated on double benefit was turned down in the following manner: 3.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"f5449356f4ab4c48a57d033a0304338a\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5881,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 5634,\n \"text\": \"As stated above, the first question which requires consideration by this court is : whether depreciation was allowable on the assets, the cost of which has been fully allowed as application of income under section 11 in the past years?\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"243e74d91e7b442294613d4fe161f427\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5947,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 5882,\n \"text\": \"In the case of CIT v. Munisuvrat Jain 1994 Tax Law Reporter, 1084\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"8f556652f62e491ab5e2f349f740b1bd\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5974,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 5948,\n \"text\": \"the facts were as follows.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"a324327c539e4fc68cc4172d675ff1b3\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6011,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 5975,\n \"text\": \"The assessee was a Charitable Trust.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"df2d30b6fa9e44fd9d51bc1faf9a8736\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6147,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 6012,\n \"text\": \"It was registered Vs.\\n Mangalore Urban Development Authority 7/13 as a Public Charitable Trust.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"590caed828b7493699a14cc9e0e1dfce\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6199,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 6148,\n \"text\": \"It was also registered with the Commissioner, Pune.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"4fa39c9ad1824c64a1afcd88d4550f7f\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6280,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 6200,\n \"text\": \"The assessee derived income from the temple property which was a Trust property.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"c6fa091998ba4f0a9715d83253de1d8d\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6542,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 6281,\n \"text\": \"During the course of assessment proceedings for assessment years 1977-78, 1978- 79 and 1979-80, the assessee claimed depreciation on the value of the building at the rate of 2.5 per cent and they also claimed depreciation on furniture at the rate of 5 per cent.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"3ade8a14b3b0430e875398ffe9c5b0c2\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6775,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 6543,\n \"text\": \"The question which arose before the court for determination was: whether depreciation could be denied to the assessee, as expenditure on acquisition of the assets had been treated as application of income in the year of acquisition?\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"9b41f3a140a54e93bcd057a3c78165d9\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6926,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 6776,\n \"text\": \"It was held by the Bombay High Court that section 11 of the Income Tax Act makes provision in respect of Vs.\\n \"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"3205abc60ccf4f6cb72831f2ef04f444\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 7128,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 6926,\n \"text\": \"Mangalore Urban Development Authority 8/13 computation of income of the Trust from the properly held for charitable or religious purposes and it also provides for application and accumulation of income.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"1e3338b6a6494dfcbc516110a76d088e\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 7385,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 7129,\n \"text\": \"On the other hand, section 28 of the Income Tax Act deals with chargeability of income from profits and gains of business and section 29 provides that income from profits and gains of business shall be computed in accordance with section 30 to section 43C,\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"affbef9412fd47019670c914359c8fd6\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 7544,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 7386,\n \"text\": \"That, section 32(1) of the Act provides for depreciation in respect of building, plant and machinery owned by the assessee and used for the business purposes.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"c1f3d0c0dffe46e68de85bb3b2d53a2f\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 7601,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 7545,\n \"text\": \"It further provides for deduction subject to section 34.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"c384a7cd1d1a4370ace97a5f97cee5ac\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 7925,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 7602,\n \"text\": \"In that matter also, a similar argument, as in the present case, was advanced on behalf of the revenue, namely, that depreciation can be allowed as deduction only Vs.\\n Mangalore Urban Development Authority 9/13 under section 32 of the Income Tax Act and not under general principles.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"c0fa1cb3188c4de3a53c45c470af9f6d\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 7959,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 7926,\n \"text\": \"The court rejected this argument.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"428812e1511a406f92b3fb3f1eedbcba\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 8156,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 7960,\n \"text\": \"It was held that normal depreciation can be considered as a legitimate deduction in computing the real income of the assessee on general principles or under section 11(1)(a) of the Income Tax Act.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"c36db1973f4b4e2cb86326529c75f2ae\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 8330,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 8157,\n \"text\": \"The court rejected the argument on behalf of the revenue that section 32 of the Income Tax Act was the only section granting benefit of deduction on account of depreciation.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"9670196e79bc4c4fab5707e036c12fa4\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 8628,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 8331,\n \"text\": \"It was held that income of a Charitable Trust derived from building, plant and machinery and furniture was liable to be computed in normal commercial manner although the Trust may not be carrying on any business and the assets in respect whereof depreciation is claimed may not be business assets.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"d9a0c69656d24315b3e3627453a53950\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 8639,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 8629,\n \"text\": \"In all Vs.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"fcf0961389694a31a18276769866c9d4\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 8894,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 8698,\n \"text\": \"Mangalore Urban Development Authority 10/13 such cases, section 32 of the Income Tax Act providing for depreciation for computation of income derived from business or profession is not applicable.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"4057f515a363416a92798e15cbeaf038\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 9116,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 8894,\n \"text\": \"\\n However, the income of the Trust is required to be computed under section 11 on commercial principles after providing for allowance for normal depreciation and deduction thereof from gross income of the Trust.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"ed21384cce27465ba3a1a36a1171c75e\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 9283,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 9117,\n \"text\": \"In view of the aforestated Judgment of the Bombay High Court, we answer question No. 1 in the affirmative i.e., in favour of the assessee and against the department.\\\"\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"76a78bc169a94347b072da4009b5929f\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 9297,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 9283,\n \"text\": \"\\n xxxxxxx.....\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"6c488d521bf8475590afaf9308d51265\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 9796,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 9297,\n \"text\": \"\\n 4. With regard to carrying forward of the losses for being set off against the income of the charitable trust for the present Assessment Year, the controversy is covered by the judgment in Vs.\\n Mangalore Urban Development Authority 11/13 Commissioner of Income Tax (Exemptions) and another Vs. Ohio University Christ College rendered on 17.07.2018 in ITA.No.312/2016 and ITA No.313/2016, in which this Court held as under: xxxxxxx.....\\n 18.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"b233f6b64f2841909381138ebec590d9\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 10116,\n \"labels\": [\n \"RATIO\"\n ],\n \"start\": 9797,\n \"text\": \"In view of the aforesaid findings of the learned Tribunal, allowing any expenditure of the earlier year which has been brought forward and set off in the year under consideration, is a justified finding of fact based on the correct interpretation of law and the judgment relied upon by it rendered by the cognate Bench.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"2b427941df6145658573b5561eff41b6\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 10168,\n \"labels\": [\n \"RATIO\"\n ],\n \"start\": 10117,\n \"text\": \"Therefore, the same does not call for interference.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"484c03fd130d4207a35d8712f2d9e30b\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 10925,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 10169,\n \"text\": \"A similar view was also taken by the Division Bench of Bombay High Court in Commissioner of Income- tax v. Institute of Banking (2003) 264 ITR 110, wherein the Division Bench of Bombay High Court held that the income derived from the trust property has also got to be computed on commercial Vs.\\n Mangalore Urban Development Authority 12/13 principles and if commercial principles are applied, then adjustment of expenses incurred by the trust for charitable and religious purposes in the earlier years against the income earned by the trust in the subsequent year will have to be regarded as application of income of the trust for charitable and religious purposes in the subsequent year.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"2d2e78290e3b4fb8b291a7b132628683\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 10935,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 10925,\n \"text\": \"\\n xxxx....\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"c24d343289a6488da8f164bb64713fcc\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 11176,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 10935,\n \"text\": \"\\n In view of the controversy covered by the above decisions of this Court, we are of the opinion that the substantial question of law as suggested by the appellants does not now arise for our further consideration in the present appeal.\\\"\\n 4.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"1a8e79a890d5412eac4a3fc44b6b396e\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 11323,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 11177,\n \"text\": \"In view of the aforesaid, we are of the opinion that no substantial question of law arises for our further consideration in the present case also.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"b3b26886b81e4cdcb56b794b0c1fc848\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 11398,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 11323,\n \"text\": \"\\n Vs.\\n \"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"236c50db94cb44eea564cff82ad3801f\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 11444,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 11398,\n \"text\": \"Mangalore Urban Development Authority 13/13 5.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"1f706bd2ec774b47968132fc5bb11891\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 11552,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 11445,\n \"text\": \"The appeal filed by the Revenue is accordingly dismissed in terms of the aforesaid judgments of this Court.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"c23231c1a78a44f8b5af33b267e90042\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 11563,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 11552,\n \"text\": \"\\n No costs.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"acf6afca8aec44a5957ee88530bcf1bf\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 11591,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 11563,\n \"text\": \"\\n Sd/- JUDGE Sd/- JUDGE dn/-\"\n }\n }\n ]\n }\n]"},"id":{"kind":"number","value":4202,"string":"4,202"},"data":{"kind":"string","value":"{\n \"text\": \" 1/13\\n\\nIN THE HIGH COURT OF KARNATAKA, BENGALURU\\n\\nDATED THIS THE 30TH DAY OF AUGUST 2018\\n\\nPRESENT\\n\\nTHE HON'BLE Dr.JUSTICE VINEET KOTHARI\\n\\n AND\\n\\nTHE HON'BLE Mrs.JUSTICE S.SUJATHA\\n\\nI.T.A.No.174 OF 2016\\n\\nBetween:\\n\\n1. Commissioner of\\n Income Tax (Exemptions)\\n Mangaluru.\\n\\n2. The Assistant ...Appellants\\n Commissioner of Income Tax ...Respondent\\n Circle1(1), Mangaluru.\\n\\n(By Mr.Sanmathi E I, Advocate)\\n\\nAnd:\\n\\nMangalore Urban\\nDevelopment Authority\\nUrva Stores, Ashok Nagar,\\nMangalore 575 006.\\nPAN: AAALC0002E\\n\\n(By Mr.S.Parthasarathi, Advocate &\\nMrs.Sheetal Borkar, Advocate)\\n\\n Vs.\\n Mangalore Urban Development Authority\\n\\n 2/13\\n\\n This Income Tax Appeal is filed under Section 260-A of the\\nIncome Tax Act 1961, arising out of order dated 11/03/2015\\npassed in ITA No.695/Bang/2014, for the Assessment Year\\n2010-11 praying to decide the foregoing question of law and / or\\nsuch other questions of law as may be formulated by the Hon'ble\\nCourt as deemed fit and set aside the appellate order dated\\n11/03/2015 passed by the ITAT, `A' Bench, Bengaluru, in appeal\\nproceedings No. ITA No.695/Bang/2014 for Assessment Year\\n2010-11, as sought for in this appeal; and to grant such other\\nrelief as deemed fit, in the interest of justice.\\n\\n This Income Tax Appeal coming on for Admission, this day\\nS.Sujatha J. delivered the following:-\\n\\n JUDGMENT\\n Mr.Sanmathi E.I., Adv. for Appellants Revenue.\\nMr.S.Parthasarathi, Adv. & Mrs.Sheetal Borkar, Adv. for Respondent Assessee.\\n 1. Revenue has filed this appeal raising purported substantial questions of law under Section 260-A of the Income Tax Act, 1961 arising from the order of learned Tribunal dated 11.03.2015 in ITA No.695/BNG/2014 for the Assessment Year 2010-2011 - The Asst. Commissioner of Income-tax vs. Mangalore Urban Development Authority.\\n Vs.\\n Mangalore Urban Development Authority 3/13 2. The suggested substantial questions of law in the memo of appeal of Revenue are quoted below for ready reference:- \\\"1. Whether on the facts and in the circumstances of the case the Tribunal is right in holding that the assessee is eligible for carry forward of deficit of the assessee to the subsequent years when the income of a charitable or religious trust/institution is required to be computed by applying general commercial principles without referring to the regular provisions of Income Tax as contained under Chapter-IV and as such while arriving at the income of a charitable or religious trust/institution, various heads of income as contemplated under section 14 and specific provisions of computation of income under respective heads as envisaged under section 15 to 59 are not pressed into action?\\n 2. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in holding that the assessee is Vs.\\n Mangalore Urban Development Authority 4/13 entitled to carry forward of excess application without appreciating that the provisions of sections 70 to 80 of IT Act are not applicable to trusts as they only deal with carry forward and set off of loss and not excess expenditure or deficit?\\n 3. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in holding that assessee is entitled to claim depreciation on capital assets when it amounts to double deduction as the income of the assessee is already exempt and amended provisions of the Act also denies such claim for depreciation by Trust?\\\"\\n 3. The learned counsel for Revenue submits that the controversy raised in the present appeal is covered by a decision of this Court in ITA No.231/2018 (D.D 14.08.2018), in the case of Pr. Commissioner of Income- Tax (Exemptions) and Another vs. M/s Green Wood High Vs.\\n Mangalore Urban Development Authority 5/13 School. The relevant portion of the said order is extracted hereunder for ready reference: \\\"3. This Court in the case of `Commissioner of Income Tax-III, Pune v. Rajasthan & Gujarati Charitable Foundation Poona' [2018] 89 taxmann.com 127 [SC] with regard to allowability and Depreciation in the hands of Religious and Charitable Trust held as under: \\\"5. Learned Counsel at the Bar submitted that so far as the issue regarding claim of Depreciation under Section 32 of the Act is concerned, the controversy is no longer res integra, having been settled by the Hon'ble Supreme Court in the case of `Commissioner of Income Tax-III, Pune v. Rajasthan & Gujarati Charitable Foundation Poona' [2018] 89 taxmann.com 127 [SC], by which the Hon'ble Supreme Court has affirmed the view taken by the Bombay High Court in `Commissioner of Income Tax v.\\n Institute of Banking Personnel Vs.\\n Mangalore Urban Development Authority 6/13 Selection (IBPS)' [2003] 131 Taxman 386 [Bom.]. The relevant portion of the said Judgment of Bombay High Court as quoted by the Hon'ble Supreme Court and affirmed is quoted below for ready reference.\\n \\\"In the said judgment, [Bombay High Court] the contention of the Department predicated on double benefit was turned down in the following manner: 3. As stated above, the first question which requires consideration by this court is : whether depreciation was allowable on the assets, the cost of which has been fully allowed as application of income under section 11 in the past years? In the case of CIT v. Munisuvrat Jain 1994 Tax Law Reporter, 1084 the facts were as follows. The assessee was a Charitable Trust. It was registered Vs.\\n Mangalore Urban Development Authority 7/13 as a Public Charitable Trust. It was also registered with the Commissioner, Pune. The assessee derived income from the temple property which was a Trust property. During the course of assessment proceedings for assessment years 1977-78, 1978- 79 and 1979-80, the assessee claimed depreciation on the value of the building at the rate of 2.5 per cent and they also claimed depreciation on furniture at the rate of 5 per cent. The question which arose before the court for determination was: whether depreciation could be denied to the assessee, as expenditure on acquisition of the assets had been treated as application of income in the year of acquisition? It was held by the Bombay High Court that section 11 of the Income Tax Act makes provision in respect of Vs.\\n Mangalore Urban Development Authority 8/13 computation of income of the Trust from the properly held for charitable or religious purposes and it also provides for application and accumulation of income. On the other hand, section 28 of the Income Tax Act deals with chargeability of income from profits and gains of business and section 29 provides that income from profits and gains of business shall be computed in accordance with section 30 to section 43C, That, section 32(1) of the Act provides for depreciation in respect of building, plant and machinery owned by the assessee and used for the business purposes. It further provides for deduction subject to section 34. In that matter also, a similar argument, as in the present case, was advanced on behalf of the revenue, namely, that depreciation can be allowed as deduction only Vs.\\n Mangalore Urban Development Authority 9/13 under section 32 of the Income Tax Act and not under general principles. The court rejected this argument. It was held that normal depreciation can be considered as a legitimate deduction in computing the real income of the assessee on general principles or under section 11(1)(a) of the Income Tax Act. The court rejected the argument on behalf of the revenue that section 32 of the Income Tax Act was the only section granting benefit of deduction on account of depreciation. It was held that income of a Charitable Trust derived from building, plant and machinery and furniture was liable to be computed in normal commercial manner although the Trust may not be carrying on any business and the assets in respect whereof depreciation is claimed may not be business assets. In all Vs.\\n Mangalore Urban Development Authority 10/13 such cases, section 32 of the Income Tax Act providing for depreciation for computation of income derived from business or profession is not applicable.\\n However, the income of the Trust is required to be computed under section 11 on commercial principles after providing for allowance for normal depreciation and deduction thereof from gross income of the Trust. In view of the aforestated Judgment of the Bombay High Court, we answer question No. 1 in the affirmative i.e., in favour of the assessee and against the department.\\\"\\n xxxxxxx.....\\n 4. With regard to carrying forward of the losses for being set off against the income of the charitable trust for the present Assessment Year, the controversy is covered by the judgment in Vs.\\n Mangalore Urban Development Authority 11/13 Commissioner of Income Tax (Exemptions) and another Vs. Ohio University Christ College rendered on 17.07.2018 in ITA.No.312/2016 and ITA No.313/2016, in which this Court held as under: xxxxxxx.....\\n 18. In view of the aforesaid findings of the learned Tribunal, allowing any expenditure of the earlier year which has been brought forward and set off in the year under consideration, is a justified finding of fact based on the correct interpretation of law and the judgment relied upon by it rendered by the cognate Bench. Therefore, the same does not call for interference. A similar view was also taken by the Division Bench of Bombay High Court in Commissioner of Income- tax v. Institute of Banking (2003) 264 ITR 110, wherein the Division Bench of Bombay High Court held that the income derived from the trust property has also got to be computed on commercial Vs.\\n Mangalore Urban Development Authority 12/13 principles and if commercial principles are applied, then adjustment of expenses incurred by the trust for charitable and religious purposes in the earlier years against the income earned by the trust in the subsequent year will have to be regarded as application of income of the trust for charitable and religious purposes in the subsequent year.\\n xxxx....\\n In view of the controversy covered by the above decisions of this Court, we are of the opinion that the substantial question of law as suggested by the appellants does not now arise for our further consideration in the present appeal.\\\"\\n 4. In view of the aforesaid, we are of the opinion that no substantial question of law arises for our further consideration in the present case also.\\n Vs.\\n Mangalore Urban Development Authority 13/13 5. The appeal filed by the Revenue is accordingly dismissed in terms of the aforesaid judgments of this Court.\\n No costs.\\n Sd/- JUDGE Sd/- JUDGE dn/- \"\n}"}}},{"rowIdx":96,"cells":{"meta":{"kind":"string","value":"{\n \"group\": \"Tax\"\n}"},"annotations":{"kind":"list like","value":[{"result":[{"from_name":null,"id":"16bb346b6f714b6fa3b608ff523cc2ca","to_name":null,"type":null,"value":{"end":172,"labels":["PREAMBLE"],"start":0,"text":"$~10\n* IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n+ CS(OS) 153/2012\n\n NEW DELHI TELEVISION LIMITED ..... Plaintiff\n Through:"}},{"from_name":null,"id":"28c599eaa8f9461c88ba4befd76d4c23","to_name":null,"type":null,"value":{"end":202,"labels":["PREAMBLE"],"start":173,"text":"Mr. Abhinav Vasisht, Sr. Adv."}},{"from_name":null,"id":"7ad2e140e67b40ba8c3c883830d5bb6e","to_name":null,"type":null,"value":{"end":238,"labels":["PREAMBLE"],"start":203,"text":"with\n "}},{"from_name":null,"id":"548bc1aa43ef4d96bb22b08a1b3a7eb7","to_name":null,"type":null,"value":{"end":392,"labels":["PREAMBLE"],"start":238,"text":"Mr. Sarojanand Jha, Ms. Naina Dubey\n and Ms. Priya, Advs.\n\n Versus\n S.K. SRIVASTAVA"}},{"from_name":null,"id":"5cc3d5baa55c48f1aab47002cd1b3c1b","to_name":null,"type":null,"value":{"end":574,"labels":["PREAMBLE"],"start":432,"text":"..... Defendant\n Through: Mr. Om Prakash and Mr. Pradeep\n Kumar Tripathi,"}},{"from_name":null,"id":"2daf3b0827e84fe0b7ceec589d6cb162","to_name":null,"type":null,"value":{"end":657,"labels":["PREAMBLE"],"start":575,"text":"Advs.\n Ms. Sonali Negi, Adv. for Mr. Vishnu"}},{"from_name":null,"id":"4964725d5e0b4fc0bc91d6aba0f17f5a","to_name":null,"type":null,"value":{"end":730,"labels":["PREAMBLE"],"start":657,"text":"\n Sharma, Adv. for applicant in IA"}},{"from_name":null,"id":"555ca9d5f71e4e18b08c0ea343e91d41","to_name":null,"type":null,"value":{"end":784,"labels":["PREAMBLE"],"start":730,"text":"\n No.15018/2015"}},{"from_name":null,"id":"5752c377b5664b27b101f656db59430e","to_name":null,"type":null,"value":{"end":792,"labels":["PREAMBLE"],"start":784,"text":".\nCORAM:"}},{"from_name":null,"id":"c8fc69bec45a46b6a69d69bdc56ef5bd","to_name":null,"type":null,"value":{"end":872,"labels":["PREAMBLE"],"start":792,"text":"\nHON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW\n ORDER"}},{"from_name":null,"id":"c6ef43e5de504e4987486f335aa90ac1","to_name":null,"type":null,"value":{"end":968,"labels":["NONE"],"start":872,"text":"\n% 31.01.2018 IA No.1195/2012 (of plaintiff u/O XXXIX R-1&2 CPC)"}},{"from_name":null,"id":"cb3bda791d9c46ca9013ed2c57a2265e","to_name":null,"type":null,"value":{"end":1560,"labels":["FAC"],"start":968,"text":" 1. In this suit for recovery of damages (the senior counsel for the plaintiff states, for defamation) and for permanent injunction restraining the defendant from further publishing or causing to be published the defamatory contents with respect to the plaintiff, vide ex-parte ad-interim order dated 20th January, 2012 (which continues to be in force), the defendant was restrained from publishing/circulating any defamatory material, internet publication and material as contained in the application dated 24 th November, 2011 filed by the defendant before the Special Judge, New Delhi."}},{"from_name":null,"id":"1e7ca10e08b247528d88006f5dc64b06","to_name":null,"type":null,"value":{"end":2194,"labels":["ARG_PETITIONER"],"start":1560,"text":"\n 2. The senior counsel for the plaintiff has argued that (i) the defendant, at the time of filing of the suit, was working in the Income Tax Department (the counsel for the defendant states that the defendant is still working in the Income Tax Department); (ii) the defendant filed an application before the Court of Sh. O.P. Saini, Special Judge, containing defamatory content with respect to the plaintiff; (iii) the said application was dismissed; (iv) the defendant upholded the said application and/or contents thereof on the internet and also handed over copies of the same to various other news channels and news agencies."}},{"from_name":null,"id":"1db6db08782946ff9e60c05dfb425207","to_name":null,"type":null,"value":{"end":2409,"labels":["ISSUE"],"start":2194,"text":"\n3. I have asked the senior counsel for the plaintiff, how there can be defamation with respect to what is stated in the course of legal proceedings and whether not there is an absolute privilege in such matter."}},{"from_name":null,"id":"a52d12f0d4b541679f69948bf3965678","to_name":null,"type":null,"value":{"end":2530,"labels":["ARG_PETITIONER"],"start":2409,"text":"\n4. The senior counsel for the plaintiff states that the defendant has also uploaded the application on the internet."}},{"from_name":null,"id":"0eaf1c9d91c54cd2966894c35e1acb3f","to_name":null,"type":null,"value":{"end":2538,"labels":["ISSUE"],"start":2531,"text":"5. "}},{"from_name":null,"id":"0b42bdce6a9d431aa35305da8935878d","to_name":null,"type":null,"value":{"end":2847,"labels":["ISSUE"],"start":2538,"text":"I have further enquired from the senior counsel for the plaintiff, whether not in the concept of ‘Open Court’, the loading of the application as it is on the internet, without anything further, would also only be dissemination of what is stated/pleaded in the Court and covered by the concept of ‘Open Court’."}},{"from_name":null,"id":"93074e0d220e4173845e1925810907e6","to_name":null,"type":null,"value":{"end":3045,"labels":["ARG_PETITIONER"],"start":2847,"text":"\n6. The senior counsel for the plaintiff, on specific query, confirms that the defendant, outside the Court, has only circulated the application filed before the Court as it is and nothing more."}},{"from_name":null,"id":"b9d988e0ab644840acb04cb05f29cf3b","to_name":null,"type":null,"value":{"end":3053,"labels":["ARG_PETITIONER"],"start":3046,"text":"7. "}},{"from_name":null,"id":"ee311c3a3c9f475d8ce7dd2c71332d92","to_name":null,"type":null,"value":{"end":3213,"labels":["ARG_PETITIONER"],"start":3053,"text":"At this stage, the senior counsel for the plaintiff states that the defendant has also written and published articles with the same contents as the application."}},{"from_name":null,"id":"7361b169ccb54eb1ab5736cbf1af3c20","to_name":null,"type":null,"value":{"end":3290,"labels":["ANALYSIS"],"start":3213,"text":"\n8. These questions are left open for consideration at appropriate stage."}},{"from_name":null,"id":"ff92cd64526c4c53b78bc5f5570349b6","to_name":null,"type":null,"value":{"end":3489,"labels":["ISSUE"],"start":3290,"text":"\n9. I have also asked the senior counsel for the plaintiff, that nearly six years having lapsed since the institution of the suit, what is the last allegedly defamatory act done by the defendant."}},{"from_name":null,"id":"34e6d6428e664c50b116aada27f82476","to_name":null,"type":null,"value":{"end":3497,"labels":["ARG_PETITIONER"],"start":3490,"text":"10. "}},{"from_name":null,"id":"a8a1a09b0610480592c1873c38997dba","to_name":null,"type":null,"value":{"end":3677,"labels":["ARG_PETITIONER"],"start":3497,"text":"The senior counsel for the plaintiff states that the plaintiff is seeking a direction at this stage for removal of whatsoever was earlier uploaded by the defendant on the internet."}},{"from_name":null,"id":"f90ce25f5e3940188331e1514eae22c2","to_name":null,"type":null,"value":{"end":3685,"labels":["ANALYSIS"],"start":3678,"text":"11. "}},{"from_name":null,"id":"100a8a6a169b415c851f20641c4d4eeb","to_name":null,"type":null,"value":{"end":3740,"labels":["ANALYSIS"],"start":3685,"text":"Such a direction can be issued only at the final stage."}},{"from_name":null,"id":"45f282bb5daa4871b50a1ba77c53d9d7","to_name":null,"type":null,"value":{"end":3748,"labels":["RPC"],"start":3741,"text":"12. "}},{"from_name":null,"id":"effd1a0348d8473ea5b18b52e3ff5095","to_name":null,"type":null,"value":{"end":3956,"labels":["RPC"],"start":3748,"text":"Today, the application is disposed of by confirming the interim order dated 20th January, 2012 but by clarifying that the same will not come in the way of the defendant stating anything before any legal fora."}},{"from_name":null,"id":"dbe20217d0354c6589740c7c77656066","to_name":null,"type":null,"value":{"end":4005,"labels":["NONE"],"start":3956,"text":"\nIA No.765/2014 (of plaintiff u/O XXXIX R-2A CPC)"}},{"from_name":null,"id":"27aa313e01604fbea2544a90ea36a10d","to_name":null,"type":null,"value":{"end":4342,"labels":["ARG_PETITIONER"],"start":4006,"text":"13. The senior counsel for the plaintiff states that the defendant, inspite of the order dated 20th January, 2012, filed an application before the Disputes Resolution Panel under the Income Tax Act, 1961, with the same allegations as made in the application before Sh. O.P. Saini, Special Judge and which application stood dismissed."}},{"from_name":null,"id":"ea5e734f238048f7b71e511fe96be294","to_name":null,"type":null,"value":{"end":4466,"labels":["ARG_PETITIONER"],"start":4343,"text":"It is further contended that a writ petition filed by defendant on the same allegations also stood dismissed prior thereto."}},{"from_name":null,"id":"9f2636a8528648cdb2b8d6a0d16324e5","to_name":null,"type":null,"value":{"end":4635,"labels":["ARG_PETITIONER"],"start":4467,"text":"It is yet further argued, that the Disputes Resolution Panel also stated that it is not a judicial forum and dismissed the application filed by the defendant before it."}},{"from_name":null,"id":"8c31dd92a68c4fa9950f36de5ee581c4","to_name":null,"type":null,"value":{"end":4744,"labels":["ANALYSIS"],"start":4635,"text":"\n14. The order dated 20th January, 2012 does not restrain the defendant from approaching other legal fora."}},{"from_name":null,"id":"f3233de60d674b9faedd4c4c8c10f440","to_name":null,"type":null,"value":{"end":4847,"labels":["ANALYSIS"],"start":4745,"text":"Even otherwise, for approaching other legal fora, there can be no violation of the interim injunction."}},{"from_name":null,"id":"1d493c36b3444ab6b689ac1498b7723a","to_name":null,"type":null,"value":{"end":4992,"labels":["ANALYSIS"],"start":4848,"text":"Moreover, the injunction granted was conditional in the sense that the defendant was restrained from publishing/circulating defamatory material."}},{"from_name":null,"id":"699de7b33abe4da3901727357070edfe","to_name":null,"type":null,"value":{"end":5084,"labels":["ANALYSIS"],"start":4993,"text":"It is still to be determined in trial, whether the material published is defamatory or not."}},{"from_name":null,"id":"0734a53ca01d49a6be1088dfc45f1e84","to_name":null,"type":null,"value":{"end":5129,"labels":["RATIO"],"start":5084,"text":"\n15. There is no merit in the application."}},{"from_name":null,"id":"f7c4924b910c4dc8a2a6521cde8cf192","to_name":null,"type":null,"value":{"end":5147,"labels":["RPC"],"start":5129,"text":"\n16. Dismissed."}},{"from_name":null,"id":"7e23cad09dbb4c168e9b11e6c5886a2b","to_name":null,"type":null,"value":{"end":5194,"labels":["NONE"],"start":5147,"text":"\nIA No.4792/2014 (of defendant u/O VI R-17 CPC)"}},{"from_name":null,"id":"11a6694ff4dd4a4da1803d74173bd2e1","to_name":null,"type":null,"value":{"end":5411,"labels":["FAC"],"start":5194,"text":" 17. The senior counsel for the plaintiff, without prejudice to the rights and contentions of the plaintiff, has no objection to the application being allowed.\n18. Issues have not been framed in the suit as yet."}},{"from_name":null,"id":"81102cf3f39243d698757851be740cbb","to_name":null,"type":null,"value":{"end":5504,"labels":["RATIO"],"start":5412,"text":"The amendments sought are found to be necessary for determining the controversy in the suit."}},{"from_name":null,"id":"5eb6681b1a1e4ed9bbf004b0108c46b7","to_name":null,"type":null,"value":{"end":5536,"labels":["RPC"],"start":5504,"text":"\n19. Allowed and disposed of."}},{"from_name":null,"id":"50b05643718741208f91f9d6bc99e2c5","to_name":null,"type":null,"value":{"end":5584,"labels":["NONE"],"start":5536,"text":"\nIA No.4797/2014 (of defendant u/O VIII R-3 CPC)"}},{"from_name":null,"id":"50219632b35d448690a26ddbfc5018c1","to_name":null,"type":null,"value":{"end":5721,"labels":["RATIO"],"start":5584,"text":" 20. The additional documents sought to be filed are in support of the defence sought to be taken by way of amendment and are allowed."}},{"from_name":null,"id":"ee9b94166a074d42814792568dc74622","to_name":null,"type":null,"value":{"end":5760,"labels":["RPC"],"start":5721,"text":"\n21. The application is disposed of."}},{"from_name":null,"id":"1a187b231f994401ba4f276b365fa669","to_name":null,"type":null,"value":{"end":5815,"labels":["NONE"],"start":5760,"text":"\nIA No.15018/2015 (of Mr. S. Gurumurthy u/O I R-10 CPC)"}},{"from_name":null,"id":"3d47f55b8181499391f562147d290366","to_name":null,"type":null,"value":{"end":6000,"labels":["FAC"],"start":5816,"text":"22. Ms. Sonali Negi, Advocate appears for the applicant and states that Mr.\nVishnu Sharma, Advocate for the applicant is not available and she does not know anything about the case."}},{"from_name":null,"id":"7b51fd797a5f4992a61b5d3ec5d25071","to_name":null,"type":null,"value":{"end":6038,"labels":["RPC"],"start":6000,"text":"\n23. Dismissed for non-prosecution."}},{"from_name":null,"id":"ecc15699125842e0a742670c94361ba3","to_name":null,"type":null,"value":{"end":6061,"labels":["NONE"],"start":6038,"text":"\nCS(OS) No.153/2012 24."}},{"from_name":null,"id":"9ff532b8c9d24042a7c702496221f26b","to_name":null,"type":null,"value":{"end":6194,"labels":["FAC"],"start":6061,"text":" No amended written statement is stated to have been filed with the application for amendment which has been allowed as aforesaid."}},{"from_name":null,"id":"d2dcd46023d14962bc2d889eeb2150ab","to_name":null,"type":null,"value":{"end":6303,"labels":["RPC"],"start":6194,"text":"\n25. The same be filed on or before 7th February, 2018 with advance copy to the counsel for the plaintiff."}},{"from_name":null,"id":"cdbe896b53e1420db4aa4f6ab187189b","to_name":null,"type":null,"value":{"end":6434,"labels":["RPC"],"start":6304,"text":"If the amended written statement is not so filed, the right of the defendant to file amended written statement shall stand closed."}},{"from_name":null,"id":"7c8888861a6144ffb837b8103480180a","to_name":null,"type":null,"value":{"end":6547,"labels":["RPC"],"start":6434,"text":"\n26. Replication thereto, if any be filed within thirty days from the date of receipt of advance copy thereof."}},{"from_name":null,"id":"855335a875ed41e89147113b2adf5ac0","to_name":null,"type":null,"value":{"end":6664,"labels":["RPC"],"start":6547,"text":"\n27. The parties to file affidavits of admission/denial of each other’s documents before the next date of hearing."}},{"from_name":null,"id":"e15c10a6823c4cb0b36d5d520648e213","to_name":null,"type":null,"value":{"end":6818,"labels":["RPC"],"start":6664,"text":"\n28. The plaintiff is permitted to file additional documents along with its replication in response to the additional documents filed by the defendant."}},{"from_name":null,"id":"ef8a51dd1de245f28ce387a19d23b557","to_name":null,"type":null,"value":{"end":6880,"labels":["RPC"],"start":6818,"text":"\n29. List for framing of issues, if any on 27th July, 2018."}},{"from_name":null,"id":"47c1cfef42b04b328d2ede9e84441088","to_name":null,"type":null,"value":{"end":6926,"labels":["NONE"],"start":6880,"text":"\n RAJIV SAHAI ENDLAW, J.\nJANUARY 31, 2018 ‘bs’"}}]}],"string":"[\n {\n \"result\": [\n {\n \"from_name\": null,\n \"id\": \"16bb346b6f714b6fa3b608ff523cc2ca\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 172,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 0,\n \"text\": \"$~10\\n* IN THE HIGH COURT OF DELHI AT NEW DELHI\\n\\n+ CS(OS) 153/2012\\n\\n NEW DELHI TELEVISION LIMITED ..... Plaintiff\\n Through:\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"28c599eaa8f9461c88ba4befd76d4c23\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 202,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 173,\n \"text\": \"Mr. Abhinav Vasisht, Sr. Adv.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"7ad2e140e67b40ba8c3c883830d5bb6e\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 238,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 203,\n \"text\": \"with\\n \"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"548bc1aa43ef4d96bb22b08a1b3a7eb7\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 392,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 238,\n \"text\": \"Mr. Sarojanand Jha, Ms. Naina Dubey\\n and Ms. Priya, Advs.\\n\\n Versus\\n S.K. SRIVASTAVA\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"5cc3d5baa55c48f1aab47002cd1b3c1b\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 574,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 432,\n \"text\": \"..... Defendant\\n Through: Mr. Om Prakash and Mr. Pradeep\\n Kumar Tripathi,\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"2daf3b0827e84fe0b7ceec589d6cb162\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 657,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 575,\n \"text\": \"Advs.\\n Ms. Sonali Negi, Adv. for Mr. Vishnu\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"4964725d5e0b4fc0bc91d6aba0f17f5a\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 730,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 657,\n \"text\": \"\\n Sharma, Adv. for applicant in IA\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"555ca9d5f71e4e18b08c0ea343e91d41\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 784,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 730,\n \"text\": \"\\n No.15018/2015\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"5752c377b5664b27b101f656db59430e\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 792,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 784,\n \"text\": \".\\nCORAM:\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"c8fc69bec45a46b6a69d69bdc56ef5bd\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 872,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 792,\n \"text\": \"\\nHON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW\\n ORDER\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"c6ef43e5de504e4987486f335aa90ac1\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 968,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 872,\n \"text\": \"\\n% 31.01.2018 IA No.1195/2012 (of plaintiff u/O XXXIX R-1&2 CPC)\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"cb3bda791d9c46ca9013ed2c57a2265e\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 1560,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 968,\n \"text\": \" 1. In this suit for recovery of damages (the senior counsel for the plaintiff states, for defamation) and for permanent injunction restraining the defendant from further publishing or causing to be published the defamatory contents with respect to the plaintiff, vide ex-parte ad-interim order dated 20th January, 2012 (which continues to be in force), the defendant was restrained from publishing/circulating any defamatory material, internet publication and material as contained in the application dated 24 th November, 2011 filed by the defendant before the Special Judge, New Delhi.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"1e7ca10e08b247528d88006f5dc64b06\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 2194,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 1560,\n \"text\": \"\\n 2. The senior counsel for the plaintiff has argued that (i) the defendant, at the time of filing of the suit, was working in the Income Tax Department (the counsel for the defendant states that the defendant is still working in the Income Tax Department); (ii) the defendant filed an application before the Court of Sh. O.P. Saini, Special Judge, containing defamatory content with respect to the plaintiff; (iii) the said application was dismissed; (iv) the defendant upholded the said application and/or contents thereof on the internet and also handed over copies of the same to various other news channels and news agencies.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"1db6db08782946ff9e60c05dfb425207\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 2409,\n \"labels\": [\n \"ISSUE\"\n ],\n \"start\": 2194,\n \"text\": \"\\n3. I have asked the senior counsel for the plaintiff, how there can be defamation with respect to what is stated in the course of legal proceedings and whether not there is an absolute privilege in such matter.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"a52d12f0d4b541679f69948bf3965678\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 2530,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 2409,\n \"text\": \"\\n4. The senior counsel for the plaintiff states that the defendant has also uploaded the application on the internet.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"0eaf1c9d91c54cd2966894c35e1acb3f\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 2538,\n \"labels\": [\n \"ISSUE\"\n ],\n \"start\": 2531,\n \"text\": \"5. \"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"0b42bdce6a9d431aa35305da8935878d\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 2847,\n \"labels\": [\n \"ISSUE\"\n ],\n \"start\": 2538,\n \"text\": \"I have further enquired from the senior counsel for the plaintiff, whether not in the concept of ‘Open Court’, the loading of the application as it is on the internet, without anything further, would also only be dissemination of what is stated/pleaded in the Court and covered by the concept of ‘Open Court’.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"93074e0d220e4173845e1925810907e6\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 3045,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 2847,\n \"text\": \"\\n6. The senior counsel for the plaintiff, on specific query, confirms that the defendant, outside the Court, has only circulated the application filed before the Court as it is and nothing more.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"b9d988e0ab644840acb04cb05f29cf3b\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 3053,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 3046,\n \"text\": \"7. \"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"ee311c3a3c9f475d8ce7dd2c71332d92\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 3213,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 3053,\n \"text\": \"At this stage, the senior counsel for the plaintiff states that the defendant has also written and published articles with the same contents as the application.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"7361b169ccb54eb1ab5736cbf1af3c20\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 3290,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 3213,\n \"text\": \"\\n8. These questions are left open for consideration at appropriate stage.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"ff92cd64526c4c53b78bc5f5570349b6\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 3489,\n \"labels\": [\n \"ISSUE\"\n ],\n \"start\": 3290,\n \"text\": \"\\n9. I have also asked the senior counsel for the plaintiff, that nearly six years having lapsed since the institution of the suit, what is the last allegedly defamatory act done by the defendant.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"34e6d6428e664c50b116aada27f82476\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 3497,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 3490,\n \"text\": \"10. \"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"a8a1a09b0610480592c1873c38997dba\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 3677,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 3497,\n \"text\": \"The senior counsel for the plaintiff states that the plaintiff is seeking a direction at this stage for removal of whatsoever was earlier uploaded by the defendant on the internet.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"f90ce25f5e3940188331e1514eae22c2\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 3685,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 3678,\n \"text\": \"11. \"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"100a8a6a169b415c851f20641c4d4eeb\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 3740,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 3685,\n \"text\": \"Such a direction can be issued only at the final stage.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"45f282bb5daa4871b50a1ba77c53d9d7\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 3748,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 3741,\n \"text\": \"12. \"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"effd1a0348d8473ea5b18b52e3ff5095\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 3956,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 3748,\n \"text\": \"Today, the application is disposed of by confirming the interim order dated 20th January, 2012 but by clarifying that the same will not come in the way of the defendant stating anything before any legal fora.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"dbe20217d0354c6589740c7c77656066\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 4005,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 3956,\n \"text\": \"\\nIA No.765/2014 (of plaintiff u/O XXXIX R-2A CPC)\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"27aa313e01604fbea2544a90ea36a10d\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 4342,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 4006,\n \"text\": \"13. The senior counsel for the plaintiff states that the defendant, inspite of the order dated 20th January, 2012, filed an application before the Disputes Resolution Panel under the Income Tax Act, 1961, with the same allegations as made in the application before Sh. O.P. Saini, Special Judge and which application stood dismissed.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"ea5e734f238048f7b71e511fe96be294\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 4466,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 4343,\n \"text\": \"It is further contended that a writ petition filed by defendant on the same allegations also stood dismissed prior thereto.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"9f2636a8528648cdb2b8d6a0d16324e5\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 4635,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 4467,\n \"text\": \"It is yet further argued, that the Disputes Resolution Panel also stated that it is not a judicial forum and dismissed the application filed by the defendant before it.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"8c31dd92a68c4fa9950f36de5ee581c4\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 4744,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 4635,\n \"text\": \"\\n14. The order dated 20th January, 2012 does not restrain the defendant from approaching other legal fora.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"f3233de60d674b9faedd4c4c8c10f440\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 4847,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 4745,\n \"text\": \"Even otherwise, for approaching other legal fora, there can be no violation of the interim injunction.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"1d493c36b3444ab6b689ac1498b7723a\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 4992,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 4848,\n \"text\": \"Moreover, the injunction granted was conditional in the sense that the defendant was restrained from publishing/circulating defamatory material.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"699de7b33abe4da3901727357070edfe\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5084,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 4993,\n \"text\": \"It is still to be determined in trial, whether the material published is defamatory or not.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"0734a53ca01d49a6be1088dfc45f1e84\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5129,\n \"labels\": [\n \"RATIO\"\n ],\n \"start\": 5084,\n \"text\": \"\\n15. There is no merit in the application.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"f7c4924b910c4dc8a2a6521cde8cf192\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5147,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 5129,\n \"text\": \"\\n16. Dismissed.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"7e23cad09dbb4c168e9b11e6c5886a2b\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5194,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 5147,\n \"text\": \"\\nIA No.4792/2014 (of defendant u/O VI R-17 CPC)\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"11a6694ff4dd4a4da1803d74173bd2e1\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5411,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 5194,\n \"text\": \" 17. The senior counsel for the plaintiff, without prejudice to the rights and contentions of the plaintiff, has no objection to the application being allowed.\\n18. Issues have not been framed in the suit as yet.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"81102cf3f39243d698757851be740cbb\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5504,\n \"labels\": [\n \"RATIO\"\n ],\n \"start\": 5412,\n \"text\": \"The amendments sought are found to be necessary for determining the controversy in the suit.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"5eb6681b1a1e4ed9bbf004b0108c46b7\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5536,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 5504,\n \"text\": \"\\n19. Allowed and disposed of.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"50b05643718741208f91f9d6bc99e2c5\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5584,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 5536,\n \"text\": \"\\nIA No.4797/2014 (of defendant u/O VIII R-3 CPC)\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"50219632b35d448690a26ddbfc5018c1\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5721,\n \"labels\": [\n \"RATIO\"\n ],\n \"start\": 5584,\n \"text\": \" 20. The additional documents sought to be filed are in support of the defence sought to be taken by way of amendment and are allowed.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"ee9b94166a074d42814792568dc74622\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5760,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 5721,\n \"text\": \"\\n21. The application is disposed of.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"1a187b231f994401ba4f276b365fa669\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5815,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 5760,\n \"text\": \"\\nIA No.15018/2015 (of Mr. S. Gurumurthy u/O I R-10 CPC)\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"3d47f55b8181499391f562147d290366\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6000,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 5816,\n \"text\": \"22. Ms. Sonali Negi, Advocate appears for the applicant and states that Mr.\\nVishnu Sharma, Advocate for the applicant is not available and she does not know anything about the case.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"7b51fd797a5f4992a61b5d3ec5d25071\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6038,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 6000,\n \"text\": \"\\n23. Dismissed for non-prosecution.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"ecc15699125842e0a742670c94361ba3\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6061,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 6038,\n \"text\": \"\\nCS(OS) No.153/2012 24.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"9ff532b8c9d24042a7c702496221f26b\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6194,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 6061,\n \"text\": \" No amended written statement is stated to have been filed with the application for amendment which has been allowed as aforesaid.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"d2dcd46023d14962bc2d889eeb2150ab\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6303,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 6194,\n \"text\": \"\\n25. The same be filed on or before 7th February, 2018 with advance copy to the counsel for the plaintiff.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"cdbe896b53e1420db4aa4f6ab187189b\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6434,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 6304,\n \"text\": \"If the amended written statement is not so filed, the right of the defendant to file amended written statement shall stand closed.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"7c8888861a6144ffb837b8103480180a\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6547,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 6434,\n \"text\": \"\\n26. Replication thereto, if any be filed within thirty days from the date of receipt of advance copy thereof.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"855335a875ed41e89147113b2adf5ac0\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6664,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 6547,\n \"text\": \"\\n27. The parties to file affidavits of admission/denial of each other’s documents before the next date of hearing.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"e15c10a6823c4cb0b36d5d520648e213\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6818,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 6664,\n \"text\": \"\\n28. The plaintiff is permitted to file additional documents along with its replication in response to the additional documents filed by the defendant.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"ef8a51dd1de245f28ce387a19d23b557\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6880,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 6818,\n \"text\": \"\\n29. List for framing of issues, if any on 27th July, 2018.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"47c1cfef42b04b328d2ede9e84441088\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6926,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 6880,\n \"text\": \"\\n RAJIV SAHAI ENDLAW, J.\\nJANUARY 31, 2018 ‘bs’\"\n }\n }\n ]\n }\n]"},"id":{"kind":"number","value":4282,"string":"4,282"},"data":{"kind":"string","value":"{\n \"text\": \"$~10\\n* IN THE HIGH COURT OF DELHI AT NEW DELHI\\n\\n+ CS(OS) 153/2012\\n\\n NEW DELHI TELEVISION LIMITED ..... Plaintiff\\n Through: Mr. Abhinav Vasisht, Sr. Adv. with\\n Mr. Sarojanand Jha, Ms. Naina Dubey\\n and Ms. Priya, Advs.\\n\\n Versus\\n S.K. SRIVASTAVA ..... Defendant\\n Through: Mr. Om Prakash and Mr. Pradeep\\n Kumar Tripathi, Advs.\\n Ms. Sonali Negi, Adv. for Mr. Vishnu\\n Sharma, Adv. for applicant in IA\\n No.15018/2015.\\nCORAM:\\nHON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW\\n ORDER\\n% 31.01.2018 IA No.1195/2012 (of plaintiff u/O XXXIX R-1&2 CPC) 1. In this suit for recovery of damages (the senior counsel for the plaintiff states, for defamation) and for permanent injunction restraining the defendant from further publishing or causing to be published the defamatory contents with respect to the plaintiff, vide ex-parte ad-interim order dated 20th January, 2012 (which continues to be in force), the defendant was restrained from publishing/circulating any defamatory material, internet publication and material as contained in the application dated 24 th November, 2011 filed by the defendant before the Special Judge, New Delhi.\\n 2. The senior counsel for the plaintiff has argued that (i) the defendant, at the time of filing of the suit, was working in the Income Tax Department (the counsel for the defendant states that the defendant is still working in the Income Tax Department); (ii) the defendant filed an application before the Court of Sh. O.P. Saini, Special Judge, containing defamatory content with respect to the plaintiff; (iii) the said application was dismissed; (iv) the defendant upholded the said application and/or contents thereof on the internet and also handed over copies of the same to various other news channels and news agencies.\\n3. I have asked the senior counsel for the plaintiff, how there can be defamation with respect to what is stated in the course of legal proceedings and whether not there is an absolute privilege in such matter.\\n4. The senior counsel for the plaintiff states that the defendant has also uploaded the application on the internet.\\n5. I have further enquired from the senior counsel for the plaintiff, whether not in the concept of ‘Open Court’, the loading of the application as it is on the internet, without anything further, would also only be dissemination of what is stated/pleaded in the Court and covered by the concept of ‘Open Court’.\\n6. The senior counsel for the plaintiff, on specific query, confirms that the defendant, outside the Court, has only circulated the application filed before the Court as it is and nothing more.\\n7. At this stage, the senior counsel for the plaintiff states that the defendant has also written and published articles with the same contents as the application.\\n8. These questions are left open for consideration at appropriate stage.\\n9. I have also asked the senior counsel for the plaintiff, that nearly six years having lapsed since the institution of the suit, what is the last allegedly defamatory act done by the defendant.\\n10. The senior counsel for the plaintiff states that the plaintiff is seeking a direction at this stage for removal of whatsoever was earlier uploaded by the defendant on the internet.\\n11. Such a direction can be issued only at the final stage.\\n12. Today, the application is disposed of by confirming the interim order dated 20th January, 2012 but by clarifying that the same will not come in the way of the defendant stating anything before any legal fora.\\nIA No.765/2014 (of plaintiff u/O XXXIX R-2A CPC) 13. The senior counsel for the plaintiff states that the defendant, inspite of the order dated 20th January, 2012, filed an application before the Disputes Resolution Panel under the Income Tax Act, 1961, with the same allegations as made in the application before Sh. O.P. Saini, Special Judge and which application stood dismissed. It is further contended that a writ petition filed by defendant on the same allegations also stood dismissed prior thereto. It is yet further argued, that the Disputes Resolution Panel also stated that it is not a judicial forum and dismissed the application filed by the defendant before it.\\n14. The order dated 20th January, 2012 does not restrain the defendant from approaching other legal fora. Even otherwise, for approaching other legal fora, there can be no violation of the interim injunction. Moreover, the injunction granted was conditional in the sense that the defendant was restrained from publishing/circulating defamatory material. It is still to be determined in trial, whether the material published is defamatory or not.\\n15. There is no merit in the application.\\n16. Dismissed.\\nIA No.4792/2014 (of defendant u/O VI R-17 CPC) 17. The senior counsel for the plaintiff, without prejudice to the rights and contentions of the plaintiff, has no objection to the application being allowed.\\n18. Issues have not been framed in the suit as yet. The amendments sought are found to be necessary for determining the controversy in the suit.\\n19. Allowed and disposed of.\\nIA No.4797/2014 (of defendant u/O VIII R-3 CPC) 20. The additional documents sought to be filed are in support of the defence sought to be taken by way of amendment and are allowed.\\n21. The application is disposed of.\\nIA No.15018/2015 (of Mr. S. Gurumurthy u/O I R-10 CPC) 22. Ms. Sonali Negi, Advocate appears for the applicant and states that Mr.\\nVishnu Sharma, Advocate for the applicant is not available and she does not know anything about the case.\\n23. Dismissed for non-prosecution.\\nCS(OS) No.153/2012 24. No amended written statement is stated to have been filed with the application for amendment which has been allowed as aforesaid.\\n25. The same be filed on or before 7th February, 2018 with advance copy to the counsel for the plaintiff. If the amended written statement is not so filed, the right of the defendant to file amended written statement shall stand closed.\\n26. Replication thereto, if any be filed within thirty days from the date of receipt of advance copy thereof.\\n27. The parties to file affidavits of admission/denial of each other’s documents before the next date of hearing.\\n28. The plaintiff is permitted to file additional documents along with its replication in response to the additional documents filed by the defendant.\\n29. List for framing of issues, if any on 27th July, 2018.\\n RAJIV SAHAI ENDLAW, J.\\nJANUARY 31, 2018 ‘bs’ \"\n}"}}},{"rowIdx":97,"cells":{"meta":{"kind":"string","value":"{\n \"group\": \"Criminal\"\n}"},"annotations":{"kind":"list like","value":[{"result":[{"from_name":null,"id":"9b9a14ea25424ce7b8fc6b83e427fb64","to_name":null,"type":null,"value":{"end":119,"labels":["PREAMBLE"],"start":0,"text":"IN THE COURT OF THE JUDICIAL MAGISTRATE FIRST CLASS-III,\n\n MYSORE\n\n "}},{"from_name":null,"id":"589938fe157b45e4b2ddad3098ad4d3f","to_name":null,"type":null,"value":{"end":156,"labels":["PREAMBLE"],"start":119,"text":"Dated this the 10th day of April 2008"}},{"from_name":null,"id":"2665b49951e84cb2a88a13fdb033df5a","to_name":null,"type":null,"value":{"end":557,"labels":["PREAMBLE"],"start":158,"text":"PRESENT : Smt. Vineetha P Shetty, B.Sc., LL.B.,\n\n III JMFC., Mysore.\n\n C.C. No.1021/2007\n\nComplainant: State by Nazarbad Police.\n\n (By Asst. Public Prosecutor.)\n Vs.\n\nAccused: 1. Ummar S/o Yasin Sab, 40\n years, No.6, `C' Block, Gowsiya\n Nagar, 9th Cross, Masjid Road,\n Mysore.\n\n 2."}},{"from_name":null,"id":"ee07b746ce6242fd9f10358dcc2cbdcf","to_name":null,"type":null,"value":{"end":628,"labels":["PREAMBLE"],"start":558,"text":"Althaf, S/o Abdul Ameed Khan,\n 33 years, behind Beedi"}},{"from_name":null,"id":"0ec0526e90344cbf94e1f10c9530358b","to_name":null,"type":null,"value":{"end":697,"labels":["PREAMBLE"],"start":628,"text":"\n Quarters, Gowsiya Nagar,\n Mysore."}},{"from_name":null,"id":"09220b17749f44cca099540ce38551ac","to_name":null,"type":null,"value":{"end":808,"labels":["PREAMBLE"],"start":710,"text":"3. Akram @ Syed Akram, S/o\n Syed Apeez, 28 years, Revenue\n Site,"}},{"from_name":null,"id":"2390f0ce9ab5435396af68340e94070f","to_name":null,"type":null,"value":{"end":830,"labels":["PREAMBLE"],"start":809,"text":"Gowsiya Nagar, Mysore"}},{"from_name":null,"id":"b4ae16267e404d12814eadab899f74de","to_name":null,"type":null,"value":{"end":973,"labels":["PREAMBLE"],"start":843,"text":"(By Sri C M Jagadeesh\n Advocate for A-1 and A-2 and\n A-3 is in J.C.)\n\n JUDGMENT"}},{"from_name":null,"id":"74d8059623454fb3922d63a84ca295ca","to_name":null,"type":null,"value":{"end":984,"labels":["FAC"],"start":973,"text":"\n Sub"}},{"from_name":null,"id":"9ba8d737fba0445c8ca49c7665050460","to_name":null,"type":null,"value":{"end":1204,"labels":["FAC"],"start":984,"text":"-Inspector of Police attached to Nazarbad Police Station has filed the charge-sheet against the accused no.1 to 3 for the offences punishable under section 86 Karnataka Forest Act read with section 379 Indian Penal Code."}},{"from_name":null,"id":"4397147db2224a99b0eaa43faf82f09a","to_name":null,"type":null,"value":{"end":1587,"labels":["FAC"],"start":1206,"text":"2. The case of prosecution in brief is that on 20/21.11.1999, in between 11.00 p.m. to 6.00 a.m., accused committed theft of sandal wood from the bungalow of CW2 Bagi B Menon situated on Lalithmahal Road within the jurisdiction of Nazarbad Police Station, and committed the offence punishable under section 86 of Karnataka Forest Act read with section 379 of Indian Penal Code.\n 3."}},{"from_name":null,"id":"3007e676405b4954a49e21472744e03e","to_name":null,"type":null,"value":{"end":1643,"labels":["FAC"],"start":1588,"text":"After submission of charge-sheet, cognizance was taken."}},{"from_name":null,"id":"b92f369a300d462f9164eb5437dd957f","to_name":null,"type":null,"value":{"end":1678,"labels":["FAC"],"start":1643,"text":"\n Accused no.1 and 2 are on bail."}},{"from_name":null,"id":"c6a0873ec1574c3398195652ca93b9d3","to_name":null,"type":null,"value":{"end":1715,"labels":["FAC"],"start":1679,"text":"Accused no.3 is in judicial custody."}},{"from_name":null,"id":"ed9946a035344880a213fa007a41db41","to_name":null,"type":null,"value":{"end":1760,"labels":["FAC"],"start":1716,"text":"They engaged the advocate for their defence."}},{"from_name":null,"id":"ec12aa7a988c47e5b255cf9ce4bbdac8","to_name":null,"type":null,"value":{"end":1815,"labels":["FAC"],"start":1761,"text":"The copies of the charge-sheet were furnished to them."}},{"from_name":null,"id":"b37d3d9fdd554e2fb9f0628ca34a2b4d","to_name":null,"type":null,"value":{"end":1949,"labels":["FAC"],"start":1816,"text":"Since the offences under Forest Act are triable by the Court of Sessions, this case was transferred to the Hon'ble Court of Sessions."}},{"from_name":null,"id":"018ac0b80f6f45118cf2a1ea6e41aa37","to_name":null,"type":null,"value":{"end":2098,"labels":["FAC"],"start":1950,"text":"The Hon'ble Fast Track Court-III, Mysore, vide order in S.C.No.265/2007 transferred this case to this Court for its disposal in accordance with law."}},{"from_name":null,"id":"875091af963646fab302e47fceafbb33","to_name":null,"type":null,"value":{"end":2264,"labels":["FAC"],"start":2099,"text":"Thereafter, after hearing both sides, charge for the above offence was framed, readover and explained, for which, accused pleaded not guilty and claimed to be tried."}},{"from_name":null,"id":"bc22504b7dd644bebd77d45360749c53","to_name":null,"type":null,"value":{"end":2420,"labels":["FAC"],"start":2265,"text":"On behalf of the prosecution, PWs 1 and 2 are examined and Exhibits P.1 to 9, Ex.P.1(a), Ex.P.6(a), Ex.P.7(a), Ex.P.8(a), Ex.P.9(a) and also MO1 is marked."}},{"from_name":null,"id":"02f68bd90a024baeabaf174252876ce3","to_name":null,"type":null,"value":{"end":2428,"labels":["FAC"],"start":2421,"text":"Accused"}},{"from_name":null,"id":"6076ccaa575148d0b87f61244d7a8597","to_name":null,"type":null,"value":{"end":2484,"labels":["FAC"],"start":2429,"text":"are examined under section 313 Criminal Procedure Code."}},{"from_name":null,"id":"d51e04dd50934285a44288571d50cd48","to_name":null,"type":null,"value":{"end":2543,"labels":["FAC"],"start":2485,"text":"They have denied the evidence which appeared against them."}},{"from_name":null,"id":"656fdd53badd4302bc6096398199eeed","to_name":null,"type":null,"value":{"end":2643,"labels":["FAC"],"start":2544,"text":"Heard the arguments addressed by the learned APP for the State and learned counsel for the accused."}},{"from_name":null,"id":"83c4b40acd874f148d1b7f57ac829fd5","to_name":null,"type":null,"value":{"end":2696,"labels":["ISSUE"],"start":2643,"text":"\n 4. The following points arise for determination: 1."}},{"from_name":null,"id":"0f0bec9d9f74401c8b5adbccb68c4d16","to_name":null,"type":null,"value":{"end":2945,"labels":["ISSUE"],"start":2697,"text":"Whether the prosecution proves that on 20/21.11.1999, in between 11.00 p.m. to 6.00 a.m., accused committed theft of sandal wood from the bungalow of CW2 Bagi B Menon, situated on Lalithmahal Road within the jurisdiction of Nazarbad Police Station?"}},{"from_name":null,"id":"8fdad9c55e6547a6837c947d1800399a","to_name":null,"type":null,"value":{"end":2961,"labels":["ISSUE"],"start":2945,"text":"\n 2. What order?"}},{"from_name":null,"id":"86ee2e9615d1401a99e1ad57ada8dc07","to_name":null,"type":null,"value":{"end":3099,"labels":["ANALYSIS"],"start":2961,"text":"\n 5. My findings on the above points are; Point No.1: In the Negative Point No.2: As per final order for the following; R E A S O N S 6."}},{"from_name":null,"id":"5981dedb808a455287a430f187382887","to_name":null,"type":null,"value":{"end":3186,"labels":["ANALYSIS"],"start":3100,"text":"Points No.1: The prosecution in order to prove its case has examined only 2 witnesses."}},{"from_name":null,"id":"af8d363612c349f3aef4f7d834284bae","to_name":null,"type":null,"value":{"end":3276,"labels":["ANALYSIS"],"start":3187,"text":"PW1 Ankaiah was working as the Sub-Inspector of Police, C.C.B. Wing at the relevant time."}},{"from_name":null,"id":"8c9eeb31eed24bc59e7bab15e41ab54f","to_name":null,"type":null,"value":{"end":3719,"labels":["ANALYSIS"],"start":3276,"text":"\n He has deposed that on 12.12.1999, he along with his staff Jayasheelan and Mahadeva were appointed for tracing the accused and property in Crime No.74/99 and accordingly, he along with his staff was on raid near Mandi Mohalla and Bamboo Bazaar, Mysore and when they reached near Handihall, Yadavagiri, accused who were present at the spot, on seeing the police tried to run away from the place and therefore, they caught hold of the accused."}},{"from_name":null,"id":"3cedfbed1e9544a1b1da585191882daa","to_name":null,"type":null,"value":{"end":3817,"labels":["ANALYSIS"],"start":3720,"text":"He found two pieces of seesaw, a chopper and a gunny-bag with them and seized the same from them."}},{"from_name":null,"id":"38342992ff174324815aaaea786aba49","to_name":null,"type":null,"value":{"end":3959,"labels":["ANALYSIS"],"start":3818,"text":"Thereafter, he brought the accused and seized properties to C.C.B. Office and submitted a report, true copy of which is marked as per Ex.P.2."}},{"from_name":null,"id":"67b2de836fad44f7bcf2b6b83c375f49","to_name":null,"type":null,"value":{"end":4010,"labels":["ANALYSIS"],"start":3960,"text":"The true copy of seizure mahazar is as per Ex.P.1."}},{"from_name":null,"id":"40712798f71d4155b1a193b175d8c28f","to_name":null,"type":null,"value":{"end":4126,"labels":["ANALYSIS"],"start":4010,"text":"\nIt is in his evidence that he recorded the voluntary statement of accusedno.1 to 3 as per Ex.P.3 to 5 respectively."}},{"from_name":null,"id":"e90c2d4330c44bb586d851aca83da256","to_name":null,"type":null,"value":{"end":4488,"labels":["ANALYSIS"],"start":4127,"text":"He has deposed that accused informed him that they have kept the sandal wood tree, sandal chips and billets in an old house situated Rajiv Nagara, and therefore, he went to the house situated at II Stage, 6th Cross, Rajiv Nagar and seized 9 sandal wood billets and sandal wood chips kept in a plastic bag in the presence of panchas namely Chand and Anwar Pasha."}},{"from_name":null,"id":"6111fc15520d4281b90d2d1ba57d11c7","to_name":null,"type":null,"value":{"end":4652,"labels":["ANALYSIS"],"start":4489,"text":"However, he has specifically stated that the sandal wood chips and 9 billets seized at the instance of voluntary statement of accused are not related to this case."}},{"from_name":null,"id":"f37f6d151a3a42a9bcc6c02eadc9053c","to_name":null,"type":null,"value":{"end":4759,"labels":["ANALYSIS"],"start":4653,"text":"The relevant portion in his evidence reads \" UAzsz ZP v 9 vAqU F PgtP AAgĪŢ\".\n 7. During cross-examination"}},{"from_name":null,"id":"cc7842f0c7f8421590710636efa2fcd9","to_name":null,"type":null,"value":{"end":4972,"labels":["ANALYSIS"],"start":4759,"text":", suggestion was posed to him that accused were brought from their house and false case has been lodged against them and no sandalwood tree, sandal chips and sandal billets whatsoever were seized from the accused."}},{"from_name":null,"id":"d2231c12b848444aad9842ca84a56359","to_name":null,"type":null,"value":{"end":5163,"labels":["ANALYSIS"],"start":4973,"text":"PW1 has admitted that he has nor made any mark on the properties seized and that he has not obtained the signatures of the panchas on a slip required to be pasted upon the properties seized."}},{"from_name":null,"id":"bd0c8375e18e4960aaff162b4124b0df","to_name":null,"type":null,"value":{"end":5268,"labels":["ANALYSIS"],"start":5165,"text":"8. PW2 Kunjappa is the Sub-Inspector of Police working at Nazarbad Police Station at the relevant time."}},{"from_name":null,"id":"ea9f8320d35d41f3a9d1b7bf66907450","to_name":null,"type":null,"value":{"end":5467,"labels":["ANALYSIS"],"start":5269,"text":"He deposed that on 22.11.1999, at 4.05 p.m., he received the complaint as per Ex.P.6 from one Puttaraju and registered the case and submitted first information report to the Court as per Ex.P.7.\n "}},{"from_name":null,"id":"2b21d50998b040fe821c1bc5e45f619d","to_name":null,"type":null,"value":{"end":5523,"labels":["ANALYSIS"],"start":5467,"text":"Thereafter, he conducted the spot mahazar as per Ex.P.8."}},{"from_name":null,"id":"5282351a57d74b26a873892c7218b350","to_name":null,"type":null,"value":{"end":5713,"labels":["ANALYSIS"],"start":5524,"text":"It is in his evidence that at the time of spot mahazar, it was found that the sandal wood tree measuring 52\" x12\" was cut and the said tree was situated behind the house of one Bagin Menon."}},{"from_name":null,"id":"e96fecd912e6482f930aa082e762bed7","to_name":null,"type":null,"value":{"end":5814,"labels":["ANALYSIS"],"start":5714,"text":"He deposed that he cut the tree into two pieces with the help of coolie workers and seized the same."}},{"from_name":null,"id":"42c5b9992be84a10a056e2a0561d3dbe","to_name":null,"type":null,"value":{"end":5870,"labels":["ANALYSIS"],"start":5815,"text":"He identified the two pieces of sandal wood as per MO1."}},{"from_name":null,"id":"b8a966125baf4625bcf86e3dea937f8f","to_name":null,"type":null,"value":{"end":5952,"labels":["ANALYSIS"],"start":5871,"text":"He has deposed that complainant and one Ramu signed the spot cum seizure mahazar."}},{"from_name":null,"id":"db4d5e83b9f6423f85636fd116f74b4c","to_name":null,"type":null,"value":{"end":6044,"labels":["ANALYSIS"],"start":5953,"text":"He sent the sandal wood to the Conservator of Forest and received the report as per Ex.P.9."}},{"from_name":null,"id":"cb8f6466088e4572887623d7654c9a4b","to_name":null,"type":null,"value":{"end":6126,"labels":["ANALYSIS"],"start":6045,"text":"He filed the charge-sheet after completion of investigation by the C.C.B.\npolice."}},{"from_name":null,"id":"d761711c82af446f8943ee1a031b33ac","to_name":null,"type":null,"value":{"end":6234,"labels":["ANALYSIS"],"start":6127,"text":"Suggestion posed to him that spot cum seizure mahazar was prepared in the Police Station was denied by him."}},{"from_name":null,"id":"e04cd982bc9b46308ed97d3a392abee8","to_name":null,"type":null,"value":{"end":6363,"labels":["ANALYSIS"],"start":6236,"text":"9. Inspite of issuance of repeated warrants, prosecution has not secured the presence of remaining witnesses to prove its case."}},{"from_name":null,"id":"3034d58a28944384be0648ec8518143f","to_name":null,"type":null,"value":{"end":6506,"labels":["ANALYSIS"],"start":6364,"text":"On appreciation of entire evidence on record, it is seen that seizure of MO1 at the instance of accused is not proved beyond reasonable doubt."}},{"from_name":null,"id":"3f94f10c0fee490e984704934963964a","to_name":null,"type":null,"value":{"end":6577,"labels":["ANALYSIS"],"start":6507,"text":"PW1 has not stated anything about MO1 though PW2 has spoken about MO1."}},{"from_name":null,"id":"67b202c7405c49c4ba828a870b39ced2","to_name":null,"type":null,"value":{"end":6729,"labels":["ANALYSIS"],"start":6578,"text":"Evidence of PW2 would clearly show that he seized MO1 from the spot at the time of spot cum seizure mahazar and not from the possession of the accused."}},{"from_name":null,"id":"d27fef9380244977abc6ddaa88a113c1","to_name":null,"type":null,"value":{"end":6822,"labels":["ANALYSIS"],"start":6730,"text":"Absolutely, there is no evidence to show that MO1 was seized at the instance of the accused."}},{"from_name":null,"id":"02213215735f41779b2149f522101df5","to_name":null,"type":null,"value":{"end":6923,"labels":["RATIO"],"start":6826,"text":"As such, there is no connection whatsoever with the property seized in this case and the accused."}},{"from_name":null,"id":"f33935126db0443cb439cc6b1543f49b","to_name":null,"type":null,"value":{"end":7015,"labels":["RATIO"],"start":6924,"text":"Non- examination of spot cum seizure mahazar witnesses is fatal to the case of prosecution."}},{"from_name":null,"id":"2943c4ec14b84f1ab549a4a304e40480","to_name":null,"type":null,"value":{"end":7124,"labels":["RATIO"],"start":7016,"text":"The evidence placed by the prosecution is not sufficient to hold the accused guilty of the alleged offences."}},{"from_name":null,"id":"49a303383c454abbbf81c90191a9d7e4","to_name":null,"type":null,"value":{"end":7398,"labels":["RPC"],"start":7126,"text":"10. In the circumstances and for the reasons stated above, I hold that the prosecution has failed to bring home the guilt of accused no.1 to 3 beyond reasonable doubt for the offence punishable under section 86 Karnataka Forest Act read with section 379 Indian Penal Code."}},{"from_name":null,"id":"10e7337b0b214997be45be9501d20dcc","to_name":null,"type":null,"value":{"end":7446,"labels":["RPC"],"start":7399,"text":"Therefore, I answer point no.1 in the negative."}},{"from_name":null,"id":"dac13883c5474bdf8a03b8cb9eb89115","to_name":null,"type":null,"value":{"end":7462,"labels":["RPC"],"start":7446,"text":"\n 11. Point No.2"}},{"from_name":null,"id":"d79217a750e9427c93c004ec2c38048b","to_name":null,"type":null,"value":{"end":7722,"labels":["RPC"],"start":7463,"text":": In the result, I proceed to pass the following; O R D E R Under section 248(1) Criminal Procedure Code, accused 1 to 3 are acquitted of the offence punishable under section 86 Karnataka Forest Act read with section 379 Indian Penal Code.\n "}},{"from_name":null,"id":"5c8625ea25e849758c371b61e0e0882d","to_name":null,"type":null,"value":{"end":7777,"labels":["RPC"],"start":7722,"text":"Bail bond of accused no.1 and 2 shall stand discharged."}},{"from_name":null,"id":"9e13acab41d14967b3f7329b9b1b8c6e","to_name":null,"type":null,"value":{"end":7899,"labels":["RPC"],"start":7777,"text":"\n Accusedno.3 shall be set at liberty forthwith, if he is not required to be produced in any other case."}},{"from_name":null,"id":"0075361b85e44f8eab2511deda72e256","to_name":null,"type":null,"value":{"end":8001,"labels":["RPC"],"start":7899,"text":"\n MO1 is ordered to be returned to the Forest Officer attached to Government Sandal Wood Koti, Mysore."}},{"from_name":null,"id":"e138e7d086ed43e38950f06e40d91704","to_name":null,"type":null,"value":{"end":8107,"labels":["RPC"],"start":8002,"text":"However, the order regarding disposal of MO1 shall be given in to effect after the appeal period is over."}},{"from_name":null,"id":"a0552af56af843228e2e11d529be7b2e","to_name":null,"type":null,"value":{"end":8225,"labels":["NONE"],"start":8108,"text":"(Dictated to the Stenographer typed script corrected and the same is pronounced by me in the open Court on 10.4.2008)"}},{"from_name":null,"id":"767f45d8c3fa4680868e49fae145ff9f","to_name":null,"type":null,"value":{"end":8265,"labels":["NONE"],"start":8226,"text":"(VINEETHA P SHETTY), III JMFC., Mysore."}},{"from_name":null,"id":"3a3206df88d74c159d4a42c666291657","to_name":null,"type":null,"value":{"end":8275,"labels":["NONE"],"start":8267,"text":"ANNEXURE"}},{"from_name":null,"id":"8f5f90bcd60d411d9c083ba2948b413d","to_name":null,"type":null,"value":{"end":8881,"labels":["NONE"],"start":8276,"text":"Witnesses examined for the prosecution: PW1 : Ankaia PW2 : Kunjappa Documents marked for the prosecution: Ex.P1 : Mahazar copy Ex.P.1(a): Signature of PW1 Ex.P2 : Report Ex.P3 : Voluntary statement of the accused Ex.P.4 : Voluntary statement of the accused Ex.P.5 : Voluntary statement of the accused Ex.P.6 : Complaint Ex.P.6(a): Signature of PW2 Ex.P.7 : First Information Report Ex.P.7(a): Signature of PW2 Ex.P.8 : Seizure mahazar Ex.P.8(a): Signature of PW2 Ex.P.9: Report Ex.P.9(a): Signature of PW2 List of Material Objects marked: MO 1 : 2 Sandal wood pieces (VINEETHA P SHETTY), III JMFC., Mysore"}}]}],"string":"[\n {\n \"result\": [\n {\n \"from_name\": null,\n \"id\": \"9b9a14ea25424ce7b8fc6b83e427fb64\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 119,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 0,\n \"text\": \"IN THE COURT OF THE JUDICIAL MAGISTRATE FIRST CLASS-III,\\n\\n MYSORE\\n\\n \"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"589938fe157b45e4b2ddad3098ad4d3f\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 156,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 119,\n \"text\": \"Dated this the 10th day of April 2008\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"2665b49951e84cb2a88a13fdb033df5a\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 557,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 158,\n \"text\": \"PRESENT : Smt. Vineetha P Shetty, B.Sc., LL.B.,\\n\\n III JMFC., Mysore.\\n\\n C.C. No.1021/2007\\n\\nComplainant: State by Nazarbad Police.\\n\\n (By Asst. Public Prosecutor.)\\n Vs.\\n\\nAccused: 1. Ummar S/o Yasin Sab, 40\\n years, No.6, `C' Block, Gowsiya\\n Nagar, 9th Cross, Masjid Road,\\n Mysore.\\n\\n 2.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"ee07b746ce6242fd9f10358dcc2cbdcf\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 628,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 558,\n \"text\": \"Althaf, S/o Abdul Ameed Khan,\\n 33 years, behind Beedi\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"0ec0526e90344cbf94e1f10c9530358b\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 697,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 628,\n \"text\": \"\\n Quarters, Gowsiya Nagar,\\n Mysore.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"09220b17749f44cca099540ce38551ac\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 808,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 710,\n \"text\": \"3. Akram @ Syed Akram, S/o\\n Syed Apeez, 28 years, Revenue\\n Site,\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"2390f0ce9ab5435396af68340e94070f\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 830,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 809,\n \"text\": \"Gowsiya Nagar, Mysore\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"b4ae16267e404d12814eadab899f74de\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 973,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 843,\n \"text\": \"(By Sri C M Jagadeesh\\n Advocate for A-1 and A-2 and\\n A-3 is in J.C.)\\n\\n JUDGMENT\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"74d8059623454fb3922d63a84ca295ca\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 984,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 973,\n \"text\": \"\\n Sub\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"9ba8d737fba0445c8ca49c7665050460\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 1204,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 984,\n \"text\": \"-Inspector of Police attached to Nazarbad Police Station has filed the charge-sheet against the accused no.1 to 3 for the offences punishable under section 86 Karnataka Forest Act read with section 379 Indian Penal Code.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"4397147db2224a99b0eaa43faf82f09a\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 1587,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 1206,\n \"text\": \"2. The case of prosecution in brief is that on 20/21.11.1999, in between 11.00 p.m. to 6.00 a.m., accused committed theft of sandal wood from the bungalow of CW2 Bagi B Menon situated on Lalithmahal Road within the jurisdiction of Nazarbad Police Station, and committed the offence punishable under section 86 of Karnataka Forest Act read with section 379 of Indian Penal Code.\\n 3.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"3007e676405b4954a49e21472744e03e\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 1643,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 1588,\n \"text\": \"After submission of charge-sheet, cognizance was taken.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"b92f369a300d462f9164eb5437dd957f\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 1678,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 1643,\n \"text\": \"\\n Accused no.1 and 2 are on bail.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"c6a0873ec1574c3398195652ca93b9d3\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 1715,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 1679,\n \"text\": \"Accused no.3 is in judicial custody.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"ed9946a035344880a213fa007a41db41\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 1760,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 1716,\n \"text\": \"They engaged the advocate for their defence.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"ec12aa7a988c47e5b255cf9ce4bbdac8\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 1815,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 1761,\n \"text\": \"The copies of the charge-sheet were furnished to them.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"b37d3d9fdd554e2fb9f0628ca34a2b4d\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 1949,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 1816,\n \"text\": \"Since the offences under Forest Act are triable by the Court of Sessions, this case was transferred to the Hon'ble Court of Sessions.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"018ac0b80f6f45118cf2a1ea6e41aa37\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 2098,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 1950,\n \"text\": \"The Hon'ble Fast Track Court-III, Mysore, vide order in S.C.No.265/2007 transferred this case to this Court for its disposal in accordance with law.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"875091af963646fab302e47fceafbb33\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 2264,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 2099,\n \"text\": \"Thereafter, after hearing both sides, charge for the above offence was framed, readover and explained, for which, accused pleaded not guilty and claimed to be tried.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"bc22504b7dd644bebd77d45360749c53\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 2420,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 2265,\n \"text\": \"On behalf of the prosecution, PWs 1 and 2 are examined and Exhibits P.1 to 9, Ex.P.1(a), Ex.P.6(a), Ex.P.7(a), Ex.P.8(a), Ex.P.9(a) and also MO1 is marked.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"02f68bd90a024baeabaf174252876ce3\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 2428,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 2421,\n \"text\": \"Accused\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"6076ccaa575148d0b87f61244d7a8597\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 2484,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 2429,\n \"text\": \"are examined under section 313 Criminal Procedure Code.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"d51e04dd50934285a44288571d50cd48\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 2543,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 2485,\n \"text\": \"They have denied the evidence which appeared against them.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"656fdd53badd4302bc6096398199eeed\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 2643,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 2544,\n \"text\": \"Heard the arguments addressed by the learned APP for the State and learned counsel for the accused.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"83c4b40acd874f148d1b7f57ac829fd5\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 2696,\n \"labels\": [\n \"ISSUE\"\n ],\n \"start\": 2643,\n \"text\": \"\\n 4. The following points arise for determination: 1.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"0f0bec9d9f74401c8b5adbccb68c4d16\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 2945,\n \"labels\": [\n \"ISSUE\"\n ],\n \"start\": 2697,\n \"text\": \"Whether the prosecution proves that on 20/21.11.1999, in between 11.00 p.m. to 6.00 a.m., accused committed theft of sandal wood from the bungalow of CW2 Bagi B Menon, situated on Lalithmahal Road within the jurisdiction of Nazarbad Police Station?\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"8fdad9c55e6547a6837c947d1800399a\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 2961,\n \"labels\": [\n \"ISSUE\"\n ],\n \"start\": 2945,\n \"text\": \"\\n 2. What order?\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"86ee2e9615d1401a99e1ad57ada8dc07\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 3099,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 2961,\n \"text\": \"\\n 5. My findings on the above points are; Point No.1: In the Negative Point No.2: As per final order for the following; R E A S O N S 6.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"5981dedb808a455287a430f187382887\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 3186,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 3100,\n \"text\": \"Points No.1: The prosecution in order to prove its case has examined only 2 witnesses.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"af8d363612c349f3aef4f7d834284bae\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 3276,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 3187,\n \"text\": \"PW1 Ankaiah was working as the Sub-Inspector of Police, C.C.B. Wing at the relevant time.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"8c9eeb31eed24bc59e7bab15e41ab54f\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 3719,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 3276,\n \"text\": \"\\n He has deposed that on 12.12.1999, he along with his staff Jayasheelan and Mahadeva were appointed for tracing the accused and property in Crime No.74/99 and accordingly, he along with his staff was on raid near Mandi Mohalla and Bamboo Bazaar, Mysore and when they reached near Handihall, Yadavagiri, accused who were present at the spot, on seeing the police tried to run away from the place and therefore, they caught hold of the accused.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"3cedfbed1e9544a1b1da585191882daa\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 3817,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 3720,\n \"text\": \"He found two pieces of seesaw, a chopper and a gunny-bag with them and seized the same from them.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"38342992ff174324815aaaea786aba49\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 3959,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 3818,\n \"text\": \"Thereafter, he brought the accused and seized properties to C.C.B. Office and submitted a report, true copy of which is marked as per Ex.P.2.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"67b2de836fad44f7bcf2b6b83c375f49\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 4010,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 3960,\n \"text\": \"The true copy of seizure mahazar is as per Ex.P.1.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"40712798f71d4155b1a193b175d8c28f\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 4126,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 4010,\n \"text\": \"\\nIt is in his evidence that he recorded the voluntary statement of accusedno.1 to 3 as per Ex.P.3 to 5 respectively.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"e90c2d4330c44bb586d851aca83da256\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 4488,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 4127,\n \"text\": \"He has deposed that accused informed him that they have kept the sandal wood tree, sandal chips and billets in an old house situated Rajiv Nagara, and therefore, he went to the house situated at II Stage, 6th Cross, Rajiv Nagar and seized 9 sandal wood billets and sandal wood chips kept in a plastic bag in the presence of panchas namely Chand and Anwar Pasha.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"6111fc15520d4281b90d2d1ba57d11c7\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 4652,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 4489,\n \"text\": \"However, he has specifically stated that the sandal wood chips and 9 billets seized at the instance of voluntary statement of accused are not related to this case.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"f37f6d151a3a42a9bcc6c02eadc9053c\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 4759,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 4653,\n \"text\": \"The relevant portion in his evidence reads \\\" UAzsz ZP v 9 vAqU F PgtP AAgĪŢ\\\".\\n 7. During cross-examination\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"cc7842f0c7f8421590710636efa2fcd9\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 4972,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 4759,\n \"text\": \", suggestion was posed to him that accused were brought from their house and false case has been lodged against them and no sandalwood tree, sandal chips and sandal billets whatsoever were seized from the accused.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"d2231c12b848444aad9842ca84a56359\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5163,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 4973,\n \"text\": \"PW1 has admitted that he has nor made any mark on the properties seized and that he has not obtained the signatures of the panchas on a slip required to be pasted upon the properties seized.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"bd0c8375e18e4960aaff162b4124b0df\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5268,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 5165,\n \"text\": \"8. PW2 Kunjappa is the Sub-Inspector of Police working at Nazarbad Police Station at the relevant time.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"ea9f8320d35d41f3a9d1b7bf66907450\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5467,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 5269,\n \"text\": \"He deposed that on 22.11.1999, at 4.05 p.m., he received the complaint as per Ex.P.6 from one Puttaraju and registered the case and submitted first information report to the Court as per Ex.P.7.\\n \"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"2b21d50998b040fe821c1bc5e45f619d\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5523,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 5467,\n \"text\": \"Thereafter, he conducted the spot mahazar as per Ex.P.8.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"5282351a57d74b26a873892c7218b350\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5713,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 5524,\n \"text\": \"It is in his evidence that at the time of spot mahazar, it was found that the sandal wood tree measuring 52\\\" x12\\\" was cut and the said tree was situated behind the house of one Bagin Menon.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"e96fecd912e6482f930aa082e762bed7\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5814,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 5714,\n \"text\": \"He deposed that he cut the tree into two pieces with the help of coolie workers and seized the same.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"42c5b9992be84a10a056e2a0561d3dbe\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5870,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 5815,\n \"text\": \"He identified the two pieces of sandal wood as per MO1.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"b8a966125baf4625bcf86e3dea937f8f\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 5952,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 5871,\n \"text\": \"He has deposed that complainant and one Ramu signed the spot cum seizure mahazar.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"db4d5e83b9f6423f85636fd116f74b4c\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6044,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 5953,\n \"text\": \"He sent the sandal wood to the Conservator of Forest and received the report as per Ex.P.9.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"cb8f6466088e4572887623d7654c9a4b\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6126,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 6045,\n \"text\": \"He filed the charge-sheet after completion of investigation by the C.C.B.\\npolice.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"d761711c82af446f8943ee1a031b33ac\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6234,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 6127,\n \"text\": \"Suggestion posed to him that spot cum seizure mahazar was prepared in the Police Station was denied by him.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"e04cd982bc9b46308ed97d3a392abee8\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6363,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 6236,\n \"text\": \"9. Inspite of issuance of repeated warrants, prosecution has not secured the presence of remaining witnesses to prove its case.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"3034d58a28944384be0648ec8518143f\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6506,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 6364,\n \"text\": \"On appreciation of entire evidence on record, it is seen that seizure of MO1 at the instance of accused is not proved beyond reasonable doubt.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"3f94f10c0fee490e984704934963964a\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6577,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 6507,\n \"text\": \"PW1 has not stated anything about MO1 though PW2 has spoken about MO1.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"67b202c7405c49c4ba828a870b39ced2\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6729,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 6578,\n \"text\": \"Evidence of PW2 would clearly show that he seized MO1 from the spot at the time of spot cum seizure mahazar and not from the possession of the accused.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"d27fef9380244977abc6ddaa88a113c1\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6822,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 6730,\n \"text\": \"Absolutely, there is no evidence to show that MO1 was seized at the instance of the accused.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"02213215735f41779b2149f522101df5\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 6923,\n \"labels\": [\n \"RATIO\"\n ],\n \"start\": 6826,\n \"text\": \"As such, there is no connection whatsoever with the property seized in this case and the accused.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"f33935126db0443cb439cc6b1543f49b\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 7015,\n \"labels\": [\n \"RATIO\"\n ],\n \"start\": 6924,\n \"text\": \"Non- examination of spot cum seizure mahazar witnesses is fatal to the case of prosecution.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"2943c4ec14b84f1ab549a4a304e40480\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 7124,\n \"labels\": [\n \"RATIO\"\n ],\n \"start\": 7016,\n \"text\": \"The evidence placed by the prosecution is not sufficient to hold the accused guilty of the alleged offences.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"49a303383c454abbbf81c90191a9d7e4\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 7398,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 7126,\n \"text\": \"10. In the circumstances and for the reasons stated above, I hold that the prosecution has failed to bring home the guilt of accused no.1 to 3 beyond reasonable doubt for the offence punishable under section 86 Karnataka Forest Act read with section 379 Indian Penal Code.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"10e7337b0b214997be45be9501d20dcc\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 7446,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 7399,\n \"text\": \"Therefore, I answer point no.1 in the negative.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"dac13883c5474bdf8a03b8cb9eb89115\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 7462,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 7446,\n \"text\": \"\\n 11. Point No.2\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"d79217a750e9427c93c004ec2c38048b\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 7722,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 7463,\n \"text\": \": In the result, I proceed to pass the following; O R D E R Under section 248(1) Criminal Procedure Code, accused 1 to 3 are acquitted of the offence punishable under section 86 Karnataka Forest Act read with section 379 Indian Penal Code.\\n \"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"5c8625ea25e849758c371b61e0e0882d\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 7777,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 7722,\n \"text\": \"Bail bond of accused no.1 and 2 shall stand discharged.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"9e13acab41d14967b3f7329b9b1b8c6e\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 7899,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 7777,\n \"text\": \"\\n Accusedno.3 shall be set at liberty forthwith, if he is not required to be produced in any other case.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"0075361b85e44f8eab2511deda72e256\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 8001,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 7899,\n \"text\": \"\\n MO1 is ordered to be returned to the Forest Officer attached to Government Sandal Wood Koti, Mysore.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"e138e7d086ed43e38950f06e40d91704\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 8107,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 8002,\n \"text\": \"However, the order regarding disposal of MO1 shall be given in to effect after the appeal period is over.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"a0552af56af843228e2e11d529be7b2e\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 8225,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 8108,\n \"text\": \"(Dictated to the Stenographer typed script corrected and the same is pronounced by me in the open Court on 10.4.2008)\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"767f45d8c3fa4680868e49fae145ff9f\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 8265,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 8226,\n \"text\": \"(VINEETHA P SHETTY), III JMFC., Mysore.\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"3a3206df88d74c159d4a42c666291657\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 8275,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 8267,\n \"text\": \"ANNEXURE\"\n }\n },\n {\n \"from_name\": null,\n \"id\": \"8f5f90bcd60d411d9c083ba2948b413d\",\n \"to_name\": null,\n \"type\": null,\n \"value\": {\n \"end\": 8881,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 8276,\n \"text\": \"Witnesses examined for the prosecution: PW1 : Ankaia PW2 : Kunjappa Documents marked for the prosecution: Ex.P1 : Mahazar copy Ex.P.1(a): Signature of PW1 Ex.P2 : Report Ex.P3 : Voluntary statement of the accused Ex.P.4 : Voluntary statement of the accused Ex.P.5 : Voluntary statement of the accused Ex.P.6 : Complaint Ex.P.6(a): Signature of PW2 Ex.P.7 : First Information Report Ex.P.7(a): Signature of PW2 Ex.P.8 : Seizure mahazar Ex.P.8(a): Signature of PW2 Ex.P.9: Report Ex.P.9(a): Signature of PW2 List of Material Objects marked: MO 1 : 2 Sandal wood pieces (VINEETHA P SHETTY), III JMFC., Mysore\"\n }\n }\n ]\n }\n]"},"id":{"kind":"number","value":4120,"string":"4,120"},"data":{"kind":"string","value":"{\n \"text\": \"IN THE COURT OF THE JUDICIAL MAGISTRATE FIRST CLASS-III,\\n\\n MYSORE\\n\\n Dated this the 10th day of April 2008\\n\\nPRESENT : Smt. Vineetha P Shetty, B.Sc., LL.B.,\\n\\n III JMFC., Mysore.\\n\\n C.C. No.1021/2007\\n\\nComplainant: State by Nazarbad Police.\\n\\n (By Asst. Public Prosecutor.)\\n Vs.\\n\\nAccused: 1. Ummar S/o Yasin Sab, 40\\n years, No.6, `C' Block, Gowsiya\\n Nagar, 9th Cross, Masjid Road,\\n Mysore.\\n\\n 2. Althaf, S/o Abdul Ameed Khan,\\n 33 years, behind Beedi\\n Quarters, Gowsiya Nagar,\\n Mysore.\\n\\n 3. Akram @ Syed Akram, S/o\\n Syed Apeez, 28 years, Revenue\\n Site, Gowsiya Nagar, Mysore\\n\\n (By Sri C M Jagadeesh\\n Advocate for A-1 and A-2 and\\n A-3 is in J.C.)\\n\\n JUDGMENT\\n Sub-Inspector of Police attached to Nazarbad Police Station has filed the charge-sheet against the accused no.1 to 3 for the offences punishable under section 86 Karnataka Forest Act read with section 379 Indian Penal Code.\\n 2. The case of prosecution in brief is that on 20/21.11.1999, in between 11.00 p.m. to 6.00 a.m., accused committed theft of sandal wood from the bungalow of CW2 Bagi B Menon situated on Lalithmahal Road within the jurisdiction of Nazarbad Police Station, and committed the offence punishable under section 86 of Karnataka Forest Act read with section 379 of Indian Penal Code.\\n 3. After submission of charge-sheet, cognizance was taken.\\n Accused no.1 and 2 are on bail. Accused no.3 is in judicial custody. They engaged the advocate for their defence. The copies of the charge-sheet were furnished to them. Since the offences under Forest Act are triable by the Court of Sessions, this case was transferred to the Hon'ble Court of Sessions. The Hon'ble Fast Track Court-III, Mysore, vide order in S.C.No.265/2007 transferred this case to this Court for its disposal in accordance with law. Thereafter, after hearing both sides, charge for the above offence was framed, readover and explained, for which, accused pleaded not guilty and claimed to be tried. On behalf of the prosecution, PWs 1 and 2 are examined and Exhibits P.1 to 9, Ex.P.1(a), Ex.P.6(a), Ex.P.7(a), Ex.P.8(a), Ex.P.9(a) and also MO1 is marked. Accused are examined under section 313 Criminal Procedure Code. They have denied the evidence which appeared against them. Heard the arguments addressed by the learned APP for the State and learned counsel for the accused.\\n 4. The following points arise for determination: 1. Whether the prosecution proves that on 20/21.11.1999, in between 11.00 p.m. to 6.00 a.m., accused committed theft of sandal wood from the bungalow of CW2 Bagi B Menon, situated on Lalithmahal Road within the jurisdiction of Nazarbad Police Station?\\n 2. What order?\\n 5. My findings on the above points are; Point No.1: In the Negative Point No.2: As per final order for the following; R E A S O N S 6. Points No.1: The prosecution in order to prove its case has examined only 2 witnesses. PW1 Ankaiah was working as the Sub-Inspector of Police, C.C.B. Wing at the relevant time.\\n He has deposed that on 12.12.1999, he along with his staff Jayasheelan and Mahadeva were appointed for tracing the accused and property in Crime No.74/99 and accordingly, he along with his staff was on raid near Mandi Mohalla and Bamboo Bazaar, Mysore and when they reached near Handihall, Yadavagiri, accused who were present at the spot, on seeing the police tried to run away from the place and therefore, they caught hold of the accused. He found two pieces of seesaw, a chopper and a gunny-bag with them and seized the same from them. Thereafter, he brought the accused and seized properties to C.C.B. Office and submitted a report, true copy of which is marked as per Ex.P.2. The true copy of seizure mahazar is as per Ex.P.1.\\nIt is in his evidence that he recorded the voluntary statement of accusedno.1 to 3 as per Ex.P.3 to 5 respectively. He has deposed that accused informed him that they have kept the sandal wood tree, sandal chips and billets in an old house situated Rajiv Nagara, and therefore, he went to the house situated at II Stage, 6th Cross, Rajiv Nagar and seized 9 sandal wood billets and sandal wood chips kept in a plastic bag in the presence of panchas namely Chand and Anwar Pasha. However, he has specifically stated that the sandal wood chips and 9 billets seized at the instance of voluntary statement of accused are not related to this case. The relevant portion in his evidence reads \\\" UAzsz ZP v 9 vAqU F PgtP AAgĪŢ\\\".\\n 7. During cross-examination, suggestion was posed to him that accused were brought from their house and false case has been lodged against them and no sandalwood tree, sandal chips and sandal billets whatsoever were seized from the accused. PW1 has admitted that he has nor made any mark on the properties seized and that he has not obtained the signatures of the panchas on a slip required to be pasted upon the properties seized.\\n 8. PW2 Kunjappa is the Sub-Inspector of Police working at Nazarbad Police Station at the relevant time. He deposed that on 22.11.1999, at 4.05 p.m., he received the complaint as per Ex.P.6 from one Puttaraju and registered the case and submitted first information report to the Court as per Ex.P.7.\\n Thereafter, he conducted the spot mahazar as per Ex.P.8. It is in his evidence that at the time of spot mahazar, it was found that the sandal wood tree measuring 52\\\" x12\\\" was cut and the said tree was situated behind the house of one Bagin Menon. He deposed that he cut the tree into two pieces with the help of coolie workers and seized the same. He identified the two pieces of sandal wood as per MO1. He has deposed that complainant and one Ramu signed the spot cum seizure mahazar. He sent the sandal wood to the Conservator of Forest and received the report as per Ex.P.9. He filed the charge-sheet after completion of investigation by the C.C.B.\\npolice. Suggestion posed to him that spot cum seizure mahazar was prepared in the Police Station was denied by him.\\n 9. Inspite of issuance of repeated warrants, prosecution has not secured the presence of remaining witnesses to prove its case. On appreciation of entire evidence on record, it is seen that seizure of MO1 at the instance of accused is not proved beyond reasonable doubt. PW1 has not stated anything about MO1 though PW2 has spoken about MO1. Evidence of PW2 would clearly show that he seized MO1 from the spot at the time of spot cum seizure mahazar and not from the possession of the accused. Absolutely, there is no evidence to show that MO1 was seized at the instance of the accused.\\n As such, there is no connection whatsoever with the property seized in this case and the accused. Non- examination of spot cum seizure mahazar witnesses is fatal to the case of prosecution. The evidence placed by the prosecution is not sufficient to hold the accused guilty of the alleged offences.\\n 10. In the circumstances and for the reasons stated above, I hold that the prosecution has failed to bring home the guilt of accused no.1 to 3 beyond reasonable doubt for the offence punishable under section 86 Karnataka Forest Act read with section 379 Indian Penal Code. Therefore, I answer point no.1 in the negative.\\n 11. Point No.2 : In the result, I proceed to pass the following; O R D E R Under section 248(1) Criminal Procedure Code, accused 1 to 3 are acquitted of the offence punishable under section 86 Karnataka Forest Act read with section 379 Indian Penal Code.\\n Bail bond of accused no.1 and 2 shall stand discharged.\\n Accusedno.3 shall be set at liberty forthwith, if he is not required to be produced in any other case.\\n MO1 is ordered to be returned to the Forest Officer attached to Government Sandal Wood Koti, Mysore. However, the order regarding disposal of MO1 shall be given in to effect after the appeal period is over.\\n(Dictated to the Stenographer typed script corrected and the same is pronounced by me in the open Court on 10.4.2008) (VINEETHA P SHETTY), III JMFC., Mysore.\\n ANNEXURE Witnesses examined for the prosecution: PW1 : Ankaia PW2 : Kunjappa Documents marked for the prosecution: Ex.P1 : Mahazar copy Ex.P.1(a): Signature of PW1 Ex.P2 : Report Ex.P3 : Voluntary statement of the accused Ex.P.4 : Voluntary statement of the accused Ex.P.5 : Voluntary statement of the accused Ex.P.6 : Complaint Ex.P.6(a): Signature of PW2 Ex.P.7 : First Information Report Ex.P.7(a): Signature of PW2 Ex.P.8 : Seizure mahazar Ex.P.8(a): Signature of PW2 Ex.P.9: Report Ex.P.9(a): Signature of PW2 List of Material Objects marked: MO 1 : 2 Sandal wood pieces (VINEETHA P SHETTY), III JMFC., Mysore \"\n}"}}},{"rowIdx":98,"cells":{"meta":{"kind":"string","value":"{\n \"group\": \"Tax\"\n}"},"annotations":{"kind":"list like","value":[{"result":[{"from_name":"label","id":"9281fe5205e043f0a4d8ef0533c164b0","to_name":"text","type":"labels","value":{"end":59,"labels":["PREAMBLE"],"start":34,"text":"IN THE GAUHATI HIGH COURT"}},{"from_name":"label","id":"a6d9a556dfc547dd82eca8b05ebe5732","to_name":"text","type":"labels","value":{"end":133,"labels":["PREAMBLE"],"start":71,"text":"(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)"}},{"from_name":"label","id":"e206271b25be44ee922c8bfadd14dcab","to_name":"text","type":"labels","value":{"end":166,"labels":["PREAMBLE"],"start":153,"text":"I. 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WP(C) No.3444/2014\n 1. "}},{"from_name":"label","id":"6049dfa0d1f34af1a7f39a86ce0bd54b","to_name":"text","type":"labels","value":{"end":3281,"labels":["PREAMBLE"],"start":3254,"text":"Mridul Properties (P) Ltd.,"}},{"from_name":"label","id":"2fd91e0c4b1c4d0ba71af7bef3c8d1a1","to_name":"text","type":"labels","value":{"end":3372,"labels":["PREAMBLE"],"start":3307,"text":"G.S. Road, Bhangagarh, Guwahati-781005.\n 2. "}},{"from_name":"label","id":"a61947a1e8794bf7833e5a8a9623faa2","to_name":"text","type":"labels","value":{"end":3410,"labels":["PREAMBLE"],"start":3372,"text":"Fun Cinemas,\n "}},{"from_name":"label","id":"3dfb71cc65a34abaa28e4de1502c759b","to_name":"text","type":"labels","value":{"end":3489,"labels":["PREAMBLE"],"start":3410,"text":"A unit of Petitioner No.1,\n HUB, G.S. Road, Bhangagarh,"}},{"from_name":"label","id":"a391e5c8b4c644669cb99dad5d0a2e58","to_name":"text","type":"labels","value":{"end":3561,"labels":["PREAMBLE"],"start":3515,"text":"Guwahati-781005. ……"}},{"from_name":"label","id":"e8a2d98b07a2479ebbf1ab7d76d559a1","to_name":"text","type":"labels","value":{"end":3573,"labels":["PREAMBLE"],"start":3561,"text":"Petitioners."}},{"from_name":"label","id":"0da489f6134f464f914f44a85488c370","to_name":"text","type":"labels","value":{"end":3631,"labels":["PREAMBLE"],"start":3623,"text":"-Versus-"}},{"from_name":"label","id":"9d079b5f326643b1baf7f0bf58bf80d6","to_name":"text","type":"labels","value":{"end":3701,"labels":["PREAMBLE"],"start":3649,"text":"The State of Assam and 3 others. ……"}},{"from_name":"label","id":"005896b7d4214552a274dee5c40e7af1","to_name":"text","type":"labels","value":{"end":3713,"labels":["PREAMBLE"],"start":3701,"text":"Respondents."}},{"from_name":"label","id":"363ed42552034970b30aa83dd0619cb2","to_name":"text","type":"labels","value":{"end":3778,"labels":["PREAMBLE"],"start":3733,"text":"VII. WP(C) No.3445/2014\n 1"}},{"from_name":"label","id":"7f0f3f11bffa470999d438584c3542f8","to_name":"text","type":"labels","value":{"end":3812,"labels":["PREAMBLE"],"start":3778,"text":". Mridul Properties (P) Ltd.,"}},{"from_name":"label","id":"5b1bae2759ba45e1a132f81a54275b40","to_name":"text","type":"labels","value":{"end":3915,"labels":["PREAMBLE"],"start":3812,"text":"\n G.S. Road, Bhangagarh, Guwahati-781005.\n 2. Fun Cinemas,"}},{"from_name":"label","id":"253cb124d8164c2b8d30e089a55e9f03","to_name":"text","type":"labels","value":{"end":3967,"labels":["PREAMBLE"],"start":3941,"text":"A unit of Petitioner No.1,"}},{"from_name":"label","id":"6b190bcc53fe4a2898dfc6082e910ced","to_name":"text","type":"labels","value":{"end":4062,"labels":["PREAMBLE"],"start":3967,"text":"\n HUB, G.S. Road, Bhangagarh,\n Guwahati-781005."}},{"from_name":"label","id":"997aa55b18734a68847996485f90b085","to_name":"text","type":"labels","value":{"end":4162,"labels":["PREAMBLE"],"start":4063,"text":" ……Petitioners.\n -Versus-"}},{"from_name":"label","id":"50120c2fd96a4557a9d2c79ffd0ed50f","to_name":"text","type":"labels","value":{"end":4211,"labels":["PREAMBLE"],"start":4180,"text":"The State of Assam and 3 others"}},{"from_name":"label","id":"bacc404f4e834f3c8363a3389d003fe3","to_name":"text","type":"labels","value":{"end":4269,"labels":["PREAMBLE"],"start":4211,"text":". ……Respondents.\n\n\n\n VIII"}},{"from_name":"label","id":"48dcf8812c1343dda220ad26e6eb7c4a","to_name":"text","type":"labels","value":{"end":4308,"labels":["PREAMBLE"],"start":4269,"text":". WP(C) No.4479/2014\n M"}},{"from_name":"label","id":"9b13d23caa7b407ea4d265fe337bf8dc","to_name":"text","type":"labels","value":{"end":4321,"labels":["PREAMBLE"],"start":4308,"text":"/s PVR. Ltd.,"}},{"from_name":"label","id":"98cdf4098e5f4d8792ab56b16aa9bfae","to_name":"text","type":"labels","value":{"end":4372,"labels":["PREAMBLE"],"start":4339,"text":"61, Basant Lok,\n "}},{"from_name":"label","id":"383fa90d7298455dbc6c96badbeac3ff","to_name":"text","type":"labels","value":{"end":4403,"labels":["PREAMBLE"],"start":4372,"text":"Vasant Vihar,\n "}},{"from_name":"label","id":"a41d2a3a16684350ab04a3a2c4707146","to_name":"text","type":"labels","value":{"end":4465,"labels":["PREAMBLE"],"start":4403,"text":"New Delhi-110057. …"}},{"from_name":"label","id":"d9396b4cb6104311afc1d455654f9890","to_name":"text","type":"labels","value":{"end":4553,"labels":["PREAMBLE"],"start":4465,"text":"…Petitioner.\n -Versus-\n "}},{"from_name":"label","id":"aeeffdda4ef94951908014828a762b22","to_name":"text","type":"labels","value":{"end":4613,"labels":["PREAMBLE"],"start":4553,"text":"The State of Assam and 3 others. ……"}},{"from_name":"label","id":"7e5b0cbe742d497699480a5c846cc3ee","to_name":"text","type":"labels","value":{"end":4625,"labels":["PREAMBLE"],"start":4613,"text":"Respondents."}},{"from_name":"label","id":"8e2cae3feb224296ad4284d228b71d75","to_name":"text","type":"labels","value":{"end":4768,"labels":["PREAMBLE"],"start":4625,"text":"\n\n BEFORE\n THE HON’BLE MR. JUSTICE HRISHIKESH ROY\n THE HON’BLE"}},{"from_name":"label","id":"7929319b767a446d838eeacc4a2e3caa","to_name":"text","type":"labels","value":{"end":4799,"labels":["PREAMBLE"],"start":4769,"text":"MR. JUSTICE PARAN KUMAR PHUKAN"}},{"from_name":"label","id":"a8c62a07bccc432b8e384da012ab677e","to_name":"text","type":"labels","value":{"end":5060,"labels":["PREAMBLE"],"start":4810,"text":"Advocate(s) for the Petitioner : Dr. Ashok Saraf …Sr. Adv.,\n Mr. P. Baruah,\n Mr. Z. Islam.\n\n Advocate(s) for the Respondents : "}},{"from_name":"label","id":"d721cd27e2ed45fb89aa2fc4b686374b","to_name":"text","type":"labels","value":{"end":5143,"labels":["PREAMBLE"],"start":5060,"text":"Mr. D. Saikia, Addl. A.G., Assam,\n "}},{"from_name":"label","id":"04be703976d44a21ac994eae773449e5","to_name":"text","type":"labels","value":{"end":5184,"labels":["PREAMBLE"],"start":5143,"text":"Mr. B. Choudhury, SC, Finance & Taxation."}},{"from_name":"label","id":"7fb97bff7d964bf385b7d69ac6d08415","to_name":"text","type":"labels","value":{"end":5288,"labels":["PREAMBLE"],"start":5195,"text":"Date of Hearing : 19.7.2016, 21.7.2016, 22.7.2016, 9.8.2016\n "}},{"from_name":"label","id":"6c8faa80c6c047519d8e84753ec18445","to_name":"text","type":"labels","value":{"end":5329,"labels":["PREAMBLE"],"start":5288,"text":"Date of Judgment :"}},{"from_name":"label","id":"5f4784e610df4b78bfa2d28c9819b680","to_name":"text","type":"labels","value":{"end":5347,"labels":["PREAMBLE"],"start":5330,"text":"30th August, 2016"}},{"from_name":"label","id":"dd19e62efd194be58e11d3b9a3f8e4ee","to_name":"text","type":"labels","value":{"end":5397,"labels":["PREAMBLE"],"start":5357,"text":"Date of Judgment correction "}},{"from_name":"label","id":"9b7a62a1bc20416c85d560ac0e4a3736","to_name":"text","type":"labels","value":{"end":5409,"labels":["PREAMBLE"],"start":5397,"text":": 02.09.2016"}},{"from_name":"label","id":"10f75ad93168480982e02657b2addce8","to_name":"text","type":"labels","value":{"end":5469,"labels":["PREAMBLE"],"start":5451,"text":"JUDGMENT AND ORDER"}},{"from_name":"label","id":"8adbc9856c8c4d669697fdcddcdced1e","to_name":"text","type":"labels","value":{"end":5581,"labels":["NONE"],"start":5470,"text":"[Hrishikesh Roy, J.] Heard Dr. A. Saraf, learned Senior Counsel appearing for the petitioners in all the cases."}},{"from_name":"label","id":"95d3b9cda5dd43a4b04b83734de3bf91","to_name":"text","type":"labels","value":{"end":5672,"labels":["NONE"],"start":5582,"text":"Also heard Mr. D. Saikia, the learned Addl. Advocate General representing the respondents."}},{"from_name":"label","id":"20c38f2f2d224ee9828ad3941b7df757","to_name":"text","type":"labels","value":{"end":5682,"labels":["FAC"],"start":5674,"text":"2. "}},{"from_name":"label","id":"660248a6fd7749bfaf409892ff71730e","to_name":"text","type":"labels","value":{"end":5920,"labels":["FAC"],"start":5682,"text":"The petitioners operate multiplex/mini cinema halls and the issue here is their liability towards entertainment tax for the relevant period, under the Assam Amusement and Betting Tax Act, 1939 (hereinafter referred to as „the Assam Act‟)."}},{"from_name":"label","id":"627c0f1875734afa9ef45b483070f50d","to_name":"text","type":"labels","value":{"end":6231,"labels":["FAC"],"start":5921,"text":"The concerned entities, hereinafter referred to as “the Exhibitors” commenced commercial operation in Assam between 1.4.2007—1.2.2008 and therefore, by virtue of the Govt. Notification dated 29.3.2008 (Annexure-I), the exhibitors seek exemption from the liability to payment of tax, for a period of five years."}},{"from_name":"label","id":"c02c836e017e449fac470fb66968cc02","to_name":"text","type":"labels","value":{"end":6322,"labels":["FAC"],"start":6232,"text":"The exemption notification was issued under Sub-Section (2) of Section 8 of the Assam Act."}},{"from_name":"label","id":"c1781ca49b2a46b4907134206a890de2","to_name":"text","type":"labels","value":{"end":6397,"labels":["FAC"],"start":6323,"text":"The petitioners in this batch of litigations can be divided in two groups."}},{"from_name":"label","id":"4ddf6f794a8043bea06cdfe4cd9a121b","to_name":"text","type":"labels","value":{"end":6716,"labels":["FAC"],"start":6398,"text":"The first is the M/s. PVR Ltd. who have filed the WP(C) No.4477/2014, WP(C) No.4480/2014 and WP(C) No.4479/2014 and they claim that they have not collected the tax, whereas the 2nd group of M/s. Mridul Properties (P) Ltd., in the other five cases, have admittedly recovered the entertainment tax, from the movie-goers."}},{"from_name":"label","id":"a3840a43cce74d50b39b38ffdaa181a6","to_name":"text","type":"labels","value":{"end":6893,"labels":["FAC"],"start":6716,"text":"\n 3. The cases have common facts and hence for the sake of convenience, the narratives in this order are extracted from the WP(C) No.4477/2014, filed by the M/s. PVR Ltd.\n "}},{"from_name":"label","id":"a776fb7e830e4b0c97714784de173690","to_name":"text","type":"labels","value":{"end":6918,"labels":["FAC"],"start":6893,"text":"BACKGROUND FACTS 4. "}},{"from_name":"label","id":"bc851b4659754e53bb08328cc72bc16c","to_name":"text","type":"labels","value":{"end":7199,"labels":["FAC"],"start":6918,"text":"Through the notice dated 12.9.2012 (Annexure-IV), the Superintendent of Taxes alleged that the Exhibitors were unauthorisedly collecting tax from the movie-goers and accordingly demand was made for deposit of the collected amount or else, tax would be assessed under the Assam Act."}},{"from_name":"label","id":"2e792c6fe4eb40c4939183d5024e3bec","to_name":"text","type":"labels","value":{"end":7353,"labels":["FAC"],"start":7200,"text":"In their response, the first group contended that entertainment tax was not collected and accordingly they requested for recall of the tax demand notice."}},{"from_name":"label","id":"4ef856f3d098495bb7ba5aa6ecebb463","to_name":"text","type":"labels","value":{"end":7363,"labels":["FAC"],"start":7353,"text":"\n 5. "}},{"from_name":"label","id":"ed674d0d6e084d66be3f4e6baea9e807","to_name":"text","type":"labels","value":{"end":7714,"labels":["FAC"],"start":7363,"text":"Dissatisfied with the reply, a show cause notice for assessment under Section 5-A(2) of the Assam Act was issued on 13.12.2012 (Annexure-X), where it was alleged that tax is being illegally collected from the movie-goers, in spite of the exemption notification dated 29.3.2008 (Annexure-I), issued under Sub- Section (2) of Section 8 of the Assam Act."}},{"from_name":"label","id":"eb934a7a1dd84fbfad78a8b9e5fffa5f","to_name":"text","type":"labels","value":{"end":7895,"labels":["FAC"],"start":7715,"text":"According to the notice, the claim of not charging entertainment tax made by the exhibitor is not believable, as the tickets issued for certain films, reflects the charging of tax."}},{"from_name":"label","id":"8ab24cf21ff84594a0162949fcc12c17","to_name":"text","type":"labels","value":{"end":7973,"labels":["FAC"],"start":7896,"text":"Hence, tax was proposed to be assessed under Section 5-A(2) of the Assam Act."}},{"from_name":"label","id":"469e03ccf7b14ca8958988c96df76967","to_name":"text","type":"labels","value":{"end":8190,"labels":["FAC"],"start":7973,"text":"\n 6. In response to the show cause notice, the exhibitor reiterated that they have not collected any amount towards entertainment tax and they offered to submit their Books-of-Account to support their contention."}},{"from_name":"label","id":"15bf2c610698438e9aa2c849851d7d65","to_name":"text","type":"labels","value":{"end":8351,"labels":["FAC"],"start":8191,"text":"However through the assessment order dated 1.3.2013, the tax was assessed on the basis of the total turnover and interest was also added to the assessed amount."}},{"from_name":"label","id":"7408ad0e08fe490386b0e256b90c45a6","to_name":"text","type":"labels","value":{"end":8361,"labels":["RLC"],"start":8353,"text":"7. "}},{"from_name":"label","id":"05564ff9eaa24ea287f7e2e71db1838f","to_name":"text","type":"labels","value":{"end":8562,"labels":["RLC"],"start":8361,"text":"Being aggrieved, the exhibitors challenged the assessment through the WP(C) No.2343/2013 and this case was disposed of by the Division Bench on 6.5.2013, by relegating the party to the statutory forum."}},{"from_name":"label","id":"fb6ad0c2742b4997be405c215286cbef","to_name":"text","type":"labels","value":{"end":8832,"labels":["FAC"],"start":8563,"text":"Thereafter the appellate authority after considering the rival submission through the impugned order dated 28.7.2014 (Annexure-XXI), opined that when the tax is collected, the same should be deposited in the Govt. exchequer or else, it will amount to unjust enrichment."}},{"from_name":"label","id":"58d7de63055d4992b30d1102a4c70abd","to_name":"text","type":"labels","value":{"end":9173,"labels":["FAC"],"start":8833,"text":"It was also concluded that objective of exemption by the Government was to provide relief to the movie-goers and it is impermissible for the exhibitor to retain the collected tax as this would be contrary to the judgment of the Apex Court in the State of Maharashtra vs. Swanstone Multiplex Cinema Private Ltd. reported in (2009) 8 SCC 235."}},{"from_name":"label","id":"89752f01991643ec8112cdd24f2c5054","to_name":"text","type":"labels","value":{"end":9388,"labels":["FAC"],"start":9174,"text":"On the basis of such conclusion, the Appeal was dismissed on 28.7.2014 (Annexure-XXI), by the appellate authority and consequential direction was issued to realize the assessed tax and interest, from the exhibitor."}},{"from_name":"label","id":"53a3d2109a91404685fb78c640971c28","to_name":"text","type":"labels","value":{"end":9398,"labels":["FAC"],"start":9390,"text":"8. "}},{"from_name":"label","id":"55e8df2e8455427590cff5b85cd8029a","to_name":"text","type":"labels","value":{"end":9428,"labels":["FAC"],"start":9398,"text":"The other group under the M/s."}},{"from_name":"label","id":"a5d0473628af432386b19b755bd09c63","to_name":"text","type":"labels","value":{"end":9435,"labels":["FAC"],"start":9429,"text":"Mridul"}},{"from_name":"label","id":"556741485b4b4373b5cdd7fe0ffe26aa","to_name":"text","type":"labels","value":{"end":9446,"labels":["FAC"],"start":9436,"text":"Properties"}},{"from_name":"label","id":"45536cb5d12a4e338bcd2982d0b4a13b","to_name":"text","type":"labels","value":{"end":9455,"labels":["FAC"],"start":9447,"text":"(P) Ltd."}},{"from_name":"label","id":"ae5ab980d98b438aa62c8e5c19ab838e","to_name":"text","type":"labels","value":{"end":9633,"labels":["FAC"],"start":9456,"text":"admits that entertainment tax was collected on the entry tickets but denied their corresponding obligation to deposit the collected sum on account of the exemption notification."}},{"from_name":"label","id":"1d3b46d16a5043fa925d388b5b4e8a0a","to_name":"text","type":"labels","value":{"end":9821,"labels":["FAC"],"start":9634,"text":"Confronted with similar assessment and demand like the first group, the aggrieved exhibitors filed Revision Petition(s) against the assessment order passed by the Superintendent of Taxes."}},{"from_name":"label","id":"b2a7df30abb146e88631c1ba8b6def61","to_name":"text","type":"labels","value":{"end":10017,"labels":["FAC"],"start":9822,"text":"But since those were rejected by the common order dated 20.5.2014 (Annexure-XXII), the first group having realized the futility of revision, have decided to challenge the order in the High Court."}},{"from_name":"label","id":"5394194aa2a64c98b532b64c6a6d2aec","to_name":"text","type":"labels","value":{"end":10053,"labels":["NONE"],"start":10017,"text":"\n SUBMISSION OF PETITIONERS 9. "}},{"from_name":"label","id":"78c345f27d9940638df934dc8e618895","to_name":"text","type":"labels","value":{"end":10192,"labels":["ARG_PETITIONER"],"start":10053,"text":"Dr. A. Saraf, learned Senior Counsel submits that tax is to be charged, levied and paid to the Government under Section 3 of the Assam Act."}},{"from_name":"label","id":"9aa1637dec5947a7a0b7eb540eec0ccd","to_name":"text","type":"labels","value":{"end":10406,"labels":["ARG_PETITIONER"],"start":10193,"text":"Here incentive to set up multiplex/mini cinema halls was provided by the Government by exempting the liability to payment of entertainment tax to those, who set up their projects in Assam during 1.4.2007—1.2.2008."}},{"from_name":"label","id":"f44a31073a20471d9e30bd441a5572f0","to_name":"text","type":"labels","value":{"end":11123,"labels":["ARG_PETITIONER"],"start":10407,"text":"Accordingly it is argued that such incentive to the multiplex/mini cinema halls is intended to encourage business activities and since they are exempted from the tax liability, there can be no assessment for the exhibitors to tax, under Section 5-A of the Assam Act.\n 10. The petitioners refer to the fact that the exemption notice was issued under Sub-Section (2) of Section 8 of the Assam Act and therefore it is contended that there is no absolvement from charging tax but what is exempted is the liability from payment of entertainment tax and therefore it is argued that demand for tax from the exhibitors (whether realized or otherwise) is unauthorized, in the face of the exemption notification.\n 11. "}},{"from_name":"label","id":"a7be0e9af4c240f993927505a5ede3fa","to_name":"text","type":"labels","value":{"end":11478,"labels":["ARG_PETITIONER"],"start":11123,"text":"The senior counsel distinguishes the Swanstone Multiplex Cinema Private Ltd. (Supra) by submitting that present facts are different in as much as, in the case before the Supreme Court, the levy of entertainment tax was exempted and only incentives by way of zero or reduced rate of tax was provided under the policy, adopted by the Maharashtra Government."}},{"from_name":"label","id":"110e029bee544e33b4cb4551940e2b09","to_name":"text","type":"labels","value":{"end":11610,"labels":["ARG_PETITIONER"],"start":11479,"text":"But here in Assam unlike the Maharashtra scenario, the beneficiary was exempted from payment liability towards the State exchequer."}},{"from_name":"label","id":"77a07fc799ec473f9f5b02fbe4f1e1b1","to_name":"text","type":"labels","value":{"end":11774,"labels":["ARG_PETITIONER"],"start":11611,"text":"Therefore Dr. Saraf argues that it is not a case of unjust enrichment, since the charging of tax was not exempted by the Notification dated 29.3.2008 (Annexure-I)."}},{"from_name":"label","id":"62a6e099880640ffbe7be70730a93c89","to_name":"text","type":"labels","value":{"end":11999,"labels":["ARG_PETITIONER"],"start":11775,"text":"Hence the Assam situation is nothing but a business incentive for five years, for the new entrepreneurs in the field and retention of the collected sum is not unjust enrichment since this was permitted by the Govt.\n 12. "}},{"from_name":"label","id":"9a4992c54fe44bf89aca72d3976ffe91","to_name":"text","type":"labels","value":{"end":12183,"labels":["ARG_PETITIONER"],"start":11999,"text":"The petitioners contend that assuming that assessment is permissible, for the petitioner M/s. PVR Ltd. (who did not realize the tax), the assessment can never be on the total turnover."}},{"from_name":"label","id":"dc71912de2974234915f18bcc225596b","to_name":"text","type":"labels","value":{"end":12446,"labels":["ARG_PETITIONER"],"start":12184,"text":"But if there is any undue collection which can‟t be retained by the exhibitors, recovery would be permissible only through searching enquiry of each and every transaction and not through hypothetical conclusion, based upon the business turnover of the exhibitor."}},{"from_name":"label","id":"f6fc4316ae094ccbbbccac1ad7cc7c3f","to_name":"text","type":"labels","value":{"end":12685,"labels":["ARG_PETITIONER"],"start":12446,"text":"\n 13. Alternately Dr. A. Saraf argues that if charging of tax is exempted, then the amount collected by the second group can never be assessed as tax and then the recovery through assessment, is contended to be impermissible.\n 14. "}},{"from_name":"label","id":"d30b7277306c4b0fbd8fb7b0f00c025e","to_name":"text","type":"labels","value":{"end":12982,"labels":["ARG_PETITIONER"],"start":12685,"text":"The substantial contention of the petitioners is that if the exhibitor is exempted from liability to payment of entertainment tax, retention can‟t be construed as unjust enrichment since it is nothing but an incentive for investment in the fresh field of multiplex and mini cinema halls, in Assam."}},{"from_name":"label","id":"6a522146d503436ba9403c4eca93a673","to_name":"text","type":"labels","value":{"end":13013,"labels":["NONE"],"start":12984,"text":"SUBMISSION OF RESPONDENTS 15."}},{"from_name":"label","id":"74d87f80b66143969da255f895d0eb81","to_name":"text","type":"labels","value":{"end":13390,"labels":["ARG_RESPONDENT"],"start":13014,"text":" On the other hand, Mr. D. Saikia, the learned Addl. Advocate General submits that the exemption notification was issued to encourage the cine-goers and not intended to benefit the cinema exhibitors and accordingly it is argued that the retention of the collected amount by the exhibitors is impermissible and the collected money has to be deposited in the state exchequer."}},{"from_name":"label","id":"b71eba08fad2481d85e1d5b3964b1fbf","to_name":"text","type":"labels","value":{"end":13568,"labels":["ARG_RESPONDENT"],"start":13390,"text":"\n 16. The respondents argue that tax is to be collected for entertainment of the movie-goers and the role of the exhibitors is only to collect the tax on behalf of the state."}},{"from_name":"label","id":"191de8ec0a984d679c5ec6c89934af20","to_name":"text","type":"labels","value":{"end":13790,"labels":["ARG_RESPONDENT"],"start":13569,"text":"But when the tax is exempted under Section 8 of the Assam Act, the movie-goers are to be absolved and if any such tax is collected, the retention thereof in the hand of the exhibitors, will certainly be unjust enrichment."}},{"from_name":"label","id":"58be3a8da0874c13a348716a55592477","to_name":"text","type":"labels","value":{"end":13962,"labels":["ARG_RESPONDENT"],"start":13790,"text":"\n 17. The learned counsel for the Revenue submits that the benefit envisaged under Section 8 is for the movie-goers and the exhibitors are not the targeted beneficiary."}},{"from_name":"label","id":"6c00fb9809354c1ca065e767e9749145","to_name":"text","type":"labels","value":{"end":14124,"labels":["ARG_RESPONDENT"],"start":13963,"text":"In support Mr. Saikia refers to the manner of granting exemption, under the Assam Amusement and Betting Tax Rules, 1939 (hereinafter referred to as „the Rules‟)."}},{"from_name":"label","id":"6b6d4ddabba84bd8adb32e35fadf665b","to_name":"text","type":"labels","value":{"end":14400,"labels":["ARG_RESPONDENT"],"start":14125,"text":"Under Rule 2(4) read with Rule 12, every Exhibitor is required to keep at the place of entertainment, the register books of tickets and also registers of payments for admission and the records of stamps denoting the entertainment tax purchased and used in prescribed formats."}},{"from_name":"label","id":"a3416c5413244ab585f5ed78f23ab223","to_name":"text","type":"labels","value":{"end":14480,"labels":["ARG_RESPONDENT"],"start":14401,"text":"He refers to Form No.V, prescribed under Rule 20 which certifies tax exemption."}},{"from_name":"label","id":"f94e8dcf5814423f8565a5e6125f1932","to_name":"text","type":"labels","value":{"end":14661,"labels":["ARG_RESPONDENT"],"start":14481,"text":"The exhibitor is obliged to prominently display this certificate at the entry gate, so that the movie-goers are made aware that tax is not being collected for the show in question."}},{"from_name":"label","id":"14e3b5c1ad774d5fbe749d37fea6d3d1","to_name":"text","type":"labels","value":{"end":14815,"labels":["ARG_RESPONDENT"],"start":14662,"text":"From these provisions of the Rules, it is argued by Mr. Saikia that the benefit of exemption is not envisaged for the exhibitors but for the movie-goers."}},{"from_name":"label","id":"d716ec8fe86f4ec18c32a530025709ed","to_name":"text","type":"labels","value":{"end":15008,"labels":["ARG_RESPONDENT"],"start":14815,"text":"\n 18. The learned Addl. Advocate General refers to Section 72 of the Indian Contract Act, 1872 to argue that the exhibitors have the legal obligation to refund the mistakenly collected tax."}},{"from_name":"label","id":"137389f636b24ec29d202412d4a9fd68","to_name":"text","type":"labels","value":{"end":15244,"labels":["ARG_RESPONDENT"],"start":15008,"text":"\n 19. The respondents argue that by virtue of the exemption, the collection of tax from the movie-goer does not arise for the relevant period and therefore if any sum is collected by the exhibitors, the same is an unjust collection."}},{"from_name":"label","id":"8b494121366a4143b4d39036e98d90a4","to_name":"text","type":"labels","value":{"end":15654,"labels":["ARG_RESPONDENT"],"start":15245,"text":"Mr. Saikia cites Jay Vee Rice & General Mills vs. State of Haryana, reported in (2010) 10 SCC 687, to argue that when tax is unjustly collected, retention thereof by the agent is impermissible and the collected amount should either go back to the person from whom it was collected or it is to be surrendered to the state exchequer, as otherwise the retention by the exhibitor will amount to unjust enrichment."}},{"from_name":"label","id":"43a59cb2d1044a66bcb2f210f692f205","to_name":"text","type":"labels","value":{"end":15900,"labels":["ARG_RESPONDENT"],"start":15654,"text":"\n 20. The respondents rely upon the State of Karnataka vs. Drive-in Enterprises reported in (2001) 4 SCC 60, to contend that the levy is on the person who is entertained and therefore exemption should benefit of the person who is entertained."}},{"from_name":"label","id":"775d22db476c443a995ca9643593704d","to_name":"text","type":"labels","value":{"end":16043,"labels":["ARG_RESPONDENT"],"start":15901,"text":"It is thus argued that the retention of the illegally collected entertainment tax in the hand of the exhibitor would be legally impermissible."}},{"from_name":"label","id":"c4d56e87ebe645369b56376ec7bc4e62","to_name":"text","type":"labels","value":{"end":16696,"labels":["ARG_RESPONDENT"],"start":16043,"text":"\n 21. Referring to fundamental principles of interpretation of taxing statute or exemption notification, Mr. Saikia reads Oil & Natural Gas Corporation Ltd. vs.\n Commissioner of Income Tax reported in (2015) 10 SCC 621, to contend that literal rule of interpretation must be followed without distorting the language and common sense approach in interpretation of the exemption notification can have no role.\n 22. To explain the role of the exhibitor, Mr. Saikia reads P. Sankara Narayanan vs. State of Tamil Nadu reported in MANU/TN/8821/2007, to contend that the exhibitors are only collecting agent of the tax on behalf of the state."}},{"from_name":"label","id":"a7cb19400e5047d9b198d61ff0193122","to_name":"text","type":"labels","value":{"end":16952,"labels":["ARG_RESPONDENT"],"start":16696,"text":"\n Therefore when the tax is borne by the movie-goers and if the collection is held to be unauthorised, the retention/refund can be only to the person from whom the tax is realized but not to the exhibitors, who acts as agent on behalf of the state."}},{"from_name":"label","id":"5f45b5f3fed045b7a9ddb21174513ed1","to_name":"text","type":"labels","value":{"end":17178,"labels":["ARG_RESPONDENT"],"start":16952,"text":"\n 23. Mr. Saikia refers to the Govt. Notification dated 30.3.2007, to contend that whenever tax is exempted under some incentive policy, the exemption notification lays down the manner and mode of disbursal of incentives."}},{"from_name":"label","id":"3561618add8c4b3c8dbe2b9f298320ac","to_name":"text","type":"labels","value":{"end":17353,"labels":["ARG_RESPONDENT"],"start":17179,"text":"But here it was never indicated that the exhibitors are entitled to retain the collected tax and therefore it is argued that retention of the collected sum, can‟t be allowed."}},{"from_name":"label","id":"e0e1e36256c144f19819b2b5d300f1a9","to_name":"text","type":"labels","value":{"end":17628,"labels":["ARG_RESPONDENT"],"start":17353,"text":"\n 24. The respondents‟ lawyer refers to the assessment proceedings to contend that the exhibitors were given opportunities to produce the ticket counter-foils and also the other documents mentioned in the Rules but they failed to produce them, despite due opportunities."}},{"from_name":"label","id":"f6b5476c2c1b455dad43a8dd35187311","to_name":"text","type":"labels","value":{"end":17782,"labels":["ARG_RESPONDENT"],"start":17629,"text":"Therefore it is argued that the authorities had rightly made assessment on the basis of best judgment, as provided under Section 5-A(2) of the Assam Act."}},{"from_name":"label","id":"ed4593372a9146a89e3d3204ba47da4f","to_name":"text","type":"labels","value":{"end":17819,"labels":["NONE"],"start":17784,"text":"DISCUSSION AND CONCLUSION 25. "}},{"from_name":"label","id":"500ab6e3dd004b9faadebbcd59a16de1","to_name":"text","type":"labels","value":{"end":17900,"labels":["NONE"],"start":17819,"text":"The submission made by the rival Counsel have received our earnest consideration."}},{"from_name":"label","id":"a9bb35ff0410438784348ad787dc7b4f","to_name":"text","type":"labels","value":{"end":18073,"labels":["ANALYSIS"],"start":17900,"text":"\n 26. We find that the charging section of the Assam Act refers to charge, levy and payment of entertainment tax and the taxable event is on admission to entertainment."}},{"from_name":"label","id":"2f91a1fc0f444ad69309a7a729d9a9e9","to_name":"text","type":"labels","value":{"end":18176,"labels":["ANALYSIS"],"start":18074,"text":"Under sub-section (6) of Section 3, the proprietor of the entertainment is made liable to pay the tax."}},{"from_name":"label","id":"0db065a1c7ed4219b5c95a150cf62ce0","to_name":"text","type":"labels","value":{"end":18270,"labels":["PRE_RELIED"],"start":18177,"text":"Three stages for imposition of tax was culled out by the Apex Court in Chatturam Holiram Ltd."}},{"from_name":"label","id":"89dead2e696049d380406ee0a2234caf","to_name":"text","type":"labels","value":{"end":18349,"labels":["PRE_RELIED"],"start":18271,"text":"Vs. CIT reported in AIR 1955 SC 619 and the stages are mentioned as under :- “"}},{"from_name":"label","id":"438b43361b7e4635b7072ffd1a781ada","to_name":"text","type":"labels","value":{"end":18489,"labels":["PRE_RELIED"],"start":18349,"text":"There is the declaration of liability, that is the part of the statute which determines what persons in respect of what property are liable."}},{"from_name":"label","id":"f2deb7cd23114aa9811134370cf74f9a","to_name":"text","type":"labels","value":{"end":18520,"labels":["PRE_RELIED"],"start":18490,"text":"Next, there is the assessment."}},{"from_name":"label","id":"35f013cd4c44457aa491f569be45eedc","to_name":"text","type":"labels","value":{"end":18561,"labels":["PRE_RELIED"],"start":18521,"text":"Liability does not depend on assessment."}},{"from_name":"label","id":"4ef9f68c9e8540f584697b432ba30d96","to_name":"text","type":"labels","value":{"end":18605,"labels":["PRE_RELIED"],"start":18562,"text":"That, ex hypothesi, has already been fixed."}},{"from_name":"label","id":"9d70957d728548bea57746a3fbbacd35","to_name":"text","type":"labels","value":{"end":18683,"labels":["PRE_RELIED"],"start":18606,"text":"But assessment particularizes the exact sum which a person liable has to pay."}},{"from_name":"label","id":"d5966101141c42b4bd4d5530247451c9","to_name":"text","type":"labels","value":{"end":18767,"labels":["PRE_RELIED"],"start":18684,"text":"Lastly, come the methods of recovery if the person taxed does not voluntarily pay”."}},{"from_name":"label","id":"b30e6eac0ae54d64a4afd1cb9f9046ee","to_name":"text","type":"labels","value":{"end":18780,"labels":["ANALYSIS"],"start":18767,"text":"\n 27."}},{"from_name":"label","id":"68b282b3c60947778066b0c7caa7198b","to_name":"text","type":"labels","value":{"end":18944,"labels":["ANALYSIS"],"start":18781,"text":" But what we notice from the Assam Act is that while the charge and the levy is on the exhibitors, the taxable event is on admission to entertainment.\n "}},{"from_name":"label","id":"096735bf8612466486d9e1e6af9924f2","to_name":"text","type":"labels","value":{"end":19111,"labels":["ANALYSIS"],"start":18944,"text":"Hence the submission of the Revenue that tax here is on the person entertained appears to be illogical as this is not found in the charging Section 3 of the Assam Act."}},{"from_name":"label","id":"0c647a3183eb4be29318cafdce658545","to_name":"text","type":"labels","value":{"end":19194,"labels":["ANALYSIS"],"start":19112,"text":"In the enactment we are considering, the payment is on admission to entertainment."}},{"from_name":"label","id":"9854b9e819d74e4f942397a4054adf10","to_name":"text","type":"labels","value":{"end":19289,"labels":["ANALYSIS"],"start":19195,"text":"Thus there is clear distinction in the manner, the legislative intent is expressed in the Act."}},{"from_name":"label","id":"3bef8ff855cc48c1b04f07d6aca2077b","to_name":"text","type":"labels","value":{"end":19475,"labels":["ANALYSIS"],"start":19290,"text":"The words used in the charging section doesn‟t say that the levy is on the person entertained and only through an interpretive exercise, the expression may be understood in that manner."}},{"from_name":"label","id":"b7548a0a3aa54d9484d567c573cf1142","to_name":"text","type":"labels","value":{"end":19603,"labels":["ANALYSIS"],"start":19476,"text":"But the question here is what was the intention of the law maker and whether there is any scope for an interpretative exercise."}},{"from_name":"label","id":"28b24fcd0a244232b4e8b0be983d321b","to_name":"text","type":"labels","value":{"end":19846,"labels":["ANALYSIS"],"start":19603,"text":"\n 28. In the present case, the assessing authority levied entertainment tax only on the ground that the petitioners in spite of the exemption having been granted, charged and collected entertainment tax and appropriated the same to itself."}},{"from_name":"label","id":"d63d073ad9624333815a6c82d61244b1","to_name":"text","type":"labels","value":{"end":20140,"labels":["ANALYSIS"],"start":19847,"text":"But even if the notification dated 29.03.2008 is construed to be exemption from charge and levy of entertainment tax, then also, in case any unauthorized collection was made, the assessing authority has no power and/or jurisdiction to levy the entertainment tax during the period of exemption."}},{"from_name":"label","id":"f242c2ebae194add9d6b877184549465","to_name":"text","type":"labels","value":{"end":20492,"labels":["PRE_RELIED"],"start":20142,"text":"29. In the above context, the Apex Court in M/s Pine Chemicals Ltd. Vs.\n Assessing Authority reported in (1992)2 SCC 683 declared that whether any amount has been collected unauthorisedly in spite of the exemption, what is the amount and whether it has been collected as tax etc., cannot be scrutinized, in a normal assessment proceeding."}},{"from_name":"label","id":"1442b5348893414989753192134e20e4","to_name":"text","type":"labels","value":{"end":20810,"labels":["PRE_RELIED"],"start":20493,"text":"One of the contentions raised in the case before the Supreme Court was that there was a finding that, the assessee had collected sales tax in respect of its sale turnover for which exemption was claimed and as such, the said amount was refundable under Section 8(B) of the Jammu & Kashmir General Sales Tax Act, 1962."}},{"from_name":"label","id":"696b083d38fd4fa5b364a0ac746993f9","to_name":"text","type":"labels","value":{"end":21213,"labels":["PRE_RELIED"],"start":20811,"text":"The Court while leaving the question of applicability of Section 8(B) in that case open, held that whether any element of sale tax had merged in the fixation of the sale price and that amounts to collection of sales tax, would have to be decided in a separate proceeding that may have to be initiated under Section 8(B) of the said Act, if the State demands payment under the said provision of the Act."}},{"from_name":"label","id":"40297736c4d44fdd86d7766495dab51a","to_name":"text","type":"labels","value":{"end":21881,"labels":["PRE_RELIED"],"start":21213,"text":"\n 30. In a similar situation, where the assessment was completed by levying tax during the period of exemption on the ground that in spite of the exemption being granted, the assessee charged and collected tax, this Court in Mahabir Coke Industries Pvt. Ltd. Vs. Commissioner of Taxes reported in (2003)5 GLR 175 quashed the orders of assessment by holding that if any allegation of unauthorized collection of tax is established, the consequences as provided in Section 65A of the Assam General Sales Tax Act, 1993 which related to forfeiture of the unauthorized collection of tax and/or Section 10 of the Central Sales Tax Act, 1956, as case may be, would follow."}},{"from_name":"label","id":"4326ad0af3cd4a588cb62a4ceb1b7d86","to_name":"text","type":"labels","value":{"end":22193,"labels":["PRE_RELIED"],"start":21882,"text":"It was thus held that the impugned action of making a general assessment of all the transactions in exercise of powers under Section 17(4) and 9(2) of the 1956 Act and raise a demand for tax, without examining each and every transaction to determine whether any tax was at all collected, cannot be countenanced."}},{"from_name":"label","id":"05d817e721f34902a9bece0ee2e4c6b3","to_name":"text","type":"labels","value":{"end":22380,"labels":["ANALYSIS"],"start":22193,"text":"\n 31. The words used in the statute should ordinarily be understood in their natural and grammatical meaning except when it is found to be inconsistent with the rest of the enactment."}},{"from_name":"label","id":"76c10442793b4340be4ad8fb3961b7ae","to_name":"text","type":"labels","value":{"end":22533,"labels":["ANALYSIS"],"start":22381,"text":"Departure from the golden rule of construction is impermissible unless there be something in the context, which warrants a deviation to avoid absurdity."}},{"from_name":"label","id":"75f5fea465a440419739ba40fb78f36b","to_name":"text","type":"labels","value":{"end":22607,"labels":["ANALYSIS"],"start":22534,"text":"But admission to entertainment is not the same as the person entertained."}},{"from_name":"label","id":"e4f6caeeaa164746ac2f8c5ac3451fda","to_name":"text","type":"labels","value":{"end":22732,"labels":["ANALYSIS"],"start":22608,"text":"Hence if we construe the expression with its natural and common sense meaning, the levy is upon admittance to entertainment."}},{"from_name":"label","id":"68acf8228aed4d0583755de435f2e145","to_name":"text","type":"labels","value":{"end":22950,"labels":["ANALYSIS"],"start":22733,"text":"Such construction does not clash in any manner even if we read the Assam Act as a whole and no incongruity or absurdity is discernible, if ordinary meaning is attributed to the expression used in the charging section."}},{"from_name":"label","id":"f67eb4676f344572b6919cccbbd0e7d9","to_name":"text","type":"labels","value":{"end":23136,"labels":["ANALYSIS"],"start":22951,"text":"Therefore merely because entertainment tax is borne ultimately by the cine-goers will not permit us to import the words person entertained, when such words are missing in the enactment."}},{"from_name":"label","id":"dcb334529b7948708bc1e03228e380d6","to_name":"text","type":"labels","value":{"end":23277,"labels":["ANALYSIS"],"start":23136,"text":"\n 32. In fact if we take the analogy of other indirect taxation, the logic of the above manner of construction can be better appreciated."}},{"from_name":"label","id":"b844aca1292b45f388d6a891e5132f9f","to_name":"text","type":"labels","value":{"end":23395,"labels":["ANALYSIS"],"start":23278,"text":"The charge and levy of central excise duty is on manufacturer but the tax burden is eventually borne by the consumer."}},{"from_name":"label","id":"e0a44c9d207a4c998f6ba6bdb6add542","to_name":"text","type":"labels","value":{"end":23591,"labels":["ANALYSIS"],"start":23396,"text":"Does it then mean that the charge and levy of excise tax is on the person who purchases the manufactured goods at a value which includes the component of excise duty, charged to the manufacturer."}},{"from_name":"label","id":"520d438a54c64392b6b7ffb15cd4b7c6","to_name":"text","type":"labels","value":{"end":23694,"labels":["ANALYSIS"],"start":23592,"text":"Similarly, levy of sales tax is on sale transactions but the tax is eventually borne by the purchaser."}},{"from_name":"label","id":"8b5f036ca28845cd82d4fa75a6fa11e9","to_name":"text","type":"labels","value":{"end":23787,"labels":["ANALYSIS"],"start":23695,"text":"Can it then be said that charge and levy of sales tax is on the person who buys the product."}},{"from_name":"label","id":"f1257b78851944249e66e333c98fe86c","to_name":"text","type":"labels","value":{"end":24105,"labels":["ANALYSIS"],"start":23788,"text":"The logical answer for both example is that charge and levy will continue to be on manufacturer (for central excise) and on seller (for sales tax) and in neither situation, the person who eventually pay the excise duty or sales tax, can be a factor, for roping in the purchaser, for constructing the charging section."}},{"from_name":"label","id":"a5869822b6114220aa16a0d17d3bb93a","to_name":"text","type":"labels","value":{"end":24268,"labels":["ANALYSIS"],"start":24106,"text":"They key words is admission in Section 3 of Assam Act and admission may refer to not only the person admitted (cine-goer) but also the one who admits (exhibitor)."}},{"from_name":"label","id":"824d7cc25c0d4cf1912a925ce03a90cc","to_name":"text","type":"labels","value":{"end":24484,"labels":["ANALYSIS"],"start":24269,"text":"Therefore in our analysis, the person entertained and the person providing entertainment should stand together and this is possible only when, we interpret the words in the charging section in their natural meaning."}},{"from_name":"label","id":"5baf1b84325b4ddcb4cf8c323b189ea3","to_name":"text","type":"labels","value":{"end":24582,"labels":["ANALYSIS"],"start":24485,"text":"In other words, admission to entertainment can‟t have the same meaning as the person entertained."}},{"from_name":"label","id":"4395241789c94794ab3f7c3a623f858d","to_name":"text","type":"labels","value":{"end":24760,"labels":["PRE_NOT_RELIED"],"start":24583,"text":"Thus we hold that the decision in State of Karnataka vs.\n Drive-in-Enterprises reported in (2001) 4 SCC 60 will not apply in these cases in the context of the Assam Act."}},{"from_name":"label","id":"04dbe95dcf184f1197bcb569f2cebde9","to_name":"text","type":"labels","value":{"end":24770,"labels":["ANALYSIS"],"start":24760,"text":"\n 33. "}},{"from_name":"label","id":"787726cf2dd94df88309f061456e9f6a","to_name":"text","type":"labels","value":{"end":24922,"labels":["ANALYSIS"],"start":24770,"text":"The scheme of the Assam Act is that notwithstanding the collection of tax from the cine-goers, the liability to pay the tax remains with the exhibitors."}},{"from_name":"label","id":"bc9c827b69e04779819882a68493e4eb","to_name":"text","type":"labels","value":{"end":25055,"labels":["ANALYSIS"],"start":24923,"text":"To understand the implication thereof, we may again benefit by referring to the levy of sales tax where the charge is on the dealer."}},{"from_name":"label","id":"a6343b539603472eba80f4af4e294bb6","to_name":"text","type":"labels","value":{"end":25125,"labels":["ANALYSIS"],"start":25056,"text":"Similarly for central excise duty, the charge is on the manufacturer."}},{"from_name":"label","id":"b3afe39ade74489db8ae68614c884806","to_name":"text","type":"labels","value":{"end":25253,"labels":["ANALYSIS"],"start":25126,"text":"But in both process, while the taxable event is sale or manufacture as the case may be, the tax is collected from the consumer."}},{"from_name":"label","id":"1ae2b3e630334e929ca58af9979e1180","to_name":"text","type":"labels","value":{"end":25374,"labels":["ANALYSIS"],"start":25254,"text":"But non-payment of tax by the consumer is never a relevant factor to determine the liability of the dealer/manufacturer."}},{"from_name":"label","id":"c2ef718fd12f4d658a713d7115c3cd0f","to_name":"text","type":"labels","value":{"end":25452,"labels":["ANALYSIS"],"start":25375,"text":"Therefore tax liability and actual payment of tax are conceptually different."}},{"from_name":"label","id":"1dec13f2b728444483890b6b120bb37a","to_name":"text","type":"labels","value":{"end":25664,"labels":["ANALYSIS"],"start":25453,"text":"Thus in the event of exemption, since the entertainment tax liability is on the exhibitor, the target of exemption notification needn‟t be the cine-goers, merely because, tax is borne by him under the Assam Act."}},{"from_name":"label","id":"4303e8dd8b8c488f9bdbc301946ab883","to_name":"text","type":"labels","value":{"end":25791,"labels":["ANALYSIS"],"start":25664,"text":"\n 34. The entry 62 of List-II of the 7th Schedule empowers the State Legislature to levy tax, inter alia, on entertainment."}},{"from_name":"label","id":"98fba94147d6406fb19525fee3c108ea","to_name":"text","type":"labels","value":{"end":25906,"labels":["ANALYSIS"],"start":25792,"text":"Under the Assam Act, the taxable event is on admission to entertainment as is specified in the charging section 3."}},{"from_name":"label","id":"bb61d1dd48f24d18af42946968c140aa","to_name":"text","type":"labels","value":{"end":26074,"labels":["ANALYSIS"],"start":25907,"text":"When the taxable event relates to entertainment, the levy and charge is not necessarily on the person entertained, who nevertheless have to bear the entertainment tax."}},{"from_name":"label","id":"4a4f7d26e0534cc89415ee7d066197e1","to_name":"text","type":"labels","value":{"end":26276,"labels":["ANALYSIS"],"start":26074,"text":"\n On proper construction of the charging section which doesn‟t declare that the levy on the person entertained, it will be wrong in our understanding, to import words not found in the Assam Act."}},{"from_name":"label","id":"1b2018e3518a44798dc161ef4057c16c","to_name":"text","type":"labels","value":{"end":26396,"labels":["ANALYSIS"],"start":26276,"text":"\n 35. It is important to keep in mind that charge and levy and the incidence of taxation are conceptually different."}},{"from_name":"label","id":"c61bcee8e9da404096da391456f84b3a","to_name":"text","type":"labels","value":{"end":26576,"labels":["ANALYSIS"],"start":26397,"text":"Under the exemption notification of 29.03.2008 (Annexure-1), charge and levy is not absolved and therefore it is difficult to accept that charging of tax is exempted by the State."}},{"from_name":"label","id":"1fd3a3c921604a56a6b8a4d733fcc457","to_name":"text","type":"labels","value":{"end":26746,"labels":["ANALYSIS"],"start":26577,"text":"This indirect tax is to be borne by the cine-goers on admission to entertainment but the liability to pay the tax to the State under the Assam Act, is on the exhibitors."}},{"from_name":"label","id":"4ace887aa1c541eea946c45f57e046ef","to_name":"text","type":"labels","value":{"end":26896,"labels":["ANALYSIS"],"start":26747,"text":"So when the liability from payment of tax is exempted, the benefit in our understanding, should go to the entity which is made liable to pay the tax."}},{"from_name":"label","id":"517c3271a93e4a81bb2dcae018371bac","to_name":"text","type":"labels","value":{"end":27124,"labels":["ANALYSIS"],"start":26897,"text":"Merely because the tax is ultimately borne by the cine-goers, exemption is not intended for them particularly when, the notification targets those exhibitors, who commenced commercial operation between 1.4.2007 to 1.2.2008.\n 36"}},{"from_name":"label","id":"ac796a8cc76141d0b5cec04e3494af7e","to_name":"text","type":"labels","value":{"end":27283,"labels":["ANALYSIS"],"start":27124,"text":". The different sections of the Assam Act must be harmoniously construed to understand the purport of the exemption notification issued under Section 8(2)."}},{"from_name":"label","id":"071620f34a414a2b8fd984b78ea96476","to_name":"text","type":"labels","value":{"end":27536,"labels":["ANALYSIS"],"start":27284,"text":"The Section 3(6) imposes the liability to pay tax on the exhibitor and therefore when we construe Section 3(6) together with Section 18(3), it is logical to conclude that the benefit is intended for the exhibitors and was not meant for the movie-goers."}},{"from_name":"label","id":"96afe31345704caebb7d8616ee512af6","to_name":"text","type":"labels","value":{"end":27767,"labels":["ANALYSIS"],"start":27536,"text":"\n 37. The next thing to consider is whether, in the context of the formats and certificates prescribed under the Assam Rules and more particularly Rule 8, it will be correct to conclude that the exemption is for the cine-goers."}},{"from_name":"label","id":"23c53ce382b0412aba3e36ad4b5eea3d","to_name":"text","type":"labels","value":{"end":27888,"labels":["ANALYSIS"],"start":27768,"text":"What is significantly different in sub-sections (1) and (2) of Section 8 is that each one operates on a different field."}},{"from_name":"label","id":"d4748dc2009444ef997d1e2188bd6253","to_name":"text","type":"labels","value":{"end":28046,"labels":["ANALYSIS"],"start":27889,"text":"The sub-section (1) speaks of not charging tax on certain exigencies whereas sub-section (2) speaks of exemption from liability to pay the entertainment tax."}},{"from_name":"label","id":"b9d09ca4cd824a74a56b55cfef906943","to_name":"text","type":"labels","value":{"end":28249,"labels":["ANALYSIS"],"start":28047,"text":"When such distinction is made by the law makers in Section 8 itself, the formats and certificates specified under the Assam Rules has to be understood in the context of the exemption under Section 8(1)."}},{"from_name":"label","id":"e4f2e147a4554bba829a15af8645f11d","to_name":"text","type":"labels","value":{"end":28444,"labels":["ANALYSIS"],"start":28250,"text":"Blind application of the prescribed forms, certificates and registers in the Assam Rules for the sub-section (2) exemption (where they do not fit in), will naturally lead to an absurd situation."}},{"from_name":"label","id":"fb573a278c1b4869a6e5c6798d4efb33","to_name":"text","type":"labels","value":{"end":28615,"labels":["ANALYSIS"],"start":28444,"text":"\n 38. The plain reading of Rule 19 and 20 of the Assam Rules would show that the same is applicable only in respect of exemption granted under Section 8(1) of the Act."}},{"from_name":"label","id":"55bbfb0a9bbd4c16b49759fddb110835","to_name":"text","type":"labels","value":{"end":28841,"labels":["ANALYSIS"],"start":28616,"text":"While the Rule 19 do make reference to Section 8 generally but if we read Rule 19 together with Rule 20 and Form V, it becomes clear that the Rules are not applicable for exemption granted under Section 8(2) of the Assam Act."}},{"from_name":"label","id":"4f5694f0607c48f899952209090b99fe","to_name":"text","type":"labels","value":{"end":29001,"labels":["ANALYSIS"],"start":28842,"text":"In this connection, the contention of the petitioner gets fortified by the circular No.CTA-41/84/9 dated 06.02.1987 issued by the Commissioner of Taxes, Assam."}},{"from_name":"label","id":"77ff7282adbe402da6e26e2059d47e0c","to_name":"text","type":"labels","value":{"end":29101,"labels":["ANALYSIS"],"start":29001,"text":"\n The govt. circular says that the exemption is to be applied under Section 8(1) of the Act."}},{"from_name":"label","id":"1516dc0a35ba4209936fa0679cb655ed","to_name":"text","type":"labels","value":{"end":29264,"labels":["ANALYSIS"],"start":29102,"text":"The Rule 20 clarifies the issue further when it provides that the application for exemption has to be made not less than 30 days before the date of entertainment."}},{"from_name":"label","id":"a2def65a5d464adcaa33ba5da18cd4d8","to_name":"text","type":"labels","value":{"end":29435,"labels":["ANALYSIS"],"start":29265,"text":"When the Rules are framed for carrying out the purpose of the Act the provision of the statute cannot be interpreted on the basis of the Rules framed under the Assam Act."}},{"from_name":"label","id":"2d4c87c72c6248d78a0eced53b276ba4","to_name":"text","type":"labels","value":{"end":29608,"labels":["ANALYSIS"],"start":29436,"text":"If a particular Rule does not fit in with a specific provision of the Act, the scope of the concerned section cannot be curtailed and/or widened, on the basis of the Rules."}},{"from_name":"label","id":"c465b8e1eb0f4325bc0e87c2c4d7e2c4","to_name":"text","type":"labels","value":{"end":29693,"labels":["ANALYSIS"],"start":29609,"text":"Such forced interpretation will in our view, subvert the clear words in the statute."}},{"from_name":"label","id":"d8abb5ad1b5b463ab5de377aaa94617d","to_name":"text","type":"labels","value":{"end":29776,"labels":["ANALYSIS"],"start":29694,"text":"In any case, the Rules are intended to support the Act and can‟t abrogate the Act."}},{"from_name":"label","id":"03abfb20586c4f8692d9054cc4edc38a","to_name":"text","type":"labels","value":{"end":29867,"labels":["ANALYSIS"],"start":29777,"text":"Therefore the argument raised to the contrary by the counsel for the revenue, is rejected."}},{"from_name":"label","id":"26487fd8d0cd4be79ef89fb76d242f5f","to_name":"text","type":"labels","value":{"end":29930,"labels":["ANALYSIS"],"start":29867,"text":"\n 39. Unambiguous intention is essential in fiscal statute."}},{"from_name":"label","id":"2c55a1ab309049cab5a9c51e207e8efb","to_name":"text","type":"labels","value":{"end":30034,"labels":["ANALYSIS"],"start":29931,"text":"It is not stated anywhere in the Assam Act that the exemption benefit was intended for the cine- goers."}},{"from_name":"label","id":"f81fe31edc9e4c0cba83f4b3a6d2529e","to_name":"text","type":"labels","value":{"end":30190,"labels":["ANALYSIS"],"start":30035,"text":"Therefore when nothing as such is mentioned, it will be erroneous to import words to construe the exemption notification, as a benefit for the cine- goers."}},{"from_name":"label","id":"646d83b4deec48a68d15c74b239cd164","to_name":"text","type":"labels","value":{"end":30377,"labels":["ANALYSIS"],"start":30191,"text":"It can‟t also be overlooked that cine-goers form a class of their own without any rational differentiation between those who watch movies in normal cinema halls and those in multiplexes."}},{"from_name":"label","id":"38434ba4fb8e4da49afad1ce5eebba0b","to_name":"text","type":"labels","value":{"end":30578,"labels":["ANALYSIS"],"start":30378,"text":"But there is clear distinction between two categories of exhibitors (ordinary cinema halls and multiplexes) where the quality of entertainment, ambience and comfort provided, are surely of two levels."}},{"from_name":"label","id":"edc9ca625dbb445aad1f9fa0c646478b","to_name":"text","type":"labels","value":{"end":30796,"labels":["ANALYSIS"],"start":30579,"text":"The exemption notification speaks of those multiplexes which commenced commercial operation in Assam on or after 1.4.2007 but prior to 1.2.2008 and they are exempted from the liability to payment of entertainment tax."}},{"from_name":"label","id":"27e31b3b019e437a92fc74691712cc82","to_name":"text","type":"labels","value":{"end":30897,"labels":["ANALYSIS"],"start":30797,"text":"Therefore it is natural to infer from the words used that, exemption is intended for the exhibitors."}},{"from_name":"label","id":"05eb3b0249284318a71de45926706785","to_name":"text","type":"labels","value":{"end":31023,"labels":["ANALYSIS"],"start":30898,"text":"According to our perception, contrary conclusion will be illogical when the literal Rules of interpretation is to be applied."}},{"from_name":"label","id":"33ee7faa3c1e4cdc8ecc626c68b73d72","to_name":"text","type":"labels","value":{"end":31231,"labels":["ANALYSIS"],"start":31023,"text":"\n 40. The concept of cineplex is new in Assam and the state has obviously tried to encourage establishment of cineplexes through incentives by way of exemption from the liability to pay entertainment tax."}},{"from_name":"label","id":"87c28e2c51044928bedf79f3cfcd8ba9","to_name":"text","type":"labels","value":{"end":31422,"labels":["ANALYSIS"],"start":31232,"text":"The mere fact that incidence of tax is on the cine-goers, the exemption notification in the face of clear words can‟t be understood to target those, who pay to be admitted for entertainment."}},{"from_name":"label","id":"b9489a06883d428cbd57c0eaaa7a0600","to_name":"text","type":"labels","value":{"end":31493,"labels":["ANALYSIS"],"start":31422,"text":"\n 41. Next we have to deal with the submission of the learned Addl."}},{"from_name":"label","id":"84a6b89e954447c595953b5479e61e91","to_name":"text","type":"labels","value":{"end":31510,"labels":["ANALYSIS"],"start":31494,"text":"Advocate General"}},{"from_name":"label","id":"38bc7234bd424618a5e4bdfb22971333","to_name":"text","type":"labels","value":{"end":31759,"labels":["ANALYSIS"],"start":31511,"text":"that the exemption notification shouldn‟t be construed in favour of the petitioners since mode and manner of disbursal of incentives is not prescribed here unlike in the Govt. notification dated 30.3.2007 issued under the State‟s Industrial Policy."}},{"from_name":"label","id":"f1eea539a1a1421eb53d7b69b46c2c42","to_name":"text","type":"labels","value":{"end":31913,"labels":["ANALYSIS"],"start":31760,"text":"The context in which tax incentive was granted by the Govt.\n notification dated 30.3.2007 are clearly distinguishable from the present situation."}},{"from_name":"label","id":"32c9d28fc81f4a4e9b8d66886f558469","to_name":"text","type":"labels","value":{"end":32074,"labels":["ANALYSIS"],"start":31914,"text":"In our perception, elaborate mechanism is unnecessary here since the exhibitors are simply made free of their obligation to pay to the State, the collected tax."}},{"from_name":"label","id":"914174cd83d04fca9577ee9fb273c0d6","to_name":"text","type":"labels","value":{"end":32139,"labels":["ANALYSIS"],"start":32075,"text":"Therefore the argument on this issue do not aid the respondents."}},{"from_name":"label","id":"615cc060f4fe46f0ba550d693a620af6","to_name":"text","type":"labels","value":{"end":32397,"labels":["PRE_NOT_RELIED"],"start":32139,"text":"\n 42. The Madras High Court in P. Sankara Narayanan (supra) while examining a challenge to levy of higher tax for dubbed films had described that exhibitors is simply a collection agent since the burden of taxation is ultimately passed on the cine-goers."}},{"from_name":"label","id":"fb7abadcb0e04c0ea4b43cce28c837ce","to_name":"text","type":"labels","value":{"end":32776,"labels":["ANALYSIS"],"start":32398,"text":"But in the face of the exhibitor‟s obligation under Section 3(6) of the Assam Act, the primary liability to pay the entertainment tax under the enactment we are considering, is on the exhibitors and therefore the passing observation of the learned Judge of the Madras High Court in the context of the Tamil Nadu case, can have no bearing on our decision, in the present matters."}},{"from_name":"label","id":"f24ea983bf71437589e8cb8374fb6cef","to_name":"text","type":"labels","value":{"end":32987,"labels":["ANALYSIS"],"start":32776,"text":"\n 43. Now we have to analyse whether the decision in Swanstone Multiplex (Supra) can be applied here to deny the benefit of the exemption notification to the exhibitors on the principle of unjust enrichment."}},{"from_name":"label","id":"2f1b91cd168644ab9fed4a3984fcb627","to_name":"text","type":"labels","value":{"end":33170,"labels":["ANALYSIS"],"start":32988,"text":"As earlier noted, the charging of tax is not exempted but liability from payment of tax is exempted, under the Notification dated 29.3.2008 issued under sub-section (2) of Section 8."}},{"from_name":"label","id":"36082c23581a400f9ea507d0b9255b88","to_name":"text","type":"labels","value":{"end":33285,"labels":["ANALYSIS"],"start":33170,"text":"\n But on the other hand, the charging of tax exempted, when a notification is issued under sub-section (1)."}},{"from_name":"label","id":"3bff681aa65c46dab087fa8337899885","to_name":"text","type":"labels","value":{"end":33556,"labels":["ANALYSIS"],"start":33286,"text":"When the tax liability is imposed on the cineplex owners under Section 3(6) of the Assam Act, the exemption notification under Section 8(2) has to be construed in our view as one, intended to provide incentives to new multiplexes established during the specified period."}},{"from_name":"label","id":"67efff6274b54501bf89d8b67b213a1f","to_name":"text","type":"labels","value":{"end":33725,"labels":["ANALYSIS"],"start":33557,"text":"Therefore when charge of tax has not been exempted (since Section 8(1) notification is not issued here), the collection of tax can‟t be described as illegal collection."}},{"from_name":"label","id":"a4d2fab5152a443b8b98a3971340d731","to_name":"text","type":"labels","value":{"end":33845,"labels":["ANALYSIS"],"start":33726,"text":"Thus retention of the collected tax (when levy is not exempted), do not amount to unjust enrichment for the exhibitors."}},{"from_name":"label","id":"dafb3dd9f6af431692de3a5f7864557e","to_name":"text","type":"labels","value":{"end":33990,"labels":["ANALYSIS"],"start":33846,"text":"Therefore we hold that the decision in Swanstone Multiplex (Supra) can‟t be applied to deny the benefit to the petitioners in the present cases."}},{"from_name":"label","id":"7a9e95cc945944bd99c79855cedeef3d","to_name":"text","type":"labels","value":{"end":34283,"labels":["ANALYSIS"],"start":33990,"text":"\n 44. Consequently the tax recovered by the exhibitors, as admitted by the 2nd group of litigants, in our view is not collected illegally and therefore we declare that they have no obligation under Section 172 of the Contract Act, to refund any entertainment tax for the exempted period."}},{"from_name":"label","id":"fbac2d4faa51406b86c79897fccd21e4","to_name":"text","type":"labels","value":{"end":34449,"labels":["RATIO"],"start":34283,"text":"\n 45. As earlier noted the charge and levy of tax was never exempted and therefore the cine-goers were not provided any relief under the exemption notification."}},{"from_name":"label","id":"2d094325d5c14bb6b214f5dc87f8b11b","to_name":"text","type":"labels","value":{"end":34626,"labels":["RATIO"],"start":34450,"text":"On the other hand, the exhibitor was freed of their obligation from the liability to the entertainment tax, through the notification issued under Section 8(2) of the Assam Act."}},{"from_name":"label","id":"c338f251ffb64345b668feb212abddc1","to_name":"text","type":"labels","value":{"end":34866,"labels":["RATIO"],"start":34627,"text":"Therefore we have no hesitation to hold that incentive was intended for the investors on cineplexes and consequently for the relevant period, the exhibitors can‟t be forced to discharge their obligation under Section 3(6) of the Assam Act."}},{"from_name":"label","id":"eb268fd052ae4dfb93844ff1a29dd688","to_name":"text","type":"labels","value":{"end":35223,"labels":["RPC"],"start":34867,"text":"Since in the present case, entertainment tax has been levied only on the ground that in spite of the exemption having been granted by the notification dated 29.03.2008, petitioners allegedly collected entertainment tax, the impugned orders of assessment are declared to be illegal, without jurisdiction and therefore the same are set aside and quashed.\n 46"}},{"from_name":"label","id":"9899bcd0dbf14adabc8d6d958e2d353b","to_name":"text","type":"labels","value":{"end":35589,"labels":["RPC"],"start":35223,"text":". Following the above discussion and our conclusion in favour of the exhibitors on all the issues as delineated above, we declare that the demand of entertainment tax from the exhibitors for the period specified in the notification dated 29.3.2008 (Annexure-I) is illegal and therefore the assessment to tax under the Assam Act for the petitioners are quashed."}},{"from_name":"label","id":"e49e71e343a34623a7c0a77f4f08e29a","to_name":"text","type":"labels","value":{"end":35634,"labels":["RPC"],"start":35590,"text":"The cases are allowed with this declaration."}},{"from_name":"label","id":"ca21d7eb81c0418db08a023dc8e95e13","to_name":"text","type":"labels","value":{"end":35643,"labels":["RPC"],"start":35635,"text":"No cost."}},{"from_name":"label","id":"adc27a6f0a9e411b978cae9f358ea9d5","to_name":"text","type":"labels","value":{"end":35697,"labels":["NONE"],"start":35643,"text":"\n JUDGE JUDGE Barman/Roy/Datta"}}]}],"string":"[\n {\n \"result\": [\n {\n \"from_name\": \"label\",\n \"id\": \"9281fe5205e043f0a4d8ef0533c164b0\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 59,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 34,\n \"text\": \"IN THE GAUHATI HIGH COURT\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"a6d9a556dfc547dd82eca8b05ebe5732\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 133,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 71,\n \"text\": \"(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"e206271b25be44ee922c8bfadd14dcab\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 166,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 153,\n \"text\": \"I. 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WP(C) No.4479/2014\\n M\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"9b13d23caa7b407ea4d265fe337bf8dc\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 4321,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 4308,\n \"text\": \"/s PVR. 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JUSTICE HRISHIKESH ROY\\n THE HON’BLE\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"7929319b767a446d838eeacc4a2e3caa\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 4799,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 4769,\n \"text\": \"MR. JUSTICE PARAN KUMAR PHUKAN\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"a8c62a07bccc432b8e384da012ab677e\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 5060,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 4810,\n \"text\": \"Advocate(s) for the Petitioner : Dr. Ashok Saraf …Sr. Adv.,\\n Mr. P. Baruah,\\n Mr. Z. Islam.\\n\\n Advocate(s) for the Respondents : \"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"d721cd27e2ed45fb89aa2fc4b686374b\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 5143,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 5060,\n \"text\": \"Mr. D. Saikia, Addl. A.G., Assam,\\n \"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"04be703976d44a21ac994eae773449e5\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 5184,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 5143,\n \"text\": \"Mr. B. Choudhury, SC, Finance & Taxation.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"7fb97bff7d964bf385b7d69ac6d08415\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 5288,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 5195,\n \"text\": \"Date of Hearing : 19.7.2016, 21.7.2016, 22.7.2016, 9.8.2016\\n \"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"6c8faa80c6c047519d8e84753ec18445\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 5329,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 5288,\n \"text\": \"Date of Judgment :\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"5f4784e610df4b78bfa2d28c9819b680\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 5347,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 5330,\n \"text\": \"30th August, 2016\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"dd19e62efd194be58e11d3b9a3f8e4ee\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 5397,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 5357,\n \"text\": \"Date of Judgment correction \"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"9b7a62a1bc20416c85d560ac0e4a3736\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 5409,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 5397,\n \"text\": \": 02.09.2016\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"10f75ad93168480982e02657b2addce8\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 5469,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 5451,\n \"text\": \"JUDGMENT AND ORDER\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"8adbc9856c8c4d669697fdcddcdced1e\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 5581,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 5470,\n \"text\": \"[Hrishikesh Roy, J.] Heard Dr. A. Saraf, learned Senior Counsel appearing for the petitioners in all the cases.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"95d3b9cda5dd43a4b04b83734de3bf91\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 5672,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 5582,\n \"text\": \"Also heard Mr. D. Saikia, the learned Addl. Advocate General representing the respondents.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"20c38f2f2d224ee9828ad3941b7df757\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 5682,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 5674,\n \"text\": \"2. \"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"660248a6fd7749bfaf409892ff71730e\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 5920,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 5682,\n \"text\": \"The petitioners operate multiplex/mini cinema halls and the issue here is their liability towards entertainment tax for the relevant period, under the Assam Amusement and Betting Tax Act, 1939 (hereinafter referred to as „the Assam Act‟).\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"627c0f1875734afa9ef45b483070f50d\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 6231,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 5921,\n \"text\": \"The concerned entities, hereinafter referred to as “the Exhibitors” commenced commercial operation in Assam between 1.4.2007—1.2.2008 and therefore, by virtue of the Govt. Notification dated 29.3.2008 (Annexure-I), the exhibitors seek exemption from the liability to payment of tax, for a period of five years.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"c02c836e017e449fac470fb66968cc02\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 6322,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 6232,\n \"text\": \"The exemption notification was issued under Sub-Section (2) of Section 8 of the Assam Act.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"c1781ca49b2a46b4907134206a890de2\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 6397,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 6323,\n \"text\": \"The petitioners in this batch of litigations can be divided in two groups.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"4ddf6f794a8043bea06cdfe4cd9a121b\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 6716,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 6398,\n \"text\": \"The first is the M/s. PVR Ltd. who have filed the WP(C) No.4477/2014, WP(C) No.4480/2014 and WP(C) No.4479/2014 and they claim that they have not collected the tax, whereas the 2nd group of M/s. Mridul Properties (P) Ltd., in the other five cases, have admittedly recovered the entertainment tax, from the movie-goers.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"a3840a43cce74d50b39b38ffdaa181a6\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 6893,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 6716,\n \"text\": \"\\n 3. The cases have common facts and hence for the sake of convenience, the narratives in this order are extracted from the WP(C) No.4477/2014, filed by the M/s. PVR Ltd.\\n \"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"a776fb7e830e4b0c97714784de173690\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 6918,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 6893,\n \"text\": \"BACKGROUND FACTS 4. \"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"bc851b4659754e53bb08328cc72bc16c\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 7199,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 6918,\n \"text\": \"Through the notice dated 12.9.2012 (Annexure-IV), the Superintendent of Taxes alleged that the Exhibitors were unauthorisedly collecting tax from the movie-goers and accordingly demand was made for deposit of the collected amount or else, tax would be assessed under the Assam Act.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"2e792c6fe4eb40c4939183d5024e3bec\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 7353,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 7200,\n \"text\": \"In their response, the first group contended that entertainment tax was not collected and accordingly they requested for recall of the tax demand notice.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"4ef856f3d098495bb7ba5aa6ecebb463\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 7363,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 7353,\n \"text\": \"\\n 5. \"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"ed674d0d6e084d66be3f4e6baea9e807\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 7714,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 7363,\n \"text\": \"Dissatisfied with the reply, a show cause notice for assessment under Section 5-A(2) of the Assam Act was issued on 13.12.2012 (Annexure-X), where it was alleged that tax is being illegally collected from the movie-goers, in spite of the exemption notification dated 29.3.2008 (Annexure-I), issued under Sub- Section (2) of Section 8 of the Assam Act.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"eb934a7a1dd84fbfad78a8b9e5fffa5f\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 7895,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 7715,\n \"text\": \"According to the notice, the claim of not charging entertainment tax made by the exhibitor is not believable, as the tickets issued for certain films, reflects the charging of tax.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"8ab24cf21ff84594a0162949fcc12c17\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 7973,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 7896,\n \"text\": \"Hence, tax was proposed to be assessed under Section 5-A(2) of the Assam Act.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"469e03ccf7b14ca8958988c96df76967\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 8190,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 7973,\n \"text\": \"\\n 6. In response to the show cause notice, the exhibitor reiterated that they have not collected any amount towards entertainment tax and they offered to submit their Books-of-Account to support their contention.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"15bf2c610698438e9aa2c849851d7d65\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 8351,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 8191,\n \"text\": \"However through the assessment order dated 1.3.2013, the tax was assessed on the basis of the total turnover and interest was also added to the assessed amount.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"7408ad0e08fe490386b0e256b90c45a6\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 8361,\n \"labels\": [\n \"RLC\"\n ],\n \"start\": 8353,\n \"text\": \"7. \"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"05564ff9eaa24ea287f7e2e71db1838f\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 8562,\n \"labels\": [\n \"RLC\"\n ],\n \"start\": 8361,\n \"text\": \"Being aggrieved, the exhibitors challenged the assessment through the WP(C) No.2343/2013 and this case was disposed of by the Division Bench on 6.5.2013, by relegating the party to the statutory forum.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"fb6ad0c2742b4997be405c215286cbef\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 8832,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 8563,\n \"text\": \"Thereafter the appellate authority after considering the rival submission through the impugned order dated 28.7.2014 (Annexure-XXI), opined that when the tax is collected, the same should be deposited in the Govt. exchequer or else, it will amount to unjust enrichment.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"58d7de63055d4992b30d1102a4c70abd\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 9173,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 8833,\n \"text\": \"It was also concluded that objective of exemption by the Government was to provide relief to the movie-goers and it is impermissible for the exhibitor to retain the collected tax as this would be contrary to the judgment of the Apex Court in the State of Maharashtra vs. Swanstone Multiplex Cinema Private Ltd. reported in (2009) 8 SCC 235.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"89752f01991643ec8112cdd24f2c5054\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 9388,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 9174,\n \"text\": \"On the basis of such conclusion, the Appeal was dismissed on 28.7.2014 (Annexure-XXI), by the appellate authority and consequential direction was issued to realize the assessed tax and interest, from the exhibitor.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"53a3d2109a91404685fb78c640971c28\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 9398,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 9390,\n \"text\": \"8. \"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"55e8df2e8455427590cff5b85cd8029a\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 9428,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 9398,\n \"text\": \"The other group under the M/s.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"a5d0473628af432386b19b755bd09c63\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 9435,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 9429,\n \"text\": \"Mridul\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"556741485b4b4373b5cdd7fe0ffe26aa\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 9446,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 9436,\n \"text\": \"Properties\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"45536cb5d12a4e338bcd2982d0b4a13b\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 9455,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 9447,\n \"text\": \"(P) Ltd.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"ae5ab980d98b438aa62c8e5c19ab838e\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 9633,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 9456,\n \"text\": \"admits that entertainment tax was collected on the entry tickets but denied their corresponding obligation to deposit the collected sum on account of the exemption notification.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"1d3b46d16a5043fa925d388b5b4e8a0a\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 9821,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 9634,\n \"text\": \"Confronted with similar assessment and demand like the first group, the aggrieved exhibitors filed Revision Petition(s) against the assessment order passed by the Superintendent of Taxes.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"b2a7df30abb146e88631c1ba8b6def61\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 10017,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 9822,\n \"text\": \"But since those were rejected by the common order dated 20.5.2014 (Annexure-XXII), the first group having realized the futility of revision, have decided to challenge the order in the High Court.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"5394194aa2a64c98b532b64c6a6d2aec\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 10053,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 10017,\n \"text\": \"\\n SUBMISSION OF PETITIONERS 9. \"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"78c345f27d9940638df934dc8e618895\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 10192,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 10053,\n \"text\": \"Dr. A. Saraf, learned Senior Counsel submits that tax is to be charged, levied and paid to the Government under Section 3 of the Assam Act.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"9aa1637dec5947a7a0b7eb540eec0ccd\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 10406,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 10193,\n \"text\": \"Here incentive to set up multiplex/mini cinema halls was provided by the Government by exempting the liability to payment of entertainment tax to those, who set up their projects in Assam during 1.4.2007—1.2.2008.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"f44a31073a20471d9e30bd441a5572f0\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 11123,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 10407,\n \"text\": \"Accordingly it is argued that such incentive to the multiplex/mini cinema halls is intended to encourage business activities and since they are exempted from the tax liability, there can be no assessment for the exhibitors to tax, under Section 5-A of the Assam Act.\\n 10. The petitioners refer to the fact that the exemption notice was issued under Sub-Section (2) of Section 8 of the Assam Act and therefore it is contended that there is no absolvement from charging tax but what is exempted is the liability from payment of entertainment tax and therefore it is argued that demand for tax from the exhibitors (whether realized or otherwise) is unauthorized, in the face of the exemption notification.\\n 11. \"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"a7be0e9af4c240f993927505a5ede3fa\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 11478,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 11123,\n \"text\": \"The senior counsel distinguishes the Swanstone Multiplex Cinema Private Ltd. (Supra) by submitting that present facts are different in as much as, in the case before the Supreme Court, the levy of entertainment tax was exempted and only incentives by way of zero or reduced rate of tax was provided under the policy, adopted by the Maharashtra Government.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"110e029bee544e33b4cb4551940e2b09\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 11610,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 11479,\n \"text\": \"But here in Assam unlike the Maharashtra scenario, the beneficiary was exempted from payment liability towards the State exchequer.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"77a07fc799ec473f9f5b02fbe4f1e1b1\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 11774,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 11611,\n \"text\": \"Therefore Dr. Saraf argues that it is not a case of unjust enrichment, since the charging of tax was not exempted by the Notification dated 29.3.2008 (Annexure-I).\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"62a6e099880640ffbe7be70730a93c89\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 11999,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 11775,\n \"text\": \"Hence the Assam situation is nothing but a business incentive for five years, for the new entrepreneurs in the field and retention of the collected sum is not unjust enrichment since this was permitted by the Govt.\\n 12. \"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"9a4992c54fe44bf89aca72d3976ffe91\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 12183,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 11999,\n \"text\": \"The petitioners contend that assuming that assessment is permissible, for the petitioner M/s. PVR Ltd. (who did not realize the tax), the assessment can never be on the total turnover.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"dc71912de2974234915f18bcc225596b\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 12446,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 12184,\n \"text\": \"But if there is any undue collection which can‟t be retained by the exhibitors, recovery would be permissible only through searching enquiry of each and every transaction and not through hypothetical conclusion, based upon the business turnover of the exhibitor.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"f6fc4316ae094ccbbbccac1ad7cc7c3f\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 12685,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 12446,\n \"text\": \"\\n 13. Alternately Dr. A. Saraf argues that if charging of tax is exempted, then the amount collected by the second group can never be assessed as tax and then the recovery through assessment, is contended to be impermissible.\\n 14. \"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"d30b7277306c4b0fbd8fb7b0f00c025e\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 12982,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 12685,\n \"text\": \"The substantial contention of the petitioners is that if the exhibitor is exempted from liability to payment of entertainment tax, retention can‟t be construed as unjust enrichment since it is nothing but an incentive for investment in the fresh field of multiplex and mini cinema halls, in Assam.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"6a522146d503436ba9403c4eca93a673\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 13013,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 12984,\n \"text\": \"SUBMISSION OF RESPONDENTS 15.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"74d87f80b66143969da255f895d0eb81\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 13390,\n \"labels\": [\n \"ARG_RESPONDENT\"\n ],\n \"start\": 13014,\n \"text\": \" On the other hand, Mr. D. Saikia, the learned Addl. Advocate General submits that the exemption notification was issued to encourage the cine-goers and not intended to benefit the cinema exhibitors and accordingly it is argued that the retention of the collected amount by the exhibitors is impermissible and the collected money has to be deposited in the state exchequer.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"b71eba08fad2481d85e1d5b3964b1fbf\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 13568,\n \"labels\": [\n \"ARG_RESPONDENT\"\n ],\n \"start\": 13390,\n \"text\": \"\\n 16. The respondents argue that tax is to be collected for entertainment of the movie-goers and the role of the exhibitors is only to collect the tax on behalf of the state.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"191de8ec0a984d679c5ec6c89934af20\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 13790,\n \"labels\": [\n \"ARG_RESPONDENT\"\n ],\n \"start\": 13569,\n \"text\": \"But when the tax is exempted under Section 8 of the Assam Act, the movie-goers are to be absolved and if any such tax is collected, the retention thereof in the hand of the exhibitors, will certainly be unjust enrichment.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"58be3a8da0874c13a348716a55592477\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 13962,\n \"labels\": [\n \"ARG_RESPONDENT\"\n ],\n \"start\": 13790,\n \"text\": \"\\n 17. The learned counsel for the Revenue submits that the benefit envisaged under Section 8 is for the movie-goers and the exhibitors are not the targeted beneficiary.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"6c00fb9809354c1ca065e767e9749145\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 14124,\n \"labels\": [\n \"ARG_RESPONDENT\"\n ],\n \"start\": 13963,\n \"text\": \"In support Mr. Saikia refers to the manner of granting exemption, under the Assam Amusement and Betting Tax Rules, 1939 (hereinafter referred to as „the Rules‟).\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"6b6d4ddabba84bd8adb32e35fadf665b\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 14400,\n \"labels\": [\n \"ARG_RESPONDENT\"\n ],\n \"start\": 14125,\n \"text\": \"Under Rule 2(4) read with Rule 12, every Exhibitor is required to keep at the place of entertainment, the register books of tickets and also registers of payments for admission and the records of stamps denoting the entertainment tax purchased and used in prescribed formats.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"a3416c5413244ab585f5ed78f23ab223\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 14480,\n \"labels\": [\n \"ARG_RESPONDENT\"\n ],\n \"start\": 14401,\n \"text\": \"He refers to Form No.V, prescribed under Rule 20 which certifies tax exemption.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"f94e8dcf5814423f8565a5e6125f1932\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 14661,\n \"labels\": [\n \"ARG_RESPONDENT\"\n ],\n \"start\": 14481,\n \"text\": \"The exhibitor is obliged to prominently display this certificate at the entry gate, so that the movie-goers are made aware that tax is not being collected for the show in question.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"14e3b5c1ad774d5fbe749d37fea6d3d1\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 14815,\n \"labels\": [\n \"ARG_RESPONDENT\"\n ],\n \"start\": 14662,\n \"text\": \"From these provisions of the Rules, it is argued by Mr. Saikia that the benefit of exemption is not envisaged for the exhibitors but for the movie-goers.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"d716ec8fe86f4ec18c32a530025709ed\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 15008,\n \"labels\": [\n \"ARG_RESPONDENT\"\n ],\n \"start\": 14815,\n \"text\": \"\\n 18. The learned Addl. Advocate General refers to Section 72 of the Indian Contract Act, 1872 to argue that the exhibitors have the legal obligation to refund the mistakenly collected tax.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"137389f636b24ec29d202412d4a9fd68\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 15244,\n \"labels\": [\n \"ARG_RESPONDENT\"\n ],\n \"start\": 15008,\n \"text\": \"\\n 19. The respondents argue that by virtue of the exemption, the collection of tax from the movie-goer does not arise for the relevant period and therefore if any sum is collected by the exhibitors, the same is an unjust collection.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"8b494121366a4143b4d39036e98d90a4\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 15654,\n \"labels\": [\n \"ARG_RESPONDENT\"\n ],\n \"start\": 15245,\n \"text\": \"Mr. Saikia cites Jay Vee Rice & General Mills vs. State of Haryana, reported in (2010) 10 SCC 687, to argue that when tax is unjustly collected, retention thereof by the agent is impermissible and the collected amount should either go back to the person from whom it was collected or it is to be surrendered to the state exchequer, as otherwise the retention by the exhibitor will amount to unjust enrichment.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"43a59cb2d1044a66bcb2f210f692f205\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 15900,\n \"labels\": [\n \"ARG_RESPONDENT\"\n ],\n \"start\": 15654,\n \"text\": \"\\n 20. The respondents rely upon the State of Karnataka vs. Drive-in Enterprises reported in (2001) 4 SCC 60, to contend that the levy is on the person who is entertained and therefore exemption should benefit of the person who is entertained.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"775d22db476c443a995ca9643593704d\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 16043,\n \"labels\": [\n \"ARG_RESPONDENT\"\n ],\n \"start\": 15901,\n \"text\": \"It is thus argued that the retention of the illegally collected entertainment tax in the hand of the exhibitor would be legally impermissible.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"c4d56e87ebe645369b56376ec7bc4e62\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 16696,\n \"labels\": [\n \"ARG_RESPONDENT\"\n ],\n \"start\": 16043,\n \"text\": \"\\n 21. Referring to fundamental principles of interpretation of taxing statute or exemption notification, Mr. Saikia reads Oil & Natural Gas Corporation Ltd. vs.\\n Commissioner of Income Tax reported in (2015) 10 SCC 621, to contend that literal rule of interpretation must be followed without distorting the language and common sense approach in interpretation of the exemption notification can have no role.\\n 22. To explain the role of the exhibitor, Mr. Saikia reads P. Sankara Narayanan vs. State of Tamil Nadu reported in MANU/TN/8821/2007, to contend that the exhibitors are only collecting agent of the tax on behalf of the state.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"a7cb19400e5047d9b198d61ff0193122\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 16952,\n \"labels\": [\n \"ARG_RESPONDENT\"\n ],\n \"start\": 16696,\n \"text\": \"\\n Therefore when the tax is borne by the movie-goers and if the collection is held to be unauthorised, the retention/refund can be only to the person from whom the tax is realized but not to the exhibitors, who acts as agent on behalf of the state.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"5f45b5f3fed045b7a9ddb21174513ed1\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 17178,\n \"labels\": [\n \"ARG_RESPONDENT\"\n ],\n \"start\": 16952,\n \"text\": \"\\n 23. Mr. Saikia refers to the Govt. Notification dated 30.3.2007, to contend that whenever tax is exempted under some incentive policy, the exemption notification lays down the manner and mode of disbursal of incentives.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"3561618add8c4b3c8dbe2b9f298320ac\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 17353,\n \"labels\": [\n \"ARG_RESPONDENT\"\n ],\n \"start\": 17179,\n \"text\": \"But here it was never indicated that the exhibitors are entitled to retain the collected tax and therefore it is argued that retention of the collected sum, can‟t be allowed.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"e0e1e36256c144f19819b2b5d300f1a9\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 17628,\n \"labels\": [\n \"ARG_RESPONDENT\"\n ],\n \"start\": 17353,\n \"text\": \"\\n 24. The respondents‟ lawyer refers to the assessment proceedings to contend that the exhibitors were given opportunities to produce the ticket counter-foils and also the other documents mentioned in the Rules but they failed to produce them, despite due opportunities.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"f6b5476c2c1b455dad43a8dd35187311\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 17782,\n \"labels\": [\n \"ARG_RESPONDENT\"\n ],\n \"start\": 17629,\n \"text\": \"Therefore it is argued that the authorities had rightly made assessment on the basis of best judgment, as provided under Section 5-A(2) of the Assam Act.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"ed4593372a9146a89e3d3204ba47da4f\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 17819,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 17784,\n \"text\": \"DISCUSSION AND CONCLUSION 25. \"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"500ab6e3dd004b9faadebbcd59a16de1\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 17900,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 17819,\n \"text\": \"The submission made by the rival Counsel have received our earnest consideration.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"a9bb35ff0410438784348ad787dc7b4f\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 18073,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 17900,\n \"text\": \"\\n 26. We find that the charging section of the Assam Act refers to charge, levy and payment of entertainment tax and the taxable event is on admission to entertainment.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"2f91a1fc0f444ad69309a7a729d9a9e9\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 18176,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 18074,\n \"text\": \"Under sub-section (6) of Section 3, the proprietor of the entertainment is made liable to pay the tax.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"0db065a1c7ed4219b5c95a150cf62ce0\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 18270,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 18177,\n \"text\": \"Three stages for imposition of tax was culled out by the Apex Court in Chatturam Holiram Ltd.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"89dead2e696049d380406ee0a2234caf\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 18349,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 18271,\n \"text\": \"Vs. CIT reported in AIR 1955 SC 619 and the stages are mentioned as under :- “\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"438b43361b7e4635b7072ffd1a781ada\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 18489,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 18349,\n \"text\": \"There is the declaration of liability, that is the part of the statute which determines what persons in respect of what property are liable.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"f2deb7cd23114aa9811134370cf74f9a\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 18520,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 18490,\n \"text\": \"Next, there is the assessment.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"35f013cd4c44457aa491f569be45eedc\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 18561,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 18521,\n \"text\": \"Liability does not depend on assessment.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"4ef9f68c9e8540f584697b432ba30d96\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 18605,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 18562,\n \"text\": \"That, ex hypothesi, has already been fixed.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"9d70957d728548bea57746a3fbbacd35\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 18683,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 18606,\n \"text\": \"But assessment particularizes the exact sum which a person liable has to pay.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"d5966101141c42b4bd4d5530247451c9\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 18767,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 18684,\n \"text\": \"Lastly, come the methods of recovery if the person taxed does not voluntarily pay”.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"b30e6eac0ae54d64a4afd1cb9f9046ee\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 18780,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 18767,\n \"text\": \"\\n 27.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"68b282b3c60947778066b0c7caa7198b\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 18944,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 18781,\n \"text\": \" But what we notice from the Assam Act is that while the charge and the levy is on the exhibitors, the taxable event is on admission to entertainment.\\n \"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"096735bf8612466486d9e1e6af9924f2\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 19111,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 18944,\n \"text\": \"Hence the submission of the Revenue that tax here is on the person entertained appears to be illogical as this is not found in the charging Section 3 of the Assam Act.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"0c647a3183eb4be29318cafdce658545\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 19194,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 19112,\n \"text\": \"In the enactment we are considering, the payment is on admission to entertainment.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"9854b9e819d74e4f942397a4054adf10\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 19289,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 19195,\n \"text\": \"Thus there is clear distinction in the manner, the legislative intent is expressed in the Act.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"3bef8ff855cc48c1b04f07d6aca2077b\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 19475,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 19290,\n \"text\": \"The words used in the charging section doesn‟t say that the levy is on the person entertained and only through an interpretive exercise, the expression may be understood in that manner.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"b7548a0a3aa54d9484d567c573cf1142\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 19603,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 19476,\n \"text\": \"But the question here is what was the intention of the law maker and whether there is any scope for an interpretative exercise.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"28b24fcd0a244232b4e8b0be983d321b\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 19846,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 19603,\n \"text\": \"\\n 28. In the present case, the assessing authority levied entertainment tax only on the ground that the petitioners in spite of the exemption having been granted, charged and collected entertainment tax and appropriated the same to itself.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"d63d073ad9624333815a6c82d61244b1\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 20140,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 19847,\n \"text\": \"But even if the notification dated 29.03.2008 is construed to be exemption from charge and levy of entertainment tax, then also, in case any unauthorized collection was made, the assessing authority has no power and/or jurisdiction to levy the entertainment tax during the period of exemption.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"f242c2ebae194add9d6b877184549465\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 20492,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 20142,\n \"text\": \"29. In the above context, the Apex Court in M/s Pine Chemicals Ltd. Vs.\\n Assessing Authority reported in (1992)2 SCC 683 declared that whether any amount has been collected unauthorisedly in spite of the exemption, what is the amount and whether it has been collected as tax etc., cannot be scrutinized, in a normal assessment proceeding.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"1442b5348893414989753192134e20e4\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 20810,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 20493,\n \"text\": \"One of the contentions raised in the case before the Supreme Court was that there was a finding that, the assessee had collected sales tax in respect of its sale turnover for which exemption was claimed and as such, the said amount was refundable under Section 8(B) of the Jammu & Kashmir General Sales Tax Act, 1962.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"696b083d38fd4fa5b364a0ac746993f9\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 21213,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 20811,\n \"text\": \"The Court while leaving the question of applicability of Section 8(B) in that case open, held that whether any element of sale tax had merged in the fixation of the sale price and that amounts to collection of sales tax, would have to be decided in a separate proceeding that may have to be initiated under Section 8(B) of the said Act, if the State demands payment under the said provision of the Act.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"40297736c4d44fdd86d7766495dab51a\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 21881,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 21213,\n \"text\": \"\\n 30. In a similar situation, where the assessment was completed by levying tax during the period of exemption on the ground that in spite of the exemption being granted, the assessee charged and collected tax, this Court in Mahabir Coke Industries Pvt. Ltd. Vs. Commissioner of Taxes reported in (2003)5 GLR 175 quashed the orders of assessment by holding that if any allegation of unauthorized collection of tax is established, the consequences as provided in Section 65A of the Assam General Sales Tax Act, 1993 which related to forfeiture of the unauthorized collection of tax and/or Section 10 of the Central Sales Tax Act, 1956, as case may be, would follow.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"4326ad0af3cd4a588cb62a4ceb1b7d86\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 22193,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 21882,\n \"text\": \"It was thus held that the impugned action of making a general assessment of all the transactions in exercise of powers under Section 17(4) and 9(2) of the 1956 Act and raise a demand for tax, without examining each and every transaction to determine whether any tax was at all collected, cannot be countenanced.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"05d817e721f34902a9bece0ee2e4c6b3\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 22380,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 22193,\n \"text\": \"\\n 31. The words used in the statute should ordinarily be understood in their natural and grammatical meaning except when it is found to be inconsistent with the rest of the enactment.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"76c10442793b4340be4ad8fb3961b7ae\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 22533,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 22381,\n \"text\": \"Departure from the golden rule of construction is impermissible unless there be something in the context, which warrants a deviation to avoid absurdity.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"75f5fea465a440419739ba40fb78f36b\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 22607,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 22534,\n \"text\": \"But admission to entertainment is not the same as the person entertained.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"e4f6caeeaa164746ac2f8c5ac3451fda\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 22732,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 22608,\n \"text\": \"Hence if we construe the expression with its natural and common sense meaning, the levy is upon admittance to entertainment.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"68acf8228aed4d0583755de435f2e145\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 22950,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 22733,\n \"text\": \"Such construction does not clash in any manner even if we read the Assam Act as a whole and no incongruity or absurdity is discernible, if ordinary meaning is attributed to the expression used in the charging section.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"f67eb4676f344572b6919cccbbd0e7d9\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 23136,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 22951,\n \"text\": \"Therefore merely because entertainment tax is borne ultimately by the cine-goers will not permit us to import the words person entertained, when such words are missing in the enactment.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"dcb334529b7948708bc1e03228e380d6\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 23277,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 23136,\n \"text\": \"\\n 32. In fact if we take the analogy of other indirect taxation, the logic of the above manner of construction can be better appreciated.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"b844aca1292b45f388d6a891e5132f9f\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 23395,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 23278,\n \"text\": \"The charge and levy of central excise duty is on manufacturer but the tax burden is eventually borne by the consumer.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"e0a44c9d207a4c998f6ba6bdb6add542\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 23591,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 23396,\n \"text\": \"Does it then mean that the charge and levy of excise tax is on the person who purchases the manufactured goods at a value which includes the component of excise duty, charged to the manufacturer.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"520d438a54c64392b6b7ffb15cd4b7c6\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 23694,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 23592,\n \"text\": \"Similarly, levy of sales tax is on sale transactions but the tax is eventually borne by the purchaser.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"8b5f036ca28845cd82d4fa75a6fa11e9\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 23787,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 23695,\n \"text\": \"Can it then be said that charge and levy of sales tax is on the person who buys the product.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"f1257b78851944249e66e333c98fe86c\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 24105,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 23788,\n \"text\": \"The logical answer for both example is that charge and levy will continue to be on manufacturer (for central excise) and on seller (for sales tax) and in neither situation, the person who eventually pay the excise duty or sales tax, can be a factor, for roping in the purchaser, for constructing the charging section.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"a5869822b6114220aa16a0d17d3bb93a\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 24268,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 24106,\n \"text\": \"They key words is admission in Section 3 of Assam Act and admission may refer to not only the person admitted (cine-goer) but also the one who admits (exhibitor).\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"824d7cc25c0d4cf1912a925ce03a90cc\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 24484,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 24269,\n \"text\": \"Therefore in our analysis, the person entertained and the person providing entertainment should stand together and this is possible only when, we interpret the words in the charging section in their natural meaning.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"5baf1b84325b4ddcb4cf8c323b189ea3\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 24582,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 24485,\n \"text\": \"In other words, admission to entertainment can‟t have the same meaning as the person entertained.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"4395241789c94794ab3f7c3a623f858d\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 24760,\n \"labels\": [\n \"PRE_NOT_RELIED\"\n ],\n \"start\": 24583,\n \"text\": \"Thus we hold that the decision in State of Karnataka vs.\\n Drive-in-Enterprises reported in (2001) 4 SCC 60 will not apply in these cases in the context of the Assam Act.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"04dbe95dcf184f1197bcb569f2cebde9\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 24770,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 24760,\n \"text\": \"\\n 33. \"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"787726cf2dd94df88309f061456e9f6a\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 24922,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 24770,\n \"text\": \"The scheme of the Assam Act is that notwithstanding the collection of tax from the cine-goers, the liability to pay the tax remains with the exhibitors.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"bc9c827b69e04779819882a68493e4eb\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 25055,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 24923,\n \"text\": \"To understand the implication thereof, we may again benefit by referring to the levy of sales tax where the charge is on the dealer.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"a6343b539603472eba80f4af4e294bb6\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 25125,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 25056,\n \"text\": \"Similarly for central excise duty, the charge is on the manufacturer.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"b3afe39ade74489db8ae68614c884806\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 25253,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 25126,\n \"text\": \"But in both process, while the taxable event is sale or manufacture as the case may be, the tax is collected from the consumer.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"1ae2b3e630334e929ca58af9979e1180\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 25374,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 25254,\n \"text\": \"But non-payment of tax by the consumer is never a relevant factor to determine the liability of the dealer/manufacturer.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"c2ef718fd12f4d658a713d7115c3cd0f\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 25452,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 25375,\n \"text\": \"Therefore tax liability and actual payment of tax are conceptually different.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"1dec13f2b728444483890b6b120bb37a\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 25664,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 25453,\n \"text\": \"Thus in the event of exemption, since the entertainment tax liability is on the exhibitor, the target of exemption notification needn‟t be the cine-goers, merely because, tax is borne by him under the Assam Act.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"4303e8dd8b8c488f9bdbc301946ab883\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 25791,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 25664,\n \"text\": \"\\n 34. The entry 62 of List-II of the 7th Schedule empowers the State Legislature to levy tax, inter alia, on entertainment.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"98fba94147d6406fb19525fee3c108ea\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 25906,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 25792,\n \"text\": \"Under the Assam Act, the taxable event is on admission to entertainment as is specified in the charging section 3.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"bb61d1dd48f24d18af42946968c140aa\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 26074,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 25907,\n \"text\": \"When the taxable event relates to entertainment, the levy and charge is not necessarily on the person entertained, who nevertheless have to bear the entertainment tax.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"4a4f7d26e0534cc89415ee7d066197e1\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 26276,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 26074,\n \"text\": \"\\n On proper construction of the charging section which doesn‟t declare that the levy on the person entertained, it will be wrong in our understanding, to import words not found in the Assam Act.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"1b2018e3518a44798dc161ef4057c16c\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 26396,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 26276,\n \"text\": \"\\n 35. It is important to keep in mind that charge and levy and the incidence of taxation are conceptually different.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"c61bcee8e9da404096da391456f84b3a\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 26576,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 26397,\n \"text\": \"Under the exemption notification of 29.03.2008 (Annexure-1), charge and levy is not absolved and therefore it is difficult to accept that charging of tax is exempted by the State.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"1fd3a3c921604a56a6b8a4d733fcc457\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 26746,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 26577,\n \"text\": \"This indirect tax is to be borne by the cine-goers on admission to entertainment but the liability to pay the tax to the State under the Assam Act, is on the exhibitors.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"4ace887aa1c541eea946c45f57e046ef\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 26896,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 26747,\n \"text\": \"So when the liability from payment of tax is exempted, the benefit in our understanding, should go to the entity which is made liable to pay the tax.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"517c3271a93e4a81bb2dcae018371bac\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 27124,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 26897,\n \"text\": \"Merely because the tax is ultimately borne by the cine-goers, exemption is not intended for them particularly when, the notification targets those exhibitors, who commenced commercial operation between 1.4.2007 to 1.2.2008.\\n 36\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"ac796a8cc76141d0b5cec04e3494af7e\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 27283,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 27124,\n \"text\": \". The different sections of the Assam Act must be harmoniously construed to understand the purport of the exemption notification issued under Section 8(2).\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"071620f34a414a2b8fd984b78ea96476\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 27536,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 27284,\n \"text\": \"The Section 3(6) imposes the liability to pay tax on the exhibitor and therefore when we construe Section 3(6) together with Section 18(3), it is logical to conclude that the benefit is intended for the exhibitors and was not meant for the movie-goers.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"96afe31345704caebb7d8616ee512af6\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 27767,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 27536,\n \"text\": \"\\n 37. The next thing to consider is whether, in the context of the formats and certificates prescribed under the Assam Rules and more particularly Rule 8, it will be correct to conclude that the exemption is for the cine-goers.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"23c53ce382b0412aba3e36ad4b5eea3d\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 27888,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 27768,\n \"text\": \"What is significantly different in sub-sections (1) and (2) of Section 8 is that each one operates on a different field.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"d4748dc2009444ef997d1e2188bd6253\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 28046,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 27889,\n \"text\": \"The sub-section (1) speaks of not charging tax on certain exigencies whereas sub-section (2) speaks of exemption from liability to pay the entertainment tax.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"b9d09ca4cd824a74a56b55cfef906943\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 28249,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 28047,\n \"text\": \"When such distinction is made by the law makers in Section 8 itself, the formats and certificates specified under the Assam Rules has to be understood in the context of the exemption under Section 8(1).\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"e4f2e147a4554bba829a15af8645f11d\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 28444,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 28250,\n \"text\": \"Blind application of the prescribed forms, certificates and registers in the Assam Rules for the sub-section (2) exemption (where they do not fit in), will naturally lead to an absurd situation.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"fb573a278c1b4869a6e5c6798d4efb33\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 28615,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 28444,\n \"text\": \"\\n 38. The plain reading of Rule 19 and 20 of the Assam Rules would show that the same is applicable only in respect of exemption granted under Section 8(1) of the Act.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"55bbfb0a9bbd4c16b49759fddb110835\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 28841,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 28616,\n \"text\": \"While the Rule 19 do make reference to Section 8 generally but if we read Rule 19 together with Rule 20 and Form V, it becomes clear that the Rules are not applicable for exemption granted under Section 8(2) of the Assam Act.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"4f5694f0607c48f899952209090b99fe\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 29001,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 28842,\n \"text\": \"In this connection, the contention of the petitioner gets fortified by the circular No.CTA-41/84/9 dated 06.02.1987 issued by the Commissioner of Taxes, Assam.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"77ff7282adbe402da6e26e2059d47e0c\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 29101,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 29001,\n \"text\": \"\\n The govt. circular says that the exemption is to be applied under Section 8(1) of the Act.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"1516dc0a35ba4209936fa0679cb655ed\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 29264,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 29102,\n \"text\": \"The Rule 20 clarifies the issue further when it provides that the application for exemption has to be made not less than 30 days before the date of entertainment.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"a2def65a5d464adcaa33ba5da18cd4d8\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 29435,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 29265,\n \"text\": \"When the Rules are framed for carrying out the purpose of the Act the provision of the statute cannot be interpreted on the basis of the Rules framed under the Assam Act.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"2d4c87c72c6248d78a0eced53b276ba4\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 29608,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 29436,\n \"text\": \"If a particular Rule does not fit in with a specific provision of the Act, the scope of the concerned section cannot be curtailed and/or widened, on the basis of the Rules.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"c465b8e1eb0f4325bc0e87c2c4d7e2c4\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 29693,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 29609,\n \"text\": \"Such forced interpretation will in our view, subvert the clear words in the statute.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"d8abb5ad1b5b463ab5de377aaa94617d\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 29776,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 29694,\n \"text\": \"In any case, the Rules are intended to support the Act and can‟t abrogate the Act.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"03abfb20586c4f8692d9054cc4edc38a\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 29867,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 29777,\n \"text\": \"Therefore the argument raised to the contrary by the counsel for the revenue, is rejected.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"26487fd8d0cd4be79ef89fb76d242f5f\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 29930,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 29867,\n \"text\": \"\\n 39. Unambiguous intention is essential in fiscal statute.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"2c55a1ab309049cab5a9c51e207e8efb\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 30034,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 29931,\n \"text\": \"It is not stated anywhere in the Assam Act that the exemption benefit was intended for the cine- goers.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"f81fe31edc9e4c0cba83f4b3a6d2529e\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 30190,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 30035,\n \"text\": \"Therefore when nothing as such is mentioned, it will be erroneous to import words to construe the exemption notification, as a benefit for the cine- goers.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"646d83b4deec48a68d15c74b239cd164\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 30377,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 30191,\n \"text\": \"It can‟t also be overlooked that cine-goers form a class of their own without any rational differentiation between those who watch movies in normal cinema halls and those in multiplexes.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"38434ba4fb8e4da49afad1ce5eebba0b\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 30578,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 30378,\n \"text\": \"But there is clear distinction between two categories of exhibitors (ordinary cinema halls and multiplexes) where the quality of entertainment, ambience and comfort provided, are surely of two levels.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"edc9ca625dbb445aad1f9fa0c646478b\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 30796,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 30579,\n \"text\": \"The exemption notification speaks of those multiplexes which commenced commercial operation in Assam on or after 1.4.2007 but prior to 1.2.2008 and they are exempted from the liability to payment of entertainment tax.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"27e31b3b019e437a92fc74691712cc82\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 30897,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 30797,\n \"text\": \"Therefore it is natural to infer from the words used that, exemption is intended for the exhibitors.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"05eb3b0249284318a71de45926706785\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 31023,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 30898,\n \"text\": \"According to our perception, contrary conclusion will be illogical when the literal Rules of interpretation is to be applied.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"33ee7faa3c1e4cdc8ecc626c68b73d72\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 31231,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 31023,\n \"text\": \"\\n 40. The concept of cineplex is new in Assam and the state has obviously tried to encourage establishment of cineplexes through incentives by way of exemption from the liability to pay entertainment tax.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"87c28e2c51044928bedf79f3cfcd8ba9\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 31422,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 31232,\n \"text\": \"The mere fact that incidence of tax is on the cine-goers, the exemption notification in the face of clear words can‟t be understood to target those, who pay to be admitted for entertainment.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"b9489a06883d428cbd57c0eaaa7a0600\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 31493,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 31422,\n \"text\": \"\\n 41. Next we have to deal with the submission of the learned Addl.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"84a6b89e954447c595953b5479e61e91\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 31510,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 31494,\n \"text\": \"Advocate General\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"38bc7234bd424618a5e4bdfb22971333\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 31759,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 31511,\n \"text\": \"that the exemption notification shouldn‟t be construed in favour of the petitioners since mode and manner of disbursal of incentives is not prescribed here unlike in the Govt. notification dated 30.3.2007 issued under the State‟s Industrial Policy.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"f1eea539a1a1421eb53d7b69b46c2c42\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 31913,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 31760,\n \"text\": \"The context in which tax incentive was granted by the Govt.\\n notification dated 30.3.2007 are clearly distinguishable from the present situation.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"32c9d28fc81f4a4e9b8d66886f558469\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 32074,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 31914,\n \"text\": \"In our perception, elaborate mechanism is unnecessary here since the exhibitors are simply made free of their obligation to pay to the State, the collected tax.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"914174cd83d04fca9577ee9fb273c0d6\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 32139,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 32075,\n \"text\": \"Therefore the argument on this issue do not aid the respondents.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"615cc060f4fe46f0ba550d693a620af6\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 32397,\n \"labels\": [\n \"PRE_NOT_RELIED\"\n ],\n \"start\": 32139,\n \"text\": \"\\n 42. The Madras High Court in P. Sankara Narayanan (supra) while examining a challenge to levy of higher tax for dubbed films had described that exhibitors is simply a collection agent since the burden of taxation is ultimately passed on the cine-goers.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"fb7abadcb0e04c0ea4b43cce28c837ce\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 32776,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 32398,\n \"text\": \"But in the face of the exhibitor‟s obligation under Section 3(6) of the Assam Act, the primary liability to pay the entertainment tax under the enactment we are considering, is on the exhibitors and therefore the passing observation of the learned Judge of the Madras High Court in the context of the Tamil Nadu case, can have no bearing on our decision, in the present matters.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"f24ea983bf71437589e8cb8374fb6cef\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 32987,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 32776,\n \"text\": \"\\n 43. Now we have to analyse whether the decision in Swanstone Multiplex (Supra) can be applied here to deny the benefit of the exemption notification to the exhibitors on the principle of unjust enrichment.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"2f1b91cd168644ab9fed4a3984fcb627\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 33170,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 32988,\n \"text\": \"As earlier noted, the charging of tax is not exempted but liability from payment of tax is exempted, under the Notification dated 29.3.2008 issued under sub-section (2) of Section 8.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"36082c23581a400f9ea507d0b9255b88\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 33285,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 33170,\n \"text\": \"\\n But on the other hand, the charging of tax exempted, when a notification is issued under sub-section (1).\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"3bff681aa65c46dab087fa8337899885\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 33556,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 33286,\n \"text\": \"When the tax liability is imposed on the cineplex owners under Section 3(6) of the Assam Act, the exemption notification under Section 8(2) has to be construed in our view as one, intended to provide incentives to new multiplexes established during the specified period.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"67efff6274b54501bf89d8b67b213a1f\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 33725,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 33557,\n \"text\": \"Therefore when charge of tax has not been exempted (since Section 8(1) notification is not issued here), the collection of tax can‟t be described as illegal collection.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"a4d2fab5152a443b8b98a3971340d731\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 33845,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 33726,\n \"text\": \"Thus retention of the collected tax (when levy is not exempted), do not amount to unjust enrichment for the exhibitors.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"dafb3dd9f6af431692de3a5f7864557e\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 33990,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 33846,\n \"text\": \"Therefore we hold that the decision in Swanstone Multiplex (Supra) can‟t be applied to deny the benefit to the petitioners in the present cases.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"7a9e95cc945944bd99c79855cedeef3d\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 34283,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 33990,\n \"text\": \"\\n 44. Consequently the tax recovered by the exhibitors, as admitted by the 2nd group of litigants, in our view is not collected illegally and therefore we declare that they have no obligation under Section 172 of the Contract Act, to refund any entertainment tax for the exempted period.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"fbac2d4faa51406b86c79897fccd21e4\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 34449,\n \"labels\": [\n \"RATIO\"\n ],\n \"start\": 34283,\n \"text\": \"\\n 45. As earlier noted the charge and levy of tax was never exempted and therefore the cine-goers were not provided any relief under the exemption notification.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"2d094325d5c14bb6b214f5dc87f8b11b\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 34626,\n \"labels\": [\n \"RATIO\"\n ],\n \"start\": 34450,\n \"text\": \"On the other hand, the exhibitor was freed of their obligation from the liability to the entertainment tax, through the notification issued under Section 8(2) of the Assam Act.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"c338f251ffb64345b668feb212abddc1\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 34866,\n \"labels\": [\n \"RATIO\"\n ],\n \"start\": 34627,\n \"text\": \"Therefore we have no hesitation to hold that incentive was intended for the investors on cineplexes and consequently for the relevant period, the exhibitors can‟t be forced to discharge their obligation under Section 3(6) of the Assam Act.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"eb268fd052ae4dfb93844ff1a29dd688\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 35223,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 34867,\n \"text\": \"Since in the present case, entertainment tax has been levied only on the ground that in spite of the exemption having been granted by the notification dated 29.03.2008, petitioners allegedly collected entertainment tax, the impugned orders of assessment are declared to be illegal, without jurisdiction and therefore the same are set aside and quashed.\\n 46\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"9899bcd0dbf14adabc8d6d958e2d353b\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 35589,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 35223,\n \"text\": \". Following the above discussion and our conclusion in favour of the exhibitors on all the issues as delineated above, we declare that the demand of entertainment tax from the exhibitors for the period specified in the notification dated 29.3.2008 (Annexure-I) is illegal and therefore the assessment to tax under the Assam Act for the petitioners are quashed.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"e49e71e343a34623a7c0a77f4f08e29a\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 35634,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 35590,\n \"text\": \"The cases are allowed with this declaration.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"ca21d7eb81c0418db08a023dc8e95e13\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 35643,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 35635,\n \"text\": \"No cost.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"adc27a6f0a9e411b978cae9f358ea9d5\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 35697,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 35643,\n \"text\": \"\\n JUDGE JUDGE Barman/Roy/Datta\"\n }\n }\n ]\n }\n]"},"id":{"kind":"number","value":1718,"string":"1,718"},"data":{"kind":"string","value":"{\n \"text\": \" IN THE GAUHATI HIGH COURT\\n (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)\\n\\n\\n I. WP(C) No.4477/2014\\n M/s PVR Ltd.,\\n 61, Basant Lok,\\n Vasant Vihar,\\n New Delhi-110057.\\n ……Petitioner.\\n -Versus-\\n 1. The State of Assam,\\n Represented by the Commissioner & Secretary to the\\n Govt. of Assam, Department of Finance & Taxation,\\n Dispur, Guwahati-781006.\\n 2. The Commissioner of Taxes, Assam,\\n Kar Bhawan, Dispur, Guwahati, Assam.\\n 3. The Deputy Commissioner of Taxes, Zone A (Appeals),\\n Kar Bhawan, Dispur, Guwahati-6.\\n 4. The Superintendent of Taxes,\\n Unit-D, Guwahati, Kar Bhawan,\\n Dispur, Guwahati, Assam.\\n ……Respondents.\\n II. WP(C) No.4480/2014\\n M/s PVR Ltd.,\\n 61, Basant Lok,\\n Vasant Vihar,\\n New Delhi-110057. ……Petitioner.\\n\\n -Versus-\\n\\n The State of Assam and 3 others. ……Respondents.\\n\\n\\n III. WP(C) No.3439/2014\\n 1. Mridul Properties (P) Ltd.,\\n G.S. Road, Bhangagarh, Guwahati-781005.\\n 2. Fun Cinemas,\\n A unit of Petitioner No.1,\\n HUB, G.S. Road, Bhangagarh,\\n Guwahati-781005. ……Petitioners.\\n -Versus-\\n The State of Assam and 3 others. ……Respondents.\\n\\n\\n\\n\\n IV. WP(C) No.3440/2014\\n 1. Mridul Properties (P) Ltd.,\\n G.S. Road, Bhangagarh, Guwahati-781005.\\n 2. Fun Cinemas,\\n A unit of Petitioner No.1,\\n HUB, G.S. Road, Bhangagarh,\\n Guwahati-781005. ……Petitioners.\\n -Versus-\\n The State of Assam and 3 others. ……Respondents.\\n\\n\\n V. WP(C) No.3443/2014\\n 1. Mridul Properties (P) Ltd.,\\n G.S. Road, Bhangagarh, Guwahati-781005.\\n 2. Fun Cinemas,\\n A unit of Petitioner No.1,\\n HUB, G.S. Road, Bhangagarh,\\n Guwahati-781005. ……Petitioners.\\n -Versus-\\n The State of Assam and 3 others. ……Respondents.\\n\\n\\n VI. WP(C) No.3444/2014\\n 1. Mridul Properties (P) Ltd.,\\n G.S. Road, Bhangagarh, Guwahati-781005.\\n 2. Fun Cinemas,\\n A unit of Petitioner No.1,\\n HUB, G.S. Road, Bhangagarh,\\n Guwahati-781005. ……Petitioners.\\n -Versus-\\n The State of Assam and 3 others. ……Respondents.\\n\\n\\n VII. WP(C) No.3445/2014\\n 1. Mridul Properties (P) Ltd.,\\n G.S. Road, Bhangagarh, Guwahati-781005.\\n 2. Fun Cinemas,\\n A unit of Petitioner No.1,\\n HUB, G.S. Road, Bhangagarh,\\n Guwahati-781005. ……Petitioners.\\n -Versus-\\n The State of Assam and 3 others. ……Respondents.\\n\\n\\n\\n VIII. WP(C) No.4479/2014\\n M/s PVR. Ltd.,\\n 61, Basant Lok,\\n Vasant Vihar,\\n New Delhi-110057. ……Petitioner.\\n -Versus-\\n The State of Assam and 3 others. ……Respondents.\\n\\n BEFORE\\n THE HON’BLE MR. JUSTICE HRISHIKESH ROY\\n THE HON’BLE MR. JUSTICE PARAN KUMAR PHUKAN\\n\\n Advocate(s) for the Petitioner : Dr. Ashok Saraf …Sr. Adv.,\\n Mr. P. Baruah,\\n Mr. Z. Islam.\\n\\n Advocate(s) for the Respondents : Mr. D. Saikia, Addl. A.G., Assam,\\n Mr. B. Choudhury, SC, Finance & Taxation.\\n\\n Date of Hearing : 19.7.2016, 21.7.2016, 22.7.2016, 9.8.2016\\n Date of Judgment : 30th August, 2016\\n Date of Judgment correction : 02.09.2016\\n\\n\\n JUDGMENT AND ORDER [Hrishikesh Roy, J.] Heard Dr. A. Saraf, learned Senior Counsel appearing for the petitioners in all the cases. Also heard Mr. D. Saikia, the learned Addl. Advocate General representing the respondents.\\n 2. The petitioners operate multiplex/mini cinema halls and the issue here is their liability towards entertainment tax for the relevant period, under the Assam Amusement and Betting Tax Act, 1939 (hereinafter referred to as „the Assam Act‟). The concerned entities, hereinafter referred to as “the Exhibitors” commenced commercial operation in Assam between 1.4.2007—1.2.2008 and therefore, by virtue of the Govt. Notification dated 29.3.2008 (Annexure-I), the exhibitors seek exemption from the liability to payment of tax, for a period of five years. The exemption notification was issued under Sub-Section (2) of Section 8 of the Assam Act. The petitioners in this batch of litigations can be divided in two groups. The first is the M/s. PVR Ltd. who have filed the WP(C) No.4477/2014, WP(C) No.4480/2014 and WP(C) No.4479/2014 and they claim that they have not collected the tax, whereas the 2nd group of M/s. Mridul Properties (P) Ltd., in the other five cases, have admittedly recovered the entertainment tax, from the movie-goers.\\n 3. The cases have common facts and hence for the sake of convenience, the narratives in this order are extracted from the WP(C) No.4477/2014, filed by the M/s. PVR Ltd.\\n BACKGROUND FACTS 4. Through the notice dated 12.9.2012 (Annexure-IV), the Superintendent of Taxes alleged that the Exhibitors were unauthorisedly collecting tax from the movie-goers and accordingly demand was made for deposit of the collected amount or else, tax would be assessed under the Assam Act. In their response, the first group contended that entertainment tax was not collected and accordingly they requested for recall of the tax demand notice.\\n 5. Dissatisfied with the reply, a show cause notice for assessment under Section 5-A(2) of the Assam Act was issued on 13.12.2012 (Annexure-X), where it was alleged that tax is being illegally collected from the movie-goers, in spite of the exemption notification dated 29.3.2008 (Annexure-I), issued under Sub- Section (2) of Section 8 of the Assam Act. According to the notice, the claim of not charging entertainment tax made by the exhibitor is not believable, as the tickets issued for certain films, reflects the charging of tax. Hence, tax was proposed to be assessed under Section 5-A(2) of the Assam Act.\\n 6. In response to the show cause notice, the exhibitor reiterated that they have not collected any amount towards entertainment tax and they offered to submit their Books-of-Account to support their contention. However through the assessment order dated 1.3.2013, the tax was assessed on the basis of the total turnover and interest was also added to the assessed amount.\\n 7. Being aggrieved, the exhibitors challenged the assessment through the WP(C) No.2343/2013 and this case was disposed of by the Division Bench on 6.5.2013, by relegating the party to the statutory forum. Thereafter the appellate authority after considering the rival submission through the impugned order dated 28.7.2014 (Annexure-XXI), opined that when the tax is collected, the same should be deposited in the Govt. exchequer or else, it will amount to unjust enrichment. It was also concluded that objective of exemption by the Government was to provide relief to the movie-goers and it is impermissible for the exhibitor to retain the collected tax as this would be contrary to the judgment of the Apex Court in the State of Maharashtra vs. Swanstone Multiplex Cinema Private Ltd. reported in (2009) 8 SCC 235. On the basis of such conclusion, the Appeal was dismissed on 28.7.2014 (Annexure-XXI), by the appellate authority and consequential direction was issued to realize the assessed tax and interest, from the exhibitor.\\n 8. The other group under the M/s. Mridul Properties (P) Ltd. admits that entertainment tax was collected on the entry tickets but denied their corresponding obligation to deposit the collected sum on account of the exemption notification. Confronted with similar assessment and demand like the first group, the aggrieved exhibitors filed Revision Petition(s) against the assessment order passed by the Superintendent of Taxes. But since those were rejected by the common order dated 20.5.2014 (Annexure-XXII), the first group having realized the futility of revision, have decided to challenge the order in the High Court.\\n SUBMISSION OF PETITIONERS 9. Dr. A. Saraf, learned Senior Counsel submits that tax is to be charged, levied and paid to the Government under Section 3 of the Assam Act. Here incentive to set up multiplex/mini cinema halls was provided by the Government by exempting the liability to payment of entertainment tax to those, who set up their projects in Assam during 1.4.2007—1.2.2008. Accordingly it is argued that such incentive to the multiplex/mini cinema halls is intended to encourage business activities and since they are exempted from the tax liability, there can be no assessment for the exhibitors to tax, under Section 5-A of the Assam Act.\\n 10. The petitioners refer to the fact that the exemption notice was issued under Sub-Section (2) of Section 8 of the Assam Act and therefore it is contended that there is no absolvement from charging tax but what is exempted is the liability from payment of entertainment tax and therefore it is argued that demand for tax from the exhibitors (whether realized or otherwise) is unauthorized, in the face of the exemption notification.\\n 11. The senior counsel distinguishes the Swanstone Multiplex Cinema Private Ltd. (Supra) by submitting that present facts are different in as much as, in the case before the Supreme Court, the levy of entertainment tax was exempted and only incentives by way of zero or reduced rate of tax was provided under the policy, adopted by the Maharashtra Government. But here in Assam unlike the Maharashtra scenario, the beneficiary was exempted from payment liability towards the State exchequer. Therefore Dr. Saraf argues that it is not a case of unjust enrichment, since the charging of tax was not exempted by the Notification dated 29.3.2008 (Annexure-I). Hence the Assam situation is nothing but a business incentive for five years, for the new entrepreneurs in the field and retention of the collected sum is not unjust enrichment since this was permitted by the Govt.\\n 12. The petitioners contend that assuming that assessment is permissible, for the petitioner M/s. PVR Ltd. (who did not realize the tax), the assessment can never be on the total turnover. But if there is any undue collection which can‟t be retained by the exhibitors, recovery would be permissible only through searching enquiry of each and every transaction and not through hypothetical conclusion, based upon the business turnover of the exhibitor.\\n 13. Alternately Dr. A. Saraf argues that if charging of tax is exempted, then the amount collected by the second group can never be assessed as tax and then the recovery through assessment, is contended to be impermissible.\\n 14. The substantial contention of the petitioners is that if the exhibitor is exempted from liability to payment of entertainment tax, retention can‟t be construed as unjust enrichment since it is nothing but an incentive for investment in the fresh field of multiplex and mini cinema halls, in Assam.\\n SUBMISSION OF RESPONDENTS 15. On the other hand, Mr. D. Saikia, the learned Addl. Advocate General submits that the exemption notification was issued to encourage the cine-goers and not intended to benefit the cinema exhibitors and accordingly it is argued that the retention of the collected amount by the exhibitors is impermissible and the collected money has to be deposited in the state exchequer.\\n 16. The respondents argue that tax is to be collected for entertainment of the movie-goers and the role of the exhibitors is only to collect the tax on behalf of the state. But when the tax is exempted under Section 8 of the Assam Act, the movie-goers are to be absolved and if any such tax is collected, the retention thereof in the hand of the exhibitors, will certainly be unjust enrichment.\\n 17. The learned counsel for the Revenue submits that the benefit envisaged under Section 8 is for the movie-goers and the exhibitors are not the targeted beneficiary. In support Mr. Saikia refers to the manner of granting exemption, under the Assam Amusement and Betting Tax Rules, 1939 (hereinafter referred to as „the Rules‟). Under Rule 2(4) read with Rule 12, every Exhibitor is required to keep at the place of entertainment, the register books of tickets and also registers of payments for admission and the records of stamps denoting the entertainment tax purchased and used in prescribed formats. He refers to Form No.V, prescribed under Rule 20 which certifies tax exemption. The exhibitor is obliged to prominently display this certificate at the entry gate, so that the movie-goers are made aware that tax is not being collected for the show in question. From these provisions of the Rules, it is argued by Mr. Saikia that the benefit of exemption is not envisaged for the exhibitors but for the movie-goers.\\n 18. The learned Addl. Advocate General refers to Section 72 of the Indian Contract Act, 1872 to argue that the exhibitors have the legal obligation to refund the mistakenly collected tax.\\n 19. The respondents argue that by virtue of the exemption, the collection of tax from the movie-goer does not arise for the relevant period and therefore if any sum is collected by the exhibitors, the same is an unjust collection. Mr. Saikia cites Jay Vee Rice & General Mills vs. State of Haryana, reported in (2010) 10 SCC 687, to argue that when tax is unjustly collected, retention thereof by the agent is impermissible and the collected amount should either go back to the person from whom it was collected or it is to be surrendered to the state exchequer, as otherwise the retention by the exhibitor will amount to unjust enrichment.\\n 20. The respondents rely upon the State of Karnataka vs. Drive-in Enterprises reported in (2001) 4 SCC 60, to contend that the levy is on the person who is entertained and therefore exemption should benefit of the person who is entertained. It is thus argued that the retention of the illegally collected entertainment tax in the hand of the exhibitor would be legally impermissible.\\n 21. Referring to fundamental principles of interpretation of taxing statute or exemption notification, Mr. Saikia reads Oil & Natural Gas Corporation Ltd. vs.\\n Commissioner of Income Tax reported in (2015) 10 SCC 621, to contend that literal rule of interpretation must be followed without distorting the language and common sense approach in interpretation of the exemption notification can have no role.\\n 22. To explain the role of the exhibitor, Mr. Saikia reads P. Sankara Narayanan vs. State of Tamil Nadu reported in MANU/TN/8821/2007, to contend that the exhibitors are only collecting agent of the tax on behalf of the state.\\n Therefore when the tax is borne by the movie-goers and if the collection is held to be unauthorised, the retention/refund can be only to the person from whom the tax is realized but not to the exhibitors, who acts as agent on behalf of the state.\\n 23. Mr. Saikia refers to the Govt. Notification dated 30.3.2007, to contend that whenever tax is exempted under some incentive policy, the exemption notification lays down the manner and mode of disbursal of incentives. But here it was never indicated that the exhibitors are entitled to retain the collected tax and therefore it is argued that retention of the collected sum, can‟t be allowed.\\n 24. The respondents‟ lawyer refers to the assessment proceedings to contend that the exhibitors were given opportunities to produce the ticket counter-foils and also the other documents mentioned in the Rules but they failed to produce them, despite due opportunities. Therefore it is argued that the authorities had rightly made assessment on the basis of best judgment, as provided under Section 5-A(2) of the Assam Act.\\n DISCUSSION AND CONCLUSION 25. The submission made by the rival Counsel have received our earnest consideration.\\n 26. We find that the charging section of the Assam Act refers to charge, levy and payment of entertainment tax and the taxable event is on admission to entertainment. Under sub-section (6) of Section 3, the proprietor of the entertainment is made liable to pay the tax. Three stages for imposition of tax was culled out by the Apex Court in Chatturam Holiram Ltd. Vs. CIT reported in AIR 1955 SC 619 and the stages are mentioned as under :- “There is the declaration of liability, that is the part of the statute which determines what persons in respect of what property are liable. Next, there is the assessment. Liability does not depend on assessment. That, ex hypothesi, has already been fixed. But assessment particularizes the exact sum which a person liable has to pay. Lastly, come the methods of recovery if the person taxed does not voluntarily pay”.\\n 27. But what we notice from the Assam Act is that while the charge and the levy is on the exhibitors, the taxable event is on admission to entertainment.\\n Hence the submission of the Revenue that tax here is on the person entertained appears to be illogical as this is not found in the charging Section 3 of the Assam Act. In the enactment we are considering, the payment is on admission to entertainment. Thus there is clear distinction in the manner, the legislative intent is expressed in the Act. The words used in the charging section doesn‟t say that the levy is on the person entertained and only through an interpretive exercise, the expression may be understood in that manner. But the question here is what was the intention of the law maker and whether there is any scope for an interpretative exercise.\\n 28. In the present case, the assessing authority levied entertainment tax only on the ground that the petitioners in spite of the exemption having been granted, charged and collected entertainment tax and appropriated the same to itself. But even if the notification dated 29.03.2008 is construed to be exemption from charge and levy of entertainment tax, then also, in case any unauthorized collection was made, the assessing authority has no power and/or jurisdiction to levy the entertainment tax during the period of exemption.\\n 29. In the above context, the Apex Court in M/s Pine Chemicals Ltd. Vs.\\n Assessing Authority reported in (1992)2 SCC 683 declared that whether any amount has been collected unauthorisedly in spite of the exemption, what is the amount and whether it has been collected as tax etc., cannot be scrutinized, in a normal assessment proceeding. One of the contentions raised in the case before the Supreme Court was that there was a finding that, the assessee had collected sales tax in respect of its sale turnover for which exemption was claimed and as such, the said amount was refundable under Section 8(B) of the Jammu & Kashmir General Sales Tax Act, 1962. The Court while leaving the question of applicability of Section 8(B) in that case open, held that whether any element of sale tax had merged in the fixation of the sale price and that amounts to collection of sales tax, would have to be decided in a separate proceeding that may have to be initiated under Section 8(B) of the said Act, if the State demands payment under the said provision of the Act.\\n 30. In a similar situation, where the assessment was completed by levying tax during the period of exemption on the ground that in spite of the exemption being granted, the assessee charged and collected tax, this Court in Mahabir Coke Industries Pvt. Ltd. Vs. Commissioner of Taxes reported in (2003)5 GLR 175 quashed the orders of assessment by holding that if any allegation of unauthorized collection of tax is established, the consequences as provided in Section 65A of the Assam General Sales Tax Act, 1993 which related to forfeiture of the unauthorized collection of tax and/or Section 10 of the Central Sales Tax Act, 1956, as case may be, would follow. It was thus held that the impugned action of making a general assessment of all the transactions in exercise of powers under Section 17(4) and 9(2) of the 1956 Act and raise a demand for tax, without examining each and every transaction to determine whether any tax was at all collected, cannot be countenanced.\\n 31. The words used in the statute should ordinarily be understood in their natural and grammatical meaning except when it is found to be inconsistent with the rest of the enactment. Departure from the golden rule of construction is impermissible unless there be something in the context, which warrants a deviation to avoid absurdity. But admission to entertainment is not the same as the person entertained. Hence if we construe the expression with its natural and common sense meaning, the levy is upon admittance to entertainment. Such construction does not clash in any manner even if we read the Assam Act as a whole and no incongruity or absurdity is discernible, if ordinary meaning is attributed to the expression used in the charging section. Therefore merely because entertainment tax is borne ultimately by the cine-goers will not permit us to import the words person entertained, when such words are missing in the enactment.\\n 32. In fact if we take the analogy of other indirect taxation, the logic of the above manner of construction can be better appreciated. The charge and levy of central excise duty is on manufacturer but the tax burden is eventually borne by the consumer. Does it then mean that the charge and levy of excise tax is on the person who purchases the manufactured goods at a value which includes the component of excise duty, charged to the manufacturer. Similarly, levy of sales tax is on sale transactions but the tax is eventually borne by the purchaser. Can it then be said that charge and levy of sales tax is on the person who buys the product. The logical answer for both example is that charge and levy will continue to be on manufacturer (for central excise) and on seller (for sales tax) and in neither situation, the person who eventually pay the excise duty or sales tax, can be a factor, for roping in the purchaser, for constructing the charging section. They key words is admission in Section 3 of Assam Act and admission may refer to not only the person admitted (cine-goer) but also the one who admits (exhibitor). Therefore in our analysis, the person entertained and the person providing entertainment should stand together and this is possible only when, we interpret the words in the charging section in their natural meaning. In other words, admission to entertainment can‟t have the same meaning as the person entertained. Thus we hold that the decision in State of Karnataka vs.\\n Drive-in-Enterprises reported in (2001) 4 SCC 60 will not apply in these cases in the context of the Assam Act.\\n 33. The scheme of the Assam Act is that notwithstanding the collection of tax from the cine-goers, the liability to pay the tax remains with the exhibitors. To understand the implication thereof, we may again benefit by referring to the levy of sales tax where the charge is on the dealer. Similarly for central excise duty, the charge is on the manufacturer. But in both process, while the taxable event is sale or manufacture as the case may be, the tax is collected from the consumer. But non-payment of tax by the consumer is never a relevant factor to determine the liability of the dealer/manufacturer. Therefore tax liability and actual payment of tax are conceptually different. Thus in the event of exemption, since the entertainment tax liability is on the exhibitor, the target of exemption notification needn‟t be the cine-goers, merely because, tax is borne by him under the Assam Act.\\n 34. The entry 62 of List-II of the 7th Schedule empowers the State Legislature to levy tax, inter alia, on entertainment. Under the Assam Act, the taxable event is on admission to entertainment as is specified in the charging section 3. When the taxable event relates to entertainment, the levy and charge is not necessarily on the person entertained, who nevertheless have to bear the entertainment tax.\\n On proper construction of the charging section which doesn‟t declare that the levy on the person entertained, it will be wrong in our understanding, to import words not found in the Assam Act.\\n 35. It is important to keep in mind that charge and levy and the incidence of taxation are conceptually different. Under the exemption notification of 29.03.2008 (Annexure-1), charge and levy is not absolved and therefore it is difficult to accept that charging of tax is exempted by the State. This indirect tax is to be borne by the cine-goers on admission to entertainment but the liability to pay the tax to the State under the Assam Act, is on the exhibitors. So when the liability from payment of tax is exempted, the benefit in our understanding, should go to the entity which is made liable to pay the tax. Merely because the tax is ultimately borne by the cine-goers, exemption is not intended for them particularly when, the notification targets those exhibitors, who commenced commercial operation between 1.4.2007 to 1.2.2008.\\n 36. The different sections of the Assam Act must be harmoniously construed to understand the purport of the exemption notification issued under Section 8(2). The Section 3(6) imposes the liability to pay tax on the exhibitor and therefore when we construe Section 3(6) together with Section 18(3), it is logical to conclude that the benefit is intended for the exhibitors and was not meant for the movie-goers.\\n 37. The next thing to consider is whether, in the context of the formats and certificates prescribed under the Assam Rules and more particularly Rule 8, it will be correct to conclude that the exemption is for the cine-goers. What is significantly different in sub-sections (1) and (2) of Section 8 is that each one operates on a different field. The sub-section (1) speaks of not charging tax on certain exigencies whereas sub-section (2) speaks of exemption from liability to pay the entertainment tax. When such distinction is made by the law makers in Section 8 itself, the formats and certificates specified under the Assam Rules has to be understood in the context of the exemption under Section 8(1). Blind application of the prescribed forms, certificates and registers in the Assam Rules for the sub-section (2) exemption (where they do not fit in), will naturally lead to an absurd situation.\\n 38. The plain reading of Rule 19 and 20 of the Assam Rules would show that the same is applicable only in respect of exemption granted under Section 8(1) of the Act. While the Rule 19 do make reference to Section 8 generally but if we read Rule 19 together with Rule 20 and Form V, it becomes clear that the Rules are not applicable for exemption granted under Section 8(2) of the Assam Act. In this connection, the contention of the petitioner gets fortified by the circular No.CTA-41/84/9 dated 06.02.1987 issued by the Commissioner of Taxes, Assam.\\n The govt. circular says that the exemption is to be applied under Section 8(1) of the Act. The Rule 20 clarifies the issue further when it provides that the application for exemption has to be made not less than 30 days before the date of entertainment. When the Rules are framed for carrying out the purpose of the Act the provision of the statute cannot be interpreted on the basis of the Rules framed under the Assam Act. If a particular Rule does not fit in with a specific provision of the Act, the scope of the concerned section cannot be curtailed and/or widened, on the basis of the Rules. Such forced interpretation will in our view, subvert the clear words in the statute. In any case, the Rules are intended to support the Act and can‟t abrogate the Act. Therefore the argument raised to the contrary by the counsel for the revenue, is rejected.\\n 39. Unambiguous intention is essential in fiscal statute. It is not stated anywhere in the Assam Act that the exemption benefit was intended for the cine- goers. Therefore when nothing as such is mentioned, it will be erroneous to import words to construe the exemption notification, as a benefit for the cine- goers. It can‟t also be overlooked that cine-goers form a class of their own without any rational differentiation between those who watch movies in normal cinema halls and those in multiplexes. But there is clear distinction between two categories of exhibitors (ordinary cinema halls and multiplexes) where the quality of entertainment, ambience and comfort provided, are surely of two levels. The exemption notification speaks of those multiplexes which commenced commercial operation in Assam on or after 1.4.2007 but prior to 1.2.2008 and they are exempted from the liability to payment of entertainment tax. Therefore it is natural to infer from the words used that, exemption is intended for the exhibitors. According to our perception, contrary conclusion will be illogical when the literal Rules of interpretation is to be applied.\\n 40. The concept of cineplex is new in Assam and the state has obviously tried to encourage establishment of cineplexes through incentives by way of exemption from the liability to pay entertainment tax. The mere fact that incidence of tax is on the cine-goers, the exemption notification in the face of clear words can‟t be understood to target those, who pay to be admitted for entertainment.\\n 41. Next we have to deal with the submission of the learned Addl. Advocate General that the exemption notification shouldn‟t be construed in favour of the petitioners since mode and manner of disbursal of incentives is not prescribed here unlike in the Govt. notification dated 30.3.2007 issued under the State‟s Industrial Policy. The context in which tax incentive was granted by the Govt.\\n notification dated 30.3.2007 are clearly distinguishable from the present situation. In our perception, elaborate mechanism is unnecessary here since the exhibitors are simply made free of their obligation to pay to the State, the collected tax. Therefore the argument on this issue do not aid the respondents.\\n 42. The Madras High Court in P. Sankara Narayanan (supra) while examining a challenge to levy of higher tax for dubbed films had described that exhibitors is simply a collection agent since the burden of taxation is ultimately passed on the cine-goers. But in the face of the exhibitor‟s obligation under Section 3(6) of the Assam Act, the primary liability to pay the entertainment tax under the enactment we are considering, is on the exhibitors and therefore the passing observation of the learned Judge of the Madras High Court in the context of the Tamil Nadu case, can have no bearing on our decision, in the present matters.\\n 43. Now we have to analyse whether the decision in Swanstone Multiplex (Supra) can be applied here to deny the benefit of the exemption notification to the exhibitors on the principle of unjust enrichment. As earlier noted, the charging of tax is not exempted but liability from payment of tax is exempted, under the Notification dated 29.3.2008 issued under sub-section (2) of Section 8.\\n But on the other hand, the charging of tax exempted, when a notification is issued under sub-section (1). When the tax liability is imposed on the cineplex owners under Section 3(6) of the Assam Act, the exemption notification under Section 8(2) has to be construed in our view as one, intended to provide incentives to new multiplexes established during the specified period. Therefore when charge of tax has not been exempted (since Section 8(1) notification is not issued here), the collection of tax can‟t be described as illegal collection. Thus retention of the collected tax (when levy is not exempted), do not amount to unjust enrichment for the exhibitors. Therefore we hold that the decision in Swanstone Multiplex (Supra) can‟t be applied to deny the benefit to the petitioners in the present cases.\\n 44. Consequently the tax recovered by the exhibitors, as admitted by the 2nd group of litigants, in our view is not collected illegally and therefore we declare that they have no obligation under Section 172 of the Contract Act, to refund any entertainment tax for the exempted period.\\n 45. As earlier noted the charge and levy of tax was never exempted and therefore the cine-goers were not provided any relief under the exemption notification. On the other hand, the exhibitor was freed of their obligation from the liability to the entertainment tax, through the notification issued under Section 8(2) of the Assam Act. Therefore we have no hesitation to hold that incentive was intended for the investors on cineplexes and consequently for the relevant period, the exhibitors can‟t be forced to discharge their obligation under Section 3(6) of the Assam Act. Since in the present case, entertainment tax has been levied only on the ground that in spite of the exemption having been granted by the notification dated 29.03.2008, petitioners allegedly collected entertainment tax, the impugned orders of assessment are declared to be illegal, without jurisdiction and therefore the same are set aside and quashed.\\n 46. Following the above discussion and our conclusion in favour of the exhibitors on all the issues as delineated above, we declare that the demand of entertainment tax from the exhibitors for the period specified in the notification dated 29.3.2008 (Annexure-I) is illegal and therefore the assessment to tax under the Assam Act for the petitioners are quashed. The cases are allowed with this declaration. No cost.\\n JUDGE JUDGE Barman/Roy/Datta \"\n}"}}},{"rowIdx":99,"cells":{"meta":{"kind":"string","value":"{\n \"group\": \"Criminal\"\n}"},"annotations":{"kind":"list like","value":[{"result":[{"from_name":"label","id":"631a9c8dc55e4f57bbd1e3434dcc6e81","to_name":"text","type":"labels","value":{"end":123,"labels":["PREAMBLE"],"start":0,"text":"IN THE COURT OF THE PRL. 1st CIVIL JUDGE & J.M.F.C.,\n AT MYSORE\n\n PRESENT:"}},{"from_name":"label","id":"2e7f4c5dbfce4dfba20e3ca614072bad","to_name":"text","type":"labels","value":{"end":164,"labels":["PREAMBLE"],"start":124,"text":"Sri H.Shashidhara Shetty, B.A.L., LL.M.,"}},{"from_name":"label","id":"46ca495109b84df08b1fc80a95133b04","to_name":"text","type":"labels","value":{"end":236,"labels":["PREAMBLE"],"start":199,"text":"Prl.First Civil Judge & JMFC, Mysore."}},{"from_name":"label","id":"478213a7174748e9a3466bf6e22adb5e","to_name":"text","type":"labels","value":{"end":315,"labels":["PREAMBLE"],"start":246,"text":"DATED THIS THE 31st DAY OF OCTOBER 2013\n\n :"}},{"from_name":"label","id":"a9810e0fa9894370a56bc1bf4f07edc1","to_name":"text","type":"labels","value":{"end":333,"labels":["PREAMBLE"],"start":315,"text":": C.C.No.2784/2008"}},{"from_name":"label","id":"79f81cebebe64080be7fb7c3c8433906","to_name":"text","type":"labels","value":{"end":546,"labels":["PREAMBLE"],"start":334,"text":"::\n\nCOMPLIANANT :- Sri.D. Chandru,\n S/o Dasegowda,\n Aged about 26 years,\n R/o No.492, 5th Cross,\n Hebbal 2nd Stage, (M.G.Koppal)\n Mysore"}},{"from_name":"label","id":"845e27e6e13547f1ab9156a97dbe0396","to_name":"text","type":"labels","value":{"end":615,"labels":["PREAMBLE"],"start":548,"text":"ACCUSED :- (By: Sri.K.K, Advocate)\n\n -V"}},{"from_name":"label","id":"dec10fd6bc5f4ddfb4e45532e591f995","to_name":"text","type":"labels","value":{"end":652,"labels":["PREAMBLE"],"start":615,"text":"/s-\n\n Smt. Rajeshwari."}},{"from_name":"label","id":"15ddeec507604bf2864361db3bea1eac","to_name":"text","type":"labels","value":{"end":671,"labels":["PREAMBLE"],"start":652,"text":"M\n W"}},{"from_name":"label","id":"ccae86f1b4ae48098ac34e10882bff4e","to_name":"text","type":"labels","value":{"end":704,"labels":["PREAMBLE"],"start":671,"text":"/o Hanumanthraju\n "}},{"from_name":"label","id":"ec55d55b7fcc45c8b3ac823331349324","to_name":"text","type":"labels","value":{"end":855,"labels":["PREAMBLE"],"start":704,"text":"Aged about 44 years,\n R/o No.142, L.I.G., 2\n Laxmikanthanagar,\n Hebbal, 1st Stage,\n Mysore."}},{"from_name":"label","id":"50bba2e398aa47c0837a1df44e382188","to_name":"text","type":"labels","value":{"end":876,"labels":["PREAMBLE"],"start":856,"text":"18\n\n "}},{"from_name":"label","id":"0e1d9b12532140d19856d9e8db724cfa","to_name":"text","type":"labels","value":{"end":935,"labels":["PREAMBLE"],"start":876,"text":"(By: Sri.A.K.J., Advocate)\n\n **"}},{"from_name":"label","id":"3aed56148c5044b6b55f8f02cab6c8df","to_name":"text","type":"labels","value":{"end":994,"labels":["PREAMBLE"],"start":935,"text":"***\n\n\n J U D G M E N T"}},{"from_name":"label","id":"1da8ac74f162435482b85c3496c8f244","to_name":"text","type":"labels","value":{"end":1255,"labels":["FAC"],"start":1003,"text":"The Complainant has filed the complaint under Section 200 of the Code of Criminal Procedure, 1973, against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (herein after referred to as `the N.I.Act').\n 2."}},{"from_name":"label","id":"2f1bc620650b476f9f8065e2171bd981","to_name":"text","type":"labels","value":{"end":1305,"labels":["FAC"],"start":1256,"text":"In brief the complaint averments are as follows:-"}},{"from_name":"label","id":"8bcf5c47b22c461fb0c6a282b7dac1d5","to_name":"text","type":"labels","value":{"end":1541,"labels":["FAC"],"start":1306,"text":"The complainant and the accused are known to each other and on 05.06.2008, the accused requested the complainant for financial assistance of Rs.85,000/- to meet urgent legal necessities and to clear the hand loan raised by the accused."}},{"from_name":"label","id":"33171e7568ff4798af074ca99f20943d","to_name":"text","type":"labels","value":{"end":1803,"labels":["FAC"],"start":1542,"text":"The complainant lent Rs.85,000/- on 05.06.2008 and the accused promised to repay the same within a month with interest at 2% and issued a post dated cheque bearing No.319609 dated 05.07.2008 drawn on Karnataka bank, Vijayanagar, Mysore for a sum of Rs.85,000/-."}},{"from_name":"label","id":"08df6aa8eb7141d18291f866e51cc91b","to_name":"text","type":"labels","value":{"end":2053,"labels":["FAC"],"start":1803,"text":"\nThe complainant presented the said cheque for collection on 07.07.2008 through his banker Oriental bank of Commerce, Kuvempunagar, Mysore, which returned dishonoured for the reasons ` payment stopped by the drawer' vide endorsement dated 09.07.2008."}},{"from_name":"label","id":"cee3fa126b274dac920218ebd0c34764","to_name":"text","type":"labels","value":{"end":2302,"labels":["FAC"],"start":2054,"text":"The complainant caused legal notice on 18.07.2008, both through R.P.A.D. and C.O.P., but the notice sent through R.P.A.D. with share ` addressee not in station' on 29.07.2008 and the notice sent through C.O.P. is deemed to be served on the accused."}},{"from_name":"label","id":"87d8fb7350c2463c9c2c4e17eff16d98","to_name":"text","type":"labels","value":{"end":2347,"labels":["FAC"],"start":2303,"text":"The accused did not repay the cheque amount."}},{"from_name":"label","id":"d060101c8bed46ab8d28ca960810cefd","to_name":"text","type":"labels","value":{"end":2369,"labels":["FAC"],"start":2348,"text":"Hence, the complaint."}},{"from_name":"label","id":"b658076a7d1d4a329371b46eeb94af6d","to_name":"text","type":"labels","value":{"end":2564,"labels":["FAC"],"start":2369,"text":"\n 3. The court after taking cognizance recorded the sworn statement of the complainant, issued process to the accused, who appeared before the court through his learned counsel and obtained bail."}},{"from_name":"label","id":"7cd5c428fa594c048ef8c9f95e72cc8a","to_name":"text","type":"labels","value":{"end":2632,"labels":["FAC"],"start":2565,"text":"Copies of the complaint and documents are furnished to the accused."}},{"from_name":"label","id":"212ba88f9377431ab0067804959efb0e","to_name":"text","type":"labels","value":{"end":2751,"labels":["FAC"],"start":2633,"text":"On 03.06.2011, the plea of the accused was recorded, for which the accused pleaded not guilty and claimed to be tried."}},{"from_name":"label","id":"31d159c716e94349b70564e259f4b0b6","to_name":"text","type":"labels","value":{"end":2913,"labels":["FAC"],"start":2751,"text":"\n 4. During trial, on behalf of the complainant, he himself got examined as PW1 and examined one more witness as PW.2 and got marked the documents Ex.P1 to Ex.P7."}},{"from_name":"label","id":"58e0c91ca8cf4b62ad604d1b8dcfc217","to_name":"text","type":"labels","value":{"end":2956,"labels":["FAC"],"start":2914,"text":"With that the complainant closed his side."}},{"from_name":"label","id":"c6be399b45b44b29ab2e92184cd1d671","to_name":"text","type":"labels","value":{"end":3107,"labels":["FAC"],"start":2957,"text":"The Statement of the accused as required under Section 313 of Cr.P.C. was recorded, wherein the accused denied the incriminating evidence against her."}},{"from_name":"label","id":"90095d72c7f844758268e731ee1dbdc8","to_name":"text","type":"labels","value":{"end":3210,"labels":["FAC"],"start":3108,"text":"On her defence, the accused got examined herself as DW.1 and got marked documents at Ex.D.1 to Ex.D.4."}},{"from_name":"label","id":"4f8455dd9ad141869a2f908aa4d82065","to_name":"text","type":"labels","value":{"end":3249,"labels":["FAC"],"start":3211,"text":"With that the accused closed her side."}},{"from_name":"label","id":"1e5166cc31c8406385f4cb5bef45940a","to_name":"text","type":"labels","value":{"end":3260,"labels":["FAC"],"start":3249,"text":"\n 5. Heard."}},{"from_name":"label","id":"538d68cf11164eafaf1d924417376232","to_name":"text","type":"labels","value":{"end":3325,"labels":["FAC"],"start":3261,"text":"The learned counsel for the complainant filed written arguments."}},{"from_name":"label","id":"c8ce8e7299c5430691f6a54e89d46c26","to_name":"text","type":"labels","value":{"end":3346,"labels":["FAC"],"start":3326,"text":"Perused the records."}},{"from_name":"label","id":"4d6f97e753d9470a89ea112c4b16409c","to_name":"text","type":"labels","value":{"end":3412,"labels":["ISSUE"],"start":3348,"text":"6. The points for consideration of this Court are as under: - 1."}},{"from_name":"label","id":"e72920c6beba43bfaad994ed89b6de26","to_name":"text","type":"labels","value":{"end":3665,"labels":["ISSUE"],"start":3413,"text":"Whether the complainant proves beyond all reasonable doubt that, the cheque bearing No.319609 dated 05.07.2008 for Rs.85,000/- drawn on Karnataka Bank, Mysore branch was issued by the accused to the complainant in discharge of legally recoverable debt?"}},{"from_name":"label","id":"aaa1a0ca58854edba79e13a275dd6ece","to_name":"text","type":"labels","value":{"end":3876,"labels":["ISSUE"],"start":3667,"text":"2. Whether the complainant further proves that the accused has failed to pay the cheque amount inspite of a legal demand and thereby committed an offence punishable U/Sec.138 of the Negotiable Instruments Act?"}},{"from_name":"label","id":"ab5fc4abbef4402083c47a6daa361afc","to_name":"text","type":"labels","value":{"end":3892,"labels":["NONE"],"start":3876,"text":"\n 3. What order?"}},{"from_name":"label","id":"8cbff623bae744708d33698d0991089b","to_name":"text","type":"labels","value":{"end":4081,"labels":["ANALYSIS"],"start":3892,"text":"\n 7. The findings of this Court on the above points are as under:- Point no.1 : In the Negative.\n Point no.2 : In the Negative.\n Point no.3 :"}},{"from_name":"label","id":"68c30f2891ee459eb26888d1ddd5c38b","to_name":"text","type":"labels","value":{"end":4382,"labels":["ANALYSIS"],"start":4082,"text":"As per final order, for the following: REASONS 8. Point Nos.1 & 2 : As these points are inter-linked, they are taken up for common discussion to avoid repetition.\n 9. PW1- Sri. D. Chandru, the complainant herein has filed affidavit in lieu of chief examination and reiterated the complaint averments."}},{"from_name":"label","id":"41c45a20eb594e509eb1b939810c44a2","to_name":"text","type":"labels","value":{"end":4570,"labels":["ANALYSIS"],"start":4383,"text":"In support of his contention, he has produced a cheque dated 05.07.2008 for Rs.85,000/- drawn on Karnataka Bank at Ex.P.1 and identified the signature of the accused therein as Ex.P.1(a)."}},{"from_name":"label","id":"ccf0484cc0ee41e0b4d26d4698285c48","to_name":"text","type":"labels","value":{"end":4722,"labels":["ANALYSIS"],"start":4571,"text":"Further he produced the bank endorsement at Ex.P.2, which discloses that the cheque-Ex.P.1 was dishonoured for the reasons `payment stopped by drawer'."}},{"from_name":"label","id":"7cbc3d2cbcf34834aa9558de6ac0d6a5","to_name":"text","type":"labels","value":{"end":4926,"labels":["ANALYSIS"],"start":4723,"text":"Further PW.1 produced legal notice dated 18.07.2008 at Ex.P.3, C.O.P. at Ex.P.4, postal receipt at Ex.P.5, R.P.A.D. cover returned unserved at Ex.P.6 and copy of the legal notice in it at Ex.P.6(a).\n 10."}},{"from_name":"label","id":"8e6b4631b89f45e589e28631bea01582","to_name":"text","type":"labels","value":{"end":5184,"labels":["ANALYSIS"],"start":4927,"text":"On the other hand, DW.1-Smt. Rajeshwari, the accused has adduced in her evidence taking a defence that she had not borrowed hand loan of Rs.85,000/- from the complainant and issued the cheque at Ex.P.1 in discharge of that loan in favour of the complainant."}},{"from_name":"label","id":"a44f2d97dfd248cfb016e7c2768d86ff","to_name":"text","type":"labels","value":{"end":5506,"labels":["ANALYSIS"],"start":5185,"text":"Further, stated that the complainant is a contractor and she entered into an agreement with the complainant in the month of January 2005 for construction of her house as per the agreement at Ex.D.3 for a total sum of Rs.3,60,000/- and then an additional sum of Rs.50,000/- was agreed to be paid by her to the complainant."}},{"from_name":"label","id":"38f6f4fbb18c4e16a1e07a17892f8281","to_name":"text","type":"labels","value":{"end":5644,"labels":["ANALYSIS"],"start":5506,"text":"\n 11. The fact that the complainant took the contract of the construction of accused's house is admitted by PW.1 in his cross-examination."}},{"from_name":"label","id":"96586643239540aaa3346556d7a14963","to_name":"text","type":"labels","value":{"end":5781,"labels":["ANALYSIS"],"start":5645,"text":"He also admitted about the entering into the agreement between himself and the accused as per Ex.D.2 (Ex.D.3 is the original of Ex.D.2)."}},{"from_name":"label","id":"37d7bffe3dd1442b83d507f2de3b94f8","to_name":"text","type":"labels","value":{"end":5837,"labels":["ANALYSIS"],"start":5782,"text":"The PW.1 admitted his signature in Ex.D.2 as Ex.D.2(a)."}},{"from_name":"label","id":"ab69b93ef9ca4cf5a388fe908d8c6572","to_name":"text","type":"labels","value":{"end":6033,"labels":["ANALYSIS"],"start":5838,"text":"Hence, it is clearly proved that the complainant being a contractor had taken the construction work of the accused's house under the agreement Ex.D.3 (Ex.D.2) for total sum of Rs.3,60,000/-.\n 12."}},{"from_name":"label","id":"ab5f16da99e44197a25cbf6d7472e4f3","to_name":"text","type":"labels","value":{"end":6261,"labels":["ANALYSIS"],"start":6034,"text":"Now, it is the defence of DW.1 that she had made part payment under the agreement Ex.D.3, at that time, the complainant took one cheque for Rs.85,000/- and another blank signed cheque drawn on Karnataka bank and also a pronote."}},{"from_name":"label","id":"fcc28ffbbb9f4c59a93a4284fd276b98","to_name":"text","type":"labels","value":{"end":6377,"labels":["ANALYSIS"],"start":6262,"text":"Further, DW.1 adduced that she was due to pay in all Rs.85,000/- towards the contract work done by the complainant."}},{"from_name":"label","id":"e197311f3c3d4481a5f320ee475ecb5d","to_name":"text","type":"labels","value":{"end":6496,"labels":["ANALYSIS"],"start":6378,"text":"Out of that she paid Rs.45,000/- by cash and Rs.40,000/- through a cheque, which has been encashed by the complainant."}},{"from_name":"label","id":"9d174e123fb8412685f0eaf2a1d2c510","to_name":"text","type":"labels","value":{"end":6667,"labels":["ANALYSIS"],"start":6497,"text":"Further DW.1 adduced that she has paid entire amount due to the complainant, but when she demanded him to return the cheque, he gave lame excuses and failed to return it."}},{"from_name":"label","id":"3d77f5bdf39b460f9582f0b9de418faa","to_name":"text","type":"labels","value":{"end":6878,"labels":["ANALYSIS"],"start":6668,"text":"In support of her contention, DW.1 produced a document drawn on a stamp paper at Ex.D.1, which when confronted to PW.1, he admitted the signature therein and also states that while he signed it, it was written."}},{"from_name":"label","id":"0614778c62ac46828f0f31ff8b69019e","to_name":"text","type":"labels","value":{"end":6987,"labels":["ANALYSIS"],"start":6878,"text":"\nEx.D.1 depicts that on 05.05.2008, the accused paid Rs.40,000/- through cheque No.330575 to the complainant."}},{"from_name":"label","id":"1167a99d6bc7415d947a1da68c97581c","to_name":"text","type":"labels","value":{"end":7162,"labels":["ANALYSIS"],"start":6987,"text":"\nIn fact, in his cross-examination at page-5, PW.1 made attempt to deny the payment made by the accused on 05.05.2008 through cheque No.330575 and that he had got it encashed."}},{"from_name":"label","id":"98666a8ed35a45208221c9a1113683b7","to_name":"text","type":"labels","value":{"end":7544,"labels":["ANALYSIS"],"start":7162,"text":"\n 13. The above denial of the complainant as to receipt of Rs.40,000/- through cheque from the accused is proved to be false by his own witness PW.2-Smt. Manjula, Manager, Karnataka Bank, who produced account statement of the accused Smt. Rajeshwari at Ex.P.7, which discloses that the accused got encashed Rs.40,000/- through cheque No.330575, belongs to the accused on 04.05.2008."}},{"from_name":"label","id":"d6e2fcc41cfa4919b871196540b98888","to_name":"text","type":"labels","value":{"end":7817,"labels":["ANALYSIS"],"start":7545,"text":"This fact is further substantiated by the accused by producing her pass-book at Ex.D.4, issued by Karnataka bank, wherein the relevant entry is marked at Ex.D.4(a),, which clearly shows that on 04.05.2008, the accused Chandru encashed Rs.40,000/- through cheque No.330575."}},{"from_name":"label","id":"0a039db021f44fe1b4d5e0dfcb256e23","to_name":"text","type":"labels","value":{"end":7940,"labels":["ANALYSIS"],"start":7818,"text":"Thus, accused has proved with cogent documentary evidence as to payment of Rs40,000/- by way of cheque to the complainant."}},{"from_name":"label","id":"1480c330b25045f8b2be3f350b253676","to_name":"text","type":"labels","value":{"end":8216,"labels":["ANALYSIS"],"start":7941,"text":"In fact, when the accused produced Ex.D.4-Passbook, while cross- examining her, it was suggested that, that amount of Rs.40,000/- was paid towards the contract pertains to the construction of the accused's house and it is not related to the transaction narrated in this case."}},{"from_name":"label","id":"d346a1c2ac724da0b2c364af4792b117","to_name":"text","type":"labels","value":{"end":8293,"labels":["ANALYSIS"],"start":8217,"text":"Thereby, the complainant admits the receipt of Rs.40,000/- from the accused."}},{"from_name":"label","id":"691d45c82aec4e0a82e610d950c12eff","to_name":"text","type":"labels","value":{"end":8404,"labels":["ANALYSIS"],"start":8294,"text":"That being the fact, the above denial by PW.1 as to receipt of Rs.40,000/- through cheque is false contention."}},{"from_name":"label","id":"f5719085a0fc4b0cbb6d80d9be5d806a","to_name":"text","type":"labels","value":{"end":8485,"labels":["ANALYSIS"],"start":8405,"text":"It shows that PW.1 has made attempt to suppress the real truth before the court."}},{"from_name":"label","id":"3906be502f5a4ee1a963dcfb049ebf97","to_name":"text","type":"labels","value":{"end":8563,"labels":["ANALYSIS"],"start":8486,"text":"Thereby the court has to draw an inference that he is not a reliable witness."}},{"from_name":"label","id":"8a9add76ffe64fda881b91552c190398","to_name":"text","type":"labels","value":{"end":9063,"labels":["ANALYSIS"],"start":8563,"text":"\n 14. When the accused has taken a specific defence, that the cheque Ex.P.1 was issued in respect of a separate transaction pertains to construction of her house and she had no money transaction with the complainant as narrated in the complaint and when there is evidence to show that the complainant had taken the contract work of the accused's house, the burden lies on the co to prove that the cheque Ex.P.1 was actually issued in discharge of the hand loan of Rs.85,000/- borrowed by the accused."}},{"from_name":"label","id":"74dddf51618a4004b2c925d904e8dac7","to_name":"text","type":"labels","value":{"end":9255,"labels":["ANALYSIS"],"start":9064,"text":"The accused has made out a probable case that she was due of Rs.85,000/- to the complainant and out of that Rs.40,000/- was paid through cheque and remaining amount was paid through the cash."}},{"from_name":"label","id":"26411ae311074ff2ba619ebe3fc0a07c","to_name":"text","type":"labels","value":{"end":9392,"labels":["ANALYSIS"],"start":9256,"text":"Though the complainant admits the receipt of Rs.40,000/- he contends it was paid not towards the loan transaction pertains to this case."}},{"from_name":"label","id":"517dfeacba754e17b4d28b8f9f34288a","to_name":"text","type":"labels","value":{"end":9619,"labels":["ANALYSIS"],"start":9393,"text":"Except the self serving testimony of PW.1, absolutely there is no evidence placed by the complainant that on 05.06.2008 he had lent Rs.85,000/- to the accused and on that day the accused issued post dated cheque in his favour."}},{"from_name":"label","id":"45e0ecefc7634fc386801fe467d71a7f","to_name":"text","type":"labels","value":{"end":9804,"labels":["ANALYSIS"],"start":9620,"text":"When according to the complainant the accused is due to pay the amount towards the contract work of her house, what was the occasion for him to pay hand loan to her is not forthcoming."}},{"from_name":"label","id":"04438df46d6540ac9db57e7cce55b0f7","to_name":"text","type":"labels","value":{"end":9984,"labels":["ANALYSIS"],"start":9805,"text":"No prudent man under similar circumstances would lend loan of Rs.85,000/- to another, when already the other person is due to pay certain sum in respect of some other transaction."}},{"from_name":"label","id":"b0dd3c6ac29c4002936019b0c98bb3be","to_name":"text","type":"labels","value":{"end":10192,"labels":["ANALYSIS"],"start":9985,"text":"It is relevant to mention that in her cross-examination PW.2, the Bank manager has specifically stated as follows: \" rfn ZP Ag Īig 2004 QAv Az Ev. 2008 g 16 rfn ZP Ag ZAiİv. 1 ZP 2003-04 ZP DVgvzAzg j.\"\n "}},{"from_name":"label","id":"924c92abee164346ab600e36aba8b98b","to_name":"text","type":"labels","value":{"end":10264,"labels":["ANALYSIS"],"start":10192,"text":"Thus, it is clear that the cheque Ex.P.1 pertains to the year 2003-2004."}},{"from_name":"label","id":"55558865d3444be2b7ac6795c47c3cfe","to_name":"text","type":"labels","value":{"end":10386,"labels":["ANALYSIS"],"start":10265,"text":"If that were to be true, then issuing that cheque-Ex.P.1 on 05.06.2008 in favour of the complainant is highly improbable."}},{"from_name":"label","id":"4b0baa3e69214e3396f6e4372ae64c2b","to_name":"text","type":"labels","value":{"end":10582,"labels":["ANALYSIS"],"start":10387,"text":"That evidence of PW.2 supports the defence of the accused that it was issued in favour of the complainant at the time of entering into the contract agreement at Ex.D.3, way back in the year 2006."}},{"from_name":"label","id":"ee711a880f9d45b0bd58694e2fd5fa7d","to_name":"text","type":"labels","value":{"end":10860,"labels":["ANALYSIS"],"start":10583,"text":"Moreover, in the cross-examination of DW.1 at page-4 it was suggested as follows: \"gzgg PAmP Pɮ iqvgAzg j.\n ģ PUjAi gzgjU PAmP P nz JAzg j. v gzgg DU ZɣVzê JAzg j. gzgg ģ PAmP Pɮ irz AAz g. 85 g g Q GPArz JAzg j. 1 ZP̣ gzgj U 2006 EAiİ ģ PAmP Pɮ AAz Q Pq Ez tP Pngvã.\"\n "}},{"from_name":"label","id":"8f517bd5a31946d684ca8e179789f65f","to_name":"text","type":"labels","value":{"end":11021,"labels":["ANALYSIS"],"start":10860,"text":"From the above suggestion, it can be make out that the complainant also admits that the accused was due to pay Rs.85,000/- towards the contract work done by him."}},{"from_name":"label","id":"a2e09a51cb8e4085a8889c1a833e87ac","to_name":"text","type":"labels","value":{"end":11168,"labels":["ANALYSIS"],"start":11022,"text":"When DW.1 stated that Ex.P.1 was issued in the year 2006 in favour of the complainant towards that contract work, the complainant did not deny it."}},{"from_name":"label","id":"132737fdcc4942ec85b4d3ccb9b02c3f","to_name":"text","type":"labels","value":{"end":11298,"labels":["ANALYSIS"],"start":11169,"text":"Thereby, it clearly establishes that the cheque-Ex.P.1 was issued while executing the contract agreement Ex.D.3 in the year 2006."}},{"from_name":"label","id":"89643fbab0a84f58bb726ba8bc95d1e0","to_name":"text","type":"labels","value":{"end":11390,"labels":["ANALYSIS"],"start":11299,"text":"There is no evidence led by the complainant to rebut the above evidence led by the accused."}},{"from_name":"label","id":"c353ff88a1ca4ce98a6ee1794b7feb08","to_name":"text","type":"labels","value":{"end":11606,"labels":["ANALYSIS"],"start":11391,"text":"Moreover, the amount mentioned in Ex.P.1-cheque i.e. Rs.85,000/- clearly tallies with the due amount payable by the accused to the complainant towards the contract work as suggested above to DW.1 by the complainant."}},{"from_name":"label","id":"c14e6f47fd294ced99527807ed3e8277","to_name":"text","type":"labels","value":{"end":11774,"labels":["ANALYSIS"],"start":11607,"text":"As such, the contention of the complainant that the accused issued the post dated cheque-Ex.P.1 on 05.06.2008 shall falls to the ground and that has to be disbelieved."}},{"from_name":"label","id":"ea8eeee388e64199ae5c7c3a5b93e5de","to_name":"text","type":"labels","value":{"end":12044,"labels":["ARG_PETITIONER"],"start":11774,"text":"\n 15. The learned counsel for the complainant has argued that the accused has admitted her signature in the cheque and therefore the court has to draw presumption that the cheque was issued by the accused for valid consideration in discharge of legally recoverable debt."}},{"from_name":"label","id":"4f36adb9822746b5b0974fba4e38fc68","to_name":"text","type":"labels","value":{"end":12153,"labels":["ARG_PETITIONER"],"start":12045,"text":"No doubt, under the N.I. Act, there are presumptions under Section 139 and 118 in favour of the complainant."}},{"from_name":"label","id":"3e378069e6e742e58d6cccf6efd66dfb","to_name":"text","type":"labels","value":{"end":12308,"labels":["ARG_PETITIONER"],"start":12154,"text":"But, so as to invoke that presumption, it is the bounden duty of the complainant to prove his case first, then only the court has to draw the presumption."}},{"from_name":"label","id":"dac41e601a8846f78fe833559d01deb2","to_name":"text","type":"labels","value":{"end":12451,"labels":["ARG_PETITIONER"],"start":12309,"text":"If the complainant has failed to prove his case at the inception itself, then there is no question of drawing presumption available under law."}},{"from_name":"label","id":"2a015fb049ff40f19d8efc038b5461d7","to_name":"text","type":"labels","value":{"end":12628,"labels":["ARG_PETITIONER"],"start":12452,"text":"Hence, the complainant must first satisfy the court that there exist legally enforceable debt or liability and the accused had issued the cheque in discharge of that liability."}},{"from_name":"label","id":"53f7aa034f954873b1e532824b9bcdc1","to_name":"text","type":"labels","value":{"end":12722,"labels":["ARG_PETITIONER"],"start":12629,"text":"Then only the court could have proceed to draw presumption under Section 139 of the N.I.\nAct."}},{"from_name":"label","id":"ab43750320e540b4b624b8bae32ce1de","to_name":"text","type":"labels","value":{"end":13061,"labels":["ARG_PETITIONER"],"start":12723,"text":"The learned counsel for the complainant has relied upon a decisions reported in 2011 (2) DCR 189 (Balwant Singh V/s Ram Singh), wherein the Hon'ble court held that signature on cheque is admitted, then the story set up by the defence that the cheque was procured under police pressure cannot be accepted in the absence of cogent evidence."}},{"from_name":"label","id":"4ee88798020742cd9245c1ebaf6e32bb","to_name":"text","type":"labels","value":{"end":13398,"labels":["ARG_PETITIONER"],"start":13061,"text":"\nFurther, he also relied upon a decision reported in ILR 2007 KAR 311 (Mr. Umraz Khan V/s Mr.A.Jameel Ahmed and another), wherein the Hon'ble courts held that admission that the cheque was issued as security for repayment of loan will not make any difference and it will not take the transaction out of sweep of Sec. 138 of the N.I. Act."}},{"from_name":"label","id":"edf3552246464d09888628ffed11daf8","to_name":"text","type":"labels","value":{"end":13499,"labels":["PRE_NOT_RELIED"],"start":13399,"text":"The principles of law laid down in the above decisions are not applicable to the facts of this case."}},{"from_name":"label","id":"2a33968d2bb1415b8a9e21d519b6a19d","to_name":"text","type":"labels","value":{"end":13628,"labels":["ANALYSIS"],"start":13500,"text":"In the case on hand, the accused has not admitted that the cheque Ex.P.1 was issued by her as security for the loan transaction."}},{"from_name":"label","id":"f03c37252e354575943a00a447c17699","to_name":"text","type":"labels","value":{"end":13855,"labels":["ANALYSIS"],"start":13629,"text":"On the contrary, she had totally denied the loan transaction as alleged by the complainant, but she contended that the cheque Ex.P.1 was issued towards the contract work undertaken by the complainant way back in the year 2006."}},{"from_name":"label","id":"2e90178907374b34bd4a7e9d17a34bcb","to_name":"text","type":"labels","value":{"end":13987,"labels":["ANALYSIS"],"start":13856,"text":"Further, the accused by leading probable evidence shown how the possession of the cheque Ex.P.1 has been passed to the complainant."}},{"from_name":"label","id":"f7ddbbcb659a4503a523cc80c38424a1","to_name":"text","type":"labels","value":{"end":14165,"labels":["ANALYSIS"],"start":13987,"text":"\n 16. Moreover, mere admission of signature in the cheque itself is not sufficient to hold that the cheque was actually issued for discharge of the loan amount mentioned therein."}},{"from_name":"label","id":"2e2a77643df544e2b6f13689ad7be00d","to_name":"text","type":"labels","value":{"end":14792,"labels":["PRE_RELIED"],"start":14166,"text":"At this stage, this court relies upon decisions reported in ILR 2009 KAR 2331 (B. Indramma V/s Sri.\nEshwar), wherein the Hon'ble court held as follows: \"When the very factum of delivery of the cheque in question by the accused to the complainant and its receipt by the complainant from the accused itself is seriously disputed by the accused, his admission in his evidence that the cheque in question bears his signature would not be sufficient proof of the fact that he delivered the said cheque to the complainant and the latte `received it from the former' so as to raise the presumption under Section 139 of the N.I. Act.\""}},{"from_name":"label","id":"918aa00783e54a0fa0321aa3db93f7ac","to_name":"text","type":"labels","value":{"end":15173,"labels":["PRE_RELIED"],"start":14792,"text":"\n 17. In another decision reported in 2012 (1) DCR 385 (Santhi V/s Mary Sherly), wherein the Hon'ble court held as follows: \"On consideration of the various aspects and provisions of the Act, I am of view that the contention raised by an accused in a prosecution under Section 138 of the Act that he issued a blank signed cheque will not amount to admission of execution of cheque."}},{"from_name":"label","id":"365c161ac4eb405ebfa89ea2ccb507da","to_name":"text","type":"labels","value":{"end":15318,"labels":["PRE_RELIED"],"start":15174,"text":"A signed blank cheque leaf is very often referred to as a blank \"cheque\", but, strictly speaking, it is not a \"cheque\" as defined under the Act."}},{"from_name":"label","id":"d8d32b7771ab4edfafe443b600285aa0","to_name":"text","type":"labels","value":{"end":15402,"labels":["PRE_RELIED"],"start":15319,"text":"It can be treated only as a \"cheque leaf\" containing admitted signature of accused."}},{"from_name":"label","id":"de259ed275ec46e4a01c51b30665de2b","to_name":"text","type":"labels","value":{"end":15514,"labels":["PRE_RELIED"],"start":15403,"text":" The admission of signature in a cheque leaf along will not constitute admission of execution of the cheque.\"\n "}},{"from_name":"label","id":"d7c4a05481b547de9abf4e903136d182","to_name":"text","type":"labels","value":{"end":15616,"labels":["PRE_RELIED"],"start":15514,"text":"The principles of law laid down in the above decisions are aptly applicable to the facts of this case."}},{"from_name":"label","id":"575a9e2976ed41ff8e535c5cb2077de7","to_name":"text","type":"labels","value":{"end":15783,"labels":["ANALYSIS"],"start":15617,"text":"In the case on hand also, just because the accused has admitted her signature in Ex.P.1-cheque, that alone will not construed as admission of execution of the cheque."}},{"from_name":"label","id":"8dfe8cdfdca247338af3c5a6e65f8a3a","to_name":"text","type":"labels","value":{"end":15972,"labels":["ANALYSIS"],"start":15783,"text":"\n 18. Of course, the accused took a contention that the legal notice is not duly served on her and therefore the complainant has not duly complied the provisions of Sec. 138 of the N.I.Act."}},{"from_name":"label","id":"7dcdab6297f04d8c9c379f60ca512263","to_name":"text","type":"labels","value":{"end":16125,"labels":["ANALYSIS"],"start":15973,"text":"However, the postal endorsement on the R.P.A.D. cover- Ex.P.4 would indicate that it was returned for the reason `returned to sender as not in station'."}},{"from_name":"label","id":"8daf13ad85d74bd38a4254c55030765c","to_name":"text","type":"labels","value":{"end":16227,"labels":["ANALYSIS"],"start":16126,"text":"Though the accused contended that at the relevant point of time, she was not staying in that address."}},{"from_name":"label","id":"1e5bab25390143198dcc90b1ea96aa36","to_name":"text","type":"labels","value":{"end":16270,"labels":["ANALYSIS"],"start":16228,"text":"She did not laid any evidence to prove it."}},{"from_name":"label","id":"c638f55ca15a497091b4bba3588b0308","to_name":"text","type":"labels","value":{"end":16421,"labels":["ANALYSIS"],"start":16271,"text":"On the contrary in her cross-examination, at page-3, she admits the address mentioned Ex.P.3 notice and Ex.P.6 R.P.A.D. cover are her correct address."}},{"from_name":"label","id":"a27426ec766943c3883f3484d0606871","to_name":"text","type":"labels","value":{"end":16559,"labels":["ANALYSIS"],"start":16422,"text":"If the accused contends that there is no due service of notice, then the burden lies on her to prove her contention with cogent evidence."}},{"from_name":"label","id":"15421230105f488b8f79d1022bc31461","to_name":"text","type":"labels","value":{"end":16743,"labels":["ANALYSIS"],"start":16560,"text":"It is settled law that if a notice is served to the proper and correct address, though it is returned with the shara `returned unserved' it shall be deemed to be served on the accused"}},{"from_name":"label","id":"3a818ecd1ec34d439c5cbdaaac1bf6b8","to_name":"text","type":"labels","value":{"end":17428,"labels":["ARG_PETITIONER"],"start":16743,"text":". In fact, the learned counsel for the complainant has relied upon the decisions reported in AIR 2005 Supreme court 109 (V.Raja Kumari V/s P. Subbarama Naidu and another), 2004 (2) DCR 384 (Nirdosh Enterprises, Hyderabad V/s State of A.P. and another), 2010 (1) DCR 766 (Babulal V/s Gafur & Another), ILR 2007 KAR 311 (Mr. Umraz Khan V/s Mr.A.Jameel Ahmed and another), 2012 (1) KCCR 156 (B.Jayarama Shetty V/s Biviyas Finance and Leasing Limited, Kundapura Taluk,), Wherein the Hon'ble courts held that though the notice was returned as refusal by the addressee, but the notice is dispatched by the sender to the correct address, then it shall be deemed to be served to the addressee."}},{"from_name":"label","id":"169eef31472348659aca7d1155512ca8","to_name":"text","type":"labels","value":{"end":17530,"labels":["ANALYSIS"],"start":17429,"text":"Hence, whatever contention taken by the accused about non-service of legal notice has to be rejected."}},{"from_name":"label","id":"c8156142db9246dda5d0052f72116ef0","to_name":"text","type":"labels","value":{"end":17929,"labels":["ARG_PETITIONER"],"start":17530,"text":"\n 19. However, the learned counsel for the complainant has relied upon the decisions reported in 2003(2) DCR 145 (M/s Jayam Company and another V/s T.Ravichandran) and 2012 (1) DCR 242 R.Raju V/s K.Sivasamy), wherein the Hon'ble courts held that if the accused fails to reply the notice inspite of due service of the legal notice without denying the allegations then it cannot be easily overlooked.\n"}},{"from_name":"label","id":"41913ad4e4184f88ad4cbcd7f0a8656f","to_name":"text","type":"labels","value":{"end":18063,"labels":["ANALYSIS"],"start":17929,"text":"Of course, in the normal circumstances, non issuance of reply notice by the accused inspite of due service has to be viewed seriously."}},{"from_name":"label","id":"87ccae42514347d9a5127327d50666fc","to_name":"text","type":"labels","value":{"end":18201,"labels":["ANALYSIS"],"start":18064,"text":"In the case on hand, though there is deemed service, there is no proper evidence to show that it has been actually served to the accused."}},{"from_name":"label","id":"65b07d8e6a9d466f9ec4cff9292cc6dc","to_name":"text","type":"labels","value":{"end":18335,"labels":["ANALYSIS"],"start":18202,"text":"Further, non-issuance of the reply notice can be taken as one of the corroborative ground so as to reject the defence of the accused."}},{"from_name":"label","id":"4d38ae5b3cae4985a35b87dc95de73e3","to_name":"text","type":"labels","value":{"end":18413,"labels":["ANALYSIS"],"start":18336,"text":"But, that cannot be only ground to disbelieve the entire case of the accused."}},{"from_name":"label","id":"3a352cab5acc41c38cb22b590ce5258f","to_name":"text","type":"labels","value":{"end":18703,"labels":["ANALYSIS"],"start":18414,"text":"In the case on hand, the accused by leading probable evidence, has put forth her defence so as to show that she has not borrowed the hand loan as asserted in the complaint, but the cheque-Ex.P.1 was issued in respect of contract work of her house given to the complainant in the year 2006."}},{"from_name":"label","id":"609c4ba9819f43a6abc05595dd4fbde4","to_name":"text","type":"labels","value":{"end":18770,"labels":["PRE_RELIED"],"start":18704,"text":"Therefore, the above decisions are not helpful to the complainant."}},{"from_name":"label","id":"0323261e3ecf420895a490cd319e28eb","to_name":"text","type":"labels","value":{"end":19177,"labels":["PRE_RELIED"],"start":18772,"text":"20. As per the decisions of the Hon'ble Supreme Court of India reported in (2008) 2 Supreme Court Cases (Criminal) 166 (Krishna Janardhan Bhat V/s Dattatraya G.\n Hegde) and 2010 AIR SCW 2946 (Rangappa V/s Mohan) and also in the decisions relied by the learned counsel for the accused reported in 2010 (2) Kar.L.J. 284 (B. Girish V/s S.\nRamaiah), 2013 (3) KCCR 1940 (Smt. Lakshmi Subramanya v/s B.V. Nagesh"}},{"from_name":"label","id":"010a4308ec8647da81a528d0c1e749b2","to_name":"text","type":"labels","value":{"end":19319,"labels":["PRE_RELIED"],"start":19177,"text":"), it was held that the standard of evidence to be led by the accused is preponderance of probabilities and not proof beyond reasonable doubt."}},{"from_name":"label","id":"c4bbde509b7a45418c5423e9c75cd635","to_name":"text","type":"labels","value":{"end":19408,"labels":["PRE_RELIED"],"start":19320,"text":"On the contrary, for the complaint he should prove his case beyond all reasonable doubt."}},{"from_name":"label","id":"60e91bc308bb4004888a510106b273ef","to_name":"text","type":"labels","value":{"end":20029,"labels":["PRE_RELIED"],"start":19409,"text":"In other decisions reported in 2010(1) DCR 231 (N.Chiraj Travels (Pvt) Ltd. V/s Ashwani Kumar and another) and 2011 (1) DCR 254 (Mahendra Gulabchind Kohar V/s Cakharam Ramdas Patil) the Hon'ble Delhi and Bombay High courts having relied upon the decisions of Hon'ble Supreme Court of India referred supra, held that the presumption under Section 139 of N.I. Act is rebutable and the accused can prove the non- existence of any debt or liability by raising probable defence or by demolishing or discrediting the case of complainant and it is not necessary for the accused to prove his defence beyond all reasonable doubt."}},{"from_name":"label","id":"70da879d490d4adaa54028709c14c7fa","to_name":"text","type":"labels","value":{"end":20379,"labels":["PRE_RELIED"],"start":20030,"text":"Further, this court relies upon a decision reported in 2011(3) Crimes 158 (Bom) (Sriniwas Ramdas Siwerwat V/s Shantaram Pandurang Deotale) wherein the Hon'ble Court held at page-13 as follows: \"The statutory presumptions in favour of the complainant are not by themselves evidence but only make out the prima-facie case in favour of the complainant."}},{"from_name":"label","id":"2b5b194aaf374037b6353b5af43629ab","to_name":"text","type":"labels","value":{"end":20591,"labels":["PRE_RELIED"],"start":20380,"text":"They can exist, live and survive the contrary evidence is proved by the accused sufficient enough to believe that the cheques in question were not issued by the accused for any consideration / debt or liability."}},{"from_name":"label","id":"4eab5f4dcedc47d5867e630a7b566e78","to_name":"text","type":"labels","value":{"end":20795,"labels":["PRE_RELIED"],"start":20592,"text":"It is open for the accused to rebut the statutory presumption by proving that the cheques were not issued for any consideration or that there was no any debt or liability to be discharged by the accused."}},{"from_name":"label","id":"ef7aff85df34477cbaa24ec9b8196636","to_name":"text","type":"labels","value":{"end":20866,"labels":["PRE_RELIED"],"start":20796,"text":"The accused can succeed upon proof of preponderance of probabilities.\""}},{"from_name":"label","id":"a662e4078b064a3f9a013004e15a33e2","to_name":"text","type":"labels","value":{"end":20970,"labels":["ANALYSIS"],"start":20866,"text":"\n The principles of law laid down in the above decisions are aptly applicable to the facts of this case."}},{"from_name":"label","id":"75fccb5dbffa4ba3a7eb187fc131905e","to_name":"text","type":"labels","value":{"end":21216,"labels":["ANALYSIS"],"start":20971,"text":"In the case on hand also, the accused by leading cogent evidence in all probabilities proved that she issued the cheque-Ex.P1 in favour of the complainant in respect of contract work in the year 2006 and that has been misused by the complainant."}},{"from_name":"label","id":"ed7f763dd2ba4fd7848b0b3882aa087b","to_name":"text","type":"labels","value":{"end":21340,"labels":["ANALYSIS"],"start":21216,"text":"\n The initial burden always lies on the complainant and if she proves her case prima facie, then onus shifts on the accused."}},{"from_name":"label","id":"f2e92c7ff5a1460cb5b63c68dea85cc8","to_name":"text","type":"labels","value":{"end":21479,"labels":["PRE_RELIED"],"start":21340,"text":"\n Thus the complainant has failed to discharge the initial burden so as to attract the necessary ingredients of S.138 of the N.I. Act.\n 21."}},{"from_name":"label","id":"5b72a4e5e8004379bba0d1d29c9903ac","to_name":"text","type":"labels","value":{"end":21862,"labels":["PRE_RELIED"],"start":21480,"text":"In another decision reported in: AIR 2007 NOC 2612 A.P.(G. Veeresham V/s Shivashankar and Another) the Hon'ble Court has held as under: \"Negotiable Instruments Act (26 of 1881), S.138 Dishonour of cheque Presumptions available to complainant under S.118 and S.139 of Act- Rebuttal of cheque in question was allegedly issued by accused to discharge hand loan taken from complainant."}},{"from_name":"label","id":"6f36845f3fa942218cde5fdee7eb242a","to_name":"text","type":"labels","value":{"end":22162,"labels":["PRE_RELIED"],"start":21863,"text":"However, no material placed on record by complainant to prove alleged lending of hand loan said fact is sufficient to infer that accused is liable to rebut presumptions available in favour of complainant under sections 118 and 139 of Act, Order acquitting accused for offence under S.138, proper\".\n "}},{"from_name":"label","id":"86c85d68346b450eb9a1c01554fafcf0","to_name":"text","type":"labels","value":{"end":22255,"labels":["ANALYSIS"],"start":22162,"text":"The principle of law laid down in the above decision is applicable to the facts of this case."}},{"from_name":"label","id":"67da1becc8234dc589d6ee836217253b","to_name":"text","type":"labels","value":{"end":22415,"labels":["ANALYSIS"],"start":22256,"text":"In the case on hand also, as discussed above, the complainant has failed to prove with cogent evidence as to the lending of loan of Rs.85,000/- to the accused."}},{"from_name":"label","id":"6533ae70f31344ae9ced0b8a798b4ffc","to_name":"text","type":"labels","value":{"end":22582,"labels":["ANALYSIS"],"start":22416,"text":"Thus, that fact itself is sufficient to infer that accused is able to rebut presumptions available in favour of complainant under sections 118 and 139 of the N.I.Act."}},{"from_name":"label","id":"fc35883b1e1546d6b11e3dc005a83fa0","to_name":"text","type":"labels","value":{"end":22848,"labels":["PRE_RELIED"],"start":22583,"text":"In a decision reported in AIR 2006 Supreme Court 3366 (M.S.Narayana Menon alias Mani V/s State of Kerala & Anr.), the Hon'ble Apex court held that once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution."}},{"from_name":"label","id":"18a6f43e533641d7bc38a838f66a540c","to_name":"text","type":"labels","value":{"end":23023,"labels":["PRE_RELIED"],"start":22849,"text":"In this case on hand also, the accused has proved in all probability that she is not liable to pay Ex.P1-cheque amount of Rs. 85,000/- and it is not legally recoverable debt."}},{"from_name":"label","id":"9b688ff90a1945778d13e1685de2b458","to_name":"text","type":"labels","value":{"end":23205,"labels":["PRE_RELIED"],"start":23024,"text":"So, the burden is on the complainant to prove strictly with cogent and believable evidence that the accused has borrowed the cheque amount and she is legally liable to pay the same."}},{"from_name":"label","id":"b0a0b5931d5340f6895871f4860740f6","to_name":"text","type":"labels","value":{"end":23391,"labels":["ANALYSIS"],"start":23206,"text":"But, except some inconsistent and improbable evidences as discussed above, the complainant has failed to prove with satisfactory evidence the lending of Rs.85,000/- loan to the accused."}},{"from_name":"label","id":"440d743e9a7d411c9ea57848028c2782","to_name":"text","type":"labels","value":{"end":23632,"labels":["ANALYSIS"],"start":23392,"text":"Just because, there is a presumption under Section 139 of N.I.\nAct, that will not create any special right to the complainant so as to initiate a proceeding against the drawer of the cheque who is not at all liable to pay the cheque amount."}},{"from_name":"label","id":"9fef1df06af046a499bf59912570331b","to_name":"text","type":"labels","value":{"end":23878,"labels":["ANALYSIS"],"start":23633,"text":"From the above elaborate discussions, it very much clear that the complainant has failed to adduce cogent and corroborative evidence to show that accused has issued cheque- Ex.P.1 in discharge of her legally payable debt for valid consideration."}},{"from_name":"label","id":"04e9aa51d8b04818af0ae1541410df0a","to_name":"text","type":"labels","value":{"end":24020,"labels":["ANALYSIS"],"start":23878,"text":"\nOn the other hand, the accused has successfully rebutted the legal presumptions under Section 139 and 118 of Negotiable Instruments Act.\n 22."}},{"from_name":"label","id":"a531ab099db84f3a81423ae0e4cbed0f","to_name":"text","type":"labels","value":{"end":24212,"labels":["ANALYSIS"],"start":24020,"text":"\nBasically, insertion of the penal provision under section 138 of the N.I. Act, 1881, is to maintain a healthy business transaction between the people based on faith, belief and understanding."}},{"from_name":"label","id":"bbb1de9d3a4e40fb8e7dd4b6914fbbcf","to_name":"text","type":"labels","value":{"end":24325,"labels":["ANALYSIS"],"start":24213,"text":"That is why, the drawer of a cheque should not be allowed to abuse the accommodation given to him by a creditor."}},{"from_name":"label","id":"4cf1bfd298a34e53839d261c4bd6ba7f","to_name":"text","type":"labels","value":{"end":24488,"labels":["ANALYSIS"],"start":24326,"text":"At the same time, the payee or holder of a cheque cannot be permitted to use that penal provision under law as a weapon for unlawful gain or to harass the debtor."}},{"from_name":"label","id":"40624c26a8294d7fb4a46ce23717844e","to_name":"text","type":"labels","value":{"end":24666,"labels":["ANALYSIS"],"start":24489,"text":"To initiate a penal action under Section 138 of the N.I.Act, against a drawer of a cheque, there should not be any kind of lapse or lacuna on the part of the holder of a cheque."}},{"from_name":"label","id":"7cabb1101a7545c4a53a71ff52457a7a","to_name":"text","type":"labels","value":{"end":24855,"labels":["ANALYSIS"],"start":24667,"text":"Because, the proceeding under section 138 of the N.I.Act is not for recovery of money but to punish a dishonest and incredible debtor, who intentionally tries to escape from his liability."}},{"from_name":"label","id":"4df925d62172462f93b544c6f8c619bc","to_name":"text","type":"labels","value":{"end":25006,"labels":["ANALYSIS"],"start":24856,"text":"That is why, it is the duty of the complainant in a given case under the NI Act, 1881, to place a stable and firm case on his behalf before the court."}},{"from_name":"label","id":"db69be7605fe458f9486b6dfa4fd41af","to_name":"text","type":"labels","value":{"end":25192,"labels":["ANALYSIS"],"start":25007,"text":"When the case of the complainant is shaky, unstable, untrustworthy and doubtful one, then in the opinion of this court, no presumption that is available under law will come to his help."}},{"from_name":"label","id":"bfe9bb194d3445feb2dc905c9545957a","to_name":"text","type":"labels","value":{"end":25356,"labels":["ANALYSIS"],"start":25193,"text":"In the case on hand, the accused has taken several contentions before the court and made out grounds to show that the case of the complainant is highly improbable."}},{"from_name":"label","id":"bcc4ca3294d049378c03e4c9ae413f12","to_name":"text","type":"labels","value":{"end":25515,"labels":["ANALYSIS"],"start":25357,"text":"The conduct of the complainant shows his dishonest intention to defraud the accused and for wrongful gain filed this false compliant against the accused.\n 23."}},{"from_name":"label","id":"d5f84a0bce544c53a260bf4296fa10ca","to_name":"text","type":"labels","value":{"end":25952,"labels":["ANALYSIS"],"start":25516,"text":"From the documents produced before the court it is very much clear that within 6 months from the date of cheque the complainant has presented the cheque for encashment and within one month from the date of issuance of the bank memo, the complainant has issued notice to the accused and after 15 days from the date of service of the said notice to the accused, within one month the complainant has filed this complaint before this court."}},{"from_name":"label","id":"4ecd02f9456b4132ac50c297e62eaab8","to_name":"text","type":"labels","value":{"end":26088,"labels":["ANALYSIS"],"start":25953,"text":"As such, the complainant has complied with all the statutory requirements so as to initiate a proceeding under Section 138 of N.I. Act."}},{"from_name":"label","id":"6a10178a2ca44644bac6a37b045e0a51","to_name":"text","type":"labels","value":{"end":26415,"labels":["ANALYSIS"],"start":26088,"text":"\nBut, the fact to be considered is, when the complainant has failed to prove that there was legally recoverable debt and in discharge of that debt only cheque-Ex.P.1 was issued, even if the legal notice was served on the accused and the accused has failed to pay the cheque amount, still the accused cannot be found fault with."}},{"from_name":"label","id":"21685e867d5449ff8de13a1addddf7a4","to_name":"text","type":"labels","value":{"end":26585,"labels":["ANALYSIS"],"start":26416,"text":"Because, when the accused is not liable to pay the amount demanded under the notice, then, the accused is not liable to pay the amount what is demanded under the notice."}},{"from_name":"label","id":"5efc3900819f4dfb834e92b22d6a8f49","to_name":"text","type":"labels","value":{"end":26700,"labels":["ANALYSIS"],"start":26586,"text":"In the opinion of this court, the accused has got every right not to pay that amount so demanded under the notice."}},{"from_name":"label","id":"d5bf99ba5e90423c836505616f6595ca","to_name":"text","type":"labels","value":{"end":26810,"labels":["ANALYSIS"],"start":26701,"text":"The drawee has no right to demand any amount, which is not legally recoverable from the drawer of the cheque."}},{"from_name":"label","id":"79fce8897849405ab05f4913ebd6f042","to_name":"text","type":"labels","value":{"end":26991,"labels":["ANALYSIS"],"start":26811,"text":"Hence, non-payment of the cheque amount as demanded by the complainant under the notice cannot be termed as intentional default on the part of the accused to pay the cheque amount."}},{"from_name":"label","id":"6df2d9b387eb487c8949d274b8ca65db","to_name":"text","type":"labels","value":{"end":27203,"labels":["RATIO"],"start":26991,"text":"\n 24. On perusal of the entire oral and documentary evidence placed on record on behalf of both the parties, it is clear that, the case of the complainant is not cogent, convincing, corroborative and trustworthy."}},{"from_name":"label","id":"6ac06d9f0a7442edac288e2ed2c93a44","to_name":"text","type":"labels","value":{"end":27395,"labels":["RATIO"],"start":27204,"text":"The material omissions, inconsistencies, discrepancies and contradictions in the evidence of P.W.1 itself is sufficient to rebut the legal presumptions available in favour of the complainant."}},{"from_name":"label","id":"001927b7a6f348169999db916c1bc6fc","to_name":"text","type":"labels","value":{"end":27517,"labels":["RATIO"],"start":27396,"text":"Thus, this court is of the considered view that the complainant has failed to prove his case beyond all reasonable doubt."}},{"from_name":"label","id":"e5f95f1ecc5749ef859db05da9c33601","to_name":"text","type":"labels","value":{"end":27597,"labels":["RPC"],"start":27517,"text":"\nAccordingly point Nos.1 and 2 are answered in the `Negative'.\n 25. Point no.3:-"}},{"from_name":"label","id":"6392a4cb4bf14b6bb1704f071d54230c","to_name":"text","type":"labels","value":{"end":27872,"labels":["RPC"],"start":27598,"text":"Having thus discussed in detail, this court proceed to pass the following: ORDER Acting under Sec.255 (1) of the Criminal Procedure Code, 1973, the accused is found not guilty and she is acquitted for the offence punishable under Sec.138 of Negotiable Instruments Act, 1881."}},{"from_name":"label","id":"3fe57d0ee7d447d3b52695b48681b24a","to_name":"text","type":"labels","value":{"end":27936,"labels":["RPC"],"start":27872,"text":"\n The bail bond and surety bond of the accused stands cancelled."}},{"from_name":"label","id":"3f202bc9ae784a06a8af0b7bfeb2779e","to_name":"text","type":"labels","value":{"end":28847,"labels":["NONE"],"start":27936,"text":"\n [Dictated to the Stenographer in the open court, corrected, signed and then pronounced by me in the Open Court on this the 31st day of October 2013] (H.Shashidhara Shetty), Prl. I Civil Judge and J.M.F.C., Mysore A N N E X U R E S List of witnesses examined on behalf of the complainant: PW-1 D.Chandru Pw.2 Manjula List of documents marked on behalf of the Complainant: Ex.P.1 Cheque Ex.P.2 Bank memo Ex.P.3 Notice Ex.P.4 C.O.P.\nEx.P.5 Postal receipt Ex.P.6 Unserved R.P. cover Ex.P.6(a) Unserved notice Ex.P.7 Account statement List of witnesses examined marked on behalf of the accused: D.W.1 Rajeshwari List of documents marked on behalf of the accused: Ex.D.1 letter Ex.D.1(a) Signature Ex.D.2 & 3 Agreement Ex.D.2(a) Signature 3(a) Ex.D.4 Pass book Prl. I Civil Judge and J.M.F.C., Mysore Judgement pronounced in the open court (Vide separate order)"}},{"from_name":"label","id":"2262b8bcc1434322a8d43323813fdf99","to_name":"text","type":"labels","value":{"end":28853,"labels":["RPC"],"start":28847,"text":" ORDER"}},{"from_name":"label","id":"af41fc777205400592afd99ae5d1d0d9","to_name":"text","type":"labels","value":{"end":29047,"labels":["RPC"],"start":28854,"text":"Acting under Sec.255 (1) of the Criminal Procedure Code, 1973, the accused is found not guilty and she is acquitted for the offence punishable under Sec.138 of Negotiable Instruments Act, 1881."}},{"from_name":"label","id":"a5be112946c44857a481b4c982f657f9","to_name":"text","type":"labels","value":{"end":29111,"labels":["RPC"],"start":29047,"text":"\n The bail bond and surety bond of the accused stands cancelled."}},{"from_name":"label","id":"c1d6cd5c90a54453a01be8274e0fcbee","to_name":"text","type":"labels","value":{"end":29483,"labels":["NONE"],"start":29111,"text":"\n Prl. I Civil Judge and J.M.F.C., Mysore 2010 (2) DCR 73 (Gujrat Ambuja Proteins Limited V/s Rajeev Khandelwal and others) ILR 2005 KAR 409 Supreme Court (V.Raja Kumari V/s P.Subbarama Naidu and another) AIR 2010 Supreme Court 1898 (Rangappa V/s Mohan) ILR 2008 KAR 1883 Latha K.Nair V/s M/s Gold Mohar Foods and Feeds Ltd., 2011 (2) DCR 189 (Balwant Singh V/s Ram Singh)"}}]}],"string":"[\n {\n \"result\": [\n {\n \"from_name\": \"label\",\n \"id\": \"631a9c8dc55e4f57bbd1e3434dcc6e81\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 123,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 0,\n \"text\": \"IN THE COURT OF THE PRL. 1st CIVIL JUDGE & J.M.F.C.,\\n AT MYSORE\\n\\n PRESENT:\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"2e7f4c5dbfce4dfba20e3ca614072bad\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 164,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 124,\n \"text\": \"Sri H.Shashidhara Shetty, B.A.L., LL.M.,\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"46ca495109b84df08b1fc80a95133b04\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 236,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 199,\n \"text\": \"Prl.First Civil Judge & JMFC, Mysore.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"478213a7174748e9a3466bf6e22adb5e\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 315,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 246,\n \"text\": \"DATED THIS THE 31st DAY OF OCTOBER 2013\\n\\n :\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"a9810e0fa9894370a56bc1bf4f07edc1\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 333,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 315,\n \"text\": \": C.C.No.2784/2008\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"79f81cebebe64080be7fb7c3c8433906\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 546,\n \"labels\": [\n \"PREAMBLE\"\n ],\n \"start\": 334,\n \"text\": \"::\\n\\nCOMPLIANANT :- Sri.D. 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\"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 1803,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 1542,\n \"text\": \"The complainant lent Rs.85,000/- on 05.06.2008 and the accused promised to repay the same within a month with interest at 2% and issued a post dated cheque bearing No.319609 dated 05.07.2008 drawn on Karnataka bank, Vijayanagar, Mysore for a sum of Rs.85,000/-.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"08df6aa8eb7141d18291f866e51cc91b\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 2053,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 1803,\n \"text\": \"\\nThe complainant presented the said cheque for collection on 07.07.2008 through his banker Oriental bank of Commerce, Kuvempunagar, Mysore, which returned dishonoured for the reasons ` payment stopped by the drawer' vide endorsement dated 09.07.2008.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"cee3fa126b274dac920218ebd0c34764\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 2302,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 2054,\n \"text\": \"The complainant caused legal notice on 18.07.2008, both through R.P.A.D. and C.O.P., but the notice sent through R.P.A.D. with share ` addressee not in station' on 29.07.2008 and the notice sent through C.O.P. is deemed to be served on the accused.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"87d8fb7350c2463c9c2c4e17eff16d98\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 2347,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 2303,\n \"text\": \"The accused did not repay the cheque amount.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"d060101c8bed46ab8d28ca960810cefd\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 2369,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 2348,\n \"text\": \"Hence, the complaint.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"b658076a7d1d4a329371b46eeb94af6d\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 2564,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 2369,\n \"text\": \"\\n 3. The court after taking cognizance recorded the sworn statement of the complainant, issued process to the accused, who appeared before the court through his learned counsel and obtained bail.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"7cd5c428fa594c048ef8c9f95e72cc8a\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 2632,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 2565,\n \"text\": \"Copies of the complaint and documents are furnished to the accused.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"212ba88f9377431ab0067804959efb0e\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 2751,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 2633,\n \"text\": \"On 03.06.2011, the plea of the accused was recorded, for which the accused pleaded not guilty and claimed to be tried.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"31d159c716e94349b70564e259f4b0b6\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 2913,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 2751,\n \"text\": \"\\n 4. During trial, on behalf of the complainant, he himself got examined as PW1 and examined one more witness as PW.2 and got marked the documents Ex.P1 to Ex.P7.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"58e0c91ca8cf4b62ad604d1b8dcfc217\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 2956,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 2914,\n \"text\": \"With that the complainant closed his side.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"c6be399b45b44b29ab2e92184cd1d671\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 3107,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 2957,\n \"text\": \"The Statement of the accused as required under Section 313 of Cr.P.C. was recorded, wherein the accused denied the incriminating evidence against her.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"90095d72c7f844758268e731ee1dbdc8\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 3210,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 3108,\n \"text\": \"On her defence, the accused got examined herself as DW.1 and got marked documents at Ex.D.1 to Ex.D.4.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"4f8455dd9ad141869a2f908aa4d82065\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 3249,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 3211,\n \"text\": \"With that the accused closed her side.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"1e5166cc31c8406385f4cb5bef45940a\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 3260,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 3249,\n \"text\": \"\\n 5. Heard.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"538d68cf11164eafaf1d924417376232\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 3325,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 3261,\n \"text\": \"The learned counsel for the complainant filed written arguments.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"c8ce8e7299c5430691f6a54e89d46c26\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 3346,\n \"labels\": [\n \"FAC\"\n ],\n \"start\": 3326,\n \"text\": \"Perused the records.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"4d6f97e753d9470a89ea112c4b16409c\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 3412,\n \"labels\": [\n \"ISSUE\"\n ],\n \"start\": 3348,\n \"text\": \"6. The points for consideration of this Court are as under: - 1.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"e72920c6beba43bfaad994ed89b6de26\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 3665,\n \"labels\": [\n \"ISSUE\"\n ],\n \"start\": 3413,\n \"text\": \"Whether the complainant proves beyond all reasonable doubt that, the cheque bearing No.319609 dated 05.07.2008 for Rs.85,000/- drawn on Karnataka Bank, Mysore branch was issued by the accused to the complainant in discharge of legally recoverable debt?\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"aaa1a0ca58854edba79e13a275dd6ece\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 3876,\n \"labels\": [\n \"ISSUE\"\n ],\n \"start\": 3667,\n \"text\": \"2. Whether the complainant further proves that the accused has failed to pay the cheque amount inspite of a legal demand and thereby committed an offence punishable U/Sec.138 of the Negotiable Instruments Act?\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"ab5fc4abbef4402083c47a6daa361afc\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 3892,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 3876,\n \"text\": \"\\n 3. What order?\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"8cbff623bae744708d33698d0991089b\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 4081,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 3892,\n \"text\": \"\\n 7. The findings of this Court on the above points are as under:- Point no.1 : In the Negative.\\n Point no.2 : In the Negative.\\n Point no.3 :\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"68c30f2891ee459eb26888d1ddd5c38b\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 4382,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 4082,\n \"text\": \"As per final order, for the following: REASONS 8. Point Nos.1 & 2 : As these points are inter-linked, they are taken up for common discussion to avoid repetition.\\n 9. PW1- Sri. D. Chandru, the complainant herein has filed affidavit in lieu of chief examination and reiterated the complaint averments.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"41c45a20eb594e509eb1b939810c44a2\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 4570,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 4383,\n \"text\": \"In support of his contention, he has produced a cheque dated 05.07.2008 for Rs.85,000/- drawn on Karnataka Bank at Ex.P.1 and identified the signature of the accused therein as Ex.P.1(a).\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"ccf0484cc0ee41e0b4d26d4698285c48\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 4722,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 4571,\n \"text\": \"Further he produced the bank endorsement at Ex.P.2, which discloses that the cheque-Ex.P.1 was dishonoured for the reasons `payment stopped by drawer'.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"7cbc3d2cbcf34834aa9558de6ac0d6a5\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 4926,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 4723,\n \"text\": \"Further PW.1 produced legal notice dated 18.07.2008 at Ex.P.3, C.O.P. at Ex.P.4, postal receipt at Ex.P.5, R.P.A.D. cover returned unserved at Ex.P.6 and copy of the legal notice in it at Ex.P.6(a).\\n 10.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"8e6b4631b89f45e589e28631bea01582\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 5184,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 4927,\n \"text\": \"On the other hand, DW.1-Smt. Rajeshwari, the accused has adduced in her evidence taking a defence that she had not borrowed hand loan of Rs.85,000/- from the complainant and issued the cheque at Ex.P.1 in discharge of that loan in favour of the complainant.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"a44f2d97dfd248cfb016e7c2768d86ff\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 5506,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 5185,\n \"text\": \"Further, stated that the complainant is a contractor and she entered into an agreement with the complainant in the month of January 2005 for construction of her house as per the agreement at Ex.D.3 for a total sum of Rs.3,60,000/- and then an additional sum of Rs.50,000/- was agreed to be paid by her to the complainant.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"38f6f4fbb18c4e16a1e07a17892f8281\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 5644,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 5506,\n \"text\": \"\\n 11. The fact that the complainant took the contract of the construction of accused's house is admitted by PW.1 in his cross-examination.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"96586643239540aaa3346556d7a14963\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 5781,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 5645,\n \"text\": \"He also admitted about the entering into the agreement between himself and the accused as per Ex.D.2 (Ex.D.3 is the original of Ex.D.2).\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"37d7bffe3dd1442b83d507f2de3b94f8\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 5837,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 5782,\n \"text\": \"The PW.1 admitted his signature in Ex.D.2 as Ex.D.2(a).\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"ab69b93ef9ca4cf5a388fe908d8c6572\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 6033,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 5838,\n \"text\": \"Hence, it is clearly proved that the complainant being a contractor had taken the construction work of the accused's house under the agreement Ex.D.3 (Ex.D.2) for total sum of Rs.3,60,000/-.\\n 12.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"ab5f16da99e44197a25cbf6d7472e4f3\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 6261,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 6034,\n \"text\": \"Now, it is the defence of DW.1 that she had made part payment under the agreement Ex.D.3, at that time, the complainant took one cheque for Rs.85,000/- and another blank signed cheque drawn on Karnataka bank and also a pronote.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"fcc28ffbbb9f4c59a93a4284fd276b98\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 6377,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 6262,\n \"text\": \"Further, DW.1 adduced that she was due to pay in all Rs.85,000/- towards the contract work done by the complainant.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"e197311f3c3d4481a5f320ee475ecb5d\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 6496,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 6378,\n \"text\": \"Out of that she paid Rs.45,000/- by cash and Rs.40,000/- through a cheque, which has been encashed by the complainant.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"9d174e123fb8412685f0eaf2a1d2c510\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 6667,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 6497,\n \"text\": \"Further DW.1 adduced that she has paid entire amount due to the complainant, but when she demanded him to return the cheque, he gave lame excuses and failed to return it.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"3d77f5bdf39b460f9582f0b9de418faa\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 6878,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 6668,\n \"text\": \"In support of her contention, DW.1 produced a document drawn on a stamp paper at Ex.D.1, which when confronted to PW.1, he admitted the signature therein and also states that while he signed it, it was written.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"0614778c62ac46828f0f31ff8b69019e\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 6987,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 6878,\n \"text\": \"\\nEx.D.1 depicts that on 05.05.2008, the accused paid Rs.40,000/- through cheque No.330575 to the complainant.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"1167a99d6bc7415d947a1da68c97581c\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 7162,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 6987,\n \"text\": \"\\nIn fact, in his cross-examination at page-5, PW.1 made attempt to deny the payment made by the accused on 05.05.2008 through cheque No.330575 and that he had got it encashed.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"98666a8ed35a45208221c9a1113683b7\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 7544,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 7162,\n \"text\": \"\\n 13. The above denial of the complainant as to receipt of Rs.40,000/- through cheque from the accused is proved to be false by his own witness PW.2-Smt. Manjula, Manager, Karnataka Bank, who produced account statement of the accused Smt. Rajeshwari at Ex.P.7, which discloses that the accused got encashed Rs.40,000/- through cheque No.330575, belongs to the accused on 04.05.2008.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"d6e2fcc41cfa4919b871196540b98888\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 7817,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 7545,\n \"text\": \"This fact is further substantiated by the accused by producing her pass-book at Ex.D.4, issued by Karnataka bank, wherein the relevant entry is marked at Ex.D.4(a),, which clearly shows that on 04.05.2008, the accused Chandru encashed Rs.40,000/- through cheque No.330575.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"0a039db021f44fe1b4d5e0dfcb256e23\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 7940,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 7818,\n \"text\": \"Thus, accused has proved with cogent documentary evidence as to payment of Rs40,000/- by way of cheque to the complainant.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"1480c330b25045f8b2be3f350b253676\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 8216,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 7941,\n \"text\": \"In fact, when the accused produced Ex.D.4-Passbook, while cross- examining her, it was suggested that, that amount of Rs.40,000/- was paid towards the contract pertains to the construction of the accused's house and it is not related to the transaction narrated in this case.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"d346a1c2ac724da0b2c364af4792b117\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 8293,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 8217,\n \"text\": \"Thereby, the complainant admits the receipt of Rs.40,000/- from the accused.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"691d45c82aec4e0a82e610d950c12eff\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 8404,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 8294,\n \"text\": \"That being the fact, the above denial by PW.1 as to receipt of Rs.40,000/- through cheque is false contention.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"f5719085a0fc4b0cbb6d80d9be5d806a\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 8485,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 8405,\n \"text\": \"It shows that PW.1 has made attempt to suppress the real truth before the court.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"3906be502f5a4ee1a963dcfb049ebf97\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 8563,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 8486,\n \"text\": \"Thereby the court has to draw an inference that he is not a reliable witness.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"8a9add76ffe64fda881b91552c190398\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 9063,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 8563,\n \"text\": \"\\n 14. When the accused has taken a specific defence, that the cheque Ex.P.1 was issued in respect of a separate transaction pertains to construction of her house and she had no money transaction with the complainant as narrated in the complaint and when there is evidence to show that the complainant had taken the contract work of the accused's house, the burden lies on the co to prove that the cheque Ex.P.1 was actually issued in discharge of the hand loan of Rs.85,000/- borrowed by the accused.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"74dddf51618a4004b2c925d904e8dac7\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 9255,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 9064,\n \"text\": \"The accused has made out a probable case that she was due of Rs.85,000/- to the complainant and out of that Rs.40,000/- was paid through cheque and remaining amount was paid through the cash.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"26411ae311074ff2ba619ebe3fc0a07c\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 9392,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 9256,\n \"text\": \"Though the complainant admits the receipt of Rs.40,000/- he contends it was paid not towards the loan transaction pertains to this case.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"517dfeacba754e17b4d28b8f9f34288a\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 9619,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 9393,\n \"text\": \"Except the self serving testimony of PW.1, absolutely there is no evidence placed by the complainant that on 05.06.2008 he had lent Rs.85,000/- to the accused and on that day the accused issued post dated cheque in his favour.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"45e0ecefc7634fc386801fe467d71a7f\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 9804,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 9620,\n \"text\": \"When according to the complainant the accused is due to pay the amount towards the contract work of her house, what was the occasion for him to pay hand loan to her is not forthcoming.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"04438df46d6540ac9db57e7cce55b0f7\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 9984,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 9805,\n \"text\": \"No prudent man under similar circumstances would lend loan of Rs.85,000/- to another, when already the other person is due to pay certain sum in respect of some other transaction.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"b0dd3c6ac29c4002936019b0c98bb3be\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 10192,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 9985,\n \"text\": \"It is relevant to mention that in her cross-examination PW.2, the Bank manager has specifically stated as follows: \\\" rfn ZP Ag Īig 2004 QAv Az Ev. 2008 g 16 rfn ZP Ag ZAiİv. 1 ZP 2003-04 ZP DVgvzAzg j.\\\"\\n \"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"924c92abee164346ab600e36aba8b98b\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 10264,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 10192,\n \"text\": \"Thus, it is clear that the cheque Ex.P.1 pertains to the year 2003-2004.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"55558865d3444be2b7ac6795c47c3cfe\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 10386,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 10265,\n \"text\": \"If that were to be true, then issuing that cheque-Ex.P.1 on 05.06.2008 in favour of the complainant is highly improbable.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"4b0baa3e69214e3396f6e4372ae64c2b\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 10582,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 10387,\n \"text\": \"That evidence of PW.2 supports the defence of the accused that it was issued in favour of the complainant at the time of entering into the contract agreement at Ex.D.3, way back in the year 2006.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"ee711a880f9d45b0bd58694e2fd5fa7d\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 10860,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 10583,\n \"text\": \"Moreover, in the cross-examination of DW.1 at page-4 it was suggested as follows: \\\"gzgg PAmP Pɮ iqvgAzg j.\\n ģ PUjAi gzgjU PAmP P nz JAzg j. v gzgg DU ZɣVzê JAzg j. gzgg ģ PAmP Pɮ irz AAz g. 85 g g Q GPArz JAzg j. 1 ZP̣ gzgj U 2006 EAiİ ģ PAmP Pɮ AAz Q Pq Ez tP Pngvã.\\\"\\n \"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"8f517bd5a31946d684ca8e179789f65f\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 11021,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 10860,\n \"text\": \"From the above suggestion, it can be make out that the complainant also admits that the accused was due to pay Rs.85,000/- towards the contract work done by him.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"a2e09a51cb8e4085a8889c1a833e87ac\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 11168,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 11022,\n \"text\": \"When DW.1 stated that Ex.P.1 was issued in the year 2006 in favour of the complainant towards that contract work, the complainant did not deny it.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"132737fdcc4942ec85b4d3ccb9b02c3f\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 11298,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 11169,\n \"text\": \"Thereby, it clearly establishes that the cheque-Ex.P.1 was issued while executing the contract agreement Ex.D.3 in the year 2006.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"89643fbab0a84f58bb726ba8bc95d1e0\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 11390,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 11299,\n \"text\": \"There is no evidence led by the complainant to rebut the above evidence led by the accused.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"c353ff88a1ca4ce98a6ee1794b7feb08\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 11606,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 11391,\n \"text\": \"Moreover, the amount mentioned in Ex.P.1-cheque i.e. Rs.85,000/- clearly tallies with the due amount payable by the accused to the complainant towards the contract work as suggested above to DW.1 by the complainant.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"c14e6f47fd294ced99527807ed3e8277\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 11774,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 11607,\n \"text\": \"As such, the contention of the complainant that the accused issued the post dated cheque-Ex.P.1 on 05.06.2008 shall falls to the ground and that has to be disbelieved.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"ea8eeee388e64199ae5c7c3a5b93e5de\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 12044,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 11774,\n \"text\": \"\\n 15. The learned counsel for the complainant has argued that the accused has admitted her signature in the cheque and therefore the court has to draw presumption that the cheque was issued by the accused for valid consideration in discharge of legally recoverable debt.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"4f36adb9822746b5b0974fba4e38fc68\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 12153,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 12045,\n \"text\": \"No doubt, under the N.I. Act, there are presumptions under Section 139 and 118 in favour of the complainant.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"3e378069e6e742e58d6cccf6efd66dfb\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 12308,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 12154,\n \"text\": \"But, so as to invoke that presumption, it is the bounden duty of the complainant to prove his case first, then only the court has to draw the presumption.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"dac41e601a8846f78fe833559d01deb2\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 12451,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 12309,\n \"text\": \"If the complainant has failed to prove his case at the inception itself, then there is no question of drawing presumption available under law.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"2a015fb049ff40f19d8efc038b5461d7\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 12628,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 12452,\n \"text\": \"Hence, the complainant must first satisfy the court that there exist legally enforceable debt or liability and the accused had issued the cheque in discharge of that liability.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"53f7aa034f954873b1e532824b9bcdc1\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 12722,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 12629,\n \"text\": \"Then only the court could have proceed to draw presumption under Section 139 of the N.I.\\nAct.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"ab43750320e540b4b624b8bae32ce1de\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 13061,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 12723,\n \"text\": \"The learned counsel for the complainant has relied upon a decisions reported in 2011 (2) DCR 189 (Balwant Singh V/s Ram Singh), wherein the Hon'ble court held that signature on cheque is admitted, then the story set up by the defence that the cheque was procured under police pressure cannot be accepted in the absence of cogent evidence.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"4ee88798020742cd9245c1ebaf6e32bb\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 13398,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 13061,\n \"text\": \"\\nFurther, he also relied upon a decision reported in ILR 2007 KAR 311 (Mr. Umraz Khan V/s Mr.A.Jameel Ahmed and another), wherein the Hon'ble courts held that admission that the cheque was issued as security for repayment of loan will not make any difference and it will not take the transaction out of sweep of Sec. 138 of the N.I. Act.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"edf3552246464d09888628ffed11daf8\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 13499,\n \"labels\": [\n \"PRE_NOT_RELIED\"\n ],\n \"start\": 13399,\n \"text\": \"The principles of law laid down in the above decisions are not applicable to the facts of this case.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"2a33968d2bb1415b8a9e21d519b6a19d\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 13628,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 13500,\n \"text\": \"In the case on hand, the accused has not admitted that the cheque Ex.P.1 was issued by her as security for the loan transaction.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"f03c37252e354575943a00a447c17699\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 13855,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 13629,\n \"text\": \"On the contrary, she had totally denied the loan transaction as alleged by the complainant, but she contended that the cheque Ex.P.1 was issued towards the contract work undertaken by the complainant way back in the year 2006.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"2e90178907374b34bd4a7e9d17a34bcb\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 13987,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 13856,\n \"text\": \"Further, the accused by leading probable evidence shown how the possession of the cheque Ex.P.1 has been passed to the complainant.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"f7ddbbcb659a4503a523cc80c38424a1\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 14165,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 13987,\n \"text\": \"\\n 16. Moreover, mere admission of signature in the cheque itself is not sufficient to hold that the cheque was actually issued for discharge of the loan amount mentioned therein.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"2e2a77643df544e2b6f13689ad7be00d\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 14792,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 14166,\n \"text\": \"At this stage, this court relies upon decisions reported in ILR 2009 KAR 2331 (B. Indramma V/s Sri.\\nEshwar), wherein the Hon'ble court held as follows: \\\"When the very factum of delivery of the cheque in question by the accused to the complainant and its receipt by the complainant from the accused itself is seriously disputed by the accused, his admission in his evidence that the cheque in question bears his signature would not be sufficient proof of the fact that he delivered the said cheque to the complainant and the latte `received it from the former' so as to raise the presumption under Section 139 of the N.I. Act.\\\"\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"918aa00783e54a0fa0321aa3db93f7ac\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 15173,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 14792,\n \"text\": \"\\n 17. In another decision reported in 2012 (1) DCR 385 (Santhi V/s Mary Sherly), wherein the Hon'ble court held as follows: \\\"On consideration of the various aspects and provisions of the Act, I am of view that the contention raised by an accused in a prosecution under Section 138 of the Act that he issued a blank signed cheque will not amount to admission of execution of cheque.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"365c161ac4eb405ebfa89ea2ccb507da\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 15318,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 15174,\n \"text\": \"A signed blank cheque leaf is very often referred to as a blank \\\"cheque\\\", but, strictly speaking, it is not a \\\"cheque\\\" as defined under the Act.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"d8d32b7771ab4edfafe443b600285aa0\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 15402,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 15319,\n \"text\": \"It can be treated only as a \\\"cheque leaf\\\" containing admitted signature of accused.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"de259ed275ec46e4a01c51b30665de2b\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 15514,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 15403,\n \"text\": \" The admission of signature in a cheque leaf along will not constitute admission of execution of the cheque.\\\"\\n \"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"d7c4a05481b547de9abf4e903136d182\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 15616,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 15514,\n \"text\": \"The principles of law laid down in the above decisions are aptly applicable to the facts of this case.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"575a9e2976ed41ff8e535c5cb2077de7\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 15783,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 15617,\n \"text\": \"In the case on hand also, just because the accused has admitted her signature in Ex.P.1-cheque, that alone will not construed as admission of execution of the cheque.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"8dfe8cdfdca247338af3c5a6e65f8a3a\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 15972,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 15783,\n \"text\": \"\\n 18. Of course, the accused took a contention that the legal notice is not duly served on her and therefore the complainant has not duly complied the provisions of Sec. 138 of the N.I.Act.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"7dcdab6297f04d8c9c379f60ca512263\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 16125,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 15973,\n \"text\": \"However, the postal endorsement on the R.P.A.D. cover- Ex.P.4 would indicate that it was returned for the reason `returned to sender as not in station'.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"8daf13ad85d74bd38a4254c55030765c\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 16227,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 16126,\n \"text\": \"Though the accused contended that at the relevant point of time, she was not staying in that address.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"1e5bab25390143198dcc90b1ea96aa36\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 16270,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 16228,\n \"text\": \"She did not laid any evidence to prove it.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"c638f55ca15a497091b4bba3588b0308\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 16421,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 16271,\n \"text\": \"On the contrary in her cross-examination, at page-3, she admits the address mentioned Ex.P.3 notice and Ex.P.6 R.P.A.D. cover are her correct address.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"a27426ec766943c3883f3484d0606871\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 16559,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 16422,\n \"text\": \"If the accused contends that there is no due service of notice, then the burden lies on her to prove her contention with cogent evidence.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"15421230105f488b8f79d1022bc31461\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 16743,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 16560,\n \"text\": \"It is settled law that if a notice is served to the proper and correct address, though it is returned with the shara `returned unserved' it shall be deemed to be served on the accused\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"3a818ecd1ec34d439c5cbdaaac1bf6b8\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 17428,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 16743,\n \"text\": \". In fact, the learned counsel for the complainant has relied upon the decisions reported in AIR 2005 Supreme court 109 (V.Raja Kumari V/s P. Subbarama Naidu and another), 2004 (2) DCR 384 (Nirdosh Enterprises, Hyderabad V/s State of A.P. and another), 2010 (1) DCR 766 (Babulal V/s Gafur & Another), ILR 2007 KAR 311 (Mr. Umraz Khan V/s Mr.A.Jameel Ahmed and another), 2012 (1) KCCR 156 (B.Jayarama Shetty V/s Biviyas Finance and Leasing Limited, Kundapura Taluk,), Wherein the Hon'ble courts held that though the notice was returned as refusal by the addressee, but the notice is dispatched by the sender to the correct address, then it shall be deemed to be served to the addressee.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"169eef31472348659aca7d1155512ca8\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 17530,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 17429,\n \"text\": \"Hence, whatever contention taken by the accused about non-service of legal notice has to be rejected.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"c8156142db9246dda5d0052f72116ef0\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 17929,\n \"labels\": [\n \"ARG_PETITIONER\"\n ],\n \"start\": 17530,\n \"text\": \"\\n 19. However, the learned counsel for the complainant has relied upon the decisions reported in 2003(2) DCR 145 (M/s Jayam Company and another V/s T.Ravichandran) and 2012 (1) DCR 242 R.Raju V/s K.Sivasamy), wherein the Hon'ble courts held that if the accused fails to reply the notice inspite of due service of the legal notice without denying the allegations then it cannot be easily overlooked.\\n\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"41913ad4e4184f88ad4cbcd7f0a8656f\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 18063,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 17929,\n \"text\": \"Of course, in the normal circumstances, non issuance of reply notice by the accused inspite of due service has to be viewed seriously.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"87ccae42514347d9a5127327d50666fc\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 18201,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 18064,\n \"text\": \"In the case on hand, though there is deemed service, there is no proper evidence to show that it has been actually served to the accused.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"65b07d8e6a9d466f9ec4cff9292cc6dc\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 18335,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 18202,\n \"text\": \"Further, non-issuance of the reply notice can be taken as one of the corroborative ground so as to reject the defence of the accused.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"4d38ae5b3cae4985a35b87dc95de73e3\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 18413,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 18336,\n \"text\": \"But, that cannot be only ground to disbelieve the entire case of the accused.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"3a352cab5acc41c38cb22b590ce5258f\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 18703,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 18414,\n \"text\": \"In the case on hand, the accused by leading probable evidence, has put forth her defence so as to show that she has not borrowed the hand loan as asserted in the complaint, but the cheque-Ex.P.1 was issued in respect of contract work of her house given to the complainant in the year 2006.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"609c4ba9819f43a6abc05595dd4fbde4\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 18770,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 18704,\n \"text\": \"Therefore, the above decisions are not helpful to the complainant.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"0323261e3ecf420895a490cd319e28eb\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 19177,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 18772,\n \"text\": \"20. As per the decisions of the Hon'ble Supreme Court of India reported in (2008) 2 Supreme Court Cases (Criminal) 166 (Krishna Janardhan Bhat V/s Dattatraya G.\\n Hegde) and 2010 AIR SCW 2946 (Rangappa V/s Mohan) and also in the decisions relied by the learned counsel for the accused reported in 2010 (2) Kar.L.J. 284 (B. Girish V/s S.\\nRamaiah), 2013 (3) KCCR 1940 (Smt. Lakshmi Subramanya v/s B.V. Nagesh\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"010a4308ec8647da81a528d0c1e749b2\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 19319,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 19177,\n \"text\": \"), it was held that the standard of evidence to be led by the accused is preponderance of probabilities and not proof beyond reasonable doubt.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"c4bbde509b7a45418c5423e9c75cd635\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 19408,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 19320,\n \"text\": \"On the contrary, for the complaint he should prove his case beyond all reasonable doubt.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"60e91bc308bb4004888a510106b273ef\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 20029,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 19409,\n \"text\": \"In other decisions reported in 2010(1) DCR 231 (N.Chiraj Travels (Pvt) Ltd. V/s Ashwani Kumar and another) and 2011 (1) DCR 254 (Mahendra Gulabchind Kohar V/s Cakharam Ramdas Patil) the Hon'ble Delhi and Bombay High courts having relied upon the decisions of Hon'ble Supreme Court of India referred supra, held that the presumption under Section 139 of N.I. Act is rebutable and the accused can prove the non- existence of any debt or liability by raising probable defence or by demolishing or discrediting the case of complainant and it is not necessary for the accused to prove his defence beyond all reasonable doubt.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"70da879d490d4adaa54028709c14c7fa\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 20379,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 20030,\n \"text\": \"Further, this court relies upon a decision reported in 2011(3) Crimes 158 (Bom) (Sriniwas Ramdas Siwerwat V/s Shantaram Pandurang Deotale) wherein the Hon'ble Court held at page-13 as follows: \\\"The statutory presumptions in favour of the complainant are not by themselves evidence but only make out the prima-facie case in favour of the complainant.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"2b5b194aaf374037b6353b5af43629ab\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 20591,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 20380,\n \"text\": \"They can exist, live and survive the contrary evidence is proved by the accused sufficient enough to believe that the cheques in question were not issued by the accused for any consideration / debt or liability.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"4eab5f4dcedc47d5867e630a7b566e78\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 20795,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 20592,\n \"text\": \"It is open for the accused to rebut the statutory presumption by proving that the cheques were not issued for any consideration or that there was no any debt or liability to be discharged by the accused.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"ef7aff85df34477cbaa24ec9b8196636\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 20866,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 20796,\n \"text\": \"The accused can succeed upon proof of preponderance of probabilities.\\\"\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"a662e4078b064a3f9a013004e15a33e2\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 20970,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 20866,\n \"text\": \"\\n The principles of law laid down in the above decisions are aptly applicable to the facts of this case.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"75fccb5dbffa4ba3a7eb187fc131905e\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 21216,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 20971,\n \"text\": \"In the case on hand also, the accused by leading cogent evidence in all probabilities proved that she issued the cheque-Ex.P1 in favour of the complainant in respect of contract work in the year 2006 and that has been misused by the complainant.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"ed7f763dd2ba4fd7848b0b3882aa087b\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 21340,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 21216,\n \"text\": \"\\n The initial burden always lies on the complainant and if she proves her case prima facie, then onus shifts on the accused.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"f2e92c7ff5a1460cb5b63c68dea85cc8\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 21479,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 21340,\n \"text\": \"\\n Thus the complainant has failed to discharge the initial burden so as to attract the necessary ingredients of S.138 of the N.I. Act.\\n 21.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"5b72a4e5e8004379bba0d1d29c9903ac\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 21862,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 21480,\n \"text\": \"In another decision reported in: AIR 2007 NOC 2612 A.P.(G. Veeresham V/s Shivashankar and Another) the Hon'ble Court has held as under: \\\"Negotiable Instruments Act (26 of 1881), S.138 Dishonour of cheque Presumptions available to complainant under S.118 and S.139 of Act- Rebuttal of cheque in question was allegedly issued by accused to discharge hand loan taken from complainant.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"6f36845f3fa942218cde5fdee7eb242a\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 22162,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 21863,\n \"text\": \"However, no material placed on record by complainant to prove alleged lending of hand loan said fact is sufficient to infer that accused is liable to rebut presumptions available in favour of complainant under sections 118 and 139 of Act, Order acquitting accused for offence under S.138, proper\\\".\\n \"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"86c85d68346b450eb9a1c01554fafcf0\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 22255,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 22162,\n \"text\": \"The principle of law laid down in the above decision is applicable to the facts of this case.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"67da1becc8234dc589d6ee836217253b\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 22415,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 22256,\n \"text\": \"In the case on hand also, as discussed above, the complainant has failed to prove with cogent evidence as to the lending of loan of Rs.85,000/- to the accused.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"6533ae70f31344ae9ced0b8a798b4ffc\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 22582,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 22416,\n \"text\": \"Thus, that fact itself is sufficient to infer that accused is able to rebut presumptions available in favour of complainant under sections 118 and 139 of the N.I.Act.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"fc35883b1e1546d6b11e3dc005a83fa0\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 22848,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 22583,\n \"text\": \"In a decision reported in AIR 2006 Supreme Court 3366 (M.S.Narayana Menon alias Mani V/s State of Kerala & Anr.), the Hon'ble Apex court held that once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"18a6f43e533641d7bc38a838f66a540c\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 23023,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 22849,\n \"text\": \"In this case on hand also, the accused has proved in all probability that she is not liable to pay Ex.P1-cheque amount of Rs. 85,000/- and it is not legally recoverable debt.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"9b688ff90a1945778d13e1685de2b458\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 23205,\n \"labels\": [\n \"PRE_RELIED\"\n ],\n \"start\": 23024,\n \"text\": \"So, the burden is on the complainant to prove strictly with cogent and believable evidence that the accused has borrowed the cheque amount and she is legally liable to pay the same.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"b0a0b5931d5340f6895871f4860740f6\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 23391,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 23206,\n \"text\": \"But, except some inconsistent and improbable evidences as discussed above, the complainant has failed to prove with satisfactory evidence the lending of Rs.85,000/- loan to the accused.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"440d743e9a7d411c9ea57848028c2782\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 23632,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 23392,\n \"text\": \"Just because, there is a presumption under Section 139 of N.I.\\nAct, that will not create any special right to the complainant so as to initiate a proceeding against the drawer of the cheque who is not at all liable to pay the cheque amount.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"9fef1df06af046a499bf59912570331b\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 23878,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 23633,\n \"text\": \"From the above elaborate discussions, it very much clear that the complainant has failed to adduce cogent and corroborative evidence to show that accused has issued cheque- Ex.P.1 in discharge of her legally payable debt for valid consideration.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"04e9aa51d8b04818af0ae1541410df0a\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 24020,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 23878,\n \"text\": \"\\nOn the other hand, the accused has successfully rebutted the legal presumptions under Section 139 and 118 of Negotiable Instruments Act.\\n 22.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"a531ab099db84f3a81423ae0e4cbed0f\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 24212,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 24020,\n \"text\": \"\\nBasically, insertion of the penal provision under section 138 of the N.I. Act, 1881, is to maintain a healthy business transaction between the people based on faith, belief and understanding.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"bbb1de9d3a4e40fb8e7dd4b6914fbbcf\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 24325,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 24213,\n \"text\": \"That is why, the drawer of a cheque should not be allowed to abuse the accommodation given to him by a creditor.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"4cf1bfd298a34e53839d261c4bd6ba7f\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 24488,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 24326,\n \"text\": \"At the same time, the payee or holder of a cheque cannot be permitted to use that penal provision under law as a weapon for unlawful gain or to harass the debtor.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"40624c26a8294d7fb4a46ce23717844e\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 24666,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 24489,\n \"text\": \"To initiate a penal action under Section 138 of the N.I.Act, against a drawer of a cheque, there should not be any kind of lapse or lacuna on the part of the holder of a cheque.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"7cabb1101a7545c4a53a71ff52457a7a\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 24855,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 24667,\n \"text\": \"Because, the proceeding under section 138 of the N.I.Act is not for recovery of money but to punish a dishonest and incredible debtor, who intentionally tries to escape from his liability.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"4df925d62172462f93b544c6f8c619bc\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 25006,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 24856,\n \"text\": \"That is why, it is the duty of the complainant in a given case under the NI Act, 1881, to place a stable and firm case on his behalf before the court.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"db69be7605fe458f9486b6dfa4fd41af\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 25192,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 25007,\n \"text\": \"When the case of the complainant is shaky, unstable, untrustworthy and doubtful one, then in the opinion of this court, no presumption that is available under law will come to his help.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"bfe9bb194d3445feb2dc905c9545957a\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 25356,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 25193,\n \"text\": \"In the case on hand, the accused has taken several contentions before the court and made out grounds to show that the case of the complainant is highly improbable.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"bcc4ca3294d049378c03e4c9ae413f12\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 25515,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 25357,\n \"text\": \"The conduct of the complainant shows his dishonest intention to defraud the accused and for wrongful gain filed this false compliant against the accused.\\n 23.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"d5f84a0bce544c53a260bf4296fa10ca\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 25952,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 25516,\n \"text\": \"From the documents produced before the court it is very much clear that within 6 months from the date of cheque the complainant has presented the cheque for encashment and within one month from the date of issuance of the bank memo, the complainant has issued notice to the accused and after 15 days from the date of service of the said notice to the accused, within one month the complainant has filed this complaint before this court.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"4ecd02f9456b4132ac50c297e62eaab8\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 26088,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 25953,\n \"text\": \"As such, the complainant has complied with all the statutory requirements so as to initiate a proceeding under Section 138 of N.I. Act.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"6a10178a2ca44644bac6a37b045e0a51\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 26415,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 26088,\n \"text\": \"\\nBut, the fact to be considered is, when the complainant has failed to prove that there was legally recoverable debt and in discharge of that debt only cheque-Ex.P.1 was issued, even if the legal notice was served on the accused and the accused has failed to pay the cheque amount, still the accused cannot be found fault with.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"21685e867d5449ff8de13a1addddf7a4\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 26585,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 26416,\n \"text\": \"Because, when the accused is not liable to pay the amount demanded under the notice, then, the accused is not liable to pay the amount what is demanded under the notice.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"5efc3900819f4dfb834e92b22d6a8f49\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 26700,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 26586,\n \"text\": \"In the opinion of this court, the accused has got every right not to pay that amount so demanded under the notice.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"d5bf99ba5e90423c836505616f6595ca\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 26810,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 26701,\n \"text\": \"The drawee has no right to demand any amount, which is not legally recoverable from the drawer of the cheque.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"79fce8897849405ab05f4913ebd6f042\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 26991,\n \"labels\": [\n \"ANALYSIS\"\n ],\n \"start\": 26811,\n \"text\": \"Hence, non-payment of the cheque amount as demanded by the complainant under the notice cannot be termed as intentional default on the part of the accused to pay the cheque amount.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"6df2d9b387eb487c8949d274b8ca65db\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 27203,\n \"labels\": [\n \"RATIO\"\n ],\n \"start\": 26991,\n \"text\": \"\\n 24. On perusal of the entire oral and documentary evidence placed on record on behalf of both the parties, it is clear that, the case of the complainant is not cogent, convincing, corroborative and trustworthy.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"6ac06d9f0a7442edac288e2ed2c93a44\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 27395,\n \"labels\": [\n \"RATIO\"\n ],\n \"start\": 27204,\n \"text\": \"The material omissions, inconsistencies, discrepancies and contradictions in the evidence of P.W.1 itself is sufficient to rebut the legal presumptions available in favour of the complainant.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"001927b7a6f348169999db916c1bc6fc\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 27517,\n \"labels\": [\n \"RATIO\"\n ],\n \"start\": 27396,\n \"text\": \"Thus, this court is of the considered view that the complainant has failed to prove his case beyond all reasonable doubt.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"e5f95f1ecc5749ef859db05da9c33601\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 27597,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 27517,\n \"text\": \"\\nAccordingly point Nos.1 and 2 are answered in the `Negative'.\\n 25. Point no.3:-\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"6392a4cb4bf14b6bb1704f071d54230c\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 27872,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 27598,\n \"text\": \"Having thus discussed in detail, this court proceed to pass the following: ORDER Acting under Sec.255 (1) of the Criminal Procedure Code, 1973, the accused is found not guilty and she is acquitted for the offence punishable under Sec.138 of Negotiable Instruments Act, 1881.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"3fe57d0ee7d447d3b52695b48681b24a\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 27936,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 27872,\n \"text\": \"\\n The bail bond and surety bond of the accused stands cancelled.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"3f202bc9ae784a06a8af0b7bfeb2779e\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 28847,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 27936,\n \"text\": \"\\n [Dictated to the Stenographer in the open court, corrected, signed and then pronounced by me in the Open Court on this the 31st day of October 2013] (H.Shashidhara Shetty), Prl. I Civil Judge and J.M.F.C., Mysore A N N E X U R E S List of witnesses examined on behalf of the complainant: PW-1 D.Chandru Pw.2 Manjula List of documents marked on behalf of the Complainant: Ex.P.1 Cheque Ex.P.2 Bank memo Ex.P.3 Notice Ex.P.4 C.O.P.\\nEx.P.5 Postal receipt Ex.P.6 Unserved R.P. cover Ex.P.6(a) Unserved notice Ex.P.7 Account statement List of witnesses examined marked on behalf of the accused: D.W.1 Rajeshwari List of documents marked on behalf of the accused: Ex.D.1 letter Ex.D.1(a) Signature Ex.D.2 & 3 Agreement Ex.D.2(a) Signature 3(a) Ex.D.4 Pass book Prl. I Civil Judge and J.M.F.C., Mysore Judgement pronounced in the open court (Vide separate order)\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"2262b8bcc1434322a8d43323813fdf99\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 28853,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 28847,\n \"text\": \" ORDER\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"af41fc777205400592afd99ae5d1d0d9\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 29047,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 28854,\n \"text\": \"Acting under Sec.255 (1) of the Criminal Procedure Code, 1973, the accused is found not guilty and she is acquitted for the offence punishable under Sec.138 of Negotiable Instruments Act, 1881.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"a5be112946c44857a481b4c982f657f9\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 29111,\n \"labels\": [\n \"RPC\"\n ],\n \"start\": 29047,\n \"text\": \"\\n The bail bond and surety bond of the accused stands cancelled.\"\n }\n },\n {\n \"from_name\": \"label\",\n \"id\": \"c1d6cd5c90a54453a01be8274e0fcbee\",\n \"to_name\": \"text\",\n \"type\": \"labels\",\n \"value\": {\n \"end\": 29483,\n \"labels\": [\n \"NONE\"\n ],\n \"start\": 29111,\n \"text\": \"\\n Prl. I Civil Judge and J.M.F.C., Mysore 2010 (2) DCR 73 (Gujrat Ambuja Proteins Limited V/s Rajeev Khandelwal and others) ILR 2005 KAR 409 Supreme Court (V.Raja Kumari V/s P.Subbarama Naidu and another) AIR 2010 Supreme Court 1898 (Rangappa V/s Mohan) ILR 2008 KAR 1883 Latha K.Nair V/s M/s Gold Mohar Foods and Feeds Ltd., 2011 (2) DCR 189 (Balwant Singh V/s Ram Singh)\"\n }\n }\n ]\n }\n]"},"id":{"kind":"number","value":1739,"string":"1,739"},"data":{"kind":"string","value":"{\n \"text\": \"IN THE COURT OF THE PRL. 1st CIVIL JUDGE & J.M.F.C.,\\n AT MYSORE\\n\\n PRESENT: Sri H.Shashidhara Shetty, B.A.L., LL.M.,\\n Prl.First Civil Judge & JMFC, Mysore.\\n\\n DATED THIS THE 31st DAY OF OCTOBER 2013\\n\\n :: C.C.No.2784/2008 ::\\n\\nCOMPLIANANT :- Sri.D. Chandru,\\n S/o Dasegowda,\\n Aged about 26 years,\\n R/o No.492, 5th Cross,\\n Hebbal 2nd Stage, (M.G.Koppal)\\n Mysore\\n\\nACCUSED :- (By: Sri.K.K, Advocate)\\n\\n -V/s-\\n\\n Smt. Rajeshwari.M\\n W/o Hanumanthraju\\n Aged about 44 years,\\n R/o No.142, L.I.G., 2\\n Laxmikanthanagar,\\n Hebbal, 1st Stage,\\n Mysore. 18\\n\\n (By: Sri.A.K.J., Advocate)\\n\\n *****\\n\\n\\n J U D G M E N T\\n The Complainant has filed the complaint under Section 200 of the Code of Criminal Procedure, 1973, against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (herein after referred to as `the N.I.Act').\\n 2. In brief the complaint averments are as follows:- The complainant and the accused are known to each other and on 05.06.2008, the accused requested the complainant for financial assistance of Rs.85,000/- to meet urgent legal necessities and to clear the hand loan raised by the accused. The complainant lent Rs.85,000/- on 05.06.2008 and the accused promised to repay the same within a month with interest at 2% and issued a post dated cheque bearing No.319609 dated 05.07.2008 drawn on Karnataka bank, Vijayanagar, Mysore for a sum of Rs.85,000/-.\\nThe complainant presented the said cheque for collection on 07.07.2008 through his banker Oriental bank of Commerce, Kuvempunagar, Mysore, which returned dishonoured for the reasons ` payment stopped by the drawer' vide endorsement dated 09.07.2008. The complainant caused legal notice on 18.07.2008, both through R.P.A.D. and C.O.P., but the notice sent through R.P.A.D. with share ` addressee not in station' on 29.07.2008 and the notice sent through C.O.P. is deemed to be served on the accused. The accused did not repay the cheque amount. Hence, the complaint.\\n 3. The court after taking cognizance recorded the sworn statement of the complainant, issued process to the accused, who appeared before the court through his learned counsel and obtained bail. Copies of the complaint and documents are furnished to the accused. On 03.06.2011, the plea of the accused was recorded, for which the accused pleaded not guilty and claimed to be tried.\\n 4. During trial, on behalf of the complainant, he himself got examined as PW1 and examined one more witness as PW.2 and got marked the documents Ex.P1 to Ex.P7. With that the complainant closed his side. The Statement of the accused as required under Section 313 of Cr.P.C. was recorded, wherein the accused denied the incriminating evidence against her. On her defence, the accused got examined herself as DW.1 and got marked documents at Ex.D.1 to Ex.D.4. With that the accused closed her side.\\n 5. Heard. The learned counsel for the complainant filed written arguments. Perused the records.\\n 6. The points for consideration of this Court are as under: - 1. Whether the complainant proves beyond all reasonable doubt that, the cheque bearing No.319609 dated 05.07.2008 for Rs.85,000/- drawn on Karnataka Bank, Mysore branch was issued by the accused to the complainant in discharge of legally recoverable debt?\\n 2. Whether the complainant further proves that the accused has failed to pay the cheque amount inspite of a legal demand and thereby committed an offence punishable U/Sec.138 of the Negotiable Instruments Act?\\n 3. What order?\\n 7. The findings of this Court on the above points are as under:- Point no.1 : In the Negative.\\n Point no.2 : In the Negative.\\n Point no.3 : As per final order, for the following: REASONS 8. Point Nos.1 & 2 : As these points are inter-linked, they are taken up for common discussion to avoid repetition.\\n 9. PW1- Sri. D. Chandru, the complainant herein has filed affidavit in lieu of chief examination and reiterated the complaint averments. In support of his contention, he has produced a cheque dated 05.07.2008 for Rs.85,000/- drawn on Karnataka Bank at Ex.P.1 and identified the signature of the accused therein as Ex.P.1(a). Further he produced the bank endorsement at Ex.P.2, which discloses that the cheque-Ex.P.1 was dishonoured for the reasons `payment stopped by drawer'. Further PW.1 produced legal notice dated 18.07.2008 at Ex.P.3, C.O.P. at Ex.P.4, postal receipt at Ex.P.5, R.P.A.D. cover returned unserved at Ex.P.6 and copy of the legal notice in it at Ex.P.6(a).\\n 10. On the other hand, DW.1-Smt. Rajeshwari, the accused has adduced in her evidence taking a defence that she had not borrowed hand loan of Rs.85,000/- from the complainant and issued the cheque at Ex.P.1 in discharge of that loan in favour of the complainant. Further, stated that the complainant is a contractor and she entered into an agreement with the complainant in the month of January 2005 for construction of her house as per the agreement at Ex.D.3 for a total sum of Rs.3,60,000/- and then an additional sum of Rs.50,000/- was agreed to be paid by her to the complainant.\\n 11. The fact that the complainant took the contract of the construction of accused's house is admitted by PW.1 in his cross-examination. He also admitted about the entering into the agreement between himself and the accused as per Ex.D.2 (Ex.D.3 is the original of Ex.D.2). The PW.1 admitted his signature in Ex.D.2 as Ex.D.2(a). Hence, it is clearly proved that the complainant being a contractor had taken the construction work of the accused's house under the agreement Ex.D.3 (Ex.D.2) for total sum of Rs.3,60,000/-.\\n 12. Now, it is the defence of DW.1 that she had made part payment under the agreement Ex.D.3, at that time, the complainant took one cheque for Rs.85,000/- and another blank signed cheque drawn on Karnataka bank and also a pronote. Further, DW.1 adduced that she was due to pay in all Rs.85,000/- towards the contract work done by the complainant. Out of that she paid Rs.45,000/- by cash and Rs.40,000/- through a cheque, which has been encashed by the complainant. Further DW.1 adduced that she has paid entire amount due to the complainant, but when she demanded him to return the cheque, he gave lame excuses and failed to return it. In support of her contention, DW.1 produced a document drawn on a stamp paper at Ex.D.1, which when confronted to PW.1, he admitted the signature therein and also states that while he signed it, it was written.\\nEx.D.1 depicts that on 05.05.2008, the accused paid Rs.40,000/- through cheque No.330575 to the complainant.\\nIn fact, in his cross-examination at page-5, PW.1 made attempt to deny the payment made by the accused on 05.05.2008 through cheque No.330575 and that he had got it encashed.\\n 13. The above denial of the complainant as to receipt of Rs.40,000/- through cheque from the accused is proved to be false by his own witness PW.2-Smt. Manjula, Manager, Karnataka Bank, who produced account statement of the accused Smt. Rajeshwari at Ex.P.7, which discloses that the accused got encashed Rs.40,000/- through cheque No.330575, belongs to the accused on 04.05.2008. This fact is further substantiated by the accused by producing her pass-book at Ex.D.4, issued by Karnataka bank, wherein the relevant entry is marked at Ex.D.4(a),, which clearly shows that on 04.05.2008, the accused Chandru encashed Rs.40,000/- through cheque No.330575. Thus, accused has proved with cogent documentary evidence as to payment of Rs40,000/- by way of cheque to the complainant. In fact, when the accused produced Ex.D.4-Passbook, while cross- examining her, it was suggested that, that amount of Rs.40,000/- was paid towards the contract pertains to the construction of the accused's house and it is not related to the transaction narrated in this case. Thereby, the complainant admits the receipt of Rs.40,000/- from the accused. That being the fact, the above denial by PW.1 as to receipt of Rs.40,000/- through cheque is false contention. It shows that PW.1 has made attempt to suppress the real truth before the court. Thereby the court has to draw an inference that he is not a reliable witness.\\n 14. When the accused has taken a specific defence, that the cheque Ex.P.1 was issued in respect of a separate transaction pertains to construction of her house and she had no money transaction with the complainant as narrated in the complaint and when there is evidence to show that the complainant had taken the contract work of the accused's house, the burden lies on the co to prove that the cheque Ex.P.1 was actually issued in discharge of the hand loan of Rs.85,000/- borrowed by the accused. The accused has made out a probable case that she was due of Rs.85,000/- to the complainant and out of that Rs.40,000/- was paid through cheque and remaining amount was paid through the cash. Though the complainant admits the receipt of Rs.40,000/- he contends it was paid not towards the loan transaction pertains to this case. Except the self serving testimony of PW.1, absolutely there is no evidence placed by the complainant that on 05.06.2008 he had lent Rs.85,000/- to the accused and on that day the accused issued post dated cheque in his favour. When according to the complainant the accused is due to pay the amount towards the contract work of her house, what was the occasion for him to pay hand loan to her is not forthcoming. No prudent man under similar circumstances would lend loan of Rs.85,000/- to another, when already the other person is due to pay certain sum in respect of some other transaction. It is relevant to mention that in her cross-examination PW.2, the Bank manager has specifically stated as follows: \\\" rfn ZP Ag Īig 2004 QAv Az Ev. 2008 g 16 rfn ZP Ag ZAiİv. 1 ZP 2003-04 ZP DVgvzAzg j.\\\"\\n Thus, it is clear that the cheque Ex.P.1 pertains to the year 2003-2004. If that were to be true, then issuing that cheque-Ex.P.1 on 05.06.2008 in favour of the complainant is highly improbable. That evidence of PW.2 supports the defence of the accused that it was issued in favour of the complainant at the time of entering into the contract agreement at Ex.D.3, way back in the year 2006. Moreover, in the cross-examination of DW.1 at page-4 it was suggested as follows: \\\"gzgg PAmP Pɮ iqvgAzg j.\\n ģ PUjAi gzgjU PAmP P nz JAzg j. v gzgg DU ZɣVzê JAzg j. gzgg ģ PAmP Pɮ irz AAz g. 85 g g Q GPArz JAzg j. 1 ZP̣ gzgj U 2006 EAiİ ģ PAmP Pɮ AAz Q Pq Ez tP Pngvã.\\\"\\n From the above suggestion, it can be make out that the complainant also admits that the accused was due to pay Rs.85,000/- towards the contract work done by him. When DW.1 stated that Ex.P.1 was issued in the year 2006 in favour of the complainant towards that contract work, the complainant did not deny it. Thereby, it clearly establishes that the cheque-Ex.P.1 was issued while executing the contract agreement Ex.D.3 in the year 2006. There is no evidence led by the complainant to rebut the above evidence led by the accused. Moreover, the amount mentioned in Ex.P.1-cheque i.e. Rs.85,000/- clearly tallies with the due amount payable by the accused to the complainant towards the contract work as suggested above to DW.1 by the complainant. As such, the contention of the complainant that the accused issued the post dated cheque-Ex.P.1 on 05.06.2008 shall falls to the ground and that has to be disbelieved.\\n 15. The learned counsel for the complainant has argued that the accused has admitted her signature in the cheque and therefore the court has to draw presumption that the cheque was issued by the accused for valid consideration in discharge of legally recoverable debt. No doubt, under the N.I. Act, there are presumptions under Section 139 and 118 in favour of the complainant. But, so as to invoke that presumption, it is the bounden duty of the complainant to prove his case first, then only the court has to draw the presumption. If the complainant has failed to prove his case at the inception itself, then there is no question of drawing presumption available under law. Hence, the complainant must first satisfy the court that there exist legally enforceable debt or liability and the accused had issued the cheque in discharge of that liability. Then only the court could have proceed to draw presumption under Section 139 of the N.I.\\nAct. The learned counsel for the complainant has relied upon a decisions reported in 2011 (2) DCR 189 (Balwant Singh V/s Ram Singh), wherein the Hon'ble court held that signature on cheque is admitted, then the story set up by the defence that the cheque was procured under police pressure cannot be accepted in the absence of cogent evidence.\\nFurther, he also relied upon a decision reported in ILR 2007 KAR 311 (Mr. Umraz Khan V/s Mr.A.Jameel Ahmed and another), wherein the Hon'ble courts held that admission that the cheque was issued as security for repayment of loan will not make any difference and it will not take the transaction out of sweep of Sec. 138 of the N.I. Act. The principles of law laid down in the above decisions are not applicable to the facts of this case. In the case on hand, the accused has not admitted that the cheque Ex.P.1 was issued by her as security for the loan transaction. On the contrary, she had totally denied the loan transaction as alleged by the complainant, but she contended that the cheque Ex.P.1 was issued towards the contract work undertaken by the complainant way back in the year 2006. Further, the accused by leading probable evidence shown how the possession of the cheque Ex.P.1 has been passed to the complainant.\\n 16. Moreover, mere admission of signature in the cheque itself is not sufficient to hold that the cheque was actually issued for discharge of the loan amount mentioned therein. At this stage, this court relies upon decisions reported in ILR 2009 KAR 2331 (B. Indramma V/s Sri.\\nEshwar), wherein the Hon'ble court held as follows: \\\"When the very factum of delivery of the cheque in question by the accused to the complainant and its receipt by the complainant from the accused itself is seriously disputed by the accused, his admission in his evidence that the cheque in question bears his signature would not be sufficient proof of the fact that he delivered the said cheque to the complainant and the latte `received it from the former' so as to raise the presumption under Section 139 of the N.I. Act.\\\"\\n 17. In another decision reported in 2012 (1) DCR 385 (Santhi V/s Mary Sherly), wherein the Hon'ble court held as follows: \\\"On consideration of the various aspects and provisions of the Act, I am of view that the contention raised by an accused in a prosecution under Section 138 of the Act that he issued a blank signed cheque will not amount to admission of execution of cheque. A signed blank cheque leaf is very often referred to as a blank \\\"cheque\\\", but, strictly speaking, it is not a \\\"cheque\\\" as defined under the Act. It can be treated only as a \\\"cheque leaf\\\" containing admitted signature of accused. The admission of signature in a cheque leaf along will not constitute admission of execution of the cheque.\\\"\\n The principles of law laid down in the above decisions are aptly applicable to the facts of this case. In the case on hand also, just because the accused has admitted her signature in Ex.P.1-cheque, that alone will not construed as admission of execution of the cheque.\\n 18. Of course, the accused took a contention that the legal notice is not duly served on her and therefore the complainant has not duly complied the provisions of Sec. 138 of the N.I.Act. However, the postal endorsement on the R.P.A.D. cover- Ex.P.4 would indicate that it was returned for the reason `returned to sender as not in station'. Though the accused contended that at the relevant point of time, she was not staying in that address. She did not laid any evidence to prove it. On the contrary in her cross-examination, at page-3, she admits the address mentioned Ex.P.3 notice and Ex.P.6 R.P.A.D. cover are her correct address. If the accused contends that there is no due service of notice, then the burden lies on her to prove her contention with cogent evidence. It is settled law that if a notice is served to the proper and correct address, though it is returned with the shara `returned unserved' it shall be deemed to be served on the accused. In fact, the learned counsel for the complainant has relied upon the decisions reported in AIR 2005 Supreme court 109 (V.Raja Kumari V/s P. Subbarama Naidu and another), 2004 (2) DCR 384 (Nirdosh Enterprises, Hyderabad V/s State of A.P. and another), 2010 (1) DCR 766 (Babulal V/s Gafur & Another), ILR 2007 KAR 311 (Mr. Umraz Khan V/s Mr.A.Jameel Ahmed and another), 2012 (1) KCCR 156 (B.Jayarama Shetty V/s Biviyas Finance and Leasing Limited, Kundapura Taluk,), Wherein the Hon'ble courts held that though the notice was returned as refusal by the addressee, but the notice is dispatched by the sender to the correct address, then it shall be deemed to be served to the addressee. Hence, whatever contention taken by the accused about non-service of legal notice has to be rejected.\\n 19. However, the learned counsel for the complainant has relied upon the decisions reported in 2003(2) DCR 145 (M/s Jayam Company and another V/s T.Ravichandran) and 2012 (1) DCR 242 R.Raju V/s K.Sivasamy), wherein the Hon'ble courts held that if the accused fails to reply the notice inspite of due service of the legal notice without denying the allegations then it cannot be easily overlooked.\\nOf course, in the normal circumstances, non issuance of reply notice by the accused inspite of due service has to be viewed seriously. In the case on hand, though there is deemed service, there is no proper evidence to show that it has been actually served to the accused. Further, non-issuance of the reply notice can be taken as one of the corroborative ground so as to reject the defence of the accused. But, that cannot be only ground to disbelieve the entire case of the accused. In the case on hand, the accused by leading probable evidence, has put forth her defence so as to show that she has not borrowed the hand loan as asserted in the complaint, but the cheque-Ex.P.1 was issued in respect of contract work of her house given to the complainant in the year 2006. Therefore, the above decisions are not helpful to the complainant.\\n 20. As per the decisions of the Hon'ble Supreme Court of India reported in (2008) 2 Supreme Court Cases (Criminal) 166 (Krishna Janardhan Bhat V/s Dattatraya G.\\n Hegde) and 2010 AIR SCW 2946 (Rangappa V/s Mohan) and also in the decisions relied by the learned counsel for the accused reported in 2010 (2) Kar.L.J. 284 (B. Girish V/s S.\\nRamaiah), 2013 (3) KCCR 1940 (Smt. Lakshmi Subramanya v/s B.V. Nagesh), it was held that the standard of evidence to be led by the accused is preponderance of probabilities and not proof beyond reasonable doubt. On the contrary, for the complaint he should prove his case beyond all reasonable doubt. In other decisions reported in 2010(1) DCR 231 (N.Chiraj Travels (Pvt) Ltd. V/s Ashwani Kumar and another) and 2011 (1) DCR 254 (Mahendra Gulabchind Kohar V/s Cakharam Ramdas Patil) the Hon'ble Delhi and Bombay High courts having relied upon the decisions of Hon'ble Supreme Court of India referred supra, held that the presumption under Section 139 of N.I. Act is rebutable and the accused can prove the non- existence of any debt or liability by raising probable defence or by demolishing or discrediting the case of complainant and it is not necessary for the accused to prove his defence beyond all reasonable doubt. Further, this court relies upon a decision reported in 2011(3) Crimes 158 (Bom) (Sriniwas Ramdas Siwerwat V/s Shantaram Pandurang Deotale) wherein the Hon'ble Court held at page-13 as follows: \\\"The statutory presumptions in favour of the complainant are not by themselves evidence but only make out the prima-facie case in favour of the complainant. They can exist, live and survive the contrary evidence is proved by the accused sufficient enough to believe that the cheques in question were not issued by the accused for any consideration / debt or liability. It is open for the accused to rebut the statutory presumption by proving that the cheques were not issued for any consideration or that there was no any debt or liability to be discharged by the accused. The accused can succeed upon proof of preponderance of probabilities.\\\"\\n The principles of law laid down in the above decisions are aptly applicable to the facts of this case. In the case on hand also, the accused by leading cogent evidence in all probabilities proved that she issued the cheque-Ex.P1 in favour of the complainant in respect of contract work in the year 2006 and that has been misused by the complainant.\\n The initial burden always lies on the complainant and if she proves her case prima facie, then onus shifts on the accused.\\n Thus the complainant has failed to discharge the initial burden so as to attract the necessary ingredients of S.138 of the N.I. Act.\\n 21. In another decision reported in: AIR 2007 NOC 2612 A.P.(G. Veeresham V/s Shivashankar and Another) the Hon'ble Court has held as under: \\\"Negotiable Instruments Act (26 of 1881), S.138 Dishonour of cheque Presumptions available to complainant under S.118 and S.139 of Act- Rebuttal of cheque in question was allegedly issued by accused to discharge hand loan taken from complainant. However, no material placed on record by complainant to prove alleged lending of hand loan said fact is sufficient to infer that accused is liable to rebut presumptions available in favour of complainant under sections 118 and 139 of Act, Order acquitting accused for offence under S.138, proper\\\".\\n The principle of law laid down in the above decision is applicable to the facts of this case. In the case on hand also, as discussed above, the complainant has failed to prove with cogent evidence as to the lending of loan of Rs.85,000/- to the accused. Thus, that fact itself is sufficient to infer that accused is able to rebut presumptions available in favour of complainant under sections 118 and 139 of the N.I.Act. In a decision reported in AIR 2006 Supreme Court 3366 (M.S.Narayana Menon alias Mani V/s State of Kerala & Anr.), the Hon'ble Apex court held that once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution. In this case on hand also, the accused has proved in all probability that she is not liable to pay Ex.P1-cheque amount of Rs. 85,000/- and it is not legally recoverable debt. So, the burden is on the complainant to prove strictly with cogent and believable evidence that the accused has borrowed the cheque amount and she is legally liable to pay the same. But, except some inconsistent and improbable evidences as discussed above, the complainant has failed to prove with satisfactory evidence the lending of Rs.85,000/- loan to the accused. Just because, there is a presumption under Section 139 of N.I.\\nAct, that will not create any special right to the complainant so as to initiate a proceeding against the drawer of the cheque who is not at all liable to pay the cheque amount. From the above elaborate discussions, it very much clear that the complainant has failed to adduce cogent and corroborative evidence to show that accused has issued cheque- Ex.P.1 in discharge of her legally payable debt for valid consideration.\\nOn the other hand, the accused has successfully rebutted the legal presumptions under Section 139 and 118 of Negotiable Instruments Act.\\n 22.\\nBasically, insertion of the penal provision under section 138 of the N.I. Act, 1881, is to maintain a healthy business transaction between the people based on faith, belief and understanding. That is why, the drawer of a cheque should not be allowed to abuse the accommodation given to him by a creditor. At the same time, the payee or holder of a cheque cannot be permitted to use that penal provision under law as a weapon for unlawful gain or to harass the debtor. To initiate a penal action under Section 138 of the N.I.Act, against a drawer of a cheque, there should not be any kind of lapse or lacuna on the part of the holder of a cheque. Because, the proceeding under section 138 of the N.I.Act is not for recovery of money but to punish a dishonest and incredible debtor, who intentionally tries to escape from his liability. That is why, it is the duty of the complainant in a given case under the NI Act, 1881, to place a stable and firm case on his behalf before the court. When the case of the complainant is shaky, unstable, untrustworthy and doubtful one, then in the opinion of this court, no presumption that is available under law will come to his help. In the case on hand, the accused has taken several contentions before the court and made out grounds to show that the case of the complainant is highly improbable. The conduct of the complainant shows his dishonest intention to defraud the accused and for wrongful gain filed this false compliant against the accused.\\n 23. From the documents produced before the court it is very much clear that within 6 months from the date of cheque the complainant has presented the cheque for encashment and within one month from the date of issuance of the bank memo, the complainant has issued notice to the accused and after 15 days from the date of service of the said notice to the accused, within one month the complainant has filed this complaint before this court. As such, the complainant has complied with all the statutory requirements so as to initiate a proceeding under Section 138 of N.I. Act.\\nBut, the fact to be considered is, when the complainant has failed to prove that there was legally recoverable debt and in discharge of that debt only cheque-Ex.P.1 was issued, even if the legal notice was served on the accused and the accused has failed to pay the cheque amount, still the accused cannot be found fault with. Because, when the accused is not liable to pay the amount demanded under the notice, then, the accused is not liable to pay the amount what is demanded under the notice. In the opinion of this court, the accused has got every right not to pay that amount so demanded under the notice. The drawee has no right to demand any amount, which is not legally recoverable from the drawer of the cheque. Hence, non-payment of the cheque amount as demanded by the complainant under the notice cannot be termed as intentional default on the part of the accused to pay the cheque amount.\\n 24. On perusal of the entire oral and documentary evidence placed on record on behalf of both the parties, it is clear that, the case of the complainant is not cogent, convincing, corroborative and trustworthy. The material omissions, inconsistencies, discrepancies and contradictions in the evidence of P.W.1 itself is sufficient to rebut the legal presumptions available in favour of the complainant. Thus, this court is of the considered view that the complainant has failed to prove his case beyond all reasonable doubt.\\nAccordingly point Nos.1 and 2 are answered in the `Negative'.\\n 25. Point no.3:- Having thus discussed in detail, this court proceed to pass the following: ORDER Acting under Sec.255 (1) of the Criminal Procedure Code, 1973, the accused is found not guilty and she is acquitted for the offence punishable under Sec.138 of Negotiable Instruments Act, 1881.\\n The bail bond and surety bond of the accused stands cancelled.\\n [Dictated to the Stenographer in the open court, corrected, signed and then pronounced by me in the Open Court on this the 31st day of October 2013] (H.Shashidhara Shetty), Prl. I Civil Judge and J.M.F.C., Mysore A N N E X U R E S List of witnesses examined on behalf of the complainant: PW-1 D.Chandru Pw.2 Manjula List of documents marked on behalf of the Complainant: Ex.P.1 Cheque Ex.P.2 Bank memo Ex.P.3 Notice Ex.P.4 C.O.P.\\nEx.P.5 Postal receipt Ex.P.6 Unserved R.P. cover Ex.P.6(a) Unserved notice Ex.P.7 Account statement List of witnesses examined marked on behalf of the accused: D.W.1 Rajeshwari List of documents marked on behalf of the accused: Ex.D.1 letter Ex.D.1(a) Signature Ex.D.2 & 3 Agreement Ex.D.2(a) Signature 3(a) Ex.D.4 Pass book Prl. I Civil Judge and J.M.F.C., Mysore Judgement pronounced in the open court (Vide separate order) ORDER Acting under Sec.255 (1) of the Criminal Procedure Code, 1973, the accused is found not guilty and she is acquitted for the offence punishable under Sec.138 of Negotiable Instruments Act, 1881.\\n The bail bond and surety bond of the accused stands cancelled.\\n Prl. I Civil Judge and J.M.F.C., Mysore 2010 (2) DCR 73 (Gujrat Ambuja Proteins Limited V/s Rajeev Khandelwal and others) ILR 2005 KAR 409 Supreme Court (V.Raja Kumari V/s P.Subbarama Naidu and another) AIR 2010 Supreme Court 1898 (Rangappa V/s Mohan) ILR 2008 KAR 1883 Latha K.Nair V/s M/s Gold Mohar Foods and Feeds Ltd., 2011 (2) DCR 189 (Balwant Singh V/s Ram Singh) \"\n}"}}}],"truncated":false,"partial":false},"paginationData":{"pageIndex":0,"numItemsPerPage":100,"numTotalItems":247,"offset":0,"length":100}},"jwt":"eyJhbGciOiJFZERTQSJ9.eyJyZWFkIjp0cnVlLCJwZXJtaXNzaW9ucyI6eyJyZXBvLmNvbnRlbnQucmVhZCI6dHJ1ZX0sImlhdCI6MTczMDk1MzEyNCwic3ViIjoiL2RhdGFzZXRzL0FnYW1QL0xMTV9EYXRhc2V0IiwiZXhwIjoxNzMwOTU2NzI0LCJpc3MiOiJodHRwczovL2h1Z2dpbmdmYWNlLmNvIn0.V3SKSQ_6fPDglfb5OQirxRQh2TJM6n4rLxvQoQgkpTTjs-zIJkz9scZAt_KGec4sRvcL0DQLBWVeamwhg67SAw","displayUrls":true},"discussionsStats":{"closed":0,"open":1,"total":1},"fullWidth":true,"hasGatedAccess":true,"hasFullAccess":true,"isEmbedded":false}">
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"text": "\n\n BEFORE\n\nTHE HON'BLE MR.JUSTICE ANAND BYRAREDDY\n\n CRIMINAL APPEAL NO.3532 OF 2012\n\nBETWEEN: R\n\nBabu S/o Siddappa, .. APPELLANT\nAge: 30 Years, Occ: Household,\nR/o: Sunthan Village,\nTaluk Chincholi,\nDistrict Gulbarga.\n\n(By Shri Ishwar Raj S.Chowdapur, Advocate)\n\nAND:\n\nThe State of Karnataka .. RESPONDENT\n(Through Ratkal Police Station)\nRepresented by Additional State\nPublic Prosecutor, Circuit Bench,\nGulbarga.\n\n(By Shri S.S.Aspalli, Government Pleader)\n\n "
}
},
{
"from_name": "label",
"id": "e501424117da40a7935c2d9f2fb2fe38",
"to_name": "text",
"type": "labels",
"value": {
"end": 964,
"labels": [
"PREAMBLE"
],
"start": 678,
"text": "This Criminal Appeal is filed under Section 374(2) of the\nCode of Criminal Procedure, 1973 by the advocate for the\nappellant praying to set aside the order of conviction and\n\nsentence in S.C.No.232/2008 on the file of the II Additional\nSessions Judge, Gulbarga and acquit the appellant."
}
},
{
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"id": "4825806388fe43d39f73354b10b5b32d",
"to_name": "text",
"type": "labels",
"value": {
"end": 1093,
"labels": [
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],
"start": 964,
"text": "\n\n This appeal coming on for hearing this day, the court\ndelivered the following :-\n\n JUDGMENT"
}
},
{
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"id": "d6893a25f82948f8be17fc9e876fb716",
"to_name": "text",
"type": "labels",
"value": {
"end": 1180,
"labels": [
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],
"start": 1093,
"text": "\n Heard the learned Counsel for the appellant and the learned Government Pleader."
}
},
{
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"id": "5ffc5502c95d45d7aae96937f128fdcb",
"to_name": "text",
"type": "labels",
"value": {
"end": 1409,
"labels": [
"FAC"
],
"start": 1188,
"text": "2. The accused is in appeal in the following circumstances:- The appellant was accused of offences punishable under Sections 498A and 306 of the Indian Penal Code, 1860 (Hereinafter referred to as the `IPC', for brevity)."
}
},
{
"from_name": "label",
"id": "afca23e571ad475d89a6fa226ca771bd",
"to_name": "text",
"type": "labels",
"value": {
"end": 1510,
"labels": [
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],
"start": 1417,
"text": "The complainant Sonabai was a resident of Hanumantwadi in Basavakalyan Taluk, Bidar District."
}
},
{
"from_name": "label",
"id": "7781f76712ed452dab7119e58f514065",
"to_name": "text",
"type": "labels",
"value": {
"end": 1556,
"labels": [
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],
"start": 1511,
"text": "She had two daughters, Laxmibai and Sangeeta."
}
},
{
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"id": "13ad25d88e1a4cf7b1a0f8e49561acb5",
"to_name": "text",
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"value": {
"end": 1620,
"labels": [
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],
"start": 1557,
"text": "She had lost her husband about 12 years prior to the complaint."
}
},
{
"from_name": "label",
"id": "bdd429d80cb149b280248e4e26d3f86d",
"to_name": "text",
"type": "labels",
"value": {
"end": 1713,
"labels": [
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],
"start": 1621,
"text": "She had performed the marriage of her elder daughter Laxmi six years prior to the complaint."
}
},
{
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"id": "1ec1e1b5834845808d852df5b1880db4",
"to_name": "text",
"type": "labels",
"value": {
"end": 1759,
"labels": [
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],
"start": 1714,
"text": "Lakshmi was married to the present appellant."
}
},
{
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"id": "a5e8eb6283c94e09a44165b43f87c1c3",
"to_name": "text",
"type": "labels",
"value": {
"end": 2065,
"labels": [
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],
"start": 1760,
"text": "It is claimed that the accused had looked after Lakshmi well till the birth of their first child, which was a girl and he was not happy with the girl child and thereafter started ill-treating Lakshmi, apart from which, he was also demanding dowry and on that pretext, he used to assault her continuously.\n"
}
},
{
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"id": "ed8b1acb94c8470586e021c67ab456f0",
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"value": {
"end": 2169,
"labels": [
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],
"start": 2065,
"text": "In this regard, it is the complainant's case that Laxmi had repeatedly told her about the ill-treatment."
}
},
{
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"id": "a9bd365a88ce4a7b8bd0d3c281ff66a9",
"to_name": "text",
"type": "labels",
"value": {
"end": 2301,
"labels": [
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],
"start": 2170,
"text": "The complainant however had consoled her daughter and had assured her that she would advise the accused to take better care of her."
}
},
{
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"id": "2fb832bb62e4497eb7dc05e892c0c97c",
"to_name": "text",
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"value": {
"end": 2575,
"labels": [
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],
"start": 2302,
"text": "It is the complainant's further case that in this regard, she along with her son Ramakrishna and Goudappa Patil went to the house of accused at Suntan village and had advised the accused not to ill-treat Lakshmi by demanding money, as they could ill- afford any such dowry."
}
},
{
"from_name": "label",
"id": "b33ce164ed854b979830f07dee893d61",
"to_name": "text",
"type": "labels",
"value": {
"end": 2760,
"labels": [
"FAC"
],
"start": 2576,
"text": "However, on 7.3.2008, she had received a message from Jaganath of Suntan village, that at about 10 p.m., her daughter Laxmi and grand-daughter Bhagewati had died of drowning in a well."
}
},
{
"from_name": "label",
"id": "a9de2636db5f45cbb62db1a2c4a1f811",
"to_name": "text",
"type": "labels",
"value": {
"end": 2945,
"labels": [
"FAC"
],
"start": 2761,
"text": "The complainant, Ramakrishna and Goudappa Patil did rush to the Suntan village and saw the dead body of her daughter and grand-daughter and then lodged a complaint against the accused."
}
},
{
"from_name": "label",
"id": "647d015d71ca4ffb85de3753f17b9eca",
"to_name": "text",
"type": "labels",
"value": {
"end": 3048,
"labels": [
"FAC"
],
"start": 2946,
"text": "Based on which, a case was registered on 8.3.2008 and a report was submitted to the Court of the JMFC."
}
},
{
"from_name": "label",
"id": "6dbcab60ba0a40f8a002ee985996f672",
"to_name": "text",
"type": "labels",
"value": {
"end": 3236,
"labels": [
"FAC"
],
"start": 3049,
"text": "An inquest mahazar was conducted of the deceased and the bodies were sent for post-mortem and after taking further steps, a charge sheet was submitted against the accused as on 17.9.2008."
}
},
{
"from_name": "label",
"id": "961cc86c78694eac828af3346db7bd42",
"to_name": "text",
"type": "labels",
"value": {
"end": 3495,
"labels": [
"FAC"
],
"start": 3237,
"text": "The case was committed to the sessions court for trial, which framed charges against the accused and the accused having pleaded not guilty and having claimed to be tried, the prosecution had examined 17 witness and marked 11 documents and 3 material objects."
}
},
{
"from_name": "label",
"id": "7b7b584c289b48ffbe6a9da3a636c937",
"to_name": "text",
"type": "labels",
"value": {
"end": 3686,
"labels": [
"RLC"
],
"start": 3496,
"text": "On conclusion of the trial and on examination of the accused under Section 313 of the Code of Criminal Procedure, 1973, the court below had framed the following points for consideration:- 1."
}
},
{
"from_name": "label",
"id": "46891ca4e9ec41cbada469eed82d85d2",
"to_name": "text",
"type": "labels",
"value": {
"end": 3829,
"labels": [
"RLC"
],
"start": 3687,
"text": "Whether the prosecution proves that accused has given ill-treatment to deceased Laxmi by demanding her to bring money from her parental house?"
}
},
{
"from_name": "label",
"id": "4e1744e9b061445598ad1a7972bfc0d7",
"to_name": "text",
"type": "labels",
"value": {
"end": 3991,
"labels": [
"RLC"
],
"start": 3829,
"text": "\n 2. Whether the prosecution proves that accused has subjected deceased Laxmi to cruelty to such an extent that deceased Laxmi has committed suicide on 17.3.2008?"
}
},
{
"from_name": "label",
"id": "3fcfda128d5e4e1fba0bfb61aeddbd61",
"to_name": "text",
"type": "labels",
"value": {
"end": 4346,
"labels": [
"RLC"
],
"start": 3993,
"text": "3. The court below answered the above points in the affirmative and accordingly had convicted the accused to undergo simple imprisonment for three years and pay a fine of Rs.5,000/- for the offence punishable under section 498-A IPC and 10 years simple imprisonment and to pay fine of Rs.10,000/- for the offence punishable under Section 306 of the IPC."
}
},
{
"from_name": "label",
"id": "0ce4febeac0f4a0a8be353297062d0f5",
"to_name": "text",
"type": "labels",
"value": {
"end": 4405,
"labels": [
"FAC"
],
"start": 4347,
"text": "It is that which is under challenge in the present appeal."
}
},
{
"from_name": "label",
"id": "2f6b4f03a7034572b45c9f611b23fcdd",
"to_name": "text",
"type": "labels",
"value": {
"end": 4536,
"labels": [
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],
"start": 4405,
"text": "\n 4. learned Counsel for the appellant would submit that the case of the prosecution rests entirely on the evidence of PWs.8 to 11."
}
},
{
"from_name": "label",
"id": "4ffdbb09c0744ce6bb1dbf782a16787f",
"to_name": "text",
"type": "labels",
"value": {
"end": 4657,
"labels": [
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],
"start": 4537,
"text": "PW.8 is the mother of the deceased Laxmi, PW.9 is the brother, PW.10 is the sister and PW.11 is an elder of the village."
}
},
{
"from_name": "label",
"id": "112a90823c744622b0c2e37c75a07065",
"to_name": "text",
"type": "labels",
"value": {
"end": 4939,
"labels": [
"ARG_PETITIONER"
],
"start": 4658,
"text": "It is their consistent evidence that Laxmi was constantly complaining about the appellant ill-treating her complaining that she had produced a female child when he wanted a male child and further that she had not fetched enough dowry and therefore she should bring some more money."
}
},
{
"from_name": "label",
"id": "c15851b2d28342cdb3979e60542267f4",
"to_name": "text",
"type": "labels",
"value": {
"end": 5334,
"labels": [
"ARG_PETITIONER"
],
"start": 4940,
"text": "It is further reiterated that the complainant along with her son and Goudappa Patil had advised him to take better care of Laxmi and that they were all aware of the continuous harassment meted out to Laxmi, which had instigated her to take the extreme step of committing suicide along with her daughter and therefore, the offences punishable under sections 498A and 306 of the IPC are made out."
}
},
{
"from_name": "label",
"id": "46d1f5d99179495ba12c2234d7cd6c6a",
"to_name": "text",
"type": "labels",
"value": {
"end": 5546,
"labels": [
"ARG_PETITIONER"
],
"start": 5335,
"text": "The learned Counsel would point out that PWs.1 to 6, who were the witnesses belonging to the village of the appellant, namely Suntan village, had all turned hostile and not supported the case of the prosecution."
}
},
{
"from_name": "label",
"id": "d05e0394c1f84cc59b364ea9594a9123",
"to_name": "text",
"type": "labels",
"value": {
"end": 6018,
"labels": [
"ARG_PETITIONER"
],
"start": 5547,
"text": "They were the best persons, according to the prosecution, who had made statements of the appellant being seen ill-treating Laxmi and since that was the sheet anchor of the prosecution case and in the face of those witnesses having been treated as hostile witnesses, they had apparently been compelled to furnish such statements by the hands of the Police and this, therefore explains the circumstance that all of them, without exception, have turned hostile at the trial."
}
},
{
"from_name": "label",
"id": "2ad5021f021e43f3b3b438241f9d3168",
"to_name": "text",
"type": "labels",
"value": {
"end": 6137,
"labels": [
"ARG_PETITIONER"
],
"start": 6019,
"text": "The only evidence on which the prosecution and the court below however placed reliance is on the evidence PWs.8 to 11."
}
},
{
"from_name": "label",
"id": "9e0bd37a4da247cca01cb97996990959",
"to_name": "text",
"type": "labels",
"value": {
"end": 6318,
"labels": [
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],
"start": 6138,
"text": "First of all, those witnesses did not have any direct knowledge nor is it their case that they have seen the appellant ill-treating the deceased or instigate her to commit suicide."
}
},
{
"from_name": "label",
"id": "8497c263a06b4a098b74f066bc7ea65b",
"to_name": "text",
"type": "labels",
"value": {
"end": 6402,
"labels": [
"ARG_PETITIONER"
],
"start": 6319,
"text": "It is their own case that Laxmi had on and off informed them of such ill-treatment."
}
},
{
"from_name": "label",
"id": "df2c3e1bf93645089af1b2dfb8fbd8d4",
"to_name": "text",
"type": "labels",
"value": {
"end": 6647,
"labels": [
"ARG_PETITIONER"
],
"start": 6403,
"text": "Therefore, in the absence of any direct evidence of ill-treatment or instigation by the appellant, it cannot be said that the prosecution has made out any case insofar as offences punishable under Sections 498A and 306 of the IPC are concerned."
}
},
{
"from_name": "label",
"id": "539b4bc93d0744b68c6ef6e6c3323d22",
"to_name": "text",
"type": "labels",
"value": {
"end": 7095,
"labels": [
"ARG_PETITIONER"
],
"start": 6647,
"text": "\n In this regard, the learned Counsel for the appellant places reliance on a decision of the Supreme Court in S.S.Chheena vs. Vijay Kumar Mahajan and another, 2010(4) Crimes 101 and would submit that even if the evidence of PWs.8 to 11, is taken on its face value, it cannot be treated as direct evidence, which could establish the charges under the sections aforesaid and hence pleads that the judgment be set aside and the appellant be acquitted."
}
},
{
"from_name": "label",
"id": "8c55d5a411c14dcfb4b31239a4d06980",
"to_name": "text",
"type": "labels",
"value": {
"end": 7102,
"labels": [
"ARG_RESPONDENT"
],
"start": 7095,
"text": "\n 5. le"
}
},
{
"from_name": "label",
"id": "d2179bef6bdc43ebb8099dc69ffb542e",
"to_name": "text",
"type": "labels",
"value": {
"end": 7411,
"labels": [
"ARG_RESPONDENT"
],
"start": 7103,
"text": "the learned Government Pleader would seek to justify the judgment of the court below and would point out that it is the consistent evidence of PWs.8 to 11 that there was constant ill-treatment, soon after the birth of Bhagewati, by the appellant to the deceased Laxmi, which has driven her to commit suicide."
}
},
{
"from_name": "label",
"id": "b679c873ca9448f58d278fc3c88746fa",
"to_name": "text",
"type": "labels",
"value": {
"end": 7505,
"labels": [
"ARG_RESPONDENT"
],
"start": 7412,
"text": "The constant taunting and harassment would certainly amount to instigation to commit suicide."
}
},
{
"from_name": "label",
"id": "89a4b0d7cfa94399b0e4fd2c2ebed29d",
"to_name": "text",
"type": "labels",
"value": {
"end": 7658,
"labels": [
"ARG_RESPONDENT"
],
"start": 7506,
"text": "As has been laid down in a catena of decisions, the ill-treatment by the husband within the four walls of the house would hardly be witnessed by others."
}
},
{
"from_name": "label",
"id": "c357290ed1ff4b12bc695063706ffd69",
"to_name": "text",
"type": "labels",
"value": {
"end": 7887,
"labels": [
"ARG_RESPONDENT"
],
"start": 7659,
"text": "The unfortunate circumstance that PWs.1 to 6, who did make statements in the first instance of they having seen the ill-treatment meted out to the deceased, having turned hostile, does not negate the evidence of other witnesses."
}
},
{
"from_name": "label",
"id": "1b30e949954448649216d8232a28a4c9",
"to_name": "text",
"type": "labels",
"value": {
"end": 8030,
"labels": [
"ARG_RESPONDENT"
],
"start": 7887,
"text": "\nThe fact of ill-treatment is narrated first hand by the deceased time and again to the complainant and others, as consistently stated by them."
}
},
{
"from_name": "label",
"id": "b0d4dc35478e4f8387ff2c7ef8a68eb1",
"to_name": "text",
"type": "labels",
"value": {
"end": 8371,
"labels": [
"ARG_RESPONDENT"
],
"start": 8031,
"text": "Therefore, the cruelty is writ large in the circumstances of the case, as has been demonstrated by the extreme step taken by the deceased not only to kill herself, but also to put an end to the life of her daughter Bhagewati, as apparently, the deceased did not want her daughter also to go through the very ordeal that she had experienced."
}
},
{
"from_name": "label",
"id": "ef5f42aab3a04d6493658fd296000b4b",
"to_name": "text",
"type": "labels",
"value": {
"end": 8402,
"labels": [
"ARG_RESPONDENT"
],
"start": 8372,
"text": "That was the clinching factor."
}
},
{
"from_name": "label",
"id": "dce2740597af414585720c62584e3a86",
"to_name": "text",
"type": "labels",
"value": {
"end": 8869,
"labels": [
"ARG_RESPONDENT"
],
"start": 8403,
"text": "It is only the near and dear ones of the victim, who would have knowledge of the details of ill- treatment and harassment and the independent witness, PW.11 having also been a well-wisher of the family, who had constantly kept in view the welfare of the family and also having declared that he had visited the appellant after he had constantly ill-treated Laxmi, to advise him to take better care of her, in the presence of the mother of the deceased and her brother"
}
},
{
"from_name": "label",
"id": "fa33bdca35d64a238e967781e99583ad",
"to_name": "text",
"type": "labels",
"value": {
"end": 8892,
"labels": [
"ARG_RESPONDENT"
],
"start": 8869,
"text": ", cannot be overlooked."
}
},
{
"from_name": "label",
"id": "22a3bf6751184bf08f2e7ac1bfc8bad7",
"to_name": "text",
"type": "labels",
"value": {
"end": 8999,
"labels": [
"ARG_RESPONDENT"
],
"start": 8893,
"text": "He was not in any way related to the complainant or her family and he had no ill-will against the accused."
}
},
{
"from_name": "label",
"id": "92c11c20823a439eb41860bbf1ceb50d",
"to_name": "text",
"type": "labels",
"value": {
"end": 9079,
"labels": [
"ARG_RESPONDENT"
],
"start": 9000,
"text": "He was an elder of the village and has withstood the test of cross-examination."
}
},
{
"from_name": "label",
"id": "6a293a2c4fd8466c9f92042f8572e864",
"to_name": "text",
"type": "labels",
"value": {
"end": 9530,
"labels": [
"ARG_RESPONDENT"
],
"start": 9080,
"text": "Therefore, the court below having placed reliance on the testimony of PWs.8 to 11 is not to be faulted and the death of Laxmi within six years from her marriage, would raise a presumption against the husband in terms of the law and the facts in the present case on hand would clearly indicate that there was constant harassment and instigation, which had driven Laxmi to commit suicide, who has also taken her daughter with her in committing suicide."
}
},
{
"from_name": "label",
"id": "546ab730dfd0474192e27281c909723a",
"to_name": "text",
"type": "labels",
"value": {
"end": 9752,
"labels": [
"ANALYSIS"
],
"start": 9530,
"text": "\n 6. Given the rival contentions, as pointed out by the learned Counsel for the appellant, in order to bring home the charge of an offence punishable under Section 498A IPC, it is necessary to prove that there was cruelty."
}
},
{
"from_name": "label",
"id": "c1ffd1c70a6547858fa7a4559390a36d",
"to_name": "text",
"type": "labels",
"value": {
"end": 10129,
"labels": [
"ANALYSIS"
],
"start": 9753,
"text": "There was nothing on record to indicate that the family of Laxmi was incapable of providing any dowry, given the fact that her father was no more and that they were not well of and the marriage having taken place six years prior to the incident, the demand for dowry coming at a late stage, would not raise any presumption of such demand in the absence of any direct evidence."
}
},
{
"from_name": "label",
"id": "ceb702adb4c04821a146d025c6b372dc",
"to_name": "text",
"type": "labels",
"value": {
"end": 10224,
"labels": [
"ANALYSIS"
],
"start": 10130,
"text": "It is only to bring the case within the scope of Section 498A that such an allegation is made."
}
},
{
"from_name": "label",
"id": "ba72e5d3834d4af5b87228ca7af56d1d",
"to_name": "text",
"type": "labels",
"value": {
"end": 10441,
"labels": [
"ANALYSIS"
],
"start": 10225,
"text": "Therefore, to hold that the prosecution had established its case beyond all reasonable doubt insofar as the offence punishable under section 498A cannot be presumed merely on the basis of the evidence of PWs.8 to 11."
}
},
{
"from_name": "label",
"id": "7b4389afecdd41e6be712375b89222c6",
"to_name": "text",
"type": "labels",
"value": {
"end": 10735,
"labels": [
"ANALYSIS"
],
"start": 10442,
"text": "Insofar as the offence punishable under section 306 of the IPC, is concerned, again would require the prosecution to establish the circumstance that there was instigation by the appellant on Lakshmi to commit suicide and that he had intentionally driven her and his daughter to commit suicide."
}
},
{
"from_name": "label",
"id": "b0f29b479fbd43e08d8143aff97fc957",
"to_name": "text",
"type": "labels",
"value": {
"end": 11049,
"labels": [
"PRE_RELIED"
],
"start": 10735,
"text": "\n The apex court, in the decision cited by the learned Counsel for the appellant, in S.S.Chheena vs. Vijaya Kumar Mahajan and another, 2010 (4) Crimes 101, has discussed and reviewed the case law in this regard, with reference to the following authorities :- Mahendra Singh vs. State of M.P., 1995 Supp (3) SCC 731"
}
},
{
"from_name": "label",
"id": "89fc5018c6104600b2800d118235eca0",
"to_name": "text",
"type": "labels",
"value": {
"end": 11132,
"labels": [
"PRE_RELIED"
],
"start": 11050,
"text": "In this case, the allegations levelled against the accused were as follows: \" I..."
}
},
{
"from_name": "label",
"id": "2cc574713c6e46d6adf9e63581d0e5da",
"to_name": "text",
"type": "labels",
"value": {
"end": 11225,
"labels": [
"PRE_RELIED"
],
"start": 11133,
"text": "My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me."
}
},
{
"from_name": "label",
"id": "5f101ddbda014273a41fddcdcaa3f9cd",
"to_name": "text",
"type": "labels",
"value": {
"end": 11275,
"labels": [
"PRE_RELIED"
],
"start": 11226,
"text": "My husband Mahendra wants to marry a second time."
}
},
{
"from_name": "label",
"id": "4ae39a5280a44118b31b408950fd6faa",
"to_name": "text",
"type": "labels",
"value": {
"end": 11325,
"labels": [
"PRE_RELIED"
],
"start": 11276,
"text": "He has illicit connections with my sister-in-law."
}
},
{
"from_name": "label",
"id": "758043621b364e25b205dea095be108b",
"to_name": "text",
"type": "labels",
"value": {
"end": 11398,
"labels": [
"PRE_RELIED"
],
"start": 11326,
"text": "Because of these reasons and being harassed, I want to die by burning\"\n "
}
},
{
"from_name": "label",
"id": "18797056bd3e4437a2487b041743766a",
"to_name": "text",
"type": "labels",
"value": {
"end": 11528,
"labels": [
"PRE_RELIED"
],
"start": 11398,
"text": "The court concluded that by no stretch of imagination, the ingredients of abetment are attracted on the statement of the deceased."
}
},
{
"from_name": "label",
"id": "bf3b814fce2648679e6bd09f64474296",
"to_name": "text",
"type": "labels",
"value": {
"end": 11679,
"labels": [
"PRE_RELIED"
],
"start": 11530,
"text": "In Ramesh Kumar vs. State of Chhattisgarh, (2001)9 SCC 618, a three-judge bench of the apex court had occasion to deal with a case of similar nature."
}
},
{
"from_name": "label",
"id": "c958a052d2304b649564e92e9804b1fc",
"to_name": "text",
"type": "labels",
"value": {
"end": 11815,
"labels": [
"PRE_RELIED"
],
"start": 11680,
"text": "In an argument between a husband and wife, the husband had stated that \"you are free to do whatever you wish and go wherever you like\"."
}
},
{
"from_name": "label",
"id": "6d240ccf717b44a38f3a4928c7e2c711",
"to_name": "text",
"type": "labels",
"value": {
"end": 11871,
"labels": [
"PRE_RELIED"
],
"start": 11815,
"text": "\nThereafter, the wife is said to have committed suicide."
}
},
{
"from_name": "label",
"id": "47125c0fd5894033ba455065b04b2c43",
"to_name": "text",
"type": "labels",
"value": {
"end": 12074,
"labels": [
"PRE_RELIED"
],
"start": 11872,
"text": "The apex court, in that circumstance, examined the different shades of the meaning of \"instigation\" as hereunder:- \"20. Instigation is to goad, urge forward, provoke, incite or encourage to do `an act'."
}
},
{
"from_name": "label",
"id": "07db2cf9e6e44ac391b5682700042aba",
"to_name": "text",
"type": "labels",
"value": {
"end": 12289,
"labels": [
"PRE_RELIED"
],
"start": 12075,
"text": "To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence."
}
},
{
"from_name": "label",
"id": "0da7dc5c418d43d58d5fd8b576133ed4",
"to_name": "text",
"type": "labels",
"value": {
"end": 12378,
"labels": [
"PRE_RELIED"
],
"start": 12290,
"text": "Yet a reasonable certainty to incite the consequence must be capable of being spelt out."
}
},
{
"from_name": "label",
"id": "e250a1bb286d4b53ab5be397fb8837e7",
"to_name": "text",
"type": "labels",
"value": {
"end": 12658,
"labels": [
"PRE_RELIED"
],
"start": 12378,
"text": "\n The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred."
}
},
{
"from_name": "label",
"id": "f4d797367b2e420a92003ad6891205d7",
"to_name": "text",
"type": "labels",
"value": {
"end": 12793,
"labels": [
"PRE_RELIED"
],
"start": 12659,
"text": "A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.\""
}
},
{
"from_name": "label",
"id": "33928b08c79541fa850d06a27566d5b9",
"to_name": "text",
"type": "labels",
"value": {
"end": 13150,
"labels": [
"PRE_RELIED"
],
"start": 12795,
"text": "In State of West Bengal vs. Orilal Jaiswal, (1994)1 SCC 73, the apex court has expressed that the court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial court for the purpose of finding whether cruelty meted out to the victim had in fact induced her to end life by committing suicide."
}
},
{
"from_name": "label",
"id": "5662a680e73b49029c5e9c0622e34eb0",
"to_name": "text",
"type": "labels",
"value": {
"end": 13655,
"labels": [
"PRE_RELIED"
],
"start": 13151,
"text": "If it appears to the court that a victim committing suicide was hyper sensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty."
}
},
{
"from_name": "label",
"id": "bcc64a6e18884a088e80735ff8bd92dc",
"to_name": "text",
"type": "labels",
"value": {
"end": 13785,
"labels": [
"PRE_RELIED"
],
"start": 13655,
"text": "\n In Chitresh Kumar Chopra vs. State, (2009) 16 SCC 605, the court dealt with the meaning of the word \"instigation\"\nand \"goading\"."
}
},
{
"from_name": "label",
"id": "9108b7498f1b42148018dce1f5cb1377",
"to_name": "text",
"type": "labels",
"value": {
"end": 13904,
"labels": [
"PRE_RELIED"
],
"start": 13786,
"text": "The court has opined that there should be intention to provoke, incite or encourage the doing of an act by the latter."
}
},
{
"from_name": "label",
"id": "e385718730974961b358a6b02fcc7240",
"to_name": "text",
"type": "labels",
"value": {
"end": 13969,
"labels": [
"PRE_RELIED"
],
"start": 13905,
"text": "Each person's suicidability pattern is different from the other."
}
},
{
"from_name": "label",
"id": "86d5215bb22b4d7abb66d4c1afe42309",
"to_name": "text",
"type": "labels",
"value": {
"end": 14031,
"labels": [
"PRE_RELIED"
],
"start": 13970,
"text": "Each person has his own idea of self-esteem and self-respect."
}
},
{
"from_name": "label",
"id": "8584c12afdb143fe942fdd816bdb8e9f",
"to_name": "text",
"type": "labels",
"value": {
"end": 14124,
"labels": [
"PRE_RELIED"
],
"start": 14032,
"text": "Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases."
}
},
{
"from_name": "label",
"id": "78af365b86054df79258dfaea328cd80",
"to_name": "text",
"type": "labels",
"value": {
"end": 14201,
"labels": [
"PRE_RELIED"
],
"start": 14125,
"text": "Each case has to be decided on the basis of its own facts and circumstances."
}
},
{
"from_name": "label",
"id": "9a53ec65bcb543da97470d0d098feae8",
"to_name": "text",
"type": "labels",
"value": {
"end": 14314,
"labels": [
"PRE_RELIED"
],
"start": 14201,
"text": "\nAbetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing."
}
},
{
"from_name": "label",
"id": "a9b8f6d5134d47f0947b95bbb5ece58c",
"to_name": "text",
"type": "labels",
"value": {
"end": 14439,
"labels": [
"PRE_RELIED"
],
"start": 14315,
"text": "Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained."
}
},
{
"from_name": "label",
"id": "549c8ba52170444fa8b8c6f6a0175f2b",
"to_name": "text",
"type": "labels",
"value": {
"end": 14871,
"labels": [
"PRE_RELIED"
],
"start": 14440,
"text": "The intention of the legislature and the ratio of the cases decided by the apex court were clear that in order to convict a person under section 306 of the IPC, there has to be a clear mens rea to commit the offence and it also requires an active act or direct act which lead the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.\n "
}
},
{
"from_name": "label",
"id": "15f1431d7f754c09a3a31505c55aa900",
"to_name": "text",
"type": "labels",
"value": {
"end": 15522,
"labels": [
"ANALYSIS"
],
"start": 14871,
"text": "The above being the settled legal position insofar as abetment of suicide is concerned, in the absence of any direct evidence of the appellant having driven the deceased to commit suicide, the possibility of the deceased having been hyper sensitive to the alleged demand of the appellant, that he wanted a male child and having regard to the aspect that the latent or patent suicidal tendencies of an individual are not to be placed in a straitjacket formula, the actual state of mind of Laxmi in having committed suicide, cannot be attributed to any instigation or abetment by the appellant in her having committed suicide, along with her only child."
}
},
{
"from_name": "label",
"id": "6ed019dc7cb542049037c646e6df0780",
"to_name": "text",
"type": "labels",
"value": {
"end": 15691,
"labels": [
"ANALYSIS"
],
"start": 15523,
"text": "It is also possible that sheer frustration of not having borne a male child, which the appellant is alleged to have desired, may have also driven her to commit suicide."
}
},
{
"from_name": "label",
"id": "e32ddb20bff04e5aaab8026b05b5c757",
"to_name": "text",
"type": "labels",
"value": {
"end": 15841,
"labels": [
"ANALYSIS"
],
"start": 15692,
"text": "Even if it was her case that she was being harassed and ill-treated, there was no such allegation of harassment and ill-treatment of the young child."
}
},
{
"from_name": "label",
"id": "e23f8272e90747f9ac6cf44e870f7305",
"to_name": "text",
"type": "labels",
"value": {
"end": 16031,
"labels": [
"RATIO"
],
"start": 15842,
"text": "In that view of the matter, it cannot be concluded with any certainty that there was constant cruelty meted out to Lakshmi and that there was abetment of the commission of suicide by Laxmi."
}
},
{
"from_name": "label",
"id": "16bfb0be792a45b8a4d1260719ab3002",
"to_name": "text",
"type": "labels",
"value": {
"end": 16156,
"labels": [
"ANALYSIS"
],
"start": 16032,
"text": "In that view of the matter, the finding of the court below based entirely on the evidence of PW.8 to 11 cannot be sustained."
}
},
{
"from_name": "label",
"id": "0a87e344b8be4986a61e2a9edd0fb971",
"to_name": "text",
"type": "labels",
"value": {
"end": 16195,
"labels": [
"RPC"
],
"start": 16156,
"text": "\n In the result, the appeal is allowed."
}
},
{
"from_name": "label",
"id": "375bebe6234540bf92865406f84bece0",
"to_name": "text",
"type": "labels",
"value": {
"end": 16241,
"labels": [
"RPC"
],
"start": 16196,
"text": "The judgment of the court below is set aside."
}
},
{
"from_name": "label",
"id": "70cb6f740b1746259612a99bc2df8062",
"to_name": "text",
"type": "labels",
"value": {
"end": 16269,
"labels": [
"RPC"
],
"start": 16242,
"text": "The appellant is acquitted."
}
},
{
"from_name": "label",
"id": "9cdcf8bd45584c7097d1444920690609",
"to_name": "text",
"type": "labels",
"value": {
"end": 16335,
"labels": [
"RPC"
],
"start": 16270,
"text": "The fine amount, if any, paid by the appellant shall be refunded."
}
},
{
"from_name": "label",
"id": "9d3cd3d2675b4f78a936b4b3256b8862",
"to_name": "text",
"type": "labels",
"value": {
"end": 16524,
"labels": [
"RPC"
],
"start": 16335,
"text": "\n The office is directed to communicate this order to the jail authorities of the Central Jail, Gulbarga, to set the appellant at liberty as he has been in custody for the past three years."
}
},
{
"from_name": "label",
"id": "cc1d3ae6bc2b4493a1c876e1eee87d66",
"to_name": "text",
"type": "labels",
"value": {
"end": 16539,
"labels": [
"NONE"
],
"start": 16524,
"text": "\n Sd/- JUDGE nv"
}
}
]
}
] | 1,735 | {
"text": " IN THE HIGH COURT OF KARNATAKA,\n CIRCUIT BENCH AT GULBARGA\n\nDATED THIS THE 22ND DAY OF FEBRUARY, 2013\n\n BEFORE\n\nTHE HON'BLE MR.JUSTICE ANAND BYRAREDDY\n\n CRIMINAL APPEAL NO.3532 OF 2012\n\nBETWEEN: R\n\nBabu S/o Siddappa, .. APPELLANT\nAge: 30 Years, Occ: Household,\nR/o: Sunthan Village,\nTaluk Chincholi,\nDistrict Gulbarga.\n\n(By Shri Ishwar Raj S.Chowdapur, Advocate)\n\nAND:\n\nThe State of Karnataka .. RESPONDENT\n(Through Ratkal Police Station)\nRepresented by Additional State\nPublic Prosecutor, Circuit Bench,\nGulbarga.\n\n(By Shri S.S.Aspalli, Government Pleader)\n\n This Criminal Appeal is filed under Section 374(2) of the\nCode of Criminal Procedure, 1973 by the advocate for the\nappellant praying to set aside the order of conviction and\n\nsentence in S.C.No.232/2008 on the file of the II Additional\nSessions Judge, Gulbarga and acquit the appellant.\n\n This appeal coming on for hearing this day, the court\ndelivered the following :-\n\n JUDGMENT\n Heard the learned Counsel for the appellant and the learned Government Pleader.\n 2. The accused is in appeal in the following circumstances:- The appellant was accused of offences punishable under Sections 498A and 306 of the Indian Penal Code, 1860 (Hereinafter referred to as the `IPC', for brevity).\n The complainant Sonabai was a resident of Hanumantwadi in Basavakalyan Taluk, Bidar District. She had two daughters, Laxmibai and Sangeeta. She had lost her husband about 12 years prior to the complaint. She had performed the marriage of her elder daughter Laxmi six years prior to the complaint. Lakshmi was married to the present appellant. It is claimed that the accused had looked after Lakshmi well till the birth of their first child, which was a girl and he was not happy with the girl child and thereafter started ill-treating Lakshmi, apart from which, he was also demanding dowry and on that pretext, he used to assault her continuously.\nIn this regard, it is the complainant's case that Laxmi had repeatedly told her about the ill-treatment. The complainant however had consoled her daughter and had assured her that she would advise the accused to take better care of her. It is the complainant's further case that in this regard, she along with her son Ramakrishna and Goudappa Patil went to the house of accused at Suntan village and had advised the accused not to ill-treat Lakshmi by demanding money, as they could ill- afford any such dowry. However, on 7.3.2008, she had received a message from Jaganath of Suntan village, that at about 10 p.m., her daughter Laxmi and grand-daughter Bhagewati had died of drowning in a well. The complainant, Ramakrishna and Goudappa Patil did rush to the Suntan village and saw the dead body of her daughter and grand-daughter and then lodged a complaint against the accused. Based on which, a case was registered on 8.3.2008 and a report was submitted to the Court of the JMFC. An inquest mahazar was conducted of the deceased and the bodies were sent for post-mortem and after taking further steps, a charge sheet was submitted against the accused as on 17.9.2008. The case was committed to the sessions court for trial, which framed charges against the accused and the accused having pleaded not guilty and having claimed to be tried, the prosecution had examined 17 witness and marked 11 documents and 3 material objects. On conclusion of the trial and on examination of the accused under Section 313 of the Code of Criminal Procedure, 1973, the court below had framed the following points for consideration:- 1. Whether the prosecution proves that accused has given ill-treatment to deceased Laxmi by demanding her to bring money from her parental house?\n 2. Whether the prosecution proves that accused has subjected deceased Laxmi to cruelty to such an extent that deceased Laxmi has committed suicide on 17.3.2008?\n 3. The court below answered the above points in the affirmative and accordingly had convicted the accused to undergo simple imprisonment for three years and pay a fine of Rs.5,000/- for the offence punishable under section 498-A IPC and 10 years simple imprisonment and to pay fine of Rs.10,000/- for the offence punishable under Section 306 of the IPC. It is that which is under challenge in the present appeal.\n 4. learned Counsel for the appellant would submit that the case of the prosecution rests entirely on the evidence of PWs.8 to 11. PW.8 is the mother of the deceased Laxmi, PW.9 is the brother, PW.10 is the sister and PW.11 is an elder of the village. It is their consistent evidence that Laxmi was constantly complaining about the appellant ill-treating her complaining that she had produced a female child when he wanted a male child and further that she had not fetched enough dowry and therefore she should bring some more money. It is further reiterated that the complainant along with her son and Goudappa Patil had advised him to take better care of Laxmi and that they were all aware of the continuous harassment meted out to Laxmi, which had instigated her to take the extreme step of committing suicide along with her daughter and therefore, the offences punishable under sections 498A and 306 of the IPC are made out. The learned Counsel would point out that PWs.1 to 6, who were the witnesses belonging to the village of the appellant, namely Suntan village, had all turned hostile and not supported the case of the prosecution. They were the best persons, according to the prosecution, who had made statements of the appellant being seen ill-treating Laxmi and since that was the sheet anchor of the prosecution case and in the face of those witnesses having been treated as hostile witnesses, they had apparently been compelled to furnish such statements by the hands of the Police and this, therefore explains the circumstance that all of them, without exception, have turned hostile at the trial. The only evidence on which the prosecution and the court below however placed reliance is on the evidence PWs.8 to 11. First of all, those witnesses did not have any direct knowledge nor is it their case that they have seen the appellant ill-treating the deceased or instigate her to commit suicide. It is their own case that Laxmi had on and off informed them of such ill-treatment. Therefore, in the absence of any direct evidence of ill-treatment or instigation by the appellant, it cannot be said that the prosecution has made out any case insofar as offences punishable under Sections 498A and 306 of the IPC are concerned.\n In this regard, the learned Counsel for the appellant places reliance on a decision of the Supreme Court in S.S.Chheena vs. Vijay Kumar Mahajan and another, 2010(4) Crimes 101 and would submit that even if the evidence of PWs.8 to 11, is taken on its face value, it cannot be treated as direct evidence, which could establish the charges under the sections aforesaid and hence pleads that the judgment be set aside and the appellant be acquitted.\n 5. le the learned Government Pleader would seek to justify the judgment of the court below and would point out that it is the consistent evidence of PWs.8 to 11 that there was constant ill-treatment, soon after the birth of Bhagewati, by the appellant to the deceased Laxmi, which has driven her to commit suicide. The constant taunting and harassment would certainly amount to instigation to commit suicide. As has been laid down in a catena of decisions, the ill-treatment by the husband within the four walls of the house would hardly be witnessed by others. The unfortunate circumstance that PWs.1 to 6, who did make statements in the first instance of they having seen the ill-treatment meted out to the deceased, having turned hostile, does not negate the evidence of other witnesses.\nThe fact of ill-treatment is narrated first hand by the deceased time and again to the complainant and others, as consistently stated by them. Therefore, the cruelty is writ large in the circumstances of the case, as has been demonstrated by the extreme step taken by the deceased not only to kill herself, but also to put an end to the life of her daughter Bhagewati, as apparently, the deceased did not want her daughter also to go through the very ordeal that she had experienced. That was the clinching factor. It is only the near and dear ones of the victim, who would have knowledge of the details of ill- treatment and harassment and the independent witness, PW.11 having also been a well-wisher of the family, who had constantly kept in view the welfare of the family and also having declared that he had visited the appellant after he had constantly ill-treated Laxmi, to advise him to take better care of her, in the presence of the mother of the deceased and her brother, cannot be overlooked. He was not in any way related to the complainant or her family and he had no ill-will against the accused. He was an elder of the village and has withstood the test of cross-examination. Therefore, the court below having placed reliance on the testimony of PWs.8 to 11 is not to be faulted and the death of Laxmi within six years from her marriage, would raise a presumption against the husband in terms of the law and the facts in the present case on hand would clearly indicate that there was constant harassment and instigation, which had driven Laxmi to commit suicide, who has also taken her daughter with her in committing suicide.\n 6. Given the rival contentions, as pointed out by the learned Counsel for the appellant, in order to bring home the charge of an offence punishable under Section 498A IPC, it is necessary to prove that there was cruelty. There was nothing on record to indicate that the family of Laxmi was incapable of providing any dowry, given the fact that her father was no more and that they were not well of and the marriage having taken place six years prior to the incident, the demand for dowry coming at a late stage, would not raise any presumption of such demand in the absence of any direct evidence. It is only to bring the case within the scope of Section 498A that such an allegation is made. Therefore, to hold that the prosecution had established its case beyond all reasonable doubt insofar as the offence punishable under section 498A cannot be presumed merely on the basis of the evidence of PWs.8 to 11. Insofar as the offence punishable under section 306 of the IPC, is concerned, again would require the prosecution to establish the circumstance that there was instigation by the appellant on Lakshmi to commit suicide and that he had intentionally driven her and his daughter to commit suicide.\n The apex court, in the decision cited by the learned Counsel for the appellant, in S.S.Chheena vs. Vijaya Kumar Mahajan and another, 2010 (4) Crimes 101, has discussed and reviewed the case law in this regard, with reference to the following authorities :- Mahendra Singh vs. State of M.P., 1995 Supp (3) SCC 731 In this case, the allegations levelled against the accused were as follows: \" I... My mother-in-law and husband and sister-in-law (husband's elder brother's wife) harassed me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed, I want to die by burning\"\n The court concluded that by no stretch of imagination, the ingredients of abetment are attracted on the statement of the deceased.\n In Ramesh Kumar vs. State of Chhattisgarh, (2001)9 SCC 618, a three-judge bench of the apex court had occasion to deal with a case of similar nature. In an argument between a husband and wife, the husband had stated that \"you are free to do whatever you wish and go wherever you like\".\nThereafter, the wife is said to have committed suicide. The apex court, in that circumstance, examined the different shades of the meaning of \"instigation\" as hereunder:- \"20. Instigation is to goad, urge forward, provoke, incite or encourage to do `an act'. To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out.\n The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation.\"\n In State of West Bengal vs. Orilal Jaiswal, (1994)1 SCC 73, the apex court has expressed that the court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial court for the purpose of finding whether cruelty meted out to the victim had in fact induced her to end life by committing suicide. If it appears to the court that a victim committing suicide was hyper sensitive to ordinary petulance, discord and differences in domestic life quite common to the society to which the victim belonged and such petulance, discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty.\n In Chitresh Kumar Chopra vs. State, (2009) 16 SCC 605, the court dealt with the meaning of the word \"instigation\"\nand \"goading\". The court has opined that there should be intention to provoke, incite or encourage the doing of an act by the latter. Each person's suicidability pattern is different from the other. Each person has his own idea of self-esteem and self-respect. Therefore, it is impossible to lay down any straitjacket formula in dealing with such cases. Each case has to be decided on the basis of its own facts and circumstances.\nAbetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by the apex court were clear that in order to convict a person under section 306 of the IPC, there has to be a clear mens rea to commit the offence and it also requires an active act or direct act which lead the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.\n The above being the settled legal position insofar as abetment of suicide is concerned, in the absence of any direct evidence of the appellant having driven the deceased to commit suicide, the possibility of the deceased having been hyper sensitive to the alleged demand of the appellant, that he wanted a male child and having regard to the aspect that the latent or patent suicidal tendencies of an individual are not to be placed in a straitjacket formula, the actual state of mind of Laxmi in having committed suicide, cannot be attributed to any instigation or abetment by the appellant in her having committed suicide, along with her only child. It is also possible that sheer frustration of not having borne a male child, which the appellant is alleged to have desired, may have also driven her to commit suicide. Even if it was her case that she was being harassed and ill-treated, there was no such allegation of harassment and ill-treatment of the young child. In that view of the matter, it cannot be concluded with any certainty that there was constant cruelty meted out to Lakshmi and that there was abetment of the commission of suicide by Laxmi. In that view of the matter, the finding of the court below based entirely on the evidence of PW.8 to 11 cannot be sustained.\n In the result, the appeal is allowed. The judgment of the court below is set aside. The appellant is acquitted. The fine amount, if any, paid by the appellant shall be refunded.\n The office is directed to communicate this order to the jail authorities of the Central Jail, Gulbarga, to set the appellant at liberty as he has been in custody for the past three years.\n Sd/- JUDGE nv "
} |
{
"group": "Tax"
} | [
{
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{
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"start": 52,
"text": "1/11\n\nIN THE HIGH COURT OF KARNATAKA, BENGALURU\n\n DATED THIS THE 06TH DAY OF JULY 2018\n\n PRESENT\n\n THE HON'BLE Dr.JUSTICE VINEET KOTHARI\n\n AND\n\n THE HON'BLE Mrs.JUSTICE S.SUJATHA\n\n I.T.A.No.415/2017\n\nBETWEEN:\n\n1. PR. COMMISSIONER OF INCOME TAX-7\n C.R. BUILDING, QUEENS ROAD\n BANGALORE-560001.\n\n2. DEPUTY COMMISSIONER OF INCOME TAX\n CIRCLE-5(1)(1), BANGALORE.\n ...APPELLANTS\n\n(By Mr. E.I. SANMATHI, ADV.)\n\nAND:\n\nM/S. TESCO HINDUSTAN CENTRE PVT. LTD\nNo.81 & 82, EPIP AREA RESEARCH CENTRE-2\nWHITEFIELD, BANGALORE-560095\nPAN: AABCT8915B.\n\n ...RESPONDENT\n(RESPONDETN SERVED & UNREPRESENTED)\n\n "
}
},
{
"from_name": null,
"id": "596624a30df2412884e470f71c1f0854",
"to_name": null,
"type": null,
"value": {
"end": 1489,
"labels": [
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],
"start": 921,
"text": "THIS I.T.A IS FILED UNDER SECTION 260-A OF INCOME\nTAX ACT 1961, PRAYING TO DECIDE THE FOREGOING\nQUESTION OF LAW AND/OR SUCH OTHER QUESTIONS OF LAW\nAS MAY BE FORMULATED BY THE HON'BLE COURT AS\nDEEMED FIT AND SET ASIDE THE APPELLATE ORDER DATED\n25-01-2017 PASSED BY THE INCOME TAX APPELLATE\nTRIBUNAL, `B' BENCH, BANGALORE, IN APPEAL PROCEEDINGS\n\n Vs. M/s. Tesco Hindustan Centre Pvt. Ltd\n\n 2/11\n\nNo.IT(TP)A No.569/Bang/2015 FOR ASSESSMENT YEAR 2010-11\nANNEXURE-A"
}
},
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],
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"text": "AS SOUGHT FOR IN THIS APPEAL AND TO GRANT"
}
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"end": 1582,
"labels": [
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],
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"text": "\nSUCH OTHER RELIEF AS DEEMED FIT IN THE INTEREST OF"
}
},
{
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"text": "\nJUSTICE"
}
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{
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"labels": [
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],
"start": 1590,
"text": ".\n\n THIS I.T.A. COMING ON FOR HEARING, THIS DAY"
}
},
{
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"id": "df54fd6da27540c59c173068207b7e6e",
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],
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"text": "\nS. SUJATHA J. DELIVERED THE FOLLOWING:-"
}
},
{
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"text": "\n\n JUDGMENT"
}
},
{
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"value": {
"end": 1776,
"labels": [
"NONE"
],
"start": 1727,
"text": "\nMr. E.I.Sanmathi Adv. for Appellants- Revenue 1."
}
},
{
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"id": "86afcb0e5534456ba0e093cd47653005",
"to_name": null,
"type": null,
"value": {
"end": 2140,
"labels": [
"FAC"
],
"start": 1777,
"text": "The Appellants-Revenue have filed this appeal u/s.260A of the Income Tax Act, 1961, raising purportedly certain substantial questions of law arising from the order of the ITAT, Bangalore Bench `B', Bangalore, dated 25.01.2017 passed in IT(TP)A No.191/Bang/2015 (Dy.Commissioner of Income Tax vs. M/s.Tesco Hindustan Service Centre Pvt. Ltd.,) for A.Y.2010-11.\n 2."
}
},
{
"from_name": null,
"id": "1c8069db49634e85a6de03cc3ffa73f1",
"to_name": null,
"type": null,
"value": {
"end": 2749,
"labels": [
"ISSUE"
],
"start": 2141,
"text": "The proposed substantial questions of law framed in the Memorandum of appeal by the Appellants-Revenue are quoted below for ready reference:- Vs. M/s. Tesco Hindustan Centre Pvt. Ltd 3/11 \" 1. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in holding that certain comparable cannot be taken as comparables on the basis of facts of a different case for different assessee without making any specific FAR analysis vis-a-vis he assessee company in contrast to the fact that Tata Elxsi Limited satisfy all the qualitative and quantitative filters applied by the TPO?\n 2."
}
},
{
"from_name": null,
"id": "bf37f28146fe4fdfa1978fd2d21762a0",
"to_name": null,
"type": null,
"value": {
"end": 3078,
"labels": [
"ISSUE"
],
"start": 2750,
"text": "Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in directing the TPO to apply RPT filter of 15% by superimposing the decisions of the Tribunal in other cases without going into specific facts of the taxpayer and without adducing the basis for arriving at the 15% cut off for RPT filters?"
}
},
{
"from_name": null,
"id": "1c333ae90d2b475a89729e126bccf6d0",
"to_name": null,
"type": null,
"value": {
"end": 3445,
"labels": [
"ISSUE"
],
"start": 3080,
"text": "3. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in rejecting few companies chosen by Transfer Pricing Officer as comparables on the basis of functional dissimilarity by following its earlier order which has not reached finality even when the same satisfied qualitative and quantitative tests in the case of the assessee?\"."
}
},
{
"from_name": null,
"id": "6d467a72ab2f4f89b32fa2f08326ce34",
"to_name": null,
"type": null,
"value": {
"end": 3455,
"labels": [
"NONE"
],
"start": 3445,
"text": "\n Vs. M/s."
}
},
{
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"id": "a4c05684ba26472bb72ccf5a51360718",
"to_name": null,
"type": null,
"value": {
"end": 3471,
"labels": [
"NONE"
],
"start": 3456,
"text": "Tesco Hindustan"
}
},
{
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"id": "9bbbb2de12f04d2ca075cf3b1aef774a",
"to_name": null,
"type": null,
"value": {
"end": 3478,
"labels": [
"NONE"
],
"start": 3472,
"text": "Centre"
}
},
{
"from_name": null,
"id": "274ab59590c648798c4bf437c8bfe570",
"to_name": null,
"type": null,
"value": {
"end": 3487,
"labels": [
"NONE"
],
"start": 3479,
"text": "Pvt. Ltd"
}
},
{
"from_name": null,
"id": "5b7ce4b2a6cc4b748024de5beb248a5a",
"to_name": null,
"type": null,
"value": {
"end": 3495,
"labels": [
"NONE"
],
"start": 3488,
"text": "4/11 3."
}
},
{
"from_name": null,
"id": "72b67542b90540a796c231ee2106a0d2",
"to_name": null,
"type": null,
"value": {
"end": 3623,
"labels": [
"ARG_PETITIONER"
],
"start": 3496,
"text": "Learned counsel for the Appellants-Revenue Mr.E.I.Sanmathi submits that he does not press the substantial question of law No.1."
}
},
{
"from_name": null,
"id": "4c06c1204da74322b6cd5d27e00c2b1c",
"to_name": null,
"type": null,
"value": {
"end": 3651,
"labels": [
"NONE"
],
"start": 3624,
"text": "His submission is recorded."
}
},
{
"from_name": null,
"id": "c486cd087d5d41c5981803b980a74897",
"to_name": null,
"type": null,
"value": {
"end": 4035,
"labels": [
"RLC"
],
"start": 3653,
"text": "` 4. Regarding substantial question of law Nos.2 and 3 The learned Tribunal, after discussing the rival contentions of both the Appellants-Revenue and the Respondent-assessee, has given the following findings against Revenue with regard to various issues raised before it with regard to `Transfer Pricing' and `Transfer Pricing Adjustments' made by the concerned authorities below."
}
},
{
"from_name": null,
"id": "051a031b8f7e4a459e3ee6485eb8408d",
"to_name": null,
"type": null,
"value": {
"end": 4149,
"labels": [
"RLC"
],
"start": 4036,
"text": "We consider it appropriate to quote the relevant portion of the order of Tribunal, which runs as hereunder:- \"12."
}
},
{
"from_name": null,
"id": "dc2b294dbc9a406ca16553aa353a2045",
"to_name": null,
"type": null,
"value": {
"end": 4234,
"labels": [
"RLC"
],
"start": 4150,
"text": "We have considered the rival submissions as well as the relevant material on record."
}
},
{
"from_name": null,
"id": "b990e08e2d554da0b63b6db3f73757c0",
"to_name": null,
"type": null,
"value": {
"end": 4286,
"labels": [
"RLC"
],
"start": 4235,
"text": "We find that the co-ordinate bench of this Vs. M/s."
}
},
{
"from_name": null,
"id": "db76580d4ef34a9693e23de3cfc5a6ba",
"to_name": null,
"type": null,
"value": {
"end": 4302,
"labels": [
"RLC"
],
"start": 4287,
"text": "Tesco Hindustan"
}
},
{
"from_name": null,
"id": "8920d124a69f45a7b0714800811914e2",
"to_name": null,
"type": null,
"value": {
"end": 4309,
"labels": [
"RLC"
],
"start": 4303,
"text": "Centre"
}
},
{
"from_name": null,
"id": "e955fdd35f4a4120b4879724e2b25eb0",
"to_name": null,
"type": null,
"value": {
"end": 4318,
"labels": [
"RLC"
],
"start": 4310,
"text": "Pvt. Ltd"
}
},
{
"from_name": null,
"id": "86251e38cecf40db98b779268d190844",
"to_name": null,
"type": null,
"value": {
"end": 4595,
"labels": [
"RLC"
],
"start": 4319,
"text": "5/11 Tribunal in assessee's own case for the Assessment Year 2006-07 vide order dt.18-10- 2016 in IT(TP)A No.1633/Bang/2012 has considered the comparability of these four companies and rejected these companies by considering the RPT at 15% as well as functional comparability."
}
},
{
"from_name": null,
"id": "d23389ca15664f05bf2b9ba32ba95ec7",
"to_name": null,
"type": null,
"value": {
"end": 4926,
"labels": [
"RLC"
],
"start": 4596,
"text": "We find that the DRP has given the details of RPT of all the 10 companies at page 11 and therefore the following three companies will be excluded as not satisfying the tolerance range of 15% RPT filter.\n (i) Fortune Infotech Ltd. RPT 25% (ii) Icra Online Ltd. RPT 19.61% (iii) Sundaram Business Services Ltd.\n RPT 29.44% 13."
}
},
{
"from_name": null,
"id": "7d6de05ce21d41c28dace14696a018a9",
"to_name": null,
"type": null,
"value": {
"end": 5162,
"labels": [
"RLC"
],
"start": 4927,
"text": "As regards Accentia Technologies Ltd. and ICRA Online Ltd. this Tribunal in the assessee's own case for the Assessment Year 2008-09 has excluded these two companies from the set of comparables in para 5 as under: xxxxxxxxxxxxxxxxxxxxxx"
}
},
{
"from_name": null,
"id": "9a65ebadf18f4b10b5eeb73dfed02f86",
"to_name": null,
"type": null,
"value": {
"end": 5254,
"labels": [
"RLC"
],
"start": 5163,
"text": "We further note that the functional comparability has been examined in detailed by Vs. M/s."
}
},
{
"from_name": null,
"id": "80ea4df932794dce8b987b1b3421852b",
"to_name": null,
"type": null,
"value": {
"end": 5270,
"labels": [
"RLC"
],
"start": 5255,
"text": "Tesco Hindustan"
}
},
{
"from_name": null,
"id": "c4405d14403a4a2e90f3f8183fb252a9",
"to_name": null,
"type": null,
"value": {
"end": 5277,
"labels": [
"RLC"
],
"start": 5271,
"text": "Centre"
}
},
{
"from_name": null,
"id": "42f596dc685c4460a935dd58cb11b6ca",
"to_name": null,
"type": null,
"value": {
"end": 5286,
"labels": [
"RLC"
],
"start": 5278,
"text": "Pvt. Ltd"
}
},
{
"from_name": null,
"id": "e68193916f0b498e8c07498c8b670311",
"to_name": null,
"type": null,
"value": {
"end": 5521,
"labels": [
"RLC"
],
"start": 5287,
"text": "6/11 the co-ordinate bench of this Tribunal in the case of Equant Solutions India Pvt. Ltd. Vs. DCIT in IT(TP)A No.1202/Del/2015 as well as in the case of ITO Vs. Interwoven Software Services (India) Pvt. Ltd. in ITA No.461/Bang/2015."
}
},
{
"from_name": null,
"id": "450aa14d72574a52906320a37899fad8",
"to_name": null,
"type": null,
"value": {
"end": 5828,
"labels": [
"RLC"
],
"start": 5522,
"text": "Further in the case of Acropetal Technologies Ltd. (Seg.) the co-ordinate bench of this Tribunal in the case of Kodiak Networks (India) Pvt. Ltd. Vs. DCIT in IT(TP)A No.1540/Bang/2012 has considered the functional comparability and found that this company is not comparable with a captive service provider."
}
},
{
"from_name": null,
"id": "b04b44e348324efeb89c9de3ca96a535",
"to_name": null,
"type": null,
"value": {
"end": 5928,
"labels": [
"RLC"
],
"start": 5829,
"text": "Accordingly we direct the Assessing Officer/TPO to exclude these companies from set of comparables."
}
},
{
"from_name": null,
"id": "a9fc38beb8904d30928204219c1245b4",
"to_name": null,
"type": null,
"value": {
"end": 5959,
"labels": [
"ANALYSIS"
],
"start": 5928,
"text": "\n E-clerx Services Limited 14.1"
}
},
{
"from_name": null,
"id": "3576e76d73644b17be6a913c4eb23bd3",
"to_name": null,
"type": null,
"value": {
"end": 6021,
"labels": [
"ANALYSIS"
],
"start": 5960,
"text": "We have considered the rival submissions and relevant record."
}
},
{
"from_name": null,
"id": "99967f1b09724d01894faaddad571989",
"to_name": null,
"type": null,
"value": {
"end": 6263,
"labels": [
"ANALYSIS"
],
"start": 6022,
"text": "At the out set, we note that the comparability of M/s Eclerx Services Ltd. has been examined by the Special Bench of the Tribunal in the case of Maersk Global Centres (India) (P) Ltd (supra) in para 82 83 as under: 82. xxxxxxxxxxxxxxxxxx 83."
}
},
{
"from_name": null,
"id": "f54ca12e04c444788c70c2185ef0959d",
"to_name": null,
"type": null,
"value": {
"end": 6361,
"labels": [
"ANALYSIS"
],
"start": 6264,
"text": "For the reasons given above, we are of the view that if the functions actually performed Vs. M/s."
}
},
{
"from_name": null,
"id": "dc67679b37d64c3188875877e1c97075",
"to_name": null,
"type": null,
"value": {
"end": 6377,
"labels": [
"ANALYSIS"
],
"start": 6362,
"text": "Tesco Hindustan"
}
},
{
"from_name": null,
"id": "e48eac86046b41779aa58c8752243bcc",
"to_name": null,
"type": null,
"value": {
"end": 6384,
"labels": [
"ANALYSIS"
],
"start": 6378,
"text": "Centre"
}
},
{
"from_name": null,
"id": "d4a53b2628154a0583cc9ae830e1cbdc",
"to_name": null,
"type": null,
"value": {
"end": 6434,
"labels": [
"ANALYSIS"
],
"start": 6385,
"text": "Pvt. Ltd 7/11 by the assessee company for its AEs"
}
},
{
"from_name": null,
"id": "8a2c16380c3c40c999e9b71068a67f54",
"to_name": null,
"type": null,
"value": {
"end": 6760,
"labels": [
"ANALYSIS"
],
"start": 6435,
"text": "are compared with the functional profile of M/s eClerx Services Pvt. Ltd. and Mold-Tech Technologies Ltd., it is difficult to find out any relatively equal degree of comparability and the said entities cannot be taken as comparables for the purpose of determining ALP of the transactions of the assessee company with its AEs."
}
},
{
"from_name": null,
"id": "1a2dfb951e984bc98c6ffe310a572d93",
"to_name": null,
"type": null,
"value": {
"end": 6912,
"labels": [
"ANALYSIS"
],
"start": 6761,
"text": "We, therefore, direct that these two entities be excluded from the list of 10 comparables finally taken by the AO/TPO as per the direction of the DRP?."
}
},
{
"from_name": null,
"id": "9a95f2d934bd471e9a99ffb99b3d9d26",
"to_name": null,
"type": null,
"value": {
"end": 7015,
"labels": [
"ANALYSIS"
],
"start": 6914,
"text": "15.4 We have heard the rival submissions and perused and carefully considered the material on record."
}
},
{
"from_name": null,
"id": "bbc9af4d89ec4ef2b296b100d7b60813",
"to_name": null,
"type": null,
"value": {
"end": 7356,
"labels": [
"ANALYSIS"
],
"start": 7016,
"text": "We find that the assessee has brought on record sufficient evidence to establish that this company is functionally dis- similar and different from the assessee and hence is not comparable and the finding rendered in the case of Trilogy E-Business Software India Pvt. Ltd. (supra) for Assessment Year 2007-08 is applicable to this year also."
}
},
{
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"id": "ecfd3b4eead14554acf4ba6f78615edd",
"to_name": null,
"type": null,
"value": {
"end": 7544,
"labels": [
"ANALYSIS"
],
"start": 7357,
"text": "We are inclined to concur with the argument put forth by the assessee that Infosys BPO Ltd. is not functionally comparable since it has the benefit of market value as well as brand value."
}
},
{
"from_name": null,
"id": "edcd81e511244a6981233e3ba497f045",
"to_name": null,
"type": null,
"value": {
"end": 7561,
"labels": [
"ANALYSIS"
],
"start": 7545,
"text": "This company Vs."
}
},
{
"from_name": null,
"id": "015373fbddd24da192a0cfaa55b1806c",
"to_name": null,
"type": null,
"value": {
"end": 7655,
"labels": [
"ANALYSIS"
],
"start": 7562,
"text": "M/s. Tesco Hindustan Centre Pvt. Ltd 8/11 enjoys the benefits of scale and market leadership."
}
},
{
"from_name": null,
"id": "f7fe5a7b81d941d9b4e2e366461057aa",
"to_name": null,
"type": null,
"value": {
"end": 7767,
"labels": [
"ANALYSIS"
],
"start": 7656,
"text": "In this view of the matter, we hold that this company ought to be omitted from the set of comparable companies."
}
},
{
"from_name": null,
"id": "059a428fc589446caf58e852abc8228b",
"to_name": null,
"type": null,
"value": {
"end": 7794,
"labels": [
"ANALYSIS"
],
"start": 7768,
"text": "It is ordered accordingly."
}
},
{
"from_name": null,
"id": "38c7ab4aacbf4668993692c3643678f5",
"to_name": null,
"type": null,
"value": {
"end": 7977,
"labels": [
"ANALYSIS"
],
"start": 7794,
"text": "\nSince we have directed the A.O/TPO to exclude these companies from the set of comparables therefore the TPO is directed to compute the ALP on the basis of remaining comparables\".\n 5."
}
},
{
"from_name": null,
"id": "b8d2066fa24e44e68a7efc79e75bd4bd",
"to_name": null,
"type": null,
"value": {
"end": 8415,
"labels": [
"PRE_RELIED"
],
"start": 7978,
"text": "This Court in ITA No.536/2015 C/w ITA No.537/2015 delivered on 25.06.2018 (Prl. Commissioner of Income Tax & Anr. Vs.\n M/s. Softbrands India Pvt. Ltd.,) has held that in these type of cases, unless an ex-facie perversity in the findings of the learned Income Tax Appellate Tribunal is established by the appellant, the appeal at the instance of an assessee or the Revenue under Section 260-A of the Act is not maintainable."
}
},
{
"from_name": null,
"id": "100e59373b4445f8b1c377857aadd85c",
"to_name": null,
"type": null,
"value": {
"end": 8559,
"labels": [
"PRE_RELIED"
],
"start": 8415,
"text": "\n The relevant portion of the said judgment is quoted below for ready reference: \" Conclusion: Vs. M/s. Tesco Hindustan Centre Pvt. Ltd 9/11 55."
}
},
{
"from_name": null,
"id": "fa6b667cdcb54100a1646f4adf5b941f",
"to_name": null,
"type": null,
"value": {
"end": 8690,
"labels": [
"PRE_RELIED"
],
"start": 8560,
"text": "A substantial quantum of international trade and transactions depends upon the fair and quick judicial dispensation in such cases."
}
},
{
"from_name": null,
"id": "cb60e499f13a4d019ff46b4de1b06249",
"to_name": null,
"type": null,
"value": {
"end": 9321,
"labels": [
"PRE_RELIED"
],
"start": 8691,
"text": "Had it been a case of substantial question of interpretation of provisions of Double Taxation Avoidance Treaties (DTAA), interpretation of provisions of the Income Tax Act or Overriding Effect of the Treaties over the Domestic Legislations or the questions like Treaty Shopping, Base Erosion and Profit Shifting (BEPS), Transfer of Shares in Tax Havens (like in the case of Vodafone etc.), if based on relevant facts, such substantial questions of law could be raised before the High Court under Section 260-A of the Act, the Courts could have embarked upon such exercise of framing and answering such substantial question of law."
}
},
{
"from_name": null,
"id": "680a8180baa946cab64cfa5430fbe50f",
"to_name": null,
"type": null,
"value": {
"end": 9609,
"labels": [
"PRE_RELIED"
],
"start": 9322,
"text": "On the other hand, the appeals of the present tenor as to whether the comparables have been rightly picked up or not, Filters for arriving at the correct list of comparables have been rightly applied or not, do not in our considered opinion, give rise to any substantial question of law."
}
},
{
"from_name": null,
"id": "c88f8adcae754e5d85bde4060c2d7ae7",
"to_name": null,
"type": null,
"value": {
"end": 9754,
"labels": [
"RATIO"
],
"start": 9609,
"text": "\n 56. We are therefore of the considered opinion that the present appeals filed by the Revenue do not give rise to any substantial Vs. M/s. Tesco"
}
},
{
"from_name": null,
"id": "dbd095e7f3624010bcc77f52d83ec77a",
"to_name": null,
"type": null,
"value": {
"end": 9764,
"labels": [
"RATIO"
],
"start": 9755,
"text": "Hindustan"
}
},
{
"from_name": null,
"id": "cb9bded183314dd69e7edd090155fe1d",
"to_name": null,
"type": null,
"value": {
"end": 9771,
"labels": [
"RATIO"
],
"start": 9765,
"text": "Centre"
}
},
{
"from_name": null,
"id": "6b6a78fed1c04ed8b314e635857f7291",
"to_name": null,
"type": null,
"value": {
"end": 9780,
"labels": [
"RATIO"
],
"start": 9772,
"text": "Pvt. Ltd"
}
},
{
"from_name": null,
"id": "cb1a268fbd59453bab2aa0f8b48b5854",
"to_name": null,
"type": null,
"value": {
"end": 10021,
"labels": [
"RATIO"
],
"start": 9781,
"text": "10/11 question of law and the suggested substantial questions of law do not meet the requirements of Section 260-A of the Act and thus the appeals filed by the Revenue are found to be devoid of merit and the same are liable to be dismissed."
}
},
{
"from_name": null,
"id": "9ce78e6b41004288b1bc54b8db9d18ca",
"to_name": null,
"type": null,
"value": {
"end": 10452,
"labels": [
"ANALYSIS"
],
"start": 10021,
"text": "\n 57. We make it clear that the same yardsticks and parameters will have to be applied, even if such appeals are filed by the Assessees, because, there may be cases where the Tribunal giving its own reasons and findings has found certain comparables to be good comparables to arrive at an `Arm's Length Price' in the case of the assessees with which the assessees may not be satisfied and have filed such appeals before this Court."
}
},
{
"from_name": null,
"id": "0485bf9b45804ac891bbfe8403e025cb",
"to_name": null,
"type": null,
"value": {
"end": 10649,
"labels": [
"RATIO"
],
"start": 10453,
"text": "Therefore we clarify that mere dissatisfaction with the findings of facts arrived at by the learned Tribunal is not at all a sufficient reason to invoke Section 260-A of the Act before this Court."
}
},
{
"from_name": null,
"id": "3f406252f4584310a244422ee697429f",
"to_name": null,
"type": null,
"value": {
"end": 10739,
"labels": [
"ANALYSIS"
],
"start": 10649,
"text": "\n 58. The appeals filed by the Revenue are therefore dismissed with no order as to costs.\""
}
},
{
"from_name": null,
"id": "493e0f4389694fceb1e1313d2b8711bc",
"to_name": null,
"type": null,
"value": {
"end": 10942,
"labels": [
"RPC"
],
"start": 10739,
"text": "\n 6. Having heard the learned counsels for the parties, we are therefore of the opinion that no substantial question of law arises in the present case Vs. M/s. Tesco Hindustan Centre Pvt. Ltd 11/11 also."
}
},
{
"from_name": null,
"id": "cd511e125a934834a9d1ca57049533b9",
"to_name": null,
"type": null,
"value": {
"end": 11044,
"labels": [
"RPC"
],
"start": 10943,
"text": "The appeal filed by the Appellants-Revenue is liable to be dismissed and it is dismissed accordingly."
}
},
{
"from_name": null,
"id": "6d0164465c8145ff862de7a107041560",
"to_name": null,
"type": null,
"value": {
"end": 11054,
"labels": [
"RPC"
],
"start": 11044,
"text": "\nNo costs."
}
},
{
"from_name": null,
"id": "5526fa6cf3e441c18e9b3323467e7e06",
"to_name": null,
"type": null,
"value": {
"end": 11124,
"labels": [
"NONE"
],
"start": 11054,
"text": "\n Copy of this judgment be sent to the Respondent- Assessee forthwith."
}
},
{
"from_name": null,
"id": "9c9715584e064a2ebebec38cfed838b1",
"to_name": null,
"type": null,
"value": {
"end": 11152,
"labels": [
"NONE"
],
"start": 11124,
"text": "\n Sd/- JUDGE Sd/- JUDGE Srl."
}
}
]
}
] | 4,183 | {
"text": " 1/11\n\nIN THE HIGH COURT OF KARNATAKA, BENGALURU\n\n DATED THIS THE 06TH DAY OF JULY 2018\n\n PRESENT\n\n THE HON'BLE Dr.JUSTICE VINEET KOTHARI\n\n AND\n\n THE HON'BLE Mrs.JUSTICE S.SUJATHA\n\n I.T.A.No.415/2017\n\nBETWEEN:\n\n1. PR. COMMISSIONER OF INCOME TAX-7\n C.R. BUILDING, QUEENS ROAD\n BANGALORE-560001.\n\n2. DEPUTY COMMISSIONER OF INCOME TAX\n CIRCLE-5(1)(1), BANGALORE.\n ...APPELLANTS\n\n(By Mr. E.I. SANMATHI, ADV.)\n\nAND:\n\nM/S. TESCO HINDUSTAN CENTRE PVT. LTD\nNo.81 & 82, EPIP AREA RESEARCH CENTRE-2\nWHITEFIELD, BANGALORE-560095\nPAN: AABCT8915B.\n\n ...RESPONDENT\n(RESPONDETN SERVED & UNREPRESENTED)\n\n THIS I.T.A IS FILED UNDER SECTION 260-A OF INCOME\nTAX ACT 1961, PRAYING TO DECIDE THE FOREGOING\nQUESTION OF LAW AND/OR SUCH OTHER QUESTIONS OF LAW\nAS MAY BE FORMULATED BY THE HON'BLE COURT AS\nDEEMED FIT AND SET ASIDE THE APPELLATE ORDER DATED\n25-01-2017 PASSED BY THE INCOME TAX APPELLATE\nTRIBUNAL, `B' BENCH, BANGALORE, IN APPEAL PROCEEDINGS\n\n Vs. M/s. Tesco Hindustan Centre Pvt. Ltd\n\n 2/11\n\nNo.IT(TP)A No.569/Bang/2015 FOR ASSESSMENT YEAR 2010-11\nANNEXURE-A AS SOUGHT FOR IN THIS APPEAL AND TO GRANT\nSUCH OTHER RELIEF AS DEEMED FIT IN THE INTEREST OF\nJUSTICE.\n\n THIS I.T.A. COMING ON FOR HEARING, THIS DAY\nS. SUJATHA J. DELIVERED THE FOLLOWING:-\n\n JUDGMENT\nMr. E.I.Sanmathi Adv. for Appellants- Revenue 1. The Appellants-Revenue have filed this appeal u/s.260A of the Income Tax Act, 1961, raising purportedly certain substantial questions of law arising from the order of the ITAT, Bangalore Bench `B', Bangalore, dated 25.01.2017 passed in IT(TP)A No.191/Bang/2015 (Dy.Commissioner of Income Tax vs. M/s.Tesco Hindustan Service Centre Pvt. Ltd.,) for A.Y.2010-11.\n 2. The proposed substantial questions of law framed in the Memorandum of appeal by the Appellants-Revenue are quoted below for ready reference:- Vs. M/s. Tesco Hindustan Centre Pvt. Ltd 3/11 \" 1. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in holding that certain comparable cannot be taken as comparables on the basis of facts of a different case for different assessee without making any specific FAR analysis vis-a-vis he assessee company in contrast to the fact that Tata Elxsi Limited satisfy all the qualitative and quantitative filters applied by the TPO?\n 2. Whether, on the facts and in the circumstances of the case, the Tribunal is right in law in directing the TPO to apply RPT filter of 15% by superimposing the decisions of the Tribunal in other cases without going into specific facts of the taxpayer and without adducing the basis for arriving at the 15% cut off for RPT filters?\n 3. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in rejecting few companies chosen by Transfer Pricing Officer as comparables on the basis of functional dissimilarity by following its earlier order which has not reached finality even when the same satisfied qualitative and quantitative tests in the case of the assessee?\".\n Vs. M/s. Tesco Hindustan Centre Pvt. Ltd 4/11 3. Learned counsel for the Appellants-Revenue Mr.E.I.Sanmathi submits that he does not press the substantial question of law No.1. His submission is recorded.\n ` 4. Regarding substantial question of law Nos.2 and 3 The learned Tribunal, after discussing the rival contentions of both the Appellants-Revenue and the Respondent-assessee, has given the following findings against Revenue with regard to various issues raised before it with regard to `Transfer Pricing' and `Transfer Pricing Adjustments' made by the concerned authorities below. We consider it appropriate to quote the relevant portion of the order of Tribunal, which runs as hereunder:- \"12. We have considered the rival submissions as well as the relevant material on record. We find that the co-ordinate bench of this Vs. M/s. Tesco Hindustan Centre Pvt. Ltd 5/11 Tribunal in assessee's own case for the Assessment Year 2006-07 vide order dt.18-10- 2016 in IT(TP)A No.1633/Bang/2012 has considered the comparability of these four companies and rejected these companies by considering the RPT at 15% as well as functional comparability. We find that the DRP has given the details of RPT of all the 10 companies at page 11 and therefore the following three companies will be excluded as not satisfying the tolerance range of 15% RPT filter.\n (i) Fortune Infotech Ltd. RPT 25% (ii) Icra Online Ltd. RPT 19.61% (iii) Sundaram Business Services Ltd.\n RPT 29.44% 13. As regards Accentia Technologies Ltd. and ICRA Online Ltd. this Tribunal in the assessee's own case for the Assessment Year 2008-09 has excluded these two companies from the set of comparables in para 5 as under: xxxxxxxxxxxxxxxxxxxxxx We further note that the functional comparability has been examined in detailed by Vs. M/s. Tesco Hindustan Centre Pvt. Ltd 6/11 the co-ordinate bench of this Tribunal in the case of Equant Solutions India Pvt. Ltd. Vs. DCIT in IT(TP)A No.1202/Del/2015 as well as in the case of ITO Vs. Interwoven Software Services (India) Pvt. Ltd. in ITA No.461/Bang/2015. Further in the case of Acropetal Technologies Ltd. (Seg.) the co-ordinate bench of this Tribunal in the case of Kodiak Networks (India) Pvt. Ltd. Vs. DCIT in IT(TP)A No.1540/Bang/2012 has considered the functional comparability and found that this company is not comparable with a captive service provider. Accordingly we direct the Assessing Officer/TPO to exclude these companies from set of comparables.\n E-clerx Services Limited 14.1 We have considered the rival submissions and relevant record. At the out set, we note that the comparability of M/s Eclerx Services Ltd. has been examined by the Special Bench of the Tribunal in the case of Maersk Global Centres (India) (P) Ltd (supra) in para 82 83 as under: 82. xxxxxxxxxxxxxxxxxx 83. For the reasons given above, we are of the view that if the functions actually performed Vs. M/s. Tesco Hindustan Centre Pvt. Ltd 7/11 by the assessee company for its AEs are compared with the functional profile of M/s eClerx Services Pvt. Ltd. and Mold-Tech Technologies Ltd., it is difficult to find out any relatively equal degree of comparability and the said entities cannot be taken as comparables for the purpose of determining ALP of the transactions of the assessee company with its AEs. We, therefore, direct that these two entities be excluded from the list of 10 comparables finally taken by the AO/TPO as per the direction of the DRP?.\n 15.4 We have heard the rival submissions and perused and carefully considered the material on record. We find that the assessee has brought on record sufficient evidence to establish that this company is functionally dis- similar and different from the assessee and hence is not comparable and the finding rendered in the case of Trilogy E-Business Software India Pvt. Ltd. (supra) for Assessment Year 2007-08 is applicable to this year also. We are inclined to concur with the argument put forth by the assessee that Infosys BPO Ltd. is not functionally comparable since it has the benefit of market value as well as brand value. This company Vs. M/s. Tesco Hindustan Centre Pvt. Ltd 8/11 enjoys the benefits of scale and market leadership. In this view of the matter, we hold that this company ought to be omitted from the set of comparable companies. It is ordered accordingly.\nSince we have directed the A.O/TPO to exclude these companies from the set of comparables therefore the TPO is directed to compute the ALP on the basis of remaining comparables\".\n 5. This Court in ITA No.536/2015 C/w ITA No.537/2015 delivered on 25.06.2018 (Prl. Commissioner of Income Tax & Anr. Vs.\n M/s. Softbrands India Pvt. Ltd.,) has held that in these type of cases, unless an ex-facie perversity in the findings of the learned Income Tax Appellate Tribunal is established by the appellant, the appeal at the instance of an assessee or the Revenue under Section 260-A of the Act is not maintainable.\n The relevant portion of the said judgment is quoted below for ready reference: \" Conclusion: Vs. M/s. Tesco Hindustan Centre Pvt. Ltd 9/11 55. A substantial quantum of international trade and transactions depends upon the fair and quick judicial dispensation in such cases. Had it been a case of substantial question of interpretation of provisions of Double Taxation Avoidance Treaties (DTAA), interpretation of provisions of the Income Tax Act or Overriding Effect of the Treaties over the Domestic Legislations or the questions like Treaty Shopping, Base Erosion and Profit Shifting (BEPS), Transfer of Shares in Tax Havens (like in the case of Vodafone etc.), if based on relevant facts, such substantial questions of law could be raised before the High Court under Section 260-A of the Act, the Courts could have embarked upon such exercise of framing and answering such substantial question of law. On the other hand, the appeals of the present tenor as to whether the comparables have been rightly picked up or not, Filters for arriving at the correct list of comparables have been rightly applied or not, do not in our considered opinion, give rise to any substantial question of law.\n 56. We are therefore of the considered opinion that the present appeals filed by the Revenue do not give rise to any substantial Vs. M/s. Tesco Hindustan Centre Pvt. Ltd 10/11 question of law and the suggested substantial questions of law do not meet the requirements of Section 260-A of the Act and thus the appeals filed by the Revenue are found to be devoid of merit and the same are liable to be dismissed.\n 57. We make it clear that the same yardsticks and parameters will have to be applied, even if such appeals are filed by the Assessees, because, there may be cases where the Tribunal giving its own reasons and findings has found certain comparables to be good comparables to arrive at an `Arm's Length Price' in the case of the assessees with which the assessees may not be satisfied and have filed such appeals before this Court. Therefore we clarify that mere dissatisfaction with the findings of facts arrived at by the learned Tribunal is not at all a sufficient reason to invoke Section 260-A of the Act before this Court.\n 58. The appeals filed by the Revenue are therefore dismissed with no order as to costs.\"\n 6. Having heard the learned counsels for the parties, we are therefore of the opinion that no substantial question of law arises in the present case Vs. M/s. Tesco Hindustan Centre Pvt. Ltd 11/11 also. The appeal filed by the Appellants-Revenue is liable to be dismissed and it is dismissed accordingly.\nNo costs.\n Copy of this judgment be sent to the Respondent- Assessee forthwith.\n Sd/- JUDGE Sd/- JUDGE Srl.\n"
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "43499bd62ea94624b2f38f4cbc677913",
"to_name": null,
"type": null,
"value": {
"end": 39,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": " IN THE HIGH COURT OF KARNATAKA"
}
},
{
"from_name": null,
"id": "99c177100db44a95aa43696e9a7c9117",
"to_name": null,
"type": null,
"value": {
"end": 140,
"labels": [
"PREAMBLE"
],
"start": 40,
"text": " \n\n CIRCUIT BENCH AT DHARWAD\n\n DATED THIS THE 29TH DAY OF JANUARY 2013"
}
},
{
"from_name": null,
"id": "00b596e20e95492091f3b6265c5cd116",
"to_name": null,
"type": null,
"value": {
"end": 269,
"labels": [
"PREAMBLE"
],
"start": 140,
"text": "\n PRESENT\n\nTHE HON'BLE DR. JUSTICE K. BHAKTHAVATSALA\n\n AND"
}
},
{
"from_name": null,
"id": "10e07161246d4f029ea953788ef6ecea",
"to_name": null,
"type": null,
"value": {
"end": 710,
"labels": [
"PREAMBLE"
],
"start": 269,
"text": "\nTHE HON'BLE MR.JUSTICE B.SREENIVASE GOWDA\n\n CRIMINAL R C No.11/2009\n C/W\n\nCRIMINAL APPEAL NOS.2516/2009 C/W 2535/2009\n\n C/W 2536/2009\n\nBETWEEN\n\n CRL. R.C. NO.11/2009\n\nHigh Court of Karnataka, Petitioner\nRep. By Additional Registrar General,\nHigh Court Circuit Bench,\nDharwad.\n\n(By Sri V M Banakar, Addl. SPP, for petitioner)\n\nAND"
}
},
{
"from_name": null,
"id": "fef568a97a084f2a9f5b224c3432e79d",
"to_name": null,
"type": null,
"value": {
"end": 1117,
"labels": [
"PREAMBLE"
],
"start": 710,
"text": "\n\n1. Sri Sundresh,\nS/o Basavanneppa Udikeri,\nAge: 22 years.\n\n2. Sri Siddappa Chandranaik\nRevannavar,\nAge: 28 years.\n\n3. Sidlingappa @ Mudakappa,\nS/o Chandranaik Revannavar,\nAge: 26 years.\n\n4. Kalmesh Shankreppa Udkeri,\nAge: 23 years.\n\n5. Rajshekhar @ Gangappa Udkeri,\nS/o Chanbasappa Udkeri,\nAge: 40 years.\n\n6. Bhagwant Nagappa Udkeri,\nAge: 32 years.\n\n7. Chandranaik Mallanaik\nRevennavar,\nAge: 53 years.\n\n8."
}
},
{
"from_name": null,
"id": "c11e52dcf5ab45dcb6327241a61efbec",
"to_name": null,
"type": null,
"value": {
"end": 1160,
"labels": [
"PREAMBLE"
],
"start": 1118,
"text": "Irappa Basavenneppa Udkeri,\nAge: 20 years."
}
},
{
"from_name": null,
"id": "946d9ba3a72241b89a94bd9972ac69d6",
"to_name": null,
"type": null,
"value": {
"end": 1211,
"labels": [
"PREAMBLE"
],
"start": 1160,
"text": "\n\n9. Shankreppa Chanabasappa Udkeri,\nAge: 55 years."
}
},
{
"from_name": null,
"id": "4f48809ddf564a4083b645d83948c55f",
"to_name": null,
"type": null,
"value": {
"end": 1521,
"labels": [
"PREAMBLE"
],
"start": 1211,
"text": "\n\nAll appellants are Respondents\nResiding at Murkibhavi,\nTq. Bailhongal,\nDist: Belgaum.\n\n(By Sri R B Naik, Sr. Counsel, for Smt. Vijetha R Naik\n & J Basavaraj, Adv., for respondents 1,4 to 6, 8 and 9)\n\n(By Sri Mallikarjun S Masali, Adv., for R-2,3 and 7)\n\n\n "
}
},
{
"from_name": null,
"id": "7449ed8dd87f462f92672f0fa9be7131",
"to_name": null,
"type": null,
"value": {
"end": 1715,
"labels": [
"PREAMBLE"
],
"start": 1521,
"text": "This Crl. R C is filed under Section 366 of the Code of\nCriminal Procedure, for confirmation of death sentence\nawarded to accused Nos.1 to 9 by the Presiding Officer, Fast\nTrack Court-II & Addl."
}
},
{
"from_name": null,
"id": "e85c72f2f16e41a8b3b632fea060e0f1",
"to_name": null,
"type": null,
"value": {
"end": 1861,
"labels": [
"PREAMBLE"
],
"start": 1716,
"text": "Sessions Judge, Belgaum vide\njudgment of conviction dated 4/16.12.2008 in S C\nNo.28/2006.\n\n CRL.A. NO.2516/2009\n\n1."
}
},
{
"from_name": null,
"id": "69e1896eb6604c17b14b505dfc4ee157",
"to_name": null,
"type": null,
"value": {
"end": 1916,
"labels": [
"PREAMBLE"
],
"start": 1862,
"text": "Sri Sundresh,\nS/o Basavanneppa Udikeri,\nAge: 22 years."
}
},
{
"from_name": null,
"id": "085917d318284eb0aee1028ade0655a8",
"to_name": null,
"type": null,
"value": {
"end": 1977,
"labels": [
"PREAMBLE"
],
"start": 1918,
"text": "2. Sri Kalmesh,\nS/o Shankareppa Udikeri,\nAge: 23 years.\n\n3."
}
},
{
"from_name": null,
"id": "7b048b92cb8342a781a50f0b8eeb7504",
"to_name": null,
"type": null,
"value": {
"end": 2047,
"labels": [
"PREAMBLE"
],
"start": 1978,
"text": "Sri Rajshekhar @ Gangappa,\nS/o Chandranaik Revannavar,\nAge: 40 years."
}
},
{
"from_name": null,
"id": "b9ccefc581754cf8bee19d30df0dd9ca",
"to_name": null,
"type": null,
"value": {
"end": 2101,
"labels": [
"PREAMBLE"
],
"start": 2049,
"text": "4. Sri Bhagwant,\nS/o Nagappa Udikeri,\nAge: 32 years."
}
},
{
"from_name": null,
"id": "024de5e0b8414be7b7b6f8dbcb38d17c",
"to_name": null,
"type": null,
"value": {
"end": 2157,
"labels": [
"PREAMBLE"
],
"start": 2103,
"text": "5. Sri Irappa,\nS/o Basavaneppa Udikeri,\nAge: 20 years."
}
},
{
"from_name": null,
"id": "1c1a3dcd57e74fbeb4b3117b97d5bdad",
"to_name": null,
"type": null,
"value": {
"end": 2276,
"labels": [
"PREAMBLE"
],
"start": 2157,
"text": "\n\n6. Sri Shankreppa,\nA/o Chanbasappa Udikeri,\nAge: 55 years.\n\n7. Smt. Gourawwa,\nW/o Nagappa Udikeri,\nAge: 47 years.\n\n8."
}
},
{
"from_name": null,
"id": "ed0c5b3b9f7b4a4e8c1c4744e7190ac5",
"to_name": null,
"type": null,
"value": {
"end": 2334,
"labels": [
"PREAMBLE"
],
"start": 2277,
"text": "Sri Basavanneppa,\nS/o Chanbasappa Udikeri,\nAge: 58 years."
}
},
{
"from_name": null,
"id": "43ffc5327e3d471e89d148923d2ee8f5",
"to_name": null,
"type": null,
"value": {
"end": 2391,
"labels": [
"PREAMBLE"
],
"start": 2334,
"text": "\n\n9. Sri Nagappa,\nS/o Chanbasappa Udikeri,\nAge: 57 years."
}
},
{
"from_name": null,
"id": "d242cdab2dca41e0a80e4abefacf3c73",
"to_name": null,
"type": null,
"value": {
"end": 2762,
"labels": [
"PREAMBLE"
],
"start": 2391,
"text": "\n\nAll appellants are Appellants\nResiding at Murkibhavi,\nTq. Bailhongal,\nDist: Belgaum.\n\n(By Sri R B Naik, Sr. Counsel, for Smt. Vijetha R Naik\n & J Basavaraj, Adv., for appellants)\n\nAND\n\nThe State of Karnataka\n\n(Through Nesargi Police Station),\n\nRepresented by its\n\nState Public Prosecutor,\n\nHigh Court of Karnataka,\n\nBangalore."
}
},
{
"from_name": null,
"id": "24cb2855fc3647daaa6aef909b46e5cd",
"to_name": null,
"type": null,
"value": {
"end": 2871,
"labels": [
"PREAMBLE"
],
"start": 2812,
"text": "Respondent\n\n(By Sri V M Banakar, Addl. SPP, for respondent)"
}
},
{
"from_name": null,
"id": "141064d6cae84da1994f8e83771d1fa6",
"to_name": null,
"type": null,
"value": {
"end": 3260,
"labels": [
"PREAMBLE"
],
"start": 2871,
"text": "\n\n Criminal Appeal No.2516/2009 is filed under Section\n374(2) of the Code of Criminal Procedure, praying to set\n\naside the judgment and order of conviction and sentence\nrecorded by the Fast Track-II and Addl. Sessions Judge,\nBelgaum, in S C No.28/2006 by its order of conviction dated\n4.12.2008 and sentence dated 16.12.2008.\n\n CRL.A. NO.2535/2009\n\n1."
}
},
{
"from_name": null,
"id": "540d9a5650f1491295a3590605be4047",
"to_name": null,
"type": null,
"value": {
"end": 3324,
"labels": [
"PREAMBLE"
],
"start": 3261,
"text": "Siddappa Revannavar,\nS/o Chandrakant Revannavar,\nAge: 28 years."
}
},
{
"from_name": null,
"id": "d0a6b59ad7184ca89d1173a07d9ce2b0",
"to_name": null,
"type": null,
"value": {
"end": 3411,
"labels": [
"PREAMBLE"
],
"start": 3326,
"text": "2. Sidlingappa @ Mudakappa Revannavar,\nS/o Chandrakant Revannavar,\nAge: 26 years.\n\n3."
}
},
{
"from_name": null,
"id": "ad51e7cd450b411da53befb0b4d68d7e",
"to_name": null,
"type": null,
"value": {
"end": 3476,
"labels": [
"PREAMBLE"
],
"start": 3412,
"text": "Chandranaik Revannavar,\nS/o Mallanaik Revannavar,\nAge: 53 years."
}
},
{
"from_name": null,
"id": "ce48e539c1f4410592f3ed5b69597db4",
"to_name": null,
"type": null,
"value": {
"end": 4219,
"labels": [
"PREAMBLE"
],
"start": 3476,
"text": "\n\nAll the appellants are residing at Appellants\nMurkibhavi, Tq. Bailhongal,\nDist. Belgaum.\n\n(By Sri Mallikarjun S Masali & C H Jadhav, Advs., for\n appellants)\n\nAND\n\nThe State of Karnataka Respondent\nBy Nesargi Police Station,\nRepresented by its\nState Public Prosecutor,\nHigh Court of Karnataka,\nBangalore.\n\n(By Sri V M Banakar, Addl. SPP)\n\n\n Criminal Appeal No.2535/2009 is filed under Section\n374(2) of the Code of Criminal Procedure, praying to set\naside the judgment and order of conviction and sentence\nrecorded by the Fast Track-II and Addl. Sessions Judge,\nBelgaum, in S C No.28/2006 by its order of conviction dated\n4.12.2008 and sentence dated 16.12.2008.\n\n CRL.A. NO.2536/2009\n\n1."
}
},
{
"from_name": null,
"id": "a9f9ff98d03849d9852878c5dcb0f177",
"to_name": null,
"type": null,
"value": {
"end": 4295,
"labels": [
"PREAMBLE"
],
"start": 4220,
"text": "Mallawwa Chandranaik Revannavar,\nW/o Chandranaik Revannavar,\nAge: 47 years."
}
},
{
"from_name": null,
"id": "8c3eae2af97b4a4998319c18caa7ba64",
"to_name": null,
"type": null,
"value": {
"end": 4541,
"labels": [
"PREAMBLE"
],
"start": 4295,
"text": "\n\n2. Sakranaik Revennavar,\nS/o Mallanaik Revannavar,\nAge: 54 years.\n\n3. Doddanaik Revannavar,\nS/o Mallanaik Revennavar,\nAge: 50 years.\n\nAll the appellants are residing at\nMurkibhavi,\n\nTq. Bailhongal, Appellants\nDist: Belgaum."
}
},
{
"from_name": null,
"id": "cbf5329dd0564c4bb1731008aaf4b69a",
"to_name": null,
"type": null,
"value": {
"end": 4596,
"labels": [
"PREAMBLE"
],
"start": 4543,
"text": "(By Sri Mallikarjun S Masali & C H Jadhav, Advs., for"
}
},
{
"from_name": null,
"id": "ae5b8af3b006461da05b278c00d38667",
"to_name": null,
"type": null,
"value": {
"end": 4607,
"labels": [
"PREAMBLE"
],
"start": 4596,
"text": "\nappellants"
}
},
{
"from_name": null,
"id": "cbbb883f10954f7eb663ebd454d32e58",
"to_name": null,
"type": null,
"value": {
"end": 4685,
"labels": [
"PREAMBLE"
],
"start": 4607,
"text": ")\n\nAND\n\nThe State of Karnataka Respondent"
}
},
{
"from_name": null,
"id": "ceb95e21917d4644926dd1c32eb373d4",
"to_name": null,
"type": null,
"value": {
"end": 4864,
"labels": [
"PREAMBLE"
],
"start": 4686,
"text": "By Nesargi Police Station,\nRepresented by its\nState Public Prosecutor,\nHigh Court of Karnataka,\nBangalore.\n\n(By Sri V M Banakar, Addl. SPP)\n\n Criminal Appeal No.2536/2009"
}
},
{
"from_name": null,
"id": "f9b0f401c10542d9a0711208167f08cc",
"to_name": null,
"type": null,
"value": {
"end": 5168,
"labels": [
"PREAMBLE"
],
"start": 4865,
"text": "is filed under Section\n374(2) of the Code of Criminal Procedure, praying to set\naside the judgment and order of conviction and sentence\nrecorded by the Fast Track-II and Addl. Sessions Judge,\nBelgaum, in S C No.28/2006 by its order of conviction dated\n4.12.2008 and sentence dated 16.12.2008.\n\n "
}
},
{
"from_name": null,
"id": "f36aa5112ff44ad1afcbf8f42a82d453",
"to_name": null,
"type": null,
"value": {
"end": 5389,
"labels": [
"PREAMBLE"
],
"start": 5168,
"text": "The Crl. R C and the Appeals coming on for hearing, the\nsame having been heard and reserved for pronouncement of\nJudgment, Dr. Bhakthavatsala, J., delivered the following:\n\n JUDGMENT\n "
}
},
{
"from_name": null,
"id": "42a472e634ca4ee0baeb9c3acc23faa4",
"to_name": null,
"type": null,
"value": {
"end": 5665,
"labels": [
"FAC"
],
"start": 5389,
"text": "By order dated 16.12.2008 made in SC No.28/2006, Fast Track Court-II/Addl. Sessions Judge at Belgaum, seeks confirmation of death sentence awarded against accused Nos.1 to 9 for the offence punishable under Section 302 r/w Section 149 of the Indian Penal Code, on four counts."
}
},
{
"from_name": null,
"id": "9cd2380664e24cb2949dde1d561d6857",
"to_name": null,
"type": null,
"value": {
"end": 5762,
"labels": [
"FAC"
],
"start": 5666,
"text": "It is registered under Section 366 of the Code of Criminal Procedure in Criminal R C No.11/2009."
}
},
{
"from_name": null,
"id": "17a04223fb2444eb83a701b9448073c4",
"to_name": null,
"type": null,
"value": {
"end": 5998,
"labels": [
"FAC"
],
"start": 5762,
"text": "\n 2. Criminal Appeals in Nos.2516/2009, 2535/2009 and 2536/2009 have been filed by the accused Nos.1 to 15 challenging the impugned judgment of conviction and sentence passed against them for the various offences in the above-said case."
}
},
{
"from_name": null,
"id": "7b01d929c7ee4d2980d088ba5e3338d0",
"to_name": null,
"type": null,
"value": {
"end": 6254,
"labels": [
"NONE"
],
"start": 5998,
"text": "\n 3. Since these cases arise out of the judgment of conviction and sentence dated 16.12.2008 made in SC No.28/2006 on the file of Fast Track Court at Belgaum, we have heard common arguments and proceeding to dispose off these cases by this common judgment."
}
},
{
"from_name": null,
"id": "0a40e3caa6344d0f90be2a56aab93384",
"to_name": null,
"type": null,
"value": {
"end": 6523,
"labels": [
"NONE"
],
"start": 6254,
"text": "\n 4. For the purpose of convenience and better understanding, respondents Nos.1 to 9 in Crl. RC No.11/2009 and appellants in Criminal Appeal Nos.2516/2009, 2535/2009 and 2536/2009 are hereinafter referred to as `Accused Nos.1 to 15' as arraigned before the trial Court."
}
},
{
"from_name": null,
"id": "a6bcf167a48945e9945a1b8fdb48f34a",
"to_name": null,
"type": null,
"value": {
"end": 6650,
"labels": [
"FAC"
],
"start": 6523,
"text": "\n 5. Brief facts of the case leading to registering of the Reference Case under Section 366 of Cr. P C, may be stated as under:"
}
},
{
"from_name": null,
"id": "abbf4029e5a14cda86adc58ccaef4f7c",
"to_name": null,
"type": null,
"value": {
"end": 6864,
"labels": [
"FAC"
],
"start": 6651,
"text": "By the impugned judgment dated 16.12.2008, learned Sessions Judge convicted all the 15 accused persons for the offences punishable under Sections 143, 147, 148, 307, 302, 506, 504 read with section 149/114 of IPC."
}
},
{
"from_name": null,
"id": "ed6b4b4591b044b48eb9fdda01cad2b4",
"to_name": null,
"type": null,
"value": {
"end": 7107,
"labels": [
"FAC"
],
"start": 6865,
"text": "After hearing the accused on the point of sentence, Learned Sessions Judge has passed further judgment awarding death sentence as against accused Nos.1 to 9, for the offence punishable under Section 302 r/w Section 149 of IPC, on four counts."
}
},
{
"from_name": null,
"id": "e738da5fb9e44df79bae6f3b29d3d5a0",
"to_name": null,
"type": null,
"value": {
"end": 7248,
"labels": [
"FAC"
],
"start": 7108,
"text": "As required under sub-section (1) of Section 366 of Cr.PC, learned trial Judge has submitted the records for confirmation of Death sentence."
}
},
{
"from_name": null,
"id": "6ca22e9aee2f49458596cf3e5980c7dc",
"to_name": null,
"type": null,
"value": {
"end": 7403,
"labels": [
"FAC"
],
"start": 7248,
"text": "\n 6. Brief facts of the case leading to the filing of other three Appeals by the accused Nos.1 to 15 under Section 374(2) of Cr.P C may be stated as under:"
}
},
{
"from_name": null,
"id": "b45e033f13ab40f9a7ad6e08d40bb54b",
"to_name": null,
"type": null,
"value": {
"end": 7540,
"labels": [
"FAC"
],
"start": 7404,
"text": "The complainant-Suresh Siddappa Wodeyar (PW-1) and his family members are permanent residents of Murkibhavi village in Bailhongal Taluk."
}
},
{
"from_name": null,
"id": "5b2bb3dbc46146aaa759602b5e2f076e",
"to_name": null,
"type": null,
"value": {
"end": 7638,
"labels": [
"FAC"
],
"start": 7541,
"text": "The complainant's father has 7 brothers and all of them were residing together in the same place."
}
},
{
"from_name": null,
"id": "990889b964f445eeaa22a520bd397d91",
"to_name": null,
"type": null,
"value": {
"end": 7707,
"labels": [
"FAC"
],
"start": 7639,
"text": "Ulavappa (husband of P.W-3) is the elder brother of the complainant."
}
},
{
"from_name": null,
"id": "41d9fa7e1b50457eb3a81b86ad9c7335",
"to_name": null,
"type": null,
"value": {
"end": 8108,
"labels": [
"FAC"
],
"start": 7708,
"text": "It is stated that one and half years prior to 30.8.2005 ( i.e., the date of incident), when Kasturi-P.W3, had gone to Kumbarbhavi to fetch water, accused No.3/Sidlingappa and accused No.1/Sundresh picked up quarrel with her and poured water on her; she informed about the incident to her family members; they questioned the accused No.1/Sundresh and accused No.7/Chandranaik and their family members."
}
},
{
"from_name": null,
"id": "ee63f4f083b349f2b311b3ab74eed28b",
"to_name": null,
"type": null,
"value": {
"end": 8186,
"labels": [
"FAC"
],
"start": 8109,
"text": "For which, the accused quarreled with the complainant and his family members."
}
},
{
"from_name": null,
"id": "8d4d0bff5e6242e79def963c92a0cced",
"to_name": null,
"type": null,
"value": {
"end": 8335,
"labels": [
"FAC"
],
"start": 8187,
"text": "It is also alleged that accused No.1/Sundresh and accused No.3/Sidlingappa were often teasing P.W.3 and blocking her way whenever she went to lands."
}
},
{
"from_name": null,
"id": "cf4b9a13de7a421b8eab3840caab1c41",
"to_name": null,
"type": null,
"value": {
"end": 8551,
"labels": [
"FAC"
],
"start": 8336,
"text": "It is alleged that accused No.10/Mallawwa (wife of accused No.7/Chandranaik) used to taunt and challenge the complainant's family members and threatened with dire consequences if they lodged a complaint with Police."
}
},
{
"from_name": null,
"id": "097917d9407b4e8b9cdd7670570bc5dd",
"to_name": null,
"type": null,
"value": {
"end": 8852,
"labels": [
"FAC"
],
"start": 8551,
"text": "\n Further case of the prosecution is that on 29.8.2005 (Monday), at about 8.00 a m, when the complainant was washing his bullocks, Accused No.10/Mallawwa and Accused No.2/Siddappa, who were standing on the upstairs of their house, picked up quarrel with the complainant-P.W.1 and threw chappal at him."
}
},
{
"from_name": null,
"id": "48afa6f2c8374285822a9b21d0f0f0dd",
"to_name": null,
"type": null,
"value": {
"end": 8980,
"labels": [
"FAC"
],
"start": 8853,
"text": "He informed about the incident to his family members, for which they told him that a complaint would be lodged on the next day."
}
},
{
"from_name": null,
"id": "8472ab5030fb4dd498c28a06f37055b6",
"to_name": null,
"type": null,
"value": {
"end": 9159,
"labels": [
"FAC"
],
"start": 8981,
"text": "On 30.8.2005 (Tuesday) at about 6.30 AM, when the complainant-P.W1 was going to answer nature's call, Accused No.10/Mallawwa instigated the Accused to kill the complainant-P.W.1."
}
},
{
"from_name": null,
"id": "a434e4971d0644e787161c47a93887bb",
"to_name": null,
"type": null,
"value": {
"end": 9220,
"labels": [
"FAC"
],
"start": 9160,
"text": "Accordingly, Accused No.1/Sundresh, Accused No.2/Siddappa,"
}
},
{
"from_name": null,
"id": "aa339b34bdcf409798ad418483f5d082",
"to_name": null,
"type": null,
"value": {
"end": 9963,
"labels": [
"FAC"
],
"start": 9221,
"text": " Accused No.3/Sidlingappa, Accused No.4/Kalmesh, Accused No.5/Rajshekhar, Accused No.6/Bhagwant and one Shivappa Chanbasappa Udkeri, Rudrappa Shankrappa Udkeri, Sidlingappa Apanna Konnennawar, Accused No.15/Doddanaik, Accused No.14/Sakranaik, Raju Sidlingappa Konnennawar, Accused No.12/Basavanneppa and Accused No.7/Chandranaik chased the complainant-P.W.1, who raised hue and cry and went inside his house; at that time, the complainant's grand father/Siddlingappa (the deceased) and his deceased uncles Mallappa and Nagappa, who are residents of the same lane, came and complainant's wife-Ratnawwa also came out of the house holding a plastic mug to go for nature's call; she requested the Accused not to do anything to her husband(PW- 1)."
}
},
{
"from_name": null,
"id": "3840f08b15244891ba54f7c6a9301cd8",
"to_name": null,
"type": null,
"value": {
"end": 10068,
"labels": [
"FAC"
],
"start": 9964,
"text": "But on the other hand Accused No.2 assaulted Ratnawwa with kyota on left side of her chest and left arm."
}
},
{
"from_name": null,
"id": "f9008de5c89e4f99ac40e9cd870c1ec1",
"to_name": null,
"type": null,
"value": {
"end": 10326,
"labels": [
"FAC"
],
"start": 10069,
"text": "Seeing the incident, grand father and uncles of the complaint were proceeding towards Police Station to lodge a complaint, but the Accused accosted them and assaulted and also threatened the public with dire consequences, if they intervened in their action."
}
},
{
"from_name": null,
"id": "595088de123f4906b90232ced9113b77",
"to_name": null,
"type": null,
"value": {
"end": 10484,
"labels": [
"FAC"
],
"start": 10327,
"text": "Thus, the Accused assaulted Siddlingappa, Mallappa and Nagappa (grand father and uncles of the complainant) with koyta, axe, sickle, jambia, stick and stone."
}
},
{
"from_name": null,
"id": "adc2e7bb50ef4ef6b5e2dc26e7b14de5",
"to_name": null,
"type": null,
"value": {
"end": 10537,
"labels": [
"FAC"
],
"start": 10485,
"text": "PW-1 lodged a complaint with Nesargi Police Station."
}
},
{
"from_name": null,
"id": "58de170fb0d24c64a02cd6769125fef8",
"to_name": null,
"type": null,
"value": {
"end": 10718,
"labels": [
"FAC"
],
"start": 10538,
"text": "The Police registered a case in Crime No.72/2005 on 30.8.2005 at about 8.15 A.M., for the offences punishable under Sections 143, 147, 148, 302, 109 and 506 r/w section 149 of IPC."
}
},
{
"from_name": null,
"id": "07d63daa44d443509040c095901d35b1",
"to_name": null,
"type": null,
"value": {
"end": 10782,
"labels": [
"FAC"
],
"start": 10719,
"text": "During the course of investigation, panchanamas were conducted."
}
},
{
"from_name": null,
"id": "553ddb70ae8e417b93fa04ae90bfa004",
"to_name": null,
"type": null,
"value": {
"end": 10882,
"labels": [
"FAC"
],
"start": 10783,
"text": "Accused were arrested and recorded their voluntary statement and seized the incriminating articles."
}
},
{
"from_name": null,
"id": "c59183f9a58649f1b9c9645bd52e1e81",
"to_name": null,
"type": null,
"value": {
"end": 11074,
"labels": [
"FAC"
],
"start": 10883,
"text": "After the investigation was over, charge sheet came to be laid against the Accused for the offences punishable under Sections 143, 147, 148, 307, 302, 114, 506 and 504 r/w Section 149 of IPC."
}
},
{
"from_name": null,
"id": "b4b2f59f292f4f87b8923c7fa972d504",
"to_name": null,
"type": null,
"value": {
"end": 11258,
"labels": [
"FAC"
],
"start": 11075,
"text": "Since the offence under Sections 307 and 302 of IPC are exclusively triable by a Court of Sessions, the case was committed to Sessions Court, where it was registered as SC No.28/2006."
}
},
{
"from_name": null,
"id": "c40785dbe50d41f9ba87c43f41474ce7",
"to_name": null,
"type": null,
"value": {
"end": 11454,
"labels": [
"FAC"
],
"start": 11259,
"text": "The trial Court, after hearing arguments, framed charges against all the 15 persons for the offences punishable under Sections 143, 147, 148, 302, 307, 114, 506, 504 read with Section 149 of IPC."
}
},
{
"from_name": null,
"id": "5adee46b317b43afab2829b0a1cfeffb",
"to_name": null,
"type": null,
"value": {
"end": 11511,
"labels": [
"FAC"
],
"start": 11454,
"text": "\nAccused have pleaded not guilty and claimed to be tried."
}
},
{
"from_name": null,
"id": "486462784f1c45f183f7183a9ffcc305",
"to_name": null,
"type": null,
"value": {
"end": 11631,
"labels": [
"FAC"
],
"start": 11512,
"text": "The prosecution went to trial by examining as many as 48 witnesses and got marked 66 documents and 38 Material Objects."
}
},
{
"from_name": null,
"id": "2549534520ef40b39e63060ac7e25d08",
"to_name": null,
"type": null,
"value": {
"end": 11708,
"labels": [
"FAC"
],
"start": 11632,
"text": "The defence has got marked a portion of complaint- Ext.P-1 as Ext.D1 and D2."
}
},
{
"from_name": null,
"id": "2daffc14f012450eaeb412aa3affec10",
"to_name": null,
"type": null,
"value": {
"end": 11774,
"labels": [
"FAC"
],
"start": 11709,
"text": "Statement of the Accused under Section 313 of Cr.PC was recorded."
}
},
{
"from_name": null,
"id": "4be4b74197994727b65d12a103be2cee",
"to_name": null,
"type": null,
"value": {
"end": 11882,
"labels": [
"FAC"
],
"start": 11775,
"text": "Accused have denied all the incriminating circumstances appearing in the evidence of prosecution witnesses."
}
},
{
"from_name": null,
"id": "f6f01bbd0d3e4f209bffc941c43d470d",
"to_name": null,
"type": null,
"value": {
"end": 11926,
"labels": [
"FAC"
],
"start": 11883,
"text": "They have not adduced any defence evidence."
}
},
{
"from_name": null,
"id": "7300d4a8b0e1475f8fa08fdd48401dac",
"to_name": null,
"type": null,
"value": {
"end": 12210,
"labels": [
"RLC"
],
"start": 11927,
"text": "The trial Court, after hearing arguments, perusing oral and documentary evidence on record, came to a conclusion that the prosecution brought home the guilt to the Accused for the offences punishable under Sections 143, 147, 148, 302, 307, 114, 506, 504 read with section 149 of IPC."
}
},
{
"from_name": null,
"id": "e1cbd90085dd44009691b3f663ea771f",
"to_name": null,
"type": null,
"value": {
"end": 12441,
"labels": [
"RLC"
],
"start": 12210,
"text": "\nAfter hearing the accused, on the point of sentence, held that the case falls within the scope of `rarest of the rare case' and awarded death sentence to Accused Nos.1 to 9 for the offence under Section 302 of IPC, on four counts."
}
},
{
"from_name": null,
"id": "d2e6191341c248199a6254ac9d6dc5f9",
"to_name": null,
"type": null,
"value": {
"end": 13720,
"labels": [
"RLC"
],
"start": 12441,
"text": "\n Further, Accused Nos.1 to 15 were sentenced to undergo- (i) imprisonment for 3 months and pay fine of `5,000/- each, in default in payment of fine, to undergo imprisonment for 2 months for the offence under Section 143 of IPC; (ii) imprisonment for 6 months and pay fine of `5,000/- each, in default in payment of fine, to undergo imprisonment for 3 months for the offence under Section 147 of IPC; (iii) imprisonment for 9 months and pay fine of `6,000/- each, in default in payment of fine to undergo imprisonment for 4 months for the offence under Section 148 of IPC; and (iv) imprisonment for a period of 10 years and pay fine of `10,000/- each, in default in payment of fine, to undergo imprisonment for 2 years for the offence under Section 307 of IPC (i.e., attempt to commit murder of P.W1-Suresh and P.W5- Maruthi; Further, Accused Nos.10 to 15 were sentenced to undergo - (a) imprisonment for life and pay fine of `10,000/- each, in default in payment of fine to undergo imprisonment for 3 years for the offence under Section 114 of IPC; (b) Imprisonment for 2 years for the offence punishable under Section 506 of IPC; and (c) to pay fine of `1,000/- each, in default in payment of fine, imprisonment for 2 months for the offence punishable under Section 504 of IPC."
}
},
{
"from_name": null,
"id": "f3c9975ae4c5479d9d4e491e0d2e6461",
"to_name": null,
"type": null,
"value": {
"end": 13809,
"labels": [
"RLC"
],
"start": 13720,
"text": "\n The trial court has ordered that the substantive sentences shall run one after another."
}
},
{
"from_name": null,
"id": "9bf16f0928454beeb4a20b086cdb7877",
"to_name": null,
"type": null,
"value": {
"end": 13844,
"labels": [
"FAC"
],
"start": 13809,
"text": "\nThis is impugned in these Appeals."
}
},
{
"from_name": null,
"id": "0928617e3bb24d67a27fbba87ea24e7e",
"to_name": null,
"type": null,
"value": {
"end": 14148,
"labels": [
"ARG_RESPONDENT"
],
"start": 13844,
"text": "\n 7. Sri V M Banakar, learned Addl. SPP appearing for the state, submitted that since four persons were brutally murdered with deadly weapons, the trial Court has rightly classified the case as \"rarest of rare cases\" and awarded death sentence as against Accused Nos.1 to 9 and the same may be confirmed."
}
},
{
"from_name": null,
"id": "25bb9bca550544ad835fdeab8280b01f",
"to_name": null,
"type": null,
"value": {
"end": 14547,
"labels": [
"ARG_RESPONDENT"
],
"start": 14149,
"text": "He also submitted that the trial Court, on proper appreciation of oral and documentary evidence placed on record, rightly reached the conclusion that the prosecution has proved the guilt to the accused for the charges levelled against them and awarded adequate sentence for the offences and there is no merit in the Appeals filed by the Accused and the impugned judgment of conviction and sentence."
}
},
{
"from_name": null,
"id": "669fd009e2b3497a9fc9dab687341347",
"to_name": null,
"type": null,
"value": {
"end": 14760,
"labels": [
"ARG_RESPONDENT"
],
"start": 14548,
"text": "He has cited a decision reported in (2010) 1 SCC (CRI) 925 (DILIP PREMNARAYAN TIWARI AND ANOTHER Vs. STATE OF MAHARASHTRA) on the point of appreciation of evidence in so for as the discrepancies/omissions in FIR."
}
},
{
"from_name": null,
"id": "6a83b144777c42438d8324ffe997a9a3",
"to_name": null,
"type": null,
"value": {
"end": 15072,
"labels": [
"ARG_PETITIONER"
],
"start": 14760,
"text": "\n 8. Sri R B Naik, learned Senior Counsel appearing for Sri Basavaraj, for Accused Nos.1, 4 to 6,8,9,11,12 and 13, submitted that the trial Court erred in convicting the Accused solely on the basis of interested testimony of the witnesses, though all independent eye witnesses have turned hostile to prosecution."
}
},
{
"from_name": null,
"id": "617ebc7201184f38a591f8389d83fffb",
"to_name": null,
"type": null,
"value": {
"end": 15295,
"labels": [
"ARG_PETITIONER"
],
"start": 15073,
"text": "He further submits that though, the alleged eye witnesses, have not witnessed the incident, the trial Court erred in accepting their evidence as gospel truth to base conviction for the offences alleged against the accused."
}
},
{
"from_name": null,
"id": "3995b0ca82cf4599a3d13d3b2d826b7d",
"to_name": null,
"type": null,
"value": {
"end": 15409,
"labels": [
"ARG_PETITIONER"
],
"start": 15296,
"text": "He further submitted that the case on hand cannot be treated as a `rarest of rare cases' to award death sentence."
}
},
{
"from_name": null,
"id": "8043d7912bd84ce6a1f487939c1fd5f1",
"to_name": null,
"type": null,
"value": {
"end": 15586,
"labels": [
"ARG_PETITIONER"
],
"start": 15410,
"text": "He prayed that the impugned judgment of conviction and sentence awarded against the Accused may be set aside and the all the accused may acquitted of the offences alleged them."
}
},
{
"from_name": null,
"id": "1bc105141f8d4a12a9c9d5f2c88641a9",
"to_name": null,
"type": null,
"value": {
"end": 16274,
"labels": [
"ARG_PETITIONER"
],
"start": 15587,
"text": "He has cited the following decisions: (i) AIR 1958 SC 935 (PURANMAL AGARWALLA Vs. STATE OF ORISSA) on the point that the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences; (ii) (1988) 4 SCC 183 (MOHD. AKHTAR HUSSAIN ALIAS IBRAHIM AHMED BHATTI Vs.\n ASSISTANT COLLECTOR OF CUSTOMS(PREVENTION), AHMEDABAD AND ANOTHER) on the point that the Courts must take into consideration the usual factors while imposing sentences; and (iii) (2010) 1 SCC 573 (RAMRAJ ALIAS NANHOO ALIAS BIHNU Vs. STATE OF CHHATTISGARH) on the point that imprisonment for life sentence was substituted for death sentence."
}
},
{
"from_name": null,
"id": "a240013b8dfc4439abe79d3dd4b680f3",
"to_name": null,
"type": null,
"value": {
"end": 16427,
"labels": [
"ARG_PETITIONER"
],
"start": 16276,
"text": "9. Sri Masali, learned Counsel appearing for Accused Nos.2,3 and 7, 10,14 and 15, adopted the arguments of the learned Senior Counsel, Sri Ravi B Naik."
}
},
{
"from_name": null,
"id": "3ec257734c924281b55de907bd81bea8",
"to_name": null,
"type": null,
"value": {
"end": 17075,
"labels": [
"ARG_PETITIONER"
],
"start": 16428,
"text": "He relied upon the following decisions: (i) 2003(7) SCC 141 (RAM PAL Vs. STATE OF U.P.) on the point that in the case of multiple murder, death sentence was altered to imprisonment for life.\n (ii) 2011(10) SCC 389 (SHAM Vs. STATE OF MAHARASHTRA on the point that death sentence was commuted to life imprisonment; (iii) 2011(13) SCC 706 (RAJESH KUMAR Vs.\n STATE) on the point of mitigating circumstances relating to death penalty; (iv) 2012(4) SCC 289 (BRAJENDER SINGH Vs. STATE OF M.P) on the point of mental imbalance of the Accused at the time of committing crime and gravity of mitigating circumstances while awarding death sentence.\n 10."
}
},
{
"from_name": null,
"id": "5914186822ba402d9393366d9ac0e475",
"to_name": null,
"type": null,
"value": {
"end": 17221,
"labels": [
"ISSUE"
],
"start": 17076,
"text": "In the light of the arguments addressed by the learned Counsels for the parties, we formulate the following points for our consideration: (i) "
}
},
{
"from_name": null,
"id": "469a84c8d05048ae88dd7930bce0a13b",
"to_name": null,
"type": null,
"value": {
"end": 17228,
"labels": [
"ISSUE"
],
"start": 17221,
"text": "Whether"
}
},
{
"from_name": null,
"id": "5dd468491ecf45afa66487d4d12d9506",
"to_name": null,
"type": null,
"value": {
"end": 17395,
"labels": [
"ISSUE"
],
"start": 17229,
"text": "the trial Court is justified in convicting Accused Nos.1 to 15 for the offences punishable under Sections 114, 143, 147, 148, 307, 302, 506 and 504 r/w 149 of I P C ?"
}
},
{
"from_name": null,
"id": "957ccb3ccf0b4deb96a2dc006ef1d4fa",
"to_name": null,
"type": null,
"value": {
"end": 17564,
"labels": [
"ISSUE"
],
"start": 17395,
"text": "\n (ii) Whether the trial Court is justified in awarding death sentence as against accused Nos.1 to 9 for the offence punishable under Section 302 r/w Section 149 of IPC?"
}
},
{
"from_name": null,
"id": "3278e7aec1de4ff1869da83b3779156a",
"to_name": null,
"type": null,
"value": {
"end": 17787,
"labels": [
"ISSUE"
],
"start": 17564,
"text": "\n (iii) Whether the impugned order of sentence passed as against accused Nos.1 to 9 for the offences punishable under Sections 114, 143, 147, 148, 307, 504, 506 r/w Section 149 of IPC calls for interference by this Court ?"
}
},
{
"from_name": null,
"id": "ecdcdf2ab43949908ef142307970d77f",
"to_name": null,
"type": null,
"value": {
"end": 18027,
"labels": [
"ISSUE"
],
"start": 17787,
"text": "\n (iv) Whether the impugned order of sentence passed as against accused Nos.10 to 15 for the offences punishable under Sections 114, 143, 147, 148, 307, 302, 506 and 504 r/w149 of IPC calls for interference by this Court ?\n (v)What order?"
}
},
{
"from_name": null,
"id": "40a5c6f99a454337a52c53d4bb2b5748",
"to_name": null,
"type": null,
"value": {
"end": 18163,
"labels": [
"ANALYSIS"
],
"start": 18029,
"text": "11. For the purpose of convenience and better understanding, we proceed to take up points (i) to (iv) together for consideration.\n 12."
}
},
{
"from_name": null,
"id": "9e1bfb9bd0684168b7b9dfea230b23f7",
"to_name": null,
"type": null,
"value": {
"end": 18316,
"labels": [
"ANALYSIS"
],
"start": 18164,
"text": "At the very outset, it must be mentioned that the alleged independent eye witnesses - P.Ws.6 to 15, 20 to 24 have not supported the case of prosecution."
}
},
{
"from_name": null,
"id": "af5fb7a7355a46cf81f6c2c3ac458aa5",
"to_name": null,
"type": null,
"value": {
"end": 18609,
"labels": [
"ANALYSIS"
],
"start": 18317,
"text": "Mahazar Witnesses namely PW-16 /Subhash Honnanaik Patil, P.W- 17/Laxman Gangappa Naik, P.W18/Mallesh Basavanneppa Karennavar, P.W19/Nagappa Adeveppa Patteda, P.W27/Mallanaik Sanganaik Baganavar and P.W31/Honappa Yallappa Sattennavar also did not support the case of prosecution."
}
},
{
"from_name": null,
"id": "fc52f2b6dbad405ebbf3c079063d91d4",
"to_name": null,
"type": null,
"value": {
"end": 18681,
"labels": [
"ANALYSIS"
],
"start": 18610,
"text": "P.W30 inquest mahazar witness has partly turned hostile to prosecution."
}
},
{
"from_name": null,
"id": "4a85914a5d8a41918f3b6dcdc979f6b7",
"to_name": null,
"type": null,
"value": {
"end": 19031,
"labels": [
"ANALYSIS"
],
"start": 18682,
"text": "The witnesses, who have supported the case of prosecution, can be described as under: (i) P.W.1the Complainant and P.Ws.2 to 5 and 32 are eye witnesses; (ii) P.Ws.25 and 26 are the inquest mahazar witnesses with regard to the deceased-Ratnavva; (iii) P.W.28 is the inquest mahazar witness with regard to the deceased- Siddlingappa;"
}
},
{
"from_name": null,
"id": "2b4d5f164bbd4e2296e5aad94f2a89d9",
"to_name": null,
"type": null,
"value": {
"end": 20014,
"labels": [
"ANALYSIS"
],
"start": 19032,
"text": "(iv) P.W29/Pundalik Bhimappa Wadeyar is the inquest mahazar witness with regard to the deceased Nagappa; (v) P.W33-Raju Nesargi is a seizure mahazar witness regarding seizure of motor cycle at the instance of Accused No.2 and Accused No.6; regarding seizure of an axe at the instance of Accused No.6 and two longs at the instance of Accused No2 (vi) P.Ws-13,38, P.Ws.40,41,45 and 48, are Police personnel who assisted the investing officers during investigation; (vii) 24 (viii) P.W-39/Ganapati is the PSI, who (ix) registered the case in Crime (x) No.72/2005 of Nesargi Police Station and submitted FIR (Ex.P40); P.W-44/Sharanappa and P.W47/Sonia Narang are the Investigating Officers; P.W-42/Dr. Pushpa H R-lady Medical Officer, who conducted autopsy over the deceased Ratnavva; and P.W.43/Dr.M.S.Hottigimatt is the Medical Officer who conducted autopsy over three the deceased persons namely, Siddalingappa, Nagappa and Mallappa.\n 13."
}
},
{
"from_name": null,
"id": "c90cd0df68694981be93e68c9558e168",
"to_name": null,
"type": null,
"value": {
"end": 20324,
"labels": [
"ANALYSIS"
],
"start": 20015,
"text": "The bone of contention of the defence is that as all the independent eye witnesses have not supported the case of prosecution, the trial Court erred in convicting the accused for the alleged offences solely on the basis of interested testimony of the witnesses who are related to deceased and the complainant."
}
},
{
"from_name": null,
"id": "577bf0a93eaf4247b06d2255c674efc8",
"to_name": null,
"type": null,
"value": {
"end": 20800,
"labels": [
"ANALYSIS"
],
"start": 20325,
"text": "It is also contended that FIR was registered against 16 persons, but the Investigating Officer, has given up the accused viz., Accused Nos.7/Shivappa Chanabasappa Udakeri, Accused No.10/Raju Siddalingappa Konnanavar and Accused No.13/Siddalingappa Appanna Konnanavar mentioned in the FIR, and filed charge sheet adding three other persons, viz., accused No.9/Shankreppa Chanabasappa Udkeri, Accused No.11/Gowrawwa Nagappa Udkeri and accused No.13/Nagappa Chanabasappa Udkeri."
}
},
{
"from_name": null,
"id": "1b09e2ad15b54842afa5c4d2cd2fc7cc",
"to_name": null,
"type": null,
"value": {
"end": 20891,
"labels": [
"ANALYSIS"
],
"start": 20801,
"text": "It is also contended that in the FIR, there was no allegation against accused No.8/Irappa."
}
},
{
"from_name": null,
"id": "bcbcc9f8eea742d08dc3dfb1cd9af128",
"to_name": null,
"type": null,
"value": {
"end": 21005,
"labels": [
"ANALYSIS"
],
"start": 20891,
"text": "\n 14. Now, we proceed to state as to relationship of the Accused among them and their age at the time of incident."
}
},
{
"from_name": null,
"id": "0f28083e2c9a4524b3fe18963fecbfdf",
"to_name": null,
"type": null,
"value": {
"end": 21120,
"labels": [
"ANALYSIS"
],
"start": 21006,
"text": "Accused No.7/Chandranaik and his wife-accused No.10/Mallawwa were residing in the house nearby to the complainant."
}
},
{
"from_name": null,
"id": "e4b5348b0042422eb765a0669a78af2f",
"to_name": null,
"type": null,
"value": {
"end": 21215,
"labels": [
"ANALYSIS"
],
"start": 21121,
"text": "Accused No.2/Siddappa and Accused No.3/Sidlingappa are the children of Accused Nos.7 and 10.\n "
}
},
{
"from_name": null,
"id": "4849e6d7dd6846e1a07cfa6cb088842b",
"to_name": null,
"type": null,
"value": {
"end": 21308,
"labels": [
"ANALYSIS"
],
"start": 21215,
"text": "Accused No.14/Sakranaik and Accused No.15/Doddanaik are the younger brothers of Accused No.7."
}
},
{
"from_name": null,
"id": "8848b12eda9547e8859ea113f63b1299",
"to_name": null,
"type": null,
"value": {
"end": 21372,
"labels": [
"ANALYSIS"
],
"start": 21309,
"text": "Accused No.13/Nagappa is the husband of Accused No.11/Gourawwa."
}
},
{
"from_name": null,
"id": "8d2d31d4a92348d9997b865624bf83c1",
"to_name": null,
"type": null,
"value": {
"end": 21465,
"labels": [
"ANALYSIS"
],
"start": 21372,
"text": "\nAccused No.5/Rajshekhar, Accused No.9/Shankreppa and Accused No.12/Basavaneppa are brothers."
}
},
{
"from_name": null,
"id": "fdb739a0da3840dcbfac6a752e440191",
"to_name": null,
"type": null,
"value": {
"end": 21554,
"labels": [
"ANALYSIS"
],
"start": 21466,
"text": "Accused No.1/Sundresh and Accused No.8/Irappa are the sons of Accused No.12/Basavaneppa."
}
},
{
"from_name": null,
"id": "99ad230a18f84ef4b197d41c152a1489",
"to_name": null,
"type": null,
"value": {
"end": 21613,
"labels": [
"ANALYSIS"
],
"start": 21555,
"text": "Accused No.6/Bhagwant is the son of Accused No.13/Nagappa."
}
},
{
"from_name": null,
"id": "129f89489ca4403d822c44a6880ca940",
"to_name": null,
"type": null,
"value": {
"end": 21673,
"labels": [
"ANALYSIS"
],
"start": 21614,
"text": "Accused No.4/Kalmesh is the son of Accused No.9/Shankreppa."
}
},
{
"from_name": null,
"id": "ada729724e5d4f1aa425e58824324241",
"to_name": null,
"type": null,
"value": {
"end": 21817,
"labels": [
"ANALYSIS"
],
"start": 21674,
"text": "Accused No.10/Mallawwa is the sister of Accused No.5/Rajshekhar, Accused No.9/Shankreppa, Accused No.12/Basavanneppa and Accused No.13/Nagappa."
}
},
{
"from_name": null,
"id": "f01a79ad0a7b4996b8d6ee6f51337105",
"to_name": null,
"type": null,
"value": {
"end": 21958,
"labels": [
"ANALYSIS"
],
"start": 21818,
"text": "Accused Nos.1 to 9 are aged about 28 years, 26 years, 24 years, 21 years, 38 years, 30 years, 51 years, 18 years and 53 years, respectively."
}
},
{
"from_name": null,
"id": "70ad205312ef4ae69da6e8a2ac4c4531",
"to_name": null,
"type": null,
"value": {
"end": 22111,
"labels": [
"ANALYSIS"
],
"start": 21958,
"text": "\n 15. According to the case of prosecution, Accused No.1/Sundresh, Accused No.2/Siddappa, Accused No.5/Rajshekhar and 11/Gowravva were armed with axe."
}
},
{
"from_name": null,
"id": "9805f96685a643d6a391d77fccd0d92c",
"to_name": null,
"type": null,
"value": {
"end": 22194,
"labels": [
"ANALYSIS"
],
"start": 22112,
"text": "It is pertinent to mention that the weapon 'long' is called as 'kyota' in Kannada."
}
},
{
"from_name": null,
"id": "9b40c21c35c04c47a60a832723f3542d",
"to_name": null,
"type": null,
"value": {
"end": 22325,
"labels": [
"ANALYSIS"
],
"start": 22215,
"text": "27 Accused No.3/Siddlingappa, Accused No.4/Kalmesh and Accused No.7/Chandranaik were armed with 'long'/'koyta."
}
},
{
"from_name": null,
"id": "19b6d1b752514a48af201619e37ac0af",
"to_name": null,
"type": null,
"value": {
"end": 22436,
"labels": [
"ANALYSIS"
],
"start": 22326,
"text": "The alleged abettors namely Accused Nos.10 to 15 are aged about 44, 45, 56, 52, 57 and 48 years, respectively."
}
},
{
"from_name": null,
"id": "e0104b14b6ac47e492230c43925fd58b",
"to_name": null,
"type": null,
"value": {
"end": 23343,
"labels": [
"ANALYSIS"
],
"start": 22438,
"text": "16. From the evidence of P.Ws.1,2,3,4,5 and 32, Accused No.1/Sundresh assaulted Ratnavva, Mallappa and Nagappa with an axe; Accused No.2 assaulted Ratnavva and Nagappa with a 'long'/koitha; Accused No.3 assaulted Siddlingappa and Mallappa with a 'long/koitha'; Accused No.4 assaulted Siddalingappa on the neck with a koitha/long; Accused No.5 assaulted Mallappa on the shoulder with an axe; Accused No.6 assaulted Nagappa on the head and back with an axe; Accused No.7 assaulted Mallappa on the face with a koyta/long; Accused No.8 assaulted Siddalingappa on the shoulder with an axe and Accused No.9 assaulted Ratnavva with an axe on the left hand and Siddalingappa on the left shoulder. It is in the evidence of the complainant/P.Ws.1, P.Ws.2,3,4,5 and 32 that Accused No.10/Mallawwa (wife of Accused No.7) abetted the commission of offence and also assaulted Siddalingappa on his forehead with a stone."
}
},
{
"from_name": null,
"id": "4290be603c2b46d9a875f7408cf7de8c",
"to_name": null,
"type": null,
"value": {
"end": 23421,
"labels": [
"ANALYSIS"
],
"start": 23343,
"text": "\nFurther, A-11 to 15 instigated the accused kill PW.1-Suresh and PW.5-Maruthi."
}
},
{
"from_name": null,
"id": "e51522ee493e4a039c738c32b29038c9",
"to_name": null,
"type": null,
"value": {
"end": 23791,
"labels": [
"ANALYSIS"
],
"start": 23422,
"text": "Charge sheet reveals that accused named in FIR namely Accused No.7/Shivappa Chanabasappa Udakeri, Accused No.10/Raju Siddalingappa Konnanavar and Accused No.13/Siddalingappa Appanna Konnanavar were given up while adding Accused No.9/Shankreppa Chanabasappa Udkeri, Accused No.11/Gourawwa Nagappa Udkeri and Accused No.13/Nagappa Chanabasappa Udkeri in the charge sheet."
}
},
{
"from_name": null,
"id": "40c3de227fac4804a7549e6a747c31fa",
"to_name": null,
"type": null,
"value": {
"end": 23829,
"labels": [
"ANALYSIS"
],
"start": 23792,
"text": "Accused Nos.9,12 and 13 are brothers."
}
},
{
"from_name": null,
"id": "27d4a7f253d54b71b716c1bd7ed1b3be",
"to_name": null,
"type": null,
"value": {
"end": 23977,
"labels": [
"ANALYSIS"
],
"start": 23830,
"text": "All the independent eye witnesses, viz., P.Ws.6 to 15, P.Ws.20 to 24 have not supported the case of prosecution for the reasons best known to them."
}
},
{
"from_name": null,
"id": "963cffe153dd473b8d68569bd604d9b3",
"to_name": null,
"type": null,
"value": {
"end": 24108,
"labels": [
"ANALYSIS"
],
"start": 23978,
"text": "Merely because those witnesses have not deposed in support of the prosecution, case of the prosecution cannot be rejected in toto."
}
},
{
"from_name": null,
"id": "9c6f3152600a4b888438da092e1b1e3b",
"to_name": null,
"type": null,
"value": {
"end": 24252,
"labels": [
"ANALYSIS"
],
"start": 24109,
"text": "Therefore,the evidence of P.Ws.1, 2,3,4,5 and 32, who are the eye witnesses cum related to the complainant require to be scrutinized carefully."
}
},
{
"from_name": null,
"id": "eea38eaafbbc456384db4da5dc6f979f",
"to_name": null,
"type": null,
"value": {
"end": 24351,
"labels": [
"ANALYSIS"
],
"start": 24253,
"text": "In our view, there is no strong ground to reject their evidence in toto for the following reasons."
}
},
{
"from_name": null,
"id": "bfdaaddc31284cbaa7717127cc37e51d",
"to_name": null,
"type": null,
"value": {
"end": 24523,
"labels": [
"ANALYSIS"
],
"start": 24351,
"text": "\n 17. P.W1-Suresh, aged about 28 years, is the husband of the deceased-Ratnavva and grand son of the deceased Siddalingappa and nephew of the deceased Nagappa and Mallappa."
}
},
{
"from_name": null,
"id": "c704cda5ff3c4e78900d3607f5946464",
"to_name": null,
"type": null,
"value": {
"end": 24610,
"labels": [
"ANALYSIS"
],
"start": 24524,
"text": "He has deposed in evidence that the deceased Siddalingappa had 8 sons and 2 daughters."
}
},
{
"from_name": null,
"id": "79ddaeb3eec64343ad24893655fee489",
"to_name": null,
"type": null,
"value": {
"end": 24951,
"labels": [
"ANALYSIS"
],
"start": 24611,
"text": "P.W-1 has deposed that his father-Siddappa died about 14 years back prior to the incident and his senior uncle-Basappa and his father though living in the same house of Siddalingappa, they had separate mess; whereas other 6 sons including the deceased Mallappa and Nagappa were living together with Siddalingappa and they had a common mess."
}
},
{
"from_name": null,
"id": "a318a635cb3d472bb3a93995e4891322",
"to_name": null,
"type": null,
"value": {
"end": 24998,
"labels": [
"ANALYSIS"
],
"start": 24951,
"text": "\nP.W2/Bhagawwa N Wadeyar is the sister of P.W1."
}
},
{
"from_name": null,
"id": "90c1543768ef411d9615dc463a6cab71",
"to_name": null,
"type": null,
"value": {
"end": 25054,
"labels": [
"ANALYSIS"
],
"start": 24999,
"text": "Ulavappa Siddappa Wadeyar is the elder brother of P.W1."
}
},
{
"from_name": null,
"id": "1eeb3f109df948b9890b27f388d3e653",
"to_name": null,
"type": null,
"value": {
"end": 25255,
"labels": [
"ANALYSIS"
],
"start": 25055,
"text": "According to P.W-1, about 1 year prior to the incident, when P.W3/Kasturi (w/o P.W1's elder brother-Ulavappa Siddappa Wadeyar) had been to fetch water, Accused Nos.1 and 3 poured water and pulled her."
}
},
{
"from_name": null,
"id": "c073162f5bf24a049e051f3e733e4d6d",
"to_name": null,
"type": null,
"value": {
"end": 25369,
"labels": [
"ANALYSIS"
],
"start": 25256,
"text": "She informed about the incident to her family members including deceased persons; they enquired with the Accused."
}
},
{
"from_name": null,
"id": "d759c0c8f5af4a198aaa812df0000f78",
"to_name": null,
"type": null,
"value": {
"end": 25731,
"labels": [
"ANALYSIS"
],
"start": 25371,
"text": "Since then, Accused No.10/Mallawwa used to abuse the family members of the complainant, in vulgar language, whenever they went in front of her house; when P.W3/Kasturi was proceeding towards the land; Accused Nos.1 and 3 teased and abused her in vulgar language and also restrained her from proceeding further.\n She informed the incident to the family members."
}
},
{
"from_name": null,
"id": "6796dac57316483ab5a7b3535d869931",
"to_name": null,
"type": null,
"value": {
"end": 25794,
"labels": [
"ANALYSIS"
],
"start": 25732,
"text": "When they questioned the Accused, there was exchange of words."
}
},
{
"from_name": null,
"id": "4b57bdc055774c04a0acbd49e5d14590",
"to_name": null,
"type": null,
"value": {
"end": 26006,
"labels": [
"ANALYSIS"
],
"start": 25795,
"text": "Again on 29.8.2005, at about 8.00 am, when the complainant was washing bullocks in front of his house, Accused No.10/Mallawwa, who was standing on the staircase of her house, teased him and threw slipper at him."
}
},
{
"from_name": null,
"id": "90ffe0c3d4c044dea69dc02e50e2e549",
"to_name": null,
"type": null,
"value": {
"end": 26076,
"labels": [
"ANALYSIS"
],
"start": 26007,
"text": "Accused No.10 and Accused No.2 threatened him with dire consequences."
}
},
{
"from_name": null,
"id": "6b0ee43c84224b13923f84bfc3b002e4",
"to_name": null,
"type": null,
"value": {
"end": 26415,
"labels": [
"ANALYSIS"
],
"start": 26078,
"text": "Again, on 30.8.2005, at about 7.00 a m, when the complainant was going to attend nature's call, Accused Nos.1 to 9 were armed with long and axes etc., came along with other accused namely Accused Nos.10,11,12,13,14 and 15 and challenged the complainant and his family members and attempted to kill the complainant and his family members."
}
},
{
"from_name": null,
"id": "8de61a385e96411cadd8977ccaee9d58",
"to_name": null,
"type": null,
"value": {
"end": 26584,
"labels": [
"ANALYSIS"
],
"start": 26416,
"text": "It is the case of the prosecution that on 30.8.2005 at about 6.30 a.m., all the Accused started chasing the complainant; he made hue and cry and went in side his house."
}
},
{
"from_name": null,
"id": "a9cdec2689484060a8a6987029db7621",
"to_name": null,
"type": null,
"value": {
"end": 26816,
"labels": [
"ANALYSIS"
],
"start": 26585,
"text": "On hearing the hue and cry of Pw-1, his wife Ratnavva came to the entrance of their house and requested the Accused not to assault her husband-P.W.1, but Accused Nos.1, 2 and 9 assaulted her and killed at the entrance of her house."
}
},
{
"from_name": null,
"id": "11ef2641d17b4772ac2395cf775e3cd0",
"to_name": null,
"type": null,
"value": {
"end": 26904,
"labels": [
"ANALYSIS"
],
"start": 26817,
"text": "P.W1 has deposed that he was hearing and also watching the scene from inside the house."
}
},
{
"from_name": null,
"id": "9402cf7ff99948e4b687183f496a39c2",
"to_name": null,
"type": null,
"value": {
"end": 27556,
"labels": [
"ANALYSIS"
],
"start": 26905,
"text": "Thereafter, his grand father/Siddalingappa and uncles- Mallappa and Nagappa were proceeding towards Police Station to lodge a complain against the Accused and at that time Accused Nos.1 and 5 assaulted his uncle-Mallappa with axe and Accused Nos.3 and 7 with Koitha; Accused Nos.3 and 4 assaulted his grand father/Siddalingappa with koitha; whereas Accused Nos.8 and 9 assaulted Siddalingappa with an axe and Accused No.10 assaulted Siddalingappa with stone; his uncle- Nagappa was assaulted by Accused Nos.1 and 6 with an axe and Accused No.2 with long and within half an hour, the Accused killed four persons viz., his wife, uncles and grand father."
}
},
{
"from_name": null,
"id": "8594d5b4aa584ae591f7a2441f7b2cab",
"to_name": null,
"type": null,
"value": {
"end": 27750,
"labels": [
"ANALYSIS"
],
"start": 27557,
"text": "It is in his evidence that after assaulting his wife Ratnavva, grandfather-Siddlingappa, uncles Nagappa and Mallappa, all the accused chased him and PW-5 Maruthi with an intention to kill them."
}
},
{
"from_name": null,
"id": "f03f0fcac2a24e84b8e37fb300e6d285",
"to_name": null,
"type": null,
"value": {
"end": 27924,
"labels": [
"ANALYSIS"
],
"start": 27751,
"text": "PW.5-Maruthi escaped through Mallari Oni whereas he (PW-1) ran away from the village; 15 minutes later came to the spot and saw dead body of his wife, grandfather and uncles"
}
},
{
"from_name": null,
"id": "e7c36603eb764bebb2d944c30372e81e",
"to_name": null,
"type": null,
"value": {
"end": 28190,
"labels": [
"ANALYSIS"
],
"start": 27925,
"text": "The evidence of P.W-1/complainant is corroborated by eye witnesses viz., P.W1's sister- P.W2/Bhagawwa N Wadeyar; P.W-1's elder brother's wife/P.W-4-Balawwa; his sister-in-law/P.W3-Kasturi N Wadeyar and his uncles P.W5/Maruti S Wadeyar and P.W- 32/Basappa S Wadeyar."
}
},
{
"from_name": null,
"id": "6bb4cb515edc40d69b32fc416c28e2ee",
"to_name": null,
"type": null,
"value": {
"end": 28339,
"labels": [
"ANALYSIS"
],
"start": 28190,
"text": "\n 18. Now, we refer to the evidence of the Investigating Officer-Smt.Sonia Narang-PW.47 who was the Assistant Superintendent of Police at Bailhongal."
}
},
{
"from_name": null,
"id": "777490f5ebb74f9bb9a5df6bd6592fe6",
"to_name": null,
"type": null,
"value": {
"end": 28725,
"labels": [
"ANALYSIS"
],
"start": 28340,
"text": "It is in her evidence that on 2.9.2005, she took up further investigation and the Circle Inspector of Police at Bailhongal produced accused Nos.1 and 4 before her with a report and she arrested them and they gave voluntary statement as per Ext.P.62 and 63, respectively and produced a Scooter bearing No.KA 24/E 1908, which was used by the accused for escaping from the scene of crime."
}
},
{
"from_name": null,
"id": "d633739cf6cf43de8ecc66c817b47f07",
"to_name": null,
"type": null,
"value": {
"end": 28821,
"labels": [
"ANALYSIS"
],
"start": 28726,
"text": "She seized the said Scooter under a panchanama in the presence of P.Ws.16 and 17 as per Ex.P12."
}
},
{
"from_name": null,
"id": "2b6b075d86834faaa6e68f9ddc1412e9",
"to_name": null,
"type": null,
"value": {
"end": 29002,
"labels": [
"ANALYSIS"
],
"start": 28821,
"text": "\nFurther, she has seized axe (M.O-12), blue colour shirt (M.O- 47) and while lungi (M.O-48) at instance of Accused No.1 under a panchanama in the presence of the above-said panchas."
}
},
{
"from_name": null,
"id": "392ee2f1eef44799ac2ae38cd26140f6",
"to_name": null,
"type": null,
"value": {
"end": 29165,
"labels": [
"ANALYSIS"
],
"start": 29003,
"text": "Likewise she has seized one long (M.O-19), shirt (M.O-50) and black and yellow checks lungi (M.O-51) at the instance of Accused NO4, under a panchayama (Ex.P-13)."
}
},
{
"from_name": null,
"id": "ff5294e84447473a96db20cd35f6c91c",
"to_name": null,
"type": null,
"value": {
"end": 29417,
"labels": [
"ANALYSIS"
],
"start": 29166,
"text": "She has further deposed that the CPI, Bailhongal, produced three accused persons viz., accused No.7/Chandranaik, accused No.3/Siddalingappa @ Mudakappa and accused No.5/Rajashekhar @ Gangappa before her on 10.9.2005 along with a report as per Ex.P-61."
}
},
{
"from_name": null,
"id": "edfb40c940c148719146105876d61c7c",
"to_name": null,
"type": null,
"value": {
"end": 29624,
"labels": [
"ANALYSIS"
],
"start": 29418,
"text": "She has recorded voluntary statement of Accused NO.5 and accused No.7 as per Ex.P65; Ex.P66 respectively and recovered their clothes worn at the time of incident and weapons used in the commission of crime."
}
},
{
"from_name": null,
"id": "1242d389177b408080a1bdcb34d95e58",
"to_name": null,
"type": null,
"value": {
"end": 29784,
"labels": [
"ANALYSIS"
],
"start": 29625,
"text": "She has deposed that on 16.9.2005, the ASI produced accused No.13/Nagappa Udakeri before her and she interrogated and produced him before the court for remand."
}
},
{
"from_name": null,
"id": "00b1bb730d22473199d24099c8a701c1",
"to_name": null,
"type": null,
"value": {
"end": 29817,
"labels": [
"ANALYSIS"
],
"start": 29784,
"text": "\nShe received post mortem report."
}
},
{
"from_name": null,
"id": "ed841f4a3afc4951afd6a985a5b2c21f",
"to_name": null,
"type": null,
"value": {
"end": 29926,
"labels": [
"ANALYSIS"
],
"start": 29818,
"text": "She has sent 47 sealed articles to FSL, Belgaum for chemical examination and filed charge sheet on 8.3.2006."
}
},
{
"from_name": null,
"id": "590b8e7a17a9494889b81350a195da95",
"to_name": null,
"type": null,
"value": {
"end": 29968,
"labels": [
"ANALYSIS"
],
"start": 29927,
"text": "The FSL report has been marked as Ex.P57."
}
},
{
"from_name": null,
"id": "60eea585991d486a80dcb22bec423d94",
"to_name": null,
"type": null,
"value": {
"end": 30178,
"labels": [
"ANALYSIS"
],
"start": 29969,
"text": "IN the cross-examination of P.W-47, she has deposed that since the complainant himself gave further statement stating that the other accused mentioned in the FIR did not commit any offence, they were given up."
}
},
{
"from_name": null,
"id": "dc84edf38a15457d8108361bcfe243e7",
"to_name": null,
"type": null,
"value": {
"end": 30292,
"labels": [
"ANALYSIS"
],
"start": 30179,
"text": "Nothing worthwhile is elicited in her cross-examination with regard to the evidence given before the trial Court."
}
},
{
"from_name": null,
"id": "4a30e5204aa445ec90ade4fbd9ee39a7",
"to_name": null,
"type": null,
"value": {
"end": 30465,
"labels": [
"ANALYSIS"
],
"start": 30293,
"text": "Ex.P-47/FSL report reveals that 47 articles were subjected to chemical analysis and all the articles except two articles viz., sample mud and lungi were stained with blood."
}
},
{
"from_name": null,
"id": "a41ff3675f974fb585d26b239da5fad6",
"to_name": null,
"type": null,
"value": {
"end": 30504,
"labels": [
"ANALYSIS"
],
"start": 30466,
"text": "Serology report has not been produced."
}
},
{
"from_name": null,
"id": "cb4face727cc4fec9e7434205b4a1866",
"to_name": null,
"type": null,
"value": {
"end": 30617,
"labels": [
"ANALYSIS"
],
"start": 30504,
"text": "\nEx.P.51-rough sketch of scene of crime, shows the place of crime and the place where the dead bodies were lying."
}
},
{
"from_name": null,
"id": "35478a0284c8483e93d14150f1587d3e",
"to_name": null,
"type": null,
"value": {
"end": 30850,
"labels": [
"ANALYSIS"
],
"start": 30618,
"text": "All the star witnesses were cross-examined by the defence at length by learned counsel for the accused, but nothing worth while was elicited to disbelieve their oral evidence as to the role of the accused in the commission of crime."
}
},
{
"from_name": null,
"id": "71a2db9a8d914bb786d50bfe5e1beb41",
"to_name": null,
"type": null,
"value": {
"end": 30961,
"labels": [
"ANALYSIS"
],
"start": 30851,
"text": "There is no major omissions and contradictions elicited in the cross-examination of the prosecution witnesses."
}
},
{
"from_name": null,
"id": "4d572e05f0dc41ab8a88fa5cd87a294a",
"to_name": null,
"type": null,
"value": {
"end": 31168,
"labels": [
"ANALYSIS"
],
"start": 30961,
"text": "\n 19. It is the case of prosecution that the Accused persons are powerful members of the community in the village and the independent witnesses have not supported the case of prosecution fearing the accused."
}
},
{
"from_name": null,
"id": "d8cfa78d36f64b5ea5e978322af60b46",
"to_name": null,
"type": null,
"value": {
"end": 31396,
"labels": [
"ANALYSIS"
],
"start": 31169,
"text": "It is alleged that Accused No.10 threw chappal at the complainant and instigated the Accused persons to kill the complainant and his family members and also assaulted on the fore head of the deceased Siddalingappa with a stone."
}
},
{
"from_name": null,
"id": "cad2461342824989a36eee9ea1bc1466",
"to_name": null,
"type": null,
"value": {
"end": 31735,
"labels": [
"ANALYSIS"
],
"start": 31397,
"text": "It is a fact that wife of P.W.1 was killed by the said accused in front of her house and when Siddalingappa along with his two sons-Mallappa and Nagappa were proceeding through Asundi Oni to Police Station, to lodge a complaint, the Accused persons chased them and killed and the dead bodies were lying in the same lane one after another."
}
},
{
"from_name": null,
"id": "99b2582f672942b592c94027d4f3a35d",
"to_name": null,
"type": null,
"value": {
"end": 31849,
"labels": [
"ANALYSIS"
],
"start": 31735,
"text": "\nThe dead bodies lying on the street can be seen in the photographs at Exs.P26 to 29, taken at the scene of crime."
}
},
{
"from_name": null,
"id": "ceee379108ba44bd8dfbeefb1319c57a",
"to_name": null,
"type": null,
"value": {
"end": 32200,
"labels": [
"ANALYSIS"
],
"start": 31849,
"text": "\nThough there is no mention in the complaint about the overt acts by Accused No.8, the evidence of the eye witnesses is sufficient to hold that all nine accused ( namely Nos.1 to 9), in pursuance of the common object and at the instigation of Accused No.10/Mallawwa, they have killed Ratnavva, Siddalingappa, Nagappa and Mallappa, within half an hour."
}
},
{
"from_name": null,
"id": "36e19ae552534ab194616000d9ca2211",
"to_name": null,
"type": null,
"value": {
"end": 32463,
"labels": [
"ANALYSIS"
],
"start": 32200,
"text": "\nNo doubt the name of Accused No.9/Shankreppa does not find a place in the FIR, but during the course of recording statement of the witnesses, he was arrested and according to the evidence of eye witnesses, Accused No.9 assaulted Ratnavva and Nagappa with an axe."
}
},
{
"from_name": null,
"id": "91a8f900d44142cb8b5e166f6d5d42aa",
"to_name": null,
"type": null,
"value": {
"end": 32591,
"labels": [
"ANALYSIS"
],
"start": 32464,
"text": "The contention of the learned counsel for the accused that Accused No.9 was falsely implicated in the case falls to the ground."
}
},
{
"from_name": null,
"id": "eb4a20c5cd49405b8212d096bb302c61",
"to_name": null,
"type": null,
"value": {
"end": 32680,
"labels": [
"ANALYSIS"
],
"start": 32592,
"text": "The prosecution has proved that all the above said four persons died an homicidal death."
}
},
{
"from_name": null,
"id": "2338f7febec24356b838825dbf2f21a4",
"to_name": null,
"type": null,
"value": {
"end": 33098,
"labels": [
"ANALYSIS"
],
"start": 32681,
"text": "Evidence on record is sufficient to hold that Accused Nos.1 to 10, with a common object, Rantnavva, Siddalingappa, Mallappa and Nagappa were killed and also attempted to kill PW.1-Suresh and PW.5-Maruthi and hence the order of conviction recorded by the trial court for the offence punishable under section 302 (on four counts) and 307 (on two counts) read with section 149 of IPC, does not call for our interference."
}
},
{
"from_name": null,
"id": "a947bd4a547e4dbfbe94978c00a95c23",
"to_name": null,
"type": null,
"value": {
"end": 33360,
"labels": [
"ANALYSIS"
],
"start": 33099,
"text": "The evidence of the prosecution that accused No.11 to 15 abetted the crime is not sufficient to base conviction in the absence of cogent and satisfactory evidence and they are entitled for an order of an acquittal for all the offences alleged against them.\n 20."
}
},
{
"from_name": null,
"id": "3c5c9925446549a08c8bfa590b0c6a5f",
"to_name": null,
"type": null,
"value": {
"end": 33486,
"labels": [
"ANALYSIS"
],
"start": 33361,
"text": "The trial Court has classified the case of murder as 'rarest of rare cases' and awarded death sentence to Accused Nos.1 to 9."
}
},
{
"from_name": null,
"id": "e41491baeab44edab0b226d35f4617d9",
"to_name": null,
"type": null,
"value": {
"end": 33530,
"labels": [
"ANALYSIS"
],
"start": 33487,
"text": "Brutality is involved in every murder case."
}
},
{
"from_name": null,
"id": "55d36f8a3e904455aac64688bc24966f",
"to_name": null,
"type": null,
"value": {
"end": 33592,
"labels": [
"ANALYSIS"
],
"start": 33530,
"text": "\nNumber of murders cannot be a ground to award death sentence."
}
},
{
"from_name": null,
"id": "36d3fe7b2c2d44f98a87d389bdf8e339",
"to_name": null,
"type": null,
"value": {
"end": 33695,
"labels": [
"ANALYSIS"
],
"start": 33593,
"text": "The facts to be considered for awarding death sentence are the magnitude and the manner and brutality."
}
},
{
"from_name": null,
"id": "d1050d264ffb47528973c12c5afb415d",
"to_name": null,
"type": null,
"value": {
"end": 33976,
"labels": [
"PRE_RELIED"
],
"start": 33696,
"text": "In the decision reported in 2003(7) SCC 141, supra, the Apex Court has held that \"It is true that the incident in question has prematurely terminated the life of twenty-one people and the number of deaths cannot be the sole criterion for awarding the maximum punishment of death.\""
}
},
{
"from_name": null,
"id": "f940973c249744089a4a2b6309a0898a",
"to_name": null,
"type": null,
"value": {
"end": 34321,
"labels": [
"PRE_RELIED"
],
"start": 33977,
"text": "In the decision reported in (2011)10 SCC 389, supra, Apex Court has held that the appellant/Accused would not be a menace to society and no reason to believe that the appellant cannot be reformed or rehabilitated or would constitute a continued threat to society and it is not the `rarest of the rare case' causing for extreme penalty of death."
}
},
{
"from_name": null,
"id": "645b3196fba64332baab59a943c07943",
"to_name": null,
"type": null,
"value": {
"end": 34668,
"labels": [
"PRE_RELIED"
],
"start": 34322,
"text": "In the decision reported in (2011)13 SCC 706, supra, the Apex Court has held that murder committed in a very brutal and inhuman fashion alone cannot justify death sentence and in the absence of any evidence to show that the appellant was a continuing threat to society or was beyond reform and rehabilitation, death sentence cannot be sustained.\n"
}
},
{
"from_name": null,
"id": "c08d780e89cb4dcba818ccca41ddb499",
"to_name": null,
"type": null,
"value": {
"end": 35071,
"labels": [
"PRE_RELIED"
],
"start": 34668,
"text": "In the case of Bachan Singh Vs. State of Punjab reported in (1980)2 SCC 684, the Constitution Bench of the Apex Court has held that \"for a person convicted of murder, life imprisonment is the rule and death sentence is an exception, and mitigating circumstances must be given due consideration and death sentence can be awarded only in the `rarest of rare cases' and for special reasons to be recorded.\""
}
},
{
"from_name": null,
"id": "675bfe2bbb534540838d405f1d63ac44",
"to_name": null,
"type": null,
"value": {
"end": 35494,
"labels": [
"PRE_RELIED"
],
"start": 35072,
"text": "In the decision reported in 2012(4) SCC 289, supra, the Apex Court has held that by drawing balance sheet of aggravating and mitigating circumstances and examining them in the light of facts and circumstances of the case, concluded that this was not a case where extreme penalty of death be imposed upon the accused and therefore, death sentence awarded to the accused was commuted to one of life imprisonment of 21 years."
}
},
{
"from_name": null,
"id": "1c5d6b5cee1048b1bf015e12b3a10fc5",
"to_name": null,
"type": null,
"value": {
"end": 35653,
"labels": [
"PRE_RELIED"
],
"start": 35495,
"text": "In the above-said case i.e., Brijendrasingh's case, the Apex Court has given the cases falling under the category of aggravating and mitigating circumstances."
}
},
{
"from_name": null,
"id": "2edfcd9319014d8fb9067be04f0e1e8d",
"to_name": null,
"type": null,
"value": {
"end": 35809,
"labels": [
"PRE_RELIED"
],
"start": 35654,
"text": "The Apex Court has laid down the principles to determine whether this case falls within the scope of rarest of rare cases for imposition of death sentence."
}
},
{
"from_name": null,
"id": "5a0ccf7e44834431a8a7dced18c40d20",
"to_name": null,
"type": null,
"value": {
"end": 36609,
"labels": [
"ANALYSIS"
],
"start": 35809,
"text": "\nThe principles laid down by the Apex Court are as under: \" (i) The Court has to apply the test to determine, if it was the 'rarest of rare' case for imposition of a death sentence; (i) In the opinion of the court, imposition of any other punishment i.e., life imprisonment would be completely inadequate and would not meet the ends of justice; (ii) Life imprisonment is the rule and death sentence is an exception; (iii) The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant circumstances; and (iv) The method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.) in which the crime was committed and the circumstances leading to commission of such heinous crime.\""
}
},
{
"from_name": null,
"id": "844c5b1e1c5449aebb319b162696f019",
"to_name": null,
"type": null,
"value": {
"end": 36733,
"labels": [
"RATIO"
],
"start": 36609,
"text": "\n 21. Accused Nos.1 to 6 and 8 are aged between 18 and 38 years; whereas Accused Nos.7 and 9 are aged about 51 and 53 years."
}
},
{
"from_name": null,
"id": "14e0a5bc1f854f6bba446722d5cd73b6",
"to_name": null,
"type": null,
"value": {
"end": 36935,
"labels": [
"RATIO"
],
"start": 36734,
"text": "Keeping in view the above principles laid down by the Apex Court, we are of the considered view that death sentence awarded by the trial court is contrary to the principles laid down by the Apex Court."
}
},
{
"from_name": null,
"id": "359b3aa42d96478188f749bc18ca851a",
"to_name": null,
"type": null,
"value": {
"end": 37024,
"labels": [
"ANALYSIS"
],
"start": 36935,
"text": "\n 22. Accordingly we answer the points for consideration partly in favour of the accused."
}
},
{
"from_name": null,
"id": "0c7aebe78f7a4b7285febf257a673075",
"to_name": null,
"type": null,
"value": {
"end": 37088,
"labels": [
"RPC"
],
"start": 37024,
"text": "\n 23. For the foregoing reasons, we pass the following order: I."
}
},
{
"from_name": null,
"id": "905e355d13e949f7be6a3764b4f9d34a",
"to_name": null,
"type": null,
"value": {
"end": 37143,
"labels": [
"RPC"
],
"start": 37089,
"text": "Reference case in Crl. R.C. No 11 of 2009 is rejected."
}
},
{
"from_name": null,
"id": "7d0da703ac0e4ae185f36992f2d81314",
"to_name": null,
"type": null,
"value": {
"end": 37228,
"labels": [
"RPC"
],
"start": 37145,
"text": "II. Appeal in Crl. A. No. 2516 of 2009 filed by accused No.1, 4 to 6, 8, 9 and Crl."
}
},
{
"from_name": null,
"id": "7f040057c4c241a6a942827e4ed5f4dd",
"to_name": null,
"type": null,
"value": {
"end": 37293,
"labels": [
"RPC"
],
"start": 37229,
"text": "A No. 2535 of 2009 filed by Accused No.2, 3, and 7 are rejected."
}
},
{
"from_name": null,
"id": "79f8e0ed283e4eca90c0eaaccf6c7bf1",
"to_name": null,
"type": null,
"value": {
"end": 37705,
"labels": [
"RPC"
],
"start": 37295,
"text": "III. Appeal in Crl. A. No.2516 of 2009 filed by Accused No.11,12 and 13 and Crl.A.No.2536 of 2009 filed by Accused No.14 and 15 are allowed and the impugned judgment of conviction and sentence recorded against them (accused No11 to 15) are set aside and they are acquitted of the offences alleged against them and they shall be set at liberty forthwith, if their presence is not required in any other case; IV."
}
},
{
"from_name": null,
"id": "bd02d54f686b4189834977595864aa19",
"to_name": null,
"type": null,
"value": {
"end": 37954,
"labels": [
"RPC"
],
"start": 37706,
"text": "The impugned order of conviction recorded by the trial court as against the Accused Nos.1 to 10 for the offence punishable under Section 114, 143, 147, 148, 307 (on two counts), 504, 506, 302 r/w Section 149 of IPC, on four counts, is confirmed; V."
}
},
{
"from_name": null,
"id": "79533112f45d4ea288990d6103199ecd",
"to_name": null,
"type": null,
"value": {
"end": 38143,
"labels": [
"RPC"
],
"start": 37955,
"text": "The impugned order of sentence made against Accused Nos.1 to 10 for offences punishable under Section 114,143,147,148, 307 (on two counts), 504,506 read with section 149 is also confirmed."
}
},
{
"from_name": null,
"id": "f941fbdcab164a1895cd790d4a6b683d",
"to_name": null,
"type": null,
"value": {
"end": 38439,
"labels": [
"RPC"
],
"start": 38145,
"text": "VI. Accused Nos.1 to 10 are sentenced to undergo imprisonment for life (21 years) and pay fine of `10,000/- each, on four counts, in default in payment of fine, to undergo imprisonment for a period of one year, for the offence punishable under Section 302 read with Section 114/149 of IPC; VII."
}
},
{
"from_name": null,
"id": "16f4870c8596427992d4fde3ee4089cd",
"to_name": null,
"type": null,
"value": {
"end": 38493,
"labels": [
"RPC"
],
"start": 38440,
"text": "All the substantive sentences shall run concurrently."
}
},
{
"from_name": null,
"id": "c69e961c8e17424a9f3d8e8ad20f8d15",
"to_name": null,
"type": null,
"value": {
"end": 38500,
"labels": [
"RPC"
],
"start": 38493,
"text": "\n VIII."
}
},
{
"from_name": null,
"id": "99aeafc45be74428b02b1318f9d030d7",
"to_name": null,
"type": null,
"value": {
"end": 38611,
"labels": [
"RPC"
],
"start": 38501,
"text": "Accused are entitled for set-off of the period of detention undergone by them under section 428 of Cr.P C.\n X."
}
},
{
"from_name": null,
"id": "223cc432842542e6a7486a3ad7c0b786",
"to_name": null,
"type": null,
"value": {
"end": 38903,
"labels": [
"RPC"
],
"start": 38612,
"text": "If the fine amount is recovered, a sum of `50,000/- shall be paid to P.W.1 towards the death of his wife; whereas a sum of `50,000/- shall be paid to the spouse of deceased Siddalingappa, Nagappa and Mallappa or their legal representatives, as the case may be, respectively, as compensation."
}
},
{
"from_name": null,
"id": "03291b632c1148fda32b5b5ce434cd71",
"to_name": null,
"type": null,
"value": {
"end": 38983,
"labels": [
"RPC"
],
"start": 38903,
"text": "\n XI. Accordingly the impugned judgment of conviction and sentence are modified."
}
},
{
"from_name": null,
"id": "2964ac9275ee4a2387b556740bc4a9a7",
"to_name": null,
"type": null,
"value": {
"end": 39010,
"labels": [
"NONE"
],
"start": 38983,
"text": "\n Sd/- JUDGE Sd/- JUDGE Bjs"
}
}
]
}
] | 4,207 | {
"text": " IN THE HIGH COURT OF KARNATAKA \n\n CIRCUIT BENCH AT DHARWAD\n\n DATED THIS THE 29TH DAY OF JANUARY 2013\n PRESENT\n\nTHE HON'BLE DR. JUSTICE K. BHAKTHAVATSALA\n\n AND\nTHE HON'BLE MR.JUSTICE B.SREENIVASE GOWDA\n\n CRIMINAL R C No.11/2009\n C/W\n\nCRIMINAL APPEAL NOS.2516/2009 C/W 2535/2009\n\n C/W 2536/2009\n\nBETWEEN\n\n CRL. R.C. NO.11/2009\n\nHigh Court of Karnataka, Petitioner\nRep. By Additional Registrar General,\nHigh Court Circuit Bench,\nDharwad.\n\n(By Sri V M Banakar, Addl. SPP, for petitioner)\n\nAND\n\n1. Sri Sundresh,\nS/o Basavanneppa Udikeri,\nAge: 22 years.\n\n2. Sri Siddappa Chandranaik\nRevannavar,\nAge: 28 years.\n\n3. Sidlingappa @ Mudakappa,\nS/o Chandranaik Revannavar,\nAge: 26 years.\n\n4. Kalmesh Shankreppa Udkeri,\nAge: 23 years.\n\n5. Rajshekhar @ Gangappa Udkeri,\nS/o Chanbasappa Udkeri,\nAge: 40 years.\n\n6. Bhagwant Nagappa Udkeri,\nAge: 32 years.\n\n7. Chandranaik Mallanaik\nRevennavar,\nAge: 53 years.\n\n8. Irappa Basavenneppa Udkeri,\nAge: 20 years.\n\n9. Shankreppa Chanabasappa Udkeri,\nAge: 55 years.\n\nAll appellants are Respondents\nResiding at Murkibhavi,\nTq. Bailhongal,\nDist: Belgaum.\n\n(By Sri R B Naik, Sr. Counsel, for Smt. Vijetha R Naik\n & J Basavaraj, Adv., for respondents 1,4 to 6, 8 and 9)\n\n(By Sri Mallikarjun S Masali, Adv., for R-2,3 and 7)\n\n\n This Crl. R C is filed under Section 366 of the Code of\nCriminal Procedure, for confirmation of death sentence\nawarded to accused Nos.1 to 9 by the Presiding Officer, Fast\nTrack Court-II & Addl. Sessions Judge, Belgaum vide\njudgment of conviction dated 4/16.12.2008 in S C\nNo.28/2006.\n\n CRL.A. NO.2516/2009\n\n1. Sri Sundresh,\nS/o Basavanneppa Udikeri,\nAge: 22 years.\n\n2. Sri Kalmesh,\nS/o Shankareppa Udikeri,\nAge: 23 years.\n\n3. Sri Rajshekhar @ Gangappa,\nS/o Chandranaik Revannavar,\nAge: 40 years.\n\n4. Sri Bhagwant,\nS/o Nagappa Udikeri,\nAge: 32 years.\n\n5. Sri Irappa,\nS/o Basavaneppa Udikeri,\nAge: 20 years.\n\n6. Sri Shankreppa,\nA/o Chanbasappa Udikeri,\nAge: 55 years.\n\n7. Smt. Gourawwa,\nW/o Nagappa Udikeri,\nAge: 47 years.\n\n8. Sri Basavanneppa,\nS/o Chanbasappa Udikeri,\nAge: 58 years.\n\n9. Sri Nagappa,\nS/o Chanbasappa Udikeri,\nAge: 57 years.\n\nAll appellants are Appellants\nResiding at Murkibhavi,\nTq. Bailhongal,\nDist: Belgaum.\n\n(By Sri R B Naik, Sr. Counsel, for Smt. Vijetha R Naik\n & J Basavaraj, Adv., for appellants)\n\nAND\n\nThe State of Karnataka\n\n(Through Nesargi Police Station),\n\nRepresented by its\n\nState Public Prosecutor,\n\nHigh Court of Karnataka,\n\nBangalore. Respondent\n\n(By Sri V M Banakar, Addl. SPP, for respondent)\n\n Criminal Appeal No.2516/2009 is filed under Section\n374(2) of the Code of Criminal Procedure, praying to set\n\naside the judgment and order of conviction and sentence\nrecorded by the Fast Track-II and Addl. Sessions Judge,\nBelgaum, in S C No.28/2006 by its order of conviction dated\n4.12.2008 and sentence dated 16.12.2008.\n\n CRL.A. NO.2535/2009\n\n1. Siddappa Revannavar,\nS/o Chandrakant Revannavar,\nAge: 28 years.\n\n2. Sidlingappa @ Mudakappa Revannavar,\nS/o Chandrakant Revannavar,\nAge: 26 years.\n\n3. Chandranaik Revannavar,\nS/o Mallanaik Revannavar,\nAge: 53 years.\n\nAll the appellants are residing at Appellants\nMurkibhavi, Tq. Bailhongal,\nDist. Belgaum.\n\n(By Sri Mallikarjun S Masali & C H Jadhav, Advs., for\n appellants)\n\nAND\n\nThe State of Karnataka Respondent\nBy Nesargi Police Station,\nRepresented by its\nState Public Prosecutor,\nHigh Court of Karnataka,\nBangalore.\n\n(By Sri V M Banakar, Addl. SPP)\n\n\n Criminal Appeal No.2535/2009 is filed under Section\n374(2) of the Code of Criminal Procedure, praying to set\naside the judgment and order of conviction and sentence\nrecorded by the Fast Track-II and Addl. Sessions Judge,\nBelgaum, in S C No.28/2006 by its order of conviction dated\n4.12.2008 and sentence dated 16.12.2008.\n\n CRL.A. NO.2536/2009\n\n1. Mallawwa Chandranaik Revannavar,\nW/o Chandranaik Revannavar,\nAge: 47 years.\n\n2. Sakranaik Revennavar,\nS/o Mallanaik Revannavar,\nAge: 54 years.\n\n3. Doddanaik Revannavar,\nS/o Mallanaik Revennavar,\nAge: 50 years.\n\nAll the appellants are residing at\nMurkibhavi,\n\nTq. Bailhongal, Appellants\nDist: Belgaum.\n\n(By Sri Mallikarjun S Masali & C H Jadhav, Advs., for\nappellants)\n\nAND\n\nThe State of Karnataka Respondent\nBy Nesargi Police Station,\nRepresented by its\nState Public Prosecutor,\nHigh Court of Karnataka,\nBangalore.\n\n(By Sri V M Banakar, Addl. SPP)\n\n Criminal Appeal No.2536/2009 is filed under Section\n374(2) of the Code of Criminal Procedure, praying to set\naside the judgment and order of conviction and sentence\nrecorded by the Fast Track-II and Addl. Sessions Judge,\nBelgaum, in S C No.28/2006 by its order of conviction dated\n4.12.2008 and sentence dated 16.12.2008.\n\n The Crl. R C and the Appeals coming on for hearing, the\nsame having been heard and reserved for pronouncement of\nJudgment, Dr. Bhakthavatsala, J., delivered the following:\n\n JUDGMENT\n By order dated 16.12.2008 made in SC No.28/2006, Fast Track Court-II/Addl. Sessions Judge at Belgaum, seeks confirmation of death sentence awarded against accused Nos.1 to 9 for the offence punishable under Section 302 r/w Section 149 of the Indian Penal Code, on four counts. It is registered under Section 366 of the Code of Criminal Procedure in Criminal R C No.11/2009.\n 2. Criminal Appeals in Nos.2516/2009, 2535/2009 and 2536/2009 have been filed by the accused Nos.1 to 15 challenging the impugned judgment of conviction and sentence passed against them for the various offences in the above-said case.\n 3. Since these cases arise out of the judgment of conviction and sentence dated 16.12.2008 made in SC No.28/2006 on the file of Fast Track Court at Belgaum, we have heard common arguments and proceeding to dispose off these cases by this common judgment.\n 4. For the purpose of convenience and better understanding, respondents Nos.1 to 9 in Crl. RC No.11/2009 and appellants in Criminal Appeal Nos.2516/2009, 2535/2009 and 2536/2009 are hereinafter referred to as `Accused Nos.1 to 15' as arraigned before the trial Court.\n 5. Brief facts of the case leading to registering of the Reference Case under Section 366 of Cr. P C, may be stated as under: By the impugned judgment dated 16.12.2008, learned Sessions Judge convicted all the 15 accused persons for the offences punishable under Sections 143, 147, 148, 307, 302, 506, 504 read with section 149/114 of IPC. After hearing the accused on the point of sentence, Learned Sessions Judge has passed further judgment awarding death sentence as against accused Nos.1 to 9, for the offence punishable under Section 302 r/w Section 149 of IPC, on four counts. As required under sub-section (1) of Section 366 of Cr.PC, learned trial Judge has submitted the records for confirmation of Death sentence.\n 6. Brief facts of the case leading to the filing of other three Appeals by the accused Nos.1 to 15 under Section 374(2) of Cr.P C may be stated as under: The complainant-Suresh Siddappa Wodeyar (PW-1) and his family members are permanent residents of Murkibhavi village in Bailhongal Taluk. The complainant's father has 7 brothers and all of them were residing together in the same place. Ulavappa (husband of P.W-3) is the elder brother of the complainant. It is stated that one and half years prior to 30.8.2005 ( i.e., the date of incident), when Kasturi-P.W3, had gone to Kumbarbhavi to fetch water, accused No.3/Sidlingappa and accused No.1/Sundresh picked up quarrel with her and poured water on her; she informed about the incident to her family members; they questioned the accused No.1/Sundresh and accused No.7/Chandranaik and their family members. For which, the accused quarreled with the complainant and his family members. It is also alleged that accused No.1/Sundresh and accused No.3/Sidlingappa were often teasing P.W.3 and blocking her way whenever she went to lands. It is alleged that accused No.10/Mallawwa (wife of accused No.7/Chandranaik) used to taunt and challenge the complainant's family members and threatened with dire consequences if they lodged a complaint with Police.\n Further case of the prosecution is that on 29.8.2005 (Monday), at about 8.00 a m, when the complainant was washing his bullocks, Accused No.10/Mallawwa and Accused No.2/Siddappa, who were standing on the upstairs of their house, picked up quarrel with the complainant-P.W.1 and threw chappal at him. He informed about the incident to his family members, for which they told him that a complaint would be lodged on the next day. On 30.8.2005 (Tuesday) at about 6.30 AM, when the complainant-P.W1 was going to answer nature's call, Accused No.10/Mallawwa instigated the Accused to kill the complainant-P.W.1. Accordingly, Accused No.1/Sundresh, Accused No.2/Siddappa, Accused No.3/Sidlingappa, Accused No.4/Kalmesh, Accused No.5/Rajshekhar, Accused No.6/Bhagwant and one Shivappa Chanbasappa Udkeri, Rudrappa Shankrappa Udkeri, Sidlingappa Apanna Konnennawar, Accused No.15/Doddanaik, Accused No.14/Sakranaik, Raju Sidlingappa Konnennawar, Accused No.12/Basavanneppa and Accused No.7/Chandranaik chased the complainant-P.W.1, who raised hue and cry and went inside his house; at that time, the complainant's grand father/Siddlingappa (the deceased) and his deceased uncles Mallappa and Nagappa, who are residents of the same lane, came and complainant's wife-Ratnawwa also came out of the house holding a plastic mug to go for nature's call; she requested the Accused not to do anything to her husband(PW- 1). But on the other hand Accused No.2 assaulted Ratnawwa with kyota on left side of her chest and left arm. Seeing the incident, grand father and uncles of the complaint were proceeding towards Police Station to lodge a complaint, but the Accused accosted them and assaulted and also threatened the public with dire consequences, if they intervened in their action. Thus, the Accused assaulted Siddlingappa, Mallappa and Nagappa (grand father and uncles of the complainant) with koyta, axe, sickle, jambia, stick and stone. PW-1 lodged a complaint with Nesargi Police Station. The Police registered a case in Crime No.72/2005 on 30.8.2005 at about 8.15 A.M., for the offences punishable under Sections 143, 147, 148, 302, 109 and 506 r/w section 149 of IPC. During the course of investigation, panchanamas were conducted. Accused were arrested and recorded their voluntary statement and seized the incriminating articles. After the investigation was over, charge sheet came to be laid against the Accused for the offences punishable under Sections 143, 147, 148, 307, 302, 114, 506 and 504 r/w Section 149 of IPC. Since the offence under Sections 307 and 302 of IPC are exclusively triable by a Court of Sessions, the case was committed to Sessions Court, where it was registered as SC No.28/2006. The trial Court, after hearing arguments, framed charges against all the 15 persons for the offences punishable under Sections 143, 147, 148, 302, 307, 114, 506, 504 read with Section 149 of IPC.\nAccused have pleaded not guilty and claimed to be tried. The prosecution went to trial by examining as many as 48 witnesses and got marked 66 documents and 38 Material Objects. The defence has got marked a portion of complaint- Ext.P-1 as Ext.D1 and D2. Statement of the Accused under Section 313 of Cr.PC was recorded. Accused have denied all the incriminating circumstances appearing in the evidence of prosecution witnesses. They have not adduced any defence evidence. The trial Court, after hearing arguments, perusing oral and documentary evidence on record, came to a conclusion that the prosecution brought home the guilt to the Accused for the offences punishable under Sections 143, 147, 148, 302, 307, 114, 506, 504 read with section 149 of IPC.\nAfter hearing the accused, on the point of sentence, held that the case falls within the scope of `rarest of the rare case' and awarded death sentence to Accused Nos.1 to 9 for the offence under Section 302 of IPC, on four counts.\n Further, Accused Nos.1 to 15 were sentenced to undergo- (i) imprisonment for 3 months and pay fine of `5,000/- each, in default in payment of fine, to undergo imprisonment for 2 months for the offence under Section 143 of IPC; (ii) imprisonment for 6 months and pay fine of `5,000/- each, in default in payment of fine, to undergo imprisonment for 3 months for the offence under Section 147 of IPC; (iii) imprisonment for 9 months and pay fine of `6,000/- each, in default in payment of fine to undergo imprisonment for 4 months for the offence under Section 148 of IPC; and (iv) imprisonment for a period of 10 years and pay fine of `10,000/- each, in default in payment of fine, to undergo imprisonment for 2 years for the offence under Section 307 of IPC (i.e., attempt to commit murder of P.W1-Suresh and P.W5- Maruthi; Further, Accused Nos.10 to 15 were sentenced to undergo - (a) imprisonment for life and pay fine of `10,000/- each, in default in payment of fine to undergo imprisonment for 3 years for the offence under Section 114 of IPC; (b) Imprisonment for 2 years for the offence punishable under Section 506 of IPC; and (c) to pay fine of `1,000/- each, in default in payment of fine, imprisonment for 2 months for the offence punishable under Section 504 of IPC.\n The trial court has ordered that the substantive sentences shall run one after another.\nThis is impugned in these Appeals.\n 7. Sri V M Banakar, learned Addl. SPP appearing for the state, submitted that since four persons were brutally murdered with deadly weapons, the trial Court has rightly classified the case as \"rarest of rare cases\" and awarded death sentence as against Accused Nos.1 to 9 and the same may be confirmed. He also submitted that the trial Court, on proper appreciation of oral and documentary evidence placed on record, rightly reached the conclusion that the prosecution has proved the guilt to the accused for the charges levelled against them and awarded adequate sentence for the offences and there is no merit in the Appeals filed by the Accused and the impugned judgment of conviction and sentence. He has cited a decision reported in (2010) 1 SCC (CRI) 925 (DILIP PREMNARAYAN TIWARI AND ANOTHER Vs. STATE OF MAHARASHTRA) on the point of appreciation of evidence in so for as the discrepancies/omissions in FIR.\n 8. Sri R B Naik, learned Senior Counsel appearing for Sri Basavaraj, for Accused Nos.1, 4 to 6,8,9,11,12 and 13, submitted that the trial Court erred in convicting the Accused solely on the basis of interested testimony of the witnesses, though all independent eye witnesses have turned hostile to prosecution. He further submits that though, the alleged eye witnesses, have not witnessed the incident, the trial Court erred in accepting their evidence as gospel truth to base conviction for the offences alleged against the accused. He further submitted that the case on hand cannot be treated as a `rarest of rare cases' to award death sentence. He prayed that the impugned judgment of conviction and sentence awarded against the Accused may be set aside and the all the accused may acquitted of the offences alleged them. He has cited the following decisions: (i) AIR 1958 SC 935 (PURANMAL AGARWALLA Vs. STATE OF ORISSA) on the point that the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences; (ii) (1988) 4 SCC 183 (MOHD. AKHTAR HUSSAIN ALIAS IBRAHIM AHMED BHATTI Vs.\n ASSISTANT COLLECTOR OF CUSTOMS(PREVENTION), AHMEDABAD AND ANOTHER) on the point that the Courts must take into consideration the usual factors while imposing sentences; and (iii) (2010) 1 SCC 573 (RAMRAJ ALIAS NANHOO ALIAS BIHNU Vs. STATE OF CHHATTISGARH) on the point that imprisonment for life sentence was substituted for death sentence.\n 9. Sri Masali, learned Counsel appearing for Accused Nos.2,3 and 7, 10,14 and 15, adopted the arguments of the learned Senior Counsel, Sri Ravi B Naik. He relied upon the following decisions: (i) 2003(7) SCC 141 (RAM PAL Vs. STATE OF U.P.) on the point that in the case of multiple murder, death sentence was altered to imprisonment for life.\n (ii) 2011(10) SCC 389 (SHAM Vs. STATE OF MAHARASHTRA on the point that death sentence was commuted to life imprisonment; (iii) 2011(13) SCC 706 (RAJESH KUMAR Vs.\n STATE) on the point of mitigating circumstances relating to death penalty; (iv) 2012(4) SCC 289 (BRAJENDER SINGH Vs. STATE OF M.P) on the point of mental imbalance of the Accused at the time of committing crime and gravity of mitigating circumstances while awarding death sentence.\n 10. In the light of the arguments addressed by the learned Counsels for the parties, we formulate the following points for our consideration: (i) Whether the trial Court is justified in convicting Accused Nos.1 to 15 for the offences punishable under Sections 114, 143, 147, 148, 307, 302, 506 and 504 r/w 149 of I P C ?\n (ii) Whether the trial Court is justified in awarding death sentence as against accused Nos.1 to 9 for the offence punishable under Section 302 r/w Section 149 of IPC?\n (iii) Whether the impugned order of sentence passed as against accused Nos.1 to 9 for the offences punishable under Sections 114, 143, 147, 148, 307, 504, 506 r/w Section 149 of IPC calls for interference by this Court ?\n (iv) Whether the impugned order of sentence passed as against accused Nos.10 to 15 for the offences punishable under Sections 114, 143, 147, 148, 307, 302, 506 and 504 r/w149 of IPC calls for interference by this Court ?\n (v)What order?\n 11. For the purpose of convenience and better understanding, we proceed to take up points (i) to (iv) together for consideration.\n 12. At the very outset, it must be mentioned that the alleged independent eye witnesses - P.Ws.6 to 15, 20 to 24 have not supported the case of prosecution. Mahazar Witnesses namely PW-16 /Subhash Honnanaik Patil, P.W- 17/Laxman Gangappa Naik, P.W18/Mallesh Basavanneppa Karennavar, P.W19/Nagappa Adeveppa Patteda, P.W27/Mallanaik Sanganaik Baganavar and P.W31/Honappa Yallappa Sattennavar also did not support the case of prosecution. P.W30 inquest mahazar witness has partly turned hostile to prosecution. The witnesses, who have supported the case of prosecution, can be described as under: (i) P.W.1the Complainant and P.Ws.2 to 5 and 32 are eye witnesses; (ii) P.Ws.25 and 26 are the inquest mahazar witnesses with regard to the deceased-Ratnavva; (iii) P.W.28 is the inquest mahazar witness with regard to the deceased- Siddlingappa; (iv) P.W29/Pundalik Bhimappa Wadeyar is the inquest mahazar witness with regard to the deceased Nagappa; (v) P.W33-Raju Nesargi is a seizure mahazar witness regarding seizure of motor cycle at the instance of Accused No.2 and Accused No.6; regarding seizure of an axe at the instance of Accused No.6 and two longs at the instance of Accused No2 (vi) P.Ws-13,38, P.Ws.40,41,45 and 48, are Police personnel who assisted the investing officers during investigation; (vii) 24 (viii) P.W-39/Ganapati is the PSI, who (ix) registered the case in Crime (x) No.72/2005 of Nesargi Police Station and submitted FIR (Ex.P40); P.W-44/Sharanappa and P.W47/Sonia Narang are the Investigating Officers; P.W-42/Dr. Pushpa H R-lady Medical Officer, who conducted autopsy over the deceased Ratnavva; and P.W.43/Dr.M.S.Hottigimatt is the Medical Officer who conducted autopsy over three the deceased persons namely, Siddalingappa, Nagappa and Mallappa.\n 13. The bone of contention of the defence is that as all the independent eye witnesses have not supported the case of prosecution, the trial Court erred in convicting the accused for the alleged offences solely on the basis of interested testimony of the witnesses who are related to deceased and the complainant. It is also contended that FIR was registered against 16 persons, but the Investigating Officer, has given up the accused viz., Accused Nos.7/Shivappa Chanabasappa Udakeri, Accused No.10/Raju Siddalingappa Konnanavar and Accused No.13/Siddalingappa Appanna Konnanavar mentioned in the FIR, and filed charge sheet adding three other persons, viz., accused No.9/Shankreppa Chanabasappa Udkeri, Accused No.11/Gowrawwa Nagappa Udkeri and accused No.13/Nagappa Chanabasappa Udkeri. It is also contended that in the FIR, there was no allegation against accused No.8/Irappa.\n 14. Now, we proceed to state as to relationship of the Accused among them and their age at the time of incident.\nAccused No.7/Chandranaik and his wife-accused No.10/Mallawwa were residing in the house nearby to the complainant. Accused No.2/Siddappa and Accused No.3/Sidlingappa are the children of Accused Nos.7 and 10.\n Accused No.14/Sakranaik and Accused No.15/Doddanaik are the younger brothers of Accused No.7. Accused No.13/Nagappa is the husband of Accused No.11/Gourawwa.\nAccused No.5/Rajshekhar, Accused No.9/Shankreppa and Accused No.12/Basavaneppa are brothers. Accused No.1/Sundresh and Accused No.8/Irappa are the sons of Accused No.12/Basavaneppa. Accused No.6/Bhagwant is the son of Accused No.13/Nagappa. Accused No.4/Kalmesh is the son of Accused No.9/Shankreppa. Accused No.10/Mallawwa is the sister of Accused No.5/Rajshekhar, Accused No.9/Shankreppa, Accused No.12/Basavanneppa and Accused No.13/Nagappa. Accused Nos.1 to 9 are aged about 28 years, 26 years, 24 years, 21 years, 38 years, 30 years, 51 years, 18 years and 53 years, respectively.\n 15. According to the case of prosecution, Accused No.1/Sundresh, Accused No.2/Siddappa, Accused No.5/Rajshekhar and 11/Gowravva were armed with axe. It is pertinent to mention that the weapon 'long' is called as 'kyota' in Kannada. 27 Accused No.3/Siddlingappa, Accused No.4/Kalmesh and Accused No.7/Chandranaik were armed with 'long'/'koyta. The alleged abettors namely Accused Nos.10 to 15 are aged about 44, 45, 56, 52, 57 and 48 years, respectively.\n 16. From the evidence of P.Ws.1,2,3,4,5 and 32, Accused No.1/Sundresh assaulted Ratnavva, Mallappa and Nagappa with an axe; Accused No.2 assaulted Ratnavva and Nagappa with a 'long'/koitha; Accused No.3 assaulted Siddlingappa and Mallappa with a 'long/koitha'; Accused No.4 assaulted Siddalingappa on the neck with a koitha/long; Accused No.5 assaulted Mallappa on the shoulder with an axe; Accused No.6 assaulted Nagappa on the head and back with an axe; Accused No.7 assaulted Mallappa on the face with a koyta/long; Accused No.8 assaulted Siddalingappa on the shoulder with an axe and Accused No.9 assaulted Ratnavva with an axe on the left hand and Siddalingappa on the left shoulder. It is in the evidence of the complainant/P.Ws.1, P.Ws.2,3,4,5 and 32 that Accused No.10/Mallawwa (wife of Accused No.7) abetted the commission of offence and also assaulted Siddalingappa on his forehead with a stone.\nFurther, A-11 to 15 instigated the accused kill PW.1-Suresh and PW.5-Maruthi. Charge sheet reveals that accused named in FIR namely Accused No.7/Shivappa Chanabasappa Udakeri, Accused No.10/Raju Siddalingappa Konnanavar and Accused No.13/Siddalingappa Appanna Konnanavar were given up while adding Accused No.9/Shankreppa Chanabasappa Udkeri, Accused No.11/Gourawwa Nagappa Udkeri and Accused No.13/Nagappa Chanabasappa Udkeri in the charge sheet.\nAccused Nos.9,12 and 13 are brothers. All the independent eye witnesses, viz., P.Ws.6 to 15, P.Ws.20 to 24 have not supported the case of prosecution for the reasons best known to them. Merely because those witnesses have not deposed in support of the prosecution, case of the prosecution cannot be rejected in toto. Therefore,the evidence of P.Ws.1, 2,3,4,5 and 32, who are the eye witnesses cum related to the complainant require to be scrutinized carefully. In our view, there is no strong ground to reject their evidence in toto for the following reasons.\n 17. P.W1-Suresh, aged about 28 years, is the husband of the deceased-Ratnavva and grand son of the deceased Siddalingappa and nephew of the deceased Nagappa and Mallappa. He has deposed in evidence that the deceased Siddalingappa had 8 sons and 2 daughters. P.W-1 has deposed that his father-Siddappa died about 14 years back prior to the incident and his senior uncle-Basappa and his father though living in the same house of Siddalingappa, they had separate mess; whereas other 6 sons including the deceased Mallappa and Nagappa were living together with Siddalingappa and they had a common mess.\nP.W2/Bhagawwa N Wadeyar is the sister of P.W1. Ulavappa Siddappa Wadeyar is the elder brother of P.W1. According to P.W-1, about 1 year prior to the incident, when P.W3/Kasturi (w/o P.W1's elder brother-Ulavappa Siddappa Wadeyar) had been to fetch water, Accused Nos.1 and 3 poured water and pulled her. She informed about the incident to her family members including deceased persons; they enquired with the Accused. Since then, Accused No.10/Mallawwa used to abuse the family members of the complainant, in vulgar language, whenever they went in front of her house; when P.W3/Kasturi was proceeding towards the land; Accused Nos.1 and 3 teased and abused her in vulgar language and also restrained her from proceeding further.\n She informed the incident to the family members. When they questioned the Accused, there was exchange of words. Again on 29.8.2005, at about 8.00 am, when the complainant was washing bullocks in front of his house, Accused No.10/Mallawwa, who was standing on the staircase of her house, teased him and threw slipper at him. Accused No.10 and Accused No.2 threatened him with dire consequences.\n Again, on 30.8.2005, at about 7.00 a m, when the complainant was going to attend nature's call, Accused Nos.1 to 9 were armed with long and axes etc., came along with other accused namely Accused Nos.10,11,12,13,14 and 15 and challenged the complainant and his family members and attempted to kill the complainant and his family members. It is the case of the prosecution that on 30.8.2005 at about 6.30 a.m., all the Accused started chasing the complainant; he made hue and cry and went in side his house. On hearing the hue and cry of Pw-1, his wife Ratnavva came to the entrance of their house and requested the Accused not to assault her husband-P.W.1, but Accused Nos.1, 2 and 9 assaulted her and killed at the entrance of her house. P.W1 has deposed that he was hearing and also watching the scene from inside the house. Thereafter, his grand father/Siddalingappa and uncles- Mallappa and Nagappa were proceeding towards Police Station to lodge a complain against the Accused and at that time Accused Nos.1 and 5 assaulted his uncle-Mallappa with axe and Accused Nos.3 and 7 with Koitha; Accused Nos.3 and 4 assaulted his grand father/Siddalingappa with koitha; whereas Accused Nos.8 and 9 assaulted Siddalingappa with an axe and Accused No.10 assaulted Siddalingappa with stone; his uncle- Nagappa was assaulted by Accused Nos.1 and 6 with an axe and Accused No.2 with long and within half an hour, the Accused killed four persons viz., his wife, uncles and grand father. It is in his evidence that after assaulting his wife Ratnavva, grandfather-Siddlingappa, uncles Nagappa and Mallappa, all the accused chased him and PW-5 Maruthi with an intention to kill them. PW.5-Maruthi escaped through Mallari Oni whereas he (PW-1) ran away from the village; 15 minutes later came to the spot and saw dead body of his wife, grandfather and uncles The evidence of P.W-1/complainant is corroborated by eye witnesses viz., P.W1's sister- P.W2/Bhagawwa N Wadeyar; P.W-1's elder brother's wife/P.W-4-Balawwa; his sister-in-law/P.W3-Kasturi N Wadeyar and his uncles P.W5/Maruti S Wadeyar and P.W- 32/Basappa S Wadeyar.\n 18. Now, we refer to the evidence of the Investigating Officer-Smt.Sonia Narang-PW.47 who was the Assistant Superintendent of Police at Bailhongal. It is in her evidence that on 2.9.2005, she took up further investigation and the Circle Inspector of Police at Bailhongal produced accused Nos.1 and 4 before her with a report and she arrested them and they gave voluntary statement as per Ext.P.62 and 63, respectively and produced a Scooter bearing No.KA 24/E 1908, which was used by the accused for escaping from the scene of crime. She seized the said Scooter under a panchanama in the presence of P.Ws.16 and 17 as per Ex.P12.\nFurther, she has seized axe (M.O-12), blue colour shirt (M.O- 47) and while lungi (M.O-48) at instance of Accused No.1 under a panchanama in the presence of the above-said panchas. Likewise she has seized one long (M.O-19), shirt (M.O-50) and black and yellow checks lungi (M.O-51) at the instance of Accused NO4, under a panchayama (Ex.P-13). She has further deposed that the CPI, Bailhongal, produced three accused persons viz., accused No.7/Chandranaik, accused No.3/Siddalingappa @ Mudakappa and accused No.5/Rajashekhar @ Gangappa before her on 10.9.2005 along with a report as per Ex.P-61. She has recorded voluntary statement of Accused NO.5 and accused No.7 as per Ex.P65; Ex.P66 respectively and recovered their clothes worn at the time of incident and weapons used in the commission of crime. She has deposed that on 16.9.2005, the ASI produced accused No.13/Nagappa Udakeri before her and she interrogated and produced him before the court for remand.\nShe received post mortem report. She has sent 47 sealed articles to FSL, Belgaum for chemical examination and filed charge sheet on 8.3.2006. The FSL report has been marked as Ex.P57. IN the cross-examination of P.W-47, she has deposed that since the complainant himself gave further statement stating that the other accused mentioned in the FIR did not commit any offence, they were given up. Nothing worthwhile is elicited in her cross-examination with regard to the evidence given before the trial Court. Ex.P-47/FSL report reveals that 47 articles were subjected to chemical analysis and all the articles except two articles viz., sample mud and lungi were stained with blood. Serology report has not been produced.\nEx.P.51-rough sketch of scene of crime, shows the place of crime and the place where the dead bodies were lying. All the star witnesses were cross-examined by the defence at length by learned counsel for the accused, but nothing worth while was elicited to disbelieve their oral evidence as to the role of the accused in the commission of crime. There is no major omissions and contradictions elicited in the cross-examination of the prosecution witnesses.\n 19. It is the case of prosecution that the Accused persons are powerful members of the community in the village and the independent witnesses have not supported the case of prosecution fearing the accused. It is alleged that Accused No.10 threw chappal at the complainant and instigated the Accused persons to kill the complainant and his family members and also assaulted on the fore head of the deceased Siddalingappa with a stone. It is a fact that wife of P.W.1 was killed by the said accused in front of her house and when Siddalingappa along with his two sons-Mallappa and Nagappa were proceeding through Asundi Oni to Police Station, to lodge a complaint, the Accused persons chased them and killed and the dead bodies were lying in the same lane one after another.\nThe dead bodies lying on the street can be seen in the photographs at Exs.P26 to 29, taken at the scene of crime.\nThough there is no mention in the complaint about the overt acts by Accused No.8, the evidence of the eye witnesses is sufficient to hold that all nine accused ( namely Nos.1 to 9), in pursuance of the common object and at the instigation of Accused No.10/Mallawwa, they have killed Ratnavva, Siddalingappa, Nagappa and Mallappa, within half an hour.\nNo doubt the name of Accused No.9/Shankreppa does not find a place in the FIR, but during the course of recording statement of the witnesses, he was arrested and according to the evidence of eye witnesses, Accused No.9 assaulted Ratnavva and Nagappa with an axe. The contention of the learned counsel for the accused that Accused No.9 was falsely implicated in the case falls to the ground. The prosecution has proved that all the above said four persons died an homicidal death. Evidence on record is sufficient to hold that Accused Nos.1 to 10, with a common object, Rantnavva, Siddalingappa, Mallappa and Nagappa were killed and also attempted to kill PW.1-Suresh and PW.5-Maruthi and hence the order of conviction recorded by the trial court for the offence punishable under section 302 (on four counts) and 307 (on two counts) read with section 149 of IPC, does not call for our interference. The evidence of the prosecution that accused No.11 to 15 abetted the crime is not sufficient to base conviction in the absence of cogent and satisfactory evidence and they are entitled for an order of an acquittal for all the offences alleged against them.\n 20. The trial Court has classified the case of murder as 'rarest of rare cases' and awarded death sentence to Accused Nos.1 to 9. Brutality is involved in every murder case.\nNumber of murders cannot be a ground to award death sentence. The facts to be considered for awarding death sentence are the magnitude and the manner and brutality. In the decision reported in 2003(7) SCC 141, supra, the Apex Court has held that \"It is true that the incident in question has prematurely terminated the life of twenty-one people and the number of deaths cannot be the sole criterion for awarding the maximum punishment of death.\" In the decision reported in (2011)10 SCC 389, supra, Apex Court has held that the appellant/Accused would not be a menace to society and no reason to believe that the appellant cannot be reformed or rehabilitated or would constitute a continued threat to society and it is not the `rarest of the rare case' causing for extreme penalty of death. In the decision reported in (2011)13 SCC 706, supra, the Apex Court has held that murder committed in a very brutal and inhuman fashion alone cannot justify death sentence and in the absence of any evidence to show that the appellant was a continuing threat to society or was beyond reform and rehabilitation, death sentence cannot be sustained.\nIn the case of Bachan Singh Vs. State of Punjab reported in (1980)2 SCC 684, the Constitution Bench of the Apex Court has held that \"for a person convicted of murder, life imprisonment is the rule and death sentence is an exception, and mitigating circumstances must be given due consideration and death sentence can be awarded only in the `rarest of rare cases' and for special reasons to be recorded.\" In the decision reported in 2012(4) SCC 289, supra, the Apex Court has held that by drawing balance sheet of aggravating and mitigating circumstances and examining them in the light of facts and circumstances of the case, concluded that this was not a case where extreme penalty of death be imposed upon the accused and therefore, death sentence awarded to the accused was commuted to one of life imprisonment of 21 years. In the above-said case i.e., Brijendrasingh's case, the Apex Court has given the cases falling under the category of aggravating and mitigating circumstances. The Apex Court has laid down the principles to determine whether this case falls within the scope of rarest of rare cases for imposition of death sentence.\nThe principles laid down by the Apex Court are as under: \" (i) The Court has to apply the test to determine, if it was the 'rarest of rare' case for imposition of a death sentence; (i) In the opinion of the court, imposition of any other punishment i.e., life imprisonment would be completely inadequate and would not meet the ends of justice; (ii) Life imprisonment is the rule and death sentence is an exception; (iii) The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant circumstances; and (iv) The method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.) in which the crime was committed and the circumstances leading to commission of such heinous crime.\"\n 21. Accused Nos.1 to 6 and 8 are aged between 18 and 38 years; whereas Accused Nos.7 and 9 are aged about 51 and 53 years. Keeping in view the above principles laid down by the Apex Court, we are of the considered view that death sentence awarded by the trial court is contrary to the principles laid down by the Apex Court.\n 22. Accordingly we answer the points for consideration partly in favour of the accused.\n 23. For the foregoing reasons, we pass the following order: I. Reference case in Crl. R.C. No 11 of 2009 is rejected.\n II. Appeal in Crl. A. No. 2516 of 2009 filed by accused No.1, 4 to 6, 8, 9 and Crl. A No. 2535 of 2009 filed by Accused No.2, 3, and 7 are rejected.\n III. Appeal in Crl. A. No.2516 of 2009 filed by Accused No.11,12 and 13 and Crl.A.No.2536 of 2009 filed by Accused No.14 and 15 are allowed and the impugned judgment of conviction and sentence recorded against them (accused No11 to 15) are set aside and they are acquitted of the offences alleged against them and they shall be set at liberty forthwith, if their presence is not required in any other case; IV. The impugned order of conviction recorded by the trial court as against the Accused Nos.1 to 10 for the offence punishable under Section 114, 143, 147, 148, 307 (on two counts), 504, 506, 302 r/w Section 149 of IPC, on four counts, is confirmed; V. The impugned order of sentence made against Accused Nos.1 to 10 for offences punishable under Section 114,143,147,148, 307 (on two counts), 504,506 read with section 149 is also confirmed.\n VI. Accused Nos.1 to 10 are sentenced to undergo imprisonment for life (21 years) and pay fine of `10,000/- each, on four counts, in default in payment of fine, to undergo imprisonment for a period of one year, for the offence punishable under Section 302 read with Section 114/149 of IPC; VII. All the substantive sentences shall run concurrently.\n VIII. Accused are entitled for set-off of the period of detention undergone by them under section 428 of Cr.P C.\n X. If the fine amount is recovered, a sum of `50,000/- shall be paid to P.W.1 towards the death of his wife; whereas a sum of `50,000/- shall be paid to the spouse of deceased Siddalingappa, Nagappa and Mallappa or their legal representatives, as the case may be, respectively, as compensation.\n XI. Accordingly the impugned judgment of conviction and sentence are modified.\n Sd/- JUDGE Sd/- JUDGE Bjs "
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{
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"id": "ec5e65782b1949e4a5445a2115ab5382",
"to_name": null,
"type": null,
"value": {
"end": 60,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nRAGHUBAR MANDAL HARIHAR MANDAL\n\nVs.\n\nRESPONDENT:"
}
},
{
"from_name": null,
"id": "76e599edaae94f598524a36d31ddc745",
"to_name": null,
"type": null,
"value": {
"end": 98,
"labels": [
"PREAMBLE"
],
"start": 60,
"text": "\nTHE STATE OF BIHAR\n\nDATE OF JUDGMENT:"
}
},
{
"from_name": null,
"id": "a3d41132935b411598aa95921f8777c4",
"to_name": null,
"type": null,
"value": {
"end": 109,
"labels": [
"PREAMBLE"
],
"start": 98,
"text": "\n22/05/1957"
}
},
{
"from_name": null,
"id": "c4966fa50da94ec284f3cccad041bdc3",
"to_name": null,
"type": null,
"value": {
"end": 628,
"labels": [
"PREAMBLE"
],
"start": 109,
"text": "\n\nBENCH:\nDAS, S.K.\nBENCH:\nDAS, S.K.\nBHAGWATI, NATWARLAL H.\nKAPUR, J.L.\n\nCITATION: 1958 SCR 37\n 1957 AIR 810\n\nACT:\nSales Tax-Assessee's accounts rejected as unreliable-Assess-\nment made on guess without reference to evidence or\nmaterialValidity-Bihar Sales Tax Act, 1944 (Bihar Act VI of\n1944),S.I0(2)(b)-Indian Income-tax Act, 1922 (XI Of 1922),\nS. 23(3).\n\nHEADNOTE:\nThe appellant filed the necessary returns, as required by\nthe provisions of the Bihar Sales Tax Act, 1944, and\nproduced the account books."
}
},
{
"from_name": null,
"id": "3891c88e3d984f06903be54ad0bce7f6",
"to_name": null,
"type": null,
"value": {
"end": 934,
"labels": [
"PREAMBLE"
],
"start": 629,
"text": "The Sales Tax Officer\nconsidered that the account books were not dependable and,\nafter rejecting them as well as the returns, proceeded to\nestimate the gross turnover by adopting a figure by pure\nguess, without reference to any evidence or material, and\nmade the assessment under s. 10 (2) (b) of the Act."
}
},
{
"from_name": null,
"id": "c8cb0354be4d467e8f420033cad5238a",
"to_name": null,
"type": null,
"value": {
"end": 1806,
"labels": [
"PREAMBLE"
],
"start": 934,
"text": "\nHeld, that under S. 1O (2) (b) of the Bihar Sales Tax Act,\n1944, a duty is imposed on the assessing authority to make\nthe assessment after hearing such evidence as the assessee\nmay produce and such other evidence as the assessing\nauthority may require on specified points, and, in case the\nreturns of the assessee and his books of account are\nrejected, the assessing authority must make an estimate, but\nthis must be based on such evidence or material as the\nassessing authority has before him, including the assessee's\ncircumstances, knowledge of previous returns and all other\nmatters which the assessing authority thinks will assist him\nin arriving at a fair and proper estimate.\nDhakeswari Cotton Mills Ltd. v. Commissioner of Income Tax,\nWest Bengal, (1955) 1 S.C.R. 941 and Income-tax Commissioner\nv. Badridas Ramrai Shop, Akola, (1937) L.R. 64 I.A. 102,\nrelied on."
}
},
{
"from_name": null,
"id": "687339257f5a465ba7556d449d852b3e",
"to_name": null,
"type": null,
"value": {
"end": 1817,
"labels": [
"PREAMBLE"
],
"start": 1806,
"text": "\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "a215250e03d74fc494cde08e89a736a2",
"to_name": null,
"type": null,
"value": {
"end": 1877,
"labels": [
"NONE"
],
"start": 1817,
"text": "\nCIVIL APPELLATE JURISDICTION: Civil Appeal No.\n249 of 1954."
}
},
{
"from_name": null,
"id": "cd5012da7cf64bfe80c1d258ef34b45b",
"to_name": null,
"type": null,
"value": {
"end": 2045,
"labels": [
"NONE"
],
"start": 1877,
"text": "\nAppeal by special leave from the judgment and order dated January 8, 1952, of the Patna High Court in Misc. Judicial Cases Nos. 13, 14, 15, 16, 17, 18 and 19 -of 1949."
}
},
{
"from_name": null,
"id": "bf6011008946414b8f5eb769b327d70c",
"to_name": null,
"type": null,
"value": {
"end": 2094,
"labels": [
"NONE"
],
"start": 2045,
"text": "\nBhawani Lal and K. L. Mehta, for the appellants."
}
},
{
"from_name": null,
"id": "366eceab061b40a296a3975529ff3a18",
"to_name": null,
"type": null,
"value": {
"end": 2157,
"labels": [
"NONE"
],
"start": 2094,
"text": "\nL.K. Jha, B. K. P. Sinha and R. C. Prasad, for the respondent."
}
},
{
"from_name": null,
"id": "02efe32961d94ad9abcce029234d6715",
"to_name": null,
"type": null,
"value": {
"end": 2163,
"labels": [
"NONE"
],
"start": 2157,
"text": "\n1957."
}
},
{
"from_name": null,
"id": "c36ac8e16dd340c4b1d563fd45fe2450",
"to_name": null,
"type": null,
"value": {
"end": 2171,
"labels": [
"NONE"
],
"start": 2164,
"text": "May 22."
}
},
{
"from_name": null,
"id": "b7017e692e8345cd9b7f8d2d45595fb9",
"to_name": null,
"type": null,
"value": {
"end": 2227,
"labels": [
"NONE"
],
"start": 2172,
"text": "The Judgment of the Court was delivered by S.K. DAS J.-"
}
},
{
"from_name": null,
"id": "b5fc1ee3388b419082a1ac31c0eb6382",
"to_name": null,
"type": null,
"value": {
"end": 2443,
"labels": [
"FAC"
],
"start": 2227,
"text": "The appellant Messrs. Raghubar Mandal Harihar Mandal, hereinafter referred to as the assessee, is a firm of bullion dealers carrying on its business at Laheriasarai in the district of Darbhanga in the State of Bihar."
}
},
{
"from_name": null,
"id": "4584132a60d04d74bd22fbe3a8dc6987",
"to_name": null,
"type": null,
"value": {
"end": 2646,
"labels": [
"FAC"
],
"start": 2444,
"text": "The assessee was assessed to sales tax for seven quarters ending December 31, 1945, March, 31, 1946, June 30, 1946, September 30, 1946, December 31, 1946, March 31, 1947 and June 30, 1947, respectively."
}
},
{
"from_name": null,
"id": "b7ae922d8efa4f6eb6036d4a53545ccd",
"to_name": null,
"type": null,
"value": {
"end": 3065,
"labels": [
"FAC"
],
"start": 2647,
"text": "For three of the aforesaid quarters, namely those ending on December 31, 1945, March 31, 1947 and June 30, 1947, the assessee failed to file the necessary returns as required by the provisions of the Bihar Sales Tax Act, 1944 (hereinafter referred to as the Act), which was the Act in force during the material period; therefore, the assessee was assessed for those three quarters under sub-s.\n(4) of s. 10 of the Act."
}
},
{
"from_name": null,
"id": "6ad8948698e346f888843c2427a72a2a",
"to_name": null,
"type": null,
"value": {
"end": 3129,
"labels": [
"FAC"
],
"start": 3066,
"text": "For the remaining four quarters, the assessee did file returns."
}
},
{
"from_name": null,
"id": "72f1b56cbc21423fbdced7c4e0bfffab",
"to_name": null,
"type": null,
"value": {
"end": 3327,
"labels": [
"FAC"
],
"start": 3130,
"text": "The Sales Tax Officer rejected those returns as also the books of account filed by the assessee for all the seven quarters and assessed the assessee under el. (b) of sub-s. (2) of s. 10 of the Act."
}
},
{
"from_name": null,
"id": "8f36ee0a8fb342ee9208da823573f4a5",
"to_name": null,
"type": null,
"value": {
"end": 3452,
"labels": [
"FAC"
],
"start": 3328,
"text": "The Sales Tax Officer passed separate orders assessing the tax for all the seven quarters simultaneously on October 9, 1947."
}
},
{
"from_name": null,
"id": "7e9a42496bb04616a492bbd3a07231e7",
"to_name": null,
"type": null,
"value": {
"end": 3770,
"labels": [
"FAC"
],
"start": 3453,
"text": "He assessed the tax on a taxable turnover of Rs.\n2,94,000 for each of the five quarters ending December 31, 1945, March 31, 1946, September 30, 1946, December 31, 1946 and March 31, 1947; for the other two quarters ending on June 30, 1946, and June 30, 1947, he assessed the tax on a taxable turnover of Rs. 3,92,000."
}
},
{
"from_name": null,
"id": "d86043c0507e4baab1889f514a6cb5f6",
"to_name": null,
"type": null,
"value": {
"end": 3940,
"labels": [
"FAC"
],
"start": 3771,
"text": "The assessee then moved in appeal the Commissioner of Commercial Taxes, Tirhut Division, but the Commissioner dismissed the appeals by his order dated February 23, 1948."
}
},
{
"from_name": null,
"id": "b271fa83c9fa4e94aa0c848c04da273d",
"to_name": null,
"type": null,
"value": {
"end": 4059,
"labels": [
"FAC"
],
"start": 3941,
"text": "The Board of Revenue was then moved in revision but, by its order dated July 31, 1948, the Board refused to interfere."
}
},
{
"from_name": null,
"id": "6a2560a65cfa4889a219d24937c3d221",
"to_name": null,
"type": null,
"value": {
"end": 4377,
"labels": [
"FAC"
],
"start": 4060,
"text": "The Board expressedthe view that the finding of the Sales Tax Officer and the Commissioner that the books of account maintained by the assessee were not dependable was a finding of fact which could not be interfered with in revision ; -therefore the assessing officer was bound to assess to' the best of his judgment."
}
},
{
"from_name": null,
"id": "0d85e0d3f255490f84e0e948239cad7e",
"to_name": null,
"type": null,
"value": {
"end": 4541,
"labels": [
"FAC"
],
"start": 4378,
"text": "The Board was then moved under s. 21 of the Act to refer certain questions of law to the High Court of Patna which, the assessee contended, arose out of its order."
}
},
{
"from_name": null,
"id": "d862845f193b41d8857c66e730e2af4a",
"to_name": null,
"type": null,
"value": {
"end": 4795,
"labels": [
"FAC"
],
"start": 4542,
"text": "By its order dated December 10, 1948, the Board rejected the applications for making a reference to the High Court on the same ground, namely, that no question of law was involved and the assessment orders were concluded by a concurrent finding of fact."
}
},
{
"from_name": null,
"id": "33efa87133e94a3d9cd2cb2241f9d02d",
"to_name": null,
"type": null,
"value": {
"end": 5226,
"labels": [
"RLC"
],
"start": 4796,
"text": "The assessee then moved the High Court and by its order dated April 27, 1949, passed in Miscellaneous Judicial Cases Nos. 13 to 19 of of 1949, the High Court directed the Board of Revenue to state a case on the following question: \" Whether the Sales Tax.Officer is entitled under section 10(2)(b) of the Act to make an assessment on any figures of gross turnover without giving any basis to justify the adoption of that figure ?\""
}
},
{
"from_name": null,
"id": "1b1547f75a3d4127aed0d04094f997f8",
"to_name": null,
"type": null,
"value": {
"end": 5406,
"labels": [
"RLC"
],
"start": 5226,
"text": "\nThe Board of Revenue then stated a case, and the High Court disposed of the reference by answering the question in the affirmative by its judgment and order dated January 8, 1952."
}
},
{
"from_name": null,
"id": "5fbb7ef1005b447b8f90867d9529fb7e",
"to_name": null,
"type": null,
"value": {
"end": 5530,
"labels": [
"FAC"
],
"start": 5406,
"text": "\nThe assessee then moved this Court and obtained special leave to appeal from the said judgment and order of the High Court."
}
},
{
"from_name": null,
"id": "7b1b951ec25d4db58585369c252c97f7",
"to_name": null,
"type": null,
"value": {
"end": 5653,
"labels": [
"ANALYSIS"
],
"start": 5530,
"text": "\n The main contention of the assessee is that the High Court has not correctly answered the question of law referred to it."
}
},
{
"from_name": null,
"id": "4c89deda861d480183a7f73904138861",
"to_name": null,
"type": null,
"value": {
"end": 5828,
"labels": [
"ANALYSIS"
],
"start": 5654,
"text": "Before we proceed to consider this contention of the assessee, it is necessary to clear the ground by delimiting the precise scope of the question referred to the High Court."
}
},
{
"from_name": null,
"id": "c794ff1220a34fcca3a1ac5bafe6c9a9",
"to_name": null,
"type": null,
"value": {
"end": 6247,
"labels": [
"ANALYSIS"
],
"start": 5829,
"text": "It is well settled that the jurisdiction of the High Court in the' matter of incometax references is an advisory jurisdiction and under the Income-tax Act the decision of the Tribunal on facts is final, unless it can be successfully assailed on the ground that there was no evidence for the conclusion on facts recorded by the Tribunal or the conclusion was such as no reasonable body of persons could have arrived at."
}
},
{
"from_name": null,
"id": "6a969a8080a14859838e6ec712b5726a",
"to_name": null,
"type": null,
"value": {
"end": 6448,
"labels": [
"ANALYSIS"
],
"start": 6247,
"text": "It is also well settled that the dutyof the High Court is to start with the statement of the case as the final statement of the facts and to answer the question of law with reference to that statement."
}
},
{
"from_name": null,
"id": "e9a1c1f322aa432db5ecb4d289559941",
"to_name": null,
"type": null,
"value": {
"end": 6714,
"labels": [
"ANALYSIS"
],
"start": 6449,
"text": "The provisions of the Indian Income-tax Act are in pari materia with the provisions of the Act under our consideration, the main scheme of the relevant provisions of the two Acts being similar in nature, though the wording of the provisions is not exactly the same."
}
},
{
"from_name": null,
"id": "d0b0f0f5f54249c6a4509090d580b90a",
"to_name": null,
"type": null,
"value": {
"end": 7066,
"labels": [
"STA"
],
"start": 6715,
"text": "Under s. 21 of the Act, the High Court exercises a similar advisory jurisdiction, and under sub-s. (3) of that section, the High Court may require the Board of Revenue to state a case and refer it to the High Court, when the High Court is satisfied that the refusal of the Board to make a reference to the High Court under sub-s.\n(2) is not justified."
}
},
{
"from_name": null,
"id": "8ba4d874671249c98f4ad2d50ac01b18",
"to_name": null,
"type": null,
"value": {
"end": 7225,
"labels": [
"STA"
],
"start": 7067,
"text": "Under sub-s. (5) of s. 21 the High Court hears the reference and decides the question of law referred to it, giving in a judgment the grounds of its decision."
}
},
{
"from_name": null,
"id": "ab093b35b9554178a1870047134f02f5",
"to_name": null,
"type": null,
"value": {
"end": 7494,
"labels": [
"ANALYSIS"
],
"start": 7226,
"text": "In the case under our consideration, the question which was referred to the High Court related to the assessments made under s. 10(2)(b) of the Act; in other words, the question related to those four quarters only for which the assessments were made under s. 10(2)(b)."
}
},
{
"from_name": null,
"id": "2b5e4bd9dcac4801b928fa1d67972e20",
"to_name": null,
"type": null,
"value": {
"end": 7641,
"labels": [
"ANALYSIS"
],
"start": 7495,
"text": "The question did not relate to the three quarters for which the assessee had filed no returns and assessments were made under s. 10(4) of the Act."
}
},
{
"from_name": null,
"id": "5f27470c423e4a6e8000b4dfcdc9fcf2",
"to_name": null,
"type": null,
"value": {
"end": 7893,
"labels": [
"ANALYSIS"
],
"start": 7642,
"text": "At one place in its judgment, the High Court referred to a slight inaccuracy in the question framed, but it did not reframe the question so as to widen its scope and include the three quarters for which assessments were made under s. 10(4) of the Act."
}
},
{
"from_name": null,
"id": "a86a5e761b8d4d9f8a16dfde893103f0",
"to_name": null,
"type": null,
"value": {
"end": 8056,
"labels": [
"ANALYSIS"
],
"start": 7894,
"text": "The question, as it stood and as it was answered by the High Court, did not relate to the propriety or legality of the assessments made under s. 10(4) of the Act."
}
},
{
"from_name": null,
"id": "e5b121d7a6bc41eaabf68a7c6d551262",
"to_name": null,
"type": null,
"value": {
"end": 8300,
"labels": [
"ANALYSIS"
],
"start": 8057,
"text": "We must, therefore, make it clear at the very outset that the question relates to those four quarters only for which assessments were made under s. 10(2)(b) of the Act, and the answer given to the question will govern those four quarters only."
}
},
{
"from_name": null,
"id": "a4b27df8e64945f288712063a6cdb4bb",
"to_name": null,
"type": null,
"value": {
"end": 8448,
"labels": [
"ANALYSIS"
],
"start": 8301,
"text": "Having thus indicated the precise scope of the question referred to the High Court, we proceed now to consider the main contention of the assessee."
}
},
{
"from_name": null,
"id": "0d33099f294c431cb5937ce2b55d2632",
"to_name": null,
"type": null,
"value": {
"end": 8544,
"labels": [
"ANALYSIS"
],
"start": 8449,
"text": "We must first read the relevant provisions of the statuteunder which the assessments were made."
}
},
{
"from_name": null,
"id": "a4618b9ad68646359e08b8a6724f78ce",
"to_name": null,
"type": null,
"value": {
"end": 8882,
"labels": [
"STA"
],
"start": 8545,
"text": "Sub-section (1) of s. 10 of the Act states that if the Commissioner is satisfied without requiring the presence of a registered dealer or the production by him of any evidence that the returns furnished in respect of any period are correct and complete, he shall assess the amount of tax due from the dealer on the basis of such returns."
}
},
{
"from_name": null,
"id": "1c3ac1a92dce420e8b8c9c74adbba305",
"to_name": null,
"type": null,
"value": {
"end": 9416,
"labels": [
"STA"
],
"start": 8883,
"text": "Clause (a) of sub-s.\n(2) states what the Commissioner shall do, if he is not satisfied without requiring the presence of a registered dealer who furnished the returns or production of evidence that the returns furnished in respect of any period are correct and complete; the clause states that in that event the Commissioner shall serve on the dealer a notice in the prescribed manner requiring him either to attend in person or to produce or cause to be produced any evidence on which such dealer may rely in support of his returns."
}
},
{
"from_name": null,
"id": "f96ae533efa54cd8aa86b9d7b9bf08af",
"to_name": null,
"type": null,
"value": {
"end": 9759,
"labels": [
"STA"
],
"start": 9417,
"text": "Then comes cl. (b) of sub-s. (2) which must be quoted in extenso: \" (b) On the day specified in the notice or as soon afterwards as may be, the Commissioner, after hearing such evidence as the dealer may produce, and such other evidence as the Commissioner may require on specified points, shall assess the amount of tax due from the dealer.\""
}
},
{
"from_name": null,
"id": "74c584ba673b4593ab20f03fc006d46f",
"to_name": null,
"type": null,
"value": {
"end": 9855,
"labels": [
"ANALYSIS"
],
"start": 9759,
"text": "\nThese provisions are similar to the provisions contained in s. 23 of the Indian Income-tax Act."
}
},
{
"from_name": null,
"id": "b11bb4f55ee24deeac67999c78ad02d9",
"to_name": null,
"type": null,
"value": {
"end": 10250,
"labels": [
"ANALYSIS"
],
"start": 9856,
"text": "Sub-section (1) of s.\n10 of the Act corresponds to sub-s. (1) of s. 23 of the Indian Income-tax Act; clause (a) of sub-s. (2) of s. 10 of the Act corresponds to sub-s. (2) of s. 23 of the Indian Income-tax Act; and clause (b) of sub-s. (2) of S. 10 of the Act corresponds to sub-s. (3) of s. 23 of the Indian Income- tax Act, though there are some verbal differences between the two provisions."
}
},
{
"from_name": null,
"id": "57a4f4ff7d984170a68dc51cdfd2a57f",
"to_name": null,
"type": null,
"value": {
"end": 10658,
"labels": [
"STA"
],
"start": 10251,
"text": "Sub-section (3) of s. 23 of the Indian Income-tax Act requires the Income-tax Officer to assess the total income of the assessee and determine the sum payable by him on the basis of such assessment, by \"an order in writing\"; but cl. (b) of sub-s. (2) of s. 10 of the Act requires the Commissioner to assess the amount of tax due from the dealer and does not impose any liability as to \"an order in writing.\""
}
},
{
"from_name": null,
"id": "7e8cb74f611d4298a11708b7d190db1e",
"to_name": null,
"type": null,
"value": {
"end": 10935,
"labels": [
"ANALYSIS"
],
"start": 10659,
"text": "In spite of these differences, thetwo provisions are substantially the same and impose on the assessing authority a duty to assess the tax after hearing such evidence as the dealer may produce and such other evidence as the assessing authority may require on specified points."
}
},
{
"from_name": null,
"id": "044cd4c9139949219084e87a35663e14",
"to_name": null,
"type": null,
"value": {
"end": 11178,
"labels": [
"ISSUE"
],
"start": 10935,
"text": "\nThe point for our consideration is-can the assessing authority, purporting to act under s. 10(2)(b) of the Act, assess the amount of tax due from a dealer more or less arbitrarily or without basing the assessment on any materials whatsoever ?"
}
},
{
"from_name": null,
"id": "eaf2c9c10c0f490c885cb4cac5d61851",
"to_name": null,
"type": null,
"value": {
"end": 11364,
"labels": [
"ANALYSIS"
],
"start": 11179,
"text": "In the question referred to the High Court, the expression used is, \"make an assessment on any figure of gross turnover without giving any basis to justify the adoption of that figure\"."
}
},
{
"from_name": null,
"id": "b78a755c7ea44f72b7c9cb51a1b67ece",
"to_name": null,
"type": null,
"value": {
"end": 11643,
"labels": [
"ANALYSIS"
],
"start": 11365,
"text": "That expression is perhaps a little ambiguous, but read in the context of the statement of the case, the question can only mean this: can the assessing authority adopt a figure of gross turnover by pure guess and without referring to any materials on which the figure is based ?"
}
},
{
"from_name": null,
"id": "04d18d22330a498d97ac4f5bf68c2ec9",
"to_name": null,
"type": null,
"value": {
"end": 11747,
"labels": [
"ANALYSIS"
],
"start": 11644,
"text": "It is clear to us that, understood in that sense, the High Court has answered the question incorrectly."
}
},
{
"from_name": null,
"id": "a438c8cfdd6d49659bd56b64c75642ad",
"to_name": null,
"type": null,
"value": {
"end": 11896,
"labels": [
"ANALYSIS"
],
"start": 11748,
"text": "The High Court went into an elaborate consideration, by way of comparison and contrast, of sub-s.\n(4) and el. (b) of sub-s. (2) of s. 10 of the Act."
}
},
{
"from_name": null,
"id": "e8ab29ede9994799917316c800a1c822",
"to_name": null,
"type": null,
"value": {
"end": 12221,
"labels": [
"ANALYSIS"
],
"start": 11897,
"text": "It is unnecessary for us to make any pronouncement in this appeal with regard to the precise scope of sub-s. (4) of s. 10 of the Act, which corresponds more or less to sub-s. (4) of s.\n23 of the Indian Income-tax Act; nor is it necessary for us to decide if an assessment made under el. (b) of sub-s. (2) of s. 10 of the Act"
}
},
{
"from_name": null,
"id": "6d266cbfdf17478399186c155e8714ea",
"to_name": null,
"type": null,
"value": {
"end": 12414,
"labels": [
"ANALYSIS"
],
"start": 12221,
"text": ", when the account books of the assessee are disbelieved, stands exactly on the same footing as an assessment made under sub-s. (4) of s. 10 when the assessee has failed to furnish his returns."
}
},
{
"from_name": null,
"id": "0e10a8234cd24f9cb881ff7c19c64cda",
"to_name": null,
"type": null,
"value": {
"end": 12622,
"labels": [
"ANALYSIS"
],
"start": 12415,
"text": "In some decisions relating to the corresponding provisions of the Indian Income-tax Act, it has been said that the difference between the two is one of degree only, the one being more summary than the other."
}
},
{
"from_name": null,
"id": "125fc69700de41e6970cc84111e17ab1",
"to_name": null,
"type": null,
"value": {
"end": 12810,
"labels": [
"ANALYSIS"
],
"start": 12623,
"text": "These are questions which do not really fall for decision in the present appeal, which is confined to interpreting the true nature and scope of el. (b) of sub- s. (2) of s. 10 of the Act."
}
},
{
"from_name": null,
"id": "7dab038ba121469593c5bddbf4f1d94e",
"to_name": null,
"type": null,
"value": {
"end": 12994,
"labels": [
"ANALYSIS"
],
"start": 12811,
"text": "With regard to the corresponding provision in sub-s. (3) of s. 23 of the Indian Income-tax Act, there is a decision of thisCourt which, in our opinion, answers the question before us."
}
},
{
"from_name": null,
"id": "f536137b57e04c4993be02623e2836c5",
"to_name": null,
"type": null,
"value": {
"end": 13094,
"labels": [
"PRE_RELIED"
],
"start": 12994,
"text": "\nThe decision is that of Dhakeswari Cotton Mills Ltd. v.\nCommissioner of Income Tax, West Bengal(1)."
}
},
{
"from_name": null,
"id": "ce28daea06a243928bd074fe24972e83",
"to_name": null,
"type": null,
"value": {
"end": 13682,
"labels": [
"PRE_RELIED"
],
"start": 13095,
"text": "This Court observed: \"As regards the second contention, we are in entire agreement with the learned Solicitor-General when he says that the Income-tax Officer is not fettered by technical rules of evidence and pleadings, and that he is entitled to act on material which may not be accepted as evidence in a Court of law, but there the agreement ends; because it is equally clear that in making the assessment under sub-s. (3) of s. 23 of the Act, the Income-tax Officer is not entitled to make a pure guess and make an assessment without reference to any evidence or any material at all."
}
},
{
"from_name": null,
"id": "274fc91a46a54a71b39bb8896e312ee0",
"to_name": null,
"type": null,
"value": {
"end": 13774,
"labels": [
"PRE_RELIED"
],
"start": 13683,
"text": "There must be something more than bare suspicion to support the assessment under s. 23(3).\""
}
},
{
"from_name": null,
"id": "094e2cba9e5e44528e377f3a7ff3b5f0",
"to_name": null,
"type": null,
"value": {
"end": 13906,
"labels": [
"ANALYSIS"
],
"start": 13774,
"text": "\nIn our view, the aforesaid observations clearly show that the High Court was in error in answering the question in the affirmative."
}
},
{
"from_name": null,
"id": "d84048ff6a794147823e99e3b952ba4a",
"to_name": null,
"type": null,
"value": {
"end": 14136,
"labels": [
"ANALYSIS"
],
"start": 13907,
"text": "Firstly, the High Court treated the question referred to it as a pure question of fact; if that were so, then the High Court should have rejected the reference on the ground that it was not competent to answer a question of fact."
}
},
{
"from_name": null,
"id": "4478cd95df4e4d97b5b976fe78713c39",
"to_name": null,
"type": null,
"value": {
"end": 14412,
"labels": [
"ANALYSIS"
],
"start": 14137,
"text": "Then, the High Court proceeded to consider certain decisions relating to the interpretation of sub-ss. (3) and (4) of s. 23 of the Indian Income-tax Act, and held that there was no difference between an assessment under sub-s.\n(3) and an assessment under sub-s. (4) of s. 23."
}
},
{
"from_name": null,
"id": "755ea04b71744f2387ba3e20e8c1301d",
"to_name": null,
"type": null,
"value": {
"end": 14669,
"labels": [
"ANALYSIS"
],
"start": 14413,
"text": "The High Court applied the same analogy and on that footing held that there being no difference between an assessment under cl.\n(b) of sub-s. (2) and an assessment under sub-s. (4) of s.\n10 of the Act, the answer to the question must be in the affirmative."
}
},
{
"from_name": null,
"id": "e708df10e5614ee3a35c9551da5d3c9d",
"to_name": null,
"type": null,
"value": {
"end": 14892,
"labels": [
"ANALYSIS"
],
"start": 14670,
"text": "In our view, the approach of the High Court to the question referred to it was erroneous and the answer given to the question by it solely on the basis of sub-s.\n(4) of s. 10 of the Act was vitiated by that wrong approach."
}
},
{
"from_name": null,
"id": "29cb295e8a7d43debff291e7c1510734",
"to_name": null,
"type": null,
"value": {
"end": 15063,
"labels": [
"ANALYSIS"
],
"start": 14892,
"text": "\nIt was not sub-s. (4) of s. 10 of the Act which the High Court had to consider; it had to consider the true scope and effect of cl. (b) of sub-s. (2) of s. 10 of the Act."
}
},
{
"from_name": null,
"id": "28414a19363440bf8ea88f3a7a934d66",
"to_name": null,
"type": null,
"value": {
"end": 15209,
"labels": [
"ARG_RESPONDENT"
],
"start": 15063,
"text": "\n(1) [1955] 1 S.C.R. 941, 949.Learned counsel for the respondent has strongly urged two points in support of the answer which the High Court gave."
}
},
{
"from_name": null,
"id": "34a221dad5d74dfc83d120f7bb65ae75",
"to_name": null,
"type": null,
"value": {
"end": 15630,
"labels": [
"ARG_RESPONDENT"
],
"start": 15209,
"text": "\nFirstly, he has contended that, on a proper reading of the assessment orders and the orders of the Commissioner, it would appear that the gross turnover for the quarters in question was based on certain materials; therefore, the argument of learned counsel is that it is not correct to say that the figure of gross turnover was arbitrarily adopted or was adopted without reference to any evidence or any material at all."
}
},
{
"from_name": null,
"id": "c3bf69e1c8514a388f924fb524616642",
"to_name": null,
"type": null,
"value": {
"end": 15728,
"labels": [
"ARG_RESPONDENT"
],
"start": 15631,
"text": "We have examined the assessment orders in question, which form part of the statement of the case."
}
},
{
"from_name": null,
"id": "fbb2801662ad424ea920a2475cf76f9d",
"to_name": null,
"type": null,
"value": {
"end": 15945,
"labels": [
"ANALYSIS"
],
"start": 15729,
"text": "It is clear to us that what the Sales Tax Officer and the Commissioner did was to hold, for certain reasons, that the returns made by the assessee and the books of account filed by it were incorrect and undependable."
}
},
{
"from_name": null,
"id": "121e4aa2fa0247a5b16dbe4a376c196a",
"to_name": null,
"type": null,
"value": {
"end": 16136,
"labels": [
"ANALYSIS"
],
"start": 15946,
"text": "It is not necessary to repeat those reasons, because we must accept the finding of fact arrived at by the assessing authorities that the returns and the books of account were not dependable."
}
},
{
"from_name": null,
"id": "a45437b05ebd468f831f777b62093721",
"to_name": null,
"type": null,
"value": {
"end": 16573,
"labels": [
"ANALYSIS"
],
"start": 16137,
"text": "The assessing authorities rightly pointed out that several transactions were not entered in the books of account; and a surprise inspection made on July 15, 1947, disclosed certain transactions with a Bombay firm known as Messrs. Kishundas Lekhraj, which were not mentioned in the books of account; and finally, the assessee Was importing silver in the name of five confederates in order to suppress the details of the transactions etc."
}
},
{
"from_name": null,
"id": "cfd9c369e55c4aa4848ea9bee3552ff1",
"to_name": null,
"type": null,
"value": {
"end": 16870,
"labels": [
"ANALYSIS"
],
"start": 16574,
"text": "The assessing authorities further pointed out that there was a discrepancy between the return filed for the quarter ending June 30, 1946, and the accounts filed in support of it; the return showed a gross turnover of Rs.\n2,28,370-12-0 while the accounts revealed a gross turnover of Rs. 1,48,204."
}
},
{
"from_name": null,
"id": "974bbf4272384171b4787ad49b14d2ea",
"to_name": null,
"type": null,
"value": {
"end": 16907,
"labels": [
"ANALYSIS"
],
"start": 16871,
"text": "All these we must accept as correct."
}
},
{
"from_name": null,
"id": "6616eaf65466458199a135b71b619724",
"to_name": null,
"type": null,
"value": {
"end": 17029,
"labels": [
"ANALYSIS"
],
"start": 16907,
"text": "\nHaving rejected the returns and the books of account, the assessing authorities proceeded to estimate the gross turnover."
}
},
{
"from_name": null,
"id": "691a6eff0ef14222b1dd0976e871ec23",
"to_name": null,
"type": null,
"value": {
"end": 17110,
"labels": [
"ANALYSIS"
],
"start": 17030,
"text": "In so estimating the gross turnover, they did not refer to any materials at all."
}
},
{
"from_name": null,
"id": "c210a4f628ce4c5d9170c9ce0a009608",
"to_name": null,
"type": null,
"value": {
"end": 17236,
"labels": [
"ANALYSIS"
],
"start": 17111,
"text": "On the contrary, they indulged in a pure guess and adopted a figure without reference to any evidence or any material at all."
}
},
{
"from_name": null,
"id": "29b5e1911a454249ad49d99ee68f02be",
"to_name": null,
"type": null,
"value": {
"end": 17324,
"labels": [
"ANALYSIS"
],
"start": 17237,
"text": "Let us take, for example, the assessment order for the quarter ending June 30, 1946.The"
}
},
{
"from_name": null,
"id": "6c8e122a38924812a75098616c906041",
"to_name": null,
"type": null,
"value": {
"end": 17427,
"labels": [
"ANALYSIS"
],
"start": 17325,
"text": "Sales Tax Officer said: \"I reject the dealer's accounts and estimate a gross turnover of Rs. 4,00,000."
}
},
{
"from_name": null,
"id": "1a3d72b765cf4c85b4bea906cde72a21",
"to_name": null,
"type": null,
"value": {
"end": 17532,
"labels": [
"ANALYSIS"
],
"start": 17428,
"text": "1 allow a deduction at 2% on the turnover and assess him on Rs.\n3,92,000 to pay sales tax of Rs. 6,125.\""
}
},
{
"from_name": null,
"id": "1fba1a3424c842139feacaa64f5d2092",
"to_name": null,
"type": null,
"value": {
"end": 17762,
"labels": [
"ANALYSIS"
],
"start": 17533,
"text": "For the quarter ending on September 30, 1946, the Sales Tax Officer said: \"I reject his irregular account and estimate a gross turnover of Rs. 3,00,000 for the quarter and assess him on Rs.\n2,94,000 to pay tax of Rs. 4,593-12-0.\""
}
},
{
"from_name": null,
"id": "2c8357faf3bd4a17b8aa48d991ebc3c5",
"to_name": null,
"type": null,
"value": {
"end": 18073,
"labels": [
"ANALYSIS"
],
"start": 17763,
"text": "These and similar orders do not show that the assessment was made with reference to any evidence or material; on the contrary, they show that having rejected the books of account, the assessing authorities indulged in -pure guess and made an assessment without reference-to any evidence or any material at all."
}
},
{
"from_name": null,
"id": "93f895052d05480abacd98eb71fcdf0d",
"to_name": null,
"type": null,
"value": {
"end": 18177,
"labels": [
"ANALYSIS"
],
"start": 18074,
"text": "This the assessing authorities were not entitled to do under cl. (b) of sub.s. (2) of s. 10 of the Act."
}
},
{
"from_name": null,
"id": "f7f0f93c35ba4c5ba4c4769f9a3e533b",
"to_name": null,
"type": null,
"value": {
"end": 18452,
"labels": [
"ARG_RESPONDENT"
],
"start": 18177,
"text": "\nSecondly, learned counsel for the respondent has referred us to several decisions on which the High Court relied and has argued that on the basis of those decisions, it must be held that the answer given by the High Court to the question referred to it was a correct answer."
}
},
{
"from_name": null,
"id": "6755fd521d2e4d939114f797166abb26",
"to_name": null,
"type": null,
"value": {
"end": 18651,
"labels": [
"ANALYSIS"
],
"start": 18453,
"text": "We propose to examine briefly some of those decisions, though, as we have stated earlier, the question is really answered by the observations made by this Court in Dhakeswari Cotton Mills' case (1)."
}
},
{
"from_name": null,
"id": "ed061f9d08b94817819aee8b61106aed",
"to_name": null,
"type": null,
"value": {
"end": 18764,
"labels": [
"PRE_RELIED"
],
"start": 18651,
"text": "\nThe first decision is the Privy Council decision in Income- tax Commissioner v. Badridas Ramrai Shop, Akola (2)."
}
},
{
"from_name": null,
"id": "06aa409cc2de494eacc75d4d09606b9c",
"to_name": null,
"type": null,
"value": {
"end": 19111,
"labels": [
"PRE_RELIED"
],
"start": 18765,
"text": "Lord Russell of Killowen in delivering the judgment of their Lordships made the following observations as respects a \"\nbest of judgment \" assessment within the meaning of s. 23 (4) of the Indian Income-tax Act: \" The officer is to make an assessment to the best of his judgment against a person who is in default as regards supplying information."
}
},
{
"from_name": null,
"id": "c37425023140414f85063da880230cbe",
"to_name": null,
"type": null,
"value": {
"end": 19222,
"labels": [
"ANALYSIS"
],
"start": 19112,
"text": "He must not act dishonestly, or vindictively or capriciously, because he must exercise judgment in the matter."
}
},
{
"from_name": null,
"id": "335b2029703b4ce389267ec7df00f5ab",
"to_name": null,
"type": null,
"value": {
"end": 19807,
"labels": [
"ANALYSIS"
],
"start": 19223,
"text": "He must make what he honestly believes to be a fair estimate of the proper figure of assessment, and for this purpose he must, their Lordships think, be able to take into consideration local knowledge and repute in regard to the assessee's circumstances, and his own knowledge of previous returns by, and assessments of, the assessee, (1) [1955] S.C.R. 94I, 949.\n(2) (1937) 64 I.A. 102, 114-115.and all other matters which he thinks will assist him in arriving at a fair and proper estimate: and though there must necessarily be guess-work in the matter, it must be honest guess-work."
}
},
{
"from_name": null,
"id": "759e461a9be54e49a9df155abca83de6",
"to_name": null,
"type": null,
"value": {
"end": 20208,
"labels": [
"PRE_RELIED"
],
"start": 19808,
"text": "\"\nWe find nothing in those observations which runs counter to the observations made in Dhakeswari Cotton Mills' case(1).\nNo doubt it is true that when the returns and the books of account are rejected, the assessing officer must make an estimate, and to that extent he must make a guess; but the estimate must be related to some evidence or material and it must be something more than mere suspicion."
}
},
{
"from_name": null,
"id": "7cb02963189c4651bef5d0825f927627",
"to_name": null,
"type": null,
"value": {
"end": 20654,
"labels": [
"ANALYSIS"
],
"start": 20209,
"text": "To use the words of Lord Russell of Killowen again, \" he must make what he honestly believes to be a fair estimate of the proper figure of assessment\" and for this purpose he must take into consideration such materials as the assessing officer has before him, including the assessee's circumstances, knowledge of previous returns and all other matters which the assessing officer thinks will assist him in arriving at a fair and proper estimate."
}
},
{
"from_name": null,
"id": "10dc59ae6f8645289d6d9f24a1dd3aeb",
"to_name": null,
"type": null,
"value": {
"end": 20784,
"labels": [
"ANALYSIS"
],
"start": 20655,
"text": "In the case under our consideration, the assessing officer did not do so, and that is where the grievance of the assessee arises."
}
},
{
"from_name": null,
"id": "cc9a619e0fc74faf9eebdb54c271c4ea",
"to_name": null,
"type": null,
"value": {
"end": 20868,
"labels": [
"PRE_RELIED"
],
"start": 20784,
"text": "\nThe next decision is Ganga Ram Balmokand v. Commissioner of Income Tax, Punjab (2)."
}
},
{
"from_name": null,
"id": "72e1ed78366140baaf39d2d3a426c24f",
"to_name": null,
"type": null,
"value": {
"end": 21454,
"labels": [
"PRE_RELIED"
],
"start": 20869,
"text": "It was held therein that where the income-tax authorities were not satisfied with the correctness or completeness of the assessees' accounts and, taking into consideration the state of affairs in general and the fact that the assessees had a large business and the profit shown by them was abnormally low in comparison with that of other persons carrying on the same business in the locality, calculated the taxable income by applying a flat rate of 7 per cent., the authorities were justified in applying such a flat rate, and the burden was on the assessees to displace the estimate."
}
},
{
"from_name": null,
"id": "71b96d0fd4ee4d2e84ee826d3e34e6f8",
"to_name": null,
"type": null,
"value": {
"end": 21583,
"labels": [
"PRE_RELIED"
],
"start": 21455,
"text": "There again, the estimate made was not a pure guess and was based on some materials which the Income-tax Officer had before him."
}
},
{
"from_name": null,
"id": "1e4c561c43d44a0bbbd4dacedf270c3b",
"to_name": null,
"type": null,
"value": {
"end": 21949,
"labels": [
"PRE_RELIED"
],
"start": 21584,
"text": "Din Mohammad J. who gave the leading judgment, observed: \" It cannot be denied that there must be some material before the Income-tax Officer on which (1) [1955] 1 S.C.R. 941, 949.\n(2) [1937] 5 I.T.R. 464.to base his estimate, but no hard and fast rule can be laid down by the Court to define what sort of material is required on which his estimate can be founded.\""
}
},
{
"from_name": null,
"id": "8780d8ce001947049a00e5a62bb9acc0",
"to_name": null,
"type": null,
"value": {
"end": 21991,
"labels": [
"ANALYSIS"
],
"start": 21950,
"text": "With that observation we generally agree."
}
},
{
"from_name": null,
"id": "489dcfc639b24c318d171f3bf3465d74",
"to_name": null,
"type": null,
"value": {
"end": 22406,
"labels": [
"ANALYSIS"
],
"start": 21992,
"text": "If, in this case, the Sales Tax authorities had based their estimate on some material before them, no objection could have been taken; but the question which was referred to the High, Court and which arose out of the orders of assessment was whether it was open to the said authorities to make an assessment on a figure of gross, turnover, without referring to any materials to justify the adoption of that figure."
}
},
{
"from_name": null,
"id": "eadd55bfa0364d5ca97c541f73946b5c",
"to_name": null,
"type": null,
"value": {
"end": 22645,
"labels": [
"ANALYSIS"
],
"start": 22407,
"text": "In answering that question in the affirmative, the High Court has given a carte blanche to the Sales Tax authorities and has, in our opinion, misdirected itself as to the true scope and effect of cl. (b) of sub-s. (2) of s. 10 of the Act."
}
},
{
"from_name": null,
"id": "e9b6624f2acc4ff58bb8dfb27227c785",
"to_name": null,
"type": null,
"value": {
"end": 22724,
"labels": [
"PRE_NOT_RELIED"
],
"start": 22645,
"text": "\nThe next decision is Gunda Subbayya v. Commissioner of Income-tax, Madras (1)."
}
},
{
"from_name": null,
"id": "9d2496f1b668439295209237bdef58fb",
"to_name": null,
"type": null,
"value": {
"end": 22773,
"labels": [
"ANALYSIS"
],
"start": 22725,
"text": "This decision also does not help the respondent."
}
},
{
"from_name": null,
"id": "104d683e9d5042f68c8f9e4fcb8ca175",
"to_name": null,
"type": null,
"value": {
"end": 23258,
"labels": [
"ANALYSIS"
],
"start": 22774,
"text": "It was held in that decision that though there is nothing in the Indian Income-tax Act which imposes a duty on an Incometax Officer, who makes an assessment under s. 23 (3), to disclose to the assessee the material on which he proposes to act, natural justice requires that he should draw the assessee's attention to it and give him an opportunity to show that the officer's information is wrong and he should also indicate in his order the material on which he has made his estimate."
}
},
{
"from_name": null,
"id": "c6a854b0db4c47eaa41f43a207ce4da2",
"to_name": null,
"type": null,
"value": {
"end": 23452,
"labels": [
"ANALYSIS"
],
"start": 23259,
"text": "This decision is really against the respondent and does not lay down any rule which may be said to be inconsistent with the observations made by this Court in Dhakeswari Cotton Mills' case (2)."
}
},
{
"from_name": null,
"id": "6e29d225f9014e3db812e171a24ab7fb",
"to_name": null,
"type": null,
"value": {
"end": 23632,
"labels": [
"PRE_RELIED"
],
"start": 23452,
"text": "\nThe decision of the Lahore High Court in Seth Gurmukh Singh v. Commissioner of Income-tax, Punjab (3) was specifically approved by this Court in Dhakeswari Cotton Mills' case (2)."
}
},
{
"from_name": null,
"id": "e07309e55b994283b1eee0f12b0398a1",
"to_name": null,
"type": null,
"value": {
"end": 24682,
"labels": [
"ANALYSIS"
],
"start": 23633,
"text": "The rules laid down in that decision were these: (1) While proceeding under sub-s. (3) of s. 23 of the Income-tax Act, the Income-tax Officer is not bound to -rely on such evidence produced by the assessee as he considers to be false; (2) if he proposes to make an estimate in disregard of (1) [1939] 7 I.T.R. 2 1.\n(2) [1955] 1 S.C.R. 941, 949.\n(3) [1944] 12 I.T.R. 393.the evidence, oral or documentary, led by the assessee, he should in fairness disclose to the assessee the material on which he is going to found that estimate; (3) he is not however debarred from relying on private sources of information, which sources he may not disclose to the assessee at all; and (4) in case he proposes to use against the assessee the result of any private inquiries made by him, he must communicate to the assessee the substance of the information so proposed to be utilised to such an extent as to put the assessee in possession of full particulars of the case he is expected to meet and should further give him ample opportunity to meet it, if possible."
}
},
{
"from_name": null,
"id": "66d3b62823434fc5a79a01aadbc5957f",
"to_name": null,
"type": null,
"value": {
"end": 24851,
"labels": [
"ANALYSIS"
],
"start": 24683,
"text": "The decision does not lay down that it is open to the Income-tax Officer to make an estimate on pure guess and without reference to any material or evidence before him."
}
},
{
"from_name": null,
"id": "47148b1d2b3d4ed5bc9a8cf8f4fc5671",
"to_name": null,
"type": null,
"value": {
"end": 24972,
"labels": [
"ANALYSIS"
],
"start": 24851,
"text": "\nThe last decision to which we have been referred is the decision in Malik Damsaz Khan v. Commissioner of Income-tax (1)."
}
},
{
"from_name": null,
"id": "5a36806a48b84c2a95bebe1214ce8b36",
"to_name": null,
"type": null,
"value": {
"end": 25019,
"labels": [
"ANALYSIS"
],
"start": 24973,
"text": "That again is a decision of the Privy Council."
}
},
{
"from_name": null,
"id": "fa992e6a56024506af9b42258e8775fb",
"to_name": null,
"type": null,
"value": {
"end": 25208,
"labels": [
"ANALYSIS"
],
"start": 25020,
"text": "In that case, the validity of the assessment under s. 23 (3) of the Indian Income-tax Act was not challenged by the assessee and the appeal was directed solely to the amount of assessment."
}
},
{
"from_name": null,
"id": "bdbe860aee3a45f5b688aaa2c5aa5ff9",
"to_name": null,
"type": null,
"value": {
"end": 25482,
"labels": [
"ANALYSIS"
],
"start": 25209,
"text": "Their Lordships observed: 'But it appears to them that it was clearly competent for the Income-tax Officer in the circumstances of the present case to accept the return as a valid return and proceed to assessment under section 23 (1) or section 23 (3) as the case might be."
}
},
{
"from_name": null,
"id": "5d500600514f47e79633b67ffb59a629",
"to_name": null,
"type": null,
"value": {
"end": 25685,
"labels": [
"ANALYSIS"
],
"start": 25483,
"text": "Since he was not satisfied that the return was correct and complete he could not proceed under section 23 (1); he, therefore, as appeared upon the face of the assessment, proceeded under section 23 (3)."
}
},
{
"from_name": null,
"id": "a0d5b355993348a8930c79cd907fd219",
"to_name": null,
"type": null,
"value": {
"end": 26254,
"labels": [
"RATIO"
],
"start": 25686,
"text": "Neither in the incompleteness of the return nor in the fact that in any accompanying statement the appellant referred to his return as an estimate can their Lordships find any possible justification for the plea that the assessment was incompetent or that the Appellate Assistant Commissioner had no jurisdiction to entertain the appeal proceedings which the appellant himself initiated. \"\n(1) [1947] 15 I.T.R. 445.These observations do not help the respondent in any way; nor do they lay down any rule contrary to the rules laid down in Seth Gurmukh Singh's case (1)."
}
},
{
"from_name": null,
"id": "068b71cbdfe34cb19de4055f6b97c479",
"to_name": null,
"type": null,
"value": {
"end": 26356,
"labels": [
"RPC"
],
"start": 26255,
"text": "For these reasons we hold that the High Court, was in error in answering the question referred to it."
}
},
{
"from_name": null,
"id": "3ea4392395c74267bdf3783dd48bb676",
"to_name": null,
"type": null,
"value": {
"end": 26450,
"labels": [
"RPC"
],
"start": 26357,
"text": "The appeal is accordingly allowed and the judgment and order of the High Court are set aside."
}
},
{
"from_name": null,
"id": "d8c7ae703abb4193a1310aa3d60447ae",
"to_name": null,
"type": null,
"value": {
"end": 26524,
"labels": [
"RPC"
],
"start": 26451,
"text": "The answer to the question referred to the High Court is in the negative."
}
},
{
"from_name": null,
"id": "95e4c6aa931e4258ae352981eee46217",
"to_name": null,
"type": null,
"value": {
"end": 26610,
"labels": [
"RPC"
],
"start": 26525,
"text": "The appellant will be entitled to its costs both in this Court and in the High Court."
}
}
]
}
] | 4,097 | {
"text": "PETITIONER:\nRAGHUBAR MANDAL HARIHAR MANDAL\n\nVs.\n\nRESPONDENT:\nTHE STATE OF BIHAR\n\nDATE OF JUDGMENT:\n22/05/1957\n\nBENCH:\nDAS, S.K.\nBENCH:\nDAS, S.K.\nBHAGWATI, NATWARLAL H.\nKAPUR, J.L.\n\nCITATION: 1958 SCR 37\n 1957 AIR 810\n\nACT:\nSales Tax-Assessee's accounts rejected as unreliable-Assess-\nment made on guess without reference to evidence or\nmaterialValidity-Bihar Sales Tax Act, 1944 (Bihar Act VI of\n1944),S.I0(2)(b)-Indian Income-tax Act, 1922 (XI Of 1922),\nS. 23(3).\n\nHEADNOTE:\nThe appellant filed the necessary returns, as required by\nthe provisions of the Bihar Sales Tax Act, 1944, and\nproduced the account books. The Sales Tax Officer\nconsidered that the account books were not dependable and,\nafter rejecting them as well as the returns, proceeded to\nestimate the gross turnover by adopting a figure by pure\nguess, without reference to any evidence or material, and\nmade the assessment under s. 10 (2) (b) of the Act.\nHeld, that under S. 1O (2) (b) of the Bihar Sales Tax Act,\n1944, a duty is imposed on the assessing authority to make\nthe assessment after hearing such evidence as the assessee\nmay produce and such other evidence as the assessing\nauthority may require on specified points, and, in case the\nreturns of the assessee and his books of account are\nrejected, the assessing authority must make an estimate, but\nthis must be based on such evidence or material as the\nassessing authority has before him, including the assessee's\ncircumstances, knowledge of previous returns and all other\nmatters which the assessing authority thinks will assist him\nin arriving at a fair and proper estimate.\nDhakeswari Cotton Mills Ltd. v. Commissioner of Income Tax,\nWest Bengal, (1955) 1 S.C.R. 941 and Income-tax Commissioner\nv. Badridas Ramrai Shop, Akola, (1937) L.R. 64 I.A. 102,\nrelied on.\n\nJUDGMENT:\nCIVIL APPELLATE JURISDICTION: Civil Appeal No.\n249 of 1954.\nAppeal by special leave from the judgment and order dated January 8, 1952, of the Patna High Court in Misc. Judicial Cases Nos. 13, 14, 15, 16, 17, 18 and 19 -of 1949.\nBhawani Lal and K. L. Mehta, for the appellants.\nL.K. Jha, B. K. P. Sinha and R. C. Prasad, for the respondent.\n1957. May 22. The Judgment of the Court was delivered by S.K. DAS J.-The appellant Messrs. Raghubar Mandal Harihar Mandal, hereinafter referred to as the assessee, is a firm of bullion dealers carrying on its business at Laheriasarai in the district of Darbhanga in the State of Bihar. The assessee was assessed to sales tax for seven quarters ending December 31, 1945, March, 31, 1946, June 30, 1946, September 30, 1946, December 31, 1946, March 31, 1947 and June 30, 1947, respectively. For three of the aforesaid quarters, namely those ending on December 31, 1945, March 31, 1947 and June 30, 1947, the assessee failed to file the necessary returns as required by the provisions of the Bihar Sales Tax Act, 1944 (hereinafter referred to as the Act), which was the Act in force during the material period; therefore, the assessee was assessed for those three quarters under sub-s.\n(4) of s. 10 of the Act. For the remaining four quarters, the assessee did file returns. The Sales Tax Officer rejected those returns as also the books of account filed by the assessee for all the seven quarters and assessed the assessee under el. (b) of sub-s. (2) of s. 10 of the Act.\nThe Sales Tax Officer passed separate orders assessing the tax for all the seven quarters simultaneously on October 9, 1947. He assessed the tax on a taxable turnover of Rs.\n2,94,000 for each of the five quarters ending December 31, 1945, March 31, 1946, September 30, 1946, December 31, 1946 and March 31, 1947; for the other two quarters ending on June 30, 1946, and June 30, 1947, he assessed the tax on a taxable turnover of Rs. 3,92,000. The assessee then moved in appeal the Commissioner of Commercial Taxes, Tirhut Division, but the Commissioner dismissed the appeals by his order dated February 23, 1948. The Board of Revenue was then moved in revision but, by its order dated July 31, 1948, the Board refused to interfere. The Board expressedthe view that the finding of the Sales Tax Officer and the Commissioner that the books of account maintained by the assessee were not dependable was a finding of fact which could not be interfered with in revision ; -therefore the assessing officer was bound to assess to' the best of his judgment. The Board was then moved under s. 21 of the Act to refer certain questions of law to the High Court of Patna which, the assessee contended, arose out of its order. By its order dated December 10, 1948, the Board rejected the applications for making a reference to the High Court on the same ground, namely, that no question of law was involved and the assessment orders were concluded by a concurrent finding of fact. The assessee then moved the High Court and by its order dated April 27, 1949, passed in Miscellaneous Judicial Cases Nos. 13 to 19 of of 1949, the High Court directed the Board of Revenue to state a case on the following question: \" Whether the Sales Tax.Officer is entitled under section 10(2)(b) of the Act to make an assessment on any figures of gross turnover without giving any basis to justify the adoption of that figure ?\"\nThe Board of Revenue then stated a case, and the High Court disposed of the reference by answering the question in the affirmative by its judgment and order dated January 8, 1952.\nThe assessee then moved this Court and obtained special leave to appeal from the said judgment and order of the High Court.\n The main contention of the assessee is that the High Court has not correctly answered the question of law referred to it. Before we proceed to consider this contention of the assessee, it is necessary to clear the ground by delimiting the precise scope of the question referred to the High Court. It is well settled that the jurisdiction of the High Court in the' matter of incometax references is an advisory jurisdiction and under the Income-tax Act the decision of the Tribunal on facts is final, unless it can be successfully assailed on the ground that there was no evidence for the conclusion on facts recorded by the Tribunal or the conclusion was such as no reasonable body of persons could have arrived at.It is also well settled that the dutyof the High Court is to start with the statement of the case as the final statement of the facts and to answer the question of law with reference to that statement. The provisions of the Indian Income-tax Act are in pari materia with the provisions of the Act under our consideration, the main scheme of the relevant provisions of the two Acts being similar in nature, though the wording of the provisions is not exactly the same. Under s. 21 of the Act, the High Court exercises a similar advisory jurisdiction, and under sub-s. (3) of that section, the High Court may require the Board of Revenue to state a case and refer it to the High Court, when the High Court is satisfied that the refusal of the Board to make a reference to the High Court under sub-s.\n(2) is not justified. Under sub-s. (5) of s. 21 the High Court hears the reference and decides the question of law referred to it, giving in a judgment the grounds of its decision. In the case under our consideration, the question which was referred to the High Court related to the assessments made under s. 10(2)(b) of the Act; in other words, the question related to those four quarters only for which the assessments were made under s. 10(2)(b). The question did not relate to the three quarters for which the assessee had filed no returns and assessments were made under s. 10(4) of the Act. At one place in its judgment, the High Court referred to a slight inaccuracy in the question framed, but it did not reframe the question so as to widen its scope and include the three quarters for which assessments were made under s. 10(4) of the Act. The question, as it stood and as it was answered by the High Court, did not relate to the propriety or legality of the assessments made under s. 10(4) of the Act. We must, therefore, make it clear at the very outset that the question relates to those four quarters only for which assessments were made under s. 10(2)(b) of the Act, and the answer given to the question will govern those four quarters only. Having thus indicated the precise scope of the question referred to the High Court, we proceed now to consider the main contention of the assessee. We must first read the relevant provisions of the statuteunder which the assessments were made. Sub-section (1) of s. 10 of the Act states that if the Commissioner is satisfied without requiring the presence of a registered dealer or the production by him of any evidence that the returns furnished in respect of any period are correct and complete, he shall assess the amount of tax due from the dealer on the basis of such returns. Clause (a) of sub-s.\n(2) states what the Commissioner shall do, if he is not satisfied without requiring the presence of a registered dealer who furnished the returns or production of evidence that the returns furnished in respect of any period are correct and complete; the clause states that in that event the Commissioner shall serve on the dealer a notice in the prescribed manner requiring him either to attend in person or to produce or cause to be produced any evidence on which such dealer may rely in support of his returns. Then comes cl. (b) of sub-s. (2) which must be quoted in extenso: \" (b) On the day specified in the notice or as soon afterwards as may be, the Commissioner, after hearing such evidence as the dealer may produce, and such other evidence as the Commissioner may require on specified points, shall assess the amount of tax due from the dealer.\"\nThese provisions are similar to the provisions contained in s. 23 of the Indian Income-tax Act. Sub-section (1) of s.\n10 of the Act corresponds to sub-s. (1) of s. 23 of the Indian Income-tax Act; clause (a) of sub-s. (2) of s. 10 of the Act corresponds to sub-s. (2) of s. 23 of the Indian Income-tax Act; and clause (b) of sub-s. (2) of S. 10 of the Act corresponds to sub-s. (3) of s. 23 of the Indian Income- tax Act, though there are some verbal differences between the two provisions. Sub-section (3) of s. 23 of the Indian Income-tax Act requires the Income-tax Officer to assess the total income of the assessee and determine the sum payable by him on the basis of such assessment, by \"an order in writing\"; but cl. (b) of sub-s. (2) of s. 10 of the Act requires the Commissioner to assess the amount of tax due from the dealer and does not impose any liability as to \"an order in writing.\" In spite of these differences, thetwo provisions are substantially the same and impose on the assessing authority a duty to assess the tax after hearing such evidence as the dealer may produce and such other evidence as the assessing authority may require on specified points.\nThe point for our consideration is-can the assessing authority, purporting to act under s. 10(2)(b) of the Act, assess the amount of tax due from a dealer more or less arbitrarily or without basing the assessment on any materials whatsoever ? In the question referred to the High Court, the expression used is, \"make an assessment on any figure of gross turnover without giving any basis to justify the adoption of that figure\". That expression is perhaps a little ambiguous, but read in the context of the statement of the case, the question can only mean this: can the assessing authority adopt a figure of gross turnover by pure guess and without referring to any materials on which the figure is based ? It is clear to us that, understood in that sense, the High Court has answered the question incorrectly. The High Court went into an elaborate consideration, by way of comparison and contrast, of sub-s.\n(4) and el. (b) of sub-s. (2) of s. 10 of the Act. It is unnecessary for us to make any pronouncement in this appeal with regard to the precise scope of sub-s. (4) of s. 10 of the Act, which corresponds more or less to sub-s. (4) of s.\n23 of the Indian Income-tax Act; nor is it necessary for us to decide if an assessment made under el. (b) of sub-s. (2) of s. 10 of the Act, when the account books of the assessee are disbelieved, stands exactly on the same footing as an assessment made under sub-s. (4) of s. 10 when the assessee has failed to furnish his returns. In some decisions relating to the corresponding provisions of the Indian Income-tax Act, it has been said that the difference between the two is one of degree only, the one being more summary than the other. These are questions which do not really fall for decision in the present appeal, which is confined to interpreting the true nature and scope of el. (b) of sub- s. (2) of s. 10 of the Act. With regard to the corresponding provision in sub-s. (3) of s. 23 of the Indian Income-tax Act, there is a decision of thisCourt which, in our opinion, answers the question before us.\nThe decision is that of Dhakeswari Cotton Mills Ltd. v.\nCommissioner of Income Tax, West Bengal(1). This Court observed: \"As regards the second contention, we are in entire agreement with the learned Solicitor-General when he says that the Income-tax Officer is not fettered by technical rules of evidence and pleadings, and that he is entitled to act on material which may not be accepted as evidence in a Court of law, but there the agreement ends; because it is equally clear that in making the assessment under sub-s. (3) of s. 23 of the Act, the Income-tax Officer is not entitled to make a pure guess and make an assessment without reference to any evidence or any material at all. There must be something more than bare suspicion to support the assessment under s. 23(3).\"\nIn our view, the aforesaid observations clearly show that the High Court was in error in answering the question in the affirmative. Firstly, the High Court treated the question referred to it as a pure question of fact; if that were so, then the High Court should have rejected the reference on the ground that it was not competent to answer a question of fact. Then, the High Court proceeded to consider certain decisions relating to the interpretation of sub-ss. (3) and (4) of s. 23 of the Indian Income-tax Act, and held that there was no difference between an assessment under sub-s.\n(3) and an assessment under sub-s. (4) of s. 23. The High Court applied the same analogy and on that footing held that there being no difference between an assessment under cl.\n(b) of sub-s. (2) and an assessment under sub-s. (4) of s.\n10 of the Act, the answer to the question must be in the affirmative. In our view, the approach of the High Court to the question referred to it was erroneous and the answer given to the question by it solely on the basis of sub-s.\n(4) of s. 10 of the Act was vitiated by that wrong approach.\nIt was not sub-s. (4) of s. 10 of the Act which the High Court had to consider; it had to consider the true scope and effect of cl. (b) of sub-s. (2) of s. 10 of the Act.\n(1) [1955] 1 S.C.R. 941, 949.Learned counsel for the respondent has strongly urged two points in support of the answer which the High Court gave.\nFirstly, he has contended that, on a proper reading of the assessment orders and the orders of the Commissioner, it would appear that the gross turnover for the quarters in question was based on certain materials; therefore, the argument of learned counsel is that it is not correct to say that the figure of gross turnover was arbitrarily adopted or was adopted without reference to any evidence or any material at all. We have examined the assessment orders in question, which form part of the statement of the case. It is clear to us that what the Sales Tax Officer and the Commissioner did was to hold, for certain reasons, that the returns made by the assessee and the books of account filed by it were incorrect and undependable. It is not necessary to repeat those reasons, because we must accept the finding of fact arrived at by the assessing authorities that the returns and the books of account were not dependable. The assessing authorities rightly pointed out that several transactions were not entered in the books of account; and a surprise inspection made on July 15, 1947, disclosed certain transactions with a Bombay firm known as Messrs. Kishundas Lekhraj, which were not mentioned in the books of account; and finally, the assessee Was importing silver in the name of five confederates in order to suppress the details of the transactions etc. The assessing authorities further pointed out that there was a discrepancy between the return filed for the quarter ending June 30, 1946, and the accounts filed in support of it; the return showed a gross turnover of Rs.\n2,28,370-12-0 while the accounts revealed a gross turnover of Rs. 1,48,204. All these we must accept as correct.\nHaving rejected the returns and the books of account, the assessing authorities proceeded to estimate the gross turnover. In so estimating the gross turnover, they did not refer to any materials at all. On the contrary, they indulged in a pure guess and adopted a figure without reference to any evidence or any material at all. Let us take, for example, the assessment order for the quarter ending June 30, 1946.The Sales Tax Officer said: \"I reject the dealer's accounts and estimate a gross turnover of Rs. 4,00,000. 1 allow a deduction at 2% on the turnover and assess him on Rs.\n3,92,000 to pay sales tax of Rs. 6,125.\" For the quarter ending on September 30, 1946, the Sales Tax Officer said: \"I reject his irregular account and estimate a gross turnover of Rs. 3,00,000 for the quarter and assess him on Rs.\n2,94,000 to pay tax of Rs. 4,593-12-0.\" These and similar orders do not show that the assessment was made with reference to any evidence or material; on the contrary, they show that having rejected the books of account, the assessing authorities indulged in -pure guess and made an assessment without reference-to any evidence or any material at all. This the assessing authorities were not entitled to do under cl. (b) of sub.s. (2) of s. 10 of the Act.\nSecondly, learned counsel for the respondent has referred us to several decisions on which the High Court relied and has argued that on the basis of those decisions, it must be held that the answer given by the High Court to the question referred to it was a correct answer. We propose to examine briefly some of those decisions, though, as we have stated earlier, the question is really answered by the observations made by this Court in Dhakeswari Cotton Mills' case (1).\nThe first decision is the Privy Council decision in Income- tax Commissioner v. Badridas Ramrai Shop, Akola (2). Lord Russell of Killowen in delivering the judgment of their Lordships made the following observations as respects a \"\nbest of judgment \" assessment within the meaning of s. 23 (4) of the Indian Income-tax Act: \" The officer is to make an assessment to the best of his judgment against a person who is in default as regards supplying information. He must not act dishonestly, or vindictively or capriciously, because he must exercise judgment in the matter. He must make what he honestly believes to be a fair estimate of the proper figure of assessment, and for this purpose he must, their Lordships think, be able to take into consideration local knowledge and repute in regard to the assessee's circumstances, and his own knowledge of previous returns by, and assessments of, the assessee, (1) [1955] S.C.R. 94I, 949.\n(2) (1937) 64 I.A. 102, 114-115.and all other matters which he thinks will assist him in arriving at a fair and proper estimate: and though there must necessarily be guess-work in the matter, it must be honest guess-work. \"\nWe find nothing in those observations which runs counter to the observations made in Dhakeswari Cotton Mills' case(1).\nNo doubt it is true that when the returns and the books of account are rejected, the assessing officer must make an estimate, and to that extent he must make a guess; but the estimate must be related to some evidence or material and it must be something more than mere suspicion. To use the words of Lord Russell of Killowen again, \" he must make what he honestly believes to be a fair estimate of the proper figure of assessment\" and for this purpose he must take into consideration such materials as the assessing officer has before him, including the assessee's circumstances, knowledge of previous returns and all other matters which the assessing officer thinks will assist him in arriving at a fair and proper estimate. In the case under our consideration, the assessing officer did not do so, and that is where the grievance of the assessee arises.\nThe next decision is Ganga Ram Balmokand v. Commissioner of Income Tax, Punjab (2). It was held therein that where the income-tax authorities were not satisfied with the correctness or completeness of the assessees' accounts and, taking into consideration the state of affairs in general and the fact that the assessees had a large business and the profit shown by them was abnormally low in comparison with that of other persons carrying on the same business in the locality, calculated the taxable income by applying a flat rate of 7 per cent., the authorities were justified in applying such a flat rate, and the burden was on the assessees to displace the estimate. There again, the estimate made was not a pure guess and was based on some materials which the Income-tax Officer had before him. Din Mohammad J. who gave the leading judgment, observed: \" It cannot be denied that there must be some material before the Income-tax Officer on which (1) [1955] 1 S.C.R. 941, 949.\n(2) [1937] 5 I.T.R. 464.to base his estimate, but no hard and fast rule can be laid down by the Court to define what sort of material is required on which his estimate can be founded.\" With that observation we generally agree. If, in this case, the Sales Tax authorities had based their estimate on some material before them, no objection could have been taken; but the question which was referred to the High, Court and which arose out of the orders of assessment was whether it was open to the said authorities to make an assessment on a figure of gross, turnover, without referring to any materials to justify the adoption of that figure. In answering that question in the affirmative, the High Court has given a carte blanche to the Sales Tax authorities and has, in our opinion, misdirected itself as to the true scope and effect of cl. (b) of sub-s. (2) of s. 10 of the Act.\nThe next decision is Gunda Subbayya v. Commissioner of Income-tax, Madras (1). This decision also does not help the respondent. It was held in that decision that though there is nothing in the Indian Income-tax Act which imposes a duty on an Incometax Officer, who makes an assessment under s. 23 (3), to disclose to the assessee the material on which he proposes to act, natural justice requires that he should draw the assessee's attention to it and give him an opportunity to show that the officer's information is wrong and he should also indicate in his order the material on which he has made his estimate. This decision is really against the respondent and does not lay down any rule which may be said to be inconsistent with the observations made by this Court in Dhakeswari Cotton Mills' case (2).\nThe decision of the Lahore High Court in Seth Gurmukh Singh v. Commissioner of Income-tax, Punjab (3) was specifically approved by this Court in Dhakeswari Cotton Mills' case (2).\nThe rules laid down in that decision were these: (1) While proceeding under sub-s. (3) of s. 23 of the Income-tax Act, the Income-tax Officer is not bound to -rely on such evidence produced by the assessee as he considers to be false; (2) if he proposes to make an estimate in disregard of (1) [1939] 7 I.T.R. 2 1.\n(2) [1955] 1 S.C.R. 941, 949.\n(3) [1944] 12 I.T.R. 393.the evidence, oral or documentary, led by the assessee, he should in fairness disclose to the assessee the material on which he is going to found that estimate; (3) he is not however debarred from relying on private sources of information, which sources he may not disclose to the assessee at all; and (4) in case he proposes to use against the assessee the result of any private inquiries made by him, he must communicate to the assessee the substance of the information so proposed to be utilised to such an extent as to put the assessee in possession of full particulars of the case he is expected to meet and should further give him ample opportunity to meet it, if possible. The decision does not lay down that it is open to the Income-tax Officer to make an estimate on pure guess and without reference to any material or evidence before him.\nThe last decision to which we have been referred is the decision in Malik Damsaz Khan v. Commissioner of Income-tax (1). That again is a decision of the Privy Council. In that case, the validity of the assessment under s. 23 (3) of the Indian Income-tax Act was not challenged by the assessee and the appeal was directed solely to the amount of assessment. Their Lordships observed: 'But it appears to them that it was clearly competent for the Income-tax Officer in the circumstances of the present case to accept the return as a valid return and proceed to assessment under section 23 (1) or section 23 (3) as the case might be. Since he was not satisfied that the return was correct and complete he could not proceed under section 23 (1); he, therefore, as appeared upon the face of the assessment, proceeded under section 23 (3). Neither in the incompleteness of the return nor in the fact that in any accompanying statement the appellant referred to his return as an estimate can their Lordships find any possible justification for the plea that the assessment was incompetent or that the Appellate Assistant Commissioner had no jurisdiction to entertain the appeal proceedings which the appellant himself initiated. \"\n(1) [1947] 15 I.T.R. 445.These observations do not help the respondent in any way; nor do they lay down any rule contrary to the rules laid down in Seth Gurmukh Singh's case (1).\nFor these reasons we hold that the High Court, was in error in answering the question referred to it. The appeal is accordingly allowed and the judgment and order of the High Court are set aside. The answer to the question referred to the High Court is in the negative. The appellant will be entitled to its costs both in this Court and in the High Court.\n "
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"labels": [
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],
"start": 0,
"text": "PETITIONER:\nP.K. BADIANI\n\n Vs.\n\nRESPONDENT:\nTHE COMMISSIONER OF INCOME TAX, BOMBAY\n\nDATE OF JUDGMENT21/09/1976"
}
},
{
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"id": "f4ef6327cd35498592d5eaec3a1eb716",
"to_name": "text",
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"labels": [
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"start": 115,
"text": "\n\nBENCH:\nUNTWALIA, N.L.\nBENCH:\nUNTWALIA, N.L.\nKHANNA, HANS RAJ\nSINGH, JASWANT\n\nCITATION: 1977 SCR (1) 638\n 1977 AIR 560\n 1976 SCC (4) 562\n\nACT:\n\n Income tax Act (11 of 1922), ss. 2(6A)(e) and\n 10(2)(vi-b)--Development rebate treated as accumulated\n profits--Withdrawal of amount by shareholder from Company's\n account--If withdrawal can be treated as dividend since\n amount withdrawn is within accumulated profits.\n\nHEADNOTE:\n Under s. 2(6A)(e), Income Tax Act, 1922, dividend\n\n includes any payment by a company, not being a company in\n which the public are substantially interested within the\n meaning of s. 23A, of any sum by way of advance to a share-\n holder to the extent to which the company possesses accumu-\n lated profits.\n\n "
}
},
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"to_name": "text",
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"value": {
"end": 1169,
"labels": [
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],
"start": 1004,
"text": "The appellant-assessee was a shareholder in a company\n in which the public were not substantially interested within\n the meaning of s. 23A."
}
},
{
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"id": "5a57bd8064f242eabc285d88a6f82927",
"to_name": "text",
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"end": 1241,
"labels": [
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"text": "He had withdrawn some amounts from\n the company's account."
}
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{
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"value": {
"end": 1532,
"labels": [
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],
"start": 1242,
"text": "The company had been allowed devel-\n opment rebate under s. 10(2)(vi-b) and that amount was\n debited in the profit and loss account of the company for\n the accounting year leaving a small balance of profit in the\n profit and loss account."
}
},
{
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"labels": [
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"text": "The Appellate Assistant Commis-\n "
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"end": 1824,
"labels": [
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],
"start": 1579,
"text": "sioner treated the entire sum, that is, the amount allowed\n as development rebate and the amount of balance in the\n profit and loss account, as the amount of accumulated prof-\n its possessed by the company."
}
},
{
"from_name": "label",
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"value": {
"end": 2212,
"labels": [
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],
"start": 1825,
"text": "Treating the withdrawals by\n the appellant as advances by the company to him and finding\n the highest amount of advance to the assessee to be within\n the total figure of accumulated profits as arrived at by\n him, he directed the addition of the advance to the asses-\n see's income as dividend under s. 2(6A)(e) of the Act."
}
},
{
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"id": "4e99af94a67b41a5991c391b545cb3e6",
"to_name": "text",
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"end": 2358,
"labels": [
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],
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"text": "The\n Tribunal held that the development rebate was not liable to\n be treated as accumulated profits; but, on reference."
}
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{
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"id": "11e851374a634806b4a87a02ad713412",
"to_name": "text",
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"value": {
"end": 2478,
"labels": [
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],
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"text": "the\n High Court substantially confirmed the order of the Appel-\n late Assistant Commissioner."
}
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"id": "a2c222e107514edaa95a3364b0e51b09",
"to_name": "text",
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"value": {
"end": 3094,
"labels": [
"PREAMBLE"
],
"start": 2503,
"text": "On the question whether the development rebate could be\n treated as accumulated profits in the hands of the company\n under s. 2(6A)(e), the appellant contended that the develop-\n ment rebate, being identical with initial depreciation is in\n the nature of depreciation allowance, and since it is de-\n ductible from the assessable profits of the company, it is\n\nalso a type of outgoing expenditure or out-of-pocket cost,\nand was therefore, deductible from the company's commercial\nprofits.\nDismissing the appeal,\n\n HELD:"
}
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{
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"value": {
"end": 3350,
"labels": [
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],
"start": 3095,
"text": "The development rebate reserve created by the\ncompany, although it does not form part of the assessable\nprofits, undoubtedly forms part of the commercial profits\nand hence constituted accumulated profits of the company..\nwithin the meaning of s. 2(6A)(e)."
}
},
{
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"to_name": "text",
"type": "labels",
"value": {
"end": 3454,
"labels": [
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],
"start": 3351,
"text": "[648D]\n\n (1) The term 'profits' in taxation law varies in its\nmeaning according to the context."
}
},
{
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"id": "dddb14b2bbf3458a9cf3a1e67fa46e26",
"to_name": "text",
"type": "labels",
"value": {
"end": 3890,
"labels": [
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],
"start": 3455,
"text": "The expression 'accumu-\nlated profits' occurring in s. 2(6A) means profits in the\ncommercial sense that is profits in the real and true sense\nof the term and not assessable or taxable profits. [642E]\n\n E.D. Sassoon & Company Ltd. and Others v. Commissioner\nof Income-tax, Bombay City 26 ITR 27 at page 46, Commission-\ner of Income-taX, Bombay v. Ahmedbhai Umarbhai. & Co.,\nBombay 18 ITR 472 at 502, Commissioner of Income-tax."
}
},
{
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"id": "847883585b094ddf8f398d16a688cf70",
"to_name": "text",
"type": "labels",
"value": {
"end": 4014,
"labels": [
"PREAMBLE"
],
"start": 3891,
"text": "Bombay\nCity v. Bipinchandra Maganlal & Co. Ltd. 41 ITR 290 and\nGobaid Motor Service (P) Ltd. v. Commissioner of Income-tax,"
}
},
{
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"id": "2ca0238f1ee6423989203097f854cc15",
"to_name": "text",
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"value": {
"end": 4042,
"labels": [
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],
"start": 4014,
"text": "\nMadras 60 ITR 417 followed."
}
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"to_name": "text",
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"end": 4276,
"labels": [
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],
"start": 4042,
"text": "\n\n (2) Although they are not identical and differ in some\nmaterial particulars, initial depreciation and development\nrebate are similar in nature as both are by\n639\nway of incentive for installation of new machinery or plant."
}
},
{
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"to_name": "text",
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"value": {
"end": 4508,
"labels": [
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],
"start": 4276,
"text": "\nBut the initial depreciation or the development rebate is\nnot a recurring allowance for the subsequent years like the\nnormal depreciation allowance provided in s. 10(2)(vi) or\nthe additional depreciation provided in s. 10(2)(vi-a)."
}
},
{
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"id": "9c6b40bbc5ff4cd9bbc85a8da3c69c37",
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"end": 4622,
"labels": [
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],
"start": 4509,
"text": "The\nnormal depreciation and the additional depreciation are\npermitted to be deducted from the written down value."
}
},
{
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"id": "503a3abcccdb401c95d014a060333f4e",
"to_name": "text",
"type": "labels",
"value": {
"end": 4722,
"labels": [
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],
"start": 4623,
"text": "But\nthe amount of the initial depreciation is not deductible in\ndetermining the written down value."
}
},
{
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"id": "738e102bfb714237998ec3b6851b5824",
"to_name": "text",
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"value": {
"end": 4926,
"labels": [
"PREAMBLE"
],
"start": 4723,
"text": "[644D-E]\n\n (3) Normal depreciation reserve of the company may not\nform part of the accumulated past profits as held in Commis-\nsioner of Income-tax, Bombay v. Viramgam .Mills Co. Ltd. (43\nITR 270)."
}
},
{
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"id": "b7ab75deb53a432cb4f910c3cc6cd16a",
"to_name": "text",
"type": "labels",
"value": {
"end": 4989,
"labels": [
"PREAMBLE"
],
"start": 4927,
"text": "But since the initial depreciation or the devel-\nopment rebate"
}
},
{
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"id": "50ac65d3adb44f1da387cb725b51661c",
"to_name": "text",
"type": "labels",
"value": {
"end": 5032,
"labels": [
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],
"start": 4990,
"text": "cannot be equated with normal depreciation"
}
},
{
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"id": "5cc6e26a783f4e0c806a36e3c2954e4f",
"to_name": "text",
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"value": {
"end": 5124,
"labels": [
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],
"start": 5032,
"text": ", it\nis not a deductible item of cost or expenditure in. arriving\nat the commercial profits."
}
},
{
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"id": "a214e834c8144a3a93d00e80c0f15c72",
"to_name": "text",
"type": "labels",
"value": {
"end": 5328,
"labels": [
"PREAMBLE"
],
"start": 5125,
"text": "The initial depreciation or the\ndevelopment rebate is not allowed as an extra deductible\nallowance of business expenses for meeting the costs of\nreplacement in future years, but they are meant merely to\n"
}
},
{
"from_name": "label",
"id": "0d0d690c2e1a4162a5cca1e7b356de4f",
"to_name": "text",
"type": "labels",
"value": {
"end": 5334,
"labels": [
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],
"start": 5328,
"text": "reduce"
}
},
{
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"id": "4e3d0f0233024b9199bc6aafd15146a9",
"to_name": "text",
"type": "labels",
"value": {
"end": 5384,
"labels": [
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],
"start": 5335,
"text": "the tax liability of the assessee for the year of"
}
},
{
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"id": "32937c4765b746918be84cf709bd5e7a",
"to_name": "text",
"type": "labels",
"value": {
"end": 5479,
"labels": [
"PREAMBLE"
],
"start": 5384,
"text": "\ninstallation only, in order to give him an incentive to\ninstal new machinery or plant [645D-F]"
}
},
{
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"id": "01b226092f6c41de9deb36320fb3b034",
"to_name": "text",
"type": "labels",
"value": {
"end": 5642,
"labels": [
"PREAMBLE"
],
"start": 5479,
"text": "\n\n (4) The purpose of s. 2(6A) is to include within the\nterm 'dividend', for the purpose of taxation, certain dis-\ntributions or payments as deemed dividend."
}
},
{
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"id": "8c7055fd19264c9da92dd4a39e7366b0",
"to_name": "text",
"type": "labels",
"value": {
"end": 5824,
"labels": [
"PREAMBLE"
],
"start": 5643,
"text": "Section 2(6A)(c)\nprovides that 'dividend' includes any distribution to the\nshareholders liquidation to the extent to which the distri-\nbution is attributable to accumulated profits."
}
},
{
"from_name": "label",
"id": "2d85206a23f647049caadf292cc82aaf",
"to_name": "text",
"type": "labels",
"value": {
"end": 5967,
"labels": [
"PREAMBLE"
],
"start": 5825,
"text": "In Tea\nEstate India Pvt. Ltd. v. C.I.T., W. Bengal (103 ITR 785) it\nwas held that accumulated profits in cl. (c) include devel-\nopment Tebate."
}
},
{
"from_name": "label",
"id": "8eccf501274f449dab8a2c60b59fa114",
"to_name": "text",
"type": "labels",
"value": {
"end": 6156,
"labels": [
"PREAMBLE"
],
"start": 5968,
"text": "If for the purpose of distribution the\namount of development rebate could form part of the accumu-\nlated profits of the company, a fortiori, it would be so far\nthe purpose of cl. (e) also."
}
},
{
"from_name": "label",
"id": "d870626cd9584ae3b009b63ca21c67fe",
"to_name": "text",
"type": "labels",
"value": {
"end": 6169,
"labels": [
"PREAMBLE"
],
"start": 6157,
"text": "[646B; 645G]"
}
},
{
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"id": "ea18147dc3c747b68e06252cae45ad8f",
"to_name": "text",
"type": "labels",
"value": {
"end": 6181,
"labels": [
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],
"start": 6169,
"text": "\n\n (5)"
}
},
{
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"id": "d77559b5f0934fa8a50239512b17c358",
"to_name": "text",
"type": "labels",
"value": {
"end": 6416,
"labels": [
"PREAMBLE"
],
"start": 6182,
"text": "The use of the expression 'whether capitalised or\nnot', as qualifying the expression 'accumulated profits' in\ncls. (a) to (d), but not in cl. (e), shows that the legisla-\nture does not intend to rope in capitalised profits in el.\n(e)."
}
},
{
"from_name": "label",
"id": "80110898a7bf44d893495ad7aaede495",
"to_name": "text",
"type": "labels",
"value": {
"end": 6599,
"labels": [
"PREAMBLE"
],
"start": 6417,
"text": "That is, to the extent the profits have been capita-\nlised in accordance with the law and its Articles of Associ-\n\nation, a company cannot be said to possess any accumulated\nprofits."
}
},
{
"from_name": "label",
"id": "13af7326abec4d86b8793a4b62078044",
"to_name": "text",
"type": "labels",
"value": {
"end": 6687,
"labels": [
"PREAMBLE"
],
"start": 6600,
"text": "But in the present case, the accumulated profits\nof the company were never capitalised."
}
},
{
"from_name": "label",
"id": "9aadb4fc0dcf43e8b5432b4f02145f08",
"to_name": "text",
"type": "labels",
"value": {
"end": 6841,
"labels": [
"PREAMBLE"
],
"start": 6688,
"text": "Merely transferring\nthe sum to the development reserve account by debiting it to\nthe profit and loss account did not amount to capitalisation\nof profits."
}
},
{
"from_name": "label",
"id": "6806ee67fe07478db790d13a655d1bf2",
"to_name": "text",
"type": "labels",
"value": {
"end": 6917,
"labels": [
"PREAMBLE"
],
"start": 6842,
"text": "The nature of the assets did not change out\ncontinued to remain as profits."
}
},
{
"from_name": "label",
"id": "03fff4447f1048c78ef573d3b51e25fb",
"to_name": "text",
"type": "labels",
"value": {
"end": 7024,
"labels": [
"PREAMBLE"
],
"start": 6918,
"text": "[646E-G; 647A-B]\n\n Ann Bouch and William Bouch v. William Bouch Sprou (12\nAppeal Cases, 385 applied."
}
},
{
"from_name": "label",
"id": "bf39cff4ea4449d99a0edff3dcefb146",
"to_name": "text",
"type": "labels",
"value": {
"end": 7245,
"labels": [
"PREAMBLE"
],
"start": 7033,
"text": "Commissioner of Income-tax, Madras v.K. Srinivasan and\nothers 50 ITR 786 approved.\n\n Sheth Haridas Achratlal v. Commissioner of Income tax,\nBombay North, Kutch and Saurashtra, Baroda 27 ITR 684\nreferred to."
}
},
{
"from_name": "label",
"id": "eee3c069d2b64d44851b39072daafe29",
"to_name": "text",
"type": "labels",
"value": {
"end": 7255,
"labels": [
"PREAMBLE"
],
"start": 7247,
"text": "JUDGMENT"
}
},
{
"from_name": "label",
"id": "1ee5faa9991249c1ab6d7b8096d286fe",
"to_name": "text",
"type": "labels",
"value": {
"end": 7286,
"labels": [
"NONE"
],
"start": 7255,
"text": ":\nCIVIL APPELLATE JURISDICTION:"
}
},
{
"from_name": "label",
"id": "322c7c68f16645548c91787ada7c304d",
"to_name": "text",
"type": "labels",
"value": {
"end": 7317,
"labels": [
"NONE"
],
"start": 7287,
"text": "Civil Appeal No. 1695 of 1971."
}
},
{
"from_name": "label",
"id": "d60bac6140244b008cd682c9634a82fc",
"to_name": "text",
"type": "labels",
"value": {
"end": 7466,
"labels": [
"NONE"
],
"start": 7319,
"text": "From the Judgment and Order dated 2-2-1970 of the Bombay High Court in I.T. Reference No. 54/63) V. Rajagopal and A.G. Pudissery for the Appellant."
}
},
{
"from_name": "label",
"id": "4d9d8322332a4bd6985e99d0b6aa3460",
"to_name": "text",
"type": "labels",
"value": {
"end": 7527,
"labels": [
"NONE"
],
"start": 7466,
"text": "\n S.T. Desai, B.B.Ahuja and R.N. Sachthey for the Respondent."
}
},
{
"from_name": "label",
"id": "27e02b4e823347729e138cc762899483",
"to_name": "text",
"type": "labels",
"value": {
"end": 7541,
"labels": [
"NONE"
],
"start": 7527,
"text": "\n UNTWALIA, J."
}
},
{
"from_name": "label",
"id": "2ba95d060dbf461e9703590b492b9eb0",
"to_name": "text",
"type": "labels",
"value": {
"end": 7727,
"labels": [
"FAC"
],
"start": 7542,
"text": "This is an appeal by an assessee on grant of a certificate of fitness by the Bombay High Court under section 66A (2) of the Income-tax Act, 1922-hereinafter referred to as the 1922 Act."
}
},
{
"from_name": "label",
"id": "6344be419fa346d0afa51da31fb9c64e",
"to_name": "text",
"type": "labels",
"value": {
"end": 7758,
"labels": [
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],
"start": 7728,
"text": "The assessee is an individual."
}
},
{
"from_name": "label",
"id": "17ef0f5d27f744a7a29a9c3699e43551",
"to_name": "text",
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"value": {
"end": 7914,
"labels": [
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],
"start": 7760,
"text": "We are concerned in this case with his assessment for the assessment year 1958-59-corresponding accounting year being 1st April, 1957 to 31st March, 1958."
}
},
{
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"id": "363f31c4a8e24c21a9578cb1b246d320",
"to_name": "text",
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"value": {
"end": 8064,
"labels": [
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],
"start": 7915,
"text": "The Income tax Tribu- nal made a composite order disposing of the assessee's 640 appeals in respect of two assessment years i.e. 1958-59 and 1959-60."
}
},
{
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"id": "ff3d1ce406b746e1b3d5b0653a95df12",
"to_name": "text",
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"value": {
"end": 8167,
"labels": [
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],
"start": 8065,
"text": "The decision of the Tribunal was partly in favour of the assessee and partly in favour of the Revenue."
}
},
{
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"id": "59d84eec64c543679e2bab929ded87b8",
"to_name": "text",
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"value": {
"end": 8302,
"labels": [
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],
"start": 8168,
"text": "In respect of the assessment year 1958-59, a reference under section 66(1) of the 1922 Act was made by the Tribunal to the High Court."
}
},
{
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"id": "1abcf65783ba46de88b2ac12da5f4047",
"to_name": "text",
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"value": {
"end": 8428,
"labels": [
"RLC"
],
"start": 8303,
"text": "Four questions were referred-one at the instance of the Commissioner of Income-tax and three at the instance of the assessee."
}
},
{
"from_name": "label",
"id": "a840e5938a22494b8745ae80810ee0e2",
"to_name": "text",
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"value": {
"end": 8597,
"labels": [
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],
"start": 8429,
"text": "The High Court by' its judgment under appeal which is reported in Commissioner of Income-tax (Central), Bombay v. P.K. Badiani(1) has answered almost all the questions."
}
},
{
"from_name": "label",
"id": "a778a54887864e6e830228940fb1e279",
"to_name": "text",
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"value": {
"end": 8619,
"labels": [
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],
"start": 8598,
"text": "against the assessee."
}
},
{
"from_name": "label",
"id": "d896f7278f8d49598f905fe7ea839cd5",
"to_name": "text",
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"value": {
"end": 8638,
"labels": [
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],
"start": 8620,
"text": "Hence this appeal."
}
},
{
"from_name": "label",
"id": "7adac727ce5943b9a0f3b24231a11721",
"to_name": "text",
"type": "labels",
"value": {
"end": 8767,
"labels": [
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],
"start": 8638,
"text": "\n Mr. V. Rajgopal who had argued the case of the assessee before the High Court appeared before us in support of the appeal also."
}
},
{
"from_name": "label",
"id": "42553551eaec4543ad390ae3db10f9d6",
"to_name": "text",
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"value": {
"end": 8864,
"labels": [
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],
"start": 8768,
"text": "He could not and did not attack the decision of the High Court as respects questions 2, 3 and 4."
}
},
{
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"id": "1805b33062f6440fa34ed2bd63411c1d",
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"end": 9025,
"labels": [
"FAC"
],
"start": 8865,
"text": "But he strenuously urged before us for reversal of the High Court judgment in regard to question No. 1 which was re- ferred at the instance of the Commissioner."
}
},
{
"from_name": "label",
"id": "924563109b654e01bc729d2d9424568b",
"to_name": "text",
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"value": {
"end": 9210,
"labels": [
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],
"start": 9026,
"text": " If the assessee could succeed before us in getting an answer in his favour to the said question, then, substantially he would have succeeded in getting the whole of the relief."
}
},
{
"from_name": "label",
"id": "9ee3115a4a37484e84695b5577b750de",
"to_name": "text",
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"value": {
"end": 9625,
"labels": [
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],
"start": 9212,
"text": "The first and the only question which falls for our examination in' this appeal was referred by the Tribunal to the High Court in the following terms: \"(1) Whether the development rebate reserve created by the company by duly charging the amount to the profit and loss account and being allowable under the Act constituted 'accumulated profits' of the company within the meaning of section 2(6A)(e) of the Act?\"\n "
}
},
{
"from_name": "label",
"id": "582e6faa24074907a9487337f58c0248",
"to_name": "text",
"type": "labels",
"value": {
"end": 9712,
"labels": [
"FAC"
],
"start": 9625,
"text": "We proceed to state the necessary facts for determina- tion of the above question only."
}
},
{
"from_name": "label",
"id": "5fe7ec727d054dea9f109fa1b92b532d",
"to_name": "text",
"type": "labels",
"value": {
"end": 10029,
"labels": [
"FAC"
],
"start": 9712,
"text": "\n The assessee was a major shareholder (although at the relevant time being a major or minor shareholder did not make any difference in law) in the Sadhana Textile Mills Pvt. Ltd. which was indisputably a Company in which the public were not substantially interested within the meaning of Section 23A of the 1922-Act."
}
},
{
"from_name": "label",
"id": "7df67c0a5ff74b15b63a385bc4e675fc",
"to_name": "text",
"type": "labels",
"value": {
"end": 10110,
"labels": [
"FAC"
],
"start": 10030,
"text": "The assessee was also the Managing Director of the said Private Limited Company."
}
},
{
"from_name": "label",
"id": "d134e5bce2754da595b7bc4085d4bafc",
"to_name": "text",
"type": "labels",
"value": {
"end": 10284,
"labels": [
"FAC"
],
"start": 10111,
"text": "He had a mutual open and current account in the books of the Company--the accounting year of which was the calendar year i.e. commencing from January and ending in December."
}
},
{
"from_name": "label",
"id": "ec5503648a2d44819bb45c23bff7a730",
"to_name": "text",
"type": "labels",
"value": {
"end": 10402,
"labels": [
"FAC"
],
"start": 10285,
"text": "The assessee in his accounting year 1957-58 had withdrawn con- siderable amounts of money from the Company's account."
}
},
{
"from_name": "label",
"id": "91fbfd82110b485aa728b14df06f8068",
"to_name": "text",
"type": "labels",
"value": {
"end": 10593,
"labels": [
"FAC"
],
"start": 10402,
"text": "\nThe Income-tax Officer' treated the withdrawals made by the assessee as advances or loans given by the Company to him and taxed the amount as dividend under section 2(6A)(e) of the 1922 Act."
}
},
{
"from_name": "label",
"id": "e5907511fa9743eab8b40f51796c2189",
"to_name": "text",
"type": "labels",
"value": {
"end": 10928,
"labels": [
"FAC"
],
"start": 10594,
"text": "The Appellate Assistant Commissioner modi- fied the figure of the deemed dividend calculated by the Income-tax Officer and took the highest amount of advance made (I) 76 I.T.R. 369.\n641 to the assessee by the Company at a particular point of time in the year in question as the amount of dividend taxable in the hands of the assessee."
}
},
{
"from_name": "label",
"id": "9395338677994f03916b28fe8a141464",
"to_name": "text",
"type": "labels",
"value": {
"end": 11071,
"labels": [
"FAC"
],
"start": 10929,
"text": "The said amount was within the total figure of accumulated profits in the hands of the Company at the relevant time, i.e. 31st December, 1956."
}
},
{
"from_name": "label",
"id": "416c2802a2ec40769812c02de4333ff9",
"to_name": "text",
"type": "labels",
"value": {
"end": 11425,
"labels": [
"FAC"
],
"start": 11072,
"text": "It may just be stated here that according to the 1922 Act only the accumulated profits possessed by the company at the. end of the corresponding previous year had to be taken into account unlike the corresponding provision engrafted in section 2(22) of the Income-tax Act, 1961--hereinafter referred to as the 1961 Act, read with Explanation II thereto."
}
},
{
"from_name": "label",
"id": "d8c55dabede144d0b125ab8b00da1126",
"to_name": "text",
"type": "labels",
"value": {
"end": 11557,
"labels": [
"FAC"
],
"start": 11426,
"text": "It was found that the aggregate amount of develop- ment rebate allowed to the Company under section 10(2)(vi-b) was Rs. 2,36,470/-."
}
},
{
"from_name": "label",
"id": "5329550a60fd4d87b7c607659834bd2f",
"to_name": "text",
"type": "labels",
"value": {
"end": 11737,
"labels": [
"FAC"
],
"start": 11558,
"text": "The said amount had been debited in the profit and loss account of the Company for the account- ing year 1966 leaving a balance of Rs. 6,641/- only in the profit and loss account."
}
},
{
"from_name": "label",
"id": "399c5b34e4594b37bced83d92df1dd80",
"to_name": "text",
"type": "labels",
"value": {
"end": 11894,
"labels": [
"FAC"
],
"start": 11738,
"text": "The Appellate Assistant Commis- sioner of Income-tax treated the entire sum of Rs.\n2,43,111/- as the amount of accumulated profits possessed by the Company."
}
},
{
"from_name": "label",
"id": "8069eac2640b439a84048a7513cf13b1",
"to_name": "text",
"type": "labels",
"value": {
"end": 11949,
"labels": [
"FAC"
],
"start": 11895,
"text": "Finding the highest amount of advance to the assessee."
}
},
{
"from_name": "label",
"id": "edb3c3f63d104e61af4c02da94510049",
"to_name": "text",
"type": "labels",
"value": {
"end": 12126,
"labels": [
"FAC"
],
"start": 11950,
"text": "at a particular ;point of time to be aggregating to Rs. 1,83,493.70 he directed the addition of the said amount in the assessee's income under section 2(6A)(e) of the 1922-Act."
}
},
{
"from_name": "label",
"id": "e0c11e98ae0e48d8a35222540621b77a",
"to_name": "text",
"type": "labels",
"value": {
"end": 12334,
"labels": [
"FAC"
],
"start": 12127,
"text": "The High Court has directed some modification in the calculation of the said amount while answering the other questions referred to it at the instance of the asses- see and we need not go into their details."
}
},
{
"from_name": "label",
"id": "719ff99c29ad4baa977fabafd403df25",
"to_name": "text",
"type": "labels",
"value": {
"end": 12600,
"labels": [
"ISSUE"
],
"start": 12334,
"text": "\n The main question for our determination in this appeal is whether the aggregate of the development rebates allowed to the Company under section 10(2)(vi-b) of the 1'922-Act could be treated as accumulated profits in the hands of the Company under section 2(6A)(e)."
}
},
{
"from_name": "label",
"id": "bf45914b4f724bfda78642b186517130",
"to_name": "text",
"type": "labels",
"value": {
"end": 12754,
"labels": [
"ANALYSIS"
],
"start": 12600,
"text": "\n The Income-tax Acts have undergone numerous changes from time to time and various amendments have been made both in the 1922Act as also in the 1961-Act."
}
},
{
"from_name": "label",
"id": "a8ec080769eb41368752528600e09324",
"to_name": "text",
"type": "labels",
"value": {
"end": 12844,
"labels": [
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],
"start": 12755,
"text": "We shall do well to quote all the subclauses (a) to (e) of section 2(6A) of the 1922-Act."
}
},
{
"from_name": "label",
"id": "1aaff0f71b17490ca3203cc4340750ec",
"to_name": "text",
"type": "labels",
"value": {
"end": 14312,
"labels": [
"STA"
],
"start": 12845,
"text": "They read as follows: \"2(6A) \"dividend\" includes-- (a) any distribution by a company of accumulated profits whether capitalised or not, if such distri- bution entails the release by the company to its shareholders of all or any part of the assets of the company; (b) any distribution by a company of deben- tures, debenture-stock or deposit certificates in any form, whether with or without interest, to the extent to, which the company possesses accumulated profits, whether capitalised or not; (c) any distribution made to the shareholders of a company on its liquidation, to the extent to which the distribution is attributable to the accumulated profits of the company immediately before its liquidation, whether capitalised or not; 642 (d) any distribution by a company on the reduc- tion of its capital to the extent to which the company possesses accumulated profits which arose after the end of the previous year ending next before the 1st day of April, 1933, whether such accumulated profits have been capitalised or not; (e) any payment by a company, not being a company in which the public are substantially interested within the meaning of section 23A, of any sum (whether as representing a part of the assets of the company or otherwise) by way of advance or loan to a shareholder or any payment by any such company On behalf or for the individual benefit of a shareholder, to the extent to which the company in either case possesses accumulated profits;"
}
},
{
"from_name": "label",
"id": "66767e47245e4e7a876fd5420a01f2cc",
"to_name": "text",
"type": "labels",
"value": {
"end": 14550,
"labels": [
"STA"
],
"start": 14313,
"text": "Explanation--The expression \"accumulated profits,\" wherever it occurs in this clause, shall not include capital gains arising before the 1st day of April, 1946, or after the 31st day of March, 1948 and before the 1st day of April, 1956.\""
}
},
{
"from_name": "label",
"id": "244259f2ee99491299cc2b41c5b1e8a8",
"to_name": "text",
"type": "labels",
"value": {
"end": 14811,
"labels": [
"ANALYSIS"
],
"start": 14550,
"text": "\n The expression \"accumulated profits\" occurring in clause (e) of section 6A, or as a matter of that in any of the other clauses, undoubtedly means profits in the commercial sense and not assessable or taxable profits liable to tax as income under the.1922 Act."
}
},
{
"from_name": "label",
"id": "b948912a6cc3401d95953e49cd8a1874",
"to_name": "text",
"type": "labels",
"value": {
"end": 14960,
"labels": [
"ANALYSIS"
],
"start": 14812,
"text": "It is a well known concept of the taxation law that the term 'profits' in the various sections of the Income-tax Acts have not got the same meaning."
}
},
{
"from_name": "label",
"id": "f39ef1f1027b4c80905c0b0918f2dc82",
"to_name": "text",
"type": "labels",
"value": {
"end": 15066,
"labels": [
"ANALYSIS"
],
"start": 14961,
"text": "In the context --sometimes it means the assessable profits and sometimes it means the commercial profits."
}
},
{
"from_name": "label",
"id": "ae3a1ffd35dd4ceca8810706f8a5fa10",
"to_name": "text",
"type": "labels",
"value": {
"end": 15236,
"labels": [
"ANALYSIS"
],
"start": 15067,
"text": "In Palmer's Company Law, Twenty First Edition at page 662 the distinc- tion between profits, divisible profits and profits avail- able for dividend has been pointed out."
}
},
{
"from_name": "label",
"id": "43181050b4844953b42426b8382fb28d",
"to_name": "text",
"type": "labels",
"value": {
"end": 15524,
"labels": [
"ANALYSIS"
],
"start": 15237,
"text": "At the said page occurs an oft quoted classical passage from the judgment of Fletcher Moulton, L.J., in Re Spanish Prospecting Co. Ltd.\n (1) which runs thus: \"'Profits' implies a comparison between the state of a business at two specific dates usually separated by an interval of a year."
}
},
{
"from_name": "label",
"id": "64bc1d5d82a34faebd333eac327fadee",
"to_name": "text",
"type": "labels",
"value": {
"end": 15610,
"labels": [
"ANALYSIS"
],
"start": 15525,
"text": "The fundamen- tal meaning is the amount of gain made by the business during the year."
}
},
{
"from_name": "label",
"id": "8c91b19eb40446108b35ee8014ee6b16",
"to_name": "text",
"type": "labels",
"value": {
"end": 15713,
"labels": [
"ANALYSIS"
],
"start": 15611,
"text": "This can only be ascer- tained by a comparison of the assets of the busi- ness at the two dates ......"
}
},
{
"from_name": "label",
"id": "93880234b9e646b88cfde80cfc645410",
"to_name": "text",
"type": "labels",
"value": {
"end": 16062,
"labels": [
"ANALYSIS"
],
"start": 15714,
"text": "If the total assets of the business at the two dates be compared, the increase which they show at the later date as compared with the earlier date (due allowance of course being made for any capital introduced into or taken out of the business in the meanwhile) represents in strictness the profits of the busi- ness during the period in question.\""
}
},
{
"from_name": "label",
"id": "2719e384e5614e23b60a4809dcddea1b",
"to_name": "text",
"type": "labels",
"value": {
"end": 16837,
"labels": [
"PRE_RELIED"
],
"start": 16062,
"text": "\n Bhagwati, J. has quoted the above passage with approval in the case of E.D. Sassoon & Company Ltd. and others v. Com- missioner of Income-tax, Bombay City.('2) Almost to the same effect ,was the view (1) [1911] 1 Ch. 92, 98. (2) 26 I.T.R. 27 at page 46.\n 643 expressed by Mahajan, J. as he then was, in the case of Commissioner of Income-tax, Bombay v. Ahmedbhai Umarbhai & Co., Bombay(1) In Commissioner of Income-tax, Bombay City v. Bipinchandra Maganlal & Co. Ltd.('2) Shah, J., as he then was, delivering the judgment on behalf of the Court while interpreting the expression \"smallness of profits\" occur- ring in section 23A of the 1922 Act said at page 296: \"A company normally distributes dividends out of its business profits and not out of its assessa- ble income."
}
},
{
"from_name": "label",
"id": "9e8db16b28aa42d88119cc8c135a22f5",
"to_name": "text",
"type": "labels",
"value": {
"end": 16961,
"labels": [
"PRE_RELIED"
],
"start": 16838,
"text": "There is no definable relation between the assessable income and the profits of a business concerned in a commercial sense."
}
},
{
"from_name": "label",
"id": "938ee80d1f3f434987f923b16b7126fc",
"to_name": "text",
"type": "labels",
"value": {
"end": 17158,
"labels": [
"PRE_RELIED"
],
"start": 16962,
"text": "Computation of income for purposes of assessment of income-tax is based on a variety of artificial rules and takes into account several fictional receipts, deductions and allowances .............."
}
},
{
"from_name": "label",
"id": "a0f9e02eabda4cae93bdef98b416a30d",
"to_name": "text",
"type": "labels",
"value": {
"end": 17318,
"labels": [
"PRE_RELIED"
],
"start": 17159,
"text": "Smallness of the profit in section 23A has to be adjudged in the light of commercial principles and not in the light of total receipts, actual or fictional.\"\n "
}
},
{
"from_name": "label",
"id": "9dd36a5c73a943269ef3935ae7d28021",
"to_name": "text",
"type": "labels",
"value": {
"end": 17441,
"labels": [
"PRE_RELIED"
],
"start": 17318,
"text": "The same view has been expressed by this Court in Gobald Motor Service (P) Ltd. v. Commissioner of Income-tax, Ma- dras(3)."
}
},
{
"from_name": "label",
"id": "fbd5eab5b0dd4dcfa8a12c16ad35176c",
"to_name": "text",
"type": "labels",
"value": {
"end": 17647,
"labels": [
"PRE_RELIED"
],
"start": 17442,
"text": "We think that the term \"profits\" occurring in section 2(6A)(e) of the 1922 Act means profits in the com- mercial sense-that is to say the profits made by the Company in the real and true sense of the term."
}
},
{
"from_name": "label",
"id": "881bfe9b5d194236b0e5b53ae7569091",
"to_name": "text",
"type": "labels",
"value": {
"end": 17678,
"labels": [
"PRE_RELIED"
],
"start": 17648,
"text": ",We may just give one example."
}
},
{
"from_name": "label",
"id": "827ffef39fa640fcbde962dee6e200d6",
"to_name": "text",
"type": "labels",
"value": {
"end": 18033,
"labels": [
"PRE_RELIED"
],
"start": 17679,
"text": "Suppose the assessable profit of a company is Rs. 1,00,000/- out of which the Company had to pay a tax under the Income-tax Act--say to the extent of Rs.\n 30,000/-. .Although payment of tax is not a sum deductible from the assessable profits of the Company, in the commer- cial sense the Company would be left with a sum of Rs.\n 70,000/- only as profits."
}
},
{
"from_name": "label",
"id": "95d8fa7a0ab7438e83092f2af10ca907",
"to_name": "text",
"type": "labels",
"value": {
"end": 18127,
"labels": [
"ARG_PETITIONER"
],
"start": 18034,
"text": "We may add that Mr. Rajgopal could not and did not seriously dispute this proposition of law."
}
},
{
"from_name": "label",
"id": "f76ae9f56c03452b84439ef1556e7489",
"to_name": "text",
"type": "labels",
"value": {
"end": 18269,
"labels": [
"ARG_PETITIONER"
],
"start": 18127,
"text": "\n The gravamen of the argument of the assessee has been that development rebate deductible from the assessable profits of the Company is also."
}
},
{
"from_name": "label",
"id": "c4e778eb54504b2aba6c929bcd673db3",
"to_name": "text",
"type": "labels",
"value": {
"end": 18415,
"labels": [
"ARG_PETITIONER"
],
"start": 18270,
"text": "a type of outgoing expendi- ture or out-of-pocket cost which is deductible while ascertaining the profits of the Company in the commercial sense."
}
},
{
"from_name": "label",
"id": "10b1047edf894dd7879aac4b51831856",
"to_name": "text",
"type": "labels",
"value": {
"end": 18733,
"labels": [
"ANALYSIS"
],
"start": 18416,
"text": "Counsel submitted that it is in the nature of a depreciation allowance and is identical with initial depre- ciation; it should, therefore, be deducted from the commer- cial profits of the Company as held by the Gujarat High Court in the case of Commissioner of Income-tax, Bombay North v. Viramgam Mills Co. Ltd. (4)."
}
},
{
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"id": "cd771f38a9f844de9380138ccaff46b9",
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"value": {
"end": 18814,
"labels": [
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],
"start": 18734,
"text": "This argument found favour with the Tribunal but was repelled by the High Court."
}
},
{
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"end": 18922,
"labels": [
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],
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"text": "\n The point is res integra and we have to examine the correct- ness of the view expressed by the High Court."
}
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{
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"end": 19108,
"labels": [
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],
"start": 18922,
"text": "\n Depreciation allowance has been allowed to be deducted from the assessable .profits of an assessee under section 10(2) (vi) of the 1922 Act corresponding to section 32 of the 1961 Act."
}
},
{
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"end": 19272,
"labels": [
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],
"start": 19109,
"text": "It would appear from the report of the Taxation Enquiry Commission 1953-54 Vol. II as to what is the nature of the depreciation allowance; vide Chapter V, page 74."
}
},
{
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"id": "87e36f83265047948f7761cf853a5a83",
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"end": 19570,
"labels": [
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],
"start": 19273,
"text": "The normal depreciation provided in clause (vi) and the additional depreciation mentioned in clause (vi-a) of section 10(2) of (1) 18 I.T.R. 472 at 502. (2) 41 I.T.R.\n 290.\n (3) 60 I.T.R. 417. (4) 43 I.T.R.\n 270.\n 644 the 1922 Act is permitted to be deducted from the 'written downvalue'."
}
},
{
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"id": "a8d808f8d82a43aeaede14d12de3d970",
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"value": {
"end": 19688,
"labels": [
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],
"start": 19571,
"text": "By and large, the cost of replacements is allowed as deductions in lieu of depreciation in respect of certain assets."
}
},
{
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"id": "540f7a235e9f499dabbb319c0b7e2b96",
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"end": 19924,
"labels": [
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],
"start": 19689,
"text": "By the amendments made by the Income-tax Amendment Act, 1946., the Finance Act, 1955 and the Finance Act, 1956 certain initial depreciation was allowed in re- spect of buildings newly erected or the machinery and plant newly installed."
}
},
{
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"labels": [
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],
"start": 19925,
"text": "Obviously, it was by way of an incentive for the new structures or the new installations."
}
},
{
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"end": 20275,
"labels": [
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],
"start": 20015,
"text": "The amount of initial depreciation was not deductible in deter- mining the 'written down value' although under proviso (c) it was to be taken into account in the aggregate of all allowances so as not to permit them to exceed the maximum limit provided therein."
}
},
{
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"end": 20387,
"labels": [
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],
"start": 20276,
"text": "Development rebate was provided in clause (vi-b) with effect from 1st April, 1955 by the Fi- nance Act of 1955."
}
},
{
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"labels": [
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],
"start": 20388,
"text": "There was an over-lapping period of about two years in relation to the allowance of initial depreciation or the development rebate."
}
},
{
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"id": "9bc41945cda4460fb99fd5cc72cc243b",
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"end": 20622,
"labels": [
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],
"start": 20520,
"text": "But as provided for in clause (vi) an assessee could not have' had both even in regard to that period."
}
},
{
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"end": 20848,
"labels": [
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],
"start": 20623,
"text": "Although initial depreciation and development rebate were not identical as they differed in some material particulars, they were similar in nature as both were by way of incentive for installation of new ma- chinery or plant."
}
},
{
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"end": 21048,
"labels": [
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],
"start": 20849,
"text": "The initial depreciation or the develop- ment rebate was to be allowed, as the case may be; at a certain percentage of the actual cost of the machinery or the plant for the year of installation only."
}
},
{
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"end": 21185,
"labels": [
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],
"start": 21049,
"text": "It was not a recurring allowance for the subsequent years like; the allowance of the normal depreciation or the additional depreciation."
}
},
{
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"id": "0d51635e711343a4b7188cf67db74272",
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"end": 21544,
"labels": [
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],
"start": 21185,
"text": "The Taxation Enquiry Commission in its report aforesaid had recommended in Chapter VII, page 98 of Vol. II for assisting the expansion and development of :productive enterprise by allowing them a proportion of new investment in fixed assets to be charged to current costs of production thereby permitting the taxable profits to be brought down to that extent."
}
},
{
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"end": 21772,
"labels": [
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],
"start": 21545,
"text": "In the Finance Act of 1955 a provision was made to allow a development rebate of 25% of the cost of all new plant and machinery installed for business purposes instead of the then existing initial depreciation allowance of 20%."
}
},
{
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"end": 21952,
"labels": [
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],
"start": 21773,
"text": "It would thus be seen that by way of an incentive for installation of new machinery and plants initial depreciation allowance of 20% was replaced by a develop- ment'rebate of 25%."
}
},
{
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"id": "bfbf0066765b40db9051c08783e2f43d",
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"end": 22107,
"labels": [
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],
"start": 21953,
"text": "But it was, like grant of export rebate by way of incentive to make more exports, in the nature of an incentive for setting up new machineries and plants."
}
},
{
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"id": "4a2004898956419f87dc4d4bdb1d490d",
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"end": 22425,
"labels": [
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],
"start": 22108,
"text": "We do not find any warrant for accepting the contention of Mr. Rajgopal that the initial depreciation or the develop- ment rebate was allowed as 'an extra deductible allowance of business expenses in the year of installation of new machin- ery for meeting the ever increasing costs of its replacement in future years."
}
},
{
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"id": "c2eefbc7faeb43c49863115c1252050c",
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"end": 22575,
"labels": [
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],
"start": 22426,
"text": "In our opinion it was meant merely to reduce the tax liability of the assessee in order to give him an incentive to instal new machineries or plants."
}
},
{
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"id": "fd9f06c71f0642d1be47ba2bc3d50743",
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"end": 22895,
"labels": [
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],
"start": 22575,
"text": "\n The Gujarat High Court in the case of Viramgam Mills Co.\nLtd. (supra) was concerned with the question as to whether the normal depreciation reserve of .'the Company could be taken to be the accumulations of past profits within the meaning of the proviso to section 23A of the 1922 Act as it stood at the relevant time."
}
},
{
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"id": "3c23dbf217174450a17e6e72224c7b82",
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"value": {
"end": 23193,
"labels": [
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],
"start": 22896,
"text": "It held that it could not form part of the accumulated past profits as in the words of Wixon (vide Wixon's Accounts Hand Book) it was \"the estimat- ed 645 expiration of asset value\" or as observed by Paton in his Accountants' Hand Book, Third edition it is an out-of-pocket cost as any other cost."
}
},
{
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],
"start": 23194,
"text": "Says the learned author in the above book at p. 746 thus: \"There is still widespread misapprehension as to the precise significance of the depreciation charge."
}
},
{
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"end": 23504,
"labels": [
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],
"start": 23354,
"text": "It is often deemed a more or less imagi- nary and hypothetical :element, and is sharply contrasted with the regular \"out-of-pocket\" oper- ating costs."
}
},
{
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"id": "8ad4d8ee9c1e42b7b9d2cd166f697e11",
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"labels": [
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],
"start": 23505,
"text": "As a matter of fact there is nothing at all imaginary about depreciation as a cost of business operation and at bottom it is just as much 'an out-of-pocket cost as any other."
}
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{
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"id": "b6527cab23b54e32a63bea25699afb6e",
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"value": {
"end": 23822,
"labels": [
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],
"start": 23680,
"text": "The deprecia- tion charge is merely the periodic operating aspect of fixed-asset costs, and there is no doubt as to the reality of such costs."
}
},
{
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"id": "08f146cddab44ac0aa2899306e7f9a37",
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"value": {
"end": 23924,
"labels": [
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],
"start": 23823,
"text": "Far from being a non-out-of pocket charge depreciation represents the extreme example of prepayment.\""
}
},
{
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"id": "a2594652441d416697a034540dc6592b",
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"value": {
"end": 24066,
"labels": [
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],
"start": 23924,
"text": "\n Mr. S.T. Desai, learned counsel for the Revenue drew our attention to the decision of the Calcutta High Court in Commissioner of Income tax."
}
},
{
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"id": "6c89db269e9446efac4f9636e90447cd",
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"value": {
"end": 24263,
"labels": [
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],
"start": 24067,
"text": "Calcutta v. Sri Bibhuti Bhusan Dutt(1) and submitted that it has taken a view different from the one taken by the Gujarat High Court even in regard to the nature of normal 'depreciation allowance."
}
},
{
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"value": {
"end": 24438,
"labels": [
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],
"start": 24264,
"text": "The Calcut- ta case seems to be one of a property-holding company, the profits of which were assessable under section 9 wherein the question of depreciation was not relevant."
}
},
{
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"id": "e0b2b2764de343d5a7ab4c421ef58e1b",
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"value": {
"end": 24647,
"labels": [
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],
"start": 24439,
"text": "It is not neces- sary for us to examine in this case the exact nature of the normal depreciation allowance and whether it is deductible from the profits of a person while determining his commer- cial profits."
}
},
{
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"id": "db3abcd5346e45bd92657f6d902e6c02",
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"end": 24800,
"labels": [
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],
"start": 24648,
"text": "The view expressed by the Gujarat High Court seems to be reasonably plausible and correct and for the purposes of this case we shall assume it to be so."
}
},
{
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"id": "564137060a12498597613e9f2907ff06",
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"value": {
"end": 24963,
"labels": [
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],
"start": 24801,
"text": "Yet, we do not feel persuaded to accept the argument of the assessee and equate the initial depreciation or the develop- ment rebate with the normal depreciation."
}
},
{
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"id": "0844128b1f824fd48e8c37f0fba53c18",
"to_name": "text",
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"value": {
"end": 25110,
"labels": [
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],
"start": 24964,
"text": "In our opinion such an allowance is in no sense a deductible item of cost or expenditure in the process of settlement of the commer- cial profits."
}
},
{
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"id": "f60fe2a616fe4a12ba9868d702b20d5b",
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"value": {
"end": 25225,
"labels": [
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],
"start": 25111,
"text": "Although it does not form part of the assessable profits, undoubtedly it does form part of the commercial profits."
}
},
{
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"id": "35c13bfa7616420a935d6d38bd11cb86",
"to_name": "text",
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"value": {
"end": 25572,
"labels": [
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],
"start": 25225,
"text": "\n Tea Estate India Pvt. Ltd. v. Commissioner of Income-tax, West Bengal 11 (and vice versa)(2) one of us (Khanna, J.) delivering the judgment on behalf of the Court has interpreted the, expression \"accumulated profits\" occur- ring in clause (c) of section '2(6A) of the 1922 Act to include the amount of development rebate in the commercial sense."
}
},
{
"from_name": "label",
"id": "5dd1fc5359134f11bfd18cd41ff7fdb6",
"to_name": "text",
"type": "labels",
"value": {
"end": 25767,
"labels": [
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],
"start": 25573,
"text": "It has been stated at page 794: \"The acceptance of the contention would necessarily postulate reading in section 2(6A)(c) the words \"accumulated profits as are liable to be taxed under the Act\"."
}
},
{
"from_name": "label",
"id": "f86e030552d54bdda5bc86d89bee061a",
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"value": {
"end": 25972,
"labels": [
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],
"start": 25768,
"text": "The words \"as are liable to be taxed under the Act\" are not there in the definition and it would not, in our opinion, be permissible to so construe the clause as if those words were a part of that clause."
}
},
{
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"id": "452b4564df954d02a80a30b8cb08432c",
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"value": {
"end": 26087,
"labels": [
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],
"start": 25973,
"text": "There is also nothing in the language (1) 48 I.T.R. 233. (2) 103 I.T.R. 785.\n 646"
}
},
{
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"id": "07590a0fb1504b56bb0d4797a9526d49",
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"value": {
"end": 26151,
"labels": [
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],
"start": 26088,
"text": "Or Context of that clause as would warrant such a construction."
}
},
{
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"to_name": "text",
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"value": {
"end": 26279,
"labels": [
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],
"start": 26152,
"text": "Accumulated profits would retain their character as such even though a part of them were not taxed as profits under the Act.\"\n "
}
},
{
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"id": "2b9fdee393394422a31cf193e816727b",
"to_name": "text",
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"value": {
"end": 26562,
"labels": [
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],
"start": 26279,
"text": "The purpose of section 2 (6A) of the 1922 Act corresponding to section 2(22) of the 1961 Act is to include within the term \"dividend\" for the purpose of taxation certain distri- butions or payments of certain items of money or the like as deemed dividend for the purpose of taxation."
}
},
{
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"id": "f274435d0abf47ae9cf59c5a599bd738",
"to_name": "text",
"type": "labels",
"value": {
"end": 26757,
"labels": [
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],
"start": 26563,
"text": "Under clause (e) an advance or loan or money to a shareholder by a pri- vate Company has been directed to be treated as dividend to the extent to which the Company possessed accumulated profits."
}
},
{
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"id": "04271f9d8e9c423188722845c242a571",
"to_name": "text",
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"value": {
"end": 26838,
"labels": [
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],
"start": 26758,
"text": "The advance or the loan, by a legal fiction, is to resemble the actual dividend."
}
},
{
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"id": "c2cf5882315f44fb817840f383d661c9",
"to_name": "text",
"type": "labels",
"value": {
"end": 27032,
"labels": [
"ANALYSIS"
],
"start": 26839,
"text": "For the purpose of distribu- tion of the dividend the amount of development rebate could form part of the profits of the Company; a fortiori, it would be so far the purposes of clause (e) also."
}
},
{
"from_name": "label",
"id": "d5422b2dbd04404e8e83ab225ea3eff2",
"to_name": "text",
"type": "labels",
"value": {
"end": 27180,
"labels": [
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],
"start": 27034,
"text": "During the course of the arguments of this appeal, our attention was directed to a new facet of the question under consideration and that is this."
}
},
{
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"id": "856c13e5db6f401dafdf802463bcd86d",
"to_name": "text",
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"value": {
"end": 27403,
"labels": [
"ANALYSIS"
],
"start": 27181,
"text": "In clauses (a) to (d) of section 2(6A) of the 1922-Act so also in the corresponding clauses of section 2(22) of the 1961-Act the expression \"accumulated profits\" is qualified by the expression \"whether capitalised or not\"."
}
},
{
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"id": "2055708b51634e5c9aa267a3ecf4315e",
"to_name": "text",
"type": "labels",
"value": {
"end": 27464,
"labels": [
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],
"start": 27404,
"text": "But the latter phrase is conspicuously absent in clause (e)."
}
},
{
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"id": "4216dfb7c5df4c56a31dabc5f72adfc8",
"to_name": "text",
"type": "labels",
"value": {
"end": 27567,
"labels": [
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],
"start": 27465,
"text": "What is the purpose of this difference in the phraseology of the various clauses of sub-section (6A) ?"
}
},
{
"from_name": "label",
"id": "e52f1c3476744d738d308b68df11e1f2",
"to_name": "text",
"type": "labels",
"value": {
"end": 27648,
"labels": [
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],
"start": 27568,
"text": "The reason is -not far to seek and yet not helpful to the assessee in this case."
}
},
{
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"id": "8b9879378fee45909363428d95ad058f",
"to_name": "text",
"type": "labels",
"value": {
"end": 27755,
"labels": [
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],
"start": 27650,
"text": "The profits of a Company can be capitalised in accord- ance with the Articles of Association and the law."
}
},
{
"from_name": "label",
"id": "78d800dffd4e46a7a797dddc1775ad21",
"to_name": "text",
"type": "labels",
"value": {
"end": 27846,
"labels": [
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],
"start": 27756,
"text": "On the capitalisation of the profits they cease to be profits in the hands of the Company."
}
},
{
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"id": "3d703a7281424351be573bd5e60e3e41",
"to_name": "text",
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"value": {
"end": 27958,
"labels": [
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],
"start": 27847,
"text": "The nature of the asset is changed although it does not make any difference in the total assets of the Company."
}
},
{
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"id": "2c15286b60844944bee82042b996c42d",
"to_name": "text",
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"value": {
"end": 28017,
"labels": [
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],
"start": 27959,
"text": "But profits stand transmuted and transformed into capital."
}
},
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"id": "3270a0cee16842c4b089e89d2119dbef",
"to_name": "text",
"type": "labels",
"value": {
"end": 28122,
"labels": [
"ANALYSIS"
],
"start": 28018,
"text": "The most common example of capitalisation of profits is by issuance of bonus shares to the shareholders."
}
},
{
"from_name": "label",
"id": "a20ee0803d22440db5dd5db48ee024f5",
"to_name": "text",
"type": "labels",
"value": {
"end": 28252,
"labels": [
"ANALYSIS"
],
"start": 28123,
"text": "Clause (a) to (d) were intended by the Legislature to cover the cases of accumulated profits even though they may be capitalised."
}
},
{
"from_name": "label",
"id": "aab8110c5dec4020a9af3a30b5f2ee0a",
"to_name": "text",
"type": "labels",
"value": {
"end": 28337,
"labels": [
"ANALYSIS"
],
"start": 28253,
"text": "But the Legislature did not intend to rope in the capitalised profits in clause (e)."
}
},
{
"from_name": "label",
"id": "843f1ce62dbc41278570c98b619baa5d",
"to_name": "text",
"type": "labels",
"value": {
"end": 28800,
"labels": [
"ANALYSIS"
],
"start": 28338,
"text": "We may add that though under clause (b) distribution by a Company of debentures, debenture stock or deposit certifi- cates in any form in lieu of capitalised profits is to be deemed dividend within the meaning of sub-section (6A), mere distribution of bonus shares after capitalising the accumu- lated profits, unless the distribution entails the release by the Company to its shareholders of any part of the assets of the Company is not to be a deemed dividend."
}
},
{
"from_name": "label",
"id": "56f924897fc0400dba5a541a3f20b350",
"to_name": "text",
"type": "labels",
"value": {
"end": 29035,
"labels": [
"ANALYSIS"
],
"start": 28801,
"text": "Even under the 1961 Act distribution of bonus shares to the equity shareholders after capitalising the profits in accordance with law is not to be a deemed dividend although distribu- tion of such shares to preference shareholders is."
}
},
{
"from_name": "label",
"id": "ea19863e33304880a39a7d1cc36a32ba",
"to_name": "text",
"type": "labels",
"value": {
"end": 29412,
"labels": [
"ANALYSIS"
],
"start": 29036,
"text": "It is thus clear that if money is paid to a shareholder of a private company by way of advance or loan after the accumu- lated profits have been capitalised in accordance with the law and the Articles of Association then such payment, although it may represent a part of the assets of the Compa- ny or otherwise, cannot be co-related to the capitalised profits of the Company."
}
},
{
"from_name": "label",
"id": "1b3ed5ba467841c0bd99902c4d5c9b97",
"to_name": "text",
"type": "labels",
"value": {
"end": 29525,
"labels": [
"ANALYSIS"
],
"start": 29413,
"text": "To the extent the profits have been capitalised the Company cannot be said to possess any accu- mulated profits."
}
},
{
"from_name": "label",
"id": "30b12f053620450587b50e9cff29dea5",
"to_name": "text",
"type": "labels",
"value": {
"end": 29679,
"labels": [
"ANALYSIS"
],
"start": 29526,
"text": "647 But the Obvious difficulty in the way of the appellant is that the accumulated profits of the Company in the year in question were never capitalised."
}
},
{
"from_name": "label",
"id": "57dfefc78d264b05a372fda24da835e5",
"to_name": "text",
"type": "labels",
"value": {
"end": 29853,
"labels": [
"ANALYSIS"
],
"start": 29680,
"text": "Mere transferring the sum of Rs. 2,36,470/- by debiting it to the profit and loss account to the development reserve account did not amount to the capitalisation of profits."
}
},
{
"from_name": "label",
"id": "164e7f6f389f4daa9df161d857938773",
"to_name": "text",
"type": "labels",
"value": {
"end": 29922,
"labels": [
"ANALYSIS"
],
"start": 29854,
"text": "The nature of the assets in the hands of the Company did not change."
}
},
{
"from_name": "label",
"id": "3a3c91daf5554227aa74e30349f87d22",
"to_name": "text",
"type": "labels",
"value": {
"end": 29971,
"labels": [
"ANALYSIS"
],
"start": 29923,
"text": "It remained profits in the hands of the Company."
}
},
{
"from_name": "label",
"id": "19d64e2171244af28b91c47d4ce4a9bc",
"to_name": "text",
"type": "labels",
"value": {
"end": 30149,
"labels": [
"ANALYSIS"
],
"start": 29971,
"text": "\n According to the Dictionary of English Law by Earl' Jowitt, Vol. 1 \"capitalisation\" means \"the conversion of profits or income into. capital, e.g., by resolution of a company\"."
}
},
{
"from_name": "label",
"id": "1b1de2620dce418ebbe69b09aa760b0c",
"to_name": "text",
"type": "labels",
"value": {
"end": 30339,
"labels": [
"ANALYSIS"
],
"start": 30150,
"text": "Buckley on the Companies Acts, thirteenth edi- tion, has pointed out at page 907 \"Profits carried to re- serve do not cease to be profits unless and until they are effectually capitalised\"."
}
},
{
"from_name": "label",
"id": "680fdb8c87ac4e51972429153c28d8ab",
"to_name": "text",
"type": "labels",
"value": {
"end": 30842,
"labels": [
"STA"
],
"start": 30340,
"text": "Says the learned author at page 912 after referring to Article 128 corresponding to Regula- tion 96 of Table \"A\" of the Indian Companies Act: \"A company may, if its constitution so al- lows, capitalize profits, instead of dividing them, by applying them in paying up unissued shares, or debentures or other securities, and issuing such shares or securities as fully paid to its members, thereby transferring the sum capitalized from profit and loss or reserve account to share or loan capital account.\""
}
},
{
"from_name": "label",
"id": "5b00f90929204dabb64c7e7e67092f95",
"to_name": "text",
"type": "labels",
"value": {
"end": 30958,
"labels": [
"ANALYSIS"
],
"start": 30844,
"text": "To the same effect is the statement of the law to be found in Palmer's Company Law, twenty-first edition page 673."
}
},
{
"from_name": "label",
"id": "045676f6e9f9431b958c8abb0ef7eae6",
"to_name": "text",
"type": "labels",
"value": {
"end": 31271,
"labels": [
"ANALYSIS"
],
"start": 30959,
"text": "The \"capitalisation of profits\". says the learned author, means \"that profits which otherwise are available for distribution among the shareholders are not divided among them in cash, but that the shareholders are allotted further shares--or debentures--which are paid up wholly or in part out of' those profits."
}
},
{
"from_name": "label",
"id": "59aec9123efa44b08901071800bb1449",
"to_name": "text",
"type": "labels",
"value": {
"end": 31443,
"labels": [
"ANALYSIS"
],
"start": 31272,
"text": "The amount paid by the company out of its divisible profits on account of these newly issued shares is known as the bonus, and the shares are referred to as bonus shares.\""
}
},
{
"from_name": "label",
"id": "d2e4a9a4436149df990622b4bc8ca845",
"to_name": "text",
"type": "labels",
"value": {
"end": 31630,
"labels": [
"PRE_RELIED"
],
"start": 31444,
"text": "Lord Herscheil in the case of Ann Bouch and Wil- liam Bouch v. William Bouch Sprou(1) was considering as to what was the nature and substance of the transaction in question in that case."
}
},
{
"from_name": "label",
"id": "1c0a16cb47604f5abe0e3e1b9ef313ff",
"to_name": "text",
"type": "labels",
"value": {
"end": 31761,
"labels": [
"PRE_RELIED"
],
"start": 31631,
"text": "The learned and the noble Lord said at page 398: \"I think we must look both at the 'substance and form of the transaction ........"
}
},
{
"from_name": "label",
"id": "6b7ac76f68da4d8c9f24ddb18cc07a4b",
"to_name": "text",
"type": "labels",
"value": {
"end": 31970,
"labels": [
"PRE_RELIED"
],
"start": 31762,
"text": "And it was obviously contemplated, and was, I think, certain that no money would, in fact, pass from the company to the shareholders, but that the entire sum would remain in their hands as paid-up capi- tal.\""
}
},
{
"from_name": "label",
"id": "85ebab6e969e4f52ae2931e4d351f84a",
"to_name": "text",
"type": "labels",
"value": {
"end": 32208,
"labels": [
"PRE_RELIED"
],
"start": 31971,
"text": "And finally 'it was said at page 399: \"I cannot, therefore, avoid the conclusion that the substance of the whole transaction was, and was intended to be, to convert the undivided profits into paid-up capital upon newly-creat- ed shares.\""
}
},
{
"from_name": "label",
"id": "031d6ce70eee4ee3871d10ea051e2827",
"to_name": "text",
"type": "labels",
"value": {
"end": 33233,
"labels": [
"PRE_RELIED"
],
"start": 32208,
"text": "\n The Madras High Court has pointed out in Commissioner Income-tax, Madras v.K. Srinivasan and others(2), to quote the placitum only: \"For the purposes of section 2(6A)(e) of the Income tax Act, 1922, \"accumulated profits\" include general reserves.\n (1) 12 Appeal Cases, 385.\n (2) 50 I.T.R. 788.\n 648 Unless the profit is capitalised in some form or other mere transfer of the profits to any reserve account will not take away from profits the charac- ter of accumulated profits.\"\n In Sheth Haridas Achratlal v. Commissioner of Income-tax, Bombay North, Kutch and Saurashtra, Baroda(1)--Chief Justice Chagla delivering the judgment on behalf of the Bench of the Bombay High Court said at page 690: \"But when we compare the language used by the Legislature in sub-clauses (a), (b) and (d) and when we note the omission of the qualifying words in sub-clause (c) then it is clear that the Legislature advisedly did not intend to subject to tax those accumulated profits which had been capitalised.\""
}
},
{
"from_name": "label",
"id": "e7910315a21d4465bf2b7f6854d0258d",
"to_name": "text",
"type": "labels",
"value": {
"end": 33355,
"labels": [
"ANALYSIS"
],
"start": 33234,
"text": "It appears that the ex- pression \"capitalised or not\": was added in clause (c) after this decision.\n "
}
},
{
"from_name": "label",
"id": "b99fa23dd6c14d6cb125bea5269de61d",
"to_name": "text",
"type": "labels",
"value": {
"end": 33645,
"labels": [
"RATIO"
],
"start": 33355,
"text": "For the reasons stated above, we hold that the develop- ment rebate reserve created by the Company by duly charging the amount of profit and loss account although liable as a deduction under the 1922Act, constituted accumulated profits of the Company Within the meaning of section 2(6A)(e)."
}
},
{
"from_name": "label",
"id": "8a9dd40310dd4f29b0d2396746268c3c",
"to_name": "text",
"type": "labels",
"value": {
"end": 33777,
"labels": [
"RPC"
],
"start": 33646,
"text": "We accordingly affirm the decision of the High Court and dis- miss this appeal but in the circumstances make no orders as to costs."
}
},
{
"from_name": "label",
"id": "e821013efb4140abbbd5ea01e469d728",
"to_name": "text",
"type": "labels",
"value": {
"end": 33841,
"labels": [
"RPC"
],
"start": 33777,
"text": "\n V.P.S. Appeal dismissed."
}
},
{
"from_name": "label",
"id": "8ff2ff87069b4ec3838af3ad032c4700",
"to_name": "text",
"type": "labels",
"value": {
"end": 33866,
"labels": [
"NONE"
],
"start": 33841,
"text": "\n (2) 27 I.T.R. 684.\n 649"
}
}
]
}
] | 1,778 | {
"text": "PETITIONER:\nP.K. BADIANI\n\n Vs.\n\nRESPONDENT:\nTHE COMMISSIONER OF INCOME TAX, BOMBAY\n\nDATE OF JUDGMENT21/09/1976\n\nBENCH:\nUNTWALIA, N.L.\nBENCH:\nUNTWALIA, N.L.\nKHANNA, HANS RAJ\nSINGH, JASWANT\n\nCITATION: 1977 SCR (1) 638\n 1977 AIR 560\n 1976 SCC (4) 562\n\nACT:\n\n Income tax Act (11 of 1922), ss. 2(6A)(e) and\n 10(2)(vi-b)--Development rebate treated as accumulated\n profits--Withdrawal of amount by shareholder from Company's\n account--If withdrawal can be treated as dividend since\n amount withdrawn is within accumulated profits.\n\nHEADNOTE:\n Under s. 2(6A)(e), Income Tax Act, 1922, dividend\n\n includes any payment by a company, not being a company in\n which the public are substantially interested within the\n meaning of s. 23A, of any sum by way of advance to a share-\n holder to the extent to which the company possesses accumu-\n lated profits.\n\n The appellant-assessee was a shareholder in a company\n in which the public were not substantially interested within\n the meaning of s. 23A. He had withdrawn some amounts from\n the company's account. The company had been allowed devel-\n opment rebate under s. 10(2)(vi-b) and that amount was\n debited in the profit and loss account of the company for\n the accounting year leaving a small balance of profit in the\n profit and loss account. The Appellate Assistant Commis-\n sioner treated the entire sum, that is, the amount allowed\n as development rebate and the amount of balance in the\n profit and loss account, as the amount of accumulated prof-\n its possessed by the company. Treating the withdrawals by\n the appellant as advances by the company to him and finding\n the highest amount of advance to the assessee to be within\n the total figure of accumulated profits as arrived at by\n him, he directed the addition of the advance to the asses-\n see's income as dividend under s. 2(6A)(e) of the Act. The\n Tribunal held that the development rebate was not liable to\n be treated as accumulated profits; but, on reference. the\n High Court substantially confirmed the order of the Appel-\n late Assistant Commissioner.\n\n On the question whether the development rebate could be\n treated as accumulated profits in the hands of the company\n under s. 2(6A)(e), the appellant contended that the develop-\n ment rebate, being identical with initial depreciation is in\n the nature of depreciation allowance, and since it is de-\n ductible from the assessable profits of the company, it is\n\nalso a type of outgoing expenditure or out-of-pocket cost,\nand was therefore, deductible from the company's commercial\nprofits.\nDismissing the appeal,\n\n HELD: The development rebate reserve created by the\ncompany, although it does not form part of the assessable\nprofits, undoubtedly forms part of the commercial profits\nand hence constituted accumulated profits of the company..\nwithin the meaning of s. 2(6A)(e). [648D]\n\n (1) The term 'profits' in taxation law varies in its\nmeaning according to the context. The expression 'accumu-\nlated profits' occurring in s. 2(6A) means profits in the\ncommercial sense that is profits in the real and true sense\nof the term and not assessable or taxable profits. [642E]\n\n E.D. Sassoon & Company Ltd. and Others v. Commissioner\nof Income-tax, Bombay City 26 ITR 27 at page 46, Commission-\ner of Income-taX, Bombay v. Ahmedbhai Umarbhai. & Co.,\nBombay 18 ITR 472 at 502, Commissioner of Income-tax. Bombay\nCity v. Bipinchandra Maganlal & Co. Ltd. 41 ITR 290 and\nGobaid Motor Service (P) Ltd. v. Commissioner of Income-tax,\nMadras 60 ITR 417 followed.\n\n (2) Although they are not identical and differ in some\nmaterial particulars, initial depreciation and development\nrebate are similar in nature as both are by\n639\nway of incentive for installation of new machinery or plant.\nBut the initial depreciation or the development rebate is\nnot a recurring allowance for the subsequent years like the\nnormal depreciation allowance provided in s. 10(2)(vi) or\nthe additional depreciation provided in s. 10(2)(vi-a). The\nnormal depreciation and the additional depreciation are\npermitted to be deducted from the written down value. But\nthe amount of the initial depreciation is not deductible in\ndetermining the written down value. [644D-E]\n\n (3) Normal depreciation reserve of the company may not\nform part of the accumulated past profits as held in Commis-\nsioner of Income-tax, Bombay v. Viramgam .Mills Co. Ltd. (43\nITR 270). But since the initial depreciation or the devel-\nopment rebate cannot be equated with normal depreciation, it\nis not a deductible item of cost or expenditure in. arriving\nat the commercial profits. The initial depreciation or the\ndevelopment rebate is not allowed as an extra deductible\nallowance of business expenses for meeting the costs of\nreplacement in future years, but they are meant merely to\nreduce the tax liability of the assessee for the year of\ninstallation only, in order to give him an incentive to\ninstal new machinery or plant [645D-F]\n\n (4) The purpose of s. 2(6A) is to include within the\nterm 'dividend', for the purpose of taxation, certain dis-\ntributions or payments as deemed dividend. Section 2(6A)(c)\nprovides that 'dividend' includes any distribution to the\nshareholders liquidation to the extent to which the distri-\nbution is attributable to accumulated profits. In Tea\nEstate India Pvt. Ltd. v. C.I.T., W. Bengal (103 ITR 785) it\nwas held that accumulated profits in cl. (c) include devel-\nopment Tebate. If for the purpose of distribution the\namount of development rebate could form part of the accumu-\nlated profits of the company, a fortiori, it would be so far\nthe purpose of cl. (e) also. [646B; 645G]\n\n (5) The use of the expression 'whether capitalised or\nnot', as qualifying the expression 'accumulated profits' in\ncls. (a) to (d), but not in cl. (e), shows that the legisla-\nture does not intend to rope in capitalised profits in el.\n(e). That is, to the extent the profits have been capita-\nlised in accordance with the law and its Articles of Associ-\n\nation, a company cannot be said to possess any accumulated\nprofits. But in the present case, the accumulated profits\nof the company were never capitalised. Merely transferring\nthe sum to the development reserve account by debiting it to\nthe profit and loss account did not amount to capitalisation\nof profits. The nature of the assets did not change out\ncontinued to remain as profits. [646E-G; 647A-B]\n\n Ann Bouch and William Bouch v. William Bouch Sprou (12\nAppeal Cases, 385 applied.\n\n Commissioner of Income-tax, Madras v.K. Srinivasan and\nothers 50 ITR 786 approved.\n\n Sheth Haridas Achratlal v. Commissioner of Income tax,\nBombay North, Kutch and Saurashtra, Baroda 27 ITR 684\nreferred to.\n\nJUDGMENT:\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 1695 of 1971.\n From the Judgment and Order dated 2-2-1970 of the Bombay High Court in I.T. Reference No. 54/63) V. Rajagopal and A.G. Pudissery for the Appellant.\n S.T. Desai, B.B.Ahuja and R.N. Sachthey for the Respondent.\n UNTWALIA, J. This is an appeal by an assessee on grant of a certificate of fitness by the Bombay High Court under section 66A (2) of the Income-tax Act, 1922-hereinafter referred to as the 1922 Act. The assessee is an individual.\n We are concerned in this case with his assessment for the assessment year 1958-59-corresponding accounting year being 1st April, 1957 to 31st March, 1958. The Income tax Tribu- nal made a composite order disposing of the assessee's 640 appeals in respect of two assessment years i.e. 1958-59 and 1959-60. The decision of the Tribunal was partly in favour of the assessee and partly in favour of the Revenue. In respect of the assessment year 1958-59, a reference under section 66(1) of the 1922 Act was made by the Tribunal to the High Court. Four questions were referred-one at the instance of the Commissioner of Income-tax and three at the instance of the assessee. The High Court by' its judgment under appeal which is reported in Commissioner of Income-tax (Central), Bombay v. P.K. Badiani(1) has answered almost all the questions. against the assessee. Hence this appeal.\n Mr. V. Rajgopal who had argued the case of the assessee before the High Court appeared before us in support of the appeal also. He could not and did not attack the decision of the High Court as respects questions 2, 3 and 4. But he strenuously urged before us for reversal of the High Court judgment in regard to question No. 1 which was re- ferred at the instance of the Commissioner. If the assessee could succeed before us in getting an answer in his favour to the said question, then, substantially he would have succeeded in getting the whole of the relief.\n The first and the only question which falls for our examination in' this appeal was referred by the Tribunal to the High Court in the following terms: \"(1) Whether the development rebate reserve created by the company by duly charging the amount to the profit and loss account and being allowable under the Act constituted 'accumulated profits' of the company within the meaning of section 2(6A)(e) of the Act?\"\n We proceed to state the necessary facts for determina- tion of the above question only.\n The assessee was a major shareholder (although at the relevant time being a major or minor shareholder did not make any difference in law) in the Sadhana Textile Mills Pvt. Ltd. which was indisputably a Company in which the public were not substantially interested within the meaning of Section 23A of the 1922-Act. The assessee was also the Managing Director of the said Private Limited Company. He had a mutual open and current account in the books of the Company--the accounting year of which was the calendar year i.e. commencing from January and ending in December. The assessee in his accounting year 1957-58 had withdrawn con- siderable amounts of money from the Company's account.\nThe Income-tax Officer' treated the withdrawals made by the assessee as advances or loans given by the Company to him and taxed the amount as dividend under section 2(6A)(e) of the 1922 Act. The Appellate Assistant Commissioner modi- fied the figure of the deemed dividend calculated by the Income-tax Officer and took the highest amount of advance made (I) 76 I.T.R. 369.\n641 to the assessee by the Company at a particular point of time in the year in question as the amount of dividend taxable in the hands of the assessee. The said amount was within the total figure of accumulated profits in the hands of the Company at the relevant time, i.e. 31st December, 1956. It may just be stated here that according to the 1922 Act only the accumulated profits possessed by the company at the. end of the corresponding previous year had to be taken into account unlike the corresponding provision engrafted in section 2(22) of the Income-tax Act, 1961--hereinafter referred to as the 1961 Act, read with Explanation II thereto. It was found that the aggregate amount of develop- ment rebate allowed to the Company under section 10(2)(vi-b) was Rs. 2,36,470/-. The said amount had been debited in the profit and loss account of the Company for the account- ing year 1966 leaving a balance of Rs. 6,641/- only in the profit and loss account. The Appellate Assistant Commis- sioner of Income-tax treated the entire sum of Rs.\n2,43,111/- as the amount of accumulated profits possessed by the Company. Finding the highest amount of advance to the assessee. at a particular ;point of time to be aggregating to Rs. 1,83,493.70 he directed the addition of the said amount in the assessee's income under section 2(6A)(e) of the 1922-Act. The High Court has directed some modification in the calculation of the said amount while answering the other questions referred to it at the instance of the asses- see and we need not go into their details.\n The main question for our determination in this appeal is whether the aggregate of the development rebates allowed to the Company under section 10(2)(vi-b) of the 1'922-Act could be treated as accumulated profits in the hands of the Company under section 2(6A)(e).\n The Income-tax Acts have undergone numerous changes from time to time and various amendments have been made both in the 1922Act as also in the 1961-Act. We shall do well to quote all the subclauses (a) to (e) of section 2(6A) of the 1922-Act. They read as follows: \"2(6A) \"dividend\" includes-- (a) any distribution by a company of accumulated profits whether capitalised or not, if such distri- bution entails the release by the company to its shareholders of all or any part of the assets of the company; (b) any distribution by a company of deben- tures, debenture-stock or deposit certificates in any form, whether with or without interest, to the extent to, which the company possesses accumulated profits, whether capitalised or not; (c) any distribution made to the shareholders of a company on its liquidation, to the extent to which the distribution is attributable to the accumulated profits of the company immediately before its liquidation, whether capitalised or not; 642 (d) any distribution by a company on the reduc- tion of its capital to the extent to which the company possesses accumulated profits which arose after the end of the previous year ending next before the 1st day of April, 1933, whether such accumulated profits have been capitalised or not; (e) any payment by a company, not being a company in which the public are substantially interested within the meaning of section 23A, of any sum (whether as representing a part of the assets of the company or otherwise) by way of advance or loan to a shareholder or any payment by any such company On behalf or for the individual benefit of a shareholder, to the extent to which the company in either case possesses accumulated profits; Explanation--The expression \"accumulated profits,\" wherever it occurs in this clause, shall not include capital gains arising before the 1st day of April, 1946, or after the 31st day of March, 1948 and before the 1st day of April, 1956.\"\n The expression \"accumulated profits\" occurring in clause (e) of section 6A, or as a matter of that in any of the other clauses, undoubtedly means profits in the commercial sense and not assessable or taxable profits liable to tax as income under the.1922 Act. It is a well known concept of the taxation law that the term 'profits' in the various sections of the Income-tax Acts have not got the same meaning. In the context --sometimes it means the assessable profits and sometimes it means the commercial profits. In Palmer's Company Law, Twenty First Edition at page 662 the distinc- tion between profits, divisible profits and profits avail- able for dividend has been pointed out. At the said page occurs an oft quoted classical passage from the judgment of Fletcher Moulton, L.J., in Re Spanish Prospecting Co. Ltd.\n (1) which runs thus: \"'Profits' implies a comparison between the state of a business at two specific dates usually separated by an interval of a year. The fundamen- tal meaning is the amount of gain made by the business during the year. This can only be ascer- tained by a comparison of the assets of the busi- ness at the two dates ...... If the total assets of the business at the two dates be compared, the increase which they show at the later date as compared with the earlier date (due allowance of course being made for any capital introduced into or taken out of the business in the meanwhile) represents in strictness the profits of the busi- ness during the period in question.\"\n Bhagwati, J. has quoted the above passage with approval in the case of E.D. Sassoon & Company Ltd. and others v. Com- missioner of Income-tax, Bombay City.('2) Almost to the same effect ,was the view (1) [1911] 1 Ch. 92, 98. (2) 26 I.T.R. 27 at page 46.\n 643 expressed by Mahajan, J. as he then was, in the case of Commissioner of Income-tax, Bombay v. Ahmedbhai Umarbhai & Co., Bombay(1) In Commissioner of Income-tax, Bombay City v. Bipinchandra Maganlal & Co. Ltd.('2) Shah, J., as he then was, delivering the judgment on behalf of the Court while interpreting the expression \"smallness of profits\" occur- ring in section 23A of the 1922 Act said at page 296: \"A company normally distributes dividends out of its business profits and not out of its assessa- ble income. There is no definable relation between the assessable income and the profits of a business concerned in a commercial sense. Computation of income for purposes of assessment of income-tax is based on a variety of artificial rules and takes into account several fictional receipts, deductions and allowances .............. Smallness of the profit in section 23A has to be adjudged in the light of commercial principles and not in the light of total receipts, actual or fictional.\"\n The same view has been expressed by this Court in Gobald Motor Service (P) Ltd. v. Commissioner of Income-tax, Ma- dras(3). We think that the term \"profits\" occurring in section 2(6A)(e) of the 1922 Act means profits in the com- mercial sense-that is to say the profits made by the Company in the real and true sense of the term. ,We may just give one example. Suppose the assessable profit of a company is Rs. 1,00,000/- out of which the Company had to pay a tax under the Income-tax Act--say to the extent of Rs.\n 30,000/-. .Although payment of tax is not a sum deductible from the assessable profits of the Company, in the commer- cial sense the Company would be left with a sum of Rs.\n 70,000/- only as profits. We may add that Mr. Rajgopal could not and did not seriously dispute this proposition of law.\n The gravamen of the argument of the assessee has been that development rebate deductible from the assessable profits of the Company is also. a type of outgoing expendi- ture or out-of-pocket cost which is deductible while ascertaining the profits of the Company in the commercial sense. Counsel submitted that it is in the nature of a depreciation allowance and is identical with initial depre- ciation; it should, therefore, be deducted from the commer- cial profits of the Company as held by the Gujarat High Court in the case of Commissioner of Income-tax, Bombay North v. Viramgam Mills Co. Ltd. (4). This argument found favour with the Tribunal but was repelled by the High Court.\n The point is res integra and we have to examine the correct- ness of the view expressed by the High Court.\n Depreciation allowance has been allowed to be deducted from the assessable .profits of an assessee under section 10(2) (vi) of the 1922 Act corresponding to section 32 of the 1961 Act. It would appear from the report of the Taxation Enquiry Commission 1953-54 Vol. II as to what is the nature of the depreciation allowance; vide Chapter V, page 74. The normal depreciation provided in clause (vi) and the additional depreciation mentioned in clause (vi-a) of section 10(2) of (1) 18 I.T.R. 472 at 502. (2) 41 I.T.R.\n 290.\n (3) 60 I.T.R. 417. (4) 43 I.T.R.\n 270.\n 644 the 1922 Act is permitted to be deducted from the 'written downvalue'. By and large, the cost of replacements is allowed as deductions in lieu of depreciation in respect of certain assets. By the amendments made by the Income-tax Amendment Act, 1946., the Finance Act, 1955 and the Finance Act, 1956 certain initial depreciation was allowed in re- spect of buildings newly erected or the machinery and plant newly installed. Obviously, it was by way of an incentive for the new structures or the new installations. The amount of initial depreciation was not deductible in deter- mining the 'written down value' although under proviso (c) it was to be taken into account in the aggregate of all allowances so as not to permit them to exceed the maximum limit provided therein. Development rebate was provided in clause (vi-b) with effect from 1st April, 1955 by the Fi- nance Act of 1955. There was an over-lapping period of about two years in relation to the allowance of initial depreciation or the development rebate. But as provided for in clause (vi) an assessee could not have' had both even in regard to that period. Although initial depreciation and development rebate were not identical as they differed in some material particulars, they were similar in nature as both were by way of incentive for installation of new ma- chinery or plant. The initial depreciation or the develop- ment rebate was to be allowed, as the case may be; at a certain percentage of the actual cost of the machinery or the plant for the year of installation only. It was not a recurring allowance for the subsequent years like; the allowance of the normal depreciation or the additional depreciation.The Taxation Enquiry Commission in its report aforesaid had recommended in Chapter VII, page 98 of Vol. II for assisting the expansion and development of :productive enterprise by allowing them a proportion of new investment in fixed assets to be charged to current costs of production thereby permitting the taxable profits to be brought down to that extent. In the Finance Act of 1955 a provision was made to allow a development rebate of 25% of the cost of all new plant and machinery installed for business purposes instead of the then existing initial depreciation allowance of 20%. It would thus be seen that by way of an incentive for installation of new machinery and plants initial depreciation allowance of 20% was replaced by a develop- ment'rebate of 25%. But it was, like grant of export rebate by way of incentive to make more exports, in the nature of an incentive for setting up new machineries and plants. We do not find any warrant for accepting the contention of Mr. Rajgopal that the initial depreciation or the develop- ment rebate was allowed as 'an extra deductible allowance of business expenses in the year of installation of new machin- ery for meeting the ever increasing costs of its replacement in future years. In our opinion it was meant merely to reduce the tax liability of the assessee in order to give him an incentive to instal new machineries or plants.\n The Gujarat High Court in the case of Viramgam Mills Co.\nLtd. (supra) was concerned with the question as to whether the normal depreciation reserve of .'the Company could be taken to be the accumulations of past profits within the meaning of the proviso to section 23A of the 1922 Act as it stood at the relevant time. It held that it could not form part of the accumulated past profits as in the words of Wixon (vide Wixon's Accounts Hand Book) it was \"the estimat- ed 645 expiration of asset value\" or as observed by Paton in his Accountants' Hand Book, Third edition it is an out-of-pocket cost as any other cost. Says the learned author in the above book at p. 746 thus: \"There is still widespread misapprehension as to the precise significance of the depreciation charge. It is often deemed a more or less imagi- nary and hypothetical :element, and is sharply contrasted with the regular \"out-of-pocket\" oper- ating costs. As a matter of fact there is nothing at all imaginary about depreciation as a cost of business operation and at bottom it is just as much 'an out-of-pocket cost as any other. The deprecia- tion charge is merely the periodic operating aspect of fixed-asset costs, and there is no doubt as to the reality of such costs. Far from being a non-out-of pocket charge depreciation represents the extreme example of prepayment.\"\n Mr. S.T. Desai, learned counsel for the Revenue drew our attention to the decision of the Calcutta High Court in Commissioner of Income tax. Calcutta v. Sri Bibhuti Bhusan Dutt(1) and submitted that it has taken a view different from the one taken by the Gujarat High Court even in regard to the nature of normal 'depreciation allowance. The Calcut- ta case seems to be one of a property-holding company, the profits of which were assessable under section 9 wherein the question of depreciation was not relevant. It is not neces- sary for us to examine in this case the exact nature of the normal depreciation allowance and whether it is deductible from the profits of a person while determining his commer- cial profits. The view expressed by the Gujarat High Court seems to be reasonably plausible and correct and for the purposes of this case we shall assume it to be so. Yet, we do not feel persuaded to accept the argument of the assessee and equate the initial depreciation or the develop- ment rebate with the normal depreciation. In our opinion such an allowance is in no sense a deductible item of cost or expenditure in the process of settlement of the commer- cial profits. Although it does not form part of the assessable profits, undoubtedly it does form part of the commercial profits.\n Tea Estate India Pvt. Ltd. v. Commissioner of Income-tax, West Bengal 11 (and vice versa)(2) one of us (Khanna, J.) delivering the judgment on behalf of the Court has interpreted the, expression \"accumulated profits\" occur- ring in clause (c) of section '2(6A) of the 1922 Act to include the amount of development rebate in the commercial sense. It has been stated at page 794: \"The acceptance of the contention would necessarily postulate reading in section 2(6A)(c) the words \"accumulated profits as are liable to be taxed under the Act\". The words \"as are liable to be taxed under the Act\" are not there in the definition and it would not, in our opinion, be permissible to so construe the clause as if those words were a part of that clause. There is also nothing in the language (1) 48 I.T.R. 233. (2) 103 I.T.R. 785.\n 646 Or Context of that clause as would warrant such a construction. Accumulated profits would retain their character as such even though a part of them were not taxed as profits under the Act.\"\n The purpose of section 2 (6A) of the 1922 Act corresponding to section 2(22) of the 1961 Act is to include within the term \"dividend\" for the purpose of taxation certain distri- butions or payments of certain items of money or the like as deemed dividend for the purpose of taxation. Under clause (e) an advance or loan or money to a shareholder by a pri- vate Company has been directed to be treated as dividend to the extent to which the Company possessed accumulated profits. The advance or the loan, by a legal fiction, is to resemble the actual dividend. For the purpose of distribu- tion of the dividend the amount of development rebate could form part of the profits of the Company; a fortiori, it would be so far the purposes of clause (e) also.\n During the course of the arguments of this appeal, our attention was directed to a new facet of the question under consideration and that is this. In clauses (a) to (d) of section 2(6A) of the 1922-Act so also in the corresponding clauses of section 2(22) of the 1961-Act the expression \"accumulated profits\" is qualified by the expression \"whether capitalised or not\". But the latter phrase is conspicuously absent in clause (e). What is the purpose of this difference in the phraseology of the various clauses of sub-section (6A) ? The reason is -not far to seek and yet not helpful to the assessee in this case.\n The profits of a Company can be capitalised in accord- ance with the Articles of Association and the law. On the capitalisation of the profits they cease to be profits in the hands of the Company. The nature of the asset is changed although it does not make any difference in the total assets of the Company. But profits stand transmuted and transformed into capital. The most common example of capitalisation of profits is by issuance of bonus shares to the shareholders. Clause (a) to (d) were intended by the Legislature to cover the cases of accumulated profits even though they may be capitalised. But the Legislature did not intend to rope in the capitalised profits in clause (e). We may add that though under clause (b) distribution by a Company of debentures, debenture stock or deposit certifi- cates in any form in lieu of capitalised profits is to be deemed dividend within the meaning of sub-section (6A), mere distribution of bonus shares after capitalising the accumu- lated profits, unless the distribution entails the release by the Company to its shareholders of any part of the assets of the Company is not to be a deemed dividend. Even under the 1961 Act distribution of bonus shares to the equity shareholders after capitalising the profits in accordance with law is not to be a deemed dividend although distribu- tion of such shares to preference shareholders is. It is thus clear that if money is paid to a shareholder of a private company by way of advance or loan after the accumu- lated profits have been capitalised in accordance with the law and the Articles of Association then such payment, although it may represent a part of the assets of the Compa- ny or otherwise, cannot be co-related to the capitalised profits of the Company. To the extent the profits have been capitalised the Company cannot be said to possess any accu- mulated profits.\n647 But the Obvious difficulty in the way of the appellant is that the accumulated profits of the Company in the year in question were never capitalised. Mere transferring the sum of Rs. 2,36,470/- by debiting it to the profit and loss account to the development reserve account did not amount to the capitalisation of profits. The nature of the assets in the hands of the Company did not change. It remained profits in the hands of the Company.\n According to the Dictionary of English Law by Earl' Jowitt, Vol. 1 \"capitalisation\" means \"the conversion of profits or income into. capital, e.g., by resolution of a company\". Buckley on the Companies Acts, thirteenth edi- tion, has pointed out at page 907 \"Profits carried to re- serve do not cease to be profits unless and until they are effectually capitalised\". Says the learned author at page 912 after referring to Article 128 corresponding to Regula- tion 96 of Table \"A\" of the Indian Companies Act: \"A company may, if its constitution so al- lows, capitalize profits, instead of dividing them, by applying them in paying up unissued shares, or debentures or other securities, and issuing such shares or securities as fully paid to its members, thereby transferring the sum capitalized from profit and loss or reserve account to share or loan capital account.\"\n To the same effect is the statement of the law to be found in Palmer's Company Law, twenty-first edition page 673. The \"capitalisation of profits\". says the learned author, means \"that profits which otherwise are available for distribution among the shareholders are not divided among them in cash, but that the shareholders are allotted further shares--or debentures--which are paid up wholly or in part out of' those profits. The amount paid by the company out of its divisible profits on account of these newly issued shares is known as the bonus, and the shares are referred to as bonus shares.\" Lord Herscheil in the case of Ann Bouch and Wil- liam Bouch v. William Bouch Sprou(1) was considering as to what was the nature and substance of the transaction in question in that case. The learned and the noble Lord said at page 398: \"I think we must look both at the 'substance and form of the transaction ........ And it was obviously contemplated, and was, I think, certain that no money would, in fact, pass from the company to the shareholders, but that the entire sum would remain in their hands as paid-up capi- tal.\" And finally 'it was said at page 399: \"I cannot, therefore, avoid the conclusion that the substance of the whole transaction was, and was intended to be, to convert the undivided profits into paid-up capital upon newly-creat- ed shares.\"\n The Madras High Court has pointed out in Commissioner Income-tax, Madras v.K. Srinivasan and others(2), to quote the placitum only: \"For the purposes of section 2(6A)(e) of the Income tax Act, 1922, \"accumulated profits\" include general reserves.\n (1) 12 Appeal Cases, 385.\n (2) 50 I.T.R. 788.\n 648 Unless the profit is capitalised in some form or other mere transfer of the profits to any reserve account will not take away from profits the charac- ter of accumulated profits.\"\n In Sheth Haridas Achratlal v. Commissioner of Income-tax, Bombay North, Kutch and Saurashtra, Baroda(1)--Chief Justice Chagla delivering the judgment on behalf of the Bench of the Bombay High Court said at page 690: \"But when we compare the language used by the Legislature in sub-clauses (a), (b) and (d) and when we note the omission of the qualifying words in sub-clause (c) then it is clear that the Legislature advisedly did not intend to subject to tax those accumulated profits which had been capitalised.\" It appears that the ex- pression \"capitalised or not\": was added in clause (c) after this decision.\n For the reasons stated above, we hold that the develop- ment rebate reserve created by the Company by duly charging the amount of profit and loss account although liable as a deduction under the 1922Act, constituted accumulated profits of the Company Within the meaning of section 2(6A)(e). We accordingly affirm the decision of the High Court and dis- miss this appeal but in the circumstances make no orders as to costs.\n V.P.S. Appeal dismissed.\n (2) 27 I.T.R. 684.\n 649 "
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"text": "PETITIONER:\nSUKHA AND OTHERS\n\n Vs.\n\nRESPONDENT:\nTHE STATE OF RAJASTHAN."
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"text": "\n\nDATE OF JUDGMENT:\n05/04/1956\n\nBENCH:"
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"text": "\nBENCH:\nBOSE, VIVIAN\nJAGANNADHADAS, B.\nAIYAR, N. CHANDRASEKHARA\n\nCITATION: 1956 SCR 288\n 1956 AIR 513\n\nACT:\n\n Unlawful Assembly-\"Common intention\" and \"Common object\"\n -Distinction-Duty of a Court of fact-Indian Penal Code (Act\n XLV of 1860), ss. 34,149.\n\nHEADNOTE:\n Common intention required by s. 34 of the Indian Penal Code\n and common object set out under s. 149, though they\n sometimes overlap, are used in different senses and should\n be kept distinct."
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"text": "In a case under s. 149 there need not be\n a prior concert and meeting of minds"
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"text": ", it is enough that each\n has the same object in view and their number is five or more\n and they act as an assembly to achieve that object.\n "
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"text": "When a crowd assembles and there is an uproar and people are\n killed and injured, it is only natural for others to rush to\n the scene with whatever arms they can snatch."
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"text": "Some may have\n an unlawful motive but others may not, and in such\n circumstances it is impossible to say that they were all\n motivated by a common intention with prior concert."
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"text": "What a\n court of fact should do in such a case is to find from the\n evidence which of them individually had an unlawful object\n in view, or having originally a lawful object in view deve-\n loped it later on into an unlawful one and if it finds that\n there were five or more such persons who acted together\n there would be an unlawful assembly.\n "
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"text": "in a case where there were circumstances from\n which the courts of fact could deduce that an unlawful\n object developed with more than five to share it after the\n fighting started and they were satisfied that it did, there\n was no reason why their concurrent decisions should be set\n aside.\n "
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"text": "This court will be slow to entertain a question of prejudice\n when details are not furnished; also, the fact that the\n objection was not taken at an early stage will be taken into\n account.\n\nJUDGMENT:"
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"text": " CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 133 of 1955."
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"text": "\n Appeal by special leave from the judgment and order dated the 10th January 1955 of the High Court of Judicature at Jodhpur in Criminal Appeals Nos. 57 & 83 of 1953 arising out of the judgment and order dated the 26th May 1953 of the Court of 289 Sessions Judge at Merta in Criminal Original Case No. 1 of 1952."
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"text": "\nJai Gopal Sethi, K. R. Krishnaswami and K. R. Chaudhry for the appellants."
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"text": "\nPorus A. Mehta and P. G. Gokhale, for the respondent."
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"text": "April 5."
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"text": "persons were killed about 11 p.m. on the night of the 21st July 1951 and a number of others injured."
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"text": "This was said to be the result of a riot that occurred in the village Dhankoli."
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"text": "Thirty six persons were committed for trial."
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"text": "Of these, two died during the course of the proceedings."
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"text": "The remainder were all charged under section 325/149 of the Indian Penal Code and eleven were also charged under section 302/149."
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"text": "The learned Sessions Judge acquitted twenty five of the charge under section 325/149 and convicted nine."
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"text": "He acquitted all the eleven who were charged under section 302/149 but convicted nine of them under section 325/149."
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"text": "\nThe State did not appeal against the acquittals of the twenty five under section 325/149 nor did it appeal against the acquittals of two of the eleven who were charged under section 302/149 but it appealed against the acquittals of the remaining nine who had been convicted under section 325/149."
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"text": "These nine convicts also appealed."
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"text": "The High Court therefore had two appeals before it, one against the acquittals of nine persons under section 302/149 and the other by the same persons against their convictions under section 325/149."
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"text": "The High Court dismissed the appeal of the convicts and allowed that of the State."
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"text": "The convictions of these nine persons were accordingly altered to ones under section 302/149 of the Indian Penal Code and the lesser sentence of transportation was given to each."
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"text": "\nIt is admitted on both sides that there was bad 290 blood in the village Dhankoli between a caste known as Baories on one side and three other castes of the village namely, Jats, Dhobis and Khaties on the other."
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"text": "\nThe case for the prosecution is that this was due to a dispute over a field that belonged to some of the Jats."
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"text": "\nThere were some court proceedings about the field in which Parsia (one of the Baories who was killed) had appeared against the Jats."
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"text": "The accused Sukha, Gumana, Begla and Govinda were in particular interested in this field and so bore a grudge against Parsia."
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"text": "\nThe defence also allege enmity."
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"text": "Their case is that the enmity is due to the fact that the villagers decided not to employ the Baories for watch and ward work in the village as they suspected that the Baories were responsible for certain thefts that had occurred there."
}
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"text": "The other castes in the village therefore did this work themselves by turns."
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"text": "This was resented by the Baories and the allegation is that the Baories were responsible for the fight and attacked some of the others in the village and that led to a fight; but none of the appellants was concerned with it."
}
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"labels": [
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],
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"text": "\nFrom this point it will be convenient to divide the narrative into a series of numbered steps."
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"text": "\n1.On the day in question, two of the Baories, Chhotiya and Parsia, bad been to a neighbouring village to bid at an auction where the field, which according to the prosecution engendered the dispute, was being sold."
}
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"text": "They returned to their village about 11 p.m. and ran into the accused Sukha and Gumana (both Jats)."
}
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"text": "They were challenged and when they disclosed who they were, Sukha and Gumana cried out \"kill them."
}
},
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"text": "They had gone for the auction of the field.\""
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"text": "On that Sukha fired a gun which he had with him and hit Parsia on the legs."
}
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"text": "Parsia fell down and Gumana bit him over the head with a sword."
}
},
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"text": "He also hit Chhotiya over the head with a sword and Chhotiya also fell down."
}
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"text": "\n2.Parsia and Chhotiya at once cried out for help and their cries, coupled with the sound of the gun fire, brought a number of persons to the scene."
}
},
{
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"labels": [
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],
"start": 6444,
"text": "The 291 number varies widely."
}
},
{
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"id": "8a2cc15e256648248f70afa688d8e7e0",
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"labels": [
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],
"start": 6474,
"text": "Chhotia (P.W. 8) says 30 to 35, Ruga (P.W. 1) says 50 or 60, Bedu (P.W. 2) puts it at 30 or 40 and so does Lachhuri (P.W. 10), while Ladia (P.W. 11) thinks there were as many as 100 to 150."
}
},
{
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"labels": [
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"start": 6664,
"text": "There are other estimates too, mostly in the neighbourhood of 30 to 40, but the exact number does not matter because it is evident that a crowd assembled."
}
},
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"text": "Those who did the attacking are said to have been about 30 or 40 but it is clearly proved that several Baories were there and that some of them were assaulted."
}
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"text": "\nThe point of stressing these facts is to bring out the fact that most of the persons there did not assemble for an unlawful purpose and so did not form an unlawful assembly."
}
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"text": "\nThe problem is to sort out those who formed an unlawful assembly from those who did not."
}
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"labels": [
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"text": "Mr. Sethi argued that there is no evidence to support a finding that there was an unlawful assembly because it is impossible to determine who came to attack and who did not."
}
},
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"labels": [
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"text": "But we will deal with this later."
}
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"labels": [
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"start": 7450,
"text": "For the present, we will continue our narrative outlining the prosecution case."
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],
"start": 7530,
"text": "3.After the gun was fired and Parsia and Chhotiya struck down, a large number of persons rushed to the scene and, among them, some 30 or 40 were armed with various kinds of weapons."
}
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"labels": [
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],
"start": 7712,
"text": "Of these, Kamla, Balia, Todia and Bhawana (all Jats) had pharsies, Gumana, Govinda and Jodbiya (also Jats) had swords and the rest (Jats, Dhobis and Khaties) had lathis."
}
},
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"labels": [
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],
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"text": "These persons also attacked Chhotiya and Parsia."
}
},
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"labels": [
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"start": 7930,
"text": "\n4.The cries of Chhotiya and Parsia attracted Mana, Govinda, Pemla, Rambuxa and Gangli and some others."
}
},
{
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"id": "3328e3cef9e14118ba8617ab0773227f",
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"labels": [
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"text": "These persons are Baories."
}
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"text": "This crowd of 30 or 40 turned on Mana and Govinda and attacked them."
}
},
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"id": "e271c1f335604aaaae3b1aed9a820bd2",
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"labels": [
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"start": 8130,
"text": "Sukha then fired his gun a second time and hit Mana on his left hand."
}
},
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"text": "\n5.In the meanwhile, Ganesh and his wife Seruri (Baories) arrived and said \"don't beat, don't beat\"."
}
},
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"text": "Sukha and Gumana said that they should also be beaten and thereupon these 30 or 40 persons started to beat them too and they fell down."
}
},
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"labels": [
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],
"start": 8436,
"text": "6. After this, Parsia's wife Lacbhuri came there 292 and some 10 or 1 1 persons out of the original 30 or 40 started to chase her."
}
},
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"text": "But she ran away and managed to escape with only a slight beating."
}
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"labels": [
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],
"start": 8634,
"text": "7.While this was happening, the five Baories who had been felled to the ground (Parsia, Ganesh, Mana, Govinda and Seruri) started to cry out."
}
},
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"labels": [
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],
"start": 8776,
"text": "The ten or eleven who had chased Lachhuri came back and on hearing the cries of these five on the ground, Sukha and Gumana said that they were crying and should be killed outright."
}
},
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"labels": [
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"text": "On that these eleven persons divided into three groups and attacked the five on the ground as follows: Parsia was beaten by Sukha (with a pharsi), Jeewana (dangri) and Chokla (dangri).\n Mana and Govinda were beaten by Gumana (sword), Balia (pharsi) and Jankiya and Naraina (lathis).\n"
}
},
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"id": "3c5965f6a9f444729b78ce14fefc066b",
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"labels": [
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],
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"text": "Ganesh"
}
},
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"labels": [
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],
"start": 9247,
"text": "was beaten by Bhawana (dangri), Govinda (sword), Kumla (pharsi) and Begla (dangri)."
}
},
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"id": "2b5adc4121274979a806d29abde0786c",
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"labels": [
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],
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"text": "\nAll four died on the spot."
}
},
{
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"id": "a3188a9e229a4f2e860d93f91fe86cee",
"to_name": "text",
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"value": {
"end": 9394,
"labels": [
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],
"start": 9357,
"text": "\nThe accused were charged as follows."
}
},
{
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"id": "6ab64816148841d5a1aed0ef0dc79d61",
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"value": {
"end": 9612,
"labels": [
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],
"start": 9395,
"text": "One group consisting of 25 persons were charged under section 325/149 of the Indian Penal Code for intentionally beating, along with the other accused, 1. Chhotiya 2. Seruri 3. Parsia 4. Mana 5. Govinda and 6. Ganesh."
}
},
{
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"id": "e9285e32726b4cdf91951feabb95ec99",
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"value": {
"end": 9776,
"labels": [
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],
"start": 9612,
"text": "\nAt a later stage, the following sentence was added to the charge: \"which you inflicted as a member of an unlawful assembly in prosecution of its common intention\"."
}
},
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"id": "5428d6eafb78422c843d96ccbf2e06f1",
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"labels": [
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],
"start": 9777,
"text": "These twenty five were acquitted and we are not concerned with them except to note that they were not concerned with that part of the occurrence which we have set out as steps 6 and 7 above."
}
},
{
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"id": "4c2e8540205c49cf86d6f15f0c5a026f",
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"value": {
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"labels": [
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],
"start": 9968,
"text": "The charge against the remaining eleven can be divided into two parts."
}
},
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"id": "e1b81fff7bd1402b8997ff81af13cb67",
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"value": {
"end": 10193,
"labels": [
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],
"start": 10039,
"text": "Under the first, each, except Sukha, is charged with beating the Baories Parsia, Mana, Govinda, Ganesh, Chhotiya, Seruri, etc. \"along with other accused\"."
}
},
{
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"id": "738c0c88008e452ca86b6c03cc068b85",
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"labels": [
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],
"start": 10194,
"text": "Five of the eleven are said to 293 have beaten them with \"swords and lathis\"; another five \"with lathis, etc.\" while the eleventh, Sukha, is said to have fired at Parsia and Mana \"as a result of which they fell down\"."
}
},
{
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"id": "19b62740c59a49aab02071f57f5bea50",
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"labels": [
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],
"start": 10412,
"text": "Then each charge continues-- \"and when all had fallen down as a result of these injuries\"."
}
},
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"id": "b9231330a8ce4562b14abb026594db3a",
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"labels": [
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],
"start": 10503,
"text": "After that the charges divide off into three groups: One group charges (1) Gumana, (2) Naraina, (3) Balia and (4) Jankiya with beating Govinda and Mana, \"who were groaning, with lathis with intent to kill them till they were actually killed\"."
}
},
{
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"id": "8a974221f5754bc49284551ac1482fa4",
"to_name": "text",
"type": "labels",
"value": {
"end": 10886,
"labels": [
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],
"start": 10746,
"text": "The next group charges (1) Jeewana, (2) Sukha and (3) Chokhla with hitting Parsia with lathi blows \"with intent to murder him till he died\"."
}
},
{
"from_name": "label",
"id": "b79133e6098f4b54b33c1e5e253d9c5c",
"to_name": "text",
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"value": {
"end": 11033,
"labels": [
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],
"start": 10887,
"text": "The third group charges (1) Begla, (2) Govinda, (3) Kumla and (4) Bhawana with as- saulting Ganesh with lathis with intent to murder till he died."
}
},
{
"from_name": "label",
"id": "d612cb1a32a141b79ee324a1beb901c1",
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"value": {
"end": 11203,
"labels": [
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],
"start": 11033,
"text": "\nThe following sentence was also added in the end of each of these charges: \"And you did this as a member of an unlawful assembly in prosecution of its common intention\"."
}
},
{
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"id": "6b15abeb15a34bd49e1c21bc4d387895",
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"end": 11327,
"labels": [
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],
"start": 11203,
"text": "\nThere has been some confusion in both the Sessions Court and the High Court between \"common intention\" and \"common object\"."
}
},
{
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"id": "016826870a2e4e9e923990852ee2435f",
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"start": 11328,
"text": "It is true the two sometimes overlap but they are used in different senses in law and should be kept distinct."
}
},
{
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"id": "ef7411170a4c4d939009fa7a0078be81",
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"text": "\nIn a case of unlawful assembly or riot we are concerned with a common object."
}
},
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"id": "bb671f9c5fd1435f8b7d1b51269cf170",
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"text": "However, we are satisfied that has not caused any prejudice."
}
},
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"start": 11578,
"text": "But the reason why we have set out these charges at some length is because counsel for the appellants argued that the prosecution case is that there were two separate assemblies, one of twenty five persons to beat six specific persons and another of eleven to kill them in three groups."
}
},
{
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"start": 11865,
"text": "He argued that the twenty five who constituted the first assembly have all been acquitted; that the only material from which an unlawful assembly can be inferred in the other case is the instigation of Sukha and Gumana for a second time after they bad returned from chasing Lachhuri."
}
},
{
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"start": 12149,
"text": "That story, he said, has been disbelieved, so all must be acquitted."
}
},
{
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"end": 12306,
"labels": [
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],
"start": 12217,
"text": "\n It will be necessary at this stage to set out the 294 findings of the two lower courts."
}
},
{
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"id": "aeff90cd407349398c3211ca6e3a4ec5",
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"labels": [
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],
"start": 12307,
"text": "The learned Sessions Judge starts by rejecting the evidence of Ruga (P.W. 1), Bodu (P.W. 2) and Bhagwatia (P.W. 3) on the question of identification of any of the accused and the evidence of Arjun (P.W. 4) about the conspiracy to beat up the Baories.\n "
}
},
{
"from_name": "label",
"id": "f82e093d9c03428ca98365b15bbbd78a",
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"end": 12896,
"labels": [
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],
"start": 12559,
"text": "But he finds that the evidence of the Baori witnesses, Chhotiya (P.W. 8), Lachhuri (P.W. 10), Ladia (P.W. 11), Seruri (P.W. 12), Gangli (P.W. 13) and Pemla (P.W. 14) is consistent \"so far as these II accused are concerned regard- ing their beating 4 persons to death and causing injuries to Lachhuri, Ganesh's wife, Seruri and Chhotiya \""
}
},
{
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"id": "7861b124c25847d0811fa75a40fb7c92",
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"labels": [
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],
"start": 12897,
"text": "Later, he states \"From the evidence of these Baori witnesses................. it is found that these eleven accused were involved in the beating of the injured persons.\n "
}
},
{
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"id": "e6593ea5e47145169abf8ec22de66ab0",
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"value": {
"end": 13245,
"labels": [
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],
"start": 13087,
"text": "Whether they formed part of a bigger assembly is not now material because I have already discussed the cases of other accused and given them benefit of doubt."
}
},
{
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"id": "7f8bc53f31e44363a645fda299da8485",
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"end": 13376,
"labels": [
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],
"start": 13246,
"text": "These eleven accused even amongst themselves being more than five in number could be regarded as members of an unlawful assembly\"."
}
},
{
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"id": "b80221fafa3240079cf61fbaa1a353e6",
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"value": {
"end": 13433,
"labels": [
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],
"start": 13378,
"text": "But the learned Judge only accepted this story in part."
}
},
{
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"value": {
"end": 13731,
"labels": [
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],
"start": 13434,
"text": "He- believed Chhotiya (P.W. 8), Seruri (P.W. 12), Gangli (P.W.\n 13) and Pemla (P.W. 14) in so far as they stated that Sukha had a gun and that Sukha used it against Parsia and Mana, but he did not accept the evidence of Chhotiya (P.W. 8) in so far as he said that Gumana hit Chhotiya with a sword."
}
},
{
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"id": "cbaa8a01544945ab9a14eb9b0cb25f34",
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"value": {
"end": 14020,
"labels": [
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],
"start": 13732,
"text": "He also rejected the prosecution version that the incidents occurred in two parts, first with a bigger assembly that beat all the accused and next with a smaller one that ran after Lachhuri and beat her and then returned to beat the others to death at the instigation of Sukha and Gumana."
}
},
{
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"id": "e1d1c2e45ac440a590c8c89c598f643a",
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"end": 14271,
"labels": [
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],
"start": 14021,
"text": "On this part of the case, the learned Sessions Judge found that \" whatever beating was done was done immediately after the scuffle between Chhotiya and Parsia and Sukha and Gumana and Gumana and Naraina, and those accused who had arrived on the spot."
}
},
{
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"id": "106cc39314bf43acad1696f1ad27c7bd",
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"value": {
"end": 14299,
"labels": [
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],
"start": 14272,
"text": "Nobody instigated anybody\"."
}
},
{
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"id": "3cd73dda0fa447caaa0cfa9150bad100",
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"end": 14311,
"labels": [
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],
"start": 14300,
"text": "(Para 103)."
}
},
{
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"id": "0e46c767968244a6b8f499046f1b6b45",
"to_name": "text",
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"end": 14437,
"labels": [
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],
"start": 14311,
"text": "\n It was argued on behalf of the defence that the learned Sessions Judge discarded the evidence about 295 instigation in toto."
}
},
{
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"id": "95f79006e9dd465d9c1e6a10a12d441b",
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"end": 14679,
"labels": [
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],
"start": 14438,
"text": "Counsel for the State, however, contended that this passage refers to the second instigation which is said to have been given after the eleven had chased and beaten Lacbhuri and returned to finish off the others who were lying on the ground."
}
},
{
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"id": "029dce39a56f4dfbbb033ebb5e05b1ff",
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"value": {
"end": 14703,
"labels": [
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],
"start": 14680,
"text": "We think that is right."
}
},
{
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"id": "aead71e8a5334aa3857e983a258ef09c",
"to_name": "text",
"type": "labels",
"value": {
"end": 15012,
"labels": [
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],
"start": 14703,
"text": "\n In paragraph 101 of his judgment the learned Sessions Judge set out the fact that the prosecution witnesses divide the incidents into two parts: one in which a larger assembly beat all the injured persons and the other in which eleven killed the four deceased persons at the instigation of Sukha and Gumana."
}
},
{
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"id": "3a3ab13b8a4c4ee5abfcd4bd5d032671",
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"value": {
"end": 15092,
"labels": [
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],
"start": 15012,
"text": "\n In paragraph 102 be set out reasons why he was not able to believe this story."
}
},
{
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"id": "098c887f6e444f818a4c774c126f8b2f",
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"value": {
"end": 15334,
"labels": [
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],
"start": 15093,
"text": "The first was because \"Ladia (P.W. 11) did not state in his statement before the police that after beating Lachhuri, when ten or eleven persons had returned then at the instigation of Sukha and Gumana the injured were again beaten to death\"."
}
},
{
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"value": {
"end": 15453,
"labels": [
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],
"start": 15336,
"text": "Then, after setting out four more reasons, the learned Judge reached the conclusion just enumerated in paragraph 103."
}
},
{
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"id": "98b4511a51f040a59368afa399628490",
"to_name": "text",
"type": "labels",
"value": {
"end": 15683,
"labels": [
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],
"start": 15453,
"text": "\n In paragraph 117 he said- \"Leaving Begla and Govinda, I am fully convinced that Sukha, Gumana, Naraina, Kumla, Balia, Jeewana, Chokhla, Bhawana Khati and Jankiya did commit rioting with the common object of beating the Baories\"."
}
},
{
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"id": "9a7f51b7a54e43c4afe6e066063c76cf",
"to_name": "text",
"type": "labels",
"value": {
"end": 15823,
"labels": [
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],
"start": 15683,
"text": "\nIn paragraph 118 he said- \"I am not convinced that the intention of all these accused was to murder the whole lot of Baories..............\""
}
},
{
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"id": "27cd13ba00b14cf08c70a6af2f99a411",
"to_name": "text",
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"value": {
"end": 15888,
"labels": [
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],
"start": 15823,
"text": "\nIn para 119-\"The accused did give sound beating to the injured\"."
}
},
{
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"id": "192cd9da66024460aec29d07ed8804c5",
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"value": {
"end": 15997,
"labels": [
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],
"start": 15888,
"text": "\nHe concluded that no common object to kill could be deduced but held that a common object to beat was clear."
}
},
{
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"id": "74d17502eb9949b3a250155d5a5fe4f1",
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"value": {
"end": 16145,
"labels": [
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],
"start": 15998,
"text": "As he was unable to determine which accused gave the fatal blows be convicted all under section 302 read with section 149 of the Indian Penal Code."
}
},
{
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"id": "eb2b20aafe694b51a09b2f0b9a25d3b1",
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"end": 16388,
"labels": [
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],
"start": 16145,
"text": "\nWe think it is clear from this judgment, read as a whole, that the learned Sessions Judge disbelieved 296 the story of instigation at any stage because if he had believed even the first instigation, a common object to kill would have emerged."
}
},
{
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"id": "29d1318287164729aeb007ff3e419550",
"to_name": "text",
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"value": {
"end": 16496,
"labels": [
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],
"start": 16388,
"text": "\nWe are unfortunately not able to obtain much assistance from the judgment of the learned High Court Judges."
}
},
{
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"id": "ba693c07ea9e451a91e94f8263e86050",
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"value": {
"end": 16729,
"labels": [
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],
"start": 16497,
"text": "They have not analysed the evidence and have not reached clear findings about a common object due in some measure to the fact that they do not appear to have appreciated the difference between a common object and a common intention."
}
},
{
"from_name": "label",
"id": "f9390dc8dee547e285b282f14a7d5903",
"to_name": "text",
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"value": {
"end": 16860,
"labels": [
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],
"start": 16729,
"text": "\nThey hold that six witnesses can be relied on to the extent that \"the villagers were armed with guns, swords, farsies and lathis\"."
}
},
{
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"id": "d25ce8e802af481dba2a6a50077477ab",
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"value": {
"end": 17265,
"labels": [
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],
"start": 16861,
"text": "They do not believe all that these witnesses say because they hold \"Though, therefore, we do not believe that these eleven persons deliberately murdered the four injured Baories who were lying there saying that they should be killed, there is no doubt in our minds that these eleven persons who have all been mentioned by these six witnesses were certainly seen taking more active part in this incident\"."
}
},
{
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"id": "9983f36a07d640978296dec4f7589d40",
"to_name": "text",
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"value": {
"end": 17476,
"labels": [
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],
"start": 17265,
"text": "\nThen they hold- \"We are, therefore, satisfied on the statements of these witnesses that the incident took place in the main as stated by them and that the prosecution has given the right version of the affair\"."
}
},
{
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"id": "388e1f62efed4733ac479d9170d7558d",
"to_name": "text",
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"value": {
"end": 17856,
"labels": [
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],
"start": 17476,
"text": "\nNext, they hold that the fact that a large number of villagers, including the nine appellants, turned up armed with various weapons immediately they beard the quarrel between Chhotiya and Parsia on the one side and Gumana on the other \"shows that there must have been some consultation from before and that these persons arrived in prosecution of the common object..............\""
}
},
{
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"id": "1b968ba04bf84a5ebb3501b2086ceda9",
"to_name": "text",
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"value": {
"end": 18063,
"labels": [
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],
"start": 17856,
"text": "\nAnd they add this reason: \"There is also the evidence of the prosecution witnesses that as the Baories came, some one or the other of these accused incited the rest of the villagers to beat up the Baories\"."
}
},
{
"from_name": "label",
"id": "0356f750235c4a5d96eb82b35d376191",
"to_name": "text",
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"value": {
"end": 18173,
"labels": [
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],
"start": 18063,
"text": "\nFrom this they conclude that there was an unlawful assembly with the common object of beating up the Baories."
}
},
{
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"id": "f88bd834c33d4400a624c95fa52e4b8c",
"to_name": "text",
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"value": {
"end": 18206,
"labels": [
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],
"start": 18174,
"text": "297 This is very unsatisfactory."
}
},
{
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"id": "b44d5353e38943ee9bc63f1c78f2620c",
"to_name": "text",
"type": "labels",
"value": {
"end": 18502,
"labels": [
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],
"start": 18207,
"text": "The learned Judges were dealing with an appeal against an acquittal and though they have allowed the appeal they have not been specific about which part of the evidence they rely on in support of their findings nor do their conclusions follow logically-from the premises on which they are based."
}
},
{
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"id": "00c1e64167d54e209ee9c71df0a76e34",
"to_name": "text",
"type": "labels",
"value": {
"end": 18559,
"labels": [
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],
"start": 18503,
"text": "Take, for example, the finding about prior consultation."
}
},
{
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"id": "07d32d14743746708a3b79b9d96ce91f",
"to_name": "text",
"type": "labels",
"value": {
"end": 18650,
"labels": [
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],
"start": 18560,
"text": "In the first place, no prior consultation is required when a common object is in question."
}
},
{
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"id": "f543c5fd59f74823910f9f52f1075681",
"to_name": "text",
"type": "labels",
"value": {
"end": 18736,
"labels": [
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],
"start": 18651,
"text": "The essence of the distinction between common object and common intention lies there."
}
},
{
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"id": "8ee44378aa5041ed8a35f2c30cc7c38c",
"to_name": "text",
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"value": {
"end": 18841,
"labels": [
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],
"start": 18737,
"text": "In the next place, the six witnesses, who are relied on, say that a crowd of 30 or 40 persons assembled."
}
},
{
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"id": "56f5df3f2e73451ca3829e44d5d44260",
"to_name": "text",
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"value": {
"end": 18958,
"labels": [
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],
"start": 18842,
"text": "Among that crowd were Baories because three Baories (other than Parsia and Chhotiya) were killed and others injured."
}
},
{
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"id": "bd0d0ac740c94a318cec5dd6f7646994",
"to_name": "text",
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"value": {
"end": 19124,
"labels": [
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],
"start": 18959,
"text": "It is also evident that some of these Baories must have had some sort of weapons because three of the accused had slight injuries on their person and one a fracture."
}
},
{
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"id": "68ca4500701a4246aeb8bff4fc6024f3",
"to_name": "text",
"type": "labels",
"value": {
"end": 19192,
"labels": [
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],
"start": 19125,
"text": "The evidence discloses that there had been thefts in t the village."
}
},
{
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"id": "97fabcb6642447f889f6bbea26bd7ffb",
"to_name": "text",
"type": "labels",
"value": {
"end": 19232,
"labels": [
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],
"start": 19193,
"text": "The uproar occurred at 11 in the night."
}
},
{
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"id": "54ac83dbb0404cd0ab2a0a9a8ac872b3",
"to_name": "text",
"type": "labels",
"value": {
"end": 19362,
"labels": [
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],
"start": 19233,
"text": "In those circumstances, it would be natural for the villagers to rush to the scene and arm themselves with whatever came to band."
}
},
{
"from_name": "label",
"id": "f882c738628b4271af03b3ebc72634d6",
"to_name": "text",
"type": "labels",
"value": {
"end": 19522,
"labels": [
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],
"start": 19363,
"text": "Some may have been motivated by an unlawful motive but many would not, and to deduce a common intention with prior concert in such circumstances is impossible."
}
},
{
"from_name": "label",
"id": "bcd45a81e110485eafb9ae0a3d6e210d",
"to_name": "text",
"type": "labels",
"value": {
"end": 19907,
"labels": [
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],
"start": 19523,
"text": "A common object is different and courts of fact are entitled to conclude on the evidence that has been accepted that some of those who rushed to the scene went there with the object of beating up persons whom they thought to be thieves and not merely to apprehend them or defend their properties; in other words, that some of those persons individually had an unlawful object in view."
}
},
{
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"text": "If each bad the same object, then their object would be common and if there were five or more with this object, then they would form an unlawful assembly without any prior concert among themselves."
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"text": "\nNext, take the High Court's finding about incitement."
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"text": "They have rejected the version given by the prosecution witnesses because they hold that the 298 story about the second beating is an improvement and also because they disbelieve the evidence that indicates that these eleven persons deliberately murdered the four injured Baories."
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"text": "\nBut the only evidence about incitement is that Sukha and Gumana called on the others to kill Barsia, and later to kill the others."
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"text": "The incitement was quite clearly to kill and not merely to beat."
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"text": "If this is rejected, then there is no evidence about incitement, so we are left in the dark to know what the learned Judges based their conclusion on."
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"text": "\nThat has left us with the task of finding whether there is, or could be, any proper basis for these convictions."
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"text": "\nNow, as we understand the learned Sessions Judge, he has believed the first part of the story which we have set out as step No. I except the portion that speaks about an incitement to kill."
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"text": "He finds that there was the meeting between Sukha and Gumana on the one side and Parsia and Chhotiya on the other."
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"text": "He says- \"It can safely be deduced from the incidents as related by the witnesses in this case that in the beginning the fighting was between a couple of persons only and on hearing their cries their relatives, friends and relations and other villagers reached the spot and some of the villagers did beat the Baories\"."
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"text": "\nPausing there, it is evident that there was no unlawful assembly when the beating started; nor can it be deduced that all the persons who rushed to the scene, whether the number was 30 or 150, formed an unlawful assembly."
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"text": "We therefore have to scan the evidence carefully to see what happened after that."
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"text": "The finding is that the eleven accused who were charged for the murder were all involved in the beating of the injured persons."
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"text": "That satisfies one of the ingredients of rioting, namely the presence of five or more persons."
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"text": "But that of course is not enough."
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"text": "There must in addition, be an \"assembly\" and that assembly must have a \"common object\" and the object must be \"unlawful\"."
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"text": "\nBut a common object is different from a common intention in that it does not require prior concert and 299 a common meeting of minds before the attack, and an unlawful object can develop after the people get there."
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"text": "It is not for us to re-assess the evidence in special leave."
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"text": "All we can say is that there are circumstances from which courts of fact could deduce that an unlawful object developed with more than five to share it once the marpit bad started; and as two courts of fact are satisfied that it did, there is no reason for us to interfere."
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"text": "Persons who had come there quite lawfully, in the first instance, thinking there were thieves could well have developed an intention to beat up the \"thieves\" instead of helping to apprehend them or defend their properties; and if five or more shared the object and joined in the beating, then the object of each would become the common object."
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"text": "\nThis is not to say that all those present were members of that assembly."
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"text": "The presumption of innocence would preclude such a conclusion."
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"text": "Those who rushed to the scene in the circumstances disclosed must be presumed to have gone there for a lawful purpose even if they were armed."
}
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"text": "The apprehension of marauders who prowl the town at night and the defence of person and property are lawful objects."
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"text": "But when that object is exceeded and persons begin to beat up the suspects the act of beating becomes unlawful, for private persons are no more entitled to beat and illtreat thieves than are the police, especially at a time when there is nothing beyond suspicion against them."
}
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{
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"text": "But if five or more exceed the original lawful object and each has the same unlawful intention in mind and they act together and join in the beating, then they in themselves form an unlawful assembly."
}
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"text": "There is no difference in principle between this and a case in which the original object was unlawful."
}
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"text": "The only difference is that a case like this is more difficult to establish and must be scrutinised with greater care."
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"text": "But that scrutiny is here and we are satisfied that there is evidence in this case on which courts of fact could base the conclusion that they have reached."
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"text": "\nNow, did these eleven persons constitute an assembly or were they there individually without any 300 common factor to link them together?"
}
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"text": "That, we think, is easily answered."
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"text": "It is clear that each (barring Sukha and Gumana who were already there) assembled at the spot because of the cries of Parsia and Chhotiya and because of the noise of the fight."
}
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"text": "That imports a common factor into their meeting and links them together as an assembly."
}
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"text": "Their object in assembling may have been innocent but the fact that a common factor like this induced them to come together constitutes them into an \"assembly\" though not, on that evidence alone, into an unlawful assembly."
}
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"text": "\nWe next have to see whether any of them had an unlawful object in view."
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"text": "The object of Sukha and Gumana was clearly unlawful."
}
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"text": "Now the evidence which has been believed shows that the other nine actually joined in the beating and that they did this after Sukha had fired his gun at Parsia and Parsia had fallen to the ground."
}
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"text": "It also shows that these others turned on Parsia's relations and friends when they came to their support."
}
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"text": "Therefore, whatever the original object of each may have been, it achieved a unity of purpose the moment the others joined in and continued to assist Sukha and Gumana and helped them to beat up the other Baories who came to Parsia's help."
}
},
{
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"text": "It is not a case of stray sporadic acts but indicates a certain continuity of purpose, each striving to achieve the same end, namely either to help Sukha and Gumana in beating up Parsia and Chhotiya and those who came to help them or to join in the beating for ends of their own."
}
},
{
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"labels": [
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"text": "But the commonness of purpose is an inference of fact which courts of fact would be entitled to make."
}
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"labels": [
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"text": "It does not matter whether the others joined in because of an initial instigation or whether, seeing the assault in progress, they joined in on their own account, because so long as each bad the object of beating up Parsia and Chhotiya and those who came to their assistance, that would make their object common."
}
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"labels": [
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"text": "\nThe distinction between the common intention required by section 34 of the Indian Penal Code and the common object set out in section 149 lies just 301 there."
}
},
{
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"labels": [
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],
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"text": "In a case under section 149 there need not be a prior meeting of minds."
}
},
{
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"labels": [
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"text": "It is enough that each has the same object in view and that their number is five or more and that they act as an assembly to achieve that object."
}
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{
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"labels": [
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],
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"text": "All these features are to be found in that part of the evidence which has been believed."
}
},
{
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"id": "44765a25a4d2442d9b578d20ea637893",
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"text": "Therefore, on these findings which the courts of fact are entitled to reach, the object of the assembly was unlawful, but up to this point the highest common denominator was merely to beat and not to kill."
}
},
{
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"labels": [
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],
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"text": "Up to that point, the convictions of the learned Sessions Judge under section 325/149, Indian Penal Code, are unassailable."
}
},
{
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"id": "b8acb34b9b2c4078af09e441ab1887fe",
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"labels": [
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],
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"text": "\nThe next question is whether, that being the case, the convictions by the High Court under section 302/149 can be upheld."
}
},
{
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"labels": [
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],
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"text": "\nNeither the Sessions Judge nor the High Court believe that there was any common intention to kill, therefore the convictions for the more serious offence can only be sustained under section 149 if it can be shown (1) that an actual killing of some of the persons attacked was likely to result from the beating which formed the common object and (2) that each person so convicted knew that might be a likely result."
}
},
{
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"end": 27781,
"labels": [
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],
"start": 27712,
"text": "\nNow so far as Sukha and Gumana are concerned, there can be no doubt."
}
},
{
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"value": {
"end": 27825,
"labels": [
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],
"start": 27782,
"text": "They started the fight with deadly weapons."
}
},
{
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"id": "ac7c00d896fb4589b0fb8f49bd53906d",
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"value": {
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"labels": [
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],
"start": 27825,
"text": "\nSukha fired at least twice and bit two persons."
}
},
{
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"id": "8bc7dfc118154c75b72113bca4b91a29",
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"labels": [
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],
"start": 27874,
"text": "He himself may not have had an intention to kill and indeed the fact that the wounds are on non-vital parts must be used as a factor in his favour, but any person who carries a fire arm at that hour of the night and uses it and then continues a fight after an excited crowd has assembled and when at least nine of them rush in to join in the beating after his first shot must know either that somebody is likely to deal a fatal blow or at least that the cumulative effect of blows inflicted by a number of persons armed with lathis is likely to cause death from shock."
}
},
{
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"value": {
"end": 28677,
"labels": [
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],
"start": 28443,
"text": "Riots of this kind are common and death frequently results, therefore, not only was a killing a likely consequence of such an assault conducted in this fashion but Sukha and Gumana as men of ordinary intelligence must have known that."
}
},
{
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"labels": [
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],
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"text": "\n302 Much the same considerations apply in the case of the other appellants."
}
},
{
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"end": 28852,
"labels": [
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],
"start": 28754,
"text": "They rushed in to hit persons who had already been fired on and who had been felled to the ground."
}
},
{
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"id": "fc61fb280e1e4d1ea5bf2ea618225274",
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"labels": [
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],
"start": 28853,
"text": "They were in the midst of a crowd which could hardly have been calm and impassive and they joined in with several others to beat them up."
}
},
{
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"id": "4f3835cc6a58467485703af71d936b0d",
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"type": "labels",
"value": {
"end": 29107,
"labels": [
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],
"start": 28991,
"text": "Any man of reasonable intelligence would have known that somebody would be likely to be killed in a melee like that."
}
},
{
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"id": "b998dec8a2564cc788cd8ba4a2dc9793",
"to_name": "text",
"type": "labels",
"value": {
"end": 29171,
"labels": [
"ANALYSIS"
],
"start": 29108,
"text": "Therefore, the requisite knowledge can be imputed to them also."
}
},
{
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"id": "e81bfe15bc7d418fa0322647d9037190",
"to_name": "text",
"type": "labels",
"value": {
"end": 29193,
"labels": [
"ANALYSIS"
],
"start": 29171,
"text": "\nTwo questions remain."
}
},
{
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"id": "d78c4799a4fc45548fa8af5ab2bd278e",
"to_name": "text",
"type": "labels",
"value": {
"end": 29287,
"labels": [
"ANALYSIS"
],
"start": 29194,
"text": "One was directed against the reliability of that part of the evidence that has been believed."
}
},
{
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"id": "4e1dff64931343daa0b972188084a653",
"to_name": "text",
"type": "labels",
"value": {
"end": 29477,
"labels": [
"ANALYSIS"
],
"start": 29288,
"text": "The argument, for all its repetition, length and eloquence, was the hackneyed one that when one part of a witness' evidence is disbelieved, it is unsafe to act on the rest of his testimony."
}
},
{
"from_name": "label",
"id": "ff80c22710744158bc3300f85dacf3d0",
"to_name": "text",
"type": "labels",
"value": {
"end": 29634,
"labels": [
"ANALYSIS"
],
"start": 29478,
"text": "The answer is equally hackneyed, namely that judges of fact have the right to do this and that this is not a court of appeal when it acts under article 136."
}
},
{
"from_name": "label",
"id": "6ddafe61220f488b864ea116e2aaa227",
"to_name": "text",
"type": "labels",
"value": {
"end": 29743,
"labels": [
"ANALYSIS"
],
"start": 29635,
"text": "The findings about this are concurrent, so, following our usual practice, we decline to review the evidence."
}
},
{
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"id": "c65d311f41464faaa8b101193dcddca8",
"to_name": "text",
"type": "labels",
"value": {
"end": 29817,
"labels": [
"RATIO"
],
"start": 29743,
"text": "\nThe other is that the absence of this in the charge occasioned prejudice."
}
},
{
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"id": "feabc607820c4a57915638f2db4dabf3",
"to_name": "text",
"type": "labels",
"value": {
"end": 30022,
"labels": [
"RATIO"
],
"start": 29818,
"text": "We have recently decided that we will be slow to entertain question of prejudice when details are not furnished; also the fact that the objection is not taken at an early stage will be taken into account."
}
},
{
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"id": "2a495b0347734faba4f54c2709cfa7fb",
"to_name": "text",
"type": "labels",
"value": {
"end": 30286,
"labels": [
"RATIO"
],
"start": 30023,
"text": "There is not a hint of prejudice in the petition filed by the appellants here in the High Court for leave to appeal to this Court; nor was this considered a ground for complaint in the very lengthy and argumentative petition for special leave filed in this Court."
}
},
{
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"id": "e1faa5e20b20480fbb506d890ae73809",
"to_name": "text",
"type": "labels",
"value": {
"end": 30425,
"labels": [
"RATIO"
],
"start": 30287,
"text": "The only complaint about prejudice was on the score that there was no proper examination under section 342 of the Criminal Procedure Code."
}
},
{
"from_name": "label",
"id": "5a64d77feb4343d1ae13f6e3743002bc",
"to_name": "text",
"type": "labels",
"value": {
"end": 30471,
"labels": [
"RPC"
],
"start": 30426,
"text": "We decline to allow this matter to be raised."
}
},
{
"from_name": "label",
"id": "fb2250725c3948338157d71cc6189dd7",
"to_name": "text",
"type": "labels",
"value": {
"end": 30506,
"labels": [
"RPC"
],
"start": 30471,
"text": "\nThe appeal fails and is dismissed."
}
}
]
}
] | 1,737 | {
"text": "PETITIONER:\nSUKHA AND OTHERS\n\n Vs.\n\nRESPONDENT:\nTHE STATE OF RAJASTHAN.\n\nDATE OF JUDGMENT:\n05/04/1956\n\nBENCH:\nBOSE, VIVIAN\nBENCH:\nBOSE, VIVIAN\nJAGANNADHADAS, B.\nAIYAR, N. CHANDRASEKHARA\n\nCITATION: 1956 SCR 288\n 1956 AIR 513\n\nACT:\n\n Unlawful Assembly-\"Common intention\" and \"Common object\"\n -Distinction-Duty of a Court of fact-Indian Penal Code (Act\n XLV of 1860), ss. 34,149.\n\nHEADNOTE:\n Common intention required by s. 34 of the Indian Penal Code\n and common object set out under s. 149, though they\n sometimes overlap, are used in different senses and should\n be kept distinct. In a case under s. 149 there need not be\n a prior concert and meeting of minds, it is enough that each\n has the same object in view and their number is five or more\n and they act as an assembly to achieve that object.\n When a crowd assembles and there is an uproar and people are\n killed and injured, it is only natural for others to rush to\n the scene with whatever arms they can snatch. Some may have\n an unlawful motive but others may not, and in such\n circumstances it is impossible to say that they were all\n motivated by a common intention with prior concert. What a\n court of fact should do in such a case is to find from the\n evidence which of them individually had an unlawful object\n in view, or having originally a lawful object in view deve-\n loped it later on into an unlawful one and if it finds that\n there were five or more such persons who acted together\n there would be an unlawful assembly.\n Consequently, in a case where there were circumstances from\n which the courts of fact could deduce that an unlawful\n object developed with more than five to share it after the\n fighting started and they were satisfied that it did, there\n was no reason why their concurrent decisions should be set\n aside.\n This court will be slow to entertain a question of prejudice\n when details are not furnished; also, the fact that the\n objection was not taken at an early stage will be taken into\n account.\n\nJUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 133 of 1955.\n Appeal by special leave from the judgment and order dated the 10th January 1955 of the High Court of Judicature at Jodhpur in Criminal Appeals Nos. 57 & 83 of 1953 arising out of the judgment and order dated the 26th May 1953 of the Court of 289 Sessions Judge at Merta in Criminal Original Case No. 1 of 1952.\nJai Gopal Sethi, K. R. Krishnaswami and K. R. Chaudhry for the appellants.\nPorus A. Mehta and P. G. Gokhale, for the respondent.\n1956. April 5. The Judgment of the Court was delivered by BOSE J.-Four persons were killed about 11 p.m. on the night of the 21st July 1951 and a number of others injured. This was said to be the result of a riot that occurred in the village Dhankoli. Thirty six persons were committed for trial. Of these, two died during the course of the proceedings. The remainder were all charged under section 325/149 of the Indian Penal Code and eleven were also charged under section 302/149.\nThe learned Sessions Judge acquitted twenty five of the charge under section 325/149 and convicted nine. He acquitted all the eleven who were charged under section 302/149 but convicted nine of them under section 325/149.\nThe State did not appeal against the acquittals of the twenty five under section 325/149 nor did it appeal against the acquittals of two of the eleven who were charged under section 302/149 but it appealed against the acquittals of the remaining nine who had been convicted under section 325/149. These nine convicts also appealed. The High Court therefore had two appeals before it, one against the acquittals of nine persons under section 302/149 and the other by the same persons against their convictions under section 325/149.\nThe High Court dismissed the appeal of the convicts and allowed that of the State. The convictions of these nine persons were accordingly altered to ones under section 302/149 of the Indian Penal Code and the lesser sentence of transportation was given to each.\nIt is admitted on both sides that there was bad 290 blood in the village Dhankoli between a caste known as Baories on one side and three other castes of the village namely, Jats, Dhobis and Khaties on the other.\nThe case for the prosecution is that this was due to a dispute over a field that belonged to some of the Jats.\nThere were some court proceedings about the field in which Parsia (one of the Baories who was killed) had appeared against the Jats. The accused Sukha, Gumana, Begla and Govinda were in particular interested in this field and so bore a grudge against Parsia.\nThe defence also allege enmity. Their case is that the enmity is due to the fact that the villagers decided not to employ the Baories for watch and ward work in the village as they suspected that the Baories were responsible for certain thefts that had occurred there. The other castes in the village therefore did this work themselves by turns. This was resented by the Baories and the allegation is that the Baories were responsible for the fight and attacked some of the others in the village and that led to a fight; but none of the appellants was concerned with it.\nFrom this point it will be convenient to divide the narrative into a series of numbered steps.\n1.On the day in question, two of the Baories, Chhotiya and Parsia, bad been to a neighbouring village to bid at an auction where the field, which according to the prosecution engendered the dispute, was being sold. They returned to their village about 11 p.m. and ran into the accused Sukha and Gumana (both Jats). They were challenged and when they disclosed who they were, Sukha and Gumana cried out \"kill them. They had gone for the auction of the field.\" On that Sukha fired a gun which he had with him and hit Parsia on the legs. Parsia fell down and Gumana bit him over the head with a sword. He also hit Chhotiya over the head with a sword and Chhotiya also fell down.\n2.Parsia and Chhotiya at once cried out for help and their cries, coupled with the sound of the gun fire, brought a number of persons to the scene. The 291 number varies widely. Chhotia (P.W. 8) says 30 to 35, Ruga (P.W. 1) says 50 or 60, Bedu (P.W. 2) puts it at 30 or 40 and so does Lachhuri (P.W. 10), while Ladia (P.W. 11) thinks there were as many as 100 to 150. There are other estimates too, mostly in the neighbourhood of 30 to 40, but the exact number does not matter because it is evident that a crowd assembled. Those who did the attacking are said to have been about 30 or 40 but it is clearly proved that several Baories were there and that some of them were assaulted.\nThe point of stressing these facts is to bring out the fact that most of the persons there did not assemble for an unlawful purpose and so did not form an unlawful assembly.\nThe problem is to sort out those who formed an unlawful assembly from those who did not. Mr. Sethi argued that there is no evidence to support a finding that there was an unlawful assembly because it is impossible to determine who came to attack and who did not. But we will deal with this later. For the present, we will continue our narrative outlining the prosecution case.\n3.After the gun was fired and Parsia and Chhotiya struck down, a large number of persons rushed to the scene and, among them, some 30 or 40 were armed with various kinds of weapons. Of these, Kamla, Balia, Todia and Bhawana (all Jats) had pharsies, Gumana, Govinda and Jodbiya (also Jats) had swords and the rest (Jats, Dhobis and Khaties) had lathis. These persons also attacked Chhotiya and Parsia.\n4.The cries of Chhotiya and Parsia attracted Mana, Govinda, Pemla, Rambuxa and Gangli and some others. These persons are Baories. This crowd of 30 or 40 turned on Mana and Govinda and attacked them. Sukha then fired his gun a second time and hit Mana on his left hand.\n5.In the meanwhile, Ganesh and his wife Seruri (Baories) arrived and said \"don't beat, don't beat\". Sukha and Gumana said that they should also be beaten and thereupon these 30 or 40 persons started to beat them too and they fell down.\n6. After this, Parsia's wife Lacbhuri came there 292 and some 10 or 1 1 persons out of the original 30 or 40 started to chase her. But she ran away and managed to escape with only a slight beating.\n7.While this was happening, the five Baories who had been felled to the ground (Parsia, Ganesh, Mana, Govinda and Seruri) started to cry out. The ten or eleven who had chased Lachhuri came back and on hearing the cries of these five on the ground, Sukha and Gumana said that they were crying and should be killed outright. On that these eleven persons divided into three groups and attacked the five on the ground as follows: Parsia was beaten by Sukha (with a pharsi), Jeewana (dangri) and Chokla (dangri).\n Mana and Govinda were beaten by Gumana (sword), Balia (pharsi) and Jankiya and Naraina (lathis).\nGanesh was beaten by Bhawana (dangri), Govinda (sword), Kumla (pharsi) and Begla (dangri).\nAll four died on the spot.\nThe accused were charged as follows. One group consisting of 25 persons were charged under section 325/149 of the Indian Penal Code for intentionally beating, along with the other accused, 1. Chhotiya 2. Seruri 3. Parsia 4. Mana 5. Govinda and 6. Ganesh.\nAt a later stage, the following sentence was added to the charge: \"which you inflicted as a member of an unlawful assembly in prosecution of its common intention\". These twenty five were acquitted and we are not concerned with them except to note that they were not concerned with that part of the occurrence which we have set out as steps 6 and 7 above.\nThe charge against the remaining eleven can be divided into two parts. Under the first, each, except Sukha, is charged with beating the Baories Parsia, Mana, Govinda, Ganesh, Chhotiya, Seruri, etc. \"along with other accused\". Five of the eleven are said to 293 have beaten them with \"swords and lathis\"; another five \"with lathis, etc.\" while the eleventh, Sukha, is said to have fired at Parsia and Mana \"as a result of which they fell down\". Then each charge continues-- \"and when all had fallen down as a result of these injuries\".\nAfter that the charges divide off into three groups: One group charges (1) Gumana, (2) Naraina, (3) Balia and (4) Jankiya with beating Govinda and Mana, \"who were groaning, with lathis with intent to kill them till they were actually killed\". The next group charges (1) Jeewana, (2) Sukha and (3) Chokhla with hitting Parsia with lathi blows \"with intent to murder him till he died\". The third group charges (1) Begla, (2) Govinda, (3) Kumla and (4) Bhawana with as- saulting Ganesh with lathis with intent to murder till he died.\nThe following sentence was also added in the end of each of these charges: \"And you did this as a member of an unlawful assembly in prosecution of its common intention\".\nThere has been some confusion in both the Sessions Court and the High Court between \"common intention\" and \"common object\". It is true the two sometimes overlap but they are used in different senses in law and should be kept distinct.\nIn a case of unlawful assembly or riot we are concerned with a common object. However, we are satisfied that has not caused any prejudice. But the reason why we have set out these charges at some length is because counsel for the appellants argued that the prosecution case is that there were two separate assemblies, one of twenty five persons to beat six specific persons and another of eleven to kill them in three groups. He argued that the twenty five who constituted the first assembly have all been acquitted; that the only material from which an unlawful assembly can be inferred in the other case is the instigation of Sukha and Gumana for a second time after they bad returned from chasing Lachhuri. That story, he said, has been disbelieved, so all must be acquitted.\n It will be necessary at this stage to set out the 294 findings of the two lower courts. The learned Sessions Judge starts by rejecting the evidence of Ruga (P.W. 1), Bodu (P.W. 2) and Bhagwatia (P.W. 3) on the question of identification of any of the accused and the evidence of Arjun (P.W. 4) about the conspiracy to beat up the Baories.\n But he finds that the evidence of the Baori witnesses, Chhotiya (P.W. 8), Lachhuri (P.W. 10), Ladia (P.W. 11), Seruri (P.W. 12), Gangli (P.W. 13) and Pemla (P.W. 14) is consistent \"so far as these II accused are concerned regard- ing their beating 4 persons to death and causing injuries to Lachhuri, Ganesh's wife, Seruri and Chhotiya \" Later, he states \"From the evidence of these Baori witnesses................. it is found that these eleven accused were involved in the beating of the injured persons.\n Whether they formed part of a bigger assembly is not now material because I have already discussed the cases of other accused and given them benefit of doubt. These eleven accused even amongst themselves being more than five in number could be regarded as members of an unlawful assembly\".\n But the learned Judge only accepted this story in part. He- believed Chhotiya (P.W. 8), Seruri (P.W. 12), Gangli (P.W.\n 13) and Pemla (P.W. 14) in so far as they stated that Sukha had a gun and that Sukha used it against Parsia and Mana, but he did not accept the evidence of Chhotiya (P.W. 8) in so far as he said that Gumana hit Chhotiya with a sword. He also rejected the prosecution version that the incidents occurred in two parts, first with a bigger assembly that beat all the accused and next with a smaller one that ran after Lachhuri and beat her and then returned to beat the others to death at the instigation of Sukha and Gumana. On this part of the case, the learned Sessions Judge found that \" whatever beating was done was done immediately after the scuffle between Chhotiya and Parsia and Sukha and Gumana and Gumana and Naraina, and those accused who had arrived on the spot. Nobody instigated anybody\". (Para 103).\n It was argued on behalf of the defence that the learned Sessions Judge discarded the evidence about 295 instigation in toto. Counsel for the State, however, contended that this passage refers to the second instigation which is said to have been given after the eleven had chased and beaten Lacbhuri and returned to finish off the others who were lying on the ground. We think that is right.\n In paragraph 101 of his judgment the learned Sessions Judge set out the fact that the prosecution witnesses divide the incidents into two parts: one in which a larger assembly beat all the injured persons and the other in which eleven killed the four deceased persons at the instigation of Sukha and Gumana.\n In paragraph 102 be set out reasons why he was not able to believe this story. The first was because \"Ladia (P.W. 11) did not state in his statement before the police that after beating Lachhuri, when ten or eleven persons had returned then at the instigation of Sukha and Gumana the injured were again beaten to death\".\n Then, after setting out four more reasons, the learned Judge reached the conclusion just enumerated in paragraph 103.\n In paragraph 117 he said- \"Leaving Begla and Govinda, I am fully convinced that Sukha, Gumana, Naraina, Kumla, Balia, Jeewana, Chokhla, Bhawana Khati and Jankiya did commit rioting with the common object of beating the Baories\".\nIn paragraph 118 he said- \"I am not convinced that the intention of all these accused was to murder the whole lot of Baories..............\"\nIn para 119-\"The accused did give sound beating to the injured\".\nHe concluded that no common object to kill could be deduced but held that a common object to beat was clear. As he was unable to determine which accused gave the fatal blows be convicted all under section 302 read with section 149 of the Indian Penal Code.\nWe think it is clear from this judgment, read as a whole, that the learned Sessions Judge disbelieved 296 the story of instigation at any stage because if he had believed even the first instigation, a common object to kill would have emerged.\nWe are unfortunately not able to obtain much assistance from the judgment of the learned High Court Judges. They have not analysed the evidence and have not reached clear findings about a common object due in some measure to the fact that they do not appear to have appreciated the difference between a common object and a common intention.\nThey hold that six witnesses can be relied on to the extent that \"the villagers were armed with guns, swords, farsies and lathis\". They do not believe all that these witnesses say because they hold \"Though, therefore, we do not believe that these eleven persons deliberately murdered the four injured Baories who were lying there saying that they should be killed, there is no doubt in our minds that these eleven persons who have all been mentioned by these six witnesses were certainly seen taking more active part in this incident\".\nThen they hold- \"We are, therefore, satisfied on the statements of these witnesses that the incident took place in the main as stated by them and that the prosecution has given the right version of the affair\".\nNext, they hold that the fact that a large number of villagers, including the nine appellants, turned up armed with various weapons immediately they beard the quarrel between Chhotiya and Parsia on the one side and Gumana on the other \"shows that there must have been some consultation from before and that these persons arrived in prosecution of the common object..............\"\nAnd they add this reason: \"There is also the evidence of the prosecution witnesses that as the Baories came, some one or the other of these accused incited the rest of the villagers to beat up the Baories\".\nFrom this they conclude that there was an unlawful assembly with the common object of beating up the Baories.\n297 This is very unsatisfactory. The learned Judges were dealing with an appeal against an acquittal and though they have allowed the appeal they have not been specific about which part of the evidence they rely on in support of their findings nor do their conclusions follow logically-from the premises on which they are based.\nTake, for example, the finding about prior consultation. In the first place, no prior consultation is required when a common object is in question. The essence of the distinction between common object and common intention lies there. In the next place, the six witnesses, who are relied on, say that a crowd of 30 or 40 persons assembled. Among that crowd were Baories because three Baories (other than Parsia and Chhotiya) were killed and others injured. It is also evident that some of these Baories must have had some sort of weapons because three of the accused had slight injuries on their person and one a fracture. The evidence discloses that there had been thefts in t the village. The uproar occurred at 11 in the night. In those circumstances, it would be natural for the villagers to rush to the scene and arm themselves with whatever came to band. Some may have been motivated by an unlawful motive but many would not, and to deduce a common intention with prior concert in such circumstances is impossible. A common object is different and courts of fact are entitled to conclude on the evidence that has been accepted that some of those who rushed to the scene went there with the object of beating up persons whom they thought to be thieves and not merely to apprehend them or defend their properties; in other words, that some of those persons individually had an unlawful object in view. If each bad the same object, then their object would be common and if there were five or more with this object, then they would form an unlawful assembly without any prior concert among themselves.\nNext, take the High Court's finding about incitement. They have rejected the version given by the prosecution witnesses because they hold that the 298 story about the second beating is an improvement and also because they disbelieve the evidence that indicates that these eleven persons deliberately murdered the four injured Baories.\nBut the only evidence about incitement is that Sukha and Gumana called on the others to kill Barsia, and later to kill the others. The incitement was quite clearly to kill and not merely to beat. If this is rejected, then there is no evidence about incitement, so we are left in the dark to know what the learned Judges based their conclusion on.\nThat has left us with the task of finding whether there is, or could be, any proper basis for these convictions.\nNow, as we understand the learned Sessions Judge, he has believed the first part of the story which we have set out as step No. I except the portion that speaks about an incitement to kill. He finds that there was the meeting between Sukha and Gumana on the one side and Parsia and Chhotiya on the other. He says- \"It can safely be deduced from the incidents as related by the witnesses in this case that in the beginning the fighting was between a couple of persons only and on hearing their cries their relatives, friends and relations and other villagers reached the spot and some of the villagers did beat the Baories\".\nPausing there, it is evident that there was no unlawful assembly when the beating started; nor can it be deduced that all the persons who rushed to the scene, whether the number was 30 or 150, formed an unlawful assembly. We therefore have to scan the evidence carefully to see what happened after that. The finding is that the eleven accused who were charged for the murder were all involved in the beating of the injured persons. That satisfies one of the ingredients of rioting, namely the presence of five or more persons. But that of course is not enough. There must in addition, be an \"assembly\" and that assembly must have a \"common object\" and the object must be \"unlawful\".\nBut a common object is different from a common intention in that it does not require prior concert and 299 a common meeting of minds before the attack, and an unlawful object can develop after the people get there. It is not for us to re-assess the evidence in special leave. All we can say is that there are circumstances from which courts of fact could deduce that an unlawful object developed with more than five to share it once the marpit bad started; and as two courts of fact are satisfied that it did, there is no reason for us to interfere. Persons who had come there quite lawfully, in the first instance, thinking there were thieves could well have developed an intention to beat up the \"thieves\" instead of helping to apprehend them or defend their properties; and if five or more shared the object and joined in the beating, then the object of each would become the common object.\nThis is not to say that all those present were members of that assembly. The presumption of innocence would preclude such a conclusion. Those who rushed to the scene in the circumstances disclosed must be presumed to have gone there for a lawful purpose even if they were armed. The apprehension of marauders who prowl the town at night and the defence of person and property are lawful objects. But when that object is exceeded and persons begin to beat up the suspects the act of beating becomes unlawful, for private persons are no more entitled to beat and illtreat thieves than are the police, especially at a time when there is nothing beyond suspicion against them. But if five or more exceed the original lawful object and each has the same unlawful intention in mind and they act together and join in the beating, then they in themselves form an unlawful assembly. There is no difference in principle between this and a case in which the original object was unlawful. The only difference is that a case like this is more difficult to establish and must be scrutinised with greater care. But that scrutiny is here and we are satisfied that there is evidence in this case on which courts of fact could base the conclusion that they have reached.\nNow, did these eleven persons constitute an assembly or were they there individually without any 300 common factor to link them together? That, we think, is easily answered. It is clear that each (barring Sukha and Gumana who were already there) assembled at the spot because of the cries of Parsia and Chhotiya and because of the noise of the fight. That imports a common factor into their meeting and links them together as an assembly. Their object in assembling may have been innocent but the fact that a common factor like this induced them to come together constitutes them into an \"assembly\" though not, on that evidence alone, into an unlawful assembly.\nWe next have to see whether any of them had an unlawful object in view. The object of Sukha and Gumana was clearly unlawful. Now the evidence which has been believed shows that the other nine actually joined in the beating and that they did this after Sukha had fired his gun at Parsia and Parsia had fallen to the ground. It also shows that these others turned on Parsia's relations and friends when they came to their support. Therefore, whatever the original object of each may have been, it achieved a unity of purpose the moment the others joined in and continued to assist Sukha and Gumana and helped them to beat up the other Baories who came to Parsia's help. It is not a case of stray sporadic acts but indicates a certain continuity of purpose, each striving to achieve the same end, namely either to help Sukha and Gumana in beating up Parsia and Chhotiya and those who came to help them or to join in the beating for ends of their own. But the commonness of purpose is an inference of fact which courts of fact would be entitled to make. It does not matter whether the others joined in because of an initial instigation or whether, seeing the assault in progress, they joined in on their own account, because so long as each bad the object of beating up Parsia and Chhotiya and those who came to their assistance, that would make their object common.\nThe distinction between the common intention required by section 34 of the Indian Penal Code and the common object set out in section 149 lies just 301 there. In a case under section 149 there need not be a prior meeting of minds. It is enough that each has the same object in view and that their number is five or more and that they act as an assembly to achieve that object. All these features are to be found in that part of the evidence which has been believed. Therefore, on these findings which the courts of fact are entitled to reach, the object of the assembly was unlawful, but up to this point the highest common denominator was merely to beat and not to kill. Up to that point, the convictions of the learned Sessions Judge under section 325/149, Indian Penal Code, are unassailable.\nThe next question is whether, that being the case, the convictions by the High Court under section 302/149 can be upheld.\nNeither the Sessions Judge nor the High Court believe that there was any common intention to kill, therefore the convictions for the more serious offence can only be sustained under section 149 if it can be shown (1) that an actual killing of some of the persons attacked was likely to result from the beating which formed the common object and (2) that each person so convicted knew that might be a likely result.\nNow so far as Sukha and Gumana are concerned, there can be no doubt. They started the fight with deadly weapons.\nSukha fired at least twice and bit two persons. He himself may not have had an intention to kill and indeed the fact that the wounds are on non-vital parts must be used as a factor in his favour, but any person who carries a fire arm at that hour of the night and uses it and then continues a fight after an excited crowd has assembled and when at least nine of them rush in to join in the beating after his first shot must know either that somebody is likely to deal a fatal blow or at least that the cumulative effect of blows inflicted by a number of persons armed with lathis is likely to cause death from shock. Riots of this kind are common and death frequently results, therefore, not only was a killing a likely consequence of such an assault conducted in this fashion but Sukha and Gumana as men of ordinary intelligence must have known that.\n302 Much the same considerations apply in the case of the other appellants. They rushed in to hit persons who had already been fired on and who had been felled to the ground. They were in the midst of a crowd which could hardly have been calm and impassive and they joined in with several others to beat them up. Any man of reasonable intelligence would have known that somebody would be likely to be killed in a melee like that. Therefore, the requisite knowledge can be imputed to them also.\nTwo questions remain. One was directed against the reliability of that part of the evidence that has been believed. The argument, for all its repetition, length and eloquence, was the hackneyed one that when one part of a witness' evidence is disbelieved, it is unsafe to act on the rest of his testimony. The answer is equally hackneyed, namely that judges of fact have the right to do this and that this is not a court of appeal when it acts under article 136. The findings about this are concurrent, so, following our usual practice, we decline to review the evidence.\nThe other is that the absence of this in the charge occasioned prejudice. We have recently decided that we will be slow to entertain question of prejudice when details are not furnished; also the fact that the objection is not taken at an early stage will be taken into account. There is not a hint of prejudice in the petition filed by the appellants here in the High Court for leave to appeal to this Court; nor was this considered a ground for complaint in the very lengthy and argumentative petition for special leave filed in this Court. The only complaint about prejudice was on the score that there was no proper examination under section 342 of the Criminal Procedure Code. We decline to allow this matter to be raised.\nThe appeal fails and is dismissed.\n303 "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "af079e6062fa4fa3886224e52cafddf6",
"to_name": null,
"type": null,
"value": {
"end": 93,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nTHE COMMISSIONER OF INCOME-TAX, MADRAS\n\nVs.\n\nRESPONDENT:\nMYSORE CHROMITE LIMITED."
}
},
{
"from_name": null,
"id": "9cf06bd42d8145a7a42dcbe7f958b12e",
"to_name": null,
"type": null,
"value": {
"end": 131,
"labels": [
"PREAMBLE"
],
"start": 93,
"text": "\n\nDATE OF JUDGMENT:\n01/11/1954\n\nBENCH:"
}
},
{
"from_name": null,
"id": "848beb8e3746415fb25afbe3ca485aca",
"to_name": null,
"type": null,
"value": {
"end": 149,
"labels": [
"PREAMBLE"
],
"start": 131,
"text": "\nDAS, SUDHI RANJAN"
}
},
{
"from_name": null,
"id": "632d1a5257c441de8f86a1cd47ec4b17",
"to_name": null,
"type": null,
"value": {
"end": 668,
"labels": [
"PREAMBLE"
],
"start": 150,
"text": "BENCH:\nDAS, SUDHI RANJAN\nMAHAJAN, MEHAR CHAND (CJ)\nHASAN, GHULAM\nBHAGWATI, NATWARLAL H.\n\nCITATION: 1955 SCR (1) 849\n 1955 AIR 98\n\nACT:\nIndian Income-tax Act, 1922 (Act XI of 1922), s. 4-Profits\nderived by the assessee- Whether arose or were received in\nBritish Indian in the present case.\n\nHEADNOTE:\nThe assessee company with its registered office in Mysore\nState and its management vested in Oakley Bowden Co.\nLtd.,Madras sold Chrome ore to buyers mostly outside India\nwho were in America and Europe."
}
},
{
"from_name": null,
"id": "f21e959ecfe64312bb7441e8a799aa02",
"to_name": null,
"type": null,
"value": {
"end": 874,
"labels": [
"PREAMBLE"
],
"start": 669,
"text": "The sales to the purchasers\nin Europe were put through in London by Borden Oakely and\nCo. Ltd., London, the agent of the assessee company in\nEurope, the said agent signing the contracts for sale in\nLondon."
}
},
{
"from_name": null,
"id": "9b05e0e392b842b8b7b28958fec546d7",
"to_name": null,
"type": null,
"value": {
"end": 1160,
"labels": [
"PREAMBLE"
],
"start": 875,
"text": "The sales to purchasers in America were effected\nthrough W. R. Grace & Co., New, York, who bought for\nundisclosed principals, the contracts for sale to American\npurchasers being signed by W. R. Grace & Co., Ltd., New\nYork, in America and by Oakley Bowden & Co. Ltd. (Madras) in\nMadras."
}
},
{
"from_name": null,
"id": "4eb9f2cbafbf4ca9a613ba750ba8b4a4",
"to_name": null,
"type": null,
"value": {
"end": 1270,
"labels": [
"PREAMBLE"
],
"start": 1161,
"text": "Under both forms of contracts with European pur.\nchasers and American purchasers the price was F.O.B. Madras."
}
},
{
"from_name": null,
"id": "c6cd0b4942994e24a3bf75a79537c630",
"to_name": null,
"type": null,
"value": {
"end": 1348,
"labels": [
"PREAMBLE"
],
"start": 1270,
"text": "\nProvision was made for weighment, sampling and assay of\ngoods at destination."
}
},
{
"from_name": null,
"id": "57a464ed493241cda3b1b447b5cb5d8d",
"to_name": null,
"type": null,
"value": {
"end": 1436,
"labels": [
"PREAMBLE"
],
"start": 1349,
"text": "The course of dealing between the\nassessee company and the purchasers was as follows:-\n"
}
},
{
"from_name": null,
"id": "74bb3c6369694372a7934f3e23e10d50",
"to_name": null,
"type": null,
"value": {
"end": 1577,
"labels": [
"PREAMBLE"
],
"start": 1436,
"text": "Before the goods were actually shipped, the buyers used to\nopen a confirmed irrevocable Bankers' credit with some first\nclass Bank in London."
}
},
{
"from_name": null,
"id": "6c83ab86efc04d9abc59f9cfbc8feb5f",
"to_name": null,
"type": null,
"value": {
"end": 1671,
"labels": [
"PREAMBLE"
],
"start": 1578,
"text": "Being informed of the opening of such\ncredit theEastern Bank Ltd., London, sent intimation to"
}
},
{
"from_name": null,
"id": "f1d3c6a78d5d43a39cb5fe30d05de460",
"to_name": null,
"type": null,
"value": {
"end": 1805,
"labels": [
"PREAMBLE"
],
"start": 1672,
"text": "the Eastern\nBank Ltd., Madras, and the latter in its turn used to pass\non the intimation by letter addressed to the assesses\ncompany."
}
},
{
"from_name": null,
"id": "8535d2046b0d4442a5fe0f747d9fbc66",
"to_name": null,
"type": null,
"value": {
"end": 1962,
"labels": [
"PREAMBLE"
],
"start": 1806,
"text": "On receipt of such intimation the assessee company\nplaced the contracted goods on board the steamer at Madras\nand obtained a bill of lading in its own name."
}
},
{
"from_name": null,
"id": "5d7eabcc633c478282b5b94de571df49",
"to_name": null,
"type": null,
"value": {
"end": 2538,
"labels": [
"PREAMBLE"
],
"start": 1963,
"text": "If hereafter\nthe assessee company used to make out a provisional invoice\non the basis of the bill of lading weight and contract price\nfor 48 percent Cr. 203 and used to draw a bill of exchange\non the buyers' Bank, where the letter of credit had been\nopened, for 90 percent of the amount of the provisional\ninvoice payable at sight in the case of European contracts\n\nand 80 percent of the amount of the provisional invoice at\n90 days' sight in the case of American contracts end in\neither case the bills of exchange used to be drawn in favour\nof the Eastern Bank Ltd., London."
}
},
{
"from_name": null,
"id": "54e8d201cfa34cc5989773fbeb00e2e9",
"to_name": null,
"type": null,
"value": {
"end": 2836,
"labels": [
"PREAMBLE"
],
"start": 2539,
"text": "The bill of exchange\ntogether with the bill of lading endorsed in blank by the\nassessee company and the provisional invoice was then\nnegotiated with the Eastern Bank Ltd., Madras, the bankers\nof the assesses company, who used to credit the assessee\ncompany with the amount of the bill of exchange."
}
},
{
"from_name": null,
"id": "060db5d9abf74bcf92d819dfd60432b9",
"to_name": null,
"type": null,
"value": {
"end": 3132,
"labels": [
"PREAMBLE"
],
"start": 2837,
"text": "The\nEastern Bank Ltd., Madras, then forwarded the documents to\nthe Eastern Bank Ltd., London, who used to present the bill\nof exchange to the buyers' Bank in London, and upon the bill\nof exchange being accepted the Eastern Bank Ltd., London,\nused to deliver the bill of lading and the invoice to"
}
},
{
"from_name": null,
"id": "d532916f25844b49823704c072fb40dc",
"to_name": null,
"type": null,
"value": {
"end": 3149,
"labels": [
"PREAMBLE"
],
"start": 3133,
"text": "the\nbuyers' Bank"
}
},
{
"from_name": null,
"id": "44359ae5abbf464092e29cad4cdf633e",
"to_name": null,
"type": null,
"value": {
"end": 3262,
"labels": [
"PREAMBLE"
],
"start": 3149,
"text": ". The buyers' Bank in due course used to pay\nthe amount of the bill of exchange to the Eastern Bank Ltd.,\nLondon."
}
},
{
"from_name": null,
"id": "338d56cffb1141b78b868442b7ccffc6",
"to_name": null,
"type": null,
"value": {
"end": 3560,
"labels": [
"PREAMBLE"
],
"start": 3263,
"text": "Thereafter, on arrival of the goods and after\nweighment and assay, the sale price was ascertained and the\nbalance of price after deducting the payments made against\nthe bill of exchange, used to be paid to the Eastern Bank\nLtd., London, which was the assessee company s agent and\nBanker in London."
}
},
{
"from_name": null,
"id": "8d9496315c9749b8b69c24b5c0a9a7b3",
"to_name": null,
"type": null,
"value": {
"end": 3699,
"labels": [
"PREAMBLE"
],
"start": 3560,
"text": "\nIt was common ground between the Income-tax department and\nassessee company that the income arose at the place where\nthe sales took place."
}
},
{
"from_name": null,
"id": "361ae8b0faf44c81a400a5f70942cb68",
"to_name": null,
"type": null,
"value": {
"end": 4783,
"labels": [
"PREAMBLE"
],
"start": 3699,
"text": "\nIt was contended on behalf of the department that the sales\nmust be regarded as having taken place in British India\nbecause (i) the price and delivery of goods were on F.O.B.\nterms, (ii) that in the European contracts, the insurance,\nif any, was to be the concern of the buyers, (iii) that the\npayment of the 80 percent or 90 percent as the case may be\nwas made in Madras by the Eastern Bank Ltd., Madras, and as\non these facts the property passed at Madras, ,;he sales\nwere completed in British India.\nHeld, (repelling the contention) that upon the terms of the\ncontracts in question and the course of dealings between the\nparties ,he property in the goods could not have passed to\nthe buyer earlier than the date when the bill of exchange\nwas accepted by the Bank in London and the documents were\ndelivered by the assesses company's agent, the Eastern Bank\nLtd., London, to the duyers Bank and this admittedly always\ntook place in London and in the promises the sales took\nplace outside British India and exhypothesi the profits derived from such sales arose Outside\nBritish India."
}
},
{
"from_name": null,
"id": "f08d63993089427da513654c5dc98905",
"to_name": null,
"type": null,
"value": {
"end": 5681,
"labels": [
"PREAMBLE"
],
"start": 4783,
"text": "\nHeld further, that the contention submitted on behalf of the\ndepartment that irrespective of the place where the sales\nmay have taken place the profits derived from such sales\nwere received in Madras, as after shipment the assessee\ncompany, through its managing agent` in Madras, prepared\nprovisional invoices and drew bills of exchange for 80\npercent or 90 percent as the case may be of the amount of\nsuch invoices and handed over the same to the Eastern Bank\nLtd., Madras, and received the amount of the bill of\nexchange from them in Madras and that the receipt of this\npayment ,by the assessee company was really the receipt of\nthe price of the goods and amounted to receipt of profits in\nMadras, was also devoid of force because the price was paid\non behalf of the buyers by their respective London Banks in\nLondon to the Eastern Bank Ltd., London, which was the agent\nof the assessee company."
}
},
{
"from_name": null,
"id": "9759ea013b30405e8aa8a7de593f736f",
"to_name": null,
"type": null,
"value": {
"end": 6128,
"labels": [
"PREAMBLE"
],
"start": 5682,
"text": "The first receipt of the price was\nby the Eastern Bank Ltd., London, on behalf of the sellers\nand the balance of the price ascertained after weighment and\nassay and deducting the amount paid on the bill of exchange\n\nwas similarly received in London by the Eastern Bank Ltd.,\nLondon, on behalf of the assesses company and subsequent\nadjustment made in the books of Eastern Bank Ltd., London,\ndid not operate as receipt of profits in British India."
}
},
{
"from_name": null,
"id": "079506d9bc424c1ea29abdee511ec104",
"to_name": null,
"type": null,
"value": {
"end": 6179,
"labels": [
"PREAMBLE"
],
"start": 6128,
"text": "\nPromz Adalbert (L.R. [1917] A.C. 586) referred to."
}
},
{
"from_name": null,
"id": "4d75d3136a2846269d3c9d528b2b33d6",
"to_name": null,
"type": null,
"value": {
"end": 6249,
"labels": [
"PREAMBLE"
],
"start": 6179,
"text": "\n\nJUDGMENT:\nCIVIL APPELLATE JURISDICTION :Civil AppealNo. 117 of 1953."
}
},
{
"from_name": null,
"id": "a8cce4478c1d416eaf67d7b7e447dae3",
"to_name": null,
"type": null,
"value": {
"end": 6394,
"labels": [
"PREAMBLE"
],
"start": 6249,
"text": "\nAppeal from the Judgment and Order dated the 29th day of March, 1951, of the High Court of Judicature at Madras in Case Referred No. 44 of 1948."
}
},
{
"from_name": null,
"id": "24a51fb850b34db0ba816e08e235f33e",
"to_name": null,
"type": null,
"value": {
"end": 6480,
"labels": [
"PREAMBLE"
],
"start": 6394,
"text": "\nC.K. Daphtary, Solicitor-General for India (G. N. Joshi, with him) for the appellant."
}
},
{
"from_name": null,
"id": "7923e7ef99aa4dac94cda717405f5aa4",
"to_name": null,
"type": null,
"value": {
"end": 6539,
"labels": [
"PREAMBLE"
],
"start": 6480,
"text": "\nB.Ganapathy Iyer and M. S. K. Aiyangar for the respondent."
}
},
{
"from_name": null,
"id": "8b9b41b6896341d798a5d27eeb92131f",
"to_name": null,
"type": null,
"value": {
"end": 6545,
"labels": [
"PREAMBLE"
],
"start": 6539,
"text": "\n1954."
}
},
{
"from_name": null,
"id": "d329ec9ca3ba4925b89e21d613e53c71",
"to_name": null,
"type": null,
"value": {
"end": 6557,
"labels": [
"PREAMBLE"
],
"start": 6546,
"text": "November 1."
}
},
{
"from_name": null,
"id": "d7c0c723e59a485a9d4118b9e1ac0073",
"to_name": null,
"type": null,
"value": {
"end": 6861,
"labels": [
"PREAMBLE"
],
"start": 6558,
"text": "The Judgment of the Court was delivered by DAS J.-This is an appeal from the judgment pronounced by the High Court of Judicature at Madras on the 29th March, 1951, on a consolidated reference by the Income-tax Appellate Tribunal under section 66(1) of the Income-tax Act whereby the High Court answered."
}
},
{
"from_name": null,
"id": "22d8e05d103e46b3adc79693045485af",
"to_name": null,
"type": null,
"value": {
"end": 7329,
"labels": [
"FAC"
],
"start": 6862,
"text": "in the affirmative both the referred questions which were expressed in the following terms;(1) Whether on the facts and in the circumstances of the case the profits derived by the assessee company 'from sales made to European and American buyers arose outside British India ?\n(2) Whether on the facts and in the circumstances of the case the profits derived by the assessee company from sales made to European and American buyers were received outside British India ?"
}
},
{
"from_name": null,
"id": "b4bcea86d65e44339cea16ddbd8d5089",
"to_name": null,
"type": null,
"value": {
"end": 7567,
"labels": [
"FAC"
],
"start": 7329,
"text": "\nThe above Questions of law arose out of proceedings for the assessment to income-tax of the respondent, Mysore Chromite Ltd. (hereinafter referred to as the asseessee company), for the years 1939-1940, 1940 1941, 1941-1942 and 1942-1943."
}
},
{
"from_name": null,
"id": "09de4a9213ed4f97a02fcfcef8d09fdf",
"to_name": null,
"type": null,
"value": {
"end": 7854,
"labels": [
"FAC"
],
"start": 7567,
"text": "\nThe facts leading up to the reference as found by the Income-tax Appellate Tribunal are shortly as follows: The assessee company is a private limited company registered in the Mysore State under the Mysore Company Regulations and has its registered office at Sinduvalli in Mysore State."
}
},
{
"from_name": null,
"id": "dc44faa5a05245608d71f654cb0a6604",
"to_name": null,
"type": null,
"value": {
"end": 8104,
"labels": [
"FAC"
],
"start": 7855,
"text": "The management and control of the assessee company was vested in Messrs. Oakley Bowden & Co. (Madras) Ltd., another private limited company incorporated under the Indian Companies Act, having its registered office at No.\n15, Armenian Street, Madras."
}
},
{
"from_name": null,
"id": "5e3a515b94d147b4b205df43c0fe8993",
"to_name": null,
"type": null,
"value": {
"end": 8162,
"labels": [
"FAC"
],
"start": 8105,
"text": "The assessee company owns chromite mines in Mysore State."
}
},
{
"from_name": null,
"id": "a86d6889942948c2861d7f9d0f174554",
"to_name": null,
"type": null,
"value": {
"end": 8291,
"labels": [
"FAC"
],
"start": 8163,
"text": "Chrome ores are extracted from the mines and converted into a merchantable product and then sold to buyers mostly outside India."
}
},
{
"from_name": null,
"id": "cc156fab80fe4111b3c854107cb9b7d5",
"to_name": null,
"type": null,
"value": {
"end": 8423,
"labels": [
"FAC"
],
"start": 8292,
"text": "A very small proportion of the total sales is effected in India and for the purposes of this case may be left out of consideration."
}
},
{
"from_name": null,
"id": "c13bf317e59b4d47b5604f78e77d2c47",
"to_name": null,
"type": null,
"value": {
"end": 8477,
"labels": [
"FAC"
],
"start": 8423,
"text": "\nThe sales are mostly to buyers in America and Europe."
}
},
{
"from_name": null,
"id": "0db5c656306f46aca74e1a7379b78634",
"to_name": null,
"type": null,
"value": {
"end": 8686,
"labels": [
"FAC"
],
"start": 8478,
"text": "The sales to the purchasers in Europe are put through in London by Bowden Oakley & Co. Ltd., London, which is the agent of the assessee company in Europe holding a power of attorney from the assessee company."
}
},
{
"from_name": null,
"id": "acc0ca283d914be5bd277c4632432893",
"to_name": null,
"type": null,
"value": {
"end": 8783,
"labels": [
"FAC"
],
"start": 8687,
"text": "The contracts for sale to European purchasers are signed by Bowden Oakley & Co. Ltd., in London."
}
},
{
"from_name": null,
"id": "aae1ea9b110f460b97c9dafe6385db3d",
"to_name": null,
"type": null,
"value": {
"end": 8902,
"labels": [
"FAC"
],
"start": 8784,
"text": "The sales to purchasers in America are effected through Messrs. W. R. Grace & Co., who buy for undisclosed principals."
}
},
{
"from_name": null,
"id": "e31708b7e4f942e68ef15931d7455b39",
"to_name": null,
"type": null,
"value": {
"end": 9057,
"labels": [
"FAC"
],
"start": 8903,
"text": "The contracts for sale to American purchasers are signed by W. R. Grace & Co., presumably in America and by Oakley Bowden & Co. (Madras), Ltd., in Madras."
}
},
{
"from_name": null,
"id": "640cae74704a47199e9edc0be8fb4c98",
"to_name": null,
"type": null,
"value": {
"end": 9258,
"labels": [
"FAC"
],
"start": 9058,
"text": "Specimen forms of contracts with European purchasers and those with American purchasers are set out in the order of the Tribunal dated the 22nd January,1948, out of which the present reference arises."
}
},
{
"from_name": null,
"id": "92bb906c0c1c4b0dbd2b656ead049e74",
"to_name": null,
"type": null,
"value": {
"end": 9329,
"labels": [
"FAC"
],
"start": 9259,
"text": "Under both forms of contracts the price was F.C.B. Madras or Marmagoa."
}
},
{
"from_name": null,
"id": "445e1562339d46fc82fefc5ca0895263",
"to_name": null,
"type": null,
"value": {
"end": 9427,
"labels": [
"FAC"
],
"start": 9330,
"text": "A very small quantity of goods was sold F.O.B. Marmagoa and the same need not be considered here."
}
},
{
"from_name": null,
"id": "0d03ed76599946df8e41a027ac5da0fb",
"to_name": null,
"type": null,
"value": {
"end": 9505,
"labels": [
"FAC"
],
"start": 9428,
"text": "Provision was made for weighment, sampling and assay of goods at destination."
}
},
{
"from_name": null,
"id": "32990b78f54c4e2c9b0afe75fb537d10",
"to_name": null,
"type": null,
"value": {
"end": 9760,
"labels": [
"FAC"
],
"start": 9506,
"text": "The terms of payment under the European contract were as follows:- Payment.-Buyers to open a confirmed irrevocable Bankers credit in favour of Messrs. Mysore Chromite Ltd., Madras (to be advised to sellers) through the Eastern Bank Ltd., for 90 per cent."
}
},
{
"from_name": null,
"id": "9789e18e26604cc68351cdb6bf861a51",
"to_name": null,
"type": null,
"value": {
"end": 9831,
"labels": [
"FAC"
],
"start": 9761,
"text": "(ninety per cent..) of the Provincial (sic) Invoice against documents."
}
},
{
"from_name": null,
"id": "257f734ba88e41188e53682b566cfa5e",
"to_name": null,
"type": null,
"value": {
"end": 9901,
"labels": [
"FAC"
],
"start": 9832,
"text": "Documents to consist of:- 1. Bills of Lading, 2. Provisional Invoice."
}
},
{
"from_name": null,
"id": "91875e7a88024523a355423dbd6587d8",
"to_name": null,
"type": null,
"value": {
"end": 9994,
"labels": [
"FAC"
],
"start": 9902,
"text": "Provisional invoice to be based on Bill of Lading weight and contract price for 48 per cent."
}
},
{
"from_name": null,
"id": "648c3c1f3d654dcaa7ae4f6fafdb35c0",
"to_name": null,
"type": null,
"value": {
"end": 10003,
"labels": [
"FAC"
],
"start": 9995,
"text": "Cr. 203."
}
},
{
"from_name": null,
"id": "632c3aca32684f2b8dcdc47cf1d21953",
"to_name": null,
"type": null,
"value": {
"end": 10176,
"labels": [
"FAC"
],
"start": 10004,
"text": "Balance on ascertainment of weight and analysis to be paid in London to Bowden Oakley & Co., Ltd., within 10 days of the final invoice, based on outturn weights and assays."
}
},
{
"from_name": null,
"id": "1df260516c8745b6a5e82634c6694305",
"to_name": null,
"type": null,
"value": {
"end": 10305,
"labels": [
"FAC"
],
"start": 10177,
"text": "The corresponding terms of payment under the American contracts were as follows:- Payment.-Letter of credit for eighty per cent."
}
},
{
"from_name": null,
"id": "dc9399367d0845cfb14506d141ebe067",
"to_name": null,
"type": null,
"value": {
"end": 10478,
"labels": [
"FAC"
],
"start": 10306,
"text": "(80 per cent.) of invoice value to be available against drafts at ninety (90) days' sight with documents attached to be opened immediately in London in favour of the seller"
}
},
{
"from_name": null,
"id": "3a7367f823fd4878a55d4041c7c34424",
"to_name": null,
"type": null,
"value": {
"end": 10793,
"labels": [
"FAC"
],
"start": 10478,
"text": ". Balance estimated twenty (20 per cent.) of the margin due to be paid by telegraphic transfer through London on receipt of information as to assay and outturn which should be submitted within a month after the arrival of the steamer at destination, Charges for such telegraphic transfer for account of beneficiary."
}
},
{
"from_name": null,
"id": "97d6b23c03234f45a9bd8f55a25b1370",
"to_name": null,
"type": null,
"value": {
"end": 10915,
"labels": [
"FAC"
],
"start": 10794,
"text": "The European contracts also provided for insurance by buyers but no such provision was made in the American contracts.854"
}
},
{
"from_name": null,
"id": "55be250058ae49d8877b428c97530467",
"to_name": null,
"type": null,
"value": {
"end": 10988,
"labels": [
"FAC"
],
"start": 10916,
"text": "The course of dealing as found by the Appellate Tribunal was as follows."
}
},
{
"from_name": null,
"id": "d814b8d927f84b458fd62ddfd40f9956",
"to_name": null,
"type": null,
"value": {
"end": 11130,
"labels": [
"FAC"
],
"start": 10989,
"text": "Before the goods were actually shipped, the buyers used to open a confirmed irrevocable Bankers' credit with some first class bank in London."
}
},
{
"from_name": null,
"id": "515edef207c64e59a58b29a67a589609",
"to_name": null,
"type": null,
"value": {
"end": 11359,
"labels": [
"FAC"
],
"start": 11131,
"text": "Being informed of the opening of such credit the Eastern Bank Ltd., London sent intimation to the Eastern Bank Ltd., Madras, and the latter in its turn used to pass on the intimation by letter addressed to the' assessee company."
}
},
{
"from_name": null,
"id": "822eb57ed18b4c00a70b01655100ad54",
"to_name": null,
"type": null,
"value": {
"end": 11441,
"labels": [
"FAC"
],
"start": 11360,
"text": "A specimen of such letter is also set out in the order of the Appellate Tribunal."
}
},
{
"from_name": null,
"id": "87998a6fd2ac41faa65825d4231e25bb",
"to_name": null,
"type": null,
"value": {
"end": 11963,
"labels": [
"FAC"
],
"start": 11442,
"text": "in such communication the Eastern Bank Ltd., Madras, informed the assessee company that I 'in accordance with advices received by letter from our London Office, a confirmed and irrevocable credit has been opened in your favour by Messrs. Morgan Grenfell & Co., Ltd., London, for account of Messrs. W. R. Grace & Co., New York, for a sum not exceeding pound. 7,300 (seven thousand three hundred pounds sterling) in all, available by delivery to us on or before 15th January, 1940, of the following documents..............."
}
},
{
"from_name": null,
"id": "f076f3509a814d86bed4980621294993",
"to_name": null,
"type": null,
"value": {
"end": 12224,
"labels": [
"FAC"
],
"start": 11964,
"text": "Towards, the end of the letter the Eastern Bank Ltd., Madras, used to write that they were \"prepared in our options as customary to negotiate drafts drawn in terms of the arrangement provided that the documents as above mentioned appear to us to be in order. \""
}
},
{
"from_name": null,
"id": "15b7fc0dbea84e5ba56e278a5ed7f9a6",
"to_name": null,
"type": null,
"value": {
"end": 12374,
"labels": [
"FAC"
],
"start": 12224,
"text": "\nThe letter concluded with a warning that the advice was \"given for your guidance and without involving any rosponsi- bility on the part of this Bank."
}
},
{
"from_name": null,
"id": "596e6de6e5034b898c99cd6e5b5c2741",
"to_name": null,
"type": null,
"value": {
"end": 12533,
"labels": [
"FAC"
],
"start": 12375,
"text": "\" On receipt of such intimation the assessee company placed the contracted goods on board the steamer at Madras and obtained A bill of lading in its own name."
}
},
{
"from_name": null,
"id": "92ab7071d9864cbeb0c8d179c616476c",
"to_name": null,
"type": null,
"value": {
"end": 12607,
"labels": [
"FAC"
],
"start": 12534,
"text": "As already mentioned, the shipments were made principally at Madras Port."
}
},
{
"from_name": null,
"id": "6bf245fb14214a569a54199acd0b91b1",
"to_name": null,
"type": null,
"value": {
"end": 13187,
"labels": [
"FAC"
],
"start": 12608,
"text": "Thereafter, the assessee company used to make out a provisional invoice on the basis of the bill of lading weight and contract price for 48 per cent' Cr. 203 and used to draw a bill of exchange on the buyers Bank, where the letter of credit had been opened, for 90 per cent. of the amount of the provisional invoice payable at sight in the case of European contracts and 80 per cent. of the amount of the provisional invoice at 90 days' sight in the case of American contracts and in either case the bills of exchange used to be drawn in favour of theEastern 'Batik Ltd., London."
}
},
{
"from_name": null,
"id": "9201db4ddf8849d1a1603b4dbe20f9ee",
"to_name": null,
"type": null,
"value": {
"end": 13494,
"labels": [
"FAC"
],
"start": 13188,
"text": "The bill of exchange together with the relative bill of lading endorsed in blank by the assessee company and the provisional invoice was then negotiated with the Eastern Bank Ltd., Madras, the bankers of the assessee company, Who used to credit the assessee company with the amount of the bill of exchange."
}
},
{
"from_name": null,
"id": "40674d83d7744ef9b14cc4d4b5d2a5f9",
"to_name": null,
"type": null,
"value": {
"end": 13807,
"labels": [
"FAC"
],
"start": 13495,
"text": "The Eastern Bank Ltd., Madras, then forwarded the documents to the Eastern Bank Ltd., London, who used to present the bill of exchange to the buyers' Bank in London and upon the bill of exchange being accepted the Eastern Bank Ltd., London, used to deliver the bill of lading and the invoice to the buyers' Bank."
}
},
{
"from_name": null,
"id": "8310b508257c43df855312a7c637977b",
"to_name": null,
"type": null,
"value": {
"end": 13918,
"labels": [
"FAC"
],
"start": 13808,
"text": "The buyers Bank in due course used to pay the amount of the bill of exchange to the Eastern Bank Ltd., London."
}
},
{
"from_name": null,
"id": "65a1e383084b439f90df6c3665b25ea2",
"to_name": null,
"type": null,
"value": {
"end": 14218,
"labels": [
"FAC"
],
"start": 13919,
"text": "Thereafter, on arrival of the goods and' after weighment and assay, the sale price was ascertained and the balance of price, after deducting the payments made against the bill of exchange, used to be paid to the Eastern Bank Ltd., London, which was the assessee company's agent and banker in London."
}
},
{
"from_name": null,
"id": "6b44bb9116a34ed4a76af148fb9aea43",
"to_name": null,
"type": null,
"value": {
"end": 14417,
"labels": [
"FAC"
],
"start": 14219,
"text": "On the facts stated above the Income-tax Officer assessed the assessee company on the entire profits in respect of these sales on the footing that they arose and were also received in British India."
}
},
{
"from_name": null,
"id": "99d7a96dcd674ae38aa7a10bc8656116",
"to_name": null,
"type": null,
"value": {
"end": 14491,
"labels": [
"FAC"
],
"start": 14418,
"text": "On appeal, the Appellate Assistant Commissioner confirmed the assessment."
}
},
{
"from_name": null,
"id": "374aa2817c28414ea23568352a61c1aa",
"to_name": null,
"type": null,
"value": {
"end": 14568,
"labels": [
"FAC"
],
"start": 14492,
"text": "The assessee company went up on appeal to the Income-tax Appellate Tribunal."
}
},
{
"from_name": null,
"id": "2a562a118f1d4c8090b63c9447846b92",
"to_name": null,
"type": null,
"value": {
"end": 14806,
"labels": [
"FAC"
],
"start": 14569,
"text": "The Tribunal by its order dated the 22nd January, 1948, came to the conclusion that the sales took place outside British India and that the money in respect of such sales was also received by the agent of the.\nassessee company in London."
}
},
{
"from_name": null,
"id": "95e6bc267f724c6c8dac3b7f5e1129f1",
"to_name": null,
"type": null,
"value": {
"end": 15001,
"labels": [
"FAC"
],
"start": 14807,
"text": "The Commissioner of Income-tax thereupon applied to the Appellate Tribunal requiring the latter to state a case and refer certain questions of law said to &rise out of the order of the Tribunal."
}
},
{
"from_name": null,
"id": "e6375e4d130c42b48f2d65c231f3e473",
"to_name": null,
"type": null,
"value": {
"end": 15092,
"labels": [
"FAC"
],
"start": 15002,
"text": "The Appellate Tribunal accordingly referred the two questions of law hereinbefore set out."
}
},
{
"from_name": null,
"id": "58e4c133656c4654868597178e54d6d9",
"to_name": null,
"type": null,
"value": {
"end": 15285,
"labels": [
"FAC"
],
"start": 15093,
"text": "The High Court of Madras in a well reasoned judgment upheld the decision of the Appellate Tribunal and answered the two questions in the affirmative and against the Commissioner of Income-tax."
}
},
{
"from_name": null,
"id": "d663dbacfb96456a99e8bb85aab4d55a",
"to_name": null,
"type": null,
"value": {
"end": 15397,
"labels": [
"FAC"
],
"start": 15286,
"text": "The Commissioner of Income-tax' has now preferredthis appeal with a certificate of fitness from the High Court."
}
},
{
"from_name": null,
"id": "3dfc88bb559d4ba4916a9bec712aee3a",
"to_name": null,
"type": null,
"value": {
"end": 15634,
"labels": [
"ANALYSIS"
],
"start": 15397,
"text": "\nIt appears from the statement of case as also from the order of the Appellate Tribunal that it was agreed between the department and the assessee company that the income arose at the place, wherever that be, where, the sales took place."
}
},
{
"from_name": null,
"id": "de260d0b0bcf438caf75b44b72815d58",
"to_name": null,
"type": null,
"value": {
"end": 15779,
"labels": [
"ANALYSIS"
],
"start": 15634,
"text": "\nThis was not disputed before the High Court or before us although in the appellant's statement of case it was suggested that this was erroneous."
}
},
{
"from_name": null,
"id": "ad1a99919c094c858cd5630f73c5352e",
"to_name": null,
"type": null,
"value": {
"end": 15856,
"labels": [
"ANALYSIS"
],
"start": 15780,
"text": "The point for determination, therefore, is as to where the sales took place."
}
},
{
"from_name": null,
"id": "5e1124b5ab18401f89b02d8f9813f461",
"to_name": null,
"type": null,
"value": {
"end": 16043,
"labels": [
"ARG_PETITIONER"
],
"start": 15857,
"text": "Learned Solicitor-General appearing in support of this appeal contends that having regard to the terms of the contracts the sales must be regarded as having taken place in British India."
}
},
{
"from_name": null,
"id": "6d164a95d29245bc8560d02d6fa8f17c",
"to_name": null,
"type": null,
"value": {
"end": 16430,
"labels": [
"ARG_PETITIONER"
],
"start": 16044,
"text": "The facts strongly relied on by him are (i) that the price and delivery of goods were on F.O.B.\nterms, (ii) that in the European contracts the insurance, if any, was to be the concern of the buyers and (iii) that payment of the 80 per cent. or 90 per cent. as the case may be was made in Madras by the Eastern Bank Ltd., Madras, to the assessee company on the delivery of the documents."
}
},
{
"from_name": null,
"id": "cb05f811585c46f5a21c37774c256d88",
"to_name": null,
"type": null,
"value": {
"end": 16608,
"labels": [
"ARG_PETITIONER"
],
"start": 16431,
"text": "All these facts taken together indicate, according to his submission, that the property in the goods passed at Madras and the sales accordingly were completed in British India.\n"
}
},
{
"from_name": null,
"id": "6f8ece52992c4b05aef4f5da21a0c76f",
"to_name": null,
"type": null,
"value": {
"end": 16655,
"labels": [
"ANALYSIS"
],
"start": 16608,
"text": "We are unable to accept this line of reasoning."
}
},
{
"from_name": null,
"id": "16c69b745c8d41d2b6144dafc4e48be3",
"to_name": null,
"type": null,
"value": {
"end": 17172,
"labels": [
"STA"
],
"start": 16656,
"text": "According to section 4 of the Indian Sale of Goods Act a contract of sale of goods is a contract whereby the seller transfer,% or agrees to transfer the property in goods to the buyer for a price and where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale, but where the transfer of property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell."
}
},
{
"from_name": null,
"id": "bce946d243b643caa067affd98c44759",
"to_name": null,
"type": null,
"value": {
"end": 17362,
"labels": [
"STA"
],
"start": 17173,
"text": "By sub-section (4) of that section an agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred."
}
},
{
"from_name": null,
"id": "bc7dd4254a3940c0888a984c19d9ab1b",
"to_name": null,
"type": null,
"value": {
"end": 17548,
"labels": [
"STA"
],
"start": 17362,
"text": "\nSection 18 of the Act clearly indicates that in the case of sale of unascertained goods no property in the goods is transferred to the buyer unless and until the goods, are ascertained."
}
},
{
"from_name": null,
"id": "d24ac55965ff4b6e94a53cec72f8ad14",
"to_name": null,
"type": null,
"value": {
"end": 17634,
"labels": [
"ANALYSIS"
],
"start": 17549,
"text": "In 857, the present case, the contracts were always for sale of unascertained, goods."
}
},
{
"from_name": null,
"id": "74ce286130714ec6b176354436af64b2",
"to_name": null,
"type": null,
"value": {
"end": 18110,
"labels": [
"ANALYSIS"
],
"start": 17635,
"text": "Skipping over sections 19 to 22 which deal with contract of sale of specific goods we come to section 23 which lays down that where there is a contract for the sale of unascertained or future goods by description and goods of that description and in a,, deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer."
}
},
{
"from_name": null,
"id": "f9ed099f4bae4edfbf2b00f321369445",
"to_name": null,
"type": null,
"value": {
"end": 18331,
"labels": [
"ANALYSIS"
],
"start": 18111,
"text": "It is suggested that as soon as the assessee company placed the goods on board the steamer named by the buyer at the Madras Port the goods became ascertained and the property in the goods passed immediately to the buyer."
}
},
{
"from_name": null,
"id": "663beb24b30645a58c14be59156958bb",
"to_name": null,
"type": null,
"value": {
"end": 18423,
"labels": [
"ANALYSIS"
],
"start": 18332,
"text": "This argument, however, overlooks the important word \"unconditionally\" used in the section."
}
},
{
"from_name": null,
"id": "2c5ea1c7c75f42a1ba011bf6e1b77f0e",
"to_name": null,
"type": null,
"value": {
"end": 18587,
"labels": [
"ANALYSIS"
],
"start": 18423,
"text": "\nThe requirement of the section is not only that there shall be appropriation of the goods to the contract but that such appropriation must be made unconditionally."
}
},
{
"from_name": null,
"id": "0f5875903ea442a5932dd840421eb0bb",
"to_name": null,
"type": null,
"value": {
"end": 18916,
"labels": [
"STA"
],
"start": 18588,
"text": "This is further elaborated by section 25 which provides that where there is a contract for the sale of specific goods or where goods are subsequently appropriated to the contract, the seller may, by the. terms. of the contract or appropriation,, reserve the right of disposal of the goods until certain conditions are fulfilled."
}
},
{
"from_name": null,
"id": "fc27b51c8255474da989022e1e7c8c90",
"to_name": null,
"type": null,
"value": {
"end": 19177,
"labels": [
"ANALYSIS"
],
"start": 18917,
"text": "In such a case, notwithstanding the delivery of the goods to the buyer, or to a carrier or other bailer for the purpose of transmission to the buyer, the property in the goods does not pass to the buyer until the conditions imposed by the seller are fulfilled."
}
},
{
"from_name": null,
"id": "9cef8b725094492fb9434904f0a116c0",
"to_name": null,
"type": null,
"value": {
"end": 19312,
"labels": [
"ISSUE"
],
"start": 19178,
"text": "The question in this case, therefore, is: was there an unconditional appro- priation of the goods by merely placing them on the ship ?"
}
},
{
"from_name": null,
"id": "b9594c4ae54644f0baa8b10e336fa154",
"to_name": null,
"type": null,
"value": {
"end": 19561,
"labels": [
"ANALYSIS"
],
"start": 19312,
"text": "\nIt is true that the price and delivery was F.O.B., Madras but the contracts themselves clearly required the buyers to open a confirmed irrevocable Bankers' credit for, the requisite percentage of the invoice value to be available against documents."
}
},
{
"from_name": null,
"id": "a64d0a33e4a8493faa1de1e758b81b8b",
"to_name": null,
"type": null,
"value": {
"end": 19776,
"labels": [
"ANALYSIS"
],
"start": 19562,
"text": "This clearly indicated that the buyers would not be entitled to the documents,, that is, the bill of lading and the provisional invoice, until payment of the requisite percentage was made upon the bill of exchange."
}
},
{
"from_name": null,
"id": "6a35b56580124a3db2d79a4d4a183865",
"to_name": null,
"type": null,
"value": {
"end": 19962,
"labels": [
"ANALYSIS"
],
"start": 19776,
"text": "\nThe bill of lading is the document of title to the goods and by this termthe assessee company clearly reserved the right of disposal, of the goods until the bill of exchange *as paid'.'"
}
},
{
"from_name": null,
"id": "f040f01fc04f4067a5ec9f696f255be1",
"to_name": null,
"type": null,
"value": {
"end": 20286,
"labels": [
"ANALYSIS"
],
"start": 19963,
"text": "Placing of the goods on board the steamer named by the buyer under a F.O.B. contract clearly discharges the contractual liability of the seller as seller and the delivery to the buyer is complete and the goods may thenceforward be also at the risk of the buyer against which he may cover himself by taking out an insurance."
}
},
{
"from_name": null,
"id": "25df718c437947ecac04420f7846e45b",
"to_name": null,
"type": null,
"value": {
"end": 20772,
"labels": [
"ANALYSIS"
],
"start": 20287,
"text": "Prima facie such delivery of the goods to the buyer and the passing of the risk in respect of the goods from the seller to the buyer are strong indications as to the passing also of the property in the goods to the buyer but they are not decisive and may be negatived, for under section 25 the seller may yet reserve to himself the right of disposal of the goods until the fulfilment of certain conditions and thereby prevent the passing of property in the goods from him to the buyer."
}
},
{
"from_name": null,
"id": "cc86427a54dd418fa760b18085d65350",
"to_name": null,
"type": null,
"value": {
"end": 20894,
"labels": [
"ANALYSIS"
],
"start": 20773,
"text": "The facts found in this case are that the assessee company shipped the goods under bill of lading issued in its own name."
}
},
{
"from_name": null,
"id": "70cc2f865056452b8d325e7bb31838ff",
"to_name": null,
"type": null,
"value": {
"end": 21131,
"labels": [
"ANALYSIS"
],
"start": 20895,
"text": "Under the contract it was not obliged to part with the bill of lading which is the document of title to the goods until the bill of exchange drawn by it on the buyers' Bank where the irrevocable letter of credit was opened was honoured."
}
},
{
"from_name": null,
"id": "29b2359486cb411b9c4f7aec57f061e2",
"to_name": null,
"type": null,
"value": {
"end": 21486,
"labels": [
"ANALYSIS"
],
"start": 21132,
"text": "It is urged that under the provision in the contract for weighment and assay, which was ultimately to fix the price unless the buyer rightly rejected the goods as not being in terms of the contract, the passing of property in the goods could not take place until the buyer accepted the goods and the price was fully ascertained after weighment and assay."
}
},
{
"from_name": null,
"id": "b79af6e0882a4b2f8daa4e6a10e5d03d",
"to_name": null,
"type": null,
"value": {
"end": 21754,
"labels": [
"ANALYSIS"
],
"start": 21487,
"text": "It is submitted that being the position, the property in the goods passed and the sales were concluded outside British India, for the weighment, sampling, assay and the final fixation of the price could only take place under all these contracts outside British India."
}
},
{
"from_name": null,
"id": "0ac33889aec3446ca77a62bfebbceff5",
"to_name": null,
"type": null,
"value": {
"end": 21832,
"labels": [
"ANALYSIS"
],
"start": 21755,
"text": "It is not necessary for us to express any opinion on this extreme contention."
}
},
{
"from_name": null,
"id": "36dd6061889341da82116c3c60e59dc9",
"to_name": null,
"type": null,
"value": {
"end": 22260,
"labels": [
"ANALYSIS"
],
"start": 21833,
"text": "Suffice it to say, for the purposes of this case, that in any event upon the terms of the contracts in question and the course of dealings between the parties the property in the goods could not have passed to the buyer earlier than the date when the bill of exchange was accepted by the buyers' Bank in London and thedocuments were delivered by the assessee company's agent, the Eastern Bank Ltd., London, to the buyers\" Bank."
}
},
{
"from_name": null,
"id": "1916e9c55ddf4cf1a10584aacde79b1e",
"to_name": null,
"type": null,
"value": {
"end": 22347,
"labels": [
"ANALYSIS"
],
"start": 22261,
"text": "This admittedly, and as found by the Appellate, Tribunal, always took place in London."
}
},
{
"from_name": null,
"id": "decc76fb36304b0aa36b67f470ba2267",
"to_name": null,
"type": null,
"value": {
"end": 22558,
"labels": [
"ANALYSIS"
],
"start": 22348,
"text": "It must, therefore,. follow that at the earliest the ;property in the goods passed in London where the bill of lading was handed over to the buyers' Bank against the acceptance of the relative bill of exchange."
}
},
{
"from_name": null,
"id": "007910f4349c43edacd16d1570c30212",
"to_name": null,
"type": null,
"value": {
"end": 22786,
"labels": [
"ANALYSIS"
],
"start": 22559,
"text": "In the premises, the Appellate Tribunal as well as the High Court were quite correct in holding that the sales took place outside British India and, ex hypothesis the profits derived from such sales arose outside British India."
}
},
{
"from_name": null,
"id": "11eacaa4da15426fa617cba7cef4bac3",
"to_name": null,
"type": null,
"value": {
"end": 22983,
"labels": [
"ARG_PETITIONER"
],
"start": 22786,
"text": "\nAs to the second question, the.. learned Solicitor-General contends that irrespective of the place where the sale may have. taken place the profits derived from such sales were received in Madras."
}
},
{
"from_name": null,
"id": "991f11a3ab424f4a8dbc0d4596f6e736",
"to_name": null,
"type": null,
"value": {
"end": 23349,
"labels": [
"ARG_PETITIONER"
],
"start": 22984,
"text": "It is recalled that after shipment the assessee company, through its managing agent in Madras, prepared, provisional invoices and drew bills of exchange for 80 per cent. or 90 per cent., as the case may be, of the amount of such invoices and handed over the same to the Eastern Bank Ltd., Madras, and received the amount of the bill of exchange from them in Madras."
}
},
{
"from_name": null,
"id": "6afc317ab75146c49b35d461e2282ba1",
"to_name": null,
"type": null,
"value": {
"end": 23513,
"labels": [
"ARG_PETITIONER"
],
"start": 23350,
"text": "He contends that the receipt of this payment by the assessee company was really the receipt of the price of the goods and amounted to receipt of profits in Madras."
}
},
{
"from_name": null,
"id": "87d4c5243ade48cc8b3b243b20994124",
"to_name": null,
"type": null,
"value": {
"end": 23777,
"labels": [
"ARG_PETITIONER"
],
"start": 23514,
"text": "He draws our attention to the terms of payment in the European contract and to the letter of intimation of the opening of the credit sent by the Eastern Bank Ltd. Madras, to the assessee company which have been quoted in part in the earlier part of this judgment."
}
},
{
"from_name": null,
"id": "6b1ea3de1d494fc6aa3e1992875d280a",
"to_name": null,
"type": null,
"value": {
"end": 23928,
"labels": [
"ARG_PETITIONER"
],
"start": 23778,
"text": "He relies on the words \"through the Eastern Bank Ltd.,\" appearing in the contract and the words \"available by delivery to us\" appearing in the letter."
}
},
{
"from_name": null,
"id": "ca0096050c6b49aab403c5bf6b86b014",
"to_name": null,
"type": null,
"value": {
"end": 24018,
"labels": [
"ANALYSIS"
],
"start": 23929,
"text": "We do not think that those words support the contention of the learned Solicitor-General."
}
},
{
"from_name": null,
"id": "8a4b28a0ac9847608f08760366a3651a",
"to_name": null,
"type": null,
"value": {
"end": 24277,
"labels": [
"ANALYSIS"
],
"start": 24019,
"text": "The words \"through the Eastern Bank Ltd.,\" appear to us to go with the preceding words \"to be advised to sellers\" which are put within brackets which seem to have been wrongly closed after the word sellers' instead of after the words the Eastern Bank Ltd. \"."
}
},
{
"from_name": null,
"id": "8c2dde4ff0084f4583688e5fd0a55987",
"to_name": null,
"type": null,
"value": {
"end": 24362,
"labels": [
"ANALYSIS"
],
"start": 24278,
"text": "Ordinarily, the buyer opens a letter of credit with his Bank in favour of the seller"
}
},
{
"from_name": null,
"id": "0923556dcb984a649f9fb478b1a9375b",
"to_name": null,
"type": null,
"value": {
"end": 24714,
"labels": [
"ANALYSIS"
],
"start": 24363,
"text": "andthe words \"through the Eastern Bank Ltd.,\" would be meaningless unless it was intended to mean' that the irrevocable credit which was in favour of the assessee company was to be operated upon by the latter through the Eastern Bank Ltd. If that were the true meaning, then that certainly does not make the Eastern Bank Ltd., the agent of the buyers."
}
},
{
"from_name": null,
"id": "0422f990483e49d7abcf81b346dda77f",
"to_name": null,
"type": null,
"value": {
"end": 24905,
"labels": [
"ANALYSIS"
],
"start": 24715,
"text": "The words \"available by delivery to us\"\noccurring in the letter of the Eastern Bank Ltd., Madras, do not appear to us to indicate that this was any part of the terms of the letter of credit."
}
},
{
"from_name": null,
"id": "4e2e8aab27cb49acb8a9d3090c045bb6",
"to_name": null,
"type": null,
"value": {
"end": 25170,
"labels": [
"ANALYSIS"
],
"start": 24906,
"text": "This was an intimation in accordance with the advice received by the Eastern Bank Ltd., Madras, from the Eastern Bank Ltd.,, London, that the assessee company might avail itself of the letter of credit by delivery of the documents to the Eastern Bank Ltd., Madras."
}
},
{
"from_name": null,
"id": "173b61a58b4d4363b002198690a214d3",
"to_name": null,
"type": null,
"value": {
"end": 25412,
"labels": [
"ANALYSIS"
],
"start": 25171,
"text": "This is made further clear by the latter part of the letter where the Eastern Bank Ltd., Madras, expressed their willingness at their option to negotiate the drafts drawn in terms of the arrangement provided that the documents were in order,"
}
},
{
"from_name": null,
"id": "5a0008c776394411b5a9237b7529eae9",
"to_name": null,
"type": null,
"value": {
"end": 25616,
"labels": [
"ANALYSIS"
],
"start": 25413,
"text": "The concluding sentence of that letter whereby the Eastern Bank Ltd., Madras, disown any responsibility in respect of the advice clearly militates against the suggestion of the learned Solicitor-General."
}
},
{
"from_name": null,
"id": "815b45c5ac0b4fdd8741af7a2371efa6",
"to_name": null,
"type": null,
"value": {
"end": 25868,
"labels": [
"ANALYSIS"
],
"start": 25617,
"text": "It is, in these circumstances, impossible to accede to the argument that the payment of 80 per cent. or 90 per cent., as the case may be, of the amount of the provisional invoice by the Eastern Bank Ltd., Madras, was a payment on account of the price."
}
},
{
"from_name": null,
"id": "5ef2d6eb6e9b4bf8a7b21bb099fb6b33",
"to_name": null,
"type": null,
"value": {
"end": 25922,
"labels": [
"ANALYSIS"
],
"start": 25869,
"text": "Normally, price is paid by or on behalf of the buyer."
}
},
{
"from_name": null,
"id": "db88aca8fb844cbe9cd89836fcbee6e3",
"to_name": null,
"type": null,
"value": {
"end": 26062,
"labels": [
"ANALYSIS"
],
"start": 25923,
"text": "In this case the fact found is that the Eastern Bank Ltd., Madras, and the Eastern Bank Ltd., London., were agents of the assessee company."
}
},
{
"from_name": null,
"id": "42798689431046a79671d9aed5f1627b",
"to_name": null,
"type": null,
"value": {
"end": 26114,
"labels": [
"ANALYSIS"
],
"start": 26063,
"text": "Neither 'of 'them had any relation with the buyers."
}
},
{
"from_name": null,
"id": "534bd50923aa4e6696e2b9adf138ac1c",
"to_name": null,
"type": null,
"value": {
"end": 26189,
"labels": [
"ANALYSIS"
],
"start": 26115,
"text": "Therefore, a payment by them cannot be regarded as a payment of the price."
}
},
{
"from_name": null,
"id": "012f4d804cf74a2fa4d8a94e72e36194",
"to_name": null,
"type": null,
"value": {
"end": 26593,
"labels": [
"PRE_RELIED"
],
"start": 26190,
"text": "The true position is very clearly put by Lord Sumner in The Prinz Adalbert(1) : \" When a shipper takes his draft, not as yet accepted, but accompanied by a bill of lading, indorsed in this way, and discounts it with a banker, he makes himself liable on the instrument as drawer, and he further makes the goods, which the bill of lading (1) L.R. [1917] A.C. 586, 589.represents, security for its payment."
}
},
{
"from_name": null,
"id": "a4ca9ed985de4ecabe4ab7cc93409a19",
"to_name": null,
"type": null,
"value": {
"end": 26930,
"labels": [
"PRE_RELIED"
],
"start": 26594,
"text": "If, in turn, the discounting banker surrenders the bill of lading to the acceptor against his acceptance, the inference is that he is satisfied to part with his security in consideration of getting this further party's liability on the bill, and that in so doing he acts with the permission and by the mandate of the shipper and drawer."
}
},
{
"from_name": null,
"id": "d6fc820530bf499bafc79050d8b6bd1e",
"to_name": null,
"type": null,
"value": {
"end": 27303,
"labels": [
"ANALYSIS"
],
"start": 26930,
"text": "\nThis payment by the Eastern Bank Ltd., Madras, therefore, is nothing but an advance made by them to their own customer on the security of the goods covered by the bill of lading reinforced by the 'benefit of the liability taken up by the assessee company as drawer of the bill which in its turn is backed by the confirmed and irrevocable credit of the buyers' London Bank."
}
},
{
"from_name": null,
"id": "c3552435ad58499d947fca9be8e19cb0",
"to_name": null,
"type": null,
"value": {
"end": 27486,
"labels": [
"ANALYSIS"
],
"start": 27304,
"text": "If this payment was on account of the price, why should the assessee company, as the seller, undertake any liability to the Eastern Bank Ltd., as the drawer of the bill of exchange ?"
}
},
{
"from_name": null,
"id": "e53c4f3ace414580b5e6dd36538ba112",
"to_name": null,
"type": null,
"value": {
"end": 27682,
"labels": [
"ANALYSIS"
],
"start": 27487,
"text": "The truth of the matter is that the price was paid on behalf of the buyers by their respective London Banks in London to the Eastern Bank Ltd., London which was the agent of the assessee company."
}
},
{
"from_name": null,
"id": "6da70085380e4de5a5668ee810db4593",
"to_name": null,
"type": null,
"value": {
"end": 27823,
"labels": [
"ANALYSIS"
],
"start": 27683,
"text": "The first receipt of the price, therefore, as pointed out by the High Court, was by the Eastern Bank Ltd., London, on behalf of the sellers."
}
},
{
"from_name": null,
"id": "e1325816491147c09533479d2a00f960",
"to_name": null,
"type": null,
"value": {
"end": 28067,
"labels": [
"ANALYSIS"
],
"start": 27824,
"text": "There is no dispute that the balance of the price ascertained after weighment and assay and deducting the amount paid on the bill of exchange was similarly received in London by the Eastern Bank Ltd., London, on behalf of the assessee company."
}
},
{
"from_name": null,
"id": "f0d4f2718af5492e872b317ea8f5eb86",
"to_name": null,
"type": null,
"value": {
"end": 28203,
"labels": [
"ANALYSIS"
],
"start": 28068,
"text": "The subsequent adjustment made in the books of the Eastern Bank Ltd., London, did not operate as a receipt of profits in British India."
}
},
{
"from_name": null,
"id": "22b69d6494e04f7ea5febf73f1e6c3d5",
"to_name": null,
"type": null,
"value": {
"end": 28312,
"labels": [
"RATIO"
],
"start": 28204,
"text": "In our opinion the High Court correctly answered the second question also in favour of the assessee company."
}
},
{
"from_name": null,
"id": "29072b41fdc34b01869e5901a6804dd1",
"to_name": null,
"type": null,
"value": {
"end": 28409,
"labels": [
"RPC"
],
"start": 28312,
"text": "\n For reasons stated above, this appeal must stand dismissed with costs and we order accordingly."
}
},
{
"from_name": null,
"id": "98427f17782d4162bcbfa3ae9c9b201c",
"to_name": null,
"type": null,
"value": {
"end": 28430,
"labels": [
"RPC"
],
"start": 28409,
"text": "\nAppeal dismissed.862"
}
}
]
}
] | 4,256 | {
"text": "PETITIONER:\nTHE COMMISSIONER OF INCOME-TAX, MADRAS\n\nVs.\n\nRESPONDENT:\nMYSORE CHROMITE LIMITED.\n\nDATE OF JUDGMENT:\n01/11/1954\n\nBENCH:\nDAS, SUDHI RANJAN\nBENCH:\nDAS, SUDHI RANJAN\nMAHAJAN, MEHAR CHAND (CJ)\nHASAN, GHULAM\nBHAGWATI, NATWARLAL H.\n\nCITATION: 1955 SCR (1) 849\n 1955 AIR 98\n\nACT:\nIndian Income-tax Act, 1922 (Act XI of 1922), s. 4-Profits\nderived by the assessee- Whether arose or were received in\nBritish Indian in the present case.\n\nHEADNOTE:\nThe assessee company with its registered office in Mysore\nState and its management vested in Oakley Bowden Co.\nLtd.,Madras sold Chrome ore to buyers mostly outside India\nwho were in America and Europe. The sales to the purchasers\nin Europe were put through in London by Borden Oakely and\nCo. Ltd., London, the agent of the assessee company in\nEurope, the said agent signing the contracts for sale in\nLondon. The sales to purchasers in America were effected\nthrough W. R. Grace & Co., New, York, who bought for\nundisclosed principals, the contracts for sale to American\npurchasers being signed by W. R. Grace & Co., Ltd., New\nYork, in America and by Oakley Bowden & Co. Ltd. (Madras) in\nMadras. Under both forms of contracts with European pur.\nchasers and American purchasers the price was F.O.B. Madras.\nProvision was made for weighment, sampling and assay of\ngoods at destination. The course of dealing between the\nassessee company and the purchasers was as follows:-\nBefore the goods were actually shipped, the buyers used to\nopen a confirmed irrevocable Bankers' credit with some first\nclass Bank in London. Being informed of the opening of such\ncredit theEastern Bank Ltd., London, sent intimation to the Eastern\nBank Ltd., Madras, and the latter in its turn used to pass\non the intimation by letter addressed to the assesses\ncompany. On receipt of such intimation the assessee company\nplaced the contracted goods on board the steamer at Madras\nand obtained a bill of lading in its own name. If hereafter\nthe assessee company used to make out a provisional invoice\non the basis of the bill of lading weight and contract price\nfor 48 percent Cr. 203 and used to draw a bill of exchange\non the buyers' Bank, where the letter of credit had been\nopened, for 90 percent of the amount of the provisional\ninvoice payable at sight in the case of European contracts\n\nand 80 percent of the amount of the provisional invoice at\n90 days' sight in the case of American contracts end in\neither case the bills of exchange used to be drawn in favour\nof the Eastern Bank Ltd., London. The bill of exchange\ntogether with the bill of lading endorsed in blank by the\nassessee company and the provisional invoice was then\nnegotiated with the Eastern Bank Ltd., Madras, the bankers\nof the assesses company, who used to credit the assessee\ncompany with the amount of the bill of exchange. The\nEastern Bank Ltd., Madras, then forwarded the documents to\nthe Eastern Bank Ltd., London, who used to present the bill\nof exchange to the buyers' Bank in London, and upon the bill\nof exchange being accepted the Eastern Bank Ltd., London,\nused to deliver the bill of lading and the invoice to the\nbuyers' Bank. The buyers' Bank in due course used to pay\nthe amount of the bill of exchange to the Eastern Bank Ltd.,\nLondon. Thereafter, on arrival of the goods and after\nweighment and assay, the sale price was ascertained and the\nbalance of price after deducting the payments made against\nthe bill of exchange, used to be paid to the Eastern Bank\nLtd., London, which was the assessee company s agent and\nBanker in London.\nIt was common ground between the Income-tax department and\nassessee company that the income arose at the place where\nthe sales took place.\nIt was contended on behalf of the department that the sales\nmust be regarded as having taken place in British India\nbecause (i) the price and delivery of goods were on F.O.B.\nterms, (ii) that in the European contracts, the insurance,\nif any, was to be the concern of the buyers, (iii) that the\npayment of the 80 percent or 90 percent as the case may be\nwas made in Madras by the Eastern Bank Ltd., Madras, and as\non these facts the property passed at Madras, ,;he sales\nwere completed in British India.\nHeld, (repelling the contention) that upon the terms of the\ncontracts in question and the course of dealings between the\nparties ,he property in the goods could not have passed to\nthe buyer earlier than the date when the bill of exchange\nwas accepted by the Bank in London and the documents were\ndelivered by the assesses company's agent, the Eastern Bank\nLtd., London, to the duyers Bank and this admittedly always\ntook place in London and in the promises the sales took\nplace outside British India and exhypothesi the profits derived from such sales arose Outside\nBritish India.\nHeld further, that the contention submitted on behalf of the\ndepartment that irrespective of the place where the sales\nmay have taken place the profits derived from such sales\nwere received in Madras, as after shipment the assessee\ncompany, through its managing agent` in Madras, prepared\nprovisional invoices and drew bills of exchange for 80\npercent or 90 percent as the case may be of the amount of\nsuch invoices and handed over the same to the Eastern Bank\nLtd., Madras, and received the amount of the bill of\nexchange from them in Madras and that the receipt of this\npayment ,by the assessee company was really the receipt of\nthe price of the goods and amounted to receipt of profits in\nMadras, was also devoid of force because the price was paid\non behalf of the buyers by their respective London Banks in\nLondon to the Eastern Bank Ltd., London, which was the agent\nof the assessee company. The first receipt of the price was\nby the Eastern Bank Ltd., London, on behalf of the sellers\nand the balance of the price ascertained after weighment and\nassay and deducting the amount paid on the bill of exchange\n\nwas similarly received in London by the Eastern Bank Ltd.,\nLondon, on behalf of the assesses company and subsequent\nadjustment made in the books of Eastern Bank Ltd., London,\ndid not operate as receipt of profits in British India.\nPromz Adalbert (L.R. [1917] A.C. 586) referred to.\n\nJUDGMENT:\nCIVIL APPELLATE JURISDICTION :Civil AppealNo. 117 of 1953.\nAppeal from the Judgment and Order dated the 29th day of March, 1951, of the High Court of Judicature at Madras in Case Referred No. 44 of 1948.\nC.K. Daphtary, Solicitor-General for India (G. N. Joshi, with him) for the appellant.\nB.Ganapathy Iyer and M. S. K. Aiyangar for the respondent.\n1954. November 1. The Judgment of the Court was delivered by DAS J.-This is an appeal from the judgment pronounced by the High Court of Judicature at Madras on the 29th March, 1951, on a consolidated reference by the Income-tax Appellate Tribunal under section 66(1) of the Income-tax Act whereby the High Court answered. in the affirmative both the referred questions which were expressed in the following terms;(1) Whether on the facts and in the circumstances of the case the profits derived by the assessee company 'from sales made to European and American buyers arose outside British India ?\n(2) Whether on the facts and in the circumstances of the case the profits derived by the assessee company from sales made to European and American buyers were received outside British India ?\nThe above Questions of law arose out of proceedings for the assessment to income-tax of the respondent, Mysore Chromite Ltd. (hereinafter referred to as the asseessee company), for the years 1939-1940, 1940 1941, 1941-1942 and 1942-1943.\nThe facts leading up to the reference as found by the Income-tax Appellate Tribunal are shortly as follows: The assessee company is a private limited company registered in the Mysore State under the Mysore Company Regulations and has its registered office at Sinduvalli in Mysore State.\nThe management and control of the assessee company was vested in Messrs. Oakley Bowden & Co. (Madras) Ltd., another private limited company incorporated under the Indian Companies Act, having its registered office at No.\n15, Armenian Street, Madras. The assessee company owns chromite mines in Mysore State. Chrome ores are extracted from the mines and converted into a merchantable product and then sold to buyers mostly outside India. A very small proportion of the total sales is effected in India and for the purposes of this case may be left out of consideration.\nThe sales are mostly to buyers in America and Europe. The sales to the purchasers in Europe are put through in London by Bowden Oakley & Co. Ltd., London, which is the agent of the assessee company in Europe holding a power of attorney from the assessee company. The contracts for sale to European purchasers are signed by Bowden Oakley & Co. Ltd., in London. The sales to purchasers in America are effected through Messrs. W. R. Grace & Co., who buy for undisclosed principals. The contracts for sale to American purchasers are signed by W. R. Grace & Co., presumably in America and by Oakley Bowden & Co. (Madras), Ltd., in Madras.\nSpecimen forms of contracts with European purchasers and those with American purchasers are set out in the order of the Tribunal dated the 22nd January,1948, out of which the present reference arises. Under both forms of contracts the price was F.C.B. Madras or Marmagoa. A very small quantity of goods was sold F.O.B. Marmagoa and the same need not be considered here. Provision was made for weighment, sampling and assay of goods at destination. The terms of payment under the European contract were as follows:- Payment.-Buyers to open a confirmed irrevocable Bankers credit in favour of Messrs. Mysore Chromite Ltd., Madras (to be advised to sellers) through the Eastern Bank Ltd., for 90 per cent. (ninety per cent..) of the Provincial (sic) Invoice against documents. Documents to consist of:- 1. Bills of Lading, 2. Provisional Invoice.\nProvisional invoice to be based on Bill of Lading weight and contract price for 48 per cent. Cr. 203. Balance on ascertainment of weight and analysis to be paid in London to Bowden Oakley & Co., Ltd., within 10 days of the final invoice, based on outturn weights and assays.\nThe corresponding terms of payment under the American contracts were as follows:- Payment.-Letter of credit for eighty per cent. (80 per cent.) of invoice value to be available against drafts at ninety (90) days' sight with documents attached to be opened immediately in London in favour of the seller. Balance estimated twenty (20 per cent.) of the margin due to be paid by telegraphic transfer through London on receipt of information as to assay and outturn which should be submitted within a month after the arrival of the steamer at destination, Charges for such telegraphic transfer for account of beneficiary.\nThe European contracts also provided for insurance by buyers but no such provision was made in the American contracts.854 The course of dealing as found by the Appellate Tribunal was as follows. Before the goods were actually shipped, the buyers used to open a confirmed irrevocable Bankers' credit with some first class bank in London. Being informed of the opening of such credit the Eastern Bank Ltd., London sent intimation to the Eastern Bank Ltd., Madras, and the latter in its turn used to pass on the intimation by letter addressed to the' assessee company. A specimen of such letter is also set out in the order of the Appellate Tribunal. in such communication the Eastern Bank Ltd., Madras, informed the assessee company that I 'in accordance with advices received by letter from our London Office, a confirmed and irrevocable credit has been opened in your favour by Messrs. Morgan Grenfell & Co., Ltd., London, for account of Messrs. W. R. Grace & Co., New York, for a sum not exceeding pound. 7,300 (seven thousand three hundred pounds sterling) in all, available by delivery to us on or before 15th January, 1940, of the following documents............... Towards, the end of the letter the Eastern Bank Ltd., Madras, used to write that they were \"prepared in our options as customary to negotiate drafts drawn in terms of the arrangement provided that the documents as above mentioned appear to us to be in order. \"\nThe letter concluded with a warning that the advice was \"given for your guidance and without involving any rosponsi- bility on the part of this Bank. \" On receipt of such intimation the assessee company placed the contracted goods on board the steamer at Madras and obtained A bill of lading in its own name. As already mentioned, the shipments were made principally at Madras Port. Thereafter, the assessee company used to make out a provisional invoice on the basis of the bill of lading weight and contract price for 48 per cent' Cr. 203 and used to draw a bill of exchange on the buyers Bank, where the letter of credit had been opened, for 90 per cent. of the amount of the provisional invoice payable at sight in the case of European contracts and 80 per cent. of the amount of the provisional invoice at 90 days' sight in the case of American contracts and in either case the bills of exchange used to be drawn in favour of theEastern 'Batik Ltd., London. The bill of exchange together with the relative bill of lading endorsed in blank by the assessee company and the provisional invoice was then negotiated with the Eastern Bank Ltd., Madras, the bankers of the assessee company, Who used to credit the assessee company with the amount of the bill of exchange. The Eastern Bank Ltd., Madras, then forwarded the documents to the Eastern Bank Ltd., London, who used to present the bill of exchange to the buyers' Bank in London and upon the bill of exchange being accepted the Eastern Bank Ltd., London, used to deliver the bill of lading and the invoice to the buyers' Bank. The buyers Bank in due course used to pay the amount of the bill of exchange to the Eastern Bank Ltd., London. Thereafter, on arrival of the goods and' after weighment and assay, the sale price was ascertained and the balance of price, after deducting the payments made against the bill of exchange, used to be paid to the Eastern Bank Ltd., London, which was the assessee company's agent and banker in London.\nOn the facts stated above the Income-tax Officer assessed the assessee company on the entire profits in respect of these sales on the footing that they arose and were also received in British India. On appeal, the Appellate Assistant Commissioner confirmed the assessment. The assessee company went up on appeal to the Income-tax Appellate Tribunal. The Tribunal by its order dated the 22nd January, 1948, came to the conclusion that the sales took place outside British India and that the money in respect of such sales was also received by the agent of the.\nassessee company in London. The Commissioner of Income-tax thereupon applied to the Appellate Tribunal requiring the latter to state a case and refer certain questions of law said to &rise out of the order of the Tribunal. The Appellate Tribunal accordingly referred the two questions of law hereinbefore set out. The High Court of Madras in a well reasoned judgment upheld the decision of the Appellate Tribunal and answered the two questions in the affirmative and against the Commissioner of Income-tax. The Commissioner of Income-tax' has now preferredthis appeal with a certificate of fitness from the High Court.\nIt appears from the statement of case as also from the order of the Appellate Tribunal that it was agreed between the department and the assessee company that the income arose at the place, wherever that be, where, the sales took place.\nThis was not disputed before the High Court or before us although in the appellant's statement of case it was suggested that this was erroneous. The point for determination, therefore, is as to where the sales took place.\nLearned Solicitor-General appearing in support of this appeal contends that having regard to the terms of the contracts the sales must be regarded as having taken place in British India. The facts strongly relied on by him are (i) that the price and delivery of goods were on F.O.B.\nterms, (ii) that in the European contracts the insurance, if any, was to be the concern of the buyers and (iii) that payment of the 80 per cent. or 90 per cent. as the case may be was made in Madras by the Eastern Bank Ltd., Madras, to the assessee company on the delivery of the documents. All these facts taken together indicate, according to his submission, that the property in the goods passed at Madras and the sales accordingly were completed in British India.\nWe are unable to accept this line of reasoning. According to section 4 of the Indian Sale of Goods Act a contract of sale of goods is a contract whereby the seller transfer,% or agrees to transfer the property in goods to the buyer for a price and where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale, but where the transfer of property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell. By sub-section (4) of that section an agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred.\nSection 18 of the Act clearly indicates that in the case of sale of unascertained goods no property in the goods is transferred to the buyer unless and until the goods, are ascertained. In 857, the present case, the contracts were always for sale of unascertained, goods. Skipping over sections 19 to 22 which deal with contract of sale of specific goods we come to section 23 which lays down that where there is a contract for the sale of unascertained or future goods by description and goods of that description and in a,, deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. It is suggested that as soon as the assessee company placed the goods on board the steamer named by the buyer at the Madras Port the goods became ascertained and the property in the goods passed immediately to the buyer. This argument, however, overlooks the important word \"unconditionally\" used in the section.\nThe requirement of the section is not only that there shall be appropriation of the goods to the contract but that such appropriation must be made unconditionally. This is further elaborated by section 25 which provides that where there is a contract for the sale of specific goods or where goods are subsequently appropriated to the contract, the seller may, by the. terms. of the contract or appropriation,, reserve the right of disposal of the goods until certain conditions are fulfilled. In such a case, notwithstanding the delivery of the goods to the buyer, or to a carrier or other bailer for the purpose of transmission to the buyer, the property in the goods does not pass to the buyer until the conditions imposed by the seller are fulfilled. The question in this case, therefore, is: was there an unconditional appro- priation of the goods by merely placing them on the ship ?\nIt is true that the price and delivery was F.O.B., Madras but the contracts themselves clearly required the buyers to open a confirmed irrevocable Bankers' credit for, the requisite percentage of the invoice value to be available against documents. This clearly indicated that the buyers would not be entitled to the documents,, that is, the bill of lading and the provisional invoice, until payment of the requisite percentage was made upon the bill of exchange.\nThe bill of lading is the document of title to the goods and by this termthe assessee company clearly reserved the right of disposal, of the goods until the bill of exchange *as paid'.' Placing of the goods on board the steamer named by the buyer under a F.O.B. contract clearly discharges the contractual liability of the seller as seller and the delivery to the buyer is complete and the goods may thenceforward be also at the risk of the buyer against which he may cover himself by taking out an insurance. Prima facie such delivery of the goods to the buyer and the passing of the risk in respect of the goods from the seller to the buyer are strong indications as to the passing also of the property in the goods to the buyer but they are not decisive and may be negatived, for under section 25 the seller may yet reserve to himself the right of disposal of the goods until the fulfilment of certain conditions and thereby prevent the passing of property in the goods from him to the buyer. The facts found in this case are that the assessee company shipped the goods under bill of lading issued in its own name. Under the contract it was not obliged to part with the bill of lading which is the document of title to the goods until the bill of exchange drawn by it on the buyers' Bank where the irrevocable letter of credit was opened was honoured. It is urged that under the provision in the contract for weighment and assay, which was ultimately to fix the price unless the buyer rightly rejected the goods as not being in terms of the contract, the passing of property in the goods could not take place until the buyer accepted the goods and the price was fully ascertained after weighment and assay. It is submitted that being the position, the property in the goods passed and the sales were concluded outside British India, for the weighment, sampling, assay and the final fixation of the price could only take place under all these contracts outside British India. It is not necessary for us to express any opinion on this extreme contention. Suffice it to say, for the purposes of this case, that in any event upon the terms of the contracts in question and the course of dealings between the parties the property in the goods could not have passed to the buyer earlier than the date when the bill of exchange was accepted by the buyers' Bank in London and thedocuments were delivered by the assessee company's agent, the Eastern Bank Ltd., London, to the buyers\" Bank. This admittedly, and as found by the Appellate, Tribunal, always took place in London. It must, therefore,. follow that at the earliest the ;property in the goods passed in London where the bill of lading was handed over to the buyers' Bank against the acceptance of the relative bill of exchange. In the premises, the Appellate Tribunal as well as the High Court were quite correct in holding that the sales took place outside British India and, ex hypothesis the profits derived from such sales arose outside British India.\nAs to the second question, the.. learned Solicitor-General contends that irrespective of the place where the sale may have. taken place the profits derived from such sales were received in Madras. It is recalled that after shipment the assessee company, through its managing agent in Madras, prepared, provisional invoices and drew bills of exchange for 80 per cent. or 90 per cent., as the case may be, of the amount of such invoices and handed over the same to the Eastern Bank Ltd., Madras, and received the amount of the bill of exchange from them in Madras. He contends that the receipt of this payment by the assessee company was really the receipt of the price of the goods and amounted to receipt of profits in Madras. He draws our attention to the terms of payment in the European contract and to the letter of intimation of the opening of the credit sent by the Eastern Bank Ltd. Madras, to the assessee company which have been quoted in part in the earlier part of this judgment. He relies on the words \"through the Eastern Bank Ltd.,\" appearing in the contract and the words \"available by delivery to us\" appearing in the letter. We do not think that those words support the contention of the learned Solicitor-General. The words \"through the Eastern Bank Ltd.,\" appear to us to go with the preceding words \"to be advised to sellers\" which are put within brackets which seem to have been wrongly closed after the word sellers' instead of after the words the Eastern Bank Ltd. \". Ordinarily, the buyer opens a letter of credit with his Bank in favour of the seller andthe words \"through the Eastern Bank Ltd.,\" would be meaningless unless it was intended to mean' that the irrevocable credit which was in favour of the assessee company was to be operated upon by the latter through the Eastern Bank Ltd. If that were the true meaning, then that certainly does not make the Eastern Bank Ltd., the agent of the buyers. The words \"available by delivery to us\"\noccurring in the letter of the Eastern Bank Ltd., Madras, do not appear to us to indicate that this was any part of the terms of the letter of credit. This was an intimation in accordance with the advice received by the Eastern Bank Ltd., Madras, from the Eastern Bank Ltd.,, London, that the assessee company might avail itself of the letter of credit by delivery of the documents to the Eastern Bank Ltd., Madras. This is made further clear by the latter part of the letter where the Eastern Bank Ltd., Madras, expressed their willingness at their option to negotiate the drafts drawn in terms of the arrangement provided that the documents were in order, The concluding sentence of that letter whereby the Eastern Bank Ltd., Madras, disown any responsibility in respect of the advice clearly militates against the suggestion of the learned Solicitor-General. It is, in these circumstances, impossible to accede to the argument that the payment of 80 per cent. or 90 per cent., as the case may be, of the amount of the provisional invoice by the Eastern Bank Ltd., Madras, was a payment on account of the price. Normally, price is paid by or on behalf of the buyer. In this case the fact found is that the Eastern Bank Ltd., Madras, and the Eastern Bank Ltd., London., were agents of the assessee company. Neither 'of 'them had any relation with the buyers. Therefore, a payment by them cannot be regarded as a payment of the price. The true position is very clearly put by Lord Sumner in The Prinz Adalbert(1) : \" When a shipper takes his draft, not as yet accepted, but accompanied by a bill of lading, indorsed in this way, and discounts it with a banker, he makes himself liable on the instrument as drawer, and he further makes the goods, which the bill of lading (1) L.R. [1917] A.C. 586, 589.represents, security for its payment. If, in turn, the discounting banker surrenders the bill of lading to the acceptor against his acceptance, the inference is that he is satisfied to part with his security in consideration of getting this further party's liability on the bill, and that in so doing he acts with the permission and by the mandate of the shipper and drawer.\nThis payment by the Eastern Bank Ltd., Madras, therefore, is nothing but an advance made by them to their own customer on the security of the goods covered by the bill of lading reinforced by the 'benefit of the liability taken up by the assessee company as drawer of the bill which in its turn is backed by the confirmed and irrevocable credit of the buyers' London Bank. If this payment was on account of the price, why should the assessee company, as the seller, undertake any liability to the Eastern Bank Ltd., as the drawer of the bill of exchange ? The truth of the matter is that the price was paid on behalf of the buyers by their respective London Banks in London to the Eastern Bank Ltd., London which was the agent of the assessee company. The first receipt of the price, therefore, as pointed out by the High Court, was by the Eastern Bank Ltd., London, on behalf of the sellers. There is no dispute that the balance of the price ascertained after weighment and assay and deducting the amount paid on the bill of exchange was similarly received in London by the Eastern Bank Ltd., London, on behalf of the assessee company. The subsequent adjustment made in the books of the Eastern Bank Ltd., London, did not operate as a receipt of profits in British India. In our opinion the High Court correctly answered the second question also in favour of the assessee company.\n For reasons stated above, this appeal must stand dismissed with costs and we order accordingly.\nAppeal dismissed.862 "
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"text": "IN THE COURT OF THE III ADDITIONAL SESSIONS JUDGE AT\n MYSORE.\n\n "
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"text": "Present: Sri. Suresh S Kogilgeri, B.Com., LL.B.(Spl.),\n III"
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"text": "\n Mysore."
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"text": ": Crl."
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"start": 356,
"text": "Mis.No.266/2014 :\n\nPetitioners : 1. Purushothama, S/o Nanjundappa,\n aged about 30 years, residing at"
}
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{
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"text": "\n No.A3/9, BEML Township, Hinkal\n Post,"
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"text": "Mysore."
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"start": 576,
"text": "\n\n 2. Nanjundappa, S/o late Chikkanna\n aged about 62 years\n\n 3. Smt.Nagarathna, W/o\n\n Nanjundappa, aged about 55 years\n\n 4. V.H. Mahesh, S/o"
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"text": "late\n\n Honnegowda, aged about 35 years"
}
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{
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"start": 872,
"text": "5. Divyashree, W/o V.H.Mahesh,\n aged about 28 years\n\n Petitioners 2 to 5 are residing at\n\n No.17, II Floor, 50 feet Main Road,\n Girinagar"
}
},
{
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"text": "22nd Main, Bangalore"
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"labels": [
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],
"start": 1082,
"text": ".\n\n 6. Puttaraju, S/o Manasappa, aged\n about 43 years\n\n 7."
}
},
{
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"id": "3834f160c4324eba8bec6b7cbc5b42d4",
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"end": 1284,
"labels": [
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],
"start": 1181,
"text": "Smt.Hemavathi N., W/o Puttaraju,\n aged about 33 years\n\n Petitioners 6 and 7"
}
},
{
"from_name": null,
"id": "73c73f8a3ea04e9d945963bea39af4ea",
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"labels": [
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"start": 1285,
"text": "are residing at\n D.No.1, 8th Cross, Muneshwara\n\n Layout, Attur, Yelahanka New Town,\n\n Bangalore."
}
},
{
"from_name": null,
"id": "b140b26508cc4ff9a1ad0af2c13a5056",
"to_name": null,
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"value": {
"end": 1640,
"labels": [
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],
"start": 1432,
"text": "{By Sri B.P.Devaraj, Advocate}\n Vs.\n\n 2\n\nRespondent : State by Mahila Police Station,\n Mysore.\n\n { By Public Prosecutor, Mysore }\n\n:"
}
},
{
"from_name": null,
"id": "bc70c3780ea54984b1ae2a5728ed1ecd",
"to_name": null,
"type": null,
"value": {
"end": 1989,
"labels": [
"FAC"
],
"start": 1640,
"text": ": ORDER ON BAIL PETITION FILED U/S 438 OF CR.P.C. :: This is a bail petition filed by the petitioners under Sec.438 of Cr.P.C. praying to grant them anticipatory bail in Cr.No.19/2014 registered by the respondent police for the offences punishable under Secs.498-A and 506 read with Sec.34 of IPC and under Sections 3 and 4 of Dowry Prohibition Act."
}
},
{
"from_name": null,
"id": "bb8913771ba24e72b1257f204ae68b0e",
"to_name": null,
"type": null,
"value": {
"end": 2159,
"labels": [
"FAC"
],
"start": 1991,
"text": "2. On the other hand, the learned Public Prosecutor has resisted the aforesaid bail petition of the petitioners by filing his objections and prayed to dismiss the same."
}
},
{
"from_name": null,
"id": "e2e96b82caed49a89a2588ce3553ac98",
"to_name": null,
"type": null,
"value": {
"end": 2202,
"labels": [
"NONE"
],
"start": 2161,
"text": "3. Heard the arguments of both the sides."
}
},
{
"from_name": null,
"id": "e8d12c2e0daa4fd5bb79fd7fa17c1ef2",
"to_name": null,
"type": null,
"value": {
"end": 2374,
"labels": [
"ISSUE"
],
"start": 2202,
"text": "\n 4. At this stage, the following Points have arisen for my determination: 1. Whether the petitioners are entitled to be granted anticipatory bail under Sec.438 of Cr.P.C.?"
}
},
{
"from_name": null,
"id": "8634839a7e074f16b1414b1cf3de4928",
"to_name": null,
"type": null,
"value": {
"end": 2390,
"labels": [
"ISSUE"
],
"start": 2374,
"text": "\n 2. What Order?"
}
},
{
"from_name": null,
"id": "ece223d3a1f242f0adf1fb358991c7fa",
"to_name": null,
"type": null,
"value": {
"end": 2560,
"labels": [
"ANALYSIS"
],
"start": 2392,
"text": "5. My findings on the aforesaid Points are held as under: Point No.1 : In the Affirmative Point No.2 : As per my final order below, for the following: : R e a s o n s :"
}
},
{
"from_name": null,
"id": "29c73ffdac8445d98a350bbd7e283d5c",
"to_name": null,
"type": null,
"value": {
"end": 2576,
"labels": [
"ANALYSIS"
],
"start": 2560,
"text": " Point No.1:- 6."
}
},
{
"from_name": null,
"id": "561ec42c681e474c8159813bc90b420c",
"to_name": null,
"type": null,
"value": {
"end": 2625,
"labels": [
"ANALYSIS"
],
"start": 2577,
"text": "Perused the petition, FIR and written complaint."
}
},
{
"from_name": null,
"id": "ff3fb3429cfe47d9ad5632646793e05c",
"to_name": null,
"type": null,
"value": {
"end": 2767,
"labels": [
"FAC"
],
"start": 2626,
"text": "They reveal that, on 06-05-2013, the marriage of the Complainant 3 Crl.Mis.No.266/14 was taken place with accused No.1 as per Hindu customs."
}
},
{
"from_name": null,
"id": "aa8b67cdd8044f4c900c5e3c6b067f0b",
"to_name": null,
"type": null,
"value": {
"end": 2873,
"labels": [
"FAC"
],
"start": 2768,
"text": "At the time of marriage, accused-1 to 7/petitioners had demanded to give them 250 gms of gold and a site."
}
},
{
"from_name": null,
"id": "89aa40e2b5b64fe2a2c86e4a566af041",
"to_name": null,
"type": null,
"value": {
"end": 2939,
"labels": [
"FAC"
],
"start": 2874,
"text": "Out of which, 250 gms. of gold were given to the accusd as dowry."
}
},
{
"from_name": null,
"id": "82ebd58542bb4912bfd6bec4b960296d",
"to_name": null,
"type": null,
"value": {
"end": 3020,
"labels": [
"FAC"
],
"start": 2940,
"text": "After the marriage, the Complainant started to live in the house of the accused."
}
},
{
"from_name": null,
"id": "84f0b4ef628c432186519a2d105032b4",
"to_name": null,
"type": null,
"value": {
"end": 3261,
"labels": [
"FAC"
],
"start": 3021,
"text": "During that time, the accused gave physical and mental ill-treatment to the Complainant to bring additional dowry. Accused-2 to 7 instigated accused No.1 not to look after the Complainant well until she brings a site from her parents house."
}
},
{
"from_name": null,
"id": "dcfc88ca37654bfd9d89bd10770d4aa2",
"to_name": null,
"type": null,
"value": {
"end": 3373,
"labels": [
"FAC"
],
"start": 3262,
"text": "Thereafter, household articles worth Rs.1,00,000/- were given to the accused by the parents of the Complainant."
}
},
{
"from_name": null,
"id": "f0dbb8f5474c4d54a2320bc4e587bf7b",
"to_name": null,
"type": null,
"value": {
"end": 3475,
"labels": [
"FAC"
],
"start": 3374,
"text": "The mother of the Complainant came to the house of accused and resided there for a period of 10 days."
}
},
{
"from_name": null,
"id": "3f4e8e6bd1f54322bf76708c78a4665d",
"to_name": null,
"type": null,
"value": {
"end": 3548,
"labels": [
"FAC"
],
"start": 3476,
"text": "On one day, the mother of the Complainant returned back from the Temple."
}
},
{
"from_name": null,
"id": "76420f74d0c949dbbcdf48095a0cffbf",
"to_name": null,
"type": null,
"value": {
"end": 3698,
"labels": [
"FAC"
],
"start": 3549,
"text": "At that time, accused No.1 all of a sudden picked up quarrel with the Complainant and her mother and threatened them to kill them by showing a knife."
}
},
{
"from_name": null,
"id": "86a6588ad2af4436a06a404483328ed7",
"to_name": null,
"type": null,
"value": {
"end": 3979,
"labels": [
"FAC"
],
"start": 3699,
"text": "So, on the basis of the complaint filed by the Complainant, the respondent police have registered a case in Crime No.19/2014 against accused-1 to 7 for the offences punishable under Secs.498-A and 506 read with Sec.34 of I.P.C.\nand under Sections 3 and 4 of Dowry Prohibition Act."
}
},
{
"from_name": null,
"id": "dc7c2ce2025442f0b23e65ddf5279d8e",
"to_name": null,
"type": null,
"value": {
"end": 4313,
"labels": [
"FAC"
],
"start": 3979,
"text": "\n 7. Under the aforesaid facts and circumstances of the case, the petitioners/accused apprehending their arrest by the Respondent Police in the aforesaid Crime, have filed the present bail petition under Sec.438 of Cr.P.C. praying to grant them anticipatory bail on the grounds that, they are innocent persons of the alleged offences."
}
},
{
"from_name": null,
"id": "916cfdb68bab4491985d911b3ce0fb88",
"to_name": null,
"type": null,
"value": {
"end": 4359,
"labels": [
"FAC"
],
"start": 4314,
"text": "They have not committed the alleged offences."
}
},
{
"from_name": null,
"id": "b839e4c81cf3427b921ab2698c653b0c",
"to_name": null,
"type": null,
"value": {
"end": 4416,
"labels": [
"FAC"
],
"start": 4360,
"text": "The Complainant has filed a false complaint against him."
}
},
{
"from_name": null,
"id": "50ce459f8b6c47bb8cb81e00ee692a78",
"to_name": null,
"type": null,
"value": {
"end": 4552,
"labels": [
"FAC"
],
"start": 4417,
"text": "The 1st offence punishable under Section is working at 4 BEML, Mysore and the Complainant is working in a Private Factory at Bangalore."
}
},
{
"from_name": null,
"id": "01665d5faaf14c3e9fbf760444b402c6",
"to_name": null,
"type": null,
"value": {
"end": 4682,
"labels": [
"FAC"
],
"start": 4553,
"text": "The Complainant and her mother wanted the 1st petitioner to shift to Bangalore and the 1st petitioner did not agree for the same."
}
},
{
"from_name": null,
"id": "08ba20c5263b4e798d8d7a3649578a0e",
"to_name": null,
"type": null,
"value": {
"end": 4744,
"labels": [
"FAC"
],
"start": 4683,
"text": "As a result of this, a false complaint is filed against them."
}
},
{
"from_name": null,
"id": "8a9413796f8942e0b567da42e8214a85",
"to_name": null,
"type": null,
"value": {
"end": 4845,
"labels": [
"FAC"
],
"start": 4745,
"text": "Petitioners-2 to 7 have nothing to do with the family affairs of the 1st petitioner and Complainant."
}
},
{
"from_name": null,
"id": "4cd3876a7bb24418b4a0f64bea22f26d",
"to_name": null,
"type": null,
"value": {
"end": 4948,
"labels": [
"FAC"
],
"start": 4846,
"text": "The only intention of the Complainant in lodging the complaint is to torture the petitioners mentally."
}
},
{
"from_name": null,
"id": "f50fcbd795354e128b32131acb94da4a",
"to_name": null,
"type": null,
"value": {
"end": 5068,
"labels": [
"FAC"
],
"start": 4949,
"text": "The 1st petitioner had given a legal notice to the Complainant on 30-12-3013 to join him and lead a happy marital life."
}
},
{
"from_name": null,
"id": "8dd981262ca346f287e3d8efc2e214e7",
"to_name": null,
"type": null,
"value": {
"end": 5234,
"labels": [
"FAC"
],
"start": 5069,
"text": "But the Complainant sent an untenable reply stating that she will lodge a complaint before the Police and also file a suit for seeking maintenance and other reliefs."
}
},
{
"from_name": null,
"id": "6588aa46b1994eec80036ed4e6185cb5",
"to_name": null,
"type": null,
"value": {
"end": 5378,
"labels": [
"FAC"
],
"start": 5235,
"text": "The 1st petitioner got issued rejoinder once again requesting the Complainant to come and live with him and that he is ready to look after her."
}
},
{
"from_name": null,
"id": "ebb9b56d82a24646bf2ddb17df89faa6",
"to_name": null,
"type": null,
"value": {
"end": 5417,
"labels": [
"FAC"
],
"start": 5379,
"text": "But the Complainant did not comply it."
}
},
{
"from_name": null,
"id": "7f408026601942d1a628b22cd9e07a48",
"to_name": null,
"type": null,
"value": {
"end": 5476,
"labels": [
"FAC"
],
"start": 5418,
"text": "Later, she filed the present false complaint against them."
}
},
{
"from_name": null,
"id": "c209309abc34408497b9348ae53bbf74",
"to_name": null,
"type": null,
"value": {
"end": 5575,
"labels": [
"FAC"
],
"start": 5477,
"text": "They are permanent residents of Mysore and Bangalore as stated in the cause title of the petition."
}
},
{
"from_name": null,
"id": "3c2e8f3b85704478a83843439d047a86",
"to_name": null,
"type": null,
"value": {
"end": 5648,
"labels": [
"FAC"
],
"start": 5576,
"text": "The alleged offences are not punishable with death or life imprisonment."
}
},
{
"from_name": null,
"id": "8e110c5267b14899a1e872458ad86adf",
"to_name": null,
"type": null,
"value": {
"end": 5749,
"labels": [
"FAC"
],
"start": 5649,
"text": "They are ready and willing to abide by the terms and conditions that would be imposed by this Court."
}
},
{
"from_name": null,
"id": "f4a7ac4f59da4a9bb0a4ac4c579a8217",
"to_name": null,
"type": null,
"value": {
"end": 5798,
"labels": [
"FAC"
],
"start": 5750,
"text": "So, they prayed to grant them anticipatory bail."
}
},
{
"from_name": null,
"id": "df045464baaf424ab04a3c360d46f170",
"to_name": null,
"type": null,
"value": {
"end": 5961,
"labels": [
"ARG_RESPONDENT"
],
"start": 5798,
"text": "\n 8. On the other hand, the case of the prosecution is that, there is a prima facie case against the petitioners/accused for having committed the alleged offences."
}
},
{
"from_name": null,
"id": "d83b1efe95944f50bbd6271059fa4f23",
"to_name": null,
"type": null,
"value": {
"end": 6062,
"labels": [
"ARG_RESPONDENT"
],
"start": 5962,
"text": "If the petitioners are released on bail, they may threaten the Complainant and destroy the evidence."
}
},
{
"from_name": null,
"id": "7e080c01a12a4bde920f6fb867ae27ff",
"to_name": null,
"type": null,
"value": {
"end": 6144,
"labels": [
"ARG_RESPONDENT"
],
"start": 6063,
"text": "No grounds have been made out by the petitioners to grant them anticipatory bail."
}
},
{
"from_name": null,
"id": "8472efcfb1c3418a8bab32a86fd5388a",
"to_name": null,
"type": null,
"value": {
"end": 6254,
"labels": [
"ARG_RESPONDENT"
],
"start": 6145,
"text": "So, the learned 5 Crl.Mis.No.266/14 Public Prosecutor prayed to dismiss the bail petition of the petitioner."
}
},
{
"from_name": null,
"id": "9425066cd9ff450493e7c6567aa7f21c",
"to_name": null,
"type": null,
"value": {
"end": 6303,
"labels": [
"ANALYSIS"
],
"start": 6254,
"text": "\n 9. I have gone through the records of the case."
}
},
{
"from_name": null,
"id": "87c4112bf2754cb7ba5dad3e54a4c5ea",
"to_name": null,
"type": null,
"value": {
"end": 6496,
"labels": [
"ANALYSIS"
],
"start": 6304,
"text": "The points to be considered while granting bail to the petitioners are that whether petitioners have committed grave nature of offences, may abscond and tamper with the prosecution witnesses."
}
},
{
"from_name": null,
"id": "397cd2c42780426e9648927d7fb96da1",
"to_name": null,
"type": null,
"value": {
"end": 6712,
"labels": [
"ANALYSIS"
],
"start": 6497,
"text": "In the instant case, it is alleged by the prosecution that the petitioners have committed the offences punishable under Sec.498(A) and 506 read with Sec.34 of IPC and under Sections 3 and 4 of Dowry Prohibition Act."
}
},
{
"from_name": null,
"id": "0c6ed85a4cf049b9bc594e3187ffae00",
"to_name": null,
"type": null,
"value": {
"end": 6782,
"labels": [
"ANALYSIS"
],
"start": 6713,
"text": "The said offences are not punishable with death or life imprisonment."
}
},
{
"from_name": null,
"id": "906deb47b03d4fecacbe12cb5edfeed8",
"to_name": null,
"type": null,
"value": {
"end": 6919,
"labels": [
"ANALYSIS"
],
"start": 6783,
"text": "So, it is clear that there are no grave nature of allegations against the petitioners for having committed the grave nature of offences."
}
},
{
"from_name": null,
"id": "dd5bfd42cc3a4b82891e6b5e5d3fc8c1",
"to_name": null,
"type": null,
"value": {
"end": 7000,
"labels": [
"ANALYSIS"
],
"start": 6920,
"text": "The petitioners claim that they are permanent residents of Mysore and Bangalore."
}
},
{
"from_name": null,
"id": "0cdccecda4ab4aa0bc2f9b54011372d5",
"to_name": null,
"type": null,
"value": {
"end": 7039,
"labels": [
"ANALYSIS"
],
"start": 7001,
"text": "This is not denied by the prosecution."
}
},
{
"from_name": null,
"id": "99f9467555324d68b7d90b6bbc31c4b9",
"to_name": null,
"type": null,
"value": {
"end": 7142,
"labels": [
"ANALYSIS"
],
"start": 7040,
"text": "So, it is clear that their presence can be secured at the time of investigation and trial of the case."
}
},
{
"from_name": null,
"id": "fd44677d056a4db0af5923b2df6062cd",
"to_name": null,
"type": null,
"value": {
"end": 7247,
"labels": [
"ANALYSIS"
],
"start": 7143,
"text": "There are no materials on record to show that the petitioners may tamper with the prosecution witnesses."
}
},
{
"from_name": null,
"id": "91509dd375db4326a2fdbb24d892afd0",
"to_name": null,
"type": null,
"value": {
"end": 7468,
"labels": [
"RPC"
],
"start": 7248,
"text": "Considering all these facts and circumstances of the case, I feel it is just and proper to grant bail as prayed by the petitioners by imposing stringent conditions against them protecting the interest of the prosecution."
}
},
{
"from_name": null,
"id": "7f6f0b2b4ee54f8b8665055e5fcc0278",
"to_name": null,
"type": null,
"value": {
"end": 7521,
"labels": [
"RPC"
],
"start": 7469,
"text": "Accordingly, I answer Point No.1 in the Affirmative."
}
},
{
"from_name": null,
"id": "871a2de554c84283b79918d6c4b83963",
"to_name": null,
"type": null,
"value": {
"end": 7539,
"labels": [
"RPC"
],
"start": 7521,
"text": "\n Point No.2:- 10."
}
},
{
"from_name": null,
"id": "dff8f1f20fb64140b50f70514d8013ca",
"to_name": null,
"type": null,
"value": {
"end": 7601,
"labels": [
"RPC"
],
"start": 7540,
"text": "In the result, I proceed to pass the following: 6 :: ORDER ::"
}
},
{
"from_name": null,
"id": "64870017ba4243c79fe00c6cfd39777c",
"to_name": null,
"type": null,
"value": {
"end": 7688,
"labels": [
"RPC"
],
"start": 7602,
"text": "The bail petition filed by the petitioners under Sec.438 of Cr.P.C. is hereby allowed."
}
},
{
"from_name": null,
"id": "ee9c3333b3a345fd928cd7c0991a2316",
"to_name": null,
"type": null,
"value": {
"end": 8203,
"labels": [
"RPC"
],
"start": 7688,
"text": "\n Petitioners shall be released on anticipatory bail in the event of their arrest by the Respondent Police in Cr.No.19/2014 registered for the offences punishable under Sec.498(A) and 506 read with Sec.34 of I.P.C. and under Sections 3 and 4 of Dowry Prohibition Act on the file of Respondent Police Station on executing personal bond for a sum of Rs.25,000/- each with one surety for likesum by the petitioners, subject to the following conditions: 1. The petitioners shall not commit similar type of offences.\n 2."
}
},
{
"from_name": null,
"id": "6b7661c8f9c54016953d84f8cfbbfd44",
"to_name": null,
"type": null,
"value": {
"end": 8262,
"labels": [
"RPC"
],
"start": 8204,
"text": "They shall appear before the Court as and when called for."
}
},
{
"from_name": null,
"id": "f4c23fd4b4144a2cadc38a64f8ab1a96",
"to_name": null,
"type": null,
"value": {
"end": 8387,
"labels": [
"RPC"
],
"start": 8262,
"text": "\n 3. They shall not leave the jurisdiction of Mysore and Bangalore without prior permission of the jurisdictional Magistrate."
}
},
{
"from_name": null,
"id": "4e46948ebe364f7aa8f7959415aec186",
"to_name": null,
"type": null,
"value": {
"end": 8465,
"labels": [
"RPC"
],
"start": 8387,
"text": "\n 4. They shall produce their address proof and address proof of their surety."
}
},
{
"from_name": null,
"id": "3b3a0b7d0b924b07b7c4ab437332e4bf",
"to_name": null,
"type": null,
"value": {
"end": 8715,
"labels": [
"RPC"
],
"start": 8467,
"text": "5. They shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or to any Police Officer or tamper with the evidence."
}
},
{
"from_name": null,
"id": "9f4441d08b0a452887fc66de2c97902e",
"to_name": null,
"type": null,
"value": {
"end": 8844,
"labels": [
"RPC"
],
"start": 8717,
"text": "6. They shall appear before the Investigating Officer and assist him during the course of investigation as and when called for."
}
},
{
"from_name": null,
"id": "fe81795cd04e42b59da505510fb79268",
"to_name": null,
"type": null,
"value": {
"end": 9001,
"labels": [
"RPC"
],
"start": 8844,
"text": "\n (Dictated to the Judgment Writer, the transcript revised, corrected, signed and then pronounced by me in open court on this the 21st day of February, 2014)"
}
},
{
"from_name": null,
"id": "b5e23169e8c04712b040e6dd7e5fa5a8",
"to_name": null,
"type": null,
"value": {
"end": 9022,
"labels": [
"RPC"
],
"start": 9002,
"text": "(Suresh S Kogilgeri)"
}
},
{
"from_name": null,
"id": "6cdde826ba8142b78ff5daa21dc026d9",
"to_name": null,
"type": null,
"value": {
"end": 9054,
"labels": [
"RPC"
],
"start": 9023,
"text": "III Addl.Sessions Judge Mysore."
}
},
{
"from_name": null,
"id": "d8f0e29d135c48d194af9ca9c6c2ff33",
"to_name": null,
"type": null,
"value": {
"end": 9129,
"labels": [
"RPC"
],
"start": 9054,
"text": "\n 7 Crl.Mis.No.266/14 Order pronounced in open court (vide separate order)"
}
},
{
"from_name": null,
"id": "9fac5335bba14aacb8f79815785ac29c",
"to_name": null,
"type": null,
"value": {
"end": 9141,
"labels": [
"RPC"
],
"start": 9130,
"text": ":: ORDER ::"
}
},
{
"from_name": null,
"id": "1f792d9c52564ff0b301672592a4449e",
"to_name": null,
"type": null,
"value": {
"end": 9228,
"labels": [
"RPC"
],
"start": 9142,
"text": "The bail petition filed by the petitioners under Sec.438 of Cr.P.C. is hereby allowed."
}
},
{
"from_name": null,
"id": "455af993e3b84cbaa54064c6d7da1e85",
"to_name": null,
"type": null,
"value": {
"end": 9739,
"labels": [
"RPC"
],
"start": 9228,
"text": "\n Petitioners shall be released on anticipatory bail in the event of their arrest by the Respondent Police in Cr.No.19/2014 registered for the offences punishable under Sec.498(A) and 506 read with Sec.34 of I.P.C. and under Sections 3 and 4 of Dowry Prohibition Act on the file of Respondent Police Station on executing personal bond for a sum of Rs.25,000/- each with one surety for likesum by the petitioners, subject to the following conditions: 1. The petitioners shall not commit similar type of offences."
}
},
{
"from_name": null,
"id": "a0a5d3448026435fa7afc0e1d8a9a54a",
"to_name": null,
"type": null,
"value": {
"end": 10009,
"labels": [
"RPC"
],
"start": 9739,
"text": "\n 2. They shall appear before the Court as and when called for.\n 3. They shall not leave the jurisdiction of Mysore and Bangalore without prior permission of the jurisdictional Magistrate.\n 4. They shall produce their address proof and address proof of their surety.\n 5."
}
},
{
"from_name": null,
"id": "02090619f13a4cad8458efbdf069f718",
"to_name": null,
"type": null,
"value": {
"end": 10255,
"labels": [
"RPC"
],
"start": 10010,
"text": "They shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or to any Police Officer or tamper with the evidence."
}
},
{
"from_name": null,
"id": "77485838c4df4af891bc670106412e55",
"to_name": null,
"type": null,
"value": {
"end": 10384,
"labels": [
"RPC"
],
"start": 10255,
"text": "\n 6. They shall appear before the Investigating Officer and assist him during the course of investigation as and when called for."
}
},
{
"from_name": null,
"id": "629443ee1bf4407ab197542149fb012f",
"to_name": null,
"type": null,
"value": {
"end": 10417,
"labels": [
"NONE"
],
"start": 10384,
"text": "\n III Addl.Sessions Judge Mysore."
}
}
]
}
] | 4,289 | {
"text": "IN THE COURT OF THE III ADDITIONAL SESSIONS JUDGE AT\n MYSORE.\n\n Dated this the 21st day of February, 2014\n\n Present: Sri. Suresh S Kogilgeri, B.Com., LL.B.(Spl.),\n III Addl. Sessions Judge,\n Mysore.\n\n : Crl.Mis.No.266/2014 :\n\nPetitioners : 1. Purushothama, S/o Nanjundappa,\n aged about 30 years, residing at\n No.A3/9, BEML Township, Hinkal\n Post, Mysore.\n\n 2. Nanjundappa, S/o late Chikkanna\n aged about 62 years\n\n 3. Smt.Nagarathna, W/o\n\n Nanjundappa, aged about 55 years\n\n 4. V.H. Mahesh, S/o late\n\n Honnegowda, aged about 35 years\n\n 5. Divyashree, W/o V.H.Mahesh,\n aged about 28 years\n\n Petitioners 2 to 5 are residing at\n\n No.17, II Floor, 50 feet Main Road,\n Girinagar 22nd Main, Bangalore.\n\n 6. Puttaraju, S/o Manasappa, aged\n about 43 years\n\n 7. Smt.Hemavathi N., W/o Puttaraju,\n aged about 33 years\n\n Petitioners 6 and 7 are residing at\n D.No.1, 8th Cross, Muneshwara\n\n Layout, Attur, Yelahanka New Town,\n\n Bangalore.\n\n {By Sri B.P.Devaraj, Advocate}\n Vs.\n\n 2\n\nRespondent : State by Mahila Police Station,\n Mysore.\n\n { By Public Prosecutor, Mysore }\n\n:: ORDER ON BAIL PETITION FILED U/S 438 OF CR.P.C. :: This is a bail petition filed by the petitioners under Sec.438 of Cr.P.C. praying to grant them anticipatory bail in Cr.No.19/2014 registered by the respondent police for the offences punishable under Secs.498-A and 506 read with Sec.34 of IPC and under Sections 3 and 4 of Dowry Prohibition Act.\n 2. On the other hand, the learned Public Prosecutor has resisted the aforesaid bail petition of the petitioners by filing his objections and prayed to dismiss the same.\n 3. Heard the arguments of both the sides.\n 4. At this stage, the following Points have arisen for my determination: 1. Whether the petitioners are entitled to be granted anticipatory bail under Sec.438 of Cr.P.C.?\n 2. What Order?\n 5. My findings on the aforesaid Points are held as under: Point No.1 : In the Affirmative Point No.2 : As per my final order below, for the following: : R e a s o n s : Point No.1:- 6. Perused the petition, FIR and written complaint. They reveal that, on 06-05-2013, the marriage of the Complainant 3 Crl.Mis.No.266/14 was taken place with accused No.1 as per Hindu customs. At the time of marriage, accused-1 to 7/petitioners had demanded to give them 250 gms of gold and a site. Out of which, 250 gms. of gold were given to the accusd as dowry. After the marriage, the Complainant started to live in the house of the accused. During that time, the accused gave physical and mental ill-treatment to the Complainant to bring additional dowry. Accused-2 to 7 instigated accused No.1 not to look after the Complainant well until she brings a site from her parents house. Thereafter, household articles worth Rs.1,00,000/- were given to the accused by the parents of the Complainant. The mother of the Complainant came to the house of accused and resided there for a period of 10 days. On one day, the mother of the Complainant returned back from the Temple. At that time, accused No.1 all of a sudden picked up quarrel with the Complainant and her mother and threatened them to kill them by showing a knife. So, on the basis of the complaint filed by the Complainant, the respondent police have registered a case in Crime No.19/2014 against accused-1 to 7 for the offences punishable under Secs.498-A and 506 read with Sec.34 of I.P.C.\nand under Sections 3 and 4 of Dowry Prohibition Act.\n 7. Under the aforesaid facts and circumstances of the case, the petitioners/accused apprehending their arrest by the Respondent Police in the aforesaid Crime, have filed the present bail petition under Sec.438 of Cr.P.C. praying to grant them anticipatory bail on the grounds that, they are innocent persons of the alleged offences. They have not committed the alleged offences. The Complainant has filed a false complaint against him. The 1st offence punishable under Section is working at 4 BEML, Mysore and the Complainant is working in a Private Factory at Bangalore. The Complainant and her mother wanted the 1st petitioner to shift to Bangalore and the 1st petitioner did not agree for the same. As a result of this, a false complaint is filed against them. Petitioners-2 to 7 have nothing to do with the family affairs of the 1st petitioner and Complainant. The only intention of the Complainant in lodging the complaint is to torture the petitioners mentally. The 1st petitioner had given a legal notice to the Complainant on 30-12-3013 to join him and lead a happy marital life. But the Complainant sent an untenable reply stating that she will lodge a complaint before the Police and also file a suit for seeking maintenance and other reliefs. The 1st petitioner got issued rejoinder once again requesting the Complainant to come and live with him and that he is ready to look after her. But the Complainant did not comply it. Later, she filed the present false complaint against them. They are permanent residents of Mysore and Bangalore as stated in the cause title of the petition. The alleged offences are not punishable with death or life imprisonment. They are ready and willing to abide by the terms and conditions that would be imposed by this Court. So, they prayed to grant them anticipatory bail.\n 8. On the other hand, the case of the prosecution is that, there is a prima facie case against the petitioners/accused for having committed the alleged offences. If the petitioners are released on bail, they may threaten the Complainant and destroy the evidence. No grounds have been made out by the petitioners to grant them anticipatory bail. So, the learned 5 Crl.Mis.No.266/14 Public Prosecutor prayed to dismiss the bail petition of the petitioner.\n 9. I have gone through the records of the case. The points to be considered while granting bail to the petitioners are that whether petitioners have committed grave nature of offences, may abscond and tamper with the prosecution witnesses. In the instant case, it is alleged by the prosecution that the petitioners have committed the offences punishable under Sec.498(A) and 506 read with Sec.34 of IPC and under Sections 3 and 4 of Dowry Prohibition Act. The said offences are not punishable with death or life imprisonment. So, it is clear that there are no grave nature of allegations against the petitioners for having committed the grave nature of offences. The petitioners claim that they are permanent residents of Mysore and Bangalore. This is not denied by the prosecution. So, it is clear that their presence can be secured at the time of investigation and trial of the case. There are no materials on record to show that the petitioners may tamper with the prosecution witnesses. Considering all these facts and circumstances of the case, I feel it is just and proper to grant bail as prayed by the petitioners by imposing stringent conditions against them protecting the interest of the prosecution. Accordingly, I answer Point No.1 in the Affirmative.\n Point No.2:- 10. In the result, I proceed to pass the following: 6 :: ORDER :: The bail petition filed by the petitioners under Sec.438 of Cr.P.C. is hereby allowed.\n Petitioners shall be released on anticipatory bail in the event of their arrest by the Respondent Police in Cr.No.19/2014 registered for the offences punishable under Sec.498(A) and 506 read with Sec.34 of I.P.C. and under Sections 3 and 4 of Dowry Prohibition Act on the file of Respondent Police Station on executing personal bond for a sum of Rs.25,000/- each with one surety for likesum by the petitioners, subject to the following conditions: 1. The petitioners shall not commit similar type of offences.\n 2. They shall appear before the Court as and when called for.\n 3. They shall not leave the jurisdiction of Mysore and Bangalore without prior permission of the jurisdictional Magistrate.\n 4. They shall produce their address proof and address proof of their surety.\n 5. They shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or to any Police Officer or tamper with the evidence.\n 6. They shall appear before the Investigating Officer and assist him during the course of investigation as and when called for.\n (Dictated to the Judgment Writer, the transcript revised, corrected, signed and then pronounced by me in open court on this the 21st day of February, 2014) (Suresh S Kogilgeri) III Addl.Sessions Judge Mysore.\n 7 Crl.Mis.No.266/14 Order pronounced in open court (vide separate order) :: ORDER :: The bail petition filed by the petitioners under Sec.438 of Cr.P.C. is hereby allowed.\n Petitioners shall be released on anticipatory bail in the event of their arrest by the Respondent Police in Cr.No.19/2014 registered for the offences punishable under Sec.498(A) and 506 read with Sec.34 of I.P.C. and under Sections 3 and 4 of Dowry Prohibition Act on the file of Respondent Police Station on executing personal bond for a sum of Rs.25,000/- each with one surety for likesum by the petitioners, subject to the following conditions: 1. The petitioners shall not commit similar type of offences.\n 2. They shall appear before the Court as and when called for.\n 3. They shall not leave the jurisdiction of Mysore and Bangalore without prior permission of the jurisdictional Magistrate.\n 4. They shall produce their address proof and address proof of their surety.\n 5. They shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or to any Police Officer or tamper with the evidence.\n 6. They shall appear before the Investigating Officer and assist him during the course of investigation as and when called for.\n III Addl.Sessions Judge Mysore.\n 8 "
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"text": "at D.No. 615, 1st Stage,"
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"text": ": The suit in OS. No. 6422011 has been filed by the Raamadevi and her daughter Smt. Padmini for Permanent Injunction."
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"text": "OS No.1522009 has been filed by Smt. Raamadevi for declaration, Mandatory Injunction and for Permanent Injunction."
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"text": "OS. No. 1522009 has been clubbed with OS.\nNo.6422011, both these suits are filed by Smt. Raamadevi, W/o Chikkanna."
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"text": "In OS. No. 6422011, the Plaintiff No.2 arrayed as party on the pleading that she has occupied the portion of the Suit Schedule Property."
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"text": "The facts as pleaded in both the plaints are one and the same."
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"text": "The Plaintiff No.2 in OS. No.6422011 only become formal party, therefore the Plaintiff No.1 in OS. 6422011 and Plaintiff in OS. No.152 2009 Smt. Raamadevi called as Plaintiff in both the suits for the purpose of convenience by ignoring Plaintiff No.2 in OS.\nNo.6422011.\n 2."
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"text": "The case of the Plaintiff in both the cases are as under: The Suit Schedule Properties originally belongs to the father of the Plaintiffs Sri. Maraiah."
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"text": "The Plaintiff Smt.\nRaamadevi is the only daughter of Maraiah."
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"value": {
"end": 5042,
"labels": [
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],
"start": 4942,
"text": "The wife of Maraiah i.e., Plaintiff's mother died 32 years ago, after that, Maraiah has not married."
}
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],
"start": 5043,
"text": "Maraiah working as a Gangman in the then Mysuru City Municipality and he having a sister by name Smt. Devamma."
}
},
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"end": 5227,
"labels": [
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],
"start": 5154,
"text": "The Plaintiff's mother Chowdamma was the foster daughter of Smt. Devamma."
}
},
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"end": 5385,
"labels": [
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],
"start": 5228,
"text": "Said Devamma owned a revenue site on which she had constructed a country tiled house at D.No.74, 12th Cross, 5th Main, Chinnagiri Koppal, Jayanagara, Mysuru."
}
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"end": 5487,
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],
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"text": "Maraiah also started living in that house along with his wife and sister Smt. Devamma till his death."
}
},
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"end": 5581,
"labels": [
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],
"start": 5487,
"text": "\nMaraiah has demolished the old house and constructed a R.C.C. house in the said revenue site."
}
},
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"labels": [
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],
"start": 5582,
"text": "The Defendants 1 and 2 are also started to live in the said revenue house."
}
},
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"to_name": "text",
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"value": {
"end": 5804,
"labels": [
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],
"start": 5657,
"text": "The Plaintiff having 4 daughters, the Defendant No.1 is the daughter of the Plaintiff No.1 and Defendant No.2 is the husband of the Defendant No.1."
}
},
{
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"end": 5887,
"labels": [
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],
"start": 5805,
"text": "The Defendant No.1 and her husband are also lived in the Suit Schedule Properties."
}
},
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"end": 6000,
"labels": [
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],
"start": 5888,
"text": "All the children of the Plaintiff got married and except the Defendant No.1, they set up separate family houses."
}
},
{
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"id": "b0d1666e077c4e6e8a17be9148d094c4",
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"end": 6078,
"labels": [
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],
"start": 6001,
"text": "The Defendant No.1 and her husband started to live in the revenue site house."
}
},
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"to_name": "text",
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"value": {
"end": 6229,
"labels": [
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],
"start": 6079,
"text": "The said Maraiah has chided the Defendant Nos.1 and 2 to set up separate home, but the Defendants 1 and 2 continued to live in the revenue site house."
}
},
{
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"id": "e4935225ea664ccd997161c2486c46bd",
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"value": {
"end": 6474,
"labels": [
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],
"start": 6230,
"text": "The Defendants 1 and 2 always tried to create ugly scenes in the revenue site house and Plaintiff has contemplated to move out of the revenue site house and establish her own separate residential house, but she has not leave her father Maraiah."
}
},
{
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"id": "73d7866d4fb64bc6b67d83c190a10a73",
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"value": {
"end": 6700,
"labels": [
"FAC"
],
"start": 6475,
"text": "The deceased Maraiah is the owner of the item No.1 of the property, which is situated at D. No.11, Muniswamy Nagara, J.P. Nagara Extension, Mysore, this property has a RCC roof protection and another an asbestos roof portion."
}
},
{
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"id": "2c86667b7db142a597749485e01231e4",
"to_name": "text",
"type": "labels",
"value": {
"end": 6792,
"labels": [
"FAC"
],
"start": 6701,
"text": "Maraiah also owning another house which is more fully described in Item No.2 of the plaint."
}
},
{
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"id": "4ebfb3c4e9c64375880f2cfc3866a155",
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"value": {
"end": 6922,
"labels": [
"FAC"
],
"start": 6793,
"text": "The Defendant No.3 in OS. No.1522009 was inducted as a tenant in plaint schedule Item No.2 property on a monthly rent of Rs.750/."
}
},
{
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"id": "0e7a9384873d4397b92d1e6a1c4ed36a",
"to_name": "text",
"type": "labels",
"value": {
"end": 7028,
"labels": [
"FAC"
],
"start": 6923,
"text": "The Plaintiff has occupied the RCC roof portion of the Item No.1 of the property about 5 to 6 years back."
}
},
{
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"id": "53208719fe0a4de19dd1b6519418ffe3",
"to_name": "text",
"type": "labels",
"value": {
"end": 7089,
"labels": [
"FAC"
],
"start": 7029,
"text": "The Plaintiff from morning to evening taken care of Maraiah."
}
},
{
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"id": "52e871603df54bc8af83c1eb5b1a188e",
"to_name": "text",
"type": "labels",
"value": {
"end": 7255,
"labels": [
"FAC"
],
"start": 7090,
"text": "The Plaintiff daughter one Smt. C. Padmini, who is the Plaintiff No.2 in OS. No.6422011 residing in the asbestos sheet roof portion of the Item No.1 of the property."
}
},
{
"from_name": "label",
"id": "1ee0d3ad384f46f79b5944c4e620acb9",
"to_name": "text",
"type": "labels",
"value": {
"end": 7359,
"labels": [
"FAC"
],
"start": 7256,
"text": "The Plaintiff and her daughter C. Padmini have resided in the said property as per the wish of Maraiah."
}
},
{
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"id": "3d48b2736ebf4ba0a6725fe4fea23195",
"to_name": "text",
"type": "labels",
"value": {
"end": 7460,
"labels": [
"FAC"
],
"start": 7360,
"text": "The Plaintiff and her daughter C.\nPadmini, are residing in the Item No.1 of the property peacefully."
}
},
{
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"id": "2e6546f50d4b41babcf5a7ddb9d7f201",
"to_name": "text",
"type": "labels",
"value": {
"end": 7829,
"labels": [
"FAC"
],
"start": 7461,
"text": "Maraiah was died on 04122006, the Defendant Nos.1 and 2 have started to come to plaint schedule Item No.1 of the property with unruly elements and started to threaten the Plaintiff and Smt. C. Padmini i.e., the Plaintiff No.2 in OS.\nNo.6422011, therefore the Plaintiffs have constrained to file a suit in OS. No.6422011 against the Defendants for Permanent Injunction."
}
},
{
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"id": "4b01cbbed6c04229b43d36dccd26aff6",
"to_name": "text",
"type": "labels",
"value": {
"end": 7946,
"labels": [
"FAC"
],
"start": 7829,
"text": "\n 3. The Plaintiff is the only daughter to Maraiah and she become the absolute owner of the Suit Schedule Properties."
}
},
{
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"id": "c7f73e08451e4d209784334d0eaed09d",
"to_name": "text",
"type": "labels",
"value": {
"end": 8248,
"labels": [
"FAC"
],
"start": 7946,
"text": "\nThe Defendant No.1 and 2 have creates a false documents and tried to contend that they are becomes the owners of plaint schedule 1 and 2 of the properties and denying the right, title and interest over the Suit Schedule Properties, therefore Plaintiffs have constrained to file a suit for declaration."
}
},
{
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"id": "afd7e3935a9a4f5fa495f37ddb483895",
"to_name": "text",
"type": "labels",
"value": {
"end": 8442,
"labels": [
"FAC"
],
"start": 8249,
"text": "The Plaintiffs in OS. No.6422011 have prayed to restrain the Defendants and their agents from interfering with the Plaintiffs' peaceful possession and enjoyment of the plaint schedule property."
}
},
{
"from_name": "label",
"id": "b2b70b2001eb436f940b1a6f081b12df",
"to_name": "text",
"type": "labels",
"value": {
"end": 8934,
"labels": [
"FAC"
],
"start": 8443,
"text": "The Plaintiff in OS. No.1522009 has prayed to declare that she become the absolute owner of the plaint schedule Item No.1 and 2 of the properties, after the death of her father Maraiah and directing the Defendant No.3 to pay the monthly rent in respect of plaint schedule Item No.2 property to the Plaintiff and consequently restraining the Defendants 1 and 2 from interfering with the Plaintiffs' peaceful possession and enjoyment of plaint schedule item Nos.1 and 2 properties and etc.\n 4."
}
},
{
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"id": "7da135e610564dc6b8ebc1177d2fc92d",
"to_name": "text",
"type": "labels",
"value": {
"end": 9080,
"labels": [
"FAC"
],
"start": 8935,
"text": "The Defendants 1 and 2 in both the cases have appeared through their counsels and filed their Written Statements and denied the plaint averments."
}
},
{
"from_name": "label",
"id": "65b905a85bfe43cb9a7aa1d0d254e3c1",
"to_name": "text",
"type": "labels",
"value": {
"end": 9144,
"labels": [
"FAC"
],
"start": 9081,
"text": "They have admits the relationship as claimed by the Plaintiffs."
}
},
{
"from_name": "label",
"id": "6c70f3cfc7554799bc37b43eb0544df0",
"to_name": "text",
"type": "labels",
"value": {
"end": 9321,
"labels": [
"FAC"
],
"start": 9145,
"text": "They have stated that Suit Schedule Properties belongs to one Maraiah and she is the foster father of Defendant No.2 and he has adopted him when the Defendant No.2 was a child."
}
},
{
"from_name": "label",
"id": "c807594e8ee94d87ad091d393970e217",
"to_name": "text",
"type": "labels",
"value": {
"end": 9418,
"labels": [
"FAC"
],
"start": 9322,
"text": "The Defendant No.2 is the son of Maraiah's sisterinlaw i.e., the son of Maraiah's wife's sister."
}
},
{
"from_name": "label",
"id": "0961053f62194f7ebf532624d9ac3dfa",
"to_name": "text",
"type": "labels",
"value": {
"end": 9545,
"labels": [
"FAC"
],
"start": 9419,
"text": "The Plaintiff is the only daughter to Maraiah and he has performed the marriage of the Plaintiff and she has settled her life."
}
},
{
"from_name": "label",
"id": "fada2cf798304925b82ae69b5a2f1a20",
"to_name": "text",
"type": "labels",
"value": {
"end": 9612,
"labels": [
"FAC"
],
"start": 9546,
"text": "The Defendant No.2 has lookafter Maraiah till the end of his life."
}
},
{
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"id": "f3edf8a6183c4e7fa872e37455a6a6f0",
"to_name": "text",
"type": "labels",
"value": {
"end": 9716,
"labels": [
"FAC"
],
"start": 9613,
"text": "The Defendant No.2 was lived with Maraiah right from the time of demise of his wife and till his death."
}
},
{
"from_name": "label",
"id": "433e1fb45a0a433c8121abe67d2e8b95",
"to_name": "text",
"type": "labels",
"value": {
"end": 9901,
"labels": [
"FAC"
],
"start": 9717,
"text": "Maraiah has settled the Item No.1 of the property in favour of the Defendant No.2 and Item No.2 of the property in favour of Defendant No.1 by means of registered Will dated:22 031995."
}
},
{
"from_name": "label",
"id": "2b85ec93f5024e019e6a76720081ec56",
"to_name": "text",
"type": "labels",
"value": {
"end": 10044,
"labels": [
"FAC"
],
"start": 9902,
"text": "The said Maraiah died on 04122006, the Defendant Nos.1 and 2 become the absolute owners of the Suit Schedule Properties by virtue of the Will."
}
},
{
"from_name": "label",
"id": "995b2c8775774a5e9e61e5c3e36fb486",
"to_name": "text",
"type": "labels",
"value": {
"end": 10151,
"labels": [
"FAC"
],
"start": 10045,
"text": "The katha of the Suit Schedule Properties came to their respective names and Defendants have paying taxes."
}
},
{
"from_name": "label",
"id": "e0f9a82bd91f4000add225a059ca9eaa",
"to_name": "text",
"type": "labels",
"value": {
"end": 10388,
"labels": [
"FAC"
],
"start": 10152,
"text": "After the death of Maraiah, the Defendant No.2 rented out the into one M.J. Ramesh, but said M.J. Ramesh forcibly removed from the premises after the Plaintiffs filed a suit in OS. No.2522007 and obtained an exparte order of injunction."
}
},
{
"from_name": "label",
"id": "d0512bd486cc4db8b21e019d62a4234a",
"to_name": "text",
"type": "labels",
"value": {
"end": 10482,
"labels": [
"FAC"
],
"start": 10389,
"text": "The Plaintiffs have no manner of right, title and interest over the Suit Schedule Properties."
}
},
{
"from_name": "label",
"id": "179715f4059d4725b043677042c8cc75",
"to_name": "text",
"type": "labels",
"value": {
"end": 10657,
"labels": [
"FAC"
],
"start": 10483,
"text": "The Defendants have stated that, Plaintiffs have not lookafter Maraiah at any point of time and Maraiah not having faith on her, therefore he has fostered the Defendant No.1."
}
},
{
"from_name": "label",
"id": "c20dd2976d7948bc82ca031d3eea4a1b",
"to_name": "text",
"type": "labels",
"value": {
"end": 10748,
"labels": [
"FAC"
],
"start": 10658,
"text": "The Defendants have stated that, the Defendant No.1 has look after Maraiah till his death."
}
},
{
"from_name": "label",
"id": "bec5ba5d9ea24ae8ba254ec0faedbe32",
"to_name": "text",
"type": "labels",
"value": {
"end": 10823,
"labels": [
"FAC"
],
"start": 10749,
"text": "Out of the love and affection, Maraiah has executed a Will dated:22031995."
}
},
{
"from_name": "label",
"id": "ecdb31eb5e1f4e8c8580101467c41e29",
"to_name": "text",
"type": "labels",
"value": {
"end": 10964,
"labels": [
"FAC"
],
"start": 10824,
"text": "The Defendants have stated that the Plaintiffs have forcibly evicted the tenant M. J. Ramesh, by obtaining the exparte temporary injunction."
}
},
{
"from_name": "label",
"id": "6598036a236f4d5b845688c006615ac4",
"to_name": "text",
"type": "labels",
"value": {
"end": 11196,
"labels": [
"FAC"
],
"start": 10965,
"text": "The Defendants have stated that, Suit Schedule Properties are the selfacquired properties of Maraiah, he has executed a Will and by virtue of the said Will, the Defendants become the absolute owners of the Suit Schedule Properties."
}
},
{
"from_name": "label",
"id": "1b85369d79df4e51b6ea6fa97a96dd23",
"to_name": "text",
"type": "labels",
"value": {
"end": 11244,
"labels": [
"FAC"
],
"start": 11196,
"text": "\nThe Defendants have prayed to dismiss the suit."
}
},
{
"from_name": "label",
"id": "57f24a40ca8340e1b4b8bf877239872d",
"to_name": "text",
"type": "labels",
"value": {
"end": 11511,
"labels": [
"ISSUE"
],
"start": 11244,
"text": "\n 5. On the basis of the pleadings of the parties, following issues have been framed in OS. No.6422011.\n ISSUES 1) Whether Plaintiffs prove that, they are in lawful possession of the Suit Schedule Property?\n 2) Whether Plaintiffs prove the interference by Defendants?"
}
},
{
"from_name": "label",
"id": "215413cf442e4859a9c7e9fd7c7ce10b",
"to_name": "text",
"type": "labels",
"value": {
"end": 11573,
"labels": [
"ISSUE"
],
"start": 11511,
"text": "\n 3) Whether Plaintiffs are entitled for relief as prayed for?"
}
},
{
"from_name": "label",
"id": "5a80d1fda97e4860b9e7c27bd5cfdb6a",
"to_name": "text",
"type": "labels",
"value": {
"end": 11599,
"labels": [
"ISSUE"
],
"start": 11573,
"text": "\n 4) What order or decree?"
}
},
{
"from_name": "label",
"id": "c73c44338c75402db38848ff611c2adb",
"to_name": "text",
"type": "labels",
"value": {
"end": 11655,
"labels": [
"ISSUE"
],
"start": 11599,
"text": "\n Following issues have been framed in OS. No.1522009 1."
}
},
{
"from_name": "label",
"id": "79ff0a4a9825491fa202c2101e755b88",
"to_name": "text",
"type": "labels",
"value": {
"end": 11788,
"labels": [
"ISSUE"
],
"start": 11656,
"text": "Whether Plaintiff proves that after the death of her father on 04.12.2006 she became absolute owner of the Suit Schedule Properties?"
}
},
{
"from_name": "label",
"id": "385d014fe527475bbaa53292adddf04d",
"to_name": "text",
"type": "labels",
"value": {
"end": 11895,
"labels": [
"ISSUE"
],
"start": 11790,
"text": "2. Whether Plaintiff proves that she is in lawful possession and enjoyment of the Suit Schedule Property?"
}
},
{
"from_name": "label",
"id": "74e6e4958b5d400e81350652c2ba4076",
"to_name": "text",
"type": "labels",
"value": {
"end": 12173,
"labels": [
"ISSUE"
],
"start": 11897,
"text": "3. Whether Defendant No.1 and 2 proves that, Maraiah who was the owner of Suit Schedule Properties settled the item No.1 of the Suit Schedule Property upon 2nd Defendant and item No.2 of the Suit Schedule Property upon 1st Defendant by means of registered Will dated:22031995?"
}
},
{
"from_name": "label",
"id": "a7147b3408b54242a5457f674becf462",
"to_name": "text",
"type": "labels",
"value": {
"end": 12334,
"labels": [
"ISSUE"
],
"start": 12175,
"text": "4. Whether Defendant No.1 and 2 proves that, after the death of Maraiah they became absolute owners of the Suit Schedule Properties by virtue of the said Will?"
}
},
{
"from_name": "label",
"id": "0f64d0cdee574bbc99691cb13e66acf2",
"to_name": "text",
"type": "labels",
"value": {
"end": 12414,
"labels": [
"ISSUE"
],
"start": 12336,
"text": "5. Whether Plaintiff is entitled for the relief of declaration and injunction?"
}
},
{
"from_name": "label",
"id": "d606d375dd8141aeace4510e6045382f",
"to_name": "text",
"type": "labels",
"value": {
"end": 12478,
"labels": [
"ISSUE"
],
"start": 12414,
"text": "\n 6. Whether Plaintiff is entitled for the relief as sought for?"
}
},
{
"from_name": "label",
"id": "ba6e8834858149369750ed0e7bd258b9",
"to_name": "text",
"type": "labels",
"value": {
"end": 12504,
"labels": [
"ISSUE"
],
"start": 12478,
"text": "\n 7. What order or decree?"
}
},
{
"from_name": "label",
"id": "64ca63ba9ae741dbb6af275dca438c1a",
"to_name": "text",
"type": "labels",
"value": {
"end": 12650,
"labels": [
"FAC"
],
"start": 12506,
"text": "6. In order to prove her case, the Plaintiff examined as PW.1 in OS. No.1522009 and she has produced and got marked the documents Ex.P.1 to P.9."
}
},
{
"from_name": "label",
"id": "acbee8d5f73c435f92bdab19c9c48aa2",
"to_name": "text",
"type": "labels",
"value": {
"end": 12798,
"labels": [
"FAC"
],
"start": 12651,
"text": "On behalf of the Defendants, the Defendant No.1 examined as DW.1 in OS.\nNo.1522009 and she has produced and got marked the documents Ex.D.1 to D.8."
}
},
{
"from_name": "label",
"id": "aea057faced64e1a8b6d95a541e8ad18",
"to_name": "text",
"type": "labels",
"value": {
"end": 12902,
"labels": [
"FAC"
],
"start": 12799,
"text": "The Defendant No.2 examined as DW.2 and he has produced and got marked the documents Ex.D.9 to D.16.\n 7"
}
},
{
"from_name": "label",
"id": "7a3af6cf079a43bca7ceb97998fef0ef",
"to_name": "text",
"type": "labels",
"value": {
"end": 12974,
"labels": [
"NONE"
],
"start": 12902,
"text": ". I have heard the arguments and perused the entire records of the case."
}
},
{
"from_name": "label",
"id": "ac0191fa07ad46e88180146bd950e083",
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"end": 13501,
"labels": [
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],
"start": 12974,
"text": "\n 8. My findings on the above Issues are as under: Issue No.1 & 2 in OS. No. 6422011 : In the Affirmative Issue No.3 in OS. No. 6422011 : In the Affirmative Issue No.1 & 2 in OS. No.1522009 : In the Affirmative Issue No.3 & 4 in OS. No.1522009 : In the Negative Issue No.5 & 6 in OS. No.1522009 : In the Affirmative Issue No.7 : As per final order for the following: R E A S O N S 9. Issue Nos. 3 & 4 in OS. No.1522009: Since these two Issues are interconnected with each other, therefore taken together for consideration."
}
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"end": 13576,
"labels": [
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],
"start": 13502,
"text": "It is not in dispute that Suit Schedule Properties are belongs to Maraiah."
}
},
{
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"value": {
"end": 13638,
"labels": [
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],
"start": 13577,
"text": "The Plaintiff Smt. Raamadevi is the only daughter of Maraiah."
}
},
{
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"id": "4c0134c0496248d7b4c9d327aac66987",
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"value": {
"end": 13744,
"labels": [
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],
"start": 13639,
"text": "The Defendant No.1 is the daughter of Plaintiff No.1 and Defendant No.2 is the husband of Defendant No.1."
}
},
{
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"id": "02177a5e74484b8daa0656e1346f1940",
"to_name": "text",
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"value": {
"end": 13798,
"labels": [
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],
"start": 13745,
"text": "The father of the Plaintiff Maraiah died on 04122006."
}
},
{
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"id": "de36fe2901d0495bb7814e69852f465b",
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"value": {
"end": 13871,
"labels": [
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],
"start": 13799,
"text": "The Suit Schedule Properties are the selfacquired properties of Maraiah."
}
},
{
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"id": "853cf5b061544fd192cc9307db9342ea",
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"end": 13995,
"labels": [
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],
"start": 13872,
"text": "According to the Plaintiffs, Maraiah died intestate, leaving behind the Plaintiff Raamadevi as a sole surviving legal heir."
}
},
{
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"id": "2e24fd241ef441b7b868efc0843435d3",
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"value": {
"end": 14177,
"labels": [
"ANALYSIS"
],
"start": 13996,
"text": "According to the Defendants 1 and 2, Maraiah has executed the registered Will dated:22031995 and bequeathed the Suit Schedule Properties in favour of the Defendant Nos.1 and 2.\n 10."
}
},
{
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"value": {
"end": 14277,
"labels": [
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],
"start": 14178,
"text": "The Defendants 1 and 2 have denied the contention of the Plaintiff that Maraiah has died intestate."
}
},
{
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"value": {
"end": 14334,
"labels": [
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],
"start": 14278,
"text": "The Plaintiff Raamadevi is the only daughter of Maraiah."
}
},
{
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"id": "608a5abf9553422a8f663002f45e964e",
"to_name": "text",
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"value": {
"end": 14482,
"labels": [
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],
"start": 14335,
"text": "If Maraiah was died intestate, the Plaintiff Raamadevi has succeeded the Suit Schedule Properties being the sole surviving class I heir of Maraiah."
}
},
{
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"id": "27453fa389e64ff495232de2d49111db",
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"value": {
"end": 14624,
"labels": [
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],
"start": 14483,
"text": "The answering of Issue No.1 is depending on the answering of Issue Nos.3 and 4, therefore Issue Nos.3 and 4 taken for consideration at first."
}
},
{
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"id": "0762f8ab6f7d40bca3961b807689632d",
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"end": 14846,
"labels": [
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],
"start": 14625,
"text": "In these two issues, proof of execution of the registered Will dated:22031995 is involved, therefore it is necessary to examine the evidence led by the parties in respect of the Will set up by the Defendants 1 and 2.\n 11."
}
},
{
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"value": {
"end": 14915,
"labels": [
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],
"start": 14847,
"text": "The Defendant No.1 examined as DW.1 and produced the Will as Ex.D.3."
}
},
{
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"id": "11c5e542dddb41ec9b34c96f6d2285fe",
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"value": {
"end": 14961,
"labels": [
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],
"start": 14916,
"text": "The Defendant No.2 has also examined as DW.2."
}
},
{
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"value": {
"end": 15095,
"labels": [
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],
"start": 14962,
"text": "DW.1 and DW.2 have stated that Maraiah has fostered the second Defendant and he has adopted the second Defendant when he was a child."
}
},
{
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"id": "5ac5cc5571e14d94a0aceea4c2c09528",
"to_name": "text",
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"value": {
"end": 15170,
"labels": [
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],
"start": 15096,
"text": "They have stated that, mother of DW.2 and wife of Maraiah are the sisters."
}
},
{
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"id": "59c69dac83cf4cbaadabd6fd86780080",
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"value": {
"end": 15316,
"labels": [
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],
"start": 15171,
"text": "Maraiah has performed the marriage of her only daughter i.e., Plaintiff No.1 and settled her life and DW.2 has lookafter Maraiah, till his death."
}
},
{
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"id": "6399008e471040c984da977f129134b0",
"to_name": "text",
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"value": {
"end": 15444,
"labels": [
"ANALYSIS"
],
"start": 15317,
"text": "The said Maraiah has settled the Item Nos.1 and 2 of the properties in their favour by means of registered Will dated:22031995."
}
},
{
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"id": "7fd032911f044b7db26d49203c6e733f",
"to_name": "text",
"type": "labels",
"value": {
"end": 15557,
"labels": [
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],
"start": 15445,
"text": "They have stated that, said Maraiah died on 04122006 and by virtue of the Will, they became the absolute owners."
}
},
{
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"id": "56f0ea093bc446a4bbe83e2ecd60ea08",
"to_name": "text",
"type": "labels",
"value": {
"end": 15742,
"labels": [
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],
"start": 15558,
"text": "The katha of the Suit Schedule Properties continued in their names by virtue of the Will and they have paid the tax and they have enjoyed the Suit Schedule Property as absolute owners."
}
},
{
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"id": "35be44f6e80c4a43b2218966006f888d",
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"value": {
"end": 15906,
"labels": [
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],
"start": 15742,
"text": "\n 12. Ex.D.3 Will is the registered document, but in the crossexamination as well as in the plaint, the Plaintiffs have denied the execution of the Will by Maraiah."
}
},
{
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"id": "f0c759aa227d44c6952d718890261ec4",
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"value": {
"end": 15976,
"labels": [
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],
"start": 15907,
"text": "It is her contention that, Will has been concocted by the Plaintiffs."
}
},
{
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"id": "42e597f3adf3411b8a083cfcf218530a",
"to_name": "text",
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"value": {
"end": 16041,
"labels": [
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],
"start": 15977,
"text": "In view of the specific denial, Plaintiff has to prove the Will."
}
},
{
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"id": "5b8d6ec87f4545ca85909e8e1a0a01ac",
"to_name": "text",
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"value": {
"end": 16155,
"labels": [
"ANALYSIS"
],
"start": 16042,
"text": "In order to prove the Will, the propounder of the Will has to examine at least one attesting witness to the Will."
}
},
{
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"id": "33ea5d238ed844a085f3f6d1e3c7f1a7",
"to_name": "text",
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"value": {
"end": 16287,
"labels": [
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],
"start": 16156,
"text": "According to the Defendants, attesting witnesses to the Will were died, therefore they are unable to examine the attesting witness."
}
},
{
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"id": "1b50c23e6c4d446faefacd4a16596050",
"to_name": "text",
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"end": 16527,
"labels": [
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],
"start": 16287,
"text": "\n 13. As per section 69 of the Indian Evidence Act, if no such attesting witnesses were found, the propounder of the Will has to call upon any of the witnesses who know the hand writing and signature of the person who has attested the Will."
}
},
{
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"id": "c1414d8bac8a4dd1b832f221cdf64ee7",
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"value": {
"end": 16684,
"labels": [
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],
"start": 16528,
"text": "Here in this case, DW.1 and DW.2 have not chosen to call any witnesses, who know the signature and handwriting of the attesting witnesses to prove the Will."
}
},
{
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"id": "0e992149043c4c95aaa729ebabce2d27",
"to_name": "text",
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"value": {
"end": 16742,
"labels": [
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],
"start": 16685,
"text": "Even Defendants have not examined the scribe of the Will."
}
},
{
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"id": "53d5249f3b044d7b932f546606d0fd7a",
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"value": {
"end": 17082,
"labels": [
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],
"start": 16742,
"text": "\n 14. In the crossexamination, DW.1 has stated that she has found the Will in her grand father's house and his grand father has given the said Will and she has stated that, she do not know where the stamp paper has been purchased and where the Will has been written and she has stated that, she do not know the execution of the Will itself."
}
},
{
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"id": "2bf35ca4e8ad4d65b66b7c2afba1da60",
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"value": {
"end": 17227,
"labels": [
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],
"start": 17083,
"text": "In the cross examination, DW.2 has stated that, when he has get the Will, the attesting witnesses to the Will were alive and now they were died."
}
},
{
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"id": "c8464104e9664741b9b815bfd73e50e4",
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"value": {
"end": 17469,
"labels": [
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],
"start": 17228,
"text": "He has stated that, he do not know when the witnesses to the Will were died and his brother Jogaiah has informed that attesting witnesses to the Will were died and he do not having personal knowledge of the death of attesting witnesses.\n 15."
}
},
{
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"to_name": "text",
"type": "labels",
"value": {
"end": 17561,
"labels": [
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],
"start": 17470,
"text": "As per the evidence of DW.2, he does not know whether attesting witnesses were died or not."
}
},
{
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"id": "f6961a00c29b4e31a179862775cc766c",
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"value": {
"end": 17630,
"labels": [
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],
"start": 17562,
"text": "He has stated that his brother has informed him that they were died."
}
},
{
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"id": "e33c8bce670b413da073fada76089c15",
"to_name": "text",
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"value": {
"end": 17731,
"labels": [
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],
"start": 17631,
"text": "DW.1 and DW.2 have not produced any evidence to show that attesting witnesses to the Will were died."
}
},
{
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"id": "5d0d19a4842f4d61b7322d6cb901c751",
"to_name": "text",
"type": "labels",
"value": {
"end": 17953,
"labels": [
"ANALYSIS"
],
"start": 17732,
"text": "The Defendants have not made any effort to prove that attesting witnesses to the Will were died and they have not made any effort to secure the witnesses, who know the signature and handwriting of the attesting witnesses."
}
},
{
"from_name": "label",
"id": "3e2ce60fa6f845f5a325852847784a92",
"to_name": "text",
"type": "labels",
"value": {
"end": 18131,
"labels": [
"ARG_RESPONDENT"
],
"start": 17954,
"text": "The learned counsel for the Defendants has argued that, all the witnesses to the Will were died, therefore the Defendants are unable examine the attesting witnesses to the Will."
}
},
{
"from_name": "label",
"id": "be888c64b6fa44ea968353181dcd109e",
"to_name": "text",
"type": "labels",
"value": {
"end": 18369,
"labels": [
"ANALYSIS"
],
"start": 18132,
"text": "The katha of the schedule property has been transferred in the name of the Defendants by virtue of the Will and Will has been acted upon, therefore the nonexamination of the attesting witnesses is not fatal to the case of the Defendants."
}
},
{
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"id": "44319b3a51ff42b7964f0ca83cc63d3f",
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"value": {
"end": 18625,
"labels": [
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],
"start": 18369,
"text": "\n 16. As already discussed, the Defendants have not made any effort to prove that, the attesting witnesses to the Will were died and they were not made an attempt to examine the person who know the handwriting and signature of the attesting witnesses. DW.1"
}
},
{
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"to_name": "text",
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"value": {
"end": 18634,
"labels": [
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],
"start": 18626,
"text": "and DW.2"
}
},
{
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"id": "0791900a86524dfb9699c69e6d8828fb",
"to_name": "text",
"type": "labels",
"value": {
"end": 18728,
"labels": [
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],
"start": 18635,
"text": "have not stated in their examination in chief that attesting witnesses to the Will were died."
}
},
{
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"id": "8be0c81b5e3b4752836f4a28a2df9ee9",
"to_name": "text",
"type": "labels",
"value": {
"end": 19037,
"labels": [
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],
"start": 18729,
"text": "They have not examined the scribe of the Will, therefore the Defendants have not fulfill the legal requirement under Section 63 (3) of the Indian Succession Act, and 68 and 69 of the Indian Evidence Act, in proving the Will, therefore it cannot be said that, Plaintiffs have proved the execution of the Will."
}
},
{
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"id": "3c468281ef3f4a21aba3ff3c11fc1db8",
"to_name": "text",
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"value": {
"end": 19179,
"labels": [
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],
"start": 19037,
"text": "\n 17. Apart from fulfill the legal requirements, it is necessary to consider the probability of execution of the Will by the deceased Maraiah."
}
},
{
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"id": "119ed36cde1c4526969ca90822b96976",
"to_name": "text",
"type": "labels",
"value": {
"end": 19392,
"labels": [
"ANALYSIS"
],
"start": 19180,
"text": "It is the specific contention of the Plaintiff that Maraiah has not at all executed the Will and Defendants have taken some other person to the Sub Registrar Office and registered the Will in the name of Maraiah."
}
},
{
"from_name": "label",
"id": "547c3fa6370f442e9aac89ec259fcbe6",
"to_name": "text",
"type": "labels",
"value": {
"end": 19460,
"labels": [
"ANALYSIS"
],
"start": 19393,
"text": "The signature as found on the Will is not the signature of Maraiah."
}
},
{
"from_name": "label",
"id": "19ffd040d59b4bba91e7fd7fb5584b48",
"to_name": "text",
"type": "labels",
"value": {
"end": 19529,
"labels": [
"ANALYSIS"
],
"start": 19461,
"text": "PW.1 has stated that, Maraiah seriously fell ill from several years."
}
},
{
"from_name": "label",
"id": "46e8f654013b4ba59fb8aaa1595f3733",
"to_name": "text",
"type": "labels",
"value": {
"end": 19709,
"labels": [
"ANALYSIS"
],
"start": 19530,
"text": "In the crossexamination of DW.1 and DW.2 also a suggestion was put to them that, Maraiah seriously ill from 12 to 15 years and he was paralyzed and he was also not mentally sound."
}
},
{
"from_name": "label",
"id": "597763d69e554caf9f5770fe01c676ca",
"to_name": "text",
"type": "labels",
"value": {
"end": 20117,
"labels": [
"ANALYSIS"
],
"start": 19710,
"text": "When the Plaintiff has taken a contention that, Will in question is forged one and the testator was not in sound disposing state of mind at the time of execution of the Will, the propounder of the Will has to establish the sound disposing state of mind of the testator and has to remove the suspicious circumstances behind the execution of the Will, apart from examining the attesting witnesses to the Will."
}
},
{
"from_name": "label",
"id": "135be024e2024963a31200e424f04f36",
"to_name": "text",
"type": "labels",
"value": {
"end": 20350,
"labels": [
"ANALYSIS"
],
"start": 20117,
"text": "\n 18. Here in this case, the Defendants have not produced any evidence to show that, the testator of the Will was in sound disposing state of mind and he was able to understand his acts and deeds at the time of execution of the Will."
}
},
{
"from_name": "label",
"id": "49e3f74c5250402cb94cd1c9874a4617",
"to_name": "text",
"type": "labels",
"value": {
"end": 20434,
"labels": [
"ANALYSIS"
],
"start": 20351,
"text": "The signature of Maraiah on the Will has been specifically denied by the Plaintiff."
}
},
{
"from_name": "label",
"id": "da39170aef974e9f89835c14f00300b3",
"to_name": "text",
"type": "labels",
"value": {
"end": 20546,
"labels": [
"ANALYSIS"
],
"start": 20435,
"text": "The Defendants have not chosen to prove that the signature as found on the Will Ex.D.3 is signature of Maraiah."
}
},
{
"from_name": "label",
"id": "78630a6b95cf487ebb44bf1adabc0c64",
"to_name": "text",
"type": "labels",
"value": {
"end": 20851,
"labels": [
"ANALYSIS"
],
"start": 20547,
"text": "Considering the cross examination of DW.1 and DW.2 and facts and circumstances of the case, it is made clear that there are several suspicious circumstances are existed around the execution of the Will and it is possible to infer that the deceased Maraiah has suffered from ill health from several years."
}
},
{
"from_name": "label",
"id": "23c927dd032f424baa95f8e5d5e65ead",
"to_name": "text",
"type": "labels",
"value": {
"end": 20979,
"labels": [
"ANALYSIS"
],
"start": 20851,
"text": "\n 19. In the crossexamination, DW.2 has admits that his marriage was registered one and Ex.P.10 is the registration certificate."
}
},
{
"from_name": "label",
"id": "38bbb56ef0d84b5b931e24b1f1dbf416",
"to_name": "text",
"type": "labels",
"value": {
"end": 21301,
"labels": [
"ANALYSIS"
],
"start": 20980,
"text": "He has admits that his name was shown as Maraiah and 1st Defendant's father name was shown as Chikkalingaiah and his village and his residence was shown as Ramanahalli, instead of Damanahalli and he has furnished the false address to the SubRegistrar, while registering the marriage and obtained the marriage certificate."
}
},
{
"from_name": "label",
"id": "7898430fe37a46f3833e8903cd972632",
"to_name": "text",
"type": "labels",
"value": {
"end": 21590,
"labels": [
"ANALYSIS"
],
"start": 21302,
"text": "The learned counsel has contending that, the Defendant Nos.1 and 2 having the habit of creating the document and they are capable of creating the false document, therefore the alleged Will also might have created by the Defendant Nos.1 and 2 by taking someone to the sub registrar office."
}
},
{
"from_name": "label",
"id": "1e15d63ffc1b4d809f412d4c4d44fcdd",
"to_name": "text",
"type": "labels",
"value": {
"end": 21692,
"labels": [
"ANALYSIS"
],
"start": 21591,
"text": "Though the above fact is not relevant to this suit, but it established the conduct of the Defendants."
}
},
{
"from_name": "label",
"id": "4180cf2634e141d684851a790080896c",
"to_name": "text",
"type": "labels",
"value": {
"end": 21895,
"labels": [
"ANALYSIS"
],
"start": 21692,
"text": "\n 20. DW.2 in the crossexamination has stated that, the deceased Maraiah was in J.S.S. Hospital, and he has given the key of the trunk and after the death of Maraiah, he found the Will in the said trunk."
}
},
{
"from_name": "label",
"id": "61c0d4697d7d4593bb5b774ea2215151",
"to_name": "text",
"type": "labels",
"value": {
"end": 22022,
"labels": [
"ANALYSIS"
],
"start": 21896,
"text": "He has stated that, after one month of his death, he has get the Will and within two months, he has got transferred the katha."
}
},
{
"from_name": "label",
"id": "c4d8f87048c6404fa52074e49b11267d",
"to_name": "text",
"type": "labels",
"value": {
"end": 22088,
"labels": [
"ANALYSIS"
],
"start": 22023,
"text": "DW.1 has stated that, her grand father has given the Will to her."
}
},
{
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"id": "900eaac4491c4e20997b33b8cd4f72d1",
"to_name": "text",
"type": "labels",
"value": {
"end": 22151,
"labels": [
"ANALYSIS"
],
"start": 22089,
"text": "There is a contradiction between DW.1 and DW.2 in this regard."
}
},
{
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"id": "d6498b9a3c9342a5a1fb84731de4dfc6",
"to_name": "text",
"type": "labels",
"value": {
"end": 22361,
"labels": [
"ANALYSIS"
],
"start": 22152,
"text": "Considering the evidence of DW1 and DW.2, I am of the opinion that, the Will is surrounded by suspicious circumstances and Defendants have failed to establish the Will by removing the suspicious circumstances."
}
},
{
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"id": "c0a43b278e204b929d47765858c8a211",
"to_name": "text",
"type": "labels",
"value": {
"end": 22466,
"labels": [
"ANALYSIS"
],
"start": 22362,
"text": "The Defendants 1 and 2 have failed to establish the valid execution of the Will by the deceased Maraiah."
}
},
{
"from_name": "label",
"id": "9375cc01728d4cf0bb62202552f271ce",
"to_name": "text",
"type": "labels",
"value": {
"end": 22651,
"labels": [
"ANALYSIS"
],
"start": 22467,
"text": "When the Defendants have failed to establish the Will, then they have also failed to establish that they become the absolute owners of the Suit Schedule Property by virtue of the Will."
}
},
{
"from_name": "label",
"id": "afdfc4558fe249e18124abb506f25567",
"to_name": "text",
"type": "labels",
"value": {
"end": 22816,
"labels": [
"ANALYSIS"
],
"start": 22652,
"text": "Just because, the katha transferred in the name of the Defendants, it is not a ground to hold that Defendants are the absolute owners of the Suit Schedule Property."
}
},
{
"from_name": "label",
"id": "30f1054c87404686a97089b0272c05f1",
"to_name": "text",
"type": "labels",
"value": {
"end": 22880,
"labels": [
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],
"start": 22816,
"text": "\nAccordingly, I have answered Issue Nos.3 and 4 in the negative."
}
},
{
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"id": "2fad09c6a71a4ad28864614d89e85330",
"to_name": "text",
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"value": {
"end": 22961,
"labels": [
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],
"start": 22880,
"text": "\n 21. Issue No.1 and 2 in OS. No. 1522009 and Issue Nos.1 and 2 in OS. No.6422011"
}
},
{
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"id": "f2655c0403e343d7891d3c9fc1901889",
"to_name": "text",
"type": "labels",
"value": {
"end": 23178,
"labels": [
"RATIO"
],
"start": 22961,
"text": ": It is the case of the Plaintiff Raamadevi that she being the only daughter of Maraiah become the sole surviving legal heir of Maraiah and after his death, she become the absolute owner of the Suit Schedule Property."
}
},
{
"from_name": "label",
"id": "ce970b2b39fa495fb5bd5b8e3d376a55",
"to_name": "text",
"type": "labels",
"value": {
"end": 23325,
"labels": [
"RATIO"
],
"start": 23179,
"text": "It is not in dispute that the Suit Schedule Properties are the properties of Maraiah and Plaintiff Smt. Raamadevi is the only daughter of Maraiah."
}
},
{
"from_name": "label",
"id": "c0a49652495b4853bd4f9c3582867fc2",
"to_name": "text",
"type": "labels",
"value": {
"end": 23384,
"labels": [
"RATIO"
],
"start": 23326,
"text": "PW.1 has stated that, she is the only daughter of Maraiah."
}
},
{
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"id": "70cc44083a9f4277bce3f3857193c792",
"to_name": "text",
"type": "labels",
"value": {
"end": 23713,
"labels": [
"RATIO"
],
"start": 23385,
"text": "While answering Issue Nos.3 and 4 it was held that, the Defendants have failed to establish the valid execution of the Will said to had been executed by the deceased Maraiah on 22031995, therefore the deceased Maraiah died intestate and Plaintiff Raamadevi being the daughter of Maraiah has succeeded the Suit Schedule Property."
}
},
{
"from_name": "label",
"id": "93a6ba552fdb465a89030b55dff37a0f",
"to_name": "text",
"type": "labels",
"value": {
"end": 23817,
"labels": [
"ANALYSIS"
],
"start": 23713,
"text": "\n 22. The Defendants have denied the lawful possession of the Plaintiff over the Suit Schedule Property."
}
},
{
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"id": "a3ceeb389c3a4d28ac219957d2eeb9a9",
"to_name": "text",
"type": "labels",
"value": {
"end": 23929,
"labels": [
"ANALYSIS"
],
"start": 23818,
"text": "It is necessary to examine whether the Plaintiff Smt. Raamadevi is in possession of the Suit Schedule Property."
}
},
{
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"id": "26c097c74a4f4d33b0573af091f8b3d4",
"to_name": "text",
"type": "labels",
"value": {
"end": 24174,
"labels": [
"ANALYSIS"
],
"start": 23931,
"text": "23. PW.1 in her evidence has stated that, though she has constrained to live separately from Maraiah, due to the unpleasant situation created by the Defendants 1 and 2, but she used to serve Maraiah from morning to evening by staying with him."
}
},
{
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"id": "9e3c8469758b47e8877542137a07f02e",
"to_name": "text",
"type": "labels",
"value": {
"end": 24385,
"labels": [
"ANALYSIS"
],
"start": 24175,
"text": "PW.1 has stated that, she has residing in the Item No.1 of the property in R.C.C. roof portion and Plaintiff No.2 in OS. No.6422011 has occupied the asbestos sheet roof portion of the Item No.1 of the property."
}
},
{
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"id": "8d51debd2a2649958350958398586417",
"to_name": "text",
"type": "labels",
"value": {
"end": 24492,
"labels": [
"ANALYSIS"
],
"start": 24386,
"text": "The Defendant No.3 has inducted as a tenant in the Item No.2 of the property on a monthly rent of Rs.750/."
}
},
{
"from_name": "label",
"id": "1c52a5b126ab4d409bd7c0db5115e12e",
"to_name": "text",
"type": "labels",
"value": {
"end": 24667,
"labels": [
"ANALYSIS"
],
"start": 24493,
"text": "The Defendant No.2 has claimed that he is the adopted son of deceased Maraiah, but he has failed to prove the adoption and he has also failed to prove the Will in his favour."
}
},
{
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"id": "afb38a75381148dbb1ddb672cdb3c4b5",
"to_name": "text",
"type": "labels",
"value": {
"end": 24758,
"labels": [
"ANALYSIS"
],
"start": 24668,
"text": "The Plaintiff being the only daughter of Maraiah has succeeded the Suit Schedule Property."
}
},
{
"from_name": "label",
"id": "7afc18d5aff34fe89311bf5ee3c69d16",
"to_name": "text",
"type": "labels",
"value": {
"end": 24858,
"labels": [
"ANALYSIS"
],
"start": 24759,
"text": "The father of the Plaintiff Maraiah was in possession of the Suit Schedule Property till his death."
}
},
{
"from_name": "label",
"id": "5548d9c62b844b67926ebbfc16a9c120",
"to_name": "text",
"type": "labels",
"value": {
"end": 25030,
"labels": [
"ANALYSIS"
],
"start": 24859,
"text": "The Plaintiff has acquired the Suit Schedule Property by virtue of succession, therefore it is deemed that Plaintiff is in lawful possession of the Suit Schedule Property."
}
},
{
"from_name": "label",
"id": "e60373442000497a901cbb9496b45d79",
"to_name": "text",
"type": "labels",
"value": {
"end": 25229,
"labels": [
"ANALYSIS"
],
"start": 25032,
"text": "24. DW.1 has produced the demand register extract as Ex.D.5, tax paid receipts as Ex.D.6 to 8 to prove her possession, but the katha was transferred in the name of Defendants by virtue of the Will."
}
},
{
"from_name": "label",
"id": "11774f66ea084e98b6423f6f5f516166",
"to_name": "text",
"type": "labels",
"value": {
"end": 25466,
"labels": [
"ANALYSIS"
],
"start": 25230,
"text": "The Defendants have failed to establish the Will, therefore just because the Defendants 1 and 2 have managed to transfer the katha by virtue of the Will, it cannot be said that Defendants are in possession of the Suit Schedule Property."
}
},
{
"from_name": "label",
"id": "8ff1f4a2813149558d179ef8c25335de",
"to_name": "text",
"type": "labels",
"value": {
"end": 25749,
"labels": [
"ANALYSIS"
],
"start": 25467,
"text": "The Plaintiff is the absolute owner of the property and Defendants have failed to establish the independent possession over the Suit Schedule Property, therefore it is necessary to infer that Plaintiff Raamadevi being the owner is in lawful possession of the Suit Schedule Property."
}
},
{
"from_name": "label",
"id": "73c410dcf29943d5bbda5dd7c036a514",
"to_name": "text",
"type": "labels",
"value": {
"end": 25822,
"labels": [
"ANALYSIS"
],
"start": 25750,
"text": "DW.2 has produced certified copy of the registered sale deed as Ex.D.11."
}
},
{
"from_name": "label",
"id": "b97e3c3061a44eb89239510eb4b31f79",
"to_name": "text",
"type": "labels",
"value": {
"end": 25949,
"labels": [
"ANALYSIS"
],
"start": 25823,
"text": "That sale deed is executed during the pendency of this suit, therefore said sale deed not having any consequence in this suit."
}
},
{
"from_name": "label",
"id": "9b09ec9d33b54636a856411232659fc9",
"to_name": "text",
"type": "labels",
"value": {
"end": 26115,
"labels": [
"ANALYSIS"
],
"start": 25950,
"text": "The person purchased the property under the said sale deed does not derive any right title over the lawful possession of the property and he has bound by the decree."
}
},
{
"from_name": "label",
"id": "c9c7cc3a51df4bbaad185e8683cff3f1",
"to_name": "text",
"type": "labels",
"value": {
"end": 26211,
"labels": [
"ANALYSIS"
],
"start": 26116,
"text": "The Defendant No.2 in OS. No.1522009 has filed a suit against the Plaintiff in OS. No. 7292016."
}
},
{
"from_name": "label",
"id": "22227377caa4465382106831dfa67d85",
"to_name": "text",
"type": "labels",
"value": {
"end": 26386,
"labels": [
"ANALYSIS"
],
"start": 26212,
"text": "The certified copy of the plaint in OS. No.7292016 is marked as Ex.D.14, which discloses that Defendant No.2 has filed a suit for possession of the Item No.1 of the property."
}
},
{
"from_name": "label",
"id": "657c9e3873414c2d9a0a9172769c6def",
"to_name": "text",
"type": "labels",
"value": {
"end": 26495,
"labels": [
"ANALYSIS"
],
"start": 26387,
"text": "This fact also discloses that the Plaintiff is in possession of the Item No.1 of the Suit Schedule Property."
}
},
{
"from_name": "label",
"id": "90415cd5a26a4a9fb4d5601b216e247e",
"to_name": "text",
"type": "labels",
"value": {
"end": 26590,
"labels": [
"ANALYSIS"
],
"start": 26496,
"text": "The Plaintiff has established her title over the Suit Schedule Property as well as possession."
}
},
{
"from_name": "label",
"id": "ad6af0f3417441dfb191f814ed9b4854",
"to_name": "text",
"type": "labels",
"value": {
"end": 26778,
"labels": [
"ANALYSIS"
],
"start": 26590,
"text": "\n 25. Insofar as Item No.2 of the property is concerned, according to the Plaintiff, 3rd Defendant Sri. Sathyanarayana Padukote was in possession of the Suit Schedule Property as a tenant."
}
},
{
"from_name": "label",
"id": "ae16cbfc016042b4aaf095db8a5905d5",
"to_name": "text",
"type": "labels",
"value": {
"end": 26883,
"labels": [
"ANALYSIS"
],
"start": 26779,
"text": "In the crossexamination DW.1 has admits this fact, but she has stated that they have sold that property."
}
},
{
"from_name": "label",
"id": "c1791a48ad3540ef9428d80c5f64ec17",
"to_name": "text",
"type": "labels",
"value": {
"end": 26921,
"labels": [
"RATIO"
],
"start": 26883,
"text": "\nThe sale deed is produced as Ex.D.11."
}
},
{
"from_name": "label",
"id": "bea1929127ad436c857e0665c993f756",
"to_name": "text",
"type": "labels",
"value": {
"end": 27034,
"labels": [
"RATIO"
],
"start": 26922,
"text": "Item No.2 of the property has been occupied by the tenant, he is deemed to be tenant under the deceased Maraiah."
}
},
{
"from_name": "label",
"id": "065da011c6344722b82ae9debaa0ea28",
"to_name": "text",
"type": "labels",
"value": {
"end": 27155,
"labels": [
"RATIO"
],
"start": 27035,
"text": "The Plaintiff has acquired the property after his death, therefore she deemed to be owner in possession of the property."
}
},
{
"from_name": "label",
"id": "13acc3c9721647cfaaf491ddc964d093",
"to_name": "text",
"type": "labels",
"value": {
"end": 27273,
"labels": [
"RATIO"
],
"start": 27156,
"text": "The Plaintiff has sought for Mandatory Injunction against the previous tenant Defendant No.3 to pay the monthly rent."
}
},
{
"from_name": "label",
"id": "025741bac94c4bdc909336c6360c5bf2",
"to_name": "text",
"type": "labels",
"value": {
"end": 27351,
"labels": [
"RATIO"
],
"start": 27274,
"text": "But Defendant No.3 has vacated the premises during the pendency of this suit."
}
},
{
"from_name": "label",
"id": "ae55d7908d4e4899b20a30b29da382e8",
"to_name": "text",
"type": "labels",
"value": {
"end": 27477,
"labels": [
"RATIO"
],
"start": 27351,
"text": "\nThe Defendant Nos.1 and 2 have sold the property on the guise of the katha transferred in their names, by virtue of the Will."
}
},
{
"from_name": "label",
"id": "9a4134b95eaf4bb6803a92aaf64a73c4",
"to_name": "text",
"type": "labels",
"value": {
"end": 27527,
"labels": [
"RATIO"
],
"start": 27478,
"text": "The Defendants have failed to establish the Will."
}
},
{
"from_name": "label",
"id": "a1db1e00efa94e5cada8fd1dcb6a8b2e",
"to_name": "text",
"type": "labels",
"value": {
"end": 27757,
"labels": [
"RATIO"
],
"start": 27528,
"text": "The person who has purchased the property during the pendency of this suit not acquired any title over the property and his sale deed become empty sale deed, he is bound to deliver the possession of the property to the Plaintiff."
}
},
{
"from_name": "label",
"id": "0c607fd7e630409ebb8a2d37c498c8fe",
"to_name": "text",
"type": "labels",
"value": {
"end": 28144,
"labels": [
"RATIO"
],
"start": 27758,
"text": "The acquisition of the possession by the said purchaser is during the pendency of this suit, though the Plaintiff has not seeking the relief of possession, but acquiring the possession by the purchaser is during the pendency of this suit, therefore it is just and proper to mould the relief of Mandatory Injunction and to grant the relief of possession of the Item No.2 of the property."
}
},
{
"from_name": "label",
"id": "d2f9a53c209448a1820230f3d97ff271",
"to_name": "text",
"type": "labels",
"value": {
"end": 28275,
"labels": [
"RATIO"
],
"start": 28145,
"text": "Though the purchaser is not a party to the suit, but he being the purchaser during the pendency of this suit, bound by the decree."
}
},
{
"from_name": "label",
"id": "8d1a07c8adb848859d364b203f2c3495",
"to_name": "text",
"type": "labels",
"value": {
"end": 28712,
"labels": [
"RATIO"
],
"start": 28276,
"text": "It is pertinent to note that, after case is posted for judgment, Plaintiff has filed an application under Order 6 Rule 17 of CPC, for amendment of the plaint for seeking the relief of possession on the plea that the Defendant No.3 has vacated the Item No.2 of the property and Defendant No.1 and 2 have forcibly taken possession of the item No.2 of the property and sold to Sri. Sharathkumar, as per registered sale deed dated:26062014."
}
},
{
"from_name": "label",
"id": "e1d85737ac634df5aa4ade1367753c96",
"to_name": "text",
"type": "labels",
"value": {
"end": 28958,
"labels": [
"RATIO"
],
"start": 28713,
"text": "That application has been dismissed by considering the stage in which it has been filed and also considering the fact that the fact pleaded by way of amendment is subsequent event and even without prayer, the court can mould the relief suitably."
}
},
{
"from_name": "label",
"id": "ed07d5221f6f4e3fb6d79e7d1404e897",
"to_name": "text",
"type": "labels",
"value": {
"end": 29126,
"labels": [
"RATIO"
],
"start": 28959,
"text": "The Plaintiff is entitled for possession of the Item No.2 of the property, even though there is no specific prayer and subsequent purchaser is not a party to the suit."
}
},
{
"from_name": "label",
"id": "b80b50b5d3804d64a79bbf301a7937e2",
"to_name": "text",
"type": "labels",
"value": {
"end": 29228,
"labels": [
"RATIO"
],
"start": 29127,
"text": "The purchaser has got the possession from the Defendant Nos.1 and 2 during the pendency of this suit."
}
},
{
"from_name": "label",
"id": "8c0efe0346b6434cb7892c1f0c337e31",
"to_name": "text",
"type": "labels",
"value": {
"end": 29392,
"labels": [
"ANALYSIS"
],
"start": 29229,
"text": "The Plaintiff is entitled to get possession of the Suit Schedule Property by executing decree against the Defendants 1 and 2 and their purchaser Sri.\nSharathkumar."
}
},
{
"from_name": "label",
"id": "070d3d040a39428ba4a7fca7b29639e5",
"to_name": "text",
"type": "labels",
"value": {
"end": 29476,
"labels": [
"ANALYSIS"
],
"start": 29393,
"text": "Since the purchaser bound by the decree passed against the Defendants 1 and 2.\n 26."
}
},
{
"from_name": "label",
"id": "757cc61ae4214b27bdda5e5ede7526af",
"to_name": "text",
"type": "labels",
"value": {
"end": 29600,
"labels": [
"ANALYSIS"
],
"start": 29477,
"text": "Insofar as interference is concerned, on the basis of the conduct of the Defendants, it possible to infer the interference."
}
},
{
"from_name": "label",
"id": "da35c1df911a48969a0e1f0131bb6a80",
"to_name": "text",
"type": "labels",
"value": {
"end": 29726,
"labels": [
"ANALYSIS"
],
"start": 29601,
"text": "Accordingly, I have answered Issue No.1 and 2 in OS. No. 1522009 and Issue Nos.1 and 2 in OS. No.642 2011 in the affirmative."
}
},
{
"from_name": "label",
"id": "c675d2c8e1a4406d980e14b7bbe7beb0",
"to_name": "text",
"type": "labels",
"value": {
"end": 29802,
"labels": [
"ANALYSIS"
],
"start": 29726,
"text": "\n 27. Issue Nos.5 and 6 in OS. No. 1522009 and Issue No.3 in OS. No.6422011:"
}
},
{
"from_name": "label",
"id": "ea7610d083104a1cac9ca7082665f560",
"to_name": "text",
"type": "labels",
"value": {
"end": 30151,
"labels": [
"ANALYSIS"
],
"start": 29803,
"text": "The Plaintiff in both the cases has able to establish that she has succeeded the Suit Schedule Property after the death of her father Maraiaha and she is in lawful possession of the Suit Schedule Property, therefore Plaintiff is entitled for the relief of declaration and Permanent Injunction as well as possession of the Item No.2 of the property."
}
},
{
"from_name": "label",
"id": "1a333708f13d49fcad0d50c8fc18d493",
"to_name": "text",
"type": "labels",
"value": {
"end": 30213,
"labels": [
"NONE"
],
"start": 30152,
"text": "Accordingly, I have answered these issues in the affirmative."
}
},
{
"from_name": "label",
"id": "1184ac1583f544c286aa382d5bda2460",
"to_name": "text",
"type": "labels",
"value": {
"end": 30282,
"labels": [
"NONE"
],
"start": 30213,
"text": "\n 28. Issue No. 7 in OS. No.1522009 and Issue No.4 in OS. No.6422011:"
}
},
{
"from_name": "label",
"id": "22c67bcf41914d0e842ff809a4d7c996",
"to_name": "text",
"type": "labels",
"value": {
"end": 30438,
"labels": [
"RPC"
],
"start": 30283,
"text": "For the reasons discussed above, the Plaintiffs in both the cases are entitled for the relief as prayed for and I have proceed to pass the following: ORDER"
}
},
{
"from_name": "label",
"id": "b280fddad669416d865b9300aa6b4d47",
"to_name": "text",
"type": "labels",
"value": {
"end": 30512,
"labels": [
"RPC"
],
"start": 30439,
"text": "The suit of the Plaintiff in both the cases is hereby decreed with costs."
}
},
{
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"id": "2c8f9f2aab434cb682877bce134a802b",
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"end": 30609,
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],
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"text": "\n It is hereby declared that the Plaintiff is the absolute owner of the Suit Schedule Properties."
}
},
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"end": 30774,
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"text": "\n The Defendants, their men and agents are hereby restrained from interfering with the Plaintiffs' peaceful possession and enjoyment of the Suit Schedule Properties."
}
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"id": "d3cc48bc7cdd48ec900e34c194af1405",
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"labels": [
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],
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"text": "The Plaintiff is entitled for possession of the Item No.2 of the property from the purchaser."
}
},
{
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"id": "2880e0dab3994bbab30c0628cdb488ae",
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"end": 31001,
"labels": [
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"text": "The Defendant Nos.1 and 2 and their purchaser are hereby directed to hand over the vacant possession of the Suit Schedule Property."
}
},
{
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"id": "ae44e712227f4ae9811a818830ef62e0",
"to_name": "text",
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"end": 31027,
"labels": [
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],
"start": 31003,
"text": "Draw decree accordingly."
}
},
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"to_name": "text",
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"end": 31150,
"labels": [
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],
"start": 31027,
"text": "\n (Dictated to the Stenographer, transcribed by her, corrected by me and pronounced in the open court on 25th January 2017)"
}
},
{
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"id": "254ebdaae1eb4332af0424689b993b5f",
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"start": 31151,
"text": "(M.K. ASHOK)"
}
},
{
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"end": 31204,
"labels": [
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],
"start": 31164,
"text": "I ADDITIONAL SENIOR CIVIL JUDGE, MYSURU."
}
},
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"id": "86fca71fbdfa43179f1edee7551819bb",
"to_name": "text",
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"end": 31796,
"labels": [
"NONE"
],
"start": 31206,
"text": "ANNEXURE LIST OF WITNESS EXAMINED ON BEHALF OF THE PLAINTIFF PW.1 Smt. Raamadevi LIST OF DOCUMENTS MARKED ON BEHALF OF THE PLAINTIFF Ex.P.1 Death Certificate Ex.P.2 Tax paid receipt Ex.P.3 Self assessment Declaration statement Ex.P.4 Katha extract Ex.P.5 Certificate Ex.P.6 Demand register Ex.P.7 Copy of the legal notice Ex.P.8 COP Ex.P.9 Postal cover LIST OF WITNESS EXAMINED ON BEHALF OF THE DEFENDENTS DW.1 Smt. Nagarathna DW.2 Sri. Madaiah @ Mahadeva LIST OF DOCUMENTS MARKED ON BEHALF OF THE DEFENDENTS Ex."
}
},
{
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"to_name": "text",
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"end": 31960,
"labels": [
"NONE"
],
"start": 31796,
"text": "D.1 Identity Card Ex.D.2 Ration card Ex.D.3 Original Will dated:22031995 Ex.D.4 Death certificate Ex.D.5 Demand register Ex.D.6 to 8 "
}
},
{
"from_name": "label",
"id": "3fa8a683d77541cbb56c69e1081832a3",
"to_name": "text",
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"end": 32113,
"labels": [
"NONE"
],
"start": 31960,
"text": "Tax paid receipts Ex.D.9 Copy of legal notice Ex.D.10 Note written by Padmini Ex.D.11 Certified copy of the sale deed dated:2606 2014 Ex."
}
},
{
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"id": "55ba1c9396134067bc49d17bb1f28c50",
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"value": {
"end": 32335,
"labels": [
"NONE"
],
"start": 32113,
"text": "D.12 Certified copy of the sale deed dated:2106 2008 Ex.D.13 Certified Copy of Order sheet in OS. No. 729 2016 Ex.D.14 Certified Copy of plaint in OS. No.7292016 Ex.D.15 Certified copy of Letter of rights Ex.D.16 "
}
},
{
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"to_name": "text",
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"end": 32438,
"labels": [
"NONE"
],
"start": 32335,
"text": "Certified copy of Patta book issued by Panchayath (M.K. ASHOK) I ADDITIONAL SENIOR CIVIL JUDGE, MYSURU."
}
}
]
}
] | 1,765 | {
"text": " TITLE SHEET FOR JUDGEMENTS IN SUIT\n\n IN THE COURT OF THE 1ST ADDL.CIVIL JUDGE(SR.DN.) &\n CJM AT MYSORE\n : PRESENT :\n\n Sri. M.K. ASHOK, B.A., LL.B.,\n\n I ADDITIONAL SENIOR CIVIL JUDGE, MYSURU.\n\n DATED THIS THE 25th DAY OF JANUARY 2017\n O.S. NO.6422011\n\nBETWEEN\n 1. Smt. Raama Devi, aged about 52\n years, W/o Chikkanna,\n\n 2. Smt. Padmini, aged 26 years, W/o\n Ningaiah,\n\n Plaintiffs 1 and 2 are residing\n separately in two different\n portions of house No.11,\n Munishwara Nagara, J.P. Nagara\n Extension, Mysore8.\n\n : PLAINTIFFS\n\n (Represented by Sri. K.R. Nagaraja, Advocate)\n V/S\n\n 1. Smt. C. Nagarathna, aged 28 years,\n W/o Madaiah @ Mahadeva.\n\n 2. Sri. Madaiah @ Mahadeva, aged 38\n years, S/o Mayigaiah,\n\nDefendants 1 and 2 are residing at\nD. No.74, 12th Cross, 5th Main,\nChinnagiri Koppal, Jayanagara,\nMysore.\n\n : DEFENDANTS\n\n(Represented by Sri. Y.G., Advocate)\n\nDate of Institution of the suit 09032007\n Suit for Permanent Injunction\nNature of the suit (suit on\npronote, suit for declaration and 09092011\npossession, suit for injunction,\netc.,) 25012017\n\nDate of the commencement of Years Months Days\nrecording of the evidence\n\nDate on which Judgement was\npronounced\n\nTotal Duration\n\n 09 10 16\n\n O.S. NO.1522009\n\nBETWEEN\n Smt. Raama Devi, aged about 53\n years, W/o Chikkanna, No.11,\n Muniswamy Nagara, J.P. Nagara\n Extension, Mysore 8.\n : PLAINTIFF\n\n (Represented by Sri. K.R. Nagaraja, Advocate)\n V/S\n\n1. Smt. C. Nagarathna, aged 28 years,\n W/o Madaiah @ Mahadeva,\n\n2. Sri. Madaiah @ Mahadeva, aged 38\n years, S/o Mayigaiah,\n\nDefendants 1 and 2 are R/at D.\nNo.74, 12th Cross, 5th Main,\nChinnagiri Koppal, Jayanagara,\nMysore.\n\n3. Sri Sathyanarayana Padukote,\n aged about 39 years, S/o Subbarao,\n ( A Police constable working in\n Vijayanagara Police Station,\n Mysore) R/at D.No. 615, 1st Stage,\n Industrial Suburb, Vishveshwara\n Nagara, Mysore.\n\n4. The Government of Karnataka, By\n\nMysore District Deputy\n\nCommissioner, D.C. Office, Mysore.\n\n : DEFENDANTS\n\n(Defendants 3 & 4 are placed exparte and Defendant Nos.1\n& 2 are represented by Sri. Y.G., Advocate)\n\nDate of Institution of the suit 20022009\n Suit for declaration, for\nNature of the suit (suit on Mandatory Injunction and for\npronote, suit for declaration and Permanent Injunction\npossession, suit for injunction,\netc.,) 09092011\n\nDate of the commencement of 25012017\nrecording of the evidence\n\nDate on which Judgement was\npronounced\n\n Years\nTotal Duration 08 Months Days\n 11 05\n\n (M.K. ASHOK)\n I ADDITIONAL SENIOR CIVIL JUDGE,\n\n MYSURU.\n\n :COMMON JUDGMENT: The suit in OS. No. 6422011 has been filed by the Raamadevi and her daughter Smt. Padmini for Permanent Injunction. OS No.1522009 has been filed by Smt. Raamadevi for declaration, Mandatory Injunction and for Permanent Injunction. OS. No. 1522009 has been clubbed with OS.\nNo.6422011, both these suits are filed by Smt. Raamadevi, W/o Chikkanna. In OS. No. 6422011, the Plaintiff No.2 arrayed as party on the pleading that she has occupied the portion of the Suit Schedule Property. The facts as pleaded in both the plaints are one and the same. The Plaintiff No.2 in OS. No.6422011 only become formal party, therefore the Plaintiff No.1 in OS. 6422011 and Plaintiff in OS. No.152 2009 Smt. Raamadevi called as Plaintiff in both the suits for the purpose of convenience by ignoring Plaintiff No.2 in OS.\nNo.6422011.\n 2. The case of the Plaintiff in both the cases are as under: The Suit Schedule Properties originally belongs to the father of the Plaintiffs Sri. Maraiah. The Plaintiff Smt.\nRaamadevi is the only daughter of Maraiah. The wife of Maraiah i.e., Plaintiff's mother died 32 years ago, after that, Maraiah has not married. Maraiah working as a Gangman in the then Mysuru City Municipality and he having a sister by name Smt. Devamma. The Plaintiff's mother Chowdamma was the foster daughter of Smt. Devamma. Said Devamma owned a revenue site on which she had constructed a country tiled house at D.No.74, 12th Cross, 5th Main, Chinnagiri Koppal, Jayanagara, Mysuru. Maraiah also started living in that house along with his wife and sister Smt. Devamma till his death.\nMaraiah has demolished the old house and constructed a R.C.C. house in the said revenue site. The Defendants 1 and 2 are also started to live in the said revenue house. The Plaintiff having 4 daughters, the Defendant No.1 is the daughter of the Plaintiff No.1 and Defendant No.2 is the husband of the Defendant No.1. The Defendant No.1 and her husband are also lived in the Suit Schedule Properties. All the children of the Plaintiff got married and except the Defendant No.1, they set up separate family houses. The Defendant No.1 and her husband started to live in the revenue site house. The said Maraiah has chided the Defendant Nos.1 and 2 to set up separate home, but the Defendants 1 and 2 continued to live in the revenue site house. The Defendants 1 and 2 always tried to create ugly scenes in the revenue site house and Plaintiff has contemplated to move out of the revenue site house and establish her own separate residential house, but she has not leave her father Maraiah. The deceased Maraiah is the owner of the item No.1 of the property, which is situated at D. No.11, Muniswamy Nagara, J.P. Nagara Extension, Mysore, this property has a RCC roof protection and another an asbestos roof portion. Maraiah also owning another house which is more fully described in Item No.2 of the plaint. The Defendant No.3 in OS. No.1522009 was inducted as a tenant in plaint schedule Item No.2 property on a monthly rent of Rs.750/. The Plaintiff has occupied the RCC roof portion of the Item No.1 of the property about 5 to 6 years back. The Plaintiff from morning to evening taken care of Maraiah. The Plaintiff daughter one Smt. C. Padmini, who is the Plaintiff No.2 in OS. No.6422011 residing in the asbestos sheet roof portion of the Item No.1 of the property. The Plaintiff and her daughter C. Padmini have resided in the said property as per the wish of Maraiah. The Plaintiff and her daughter C.\nPadmini, are residing in the Item No.1 of the property peacefully. Maraiah was died on 04122006, the Defendant Nos.1 and 2 have started to come to plaint schedule Item No.1 of the property with unruly elements and started to threaten the Plaintiff and Smt. C. Padmini i.e., the Plaintiff No.2 in OS.\nNo.6422011, therefore the Plaintiffs have constrained to file a suit in OS. No.6422011 against the Defendants for Permanent Injunction.\n 3. The Plaintiff is the only daughter to Maraiah and she become the absolute owner of the Suit Schedule Properties.\nThe Defendant No.1 and 2 have creates a false documents and tried to contend that they are becomes the owners of plaint schedule 1 and 2 of the properties and denying the right, title and interest over the Suit Schedule Properties, therefore Plaintiffs have constrained to file a suit for declaration. The Plaintiffs in OS. No.6422011 have prayed to restrain the Defendants and their agents from interfering with the Plaintiffs' peaceful possession and enjoyment of the plaint schedule property. The Plaintiff in OS. No.1522009 has prayed to declare that she become the absolute owner of the plaint schedule Item No.1 and 2 of the properties, after the death of her father Maraiah and directing the Defendant No.3 to pay the monthly rent in respect of plaint schedule Item No.2 property to the Plaintiff and consequently restraining the Defendants 1 and 2 from interfering with the Plaintiffs' peaceful possession and enjoyment of plaint schedule item Nos.1 and 2 properties and etc.\n 4. The Defendants 1 and 2 in both the cases have appeared through their counsels and filed their Written Statements and denied the plaint averments. They have admits the relationship as claimed by the Plaintiffs. They have stated that Suit Schedule Properties belongs to one Maraiah and she is the foster father of Defendant No.2 and he has adopted him when the Defendant No.2 was a child. The Defendant No.2 is the son of Maraiah's sisterinlaw i.e., the son of Maraiah's wife's sister. The Plaintiff is the only daughter to Maraiah and he has performed the marriage of the Plaintiff and she has settled her life. The Defendant No.2 has lookafter Maraiah till the end of his life. The Defendant No.2 was lived with Maraiah right from the time of demise of his wife and till his death. Maraiah has settled the Item No.1 of the property in favour of the Defendant No.2 and Item No.2 of the property in favour of Defendant No.1 by means of registered Will dated:22 031995. The said Maraiah died on 04122006, the Defendant Nos.1 and 2 become the absolute owners of the Suit Schedule Properties by virtue of the Will. The katha of the Suit Schedule Properties came to their respective names and Defendants have paying taxes. After the death of Maraiah, the Defendant No.2 rented out the into one M.J. Ramesh, but said M.J. Ramesh forcibly removed from the premises after the Plaintiffs filed a suit in OS. No.2522007 and obtained an exparte order of injunction. The Plaintiffs have no manner of right, title and interest over the Suit Schedule Properties. The Defendants have stated that, Plaintiffs have not lookafter Maraiah at any point of time and Maraiah not having faith on her, therefore he has fostered the Defendant No.1. The Defendants have stated that, the Defendant No.1 has look after Maraiah till his death. Out of the love and affection, Maraiah has executed a Will dated:22031995. The Defendants have stated that the Plaintiffs have forcibly evicted the tenant M. J. Ramesh, by obtaining the exparte temporary injunction. The Defendants have stated that, Suit Schedule Properties are the selfacquired properties of Maraiah, he has executed a Will and by virtue of the said Will, the Defendants become the absolute owners of the Suit Schedule Properties.\nThe Defendants have prayed to dismiss the suit.\n 5. On the basis of the pleadings of the parties, following issues have been framed in OS. No.6422011.\n ISSUES 1) Whether Plaintiffs prove that, they are in lawful possession of the Suit Schedule Property?\n 2) Whether Plaintiffs prove the interference by Defendants?\n 3) Whether Plaintiffs are entitled for relief as prayed for?\n 4) What order or decree?\n Following issues have been framed in OS. No.1522009 1. Whether Plaintiff proves that after the death of her father on 04.12.2006 she became absolute owner of the Suit Schedule Properties?\n 2. Whether Plaintiff proves that she is in lawful possession and enjoyment of the Suit Schedule Property?\n 3. Whether Defendant No.1 and 2 proves that, Maraiah who was the owner of Suit Schedule Properties settled the item No.1 of the Suit Schedule Property upon 2nd Defendant and item No.2 of the Suit Schedule Property upon 1st Defendant by means of registered Will dated:22031995?\n 4. Whether Defendant No.1 and 2 proves that, after the death of Maraiah they became absolute owners of the Suit Schedule Properties by virtue of the said Will?\n 5. Whether Plaintiff is entitled for the relief of declaration and injunction?\n 6. Whether Plaintiff is entitled for the relief as sought for?\n 7. What order or decree?\n 6. In order to prove her case, the Plaintiff examined as PW.1 in OS. No.1522009 and she has produced and got marked the documents Ex.P.1 to P.9. On behalf of the Defendants, the Defendant No.1 examined as DW.1 in OS.\nNo.1522009 and she has produced and got marked the documents Ex.D.1 to D.8. The Defendant No.2 examined as DW.2 and he has produced and got marked the documents Ex.D.9 to D.16.\n 7. I have heard the arguments and perused the entire records of the case.\n 8. My findings on the above Issues are as under: Issue No.1 & 2 in OS. No. 6422011 : In the Affirmative Issue No.3 in OS. No. 6422011 : In the Affirmative Issue No.1 & 2 in OS. No.1522009 : In the Affirmative Issue No.3 & 4 in OS. No.1522009 : In the Negative Issue No.5 & 6 in OS. No.1522009 : In the Affirmative Issue No.7 : As per final order for the following: R E A S O N S 9. Issue Nos. 3 & 4 in OS. No.1522009: Since these two Issues are interconnected with each other, therefore taken together for consideration. It is not in dispute that Suit Schedule Properties are belongs to Maraiah.\nThe Plaintiff Smt. Raamadevi is the only daughter of Maraiah. The Defendant No.1 is the daughter of Plaintiff No.1 and Defendant No.2 is the husband of Defendant No.1. The father of the Plaintiff Maraiah died on 04122006. The Suit Schedule Properties are the selfacquired properties of Maraiah. According to the Plaintiffs, Maraiah died intestate, leaving behind the Plaintiff Raamadevi as a sole surviving legal heir. According to the Defendants 1 and 2, Maraiah has executed the registered Will dated:22031995 and bequeathed the Suit Schedule Properties in favour of the Defendant Nos.1 and 2.\n 10. The Defendants 1 and 2 have denied the contention of the Plaintiff that Maraiah has died intestate. The Plaintiff Raamadevi is the only daughter of Maraiah. If Maraiah was died intestate, the Plaintiff Raamadevi has succeeded the Suit Schedule Properties being the sole surviving class I heir of Maraiah. The answering of Issue No.1 is depending on the answering of Issue Nos.3 and 4, therefore Issue Nos.3 and 4 taken for consideration at first. In these two issues, proof of execution of the registered Will dated:22031995 is involved, therefore it is necessary to examine the evidence led by the parties in respect of the Will set up by the Defendants 1 and 2.\n 11. The Defendant No.1 examined as DW.1 and produced the Will as Ex.D.3. The Defendant No.2 has also examined as DW.2. DW.1 and DW.2 have stated that Maraiah has fostered the second Defendant and he has adopted the second Defendant when he was a child. They have stated that, mother of DW.2 and wife of Maraiah are the sisters. Maraiah has performed the marriage of her only daughter i.e., Plaintiff No.1 and settled her life and DW.2 has lookafter Maraiah, till his death. The said Maraiah has settled the Item Nos.1 and 2 of the properties in their favour by means of registered Will dated:22031995. They have stated that, said Maraiah died on 04122006 and by virtue of the Will, they became the absolute owners. The katha of the Suit Schedule Properties continued in their names by virtue of the Will and they have paid the tax and they have enjoyed the Suit Schedule Property as absolute owners.\n 12. Ex.D.3 Will is the registered document, but in the crossexamination as well as in the plaint, the Plaintiffs have denied the execution of the Will by Maraiah. It is her contention that, Will has been concocted by the Plaintiffs. In view of the specific denial, Plaintiff has to prove the Will. In order to prove the Will, the propounder of the Will has to examine at least one attesting witness to the Will. According to the Defendants, attesting witnesses to the Will were died, therefore they are unable to examine the attesting witness.\n 13. As per section 69 of the Indian Evidence Act, if no such attesting witnesses were found, the propounder of the Will has to call upon any of the witnesses who know the hand writing and signature of the person who has attested the Will. Here in this case, DW.1 and DW.2 have not chosen to call any witnesses, who know the signature and handwriting of the attesting witnesses to prove the Will. Even Defendants have not examined the scribe of the Will.\n 14. In the crossexamination, DW.1 has stated that she has found the Will in her grand father's house and his grand father has given the said Will and she has stated that, she do not know where the stamp paper has been purchased and where the Will has been written and she has stated that, she do not know the execution of the Will itself. In the cross examination, DW.2 has stated that, when he has get the Will, the attesting witnesses to the Will were alive and now they were died. He has stated that, he do not know when the witnesses to the Will were died and his brother Jogaiah has informed that attesting witnesses to the Will were died and he do not having personal knowledge of the death of attesting witnesses.\n 15. As per the evidence of DW.2, he does not know whether attesting witnesses were died or not. He has stated that his brother has informed him that they were died. DW.1 and DW.2 have not produced any evidence to show that attesting witnesses to the Will were died. The Defendants have not made any effort to prove that attesting witnesses to the Will were died and they have not made any effort to secure the witnesses, who know the signature and handwriting of the attesting witnesses. The learned counsel for the Defendants has argued that, all the witnesses to the Will were died, therefore the Defendants are unable examine the attesting witnesses to the Will. The katha of the schedule property has been transferred in the name of the Defendants by virtue of the Will and Will has been acted upon, therefore the nonexamination of the attesting witnesses is not fatal to the case of the Defendants.\n 16. As already discussed, the Defendants have not made any effort to prove that, the attesting witnesses to the Will were died and they were not made an attempt to examine the person who know the handwriting and signature of the attesting witnesses. DW.1 and DW.2 have not stated in their examination in chief that attesting witnesses to the Will were died. They have not examined the scribe of the Will, therefore the Defendants have not fulfill the legal requirement under Section 63 (3) of the Indian Succession Act, and 68 and 69 of the Indian Evidence Act, in proving the Will, therefore it cannot be said that, Plaintiffs have proved the execution of the Will.\n 17. Apart from fulfill the legal requirements, it is necessary to consider the probability of execution of the Will by the deceased Maraiah. It is the specific contention of the Plaintiff that Maraiah has not at all executed the Will and Defendants have taken some other person to the Sub Registrar Office and registered the Will in the name of Maraiah. The signature as found on the Will is not the signature of Maraiah. PW.1 has stated that, Maraiah seriously fell ill from several years. In the crossexamination of DW.1 and DW.2 also a suggestion was put to them that, Maraiah seriously ill from 12 to 15 years and he was paralyzed and he was also not mentally sound. When the Plaintiff has taken a contention that, Will in question is forged one and the testator was not in sound disposing state of mind at the time of execution of the Will, the propounder of the Will has to establish the sound disposing state of mind of the testator and has to remove the suspicious circumstances behind the execution of the Will, apart from examining the attesting witnesses to the Will.\n 18. Here in this case, the Defendants have not produced any evidence to show that, the testator of the Will was in sound disposing state of mind and he was able to understand his acts and deeds at the time of execution of the Will. The signature of Maraiah on the Will has been specifically denied by the Plaintiff. The Defendants have not chosen to prove that the signature as found on the Will Ex.D.3 is signature of Maraiah. Considering the cross examination of DW.1 and DW.2 and facts and circumstances of the case, it is made clear that there are several suspicious circumstances are existed around the execution of the Will and it is possible to infer that the deceased Maraiah has suffered from ill health from several years.\n 19. In the crossexamination, DW.2 has admits that his marriage was registered one and Ex.P.10 is the registration certificate. He has admits that his name was shown as Maraiah and 1st Defendant's father name was shown as Chikkalingaiah and his village and his residence was shown as Ramanahalli, instead of Damanahalli and he has furnished the false address to the SubRegistrar, while registering the marriage and obtained the marriage certificate. The learned counsel has contending that, the Defendant Nos.1 and 2 having the habit of creating the document and they are capable of creating the false document, therefore the alleged Will also might have created by the Defendant Nos.1 and 2 by taking someone to the sub registrar office. Though the above fact is not relevant to this suit, but it established the conduct of the Defendants.\n 20. DW.2 in the crossexamination has stated that, the deceased Maraiah was in J.S.S. Hospital, and he has given the key of the trunk and after the death of Maraiah, he found the Will in the said trunk. He has stated that, after one month of his death, he has get the Will and within two months, he has got transferred the katha. DW.1 has stated that, her grand father has given the Will to her. There is a contradiction between DW.1 and DW.2 in this regard.\nConsidering the evidence of DW1 and DW.2, I am of the opinion that, the Will is surrounded by suspicious circumstances and Defendants have failed to establish the Will by removing the suspicious circumstances. The Defendants 1 and 2 have failed to establish the valid execution of the Will by the deceased Maraiah. When the Defendants have failed to establish the Will, then they have also failed to establish that they become the absolute owners of the Suit Schedule Property by virtue of the Will. Just because, the katha transferred in the name of the Defendants, it is not a ground to hold that Defendants are the absolute owners of the Suit Schedule Property.\nAccordingly, I have answered Issue Nos.3 and 4 in the negative.\n 21. Issue No.1 and 2 in OS. No. 1522009 and Issue Nos.1 and 2 in OS. No.6422011: It is the case of the Plaintiff Raamadevi that she being the only daughter of Maraiah become the sole surviving legal heir of Maraiah and after his death, she become the absolute owner of the Suit Schedule Property. It is not in dispute that the Suit Schedule Properties are the properties of Maraiah and Plaintiff Smt. Raamadevi is the only daughter of Maraiah. PW.1 has stated that, she is the only daughter of Maraiah. While answering Issue Nos.3 and 4 it was held that, the Defendants have failed to establish the valid execution of the Will said to had been executed by the deceased Maraiah on 22031995, therefore the deceased Maraiah died intestate and Plaintiff Raamadevi being the daughter of Maraiah has succeeded the Suit Schedule Property.\n 22. The Defendants have denied the lawful possession of the Plaintiff over the Suit Schedule Property. It is necessary to examine whether the Plaintiff Smt. Raamadevi is in possession of the Suit Schedule Property.\n 23. PW.1 in her evidence has stated that, though she has constrained to live separately from Maraiah, due to the unpleasant situation created by the Defendants 1 and 2, but she used to serve Maraiah from morning to evening by staying with him. PW.1 has stated that, she has residing in the Item No.1 of the property in R.C.C. roof portion and Plaintiff No.2 in OS. No.6422011 has occupied the asbestos sheet roof portion of the Item No.1 of the property. The Defendant No.3 has inducted as a tenant in the Item No.2 of the property on a monthly rent of Rs.750/. The Defendant No.2 has claimed that he is the adopted son of deceased Maraiah, but he has failed to prove the adoption and he has also failed to prove the Will in his favour. The Plaintiff being the only daughter of Maraiah has succeeded the Suit Schedule Property. The father of the Plaintiff Maraiah was in possession of the Suit Schedule Property till his death. The Plaintiff has acquired the Suit Schedule Property by virtue of succession, therefore it is deemed that Plaintiff is in lawful possession of the Suit Schedule Property.\n 24. DW.1 has produced the demand register extract as Ex.D.5, tax paid receipts as Ex.D.6 to 8 to prove her possession, but the katha was transferred in the name of Defendants by virtue of the Will. The Defendants have failed to establish the Will, therefore just because the Defendants 1 and 2 have managed to transfer the katha by virtue of the Will, it cannot be said that Defendants are in possession of the Suit Schedule Property. The Plaintiff is the absolute owner of the property and Defendants have failed to establish the independent possession over the Suit Schedule Property, therefore it is necessary to infer that Plaintiff Raamadevi being the owner is in lawful possession of the Suit Schedule Property. DW.2 has produced certified copy of the registered sale deed as Ex.D.11. That sale deed is executed during the pendency of this suit, therefore said sale deed not having any consequence in this suit. The person purchased the property under the said sale deed does not derive any right title over the lawful possession of the property and he has bound by the decree. The Defendant No.2 in OS. No.1522009 has filed a suit against the Plaintiff in OS. No. 7292016. The certified copy of the plaint in OS. No.7292016 is marked as Ex.D.14, which discloses that Defendant No.2 has filed a suit for possession of the Item No.1 of the property. This fact also discloses that the Plaintiff is in possession of the Item No.1 of the Suit Schedule Property. The Plaintiff has established her title over the Suit Schedule Property as well as possession.\n 25. Insofar as Item No.2 of the property is concerned, according to the Plaintiff, 3rd Defendant Sri. Sathyanarayana Padukote was in possession of the Suit Schedule Property as a tenant. In the crossexamination DW.1 has admits this fact, but she has stated that they have sold that property.\nThe sale deed is produced as Ex.D.11. Item No.2 of the property has been occupied by the tenant, he is deemed to be tenant under the deceased Maraiah. The Plaintiff has acquired the property after his death, therefore she deemed to be owner in possession of the property. The Plaintiff has sought for Mandatory Injunction against the previous tenant Defendant No.3 to pay the monthly rent. But Defendant No.3 has vacated the premises during the pendency of this suit.\nThe Defendant Nos.1 and 2 have sold the property on the guise of the katha transferred in their names, by virtue of the Will. The Defendants have failed to establish the Will. The person who has purchased the property during the pendency of this suit not acquired any title over the property and his sale deed become empty sale deed, he is bound to deliver the possession of the property to the Plaintiff. The acquisition of the possession by the said purchaser is during the pendency of this suit, though the Plaintiff has not seeking the relief of possession, but acquiring the possession by the purchaser is during the pendency of this suit, therefore it is just and proper to mould the relief of Mandatory Injunction and to grant the relief of possession of the Item No.2 of the property.\nThough the purchaser is not a party to the suit, but he being the purchaser during the pendency of this suit, bound by the decree. It is pertinent to note that, after case is posted for judgment, Plaintiff has filed an application under Order 6 Rule 17 of CPC, for amendment of the plaint for seeking the relief of possession on the plea that the Defendant No.3 has vacated the Item No.2 of the property and Defendant No.1 and 2 have forcibly taken possession of the item No.2 of the property and sold to Sri. Sharathkumar, as per registered sale deed dated:26062014. That application has been dismissed by considering the stage in which it has been filed and also considering the fact that the fact pleaded by way of amendment is subsequent event and even without prayer, the court can mould the relief suitably. The Plaintiff is entitled for possession of the Item No.2 of the property, even though there is no specific prayer and subsequent purchaser is not a party to the suit. The purchaser has got the possession from the Defendant Nos.1 and 2 during the pendency of this suit. The Plaintiff is entitled to get possession of the Suit Schedule Property by executing decree against the Defendants 1 and 2 and their purchaser Sri.\nSharathkumar. Since the purchaser bound by the decree passed against the Defendants 1 and 2.\n 26. Insofar as interference is concerned, on the basis of the conduct of the Defendants, it possible to infer the interference. Accordingly, I have answered Issue No.1 and 2 in OS. No. 1522009 and Issue Nos.1 and 2 in OS. No.642 2011 in the affirmative.\n 27. Issue Nos.5 and 6 in OS. No. 1522009 and Issue No.3 in OS. No.6422011: The Plaintiff in both the cases has able to establish that she has succeeded the Suit Schedule Property after the death of her father Maraiaha and she is in lawful possession of the Suit Schedule Property, therefore Plaintiff is entitled for the relief of declaration and Permanent Injunction as well as possession of the Item No.2 of the property. Accordingly, I have answered these issues in the affirmative.\n 28. Issue No. 7 in OS. No.1522009 and Issue No.4 in OS. No.6422011: For the reasons discussed above, the Plaintiffs in both the cases are entitled for the relief as prayed for and I have proceed to pass the following: ORDER The suit of the Plaintiff in both the cases is hereby decreed with costs.\n It is hereby declared that the Plaintiff is the absolute owner of the Suit Schedule Properties.\n The Defendants, their men and agents are hereby restrained from interfering with the Plaintiffs' peaceful possession and enjoyment of the Suit Schedule Properties.\n The Plaintiff is entitled for possession of the Item No.2 of the property from the purchaser. The Defendant Nos.1 and 2 and their purchaser are hereby directed to hand over the vacant possession of the Suit Schedule Property.\n Draw decree accordingly.\n (Dictated to the Stenographer, transcribed by her, corrected by me and pronounced in the open court on 25th January 2017) (M.K. ASHOK) I ADDITIONAL SENIOR CIVIL JUDGE, MYSURU.\n ANNEXURE LIST OF WITNESS EXAMINED ON BEHALF OF THE PLAINTIFF PW.1 Smt. Raamadevi LIST OF DOCUMENTS MARKED ON BEHALF OF THE PLAINTIFF Ex.P.1 Death Certificate Ex.P.2 Tax paid receipt Ex.P.3 Self assessment Declaration statement Ex.P.4 Katha extract Ex.P.5 Certificate Ex.P.6 Demand register Ex.P.7 Copy of the legal notice Ex.P.8 COP Ex.P.9 Postal cover LIST OF WITNESS EXAMINED ON BEHALF OF THE DEFENDENTS DW.1 Smt. Nagarathna DW.2 Sri. Madaiah @ Mahadeva LIST OF DOCUMENTS MARKED ON BEHALF OF THE DEFENDENTS Ex.D.1 Identity Card Ex.D.2 Ration card Ex.D.3 Original Will dated:22031995 Ex.D.4 Death certificate Ex.D.5 Demand register Ex.D.6 to 8 Tax paid receipts Ex.D.9 Copy of legal notice Ex.D.10 Note written by Padmini Ex.D.11 Certified copy of the sale deed dated:2606 2014 Ex.D.12 Certified copy of the sale deed dated:2106 2008 Ex.D.13 Certified Copy of Order sheet in OS. No. 729 2016 Ex.D.14 Certified Copy of plaint in OS. No.7292016 Ex.D.15 Certified copy of Letter of rights Ex.D.16 Certified copy of Patta book issued by Panchayath (M.K. ASHOK) I ADDITIONAL SENIOR CIVIL JUDGE, MYSURU.\n "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "a38a2f38a6864fd9afa3e5516a473bd0",
"to_name": null,
"type": null,
"value": {
"end": 613,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nSONI DEVRAJBHAI BABUBHAI\n\nVs.\n\nRESPONDENT:\nSTATE OF GUJARAT AND ORS.\n\nDATE OF JUDGMENT28/08/1991\n\nBENCH:\nVERMA, JAGDISH SARAN (J)\nBENCH:\nVERMA, JAGDISH SARAN (J)\nSHARMA, L.M. (J)\n\nCITATION: 1991 SCR (3) 812\n 1991 AIR 2173 JT 1991 (3) 542\n 1991 SCC (4) 298\n 1991 SCALE (2)410\n\nACT:\nIndian Penal Code, 1860: Section 304-B (As inserted by Act\n43 of 1986)--Scope and object of--Dowry death-Death occuring\nprior to insertion of Section 304-B Section 304-B held\nprospective and consequently inapplicable--It contains a\nsubstantive provision creating a new offence and, does not\n"
}
},
{
"from_name": null,
"id": "2de6000a90564245a484d0782ab4aba6",
"to_name": null,
"type": null,
"value": {
"end": 693,
"labels": [
"PREAMBLE"
],
"start": 613,
"text": "merely effect a procedural change for trial of pre-existing\nsubstantive offence."
}
},
{
"from_name": null,
"id": "a33487abcf8d4022b9f422e25e40b937",
"to_name": null,
"type": null,
"value": {
"end": 743,
"labels": [
"PREAMBLE"
],
"start": 693,
"text": "\n\n Indian Evidence Act, 1872: Section 113-B."
}
},
{
"from_name": null,
"id": "6ab3ee5fc6274c9da90649013ac6dbc6",
"to_name": null,
"type": null,
"value": {
"end": 851,
"labels": [
"PREAMBLE"
],
"start": 744,
"text": "Presumption as\nto dowry death--Section 113-B contains rule of evidence to\nprove the offence of dowry death."
}
},
{
"from_name": null,
"id": "3768cdfcfd55402bad7addd0e27e207d",
"to_name": null,
"type": null,
"value": {
"end": 892,
"labels": [
"PREAMBLE"
],
"start": 851,
"text": "\nDowry Prohibition Act, 1961: Purpose of."
}
},
{
"from_name": null,
"id": "0032d27fd66c4319a586127b273b151c",
"to_name": null,
"type": null,
"value": {
"end": 1040,
"labels": [
"PREAMBLE"
],
"start": 901,
"text": "Constitution of India, 1950: Article 20(1) Protection\nagainst conviction for a new offence created subsequent to\nthe commission of offence."
}
},
{
"from_name": null,
"id": "98f767990f4b4e10afb489ed0e3e0880",
"to_name": null,
"type": null,
"value": {
"end": 1127,
"labels": [
"PREAMBLE"
],
"start": 1040,
"text": "\n\nHEADNOTE:\n Appellant's daughter was married to respondent No. 2 on\n\n15.12.1984."
}
},
{
"from_name": null,
"id": "a489ea78c43941a3b4c5ad5ea5a2c492",
"to_name": null,
"type": null,
"value": {
"end": 1150,
"labels": [
"PREAMBLE"
],
"start": 1128,
"text": "She died on 13.8.1986."
}
},
{
"from_name": null,
"id": "1f6851d9f5734296ad5f09e9e80c0aa7",
"to_name": null,
"type": null,
"value": {
"end": 1497,
"labels": [
"PREAMBLE"
],
"start": 1151,
"text": "The appellant filed a\ncriminal comp-. laint against the respondents viz. daugh-\nter's husband and his relatives for an offence under section\n498-A, triable by a Magistrate of First Class, 'read with\nsection 34 of the Indian Penal Code, 1860 alleging that his\ndaughter's death was unnatural resulting from torture by her\nhusband and his relatives."
}
},
{
"from_name": null,
"id": "6065187d22a2428ab1dab084325ecc89",
"to_name": null,
"type": null,
"value": {
"end": 1641,
"labels": [
"PREAMBLE"
],
"start": 1498,
"text": "By Act No. 43 of 1986, the Indian\nPenal Code was amended and Section 304-B, offence of dowry\ndeath, was inserted in the Code w.e.f. 19.11.1986."
}
},
{
"from_name": null,
"id": "b4541ba0872549f0852148024f20178e",
"to_name": null,
"type": null,
"value": {
"end": 1702,
"labels": [
"PREAMBLE"
],
"start": 1642,
"text": "Since the\nnewly inserted offence of dowry death was triable."
}
},
{
"from_name": null,
"id": "3a8f6cdbf7a543d9952b57c0c6bd4265",
"to_name": null,
"type": null,
"value": {
"end": 1872,
"labels": [
"PREAMBLE"
],
"start": 1703,
"text": "by a\nCourt of Session, the appellant flied an application before\nthe Magistrate for committing the case to the Caurt-of\nSession for trial of offence under section 304-B."
}
},
{
"from_name": null,
"id": "0c0f811b6ad343cfa34dd5f6e4b796b6",
"to_name": null,
"type": null,
"value": {
"end": 2185,
"labels": [
"PREAMBLE"
],
"start": 1873,
"text": "'The\nMagistrate dismissed his application by holding that the\namendment being prospective was inapplicable'to the case\nbecause the death had occurred prior to the amendment.\nThereafter the appellant filed an application in the High\nCourt for a direction to Commit the case of dowry death to\nthe Court of Session."
}
},
{
"from_name": null,
"id": "ac67c0517c6243029d2de2497c3628fd",
"to_name": null,
"type": null,
"value": {
"end": 2371,
"labels": [
"PREAMBLE"
],
"start": 2186,
"text": "The High Court also dismissed his\napplication by holding that since the offence was committed\nprior to the date of insertion of section304-B, the section was not applicable to the case."
}
},
{
"from_name": null,
"id": "5c35284f64134c67b702082a3e5fc11c",
"to_name": null,
"type": null,
"value": {
"end": 2727,
"labels": [
"PREAMBLE"
],
"start": 2372,
"text": "In appeal\n\nto this Court on the question whether section 304-B of the\nIndian Penal Code was applicable to a case of dowry death\nwhere the death has occurred prior to the insertion of\nSection 304-B, it was contended on behalf of the appellant\nthat section 304-B of the Indian Penal Code does not create\na new offence and contains merely a rule of evidence."
}
},
{
"from_name": null,
"id": "fa4b7d32f5d347a0bf257da1d5bf4984",
"to_name": null,
"type": null,
"value": {
"end": 2779,
"labels": [
"PREAMBLE"
],
"start": 2727,
"text": "\nDismissing the appeal, this Court,\n\n HELD: 1."
}
},
{
"from_name": null,
"id": "33e66ee1a3da4b3597842945566c174d",
"to_name": null,
"type": null,
"value": {
"end": 3115,
"labels": [
"PREAMBLE"
],
"start": 2780,
"text": "The offence of dowry death punishable under\nsection 304-B of the Indian Penal Code is a new offence\ninserted in the code with effect from .19.11.1986 when Act\nNo. 43 of 1986 came into force The said offence is punisha-\nble with a minimum sentence of seven years which may extend\nto life imprisonment and is triable by Court of Session."
}
},
{
"from_name": null,
"id": "d87d9dc6cb6542cbaebe93a5f189be06",
"to_name": null,
"type": null,
"value": {
"end": 3279,
"labels": [
"PREAMBLE"
],
"start": 3116,
"text": "The\ncorresponding amendments made by Act No. 43 of 1986 in the\nCode of Criminal Procedure and the Indian Evidence Act\nrelate to the trial and proof of the offence."
}
},
{
"from_name": null,
"id": "40ce1122698b4c1e98c0fe6de0d0ad37",
"to_name": null,
"type": null,
"value": {
"end": 3347,
"labels": [
"PREAMBLE"
],
"start": 3280,
"text": "Section 498-A\ninserted in the Indian Penal Code by the Criminal Law"
}
},
{
"from_name": null,
"id": "e6fd3b5247ad43d396377555f9c3ba31",
"to_name": null,
"type": null,
"value": {
"end": 3376,
"labels": [
"PREAMBLE"
],
"start": 3347,
"text": "\n(Second Amendment) Act, 1983"
}
},
{
"from_name": null,
"id": "bc63e794e42c4b6b9a9f34a7e0ac1b24",
"to_name": null,
"type": null,
"value": {
"end": 3537,
"labels": [
"PREAMBLE"
],
"start": 3377,
"text": "is an offence triable by a\nMagistrate of the First Class and is punishable with impris-\nonment for a term which may extend to three years in addi-\ntion to fine."
}
},
{
"from_name": null,
"id": "5e99621f559446b3bc32c148e51255c0",
"to_name": null,
"type": null,
"value": {
"end": 3826,
"labels": [
"PREAMBLE"
],
"start": 3538,
"text": "The offence of dowry death punishable under\nsection 304-B provides for a more stringent offence than\nsection 498-A. Section 304-is a substantive provision creat-\ning a new offence and not merely a provision effecting a\nchange in procedure for trial of a pre-existing substanative\noffence."
}
},
{
"from_name": null,
"id": "ac778c1f32b4430ca1e9753fb1b28cb9",
"to_name": null,
"type": null,
"value": {
"end": 4093,
"labels": [
"PREAMBLE"
],
"start": 3827,
"text": "The rule of evidence to prove the offence of dowry\ndeath is contained in section 113-B of the Indian Evidence\nAct providing for presumption as to dowry death which was a\nsimultaneous amendment made in the Indian Evidence Act for\nproving 'the offence of dowery death."
}
},
{
"from_name": null,
"id": "1293b908c12c42649f6e5e597a376fb1",
"to_name": null,
"type": null,
"value": {
"end": 4287,
"labels": [
"PREAMBLE"
],
"start": 4094,
"text": "The fact that the\nIndian Evidence Act was so amended simul taneously with the\ninsertion of section 304-B in the Indian Penal code by the\nsame Amendment Act is another pointer in this direction."
}
},
{
"from_name": null,
"id": "d079d9e1115c4537aaf75132dea8e473",
"to_name": null,
"type": null,
"value": {
"end": 4407,
"labels": [
"PREAMBLE"
],
"start": 4287,
"text": "\nThere fore, it cannot be held that section 304-B. does not\ncreate a new offence and contains merely a rule of evidence."
}
},
{
"from_name": null,
"id": "e2175a927a894352818fe93c692c2060",
"to_name": null,
"type": null,
"value": {
"end": 4427,
"labels": [
"PREAMBLE"
],
"start": 4408,
"text": "[818D-F, 819C-D]\n2."
}
},
{
"from_name": null,
"id": "6edfba6e945545919377be2ccd9faf94",
"to_name": null,
"type": null,
"value": {
"end": 4971,
"labels": [
"PREAMBLE"
],
"start": 4428,
"text": "The respondents are being tried in the Court of Magis-\ntrate of .the First Class for the offence punishable under\nsection 498-A which was in the statute book on the date of\ndeath of Appellant's daughter Their trial and punishment for\nthe offence of dowry death provided in section 304-B of the\nIndian Penal Code 'with the minimum sentence of seven years'\nimprisonment for an act done by them prior to creation of\nthe new offence of dowry death would clearly deny to them\nthe protection afforded by clause (1) of Article 20 of the\nConstitution."
}
},
{
"from_name": null,
"id": "9e6c481cfa8a49049999cd597b719ce9",
"to_name": null,
"type": null,
"value": {
"end": 5275,
"labels": [
"PREAMBLE"
],
"start": 4972,
"text": "Accord ingly, the view taken by the High Court\nthat the respondents cannot betried and punished for the offence provided in section 304-B\nof the Indian Penal Code which is a new offence created\nsubsequent to the commission of the offence attributed to\nthe respondents does not suffer from any infirmity."
}
},
{
"from_name": null,
"id": "f416c786931943d89d1f93f50f272267",
"to_name": null,
"type": null,
"value": {
"end": 5302,
"labels": [
"PREAMBLE"
],
"start": 5276,
"text": "[818E,\nG, 819E]\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "86a4eddb2d974991b26986045977fe5c",
"to_name": null,
"type": null,
"value": {
"end": 5375,
"labels": [
"NONE"
],
"start": 5302,
"text": "\n CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.\n 533of 1991."
}
},
{
"from_name": null,
"id": "3482699aa4124d5f85d396714df3b690",
"to_name": null,
"type": null,
"value": {
"end": 5507,
"labels": [
"NONE"
],
"start": 5383,
"text": "From the Judgment and Order dated 10.1. 1989 of the Gujarat High Court in Miscellaneous Criminal Application No.\n32 of 1989."
}
},
{
"from_name": null,
"id": "ea65699216f64db08e423ac01b7ba5f6",
"to_name": null,
"type": null,
"value": {
"end": 5538,
"labels": [
"NONE"
],
"start": 5507,
"text": "\nH.S. Zaveri for the Appellant."
}
},
{
"from_name": null,
"id": "848a410988914025a6fc3dc33ab4c3de",
"to_name": null,
"type": null,
"value": {
"end": 5586,
"labels": [
"NONE"
],
"start": 5538,
"text": "\n Dushayant Dave, Ashish Verma and Anip Sachthey"
}
},
{
"from_name": null,
"id": "2c7c43a055b6424499df4b2fe9244b58",
"to_name": null,
"type": null,
"value": {
"end": 5608,
"labels": [
"NONE"
],
"start": 5586,
"text": ". for the Respondents."
}
},
{
"from_name": null,
"id": "50ea24f91f044919abb2bb9fb0ddb866",
"to_name": null,
"type": null,
"value": {
"end": 5812,
"labels": [
"FAC"
],
"start": 5610,
"text": "The Judgment of the Court was delivered by VERMA, J. Petitioner's daughter Chhaya Was married to Respondent No. 2 Satish on5. 12. 1984 and they started living together in their marital home at Bagasara."
}
},
{
"from_name": null,
"id": "edf057d01e2b4461966bdeb1a5df1e34",
"to_name": null,
"type": null,
"value": {
"end": 5852,
"labels": [
"FAC"
],
"start": 5813,
"text": "On 13.8.\n1986, Chhaya died at Bagasara."
}
},
{
"from_name": null,
"id": "891fee92813e46c6b31c514f0593f29c",
"to_name": null,
"type": null,
"value": {
"end": 6030,
"labels": [
"FAC"
],
"start": 5853,
"text": "The petitioner and his wife got some vague information about their daughter Chhaya and went to Bagasara, the same day but were unable to meet or see their daughter who had died."
}
},
{
"from_name": null,
"id": "87279667a7f54b7e8d9a8a19d216ab27",
"to_name": null,
"type": null,
"value": {
"end": 6154,
"labels": [
"FAC"
],
"start": 6031,
"text": "The petitioner suspected that their daughter's death was unnatural resulting from torture by her husband and his relatives."
}
},
{
"from_name": null,
"id": "ed96df10786c4d9d98e0adb096f00e88",
"to_name": null,
"type": null,
"value": {
"end": 6313,
"labels": [
"FAC"
],
"start": 6155,
"text": "The petitioner filed a criminal complaint against Respondent Nos. 2 to 5, who are the husband, his parents and sister which was trans- ferred to the Court of."
}
},
{
"from_name": null,
"id": "a6049e78a18a4ed1beb0794a1f27ab85",
"to_name": null,
"type": null,
"value": {
"end": 6465,
"labels": [
"FAC"
],
"start": 6314,
"text": "Judicial Magistrate First Class at Dhari and registered as Criminal Case No. 382 of 1988 for an offence under section 498-A read with section 34 I.P.C."
}
},
{
"from_name": null,
"id": "f7d124898bc7452a946a159203ac14c8",
"to_name": null,
"type": null,
"value": {
"end": 6697,
"labels": [
"FAC"
],
"start": 6466,
"text": "The petitioner filed an application for committing the case to the Court of Session for trial for .an offencepunishable under section 304-B I.P.C. which was inserted in the Indian Penal Code by Act No. 43 of 1986 w.e.f. 19.11.1986."
}
},
{
"from_name": null,
"id": "f8894c0122984e5f9251e284bc746173",
"to_name": null,
"type": null,
"value": {
"end": 6905,
"labels": [
"FAC"
],
"start": 6698,
"text": "On 29.11.1988, the Learned Magistrate dismissed the petition- er's application holding that this amendment being prospec- tive was inapplicable to a death which occurred on 13.8.1986, prior to the amendment."
}
},
{
"from_name": null,
"id": "c192841eaa174225b9214b73c08577a3",
"to_name": null,
"type": null,
"value": {
"end": 7205,
"labels": [
"FAC"
],
"start": 6906,
"text": "Aggrieved by this order, the petitioner moved an application (Misc. Criminal Applica- tion No. 32 of 1989) in the High Court of Gujarat .for a direction to commit this case of dowry death to 'the Court of Session since an 'offence punish-able under section 304-B is triable by the Court of Session.'"
}
},
{
"from_name": null,
"id": "017c0b57912743f6b9e8fc77c8cd10e0",
"to_name": null,
"type": null,
"value": {
"end": 7298,
"labels": [
"FAC"
],
"start": 7206,
"text": "By the impugned order dated January 10, 1989, the High Court has dismissed that application."
}
},
{
"from_name": null,
"id": "da0bb20fec5143f8af6ae6846891db86",
"to_name": null,
"type": null,
"value": {
"end": 7333,
"labels": [
"FAC"
],
"start": 7299,
"text": "Hence this special leave petition."
}
},
{
"from_name": null,
"id": "a1a8f2983ae44eeba257b02e8d788796",
"to_name": null,
"type": null,
"value": {
"end": 7350,
"labels": [
"FAC"
],
"start": 7333,
"text": "Leave is granted."
}
},
{
"from_name": null,
"id": "712d1893b0784963912ac1b79711cd63",
"to_name": null,
"type": null,
"value": {
"end": 7584,
"labels": [
"ISSUE"
],
"start": 7350,
"text": "\n The point arising for our decision is the applicability of section 304-B of the Indian Penal Code to the present case where the death alleged to be a dowry death occurred prior to insertion of section 304-B in the Indian Penal Code."
}
},
{
"from_name": null,
"id": "af96b1ccce644e48bccb080d2546c050",
"to_name": null,
"type": null,
"value": {
"end": 7686,
"labels": [
"ANALYSIS"
],
"start": 7585,
"text": "This is the only ground on which the. appellant claims trial of the case in the Court of Session. .\n."
}
},
{
"from_name": null,
"id": "5727499235e843b28036300115f3f039",
"to_name": null,
"type": null,
"value": {
"end": 7926,
"labels": [
"ANALYSIS"
],
"start": 7688,
"text": "The reason.given by the High Court to support its view is that the offence was committed prior to the date of insertion of section 304-B in the Indian Penal Code on account of which the section can have no application to the present case."
}
},
{
"from_name": null,
"id": "48fa0bf649ab455497f3c64b004fca1c",
"to_name": null,
"type": null,
"value": {
"end": 8073,
"labels": [
"ANALYSIS"
],
"start": 7927,
"text": "None of the courts below. has examined the applicability .of any other pre-existing more stringent provision even if section 304-B does not apply."
}
},
{
"from_name": null,
"id": "43301f1c4a734dc5bb27e638278a8165",
"to_name": null,
"type": null,
"value": {
"end": 8267,
"labels": [
"ANALYSIS"
],
"start": 8074,
"text": "As such affirmation of the view that section 304-B does not apply, will not preclude the appellant from contending that any other more stringent provision is attracted on the accusa- tion made."
}
},
{
"from_name": null,
"id": "28436be5671d42048cb1b73c1df85a08",
"to_name": null,
"type": null,
"value": {
"end": 8381,
"labels": [
"ANALYSIS"
],
"start": 8268,
"text": "If that point is raised, the courts below will have to decide the same on merits on the basis of accusation made."
}
},
{
"from_name": null,
"id": "a7704085f4e047fd95d5e7e945e10c4f",
"to_name": null,
"type": null,
"value": {
"end": 8744,
"labels": [
"ANALYSIS"
],
"start": 8382,
"text": "It is in this background that the point raised by the appellant regarding applicability of section 304-B is decid- ed by us.. .\n Section 304-B and the cognate provisions are meant for eradication of the social evil of dowry which has been the bane of Indian society 'and continues unabated in spite of emanicipation of women and the women's liberation movement.\n"
}
},
{
"from_name": null,
"id": "644c81127df3438dad1e37a88ebd9d3a",
"to_name": null,
"type": null,
"value": {
"end": 8903,
"labels": [
"ANALYSIS"
],
"start": 8744,
"text": "This all prevading malady in our society has only a few lucky exception in spite of equal treatment and opportunity to boys and girls for education and career."
}
},
{
"from_name": null,
"id": "a1de2300a51e48f2a6da99c75c6bfe3e",
"to_name": null,
"type": null,
"value": {
"end": 9059,
"labels": [
"ANALYSIS"
],
"start": 8904,
"text": "Society contin- ues to perpetuate the difference between them for the pur- pose of marriage and it is this distinction which makes the dowry system thrive."
}
},
{
"from_name": null,
"id": "d1f6be86887949b7bd92709b1e532c41",
"to_name": null,
"type": null,
"value": {
"end": 9327,
"labels": [
"ANALYSIS"
],
"start": 9060,
"text": "Even though for eradication of this social evil, effective steps can be taken by the society itself and the social sanctions of the community can be more deterrent, yet legal sanctions in the form of its .prohibi- tion and punishment are some steps in that direction."
}
},
{
"from_name": null,
"id": "fb27639196ac4c91ba0c417d2051c2e0",
"to_name": null,
"type": null,
"value": {
"end": 9389,
"labels": [
"ANALYSIS"
],
"start": 9328,
"text": "The Dowry Prohibition Act, 1961 was enacted for this purpsoe."
}
},
{
"from_name": null,
"id": "8959670d7e604c0e80967d107694a2ae",
"to_name": null,
"type": null,
"value": {
"end": 9979,
"labels": [
"ANALYSIS"
],
"start": 9389,
"text": "\nThe Report of the Joint Committee of Parliament quoted the observations of Jawaharlal Nehru to indicate the role of legislation in dealing with the social evil as under: \" Legislation .cannot by itself normally solve deep-rooted social problems, One has to ap- proach them in other ways too, but legislation is necessary and essential, so that it may give that push and have that educative factor as well as the legal sanctions behind it which help public opinion to be given a certain shape.\" The enactment of Dowry Prohibition Act, 1961 in its original form was found inadequate."
}
},
{
"from_name": null,
"id": "f3ad4a1e966649ea9426403305aa9114",
"to_name": null,
"type": null,
"value": {
"end": 10208,
"labels": [
"ANALYSIS"
],
"start": 9980,
"text": "Experience shows that the demand of dowry and the mode of its recovery takes different forms to achieve the same result and various indirect and sophisticated methods are being used to 'avoid leaving any evidence of the offence."
}
},
{
"from_name": null,
"id": "316401d9b1aa419d99cb03c6f501f33f",
"to_name": null,
"type": null,
"value": {
"end": 10445,
"labels": [
"ANALYSIS"
],
"start": 10209,
"text": "Similarly, the conse- quences of non-fulfilment of the demand of dowry meted out to the unfortunate bride takes different forms to avoid any apparent causal connection between the demand of dowry and its prejudicial effect on the bride."
}
},
{
"from_name": null,
"id": "a154e2873c2a48718eae13b0661c11b4",
"to_name": null,
"type": null,
"value": {
"end": 10553,
"labels": [
"ANALYSIS"
],
"start": 10446,
"text": "This experience has led to several other legislative measures in the continuing battle to combat this evil."
}
},
{
"from_name": null,
"id": "a25cc6b593f444d7b687fd1cbb6d3fe9",
"to_name": null,
"type": null,
"value": {
"end": 10746,
"labels": [
"ANALYSIS"
],
"start": 10553,
"text": "\n The Criminal Law (Second Amendment) Act, 1983 (No. 45 of 1983) was an act further to amend the Indian Penal Code, the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872."
}
},
{
"from_name": null,
"id": "cd63d03fe54b4a32b5d432e6f83e8719",
"to_name": null,
"type": null,
"value": {
"end": 10974,
"labels": [
"ANALYSIS"
],
"start": 10747,
"text": "Section 498-A was inserted in the Indian Penal Code and corresponding amendments were made in the Code of Criminal Procedure which included section 198A .therein and also inserted section 113A in the Indian Evidence Act,.\n1872."
}
},
{
"from_name": null,
"id": "eabce2123e4949e08cfbd69c532961b1",
"to_name": null,
"type": null,
"value": {
"end": 11246,
"labels": [
"ANALYSIS"
],
"start": 10975,
"text": "Thereafter, the Dowry Prohibition (Amendment) Act, 1986 (No. 43 of 1986) was enacted further to amend the Dowry Prohibition .Act, 1961 and to make certain .necessary changes in the Indian Penal Code, the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872."
}
},
{
"from_name": null,
"id": "7f0e1a8aa32d4fa8b31253addea7940a",
"to_name": null,
"type": null,
"value": {
"end": 11486,
"labels": [
"STA"
],
"start": 11246,
"text": "\n Two of the salient features of the Dowry Prohibition (Amendment) Act, 1986 (No. 43 of 1986) stated in the State- ment of Objects and Reasons of the Bill are as under: \"(e) Offences under the Act are proposed to be made non-bailable."
}
},
{
"from_name": null,
"id": "09fb171d175e45fdb6a2577c5678f71c",
"to_name": null,
"type": null,
"value": {
"end": 11748,
"labels": [
"STA"
],
"start": 11486,
"text": "\n \"(g) A new offence of \"dowry death\"\n is proposed to be included in the Indian Penal Code and the necessary consequential amend- ments in the Code of Criminal Procedure, 1973 and in the Indian Evidence Act, 1872 have also been proposed.\""
}
},
{
"from_name": null,
"id": "f97f499ec3d94531a313c9117ce8626f",
"to_name": null,
"type": null,
"value": {
"end": 11948,
"labels": [
"ANALYSIS"
],
"start": 11749,
"text": "Accordingly by section 7 of the Amendment Act, section 8 of the Dowry' Prohibition' Act, 1961 was amended to make every Offence under this Act non-bailable while continuing it to be non-compoundable."
}
},
{
"from_name": null,
"id": "227e7a0397e44e93a9e4cf1317071486",
"to_name": null,
"type": null,
"value": {
"end": 12137,
"labels": [
"STA"
],
"start": 11949,
"text": "By sections 10, 11 and 12, amendments were made in the Indian Penal Code, Code of Criminal Proce- dure, 1973 and the Indian' Evidence Act, 1872, as part of the same scheme as follows: \"10."
}
},
{
"from_name": null,
"id": "8c0693f815e74677854c8eff723db53f",
"to_name": null,
"type": null,
"value": {
"end": 12255,
"labels": [
"STA"
],
"start": 12138,
"text": "In the Indian Penal Code, after, section 304-A, the following section shall be inserted, namely: '304-B. Dowry death."
}
},
{
"from_name": null,
"id": "04cd59101fae4fbf8b6d520f796820e9",
"to_name": null,
"type": null,
"value": {
"end": 12710,
"labels": [
"STA"
],
"start": 12256,
"text": "(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise then under normal circumstances within seven years of her marriage and it is shown that .soon before her death she was subjected to cruelty or harass- ment by her husband or any relative of her husband for, Or in connection with, any demand for dowry such death shall be called \"dowry death\", and such husband or relative shall be deemed to have caused her death."
}
},
{
"from_name": null,
"id": "2fa94f8d20414ba8b20f65c85b1d2e06",
"to_name": null,
"type": null,
"value": {
"end": 12867,
"labels": [
"STA"
],
"start": 12710,
"text": "\n Explanation-For the purposes of this sub-section, ,'dowry\". shall have the same meaning as in section 2 of the Dowry Prohibi- tion Act, 196 1 (28 of 1961)."
}
},
{
"from_name": null,
"id": "d2b7af4972b84ece8bdb32a9a86fafde",
"to_name": null,
"type": null,
"value": {
"end": 13034,
"labels": [
"STA"
],
"start": 12867,
"text": "\n (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for \"11."
}
},
{
"from_name": null,
"id": "d28f0519cb6f431e8a509adc599baf44",
"to_name": null,
"type": null,
"value": {
"end": 13279,
"labels": [
"STA"
],
"start": 13035,
"text": "In the Code of Criminal Proce- dure, 1973, in the First Schedule after the entries relating to section 304-A, the follow- ing entries shall be inserted, namely: Section Offence Punishment COgnizable Bailable or By what or non- non-bail- Court"
}
},
{
"from_name": null,
"id": "7f40bfdc1fcd4cabb8e2dac295613e9b",
"to_name": null,
"type": null,
"value": {
"end": 13479,
"labels": [
"STA"
],
"start": 13280,
"text": "cognizable able tribale \"304-B ' Dowry Imprison- Ditto Non- Court of death ment of not bailable ' Session.\"\n lesS' than seven years but which may extend to imprisonment for life."
}
},
{
"from_name": null,
"id": "9e8eef9be7f84b069f833ce3cd5de07e",
"to_name": null,
"type": null,
"value": {
"end": 13487,
"labels": [
"STA"
],
"start": 13479,
"text": "\n ' \"12."
}
},
{
"from_name": null,
"id": "90d4f428b2e247a1bc9fd9365a2af54d",
"to_name": null,
"type": null,
"value": {
"end": 13758,
"labels": [
"STA"
],
"start": 13488,
"text": "In the Indian Evidence Act, 1872, after section 113-A, the following section shall be insert- ed, namely:- \"11.3-B. Presumption as to dowry death.-When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her 'death."
}
},
{
"from_name": null,
"id": "0631d388438941769131f7646953b575",
"to_name": null,
"type": null,
"value": {
"end": 13948,
"labels": [
"STA"
],
"start": 13759,
"text": "such woman has been subjected by such .person to cruelty Or harassment for, or in connecting with, any demand for dowry, the Court shall presume that such person had caused the dowry death."
}
},
{
"from_name": null,
"id": "9d3ed09cb5f34df482b5f91ed9476afc",
"to_name": null,
"type": null,
"value": {
"end": 14100,
"labels": [
"STA"
],
"start": 13948,
"text": "\n Explanation.-For the purpose of this section', \"dowry death\" shall have the same meaning as in section 304-B of the Indian Penal Code (45 of 1860).\"\n "
}
},
{
"from_name": null,
"id": "eadedfe4dc6d42de8343358a1aa1b317",
"to_name": null,
"type": null,
"value": {
"end": 14357,
"labels": [
"ANALYSIS"
],
"start": 14100,
"text": "It is clear from the above historical background that the offence of dowry death punishable under section 304-B of the Indian Penal Code is a new offence inserted in the Indian Penal Code with effect from 19.11.1986 when Act No.\n 43 of 1986 came into force."
}
},
{
"from_name": null,
"id": "64eb62257f274b0ba30293be6c4686e8",
"to_name": null,
"type": null,
"value": {
"end": 14516,
"labels": [
"ANALYSIS"
],
"start": 14358,
"text": "The offence under section 304-B is punishable with a minimum sentence of seven years which may extend to life imprisonment and is triable by Court of Session."
}
},
{
"from_name": null,
"id": "20d4835a27944a6ea5f09ce17e9c14d5",
"to_name": null,
"type": null,
"value": {
"end": 14658,
"labels": [
"ANALYSIS"
],
"start": 14517,
"text": "The corresponding amendments made in the Code of Criminal Procedure and the Indian Evidence Act relate to the trial and proof of the offence."
}
},
{
"from_name": null,
"id": "a4bc72b461c94b21a1b5d32d6820b153",
"to_name": null,
"type": null,
"value": {
"end": 14932,
"labels": [
"ANALYSIS"
],
"start": 14659,
"text": "Section 498;A inserted in the Indian Penal Code by the Criminal Law (Second Amendment)Act, 1983 (Act No. 46 of 1983) is an offence triable by a Magistrate of the First Class and is punishable with imprisonment for a term which may extend to three years in addition to fine."
}
},
{
"from_name": null,
"id": "572b9f4588c8451da31f3a72b8b20324",
"to_name": null,
"type": null,
"value": {
"end": 15130,
"labels": [
"ANALYSIS"
],
"start": 14933,
"text": "It is for the offence punishable under section 498-A which was in the statute book on the date of death of Chhaya that the respondents are being tried in the Court of Magistrate of the First Class."
}
},
{
"from_name": null,
"id": "d1a736c1a7354a0eae246ded4b28da33",
"to_name": null,
"type": null,
"value": {
"end": 15369,
"labels": [
"ANALYSIS"
],
"start": 15131,
"text": "The offence punisha- ble under section 304-B, known as. dowry death, was a new offence created with effect .from 19.11.1986 by insertion of the provision in the Indian Penal Code providing for a more stringent offence' than section 498-A."
}
},
{
"from_name": null,
"id": "e5bf3f2d2cc14cf6bc10754ba3fc0453",
"to_name": null,
"type": null,
"value": {
"end": 15542,
"labels": [
"ANALYSIS"
],
"start": 15370,
"text": "Section 304-B is a substantive provision creating a new offence and not merely a provision effecting a, change in procedure for trial of a pre-existing substantive offence."
}
},
{
"from_name": null,
"id": "ac493cb929784e39a03d3b883af87197",
"to_name": null,
"type": null,
"value": {
"end": 15872,
"labels": [
"ANALYSIS"
],
"start": 15543,
"text": "Acceptance of the appel- lant's contention would amount to holding that the respond- ents can be tried and punished for the offence of dowry death provided in section 304-B of the Indian Penal Code with the minimum sentence of seven years' imprisonment for an act done by them prior to creation of the new offence of dowry death."
}
},
{
"from_name": null,
"id": "6cf96aff56c64c3ca0602902d7b0e0a0",
"to_name": null,
"type": null,
"value": {
"end": 16072,
"labels": [
"STA"
],
"start": 15873,
"text": "In our opinion, this would clearly deny to them the protection afforded by clause (1) of Article 20 of the Constitution which reads as under: \"20.. Protection in respect of con- viction for offences."
}
},
{
"from_name": null,
"id": "8b85f4ce91184750abd3354281de8144",
"to_name": null,
"type": null,
"value": {
"end": 16383,
"labels": [
"STA"
],
"start": 16073,
"text": "--(1) No person shall be convicted of any offence except for violation of the law in force at the time of the commis- sion of the act charged as an offence, 'nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. ' '"
}
},
{
"from_name": null,
"id": "74e40a412c8d4b7ca8b0ab2fc159591e",
"to_name": null,
"type": null,
"value": {
"end": 16493,
"labels": [
"STA"
],
"start": 16384,
"text": "\" In our opinion ,. the protection given by Article 20(1) is a complete answer to the appellant's contention."
}
},
{
"from_name": null,
"id": "39464e223b8c4eef9d3b7bcfc95f175c",
"to_name": null,
"type": null,
"value": {
"end": 16685,
"labels": [
"ANALYSIS"
],
"start": 16493,
"text": "\n The contention 'of learned counsel 'for the appellant that section 304-B inserted in the Indian Penal Code does not create a new offence and' contains merely a rule of evidence is untenable."
}
},
{
"from_name": null,
"id": "c2965ce41c7e49b8a8eda73763a8ce45",
"to_name": null,
"type": null,
"value": {
"end": 16951,
"labels": [
"ANALYSIS"
],
"start": 16686,
"text": "The rule of evidence to prove the offence of dowry death is contained in section 113-B of the Indian Evidence Act providing for presumption as to dowry death which was a simultaneous' amendment made in the Indian Evidence Act for proving the offence of dowry death."
}
},
{
"from_name": null,
"id": "c31d938e3f0145c5a1330a451f0e397b",
"to_name": null,
"type": null,
"value": {
"end": 17148,
"labels": [
"ANALYSIS"
],
"start": 16952,
"text": "The fact that the Indian Evidence Act was so amended simultane- ously with the insertion of section 304-B in the Indian Penal' Code by the same Amendment Act is' another pointer in this direction."
}
},
{
"from_name": null,
"id": "4f4e9c500e8b4e4ea87b90c03ba1ba27",
"to_name": null,
"type": null,
"value": {
"end": 17189,
"labels": [
"ANALYSIS"
],
"start": 17149,
"text": "This contention is, therefore, rejected."
}
},
{
"from_name": null,
"id": "549d0748813e4fa380f094634a8fd469",
"to_name": null,
"type": null,
"value": {
"end": 17498,
"labels": [
"RATIO"
],
"start": 17191,
"text": "In follows that the view taken by the High Court that the respondents cannot be tried and punished for the offence provided in section 304-B of the Indian Penal Code which is a new offence created subsequent 'to the commission of the offence attributed to the respondents does not suffer from any infirmity."
}
},
{
"from_name": null,
"id": "8e6ab15b727d47d59b329e215ad41987",
"to_name": null,
"type": null,
"value": {
"end": 17829,
"labels": [
"ANALYSIS"
],
"start": 17499,
"text": "However, as earlier indicated, in case the accusation against the respondents discloses commission of any other more stringent pre-existing offence by the re- spondents than section 498-A of the Indian Penal Code, the appellant would be entitled to raise that question and the Court will then consider and decide it on that basis."
}
},
{
"from_name": null,
"id": "5f3c0dbfa5014427921edc0372fe1856",
"to_name": null,
"type": null,
"value": {
"end": 17983,
"labels": [
"RATIO"
],
"start": 17830,
"text": "No such argument having been advanced before us or any of the courts below so far, the same does not arise for considera- tion in the present proceeding."
}
},
{
"from_name": null,
"id": "5cd25d3495ec43d692a6b12588ac56f8",
"to_name": null,
"type": null,
"value": {
"end": 18033,
"labels": [
"RPC"
],
"start": 17984,
"text": "With these observations, the appeal is dismissed."
}
},
{
"from_name": null,
"id": "54922165b8c7406f8a7f700c80c426c2",
"to_name": null,
"type": null,
"value": {
"end": 18041,
"labels": [
"NONE"
],
"start": 18033,
"text": "\n T.N.A."
}
},
{
"from_name": null,
"id": "af945ff45b75487495ba26f3ed839733",
"to_name": null,
"type": null,
"value": {
"end": 18090,
"labels": [
"RPC"
],
"start": 18042,
"text": " Appeal dis- missed."
}
}
]
}
] | 4,124 | {
"text": "PETITIONER:\nSONI DEVRAJBHAI BABUBHAI\n\nVs.\n\nRESPONDENT:\nSTATE OF GUJARAT AND ORS.\n\nDATE OF JUDGMENT28/08/1991\n\nBENCH:\nVERMA, JAGDISH SARAN (J)\nBENCH:\nVERMA, JAGDISH SARAN (J)\nSHARMA, L.M. (J)\n\nCITATION: 1991 SCR (3) 812\n 1991 AIR 2173 JT 1991 (3) 542\n 1991 SCC (4) 298\n 1991 SCALE (2)410\n\nACT:\nIndian Penal Code, 1860: Section 304-B (As inserted by Act\n43 of 1986)--Scope and object of--Dowry death-Death occuring\nprior to insertion of Section 304-B Section 304-B held\nprospective and consequently inapplicable--It contains a\nsubstantive provision creating a new offence and, does not\nmerely effect a procedural change for trial of pre-existing\nsubstantive offence.\n\n Indian Evidence Act, 1872: Section 113-B. Presumption as\nto dowry death--Section 113-B contains rule of evidence to\nprove the offence of dowry death.\nDowry Prohibition Act, 1961: Purpose of.\n\n Constitution of India, 1950: Article 20(1) Protection\nagainst conviction for a new offence created subsequent to\nthe commission of offence.\n\nHEADNOTE:\n Appellant's daughter was married to respondent No. 2 on\n\n15.12.1984. She died on 13.8.1986. The appellant filed a\ncriminal comp-. laint against the respondents viz. daugh-\nter's husband and his relatives for an offence under section\n498-A, triable by a Magistrate of First Class, 'read with\nsection 34 of the Indian Penal Code, 1860 alleging that his\ndaughter's death was unnatural resulting from torture by her\nhusband and his relatives. By Act No. 43 of 1986, the Indian\nPenal Code was amended and Section 304-B, offence of dowry\ndeath, was inserted in the Code w.e.f. 19.11.1986. Since the\nnewly inserted offence of dowry death was triable. by a\nCourt of Session, the appellant flied an application before\nthe Magistrate for committing the case to the Caurt-of\nSession for trial of offence under section 304-B. 'The\nMagistrate dismissed his application by holding that the\namendment being prospective was inapplicable'to the case\nbecause the death had occurred prior to the amendment.\nThereafter the appellant filed an application in the High\nCourt for a direction to Commit the case of dowry death to\nthe Court of Session. The High Court also dismissed his\napplication by holding that since the offence was committed\nprior to the date of insertion of section304-B, the section was not applicable to the case. In appeal\n\nto this Court on the question whether section 304-B of the\nIndian Penal Code was applicable to a case of dowry death\nwhere the death has occurred prior to the insertion of\nSection 304-B, it was contended on behalf of the appellant\nthat section 304-B of the Indian Penal Code does not create\na new offence and contains merely a rule of evidence.\nDismissing the appeal, this Court,\n\n HELD: 1. The offence of dowry death punishable under\nsection 304-B of the Indian Penal Code is a new offence\ninserted in the code with effect from .19.11.1986 when Act\nNo. 43 of 1986 came into force The said offence is punisha-\nble with a minimum sentence of seven years which may extend\nto life imprisonment and is triable by Court of Session. The\ncorresponding amendments made by Act No. 43 of 1986 in the\nCode of Criminal Procedure and the Indian Evidence Act\nrelate to the trial and proof of the offence. Section 498-A\ninserted in the Indian Penal Code by the Criminal Law\n(Second Amendment) Act, 1983 is an offence triable by a\nMagistrate of the First Class and is punishable with impris-\nonment for a term which may extend to three years in addi-\ntion to fine. The offence of dowry death punishable under\nsection 304-B provides for a more stringent offence than\nsection 498-A. Section 304-is a substantive provision creat-\ning a new offence and not merely a provision effecting a\nchange in procedure for trial of a pre-existing substanative\noffence. The rule of evidence to prove the offence of dowry\ndeath is contained in section 113-B of the Indian Evidence\nAct providing for presumption as to dowry death which was a\nsimultaneous amendment made in the Indian Evidence Act for\nproving 'the offence of dowery death. The fact that the\nIndian Evidence Act was so amended simul taneously with the\ninsertion of section 304-B in the Indian Penal code by the\nsame Amendment Act is another pointer in this direction.\nThere fore, it cannot be held that section 304-B. does not\ncreate a new offence and contains merely a rule of evidence.\n[818D-F, 819C-D]\n2. The respondents are being tried in the Court of Magis-\ntrate of .the First Class for the offence punishable under\nsection 498-A which was in the statute book on the date of\ndeath of Appellant's daughter Their trial and punishment for\nthe offence of dowry death provided in section 304-B of the\nIndian Penal Code 'with the minimum sentence of seven years'\nimprisonment for an act done by them prior to creation of\nthe new offence of dowry death would clearly deny to them\nthe protection afforded by clause (1) of Article 20 of the\nConstitution. Accord ingly, the view taken by the High Court\nthat the respondents cannot betried and punished for the offence provided in section 304-B\nof the Indian Penal Code which is a new offence created\nsubsequent to the commission of the offence attributed to\nthe respondents does not suffer from any infirmity. [818E,\nG, 819E]\n\nJUDGMENT:\n CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.\n 533of 1991.\n From the Judgment and Order dated 10.1. 1989 of the Gujarat High Court in Miscellaneous Criminal Application No.\n32 of 1989.\nH.S. Zaveri for the Appellant.\n Dushayant Dave, Ashish Verma and Anip Sachthey. for the Respondents.\n The Judgment of the Court was delivered by VERMA, J. Petitioner's daughter Chhaya Was married to Respondent No. 2 Satish on5. 12. 1984 and they started living together in their marital home at Bagasara. On 13.8.\n1986, Chhaya died at Bagasara. The petitioner and his wife got some vague information about their daughter Chhaya and went to Bagasara, the same day but were unable to meet or see their daughter who had died. The petitioner suspected that their daughter's death was unnatural resulting from torture by her husband and his relatives. The petitioner filed a criminal complaint against Respondent Nos. 2 to 5, who are the husband, his parents and sister which was trans- ferred to the Court of. Judicial Magistrate First Class at Dhari and registered as Criminal Case No. 382 of 1988 for an offence under section 498-A read with section 34 I.P.C. The petitioner filed an application for committing the case to the Court of Session for trial for .an offencepunishable under section 304-B I.P.C. which was inserted in the Indian Penal Code by Act No. 43 of 1986 w.e.f. 19.11.1986. On 29.11.1988, the Learned Magistrate dismissed the petition- er's application holding that this amendment being prospec- tive was inapplicable to a death which occurred on 13.8.1986, prior to the amendment. Aggrieved by this order, the petitioner moved an application (Misc. Criminal Applica- tion No. 32 of 1989) in the High Court of Gujarat .for a direction to commit this case of dowry death to 'the Court of Session since an 'offence punish-able under section 304-B is triable by the Court of Session.' By the impugned order dated January 10, 1989, the High Court has dismissed that application. Hence this special leave petition.Leave is granted.\n The point arising for our decision is the applicability of section 304-B of the Indian Penal Code to the present case where the death alleged to be a dowry death occurred prior to insertion of section 304-B in the Indian Penal Code. This is the only ground on which the. appellant claims trial of the case in the Court of Session. .\n.\n The reason.given by the High Court to support its view is that the offence was committed prior to the date of insertion of section 304-B in the Indian Penal Code on account of which the section can have no application to the present case. None of the courts below. has examined the applicability .of any other pre-existing more stringent provision even if section 304-B does not apply. As such affirmation of the view that section 304-B does not apply, will not preclude the appellant from contending that any other more stringent provision is attracted on the accusa- tion made. If that point is raised, the courts below will have to decide the same on merits on the basis of accusation made. It is in this background that the point raised by the appellant regarding applicability of section 304-B is decid- ed by us.. .\n Section 304-B and the cognate provisions are meant for eradication of the social evil of dowry which has been the bane of Indian society 'and continues unabated in spite of emanicipation of women and the women's liberation movement.\nThis all prevading malady in our society has only a few lucky exception in spite of equal treatment and opportunity to boys and girls for education and career. Society contin- ues to perpetuate the difference between them for the pur- pose of marriage and it is this distinction which makes the dowry system thrive. Even though for eradication of this social evil, effective steps can be taken by the society itself and the social sanctions of the community can be more deterrent, yet legal sanctions in the form of its .prohibi- tion and punishment are some steps in that direction. The Dowry Prohibition Act, 1961 was enacted for this purpsoe.\nThe Report of the Joint Committee of Parliament quoted the observations of Jawaharlal Nehru to indicate the role of legislation in dealing with the social evil as under: \" Legislation .cannot by itself normally solve deep-rooted social problems, One has to ap- proach them in other ways too, but legislation is necessary and essential, so that it may give that push and have that educative factor as well as the legal sanctions behind it which help public opinion to be given a certain shape.\" The enactment of Dowry Prohibition Act, 1961 in its original form was found inadequate. Experience shows that the demand of dowry and the mode of its recovery takes different forms to achieve the same result and various indirect and sophisticated methods are being used to 'avoid leaving any evidence of the offence. Similarly, the conse- quences of non-fulfilment of the demand of dowry meted out to the unfortunate bride takes different forms to avoid any apparent causal connection between the demand of dowry and its prejudicial effect on the bride. This experience has led to several other legislative measures in the continuing battle to combat this evil.\n The Criminal Law (Second Amendment) Act, 1983 (No. 45 of 1983) was an act further to amend the Indian Penal Code, the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872. Section 498-A was inserted in the Indian Penal Code and corresponding amendments were made in the Code of Criminal Procedure which included section 198A .therein and also inserted section 113A in the Indian Evidence Act,.\n1872. Thereafter, the Dowry Prohibition (Amendment) Act, 1986 (No. 43 of 1986) was enacted further to amend the Dowry Prohibition .Act, 1961 and to make certain .necessary changes in the Indian Penal Code, the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872.\n Two of the salient features of the Dowry Prohibition (Amendment) Act, 1986 (No. 43 of 1986) stated in the State- ment of Objects and Reasons of the Bill are as under: \"(e) Offences under the Act are proposed to be made non-bailable.\n \"(g) A new offence of \"dowry death\"\n is proposed to be included in the Indian Penal Code and the necessary consequential amend- ments in the Code of Criminal Procedure, 1973 and in the Indian Evidence Act, 1872 have also been proposed.\"\nAccordingly by section 7 of the Amendment Act, section 8 of the Dowry' Prohibition' Act, 1961 was amended to make every Offence under this Act non-bailable while continuing it to be non-compoundable. By sections 10, 11 and 12, amendments were made in the Indian Penal Code, Code of Criminal Proce- dure, 1973 and the Indian' Evidence Act, 1872, as part of the same scheme as follows: \"10. In the Indian Penal Code, after, section 304-A, the following section shall be inserted, namely: '304-B. Dowry death. (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise then under normal circumstances within seven years of her marriage and it is shown that .soon before her death she was subjected to cruelty or harass- ment by her husband or any relative of her husband for, Or in connection with, any demand for dowry such death shall be called \"dowry death\", and such husband or relative shall be deemed to have caused her death.\n Explanation-For the purposes of this sub-section, ,'dowry\". shall have the same meaning as in section 2 of the Dowry Prohibi- tion Act, 196 1 (28 of 1961).\n (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for \"11. In the Code of Criminal Proce- dure, 1973, in the First Schedule after the entries relating to section 304-A, the follow- ing entries shall be inserted, namely: Section Offence Punishment COgnizable Bailable or By what or non- non-bail- Court cognizable able tribale \"304-B ' Dowry Imprison- Ditto Non- Court of death ment of not bailable ' Session.\"\n lesS' than seven years but which may extend to imprisonment for life.\n ' \"12. In the Indian Evidence Act, 1872, after section 113-A, the following section shall be insert- ed, namely:- \"11.3-B. Presumption as to dowry death.-When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her 'death. such woman has been subjected by such .person to cruelty Or harassment for, or in connecting with, any demand for dowry, the Court shall presume that such person had caused the dowry death.\n Explanation.-For the purpose of this section', \"dowry death\" shall have the same meaning as in section 304-B of the Indian Penal Code (45 of 1860).\"\n It is clear from the above historical background that the offence of dowry death punishable under section 304-B of the Indian Penal Code is a new offence inserted in the Indian Penal Code with effect from 19.11.1986 when Act No.\n 43 of 1986 came into force. The offence under section 304-B is punishable with a minimum sentence of seven years which may extend to life imprisonment and is triable by Court of Session. The corresponding amendments made in the Code of Criminal Procedure and the Indian Evidence Act relate to the trial and proof of the offence. Section 498;A inserted in the Indian Penal Code by the Criminal Law (Second Amendment)Act, 1983 (Act No. 46 of 1983) is an offence triable by a Magistrate of the First Class and is punishable with imprisonment for a term which may extend to three years in addition to fine. It is for the offence punishable under section 498-A which was in the statute book on the date of death of Chhaya that the respondents are being tried in the Court of Magistrate of the First Class. The offence punisha- ble under section 304-B, known as. dowry death, was a new offence created with effect .from 19.11.1986 by insertion of the provision in the Indian Penal Code providing for a more stringent offence' than section 498-A. Section 304-B is a substantive provision creating a new offence and not merely a provision effecting a, change in procedure for trial of a pre-existing substantive offence. Acceptance of the appel- lant's contention would amount to holding that the respond- ents can be tried and punished for the offence of dowry death provided in section 304-B of the Indian Penal Code with the minimum sentence of seven years' imprisonment for an act done by them prior to creation of the new offence of dowry death. In our opinion, this would clearly deny to them the protection afforded by clause (1) of Article 20 of the Constitution which reads as under: \"20.. Protection in respect of con- viction for offences. --(1) No person shall be convicted of any offence except for violation of the law in force at the time of the commis- sion of the act charged as an offence, 'nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. ' ' \" In our opinion ,. the protection given by Article 20(1) is a complete answer to the appellant's contention.\n The contention 'of learned counsel 'for the appellant that section 304-B inserted in the Indian Penal Code does not create a new offence and' contains merely a rule of evidence is untenable. The rule of evidence to prove the offence of dowry death is contained in section 113-B of the Indian Evidence Act providing for presumption as to dowry death which was a simultaneous' amendment made in the Indian Evidence Act for proving the offence of dowry death. The fact that the Indian Evidence Act was so amended simultane- ously with the insertion of section 304-B in the Indian Penal' Code by the same Amendment Act is' another pointer in this direction. This contention is, therefore, rejected.\n In follows that the view taken by the High Court that the respondents cannot be tried and punished for the offence provided in section 304-B of the Indian Penal Code which is a new offence created subsequent 'to the commission of the offence attributed to the respondents does not suffer from any infirmity. However, as earlier indicated, in case the accusation against the respondents discloses commission of any other more stringent pre-existing offence by the re- spondents than section 498-A of the Indian Penal Code, the appellant would be entitled to raise that question and the Court will then consider and decide it on that basis. No such argument having been advanced before us or any of the courts below so far, the same does not arise for considera- tion in the present proceeding. With these observations, the appeal is dismissed.\n T.N.A. Appeal dis- missed.\n "
} |
{
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{
"result": [
{
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"end": 117,
"labels": [
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],
"start": 54,
"text": "NONREPORTABLE\n\n IN THE SUPREME COURT OF INDIA\n CRIMINAL"
}
},
{
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"id": "4923a93142414f86868cb61ded13e31f",
"to_name": null,
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"end": 127,
"labels": [
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],
"start": 118,
"text": "APPELLATE"
}
},
{
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"id": "965a15e946cf44639f703f4af129981f",
"to_name": null,
"type": null,
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"labels": [
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],
"start": 128,
"text": "JURISDICTION"
}
},
{
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"to_name": null,
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"value": {
"end": 194,
"labels": [
"PREAMBLE"
],
"start": 140,
"text": "\n CRIMINAL APPEAL No. 2122 OF 2010\n\n MANOJ KUMAR"
}
},
{
"from_name": null,
"id": "5c902188ec964aed9c7994c5435d058e",
"to_name": null,
"type": null,
"value": {
"end": 348,
"labels": [
"PREAMBLE"
],
"start": 223,
"text": "... APPELLANT\n\n Versus\n\n THE STATE OF UTTARAKHAND ... RESPONDENT\n\n JUDGMENT"
}
},
{
"from_name": null,
"id": "cbf9aa935b714444aae4e3927bbc1867",
"to_name": null,
"type": null,
"value": {
"end": 789,
"labels": [
"FAC"
],
"start": 354,
"text": "The present matter is placed before us by virtue of referral order dated 22.05.2014 wherein the following question was placed for reference before us that, \"whether the 2nd FIR and the investigation in pursuance of further information thereof should be straightway quashed or should it require a scrutiny during trial of the permissible matter of prejudice, and truthfulness of the evidence collected on the basis of second FIR.\"\n 2. "
}
},
{
"from_name": null,
"id": "b82a2b8ce8694c2ba873b788b292a3db",
"to_name": null,
"type": null,
"value": {
"end": 941,
"labels": [
"FAC"
],
"start": 789,
"text": "But it is to be noted that, during the course of arguments counsels from both the sides admitted that, no second FIR was registered in the present case."
}
},
{
"from_name": null,
"id": "004a741276fb4b0ea6738a529640ea47",
"to_name": null,
"type": null,
"value": {
"end": 1130,
"labels": [
"FAC"
],
"start": 942,
"text": "Although the reference was made to us, to adjudicate the above question of law, basing on the submissions we can conclude that the issue of second FIR does not arise in the present matter."
}
},
{
"from_name": null,
"id": "31f8108798d741d2b6b1f53ce05cf531",
"to_name": null,
"type": null,
"value": {
"end": 1195,
"labels": [
"FAC"
],
"start": 1131,
"text": "Therefore, we are proceeding to adjudicate the matter on merits."
}
},
{
"from_name": null,
"id": "ea22d89ad5cb4eab9ef0874b8f990a0e",
"to_name": null,
"type": null,
"value": {
"end": 1415,
"labels": [
"FAC"
],
"start": 1195,
"text": "\n 3. The brief facts of the case necessary for adjudication are as follows: the accusedappellant used to stay in the same block under the complainant (PW1) and he used to frequently visit the house of complainant (PW1)."
}
},
{
"from_name": null,
"id": "1e80254d83454b6abcb53f1cae8e41c0",
"to_name": null,
"type": null,
"value": {
"end": 1467,
"labels": [
"FAC"
],
"start": 1416,
"text": "Further he also owned a betel shop in the vicinity."
}
},
{
"from_name": null,
"id": "ceb05178bf5b4b6f9c077f910b6d67ec",
"to_name": null,
"type": null,
"value": {
"end": 1671,
"labels": [
"FAC"
],
"start": 1468,
"text": "On the day of incident, i.e. 24.08.1993, both the complainant and his wife left for their duties, and their daughter (hereinafter referred as `the deceased') aged around 17 years, was alone at the house."
}
},
{
"from_name": null,
"id": "337dbd12f97f470abc7d19bb72be6ceb",
"to_name": null,
"type": null,
"value": {
"end": 1882,
"labels": [
"FAC"
],
"start": 1672,
"text": "Thereafter, on finding an opportunity at around 10.45 A.M., the accusedappellant entered the house and tried to establish forceful physical relations with the deceased and the same was strongly resisted by her."
}
},
{
"from_name": null,
"id": "983e9fbd58d84a0390d86f2835b56fa6",
"to_name": null,
"type": null,
"value": {
"end": 2064,
"labels": [
"FAC"
],
"start": 1883,
"text": "Thus, a physical altercation broke out between the two, wherein the accusedappellant strangulated the deceased by putting the weight of his right hand on the throat of the deceased."
}
},
{
"from_name": null,
"id": "94304e9203f34778beea9dd41ce9d876",
"to_name": null,
"type": null,
"value": {
"end": 2218,
"labels": [
"FAC"
],
"start": 2065,
"text": "The accusedappellant thereafter orchestrated the entire incident into a suicide, by hanging the deceased from the roof with the help of a white bedsheet."
}
},
{
"from_name": null,
"id": "5d6fbf3b1d054714a3a2291d65150093",
"to_name": null,
"type": null,
"value": {
"end": 2374,
"labels": [
"FAC"
],
"start": 2219,
"text": "However, during this incident, two key witnesses namely Kushalpal and Vinod Kumar (PW2), visited the house of the complainant (PW1) for some personal work."
}
},
{
"from_name": null,
"id": "f32e7276802343efb0d291e5e665985c",
"to_name": null,
"type": null,
"value": {
"end": 2677,
"labels": [
"FAC"
],
"start": 2375,
"text": "On their call at the maindoor, they were addressed by the accusedappellant who informed them that nobody was present at home and therefore, considering the accusedpetitioner to be a neighbour, both the persons left the house without doubting the accusedpetitioner or suspecting that anything was wrong."
}
},
{
"from_name": null,
"id": "bf8780ef669042e4a5d9ddcd2a51f2e2",
"to_name": null,
"type": null,
"value": {
"end": 2867,
"labels": [
"FAC"
],
"start": 2677,
"text": "\n 4. Later that day, after returning from duty at around 12:00 noon, the complainant (P.W1) found the dead body of his daughter hanging from the roof and informed the police about the same."
}
},
{
"from_name": null,
"id": "cc7eca03602a4e5eb50b73bc4262cdc6",
"to_name": null,
"type": null,
"value": {
"end": 3126,
"labels": [
"FAC"
],
"start": 2868,
"text": "But subsequently, on 26.08.1993, Vinod Kumar (PW2), visited the house of complainant and informed him that on the day of the incident, at around 11:00 A.M., the accusedappellant came out of their house on their call and informed them that nobody was at home."
}
},
{
"from_name": null,
"id": "f32e85b4c4ff4689b26fbf205a510768",
"to_name": null,
"type": null,
"value": {
"end": 3270,
"labels": [
"FAC"
],
"start": 3127,
"text": "Therefore, the complainant (P.W1) approached the police on 26.08.1993 to inform them about the presence of the accused at the scene of offence."
}
},
{
"from_name": null,
"id": "270fde14bbda4576a77090054de071b9",
"to_name": null,
"type": null,
"value": {
"end": 3478,
"labels": [
"FAC"
],
"start": 3271,
"text": "On the basis of the aforesaid information the First Information Report No. 221 was registered under Section 302 of Indian Penal Code against the accusedappellant and the search for the accused was initiated."
}
},
{
"from_name": null,
"id": "a413e7057a34421ca438cc1560f14780",
"to_name": null,
"type": null,
"value": {
"end": 3671,
"labels": [
"FAC"
],
"start": 3479,
"text": "Simultaneously, on 26.08.1993, the accused appellant had made an extrajudicial confession before Sanjay Sharma (PW4); who in turn narrated the entire incident before the Investigating Officer."
}
},
{
"from_name": null,
"id": "e47c1d6c4f9d4cd2a43e701efb6dc7e5",
"to_name": null,
"type": null,
"value": {
"end": 3798,
"labels": [
"FAC"
],
"start": 3672,
"text": "Thereafter, investigation was conducted and after completion of the same, charge sheet was filed against the accusedappellant."
}
},
{
"from_name": null,
"id": "b2e1bf22aeb64d30b88fb91e4bb04ebf",
"to_name": null,
"type": null,
"value": {
"end": 4041,
"labels": [
"RLC"
],
"start": 3800,
"text": "5. The trial court vide its judgment dated 14.05.1997, convicted the accused for offence under Section 302 of the IPC and sentenced him to undergo life imprisonment and pay a fine of Rs. 20,000/, in default rigorous imprisonment of 5 years."
}
},
{
"from_name": null,
"id": "d284715a841249aea69ce5e56e97bc65",
"to_name": null,
"type": null,
"value": {
"end": 4261,
"labels": [
"RLC"
],
"start": 4042,
"text": "Aggrieved, the appellant approached the High Court in Criminal Appeal No.1192 of 2001, wherein the High Court upheld the order of conviction passed by the trial court and dismissed the appeal preferred by the appellant."
}
},
{
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"id": "e641cac85d05474885f4e2f51030bd65",
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"end": 4317,
"labels": [
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"text": "\n Aggrieved, the appellant preferred the present appeal."
}
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"text": "\n 6. Learned counsel for the accusedappellant contended that the High Court gravely erred in convicting the accused for the aforesaid offence without any incriminating evidence against him."
}
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"text": "The counsel emphasized that the conviction was solely based on the extra judicial confession which is not corroborated by any material evidence."
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"text": "Moreover, it was also contended that, it is a simple case of suicide but PW1 with the help of the testimonies of PW2 and PW4 has falsely implicated the appellant as an accused and these testimonies cannot be relied on as they were created as an afterthought after a delay of 2 days."
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"text": "Lastly, this being a case of circumstantial evidence, the chain of circumstances does not prove the guilt of the accused."
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"text": "\n 7. Learned counsel for the respondent contended that prosecution has successfully discharged its burden by placing reliance on last seen, extrajudicial confession made by the accused, injuries on the accused, absence of accused from his house at the time of occurrence and lack of an alibi to prove his presence elsewhere and the medical evidence."
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"text": "The counsel therefore contends that the High Court has rightly upheld the conviction of the accused keeping in view the aforesaid chain of circumstances which proves the guilt of the accused."
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"text": "Therefore, the counsel pleaded that the appeal of appellant being devoid of merits should be dismissed without any indulgence."
}
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"text": "Therefore, it is pertinent to focus on facts leading to the completion of the chain of circumstances which proves the guilt of the accused."
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"text": "\n 9. The trial court began its analysis of the facts by laying emphasis on the proximity of the house of the deceased and the accused so as to prove that access was highly probable considering the fact that, the accused used to live in the floor beneath that of the deceased."
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"text": "Admittedly, on the date of incident, the deceased was alone in the house as her parents and siblings had left for their jobs and school at around 6:30 a.m. respectively."
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"text": "It is in this scenario that the evidence of Vinod Kumar (P.W.2) plays a vital role, as it proves that the accused was present at the scene of the offence."
}
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"text": "\n Vinod Kumar (P.W.2) clearly stated that he had visited the house of the complainant (P.W.1) and called out his name, although there was no response for the first time, the accused answered the second call and informed P.W.2 that there was no one available at home."
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"text": "Owing to the proximity of both the families, P.W.2 left for his hometown without any suspicion."
}
},
{
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"text": "It is in this context that the evidence of complainant (P.W.1) becomes relevant so as to analyse the conduct of the accused just after the incident."
}
},
{
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],
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"text": "P.W.1 has stated that the accused and his father were missing from their residence since the time of the offence itself and that they had not even participated in the cremation ceremony of the deceased."
}
},
{
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"text": "It was only on 27.08.1993 that the accused was apprehended by the police with the help of the secret informer."
}
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{
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"text": "\n 10. Further, both the trial Court and the High Court placed reliance on the injuries found on the face of the accused."
}
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{
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"text": "It is pertinent to note that the accused failed to provide any explanation as to how he had incurred the aforesaid injuries."
}
},
{
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"text": "Further, the injuries on the body of the deceased also indicate signs of struggle."
}
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"text": "\n Furthermore, the postmortem suggests that the death of deceased was not suicidal but rather she was hanged after she had lost consciousness."
}
},
{
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],
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"text": "All the aforesaid circumstances further substantiate the voluntary extrajudicial confession of the accused made before P.W4."
}
},
{
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"text": "Moreover, the fact of the commission of death by hanging corroborated by the Exhibit P12, (Panchayatnama) which notes that the deceased was hanging from the roof with the help of a bed sheet."
}
},
{
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"labels": [
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"text": "\n It is noted that the Exhibit P12, (Panchayatnama) stands proved by the SubInspector (P.W.8)."
}
},
{
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"text": "The extrajudicial confession of the accused, therefore, finds independent reliable corroboration from the aforesaid circumstances."
}
},
{
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"labels": [
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],
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"text": "(See Ram Singh v. State of U.P., 1967 Cri LJ 9)"
}
},
{
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],
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"text": "In light of the aforementioned chain of events, there exists sufficient evidence on record to connect the appellant with the death of the deceased, the motive of which is apparent."
}
},
{
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"end": 8868,
"labels": [
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],
"start": 8678,
"text": "\n 11. In the absence of any existing enmity between the accused and the witnesses there exists no ground to question the veracity of the witnesses or to raise a ground of false implication."
}
},
{
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"value": {
"end": 9091,
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],
"start": 8869,
"text": "Therefore, considering the totality of the facts and circumstances, we conclude that the chain of events has been rightly analysed by both the courts below and the same leads towards proving the culpability of the accused."
}
},
{
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],
"start": 9092,
"text": "(See Prakash v. State of Rajasthan, (2013) 4 SCC 668) 12. "
}
},
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],
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"text": "Therefore, after perusal of the material on record we conclude that, the appeal preferred by the accused, being devoid of any merit is liable to be dismissed."
}
},
{
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"text": "In light of the same, we uphold the order of conviction passed by the High Court."
}
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"text": "\n New Delhi,"
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"start": 9430,
"text": ".........................J.\n April 05, 2019. (N.V.RAMANA) .........................J.\n (MOHAN M.SHANTANAGOUDAR) .........................J.\n "
}
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"text": "(INDIRA BANERJEE)"
}
}
]
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] | 4,169 | {
"text": " NONREPORTABLE\n\n IN THE SUPREME COURT OF INDIA\n CRIMINAL APPELLATE JURISDICTION\n CRIMINAL APPEAL No. 2122 OF 2010\n\n MANOJ KUMAR ... APPELLANT\n\n Versus\n\n THE STATE OF UTTARAKHAND ... RESPONDENT\n\n JUDGMENT\n 1. The present matter is placed before us by virtue of referral order dated 22.05.2014 wherein the following question was placed for reference before us that, \"whether the 2nd FIR and the investigation in pursuance of further information thereof should be straightway quashed or should it require a scrutiny during trial of the permissible matter of prejudice, and truthfulness of the evidence collected on the basis of second FIR.\"\n 2. But it is to be noted that, during the course of arguments counsels from both the sides admitted that, no second FIR was registered in the present case. Although the reference was made to us, to adjudicate the above question of law, basing on the submissions we can conclude that the issue of second FIR does not arise in the present matter. Therefore, we are proceeding to adjudicate the matter on merits.\n 3. The brief facts of the case necessary for adjudication are as follows: the accusedappellant used to stay in the same block under the complainant (PW1) and he used to frequently visit the house of complainant (PW1). Further he also owned a betel shop in the vicinity. On the day of incident, i.e. 24.08.1993, both the complainant and his wife left for their duties, and their daughter (hereinafter referred as `the deceased') aged around 17 years, was alone at the house. Thereafter, on finding an opportunity at around 10.45 A.M., the accusedappellant entered the house and tried to establish forceful physical relations with the deceased and the same was strongly resisted by her. Thus, a physical altercation broke out between the two, wherein the accusedappellant strangulated the deceased by putting the weight of his right hand on the throat of the deceased. The accusedappellant thereafter orchestrated the entire incident into a suicide, by hanging the deceased from the roof with the help of a white bedsheet. However, during this incident, two key witnesses namely Kushalpal and Vinod Kumar (PW2), visited the house of the complainant (PW1) for some personal work. On their call at the maindoor, they were addressed by the accusedappellant who informed them that nobody was present at home and therefore, considering the accusedpetitioner to be a neighbour, both the persons left the house without doubting the accusedpetitioner or suspecting that anything was wrong.\n 4. Later that day, after returning from duty at around 12:00 noon, the complainant (P.W1) found the dead body of his daughter hanging from the roof and informed the police about the same. But subsequently, on 26.08.1993, Vinod Kumar (PW2), visited the house of complainant and informed him that on the day of the incident, at around 11:00 A.M., the accusedappellant came out of their house on their call and informed them that nobody was at home. Therefore, the complainant (P.W1) approached the police on 26.08.1993 to inform them about the presence of the accused at the scene of offence. On the basis of the aforesaid information the First Information Report No. 221 was registered under Section 302 of Indian Penal Code against the accusedappellant and the search for the accused was initiated. Simultaneously, on 26.08.1993, the accused appellant had made an extrajudicial confession before Sanjay Sharma (PW4); who in turn narrated the entire incident before the Investigating Officer. Thereafter, investigation was conducted and after completion of the same, charge sheet was filed against the accusedappellant.\n 5. The trial court vide its judgment dated 14.05.1997, convicted the accused for offence under Section 302 of the IPC and sentenced him to undergo life imprisonment and pay a fine of Rs. 20,000/, in default rigorous imprisonment of 5 years. Aggrieved, the appellant approached the High Court in Criminal Appeal No.1192 of 2001, wherein the High Court upheld the order of conviction passed by the trial court and dismissed the appeal preferred by the appellant.\n Aggrieved, the appellant preferred the present appeal.\n 6. Learned counsel for the accusedappellant contended that the High Court gravely erred in convicting the accused for the aforesaid offence without any incriminating evidence against him. The counsel emphasized that the conviction was solely based on the extra judicial confession which is not corroborated by any material evidence. Moreover, it was also contended that, it is a simple case of suicide but PW1 with the help of the testimonies of PW2 and PW4 has falsely implicated the appellant as an accused and these testimonies cannot be relied on as they were created as an afterthought after a delay of 2 days. Lastly, this being a case of circumstantial evidence, the chain of circumstances does not prove the guilt of the accused.\n 7. Learned counsel for the respondent contended that prosecution has successfully discharged its burden by placing reliance on last seen, extrajudicial confession made by the accused, injuries on the accused, absence of accused from his house at the time of occurrence and lack of an alibi to prove his presence elsewhere and the medical evidence. The counsel therefore contends that the High Court has rightly upheld the conviction of the accused keeping in view the aforesaid chain of circumstances which proves the guilt of the accused. Therefore, the counsel pleaded that the appeal of appellant being devoid of merits should be dismissed without any indulgence.\n 8. Heard the learned counsels on merits. Admittedly, since there is no direct evidence, the present case is based on circumstantial evidence. Therefore, it is pertinent to focus on facts leading to the completion of the chain of circumstances which proves the guilt of the accused.\n 9. The trial court began its analysis of the facts by laying emphasis on the proximity of the house of the deceased and the accused so as to prove that access was highly probable considering the fact that, the accused used to live in the floor beneath that of the deceased. Admittedly, on the date of incident, the deceased was alone in the house as her parents and siblings had left for their jobs and school at around 6:30 a.m. respectively. It is in this scenario that the evidence of Vinod Kumar (P.W.2) plays a vital role, as it proves that the accused was present at the scene of the offence.\n Vinod Kumar (P.W.2) clearly stated that he had visited the house of the complainant (P.W.1) and called out his name, although there was no response for the first time, the accused answered the second call and informed P.W.2 that there was no one available at home. Owing to the proximity of both the families, P.W.2 left for his hometown without any suspicion. It is in this context that the evidence of complainant (P.W.1) becomes relevant so as to analyse the conduct of the accused just after the incident. P.W.1 has stated that the accused and his father were missing from their residence since the time of the offence itself and that they had not even participated in the cremation ceremony of the deceased. It was only on 27.08.1993 that the accused was apprehended by the police with the help of the secret informer.\n 10. Further, both the trial Court and the High Court placed reliance on the injuries found on the face of the accused. It is pertinent to note that the accused failed to provide any explanation as to how he had incurred the aforesaid injuries. Further, the injuries on the body of the deceased also indicate signs of struggle.\n Furthermore, the postmortem suggests that the death of deceased was not suicidal but rather she was hanged after she had lost consciousness. All the aforesaid circumstances further substantiate the voluntary extrajudicial confession of the accused made before P.W4. Moreover, the fact of the commission of death by hanging corroborated by the Exhibit P12, (Panchayatnama) which notes that the deceased was hanging from the roof with the help of a bed sheet.\n It is noted that the Exhibit P12, (Panchayatnama) stands proved by the SubInspector (P.W.8). The extrajudicial confession of the accused, therefore, finds independent reliable corroboration from the aforesaid circumstances. (See Ram Singh v. State of U.P., 1967 Cri LJ 9) In light of the aforementioned chain of events, there exists sufficient evidence on record to connect the appellant with the death of the deceased, the motive of which is apparent.\n 11. In the absence of any existing enmity between the accused and the witnesses there exists no ground to question the veracity of the witnesses or to raise a ground of false implication. Therefore, considering the totality of the facts and circumstances, we conclude that the chain of events has been rightly analysed by both the courts below and the same leads towards proving the culpability of the accused. (See Prakash v. State of Rajasthan, (2013) 4 SCC 668) 12. Therefore, after perusal of the material on record we conclude that, the appeal preferred by the accused, being devoid of any merit is liable to be dismissed. In light of the same, we uphold the order of conviction passed by the High Court.\n New Delhi, .........................J.\n April 05, 2019. (N.V.RAMANA) .........................J.\n (MOHAN M.SHANTANAGOUDAR) .........................J.\n (INDIRA BANERJEE) "
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"text": "Union of India & Ors. "
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"text": ".. Respondents\n\n "
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"text": "...................\n\n "
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"start": 585,
"text": "Mr. Jehangir Mistri, Sr. Counsel a/w Mr. Harsh Kapadia for the"
}
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"start": 647,
"text": "\n Petitioner\n\n Mr. P. C. Chhotaray a/w Mr. P.A. Narayanan for Respondent Nos. 2\n to 4\n\n ...................\n\n CORAM : AKIL KURESHI &\n SARANG V. KOTWAL, JJ.\n\n "
}
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{
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"text": "DATE : MARCH 15, 2019."
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"text": "ORAL JUDGMENT"
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"text": " (Per Akil Kureshi, J.) 1."
}
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"start": 1228,
"text": "The petitioner has challenged an order dated 15.10.2018 as at Annexure \"M\" to the petition passed by the Transfer Pricing Officer (\"TPO\" for short) under Section 92CA(3) of the Income Tax Act, 1961 (\"the Act\" for short)."
}
},
{
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"text": "2. Brief facts are as under:- 2.1 "
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"end": 1695,
"labels": [
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"start": 1485,
"text": "Petitioner - Times Global Broadcasting Company Ltd is a company registered under the Companies Act, 1956 and his a wholly owned subsidiary of Benett, Coleman and Company Ltd (hereinafter referred to as \"BCCL\")."
}
},
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"text": "The petitioner is engaged in the business of distribution of television channels for the Times Group entities."
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"text": "It also provides support services to Times Group entities in the area of finance, legal, human resources, commercial, administration and technical and broadcasting."
}
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"text": "With effect from 1.4.2014, the petitioner demerged one of its business undertakings into BCCL."
}
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{
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"text": "The scheme of demerger was approved by the High Court at Bombay by an order dated 16.1.2015."
}
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"text": "Consequently, the business pertaining to \"Times Now\" television channel of the petitioner got vested in BCCL."
}
},
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"text": "\nAll assets and liabilities pertaining to demerged undertaking were also transferred to BCCL at the book value as on 31.3.2014."
}
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"text": "The difference between assets and liabilities was then adjusted against the brought forward profit and loss account balance as on 31.3.2014."
}
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"text": "However, no expenditure or income was charged to the profit and loss account for the financial year as per the scheme of demerger approved by the High Court."
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"text": "2.2 "
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"end": 2846,
"labels": [
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"start": 2705,
"text": "For the assessment year 2015-16, the petitioner filed return of income on 28.11.2015 declaring total income of Rs. 5.90 crores (rounded off)."
}
},
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"text": "In the said return, the petitioner had reported following two specified domestic transactions:-"
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"text": "Sr. Nature of"
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"text": "Related Amount Method No. transaction "
}
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"value": {
"end": 3149,
"labels": [
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"start": 3054,
"text": "party (Rs. in Crs) adopted for benchmarking 1 Payment of subscription "
}
},
{
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"text": "BCCL "
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"end": 3177,
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"text": "39.45 Transaction"
}
},
{
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"value": {
"end": 3396,
"labels": [
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],
"start": 3178,
"text": "Net Margin fees earned from distribution ZENL 9.73 Method ('TNMM') services Key Managerial 3.00 Other Method (Rule 10AB) 2 Payment to Key Management Personnel Personnel 52.19 Total"
}
},
{
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"id": "fbb9a4e731904fb4b576e92548a84790",
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"value": {
"end": 3634,
"labels": [
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],
"start": 3397,
"text": "The petitioner would point out that under the distribution services, the petitioner distributes television channels owned by BCCL and Zoom Entertainment Network Ltd ('ZENL' for short), either directly or through its distribution network."
}
},
{
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"id": "35fe03a5ea904c03bb75e1d98304cab0",
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"value": {
"end": 3823,
"labels": [
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],
"start": 3648,
"text": "Upon distribution, it receives subscription fees, retains 8% of the fees as its service income and remits the balance to BCCL and ZENL based on their respective revenue share."
}
},
{
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"id": "bdb20a2cff1442c4a6c8b7fee86ae2b9",
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"value": {
"end": 3952,
"labels": [
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],
"start": 3824,
"text": "Likewise, under support services, the petitioner manages back office operations of its group companies, including BCCL and ZENL."
}
},
{
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"id": "808a981f10924177bc7ec00c7347f092",
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"value": {
"end": 4031,
"labels": [
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],
"start": 3953,
"text": "For this work, the petitioner is compensated at a cost plus 10% mark-up basis."
}
},
{
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"id": "92e722640e9242d3abe0def03dc3a9b8",
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"end": 4243,
"labels": [
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],
"start": 4033,
"text": "2.3 According to the petitioner, the distribution services involved a payment to related parties and accordingly, in terms of Section 92E of the Act, such transaction was reported in the prescribed form '3CEB'."
}
},
{
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"id": "69151bcceec54b9ca062d626ca91521a",
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"labels": [
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],
"start": 4244,
"text": "According to the petitioner, the support services resulted into an income in the hands of the petitioner and therefore, the same could not be considered a specified domestic transaction and was accordingly, not reported."
}
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"labels": [
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"text": "\n 2.4 In order to determine the arm's length of the specified domestic transaction, the petitioner had adopted TNMM as the 'Most Appropriate Method'."
}
},
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"end": 4734,
"labels": [
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],
"start": 4615,
"text": "The petitioner presented data to contend that the payment of subscription fee to the related party was at arm's length."
}
},
{
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"id": "f74733c9e4b04349aa81acea24482e56",
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"value": {
"end": 4808,
"labels": [
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],
"start": 4734,
"text": "\n 2.5 Return of income filed by the petitioner was selected for scrutiny."
}
},
{
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"id": "2e49e94e39fd4c1d871bd2ce5de99d99",
"to_name": "text",
"type": "labels",
"value": {
"end": 4961,
"labels": [
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],
"start": 4809,
"text": "The Assessing Officer made a reference to the TPO for determining the arm's length price of the specified domestic transactions reported in from \"3CEB\"."
}
},
{
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"id": "da4c9393d83248888744ba91377adba6",
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"type": "labels",
"value": {
"end": 5212,
"labels": [
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],
"start": 4962,
"text": "The petitioner appeared before the TPO in response to the notice issued and besides others, took a contention that in view of the express omission of clause (i) to Section 92BA of the Act without any saving clause, reference itself was not competent."
}
},
{
"from_name": "label",
"id": "e5cb6f20de624c328ce53f11bc8f9a76",
"to_name": "text",
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"value": {
"end": 5450,
"labels": [
"FAC"
],
"start": 5213,
"text": "Further correspondence ensued between TPO and the petitioner company during which the TPO also desired to take within the sweep of transfer pricing study, the petitioner's transactions of the adjustment of assets on demerger of its unit."
}
},
{
"from_name": "label",
"id": "a7302c674d3544338561e3ec4ffc95c6",
"to_name": "text",
"type": "labels",
"value": {
"end": 5723,
"labels": [
"FAC"
],
"start": 5451,
"text": "It may be recorded that the petitioner opposed such proposal for making transfer pricing adjustment on merits without specifically raising the objection of jurisdiction of the TPO to examine the said transaction in absence of a specific reference by the Assessing Officer."
}
},
{
"from_name": "label",
"id": "d2f5bc44b4a2417383e4cc359ed2ca68",
"to_name": "text",
"type": "labels",
"value": {
"end": 5855,
"labels": [
"FAC"
],
"start": 5724,
"text": "Be that as it may, the TPO passed the impugned order on 15.10.2018 in which he provided for a total adjustment of Rs. 84.09 crores."
}
},
{
"from_name": "label",
"id": "2deb2a7c09704b6ebe4e3065321156d1",
"to_name": "text",
"type": "labels",
"value": {
"end": 6231,
"labels": [
"FAC"
],
"start": 5856,
"text": "This comprised of the arm's length price adjustment of Rs. 26.55 crores made on the specified domestic transaction as reported in from 3CEB towards payment of subscription fees and arm's length price adjustment of Rs. 57.54 crores made on the specified domestic transaction not reported in form 3CEB towards what revenue contends was payment of creditors in demerger process."
}
},
{
"from_name": "label",
"id": "59322ed6f18c409ba13ff11df299113a",
"to_name": "text",
"type": "labels",
"value": {
"end": 6356,
"labels": [
"FAC"
],
"start": 6232,
"text": "We may, however, record that the petitioner does not even accept that there was any such payment in the process of demerger."
}
},
{
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"id": "9bec2184169d42c098d7703edc7a9e20",
"to_name": "text",
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"value": {
"end": 6368,
"labels": [
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],
"start": 6358,
"text": "2.6 "
}
},
{
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"id": "bec6e39d4fc64cd0bc3dfd2de9d686fb",
"to_name": "text",
"type": "labels",
"value": {
"end": 6654,
"labels": [
"FAC"
],
"start": 6368,
"text": "With respect to the adjustment towards payment of subscription fees, the TPO carried out detailed analysis and examination, considered the petitioner's submissions and arrived at said figure of Rs. 26.55 crore in following manner:- Description Amount in Rs.\nTotal"
}
},
{
"from_name": "label",
"id": "42569e5f458b40a1a8915befe2745f88",
"to_name": "text",
"type": "labels",
"value": {
"end": 6742,
"labels": [
"FAC"
],
"start": 6655,
"text": "Operating Revenue of the Distribution Segment 53,91,00,265"
}
},
{
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"id": "f9972a17e8664ad2b9f514bdea5c616e",
"to_name": "text",
"type": "labels",
"value": {
"end": 6836,
"labels": [
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],
"start": 6743,
"text": "Total Operating Expenses of the Distribution Segment 80,49,04,800"
}
},
{
"from_name": "label",
"id": "e0783536d421406f96c00391aa90d7fb",
"to_name": "text",
"type": "labels",
"value": {
"end": 6980,
"labels": [
"FAC"
],
"start": 6837,
"text": "Operating Profit Operating Margins (26,58,04,535) Operating Margins of Comparables"
}
},
{
"from_name": "label",
"id": "820784c6f2644d0eb3c6fbd3b3dcd7a2",
"to_name": "text",
"type": "labels",
"value": {
"end": 7041,
"labels": [
"FAC"
],
"start": 7033,
"text": "(49.30%)"
}
},
{
"from_name": "label",
"id": "623242aa00294dbdaf2395c34039da69",
"to_name": "text",
"type": "labels",
"value": {
"end": 7135,
"labels": [
"FAC"
],
"start": 7042,
"text": "ALP adjustment with reference to variance in margins @ (49.25%) of (0.05%)"
}
},
{
"from_name": "label",
"id": "481cc4cd8b4f4a15ad5cd435d322599d",
"to_name": "text",
"type": "labels",
"value": {
"end": 7145,
"labels": [
"FAC"
],
"start": 7136,
"text": "Operating"
}
},
{
"from_name": "label",
"id": "c9157f67d25543f888f95b772918c50d",
"to_name": "text",
"type": "labels",
"value": {
"end": 7153,
"labels": [
"FAC"
],
"start": 7146,
"text": "Revenue"
}
},
{
"from_name": "label",
"id": "db5e789324b541b0bc179ad589216a71",
"to_name": "text",
"type": "labels",
"value": {
"end": 7166,
"labels": [
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],
"start": 7154,
"text": "26,55,06,880"
}
},
{
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"id": "97ee06d9de5d474a8f0022fbe0e13d47",
"to_name": "text",
"type": "labels",
"value": {
"end": 7634,
"labels": [
"FAC"
],
"start": 7167,
"text": "With respect to suo motu adjustment towards payment of creditors in demerger process, in order to arrive at the figure of Rs. 57.54 crores, he made following observations:- \" In this instant case of assessee, the Creditors of assessee which are transferred to Holding Company and also admittedly an Associates Enterprise in a non-cash transaction of demerger represents both revenue as well as capital items as per the breakup provided by assessee in its submissions."
}
},
{
"from_name": "label",
"id": "724e0fa01eac404cb98e746a7f383d02",
"to_name": "text",
"type": "labels",
"value": {
"end": 7849,
"labels": [
"FAC"
],
"start": 7635,
"text": "Therefore, the same are within the ambit of \"Any Expenditure\" as provided under Section 92BA of the Act and arms length price of the transactions is required to be computed in accordance with provisions of the Act."
}
},
{
"from_name": "label",
"id": "16f84fc50c594d90a25170ab91f400b1",
"to_name": "text",
"type": "labels",
"value": {
"end": 8065,
"labels": [
"FAC"
],
"start": 7849,
"text": "\n The amount of outstanding creditors pertaining to the demerged unit of assessee is Nil and its books as on 31.5.2015 and hence,this amounts to a payment as envisaged under the provisions of Section 92BA of the Act."
}
},
{
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"id": "ed3dd84a242d41cfb9659ad1fd37d127",
"to_name": "text",
"type": "labels",
"value": {
"end": 8464,
"labels": [
"FAC"
],
"start": 8067,
"text": "7.7 As per the provisions of Section 92C of the Act, the arm's length price in relation to a specified domestic transaction shall be determined by any of the methods, being the most appropriate method, having regard to the nature of transaction or class of transaction or class of associated persons or functions performed by such persons or such other relevant factors as the Board may prescribe."
}
},
{
"from_name": "label",
"id": "9579a5dc0a5d4d76859a8aec2dca81cf",
"to_name": "text",
"type": "labels",
"value": {
"end": 8634,
"labels": [
"FAC"
],
"start": 8465,
"text": "The assessee has however not done the transfer pricing study of the above stated transactions nor applied any method to determine Arm's Length Price of the transactions."
}
},
{
"from_name": "label",
"id": "76330380b1dd4f0ea96f44ee456a8a95",
"to_name": "text",
"type": "labels",
"value": {
"end": 9050,
"labels": [
"ANALYSIS"
],
"start": 8636,
"text": "7.8 As per provisions of section 92E of the Act, every person who has entered into an international transaction or specified domestic transaction during a previous year shall obtain a report from an accountant and furnish such report on or before the specified date in the prescribed form duly signed and verified in the prescribed manner by such accountant and setting forth such particulars as may be prescribed."
}
},
{
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"id": "0a34efe7c797494884a8ddc5cb8322bc",
"to_name": "text",
"type": "labels",
"value": {
"end": 9157,
"labels": [
"ANALYSIS"
],
"start": 9051,
"text": "The assessee is required to report the Specified Domestic Transaction in column No. 22 of Form 3CEB filed."
}
},
{
"from_name": "label",
"id": "46096e06531f4f4ab94e5eec92cb04cd",
"to_name": "text",
"type": "labels",
"value": {
"end": 9271,
"labels": [
"ANALYSIS"
],
"start": 9157,
"text": "\nHowever, no such reporting was made in the form No. 3CEB filed in respect of other SDT's already discussed above."
}
},
{
"from_name": "label",
"id": "f4f6b8dc24c04c019cf0ba60af66aecd",
"to_name": "text",
"type": "labels",
"value": {
"end": 9641,
"labels": [
"ANALYSIS"
],
"start": 9271,
"text": "\n 7.9 In view of the above discussed legal position and facts of the case and gross amount of creditors paid amounting to Rs.\n57,54,00,000/- as reconciled by assessee in the course of proceedings failed to report these transactions in the report filed in Form No. 3CEB and also failed to maintain and furnish proper details for determination of ALP for the transactions."
}
},
{
"from_name": "label",
"id": "ec6954965ba84a7ba1af2b71cbca9f5c",
"to_name": "text",
"type": "labels",
"value": {
"end": 9809,
"labels": [
"ANALYSIS"
],
"start": 9642,
"text": "The gross consideration paid being the value of asset transferred against these creditors is Rs. 62,31,00,000/- as reconciled by assessee in the course of proceedings."
}
},
{
"from_name": "label",
"id": "c65404c1d00d4a3a9939a17aa3610f89",
"to_name": "text",
"type": "labels",
"value": {
"end": 9988,
"labels": [
"ANALYSIS"
],
"start": 9810,
"text": "The assessee has however did not submit the fair market valuation and its cost of acquisition of the assets adjusted against the creditors despite repeated opportunities availed."
}
},
{
"from_name": "label",
"id": "1db7afcbf1914aa9818b95a110bf6fec",
"to_name": "text",
"type": "labels",
"value": {
"end": 10153,
"labels": [
"ANALYSIS"
],
"start": 9988,
"text": "\nTherefore, any excess payment over the book value of the creditors could not be taken into account in determination of the ALP of the creditors so paid or adjusted."
}
},
{
"from_name": "label",
"id": "71015ef0b4434803886c26ace82a1491",
"to_name": "text",
"type": "labels",
"value": {
"end": 10159,
"labels": [
"ANALYSIS"
],
"start": 10153,
"text": "\n 7.10"
}
},
{
"from_name": "label",
"id": "5eade7f331594497b39dbf371d687375",
"to_name": "text",
"type": "labels",
"value": {
"end": 10449,
"labels": [
"ANALYSIS"
],
"start": 10160,
"text": "The assessee having squared off the creditors in its books through book entires, the provisions of Section 40A(3A) are triggered and thus, allowable expenditure representing these creditors paid will be Nil as it becomes deemed income of the assessee as per the said provisions of the Act."
}
},
{
"from_name": "label",
"id": "1ef87d4d9cdd4796b3e413bbf41f5f5a",
"to_name": "text",
"type": "labels",
"value": {
"end": 10614,
"labels": [
"ANALYSIS"
],
"start": 10450,
"text": "Accordingly, the Arms Length price of the transactions is determined at Nil by using this method considering the same to be \"other method\" recognized under the Act."
}
},
{
"from_name": "label",
"id": "5d671b3b181742d9946a15cf641ccdfc",
"to_name": "text",
"type": "labels",
"value": {
"end": 10775,
"labels": [
"ANALYSIS"
],
"start": 10615,
"text": "An adjustment of Rs. 57,54,00,000/- is accordingly made to the total income of assessee representing ALP adjustment of the creators tranferred through demerger."
}
},
{
"from_name": "label",
"id": "c7355d6f1fda41bcb6486d053312c4ed",
"to_name": "text",
"type": "labels",
"value": {
"end": 10907,
"labels": [
"ANALYSIS"
],
"start": 10775,
"text": "\n The AO may also alternatively and without prejudice to the above adjustment bring the above amount to tax u/s. 40A(3A) of the Act."
}
},
{
"from_name": "label",
"id": "1bf5a25da77f4f0eb1f007930c4dbd08",
"to_name": "text",
"type": "labels",
"value": {
"end": 10947,
"labels": [
"ANALYSIS"
],
"start": 10907,
"text": "\n (Adjustment - Rs. 57,54,00,000/-) 7.11"
}
},
{
"from_name": "label",
"id": "15e3d813169e4c7aac6403e5d7460c18",
"to_name": "text",
"type": "labels",
"value": {
"end": 11227,
"labels": [
"ANALYSIS"
],
"start": 10948,
"text": "The penalty proceedings u/s. 271AA, u/s. 271BA and 271G of the Act for non-compliance to the provisions of Section 92C, 92D and 92E of the Act in respect of above stated International Transaction with AE's are being separately initiated or intimated to the AO as the case may be."
}
},
{
"from_name": "label",
"id": "a8ead79b7ce14acfb5ac12cde040ab49",
"to_name": "text",
"type": "labels",
"value": {
"end": 11433,
"labels": [
"ANALYSIS"
],
"start": 11227,
"text": "\n 7.12 AO is also requested to initiate penalty proceedings u/s. 271(1) (c) of the Act in respect of other adjustments made to total income on account of furnishing inaccurate particulars of taxable income."
}
},
{
"from_name": "label",
"id": "d90258cdcd534756b9aa2b623721a8e0",
"to_name": "text",
"type": "labels",
"value": {
"end": 12077,
"labels": [
"ANALYSIS"
],
"start": 11435,
"text": "8. TPO's conclusions: In view of the above following adjustment is made in ALP.\n Adjustment to taxable income: SR. Adjustments on account of Amount in Rs.\n 26,55,06,880 NO. 57,54,00,000 1 ALP adjustment made on SDT's reported in the form 84,09,06,880 3CEB towards payment of subscription fees.\n 2 ALP adjustment made on SDT's not reported in the form 3CEB towards payment of creditors in the Demerger Process Total Adjustments made 2.7 "
}
},
{
"from_name": "label",
"id": "db3fc5ad820d46ab9bf9667ac402f362",
"to_name": "text",
"type": "labels",
"value": {
"end": 12149,
"labels": [
"ANALYSIS"
],
"start": 12077,
"text": "The petitioner has challenged both these adjustments on various grounds."
}
},
{
"from_name": "label",
"id": "f10a3ca5346a41cfb7ae6ac4c7ce8ae0",
"to_name": "text",
"type": "labels",
"value": {
"end": 12435,
"labels": [
"ANALYSIS"
],
"start": 12150,
"text": "With respect to adjustment of Rs. 57.54 crores towards payment of creditors in demerger process, the case of the petitioner is that in absence of any specific reference by the Assessing Officer of this transaction, it was not competent for the TPO to make any such sue motu adjustment."
}
},
{
"from_name": "label",
"id": "4f5029e9d64b4435976a70e199c8f79b",
"to_name": "text",
"type": "labels",
"value": {
"end": 12647,
"labels": [
"ANALYSIS"
],
"start": 12436,
"text": "It was contended that even on merits, the adjustment is wholly impermissible, since in the process, no expenditure was made by the assessee, the transaction would not be covered under Section 92BA(i) of the Act."
}
},
{
"from_name": "label",
"id": "9f094a8f10b545bebc86e20928176347",
"to_name": "text",
"type": "labels",
"value": {
"end": 12792,
"labels": [
"ANALYSIS"
],
"start": 12648,
"text": "With respect to the adjustment towards payment of subscription fees, the case of the petitioner is that the same was made without proper notice."
}
},
{
"from_name": "label",
"id": "af1099cbce32412db286617fe65402ee",
"to_name": "text",
"type": "labels",
"value": {
"end": 12874,
"labels": [
"ANALYSIS"
],
"start": 12793,
"text": "It is even otherwise ex facie bad and is against the judgments of the High Court."
}
},
{
"from_name": "label",
"id": "2b991c0a3df24b4fa1f7af0ef984b310",
"to_name": "text",
"type": "labels",
"value": {
"end": 13036,
"labels": [
"ANALYSIS"
],
"start": 12876,
"text": "2.8 The case of the Revenue in brief is that the TPO can examine any specified domestic transaction even if not specifically referred by the Assessing Officer."
}
},
{
"from_name": "label",
"id": "052524a46d0b4209a48f57bb28cb3282",
"to_name": "text",
"type": "labels",
"value": {
"end": 13144,
"labels": [
"ANALYSIS"
],
"start": 13037,
"text": "The petitioner had not reported the transaction in question though it was a specified domestic transaction."
}
},
{
"from_name": "label",
"id": "105342941a2a44798699345f099c2d30",
"to_name": "text",
"type": "labels",
"value": {
"end": 13228,
"labels": [
"ANALYSIS"
],
"start": 13145,
"text": "TPO, therefore, correctly examined the same after putting the petitioner to notice."
}
},
{
"from_name": "label",
"id": "b775e288dea74618baa9de41c7e05523",
"to_name": "text",
"type": "labels",
"value": {
"end": 13455,
"labels": [
"ANALYSIS"
],
"start": 13228,
"text": "\n With respect to adjustment towards payment of subscription fees, the case of the department is that the TPO has undertaken a detail analysis, the same is subject to opposition by the petitioner before the Revenue Authorities."
}
},
{
"from_name": "label",
"id": "d7bba88e5dcb41f0af80d4433f2d7cda",
"to_name": "text",
"type": "labels",
"value": {
"end": 13564,
"labels": [
"ANALYSIS"
],
"start": 13455,
"text": "\n This Court should not entertain a challenge on this ground and the petitioner be relegated to appeal route."
}
},
{
"from_name": "label",
"id": "db98a7939ccd4b56a8b5de0fa69c0cf0",
"to_name": "text",
"type": "labels",
"value": {
"end": 13804,
"labels": [
"ANALYSIS"
],
"start": 13566,
"text": "3. Before deciding the rival contentions, we may record that learned counsel Mr. Chhotaray for the department had raised an objection to the very maintainability of this petition contending that the petition is filed at a premature stage."
}
},
{
"from_name": "label",
"id": "519a73e083274deb83e25ebdbb9ce643",
"to_name": "text",
"type": "labels",
"value": {
"end": 13971,
"labels": [
"ANALYSIS"
],
"start": 13804,
"text": "\nHis argument was that whatever be the nature of the order passed by the TPO, the petitioner must be reletgated to the departmental proceedings and thereafter, appeal."
}
},
{
"from_name": "label",
"id": "af862c9f20da480e894bcd2b14f49134",
"to_name": "text",
"type": "labels",
"value": {
"end": 14067,
"labels": [
"ANALYSIS"
],
"start": 13972,
"text": "At this stage, the Court should not examine the legality or otherwise of the report of the TPO."
}
},
{
"from_name": "label",
"id": "aae3e70377e54032b5d19aaf26ae33e9",
"to_name": "text",
"type": "labels",
"value": {
"end": 14142,
"labels": [
"ANALYSIS"
],
"start": 14067,
"text": "\n 4. We would first deal with this preliminary objection of the department."
}
},
{
"from_name": "label",
"id": "c78e1058e25a477abcf9fffc025573b5",
"to_name": "text",
"type": "labels",
"value": {
"end": 14352,
"labels": [
"ANALYSIS"
],
"start": 14143,
"text": "It is well settled through series of judgments of the High Courts and Supreme Court that writ jurisdiction of the High Courts in exercise of powers under Article 226 of Constitution of India is extremely wide."
}
},
{
"from_name": "label",
"id": "0bcdd7bfc4b44b1abb626540cd35b9f9",
"to_name": "text",
"type": "labels",
"value": {
"end": 14599,
"labels": [
"ANALYSIS"
],
"start": 14353,
"text": "If a jurisdictional error is pointed out or it is shown that an authority has acted wholly without jurisdiction, the Court can, without relegating the petitioner to the departmental or even statutory remedies, strike down exercise of such powers."
}
},
{
"from_name": "label",
"id": "e7276e8b7434411f94733d5e21c3c678",
"to_name": "text",
"type": "labels",
"value": {
"end": 15043,
"labels": [
"ANALYSIS"
],
"start": 14600,
"text": "In case of Calcutta Discount Co Ltd Vs. ITO & Anr.1, the Constitution Bench of the Supreme Court in the context of a notice of reopening of assessment issued by the Assessing Officer had held and observed that, though the writ of prohibition or certiorary will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting 1 41 ITR 191 without jurisdiction."
}
},
{
"from_name": "label",
"id": "79d817f3365347eeb8460e4e5bcaa19e",
"to_name": "text",
"type": "labels",
"value": {
"end": 15319,
"labels": [
"ANALYSIS"
],
"start": 15044,
"text": "Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts, it is well settled, will issue appropriate orders or directions to prevent such consequences."
}
},
{
"from_name": "label",
"id": "5543c4114779491ba01fa09358473e85",
"to_name": "text",
"type": "labels",
"value": {
"end": 15537,
"labels": [
"ANALYSIS"
],
"start": 15320,
"text": "The existence of such alternative remedy is not however always a sufficient reason for refusing a party quick relief by a writ or order prohibiting an authority acting without jurisdiction from continuing such action."
}
},
{
"from_name": "label",
"id": "a0d702b38e9c4afa8d4600deb2f45ba0",
"to_name": "text",
"type": "labels",
"value": {
"end": 15809,
"labels": [
"ANALYSIS"
],
"start": 15538,
"text": "It was further observed that, when the Constitution confers on the High Courts the power to give relief it becomes the duty of the courts to give such relief in fit cases and the courts would be failing to perform their duty if relief is refused without adequate reasons."
}
},
{
"from_name": "label",
"id": "ba65eb46916b4d2a9523647e7a717e32",
"to_name": "text",
"type": "labels",
"value": {
"end": 15899,
"labels": [
"ANALYSIS"
],
"start": 15810,
"text": "It is not necessary to refer to large number of authorities on the point in this context."
}
},
{
"from_name": "label",
"id": "d46a772e2325447793a6fb466696efd8",
"to_name": "text",
"type": "labels",
"value": {
"end": 16185,
"labels": [
"ANALYSIS"
],
"start": 15899,
"text": "\nTherefore, if we find that the action of the TPO or a part of it which can be severed from the rest was wholly without jurisdiction, we would not hesitate in striking down such order or part thereof merely because the statute provides certain appeal remedies to the aggrieved assessee."
}
},
{
"from_name": "label",
"id": "9bb78df3794f4030a31bcda05a021412",
"to_name": "text",
"type": "labels",
"value": {
"end": 16325,
"labels": [
"ANALYSIS"
],
"start": 16185,
"text": "\n 5. In this background, we may first advert to the transfer pricing adjustment in relation to the payment of creditors in demerger process."
}
},
{
"from_name": "label",
"id": "cf6cbd1e3076497492cf31033947e50d",
"to_name": "text",
"type": "labels",
"value": {
"end": 16507,
"labels": [
"ANALYSIS"
],
"start": 16326,
"text": "We may recall, admitted position is that the petitioner, holding a belief that this transaction was not a specified domestic transaction, had not reported the same in the form 3CEB."
}
},
{
"from_name": "label",
"id": "babd15fdebfe4fd2a782a534c268c3b5",
"to_name": "text",
"type": "labels",
"value": {
"end": 16644,
"labels": [
"ANALYSIS"
],
"start": 16508,
"text": "The reference made by the Assessing Officer to the TPO was confined to those specified domestic transactions reported by the petitioner."
}
},
{
"from_name": "label",
"id": "c620a6e053b1405fbc12790c03ce66df",
"to_name": "text",
"type": "labels",
"value": {
"end": 16789,
"labels": [
"ANALYSIS"
],
"start": 16645,
"text": "Consequently, undisputed fact that emerges from the record is that this transaction was not part of the reference made by the Assessing Officer."
}
},
{
"from_name": "label",
"id": "74560e917fc147a39db41378f243f912",
"to_name": "text",
"type": "labels",
"value": {
"end": 16950,
"labels": [
"ANALYSIS"
],
"start": 16790,
"text": "In this context, the question arises whether the TPO could have on his own, suo motu examined the transaction and made transfer pricing adjustment in his order."
}
},
{
"from_name": "label",
"id": "6df6f1f0b83e4e0493c2832d898581d9",
"to_name": "text",
"type": "labels",
"value": {
"end": 16975,
"labels": [
"ANALYSIS"
],
"start": 16950,
"text": "\n 6. Chapter X of the Act"
}
},
{
"from_name": "label",
"id": "5308ebebc469454793e1c35b87bafd33",
"to_name": "text",
"type": "labels",
"value": {
"end": 17036,
"labels": [
"ANALYSIS"
],
"start": 16976,
"text": "pertains to special provisions relating to avoidance of tax."
}
},
{
"from_name": "label",
"id": "110b9a5775254758baff6089eb73fa5a",
"to_name": "text",
"type": "labels",
"value": {
"end": 17179,
"labels": [
"ANALYSIS"
],
"start": 17037,
"text": "Section 92 contained in the said chapter pertains to computation of income from international transaction having regard to arm's length price."
}
},
{
"from_name": "label",
"id": "b1783ba273b84beb85f5a044078bd237",
"to_name": "text",
"type": "labels",
"value": {
"end": 17362,
"labels": [
"ANALYSIS"
],
"start": 17180,
"text": "As is well known, when these transfer pricing provisions were initially introduced in the Act, only international transactions were brought within fold of transfer pricing mechanism."
}
},
{
"from_name": "label",
"id": "5a804344264e4e1c9284a4f6d3db5407",
"to_name": "text",
"type": "labels",
"value": {
"end": 17553,
"labels": [
"ANALYSIS"
],
"start": 17362,
"text": "\nSubsequently, several amendments were made in the provisions contained in Chapter X by Finance Act, 2012 bringing within the fold of transfer pricing mechanism certain domestic transactions."
}
},
{
"from_name": "label",
"id": "b9f6d5e7b40448d78f09a490d58634b3",
"to_name": "text",
"type": "labels",
"value": {
"end": 17859,
"labels": [
"ANALYSIS"
],
"start": 17554,
"text": "Sub-section (2A) inserted in Section 92 of the Act by Finance Act 2012 w.e.f. 1.4.2013 provides that any allowance for an expenditure or interest or allocation of any cost or expense or any income in relation to the specified domestic transaction shall be computed having regard to the arm's length price."
}
},
{
"from_name": "label",
"id": "5388b750c399495aa1dd6b8574abbc5b",
"to_name": "text",
"type": "labels",
"value": {
"end": 17925,
"labels": [
"ANALYSIS"
],
"start": 17860,
"text": "Clause (ii) of Section 92F defines the term 'arm's length price'."
}
},
{
"from_name": "label",
"id": "1ca3b59df4d246faa6a42c94f5d7cc54",
"to_name": "text",
"type": "labels",
"value": {
"end": 18065,
"labels": [
"ANALYSIS"
],
"start": 17926,
"text": "The meaning of term 'associated enterprise' is provided in Section 92A. Section 92BA pertains to meaning of specified domestic transaction."
}
},
{
"from_name": "label",
"id": "01c23535d9c240cd92f8c382d2b4d908",
"to_name": "text",
"type": "labels",
"value": {
"end": 18462,
"labels": [
"ANALYSIS"
],
"start": 18066,
"text": "Clause (i) thereof provided that for the purpose of the said Section and Sections 92, 92C, 92D and 92E specified domestic transaction in case of an assessee would mean any expenditure in respect of which payment has been made or is to be made to a person, referred to in clause (b) of sub- section (2) of Section 40A.\n 7. Section 92CA of the Act pertains to reference to Transfer Pricing Officer."
}
},
{
"from_name": "label",
"id": "b7186d89007042c3b94c1a81db8f260e",
"to_name": "text",
"type": "labels",
"value": {
"end": 18729,
"labels": [
"ANALYSIS"
],
"start": 18463,
"text": "Relevant portion of this Section reads as under:- (1) Where any person, being the assessee, has entered into an international transaction [or specified domestic transaction] in any previous year, and the Assessing Officer considers it necessary or expedient so to do"
}
},
{
"from_name": "label",
"id": "580d3f4f798c4a359d9c875428a9d0b8",
"to_name": "text",
"type": "labels",
"value": {
"end": 18997,
"labels": [
"ANALYSIS"
],
"start": 18729,
"text": ", he may, with the previous approval of the [Principal Commissioner or] Commissioner, refer the computation of the arm's length price in relation to the said international transaction or specified domestic transaction under section 92C to the Transfer Pricing Officer."
}
},
{
"from_name": "label",
"id": "f6cb6434f5da4289a998fae203da7fe7",
"to_name": "text",
"type": "labels",
"value": {
"end": 19428,
"labels": [
"ANALYSIS"
],
"start": 18997,
"text": "\n (2) Where a reference is made under sub-section (1), the Transfer Pricing Officer shall serve a notice on the assessee requiring him to produce or cause to be produced on a date to be specified therein, any evidence on which the assessee may rely in support of the computation made by him of the arm's length price in relation to the international transaction [or specified domestic transaction] referred to in sub-section (1).\n "
}
},
{
"from_name": "label",
"id": "18cc93b90a9c4de4a9410e22e9c6efff",
"to_name": "text",
"type": "labels",
"value": {
"end": 19808,
"labels": [
"ANALYSIS"
],
"start": 19428,
"text": "[(2A) Where any other international transaction [other than an international transaction referred under sub-section (1)], comes to the notice of the Transfer Pricing Officer during the course of the proceedings before him, the provisions of this Chapter shall apply as if such other international transaction is an international transaction referred to him under sub-section (1).]"
}
},
{
"from_name": "label",
"id": "dd038ddb9ea54b2cb36b1c92edc2178d",
"to_name": "text",
"type": "labels",
"value": {
"end": 20183,
"labels": [
"ANALYSIS"
],
"start": 19809,
"text": "[(2B) Where in respect of an international transaction, the assessee has not furnished the report under section 92E and such transaction comes to the notice of the Transfer Pricing Officer during the course of the proceeding before him, the provisions of this Chapter shall apply as if such transaction is an international transaction referred to him under sub-section (1).]"
}
},
{
"from_name": "label",
"id": "011e8d1124414b7b96dd74bdf9e8e035",
"to_name": "text",
"type": "labels",
"value": {
"end": 20561,
"labels": [
"ANALYSIS"
],
"start": 20184,
"text": "[(2C) Nothing contained in sub-section (2B) shall empower the Assessing Officer either to assess or reassess under section 147 or pass an order enhancing the assessment or reducing a refund already made or otherwise increasing the liability of the assessee under section 154, for any assessment year, proceedings for which have been completed before the 1st day of July, 2012.]"
}
},
{
"from_name": "label",
"id": "43f658e43a094f1793f44a4d112c5f2e",
"to_name": "text",
"type": "labels",
"value": {
"end": 21275,
"labels": [
"ANALYSIS"
],
"start": 20562,
"text": "(3) On the date specified in the notice under sub-section (2), or as soon thereafter as may be, after hearing such evidence as the assessee may produce, including any information or documents referred to in sub-section (3) of section 92D and after considering such evidence as the Transfer Pricing Officer may require on any specified points and after taking into account all relevant materials which he has gathered, the Transfer Pricing Officer shall, by order in writing, determine the arm's length price in relation to the international transaction [or specified domestic transaction] in accordance with sub-section (3) of section 92C and send a copy of his order to the Assessing Officer and to the assessee."
}
},
{
"from_name": "label",
"id": "b00c012c71384b5c81ff8c51f5a3b820",
"to_name": "text",
"type": "labels",
"value": {
"end": 21866,
"labels": [
"ANALYSIS"
],
"start": 21277,
"text": "[(3A) Where a reference was made under sub-section (1) before the 1st day of June, 2007 but the order under sub-section (3) has not been made by the Transfer Pricing Officer before the said date, or a reference under sub-section (1) is made on or after the 1st day of June, 2007, an order under sub-section (3) may be made at any time before sixty days prior to the date on which the period of limitation referred to in section 153, or as the case may be, in section 153Bfor making the order of assessment or reassessment or recomputation or fresh assessment, as the case may be, expires:]"
}
},
{
"from_name": "label",
"id": "b44053fcce3c4987aad24fd83a0d8ece",
"to_name": "text",
"type": "labels",
"value": {
"end": 22236,
"labels": [
"ANALYSIS"
],
"start": 21867,
"text": "[Provided that in the circumstances referred to in clause (ii) or clause (x) of Explanation 1 to section 153, if the period of limitation available to the Transfer Pricing Officer for making an order is less than sixty days, such remaining period shall be extended to sixty days and the aforesaid period of limitation shall be deemed to have been extended accordingly.]"
}
},
{
"from_name": "label",
"id": "992312726ba142c78f2e53e8a265b897",
"to_name": "text",
"type": "labels",
"value": {
"end": 22498,
"labels": [
"ANALYSIS"
],
"start": 22237,
"text": "[(4) On receipt of the order under sub-section (3), the Assessing Officer shall proceed to compute the total income of the assessee under sub-section (4) of section 92C in conformity with the arm's length price as so determined by the Transfer Pricing Officer.]"
}
},
{
"from_name": "label",
"id": "300f602324bc41f88d015f37a4431dbb",
"to_name": "text",
"type": "labels",
"value": {
"end": 22839,
"labels": [
"ANALYSIS"
],
"start": 22499,
"text": "8. Section 92E requires every person who has entered into an international transaction or a specified domestic tranasaction during a previous year to obtain a report from an accountant and furnish the report on or before the specified date in the prescribed form and verified in specified manner containing particulars as may be prescribed."
}
},
{
"from_name": "label",
"id": "d28017e07e5045d3ac5ce79ea167aff1",
"to_name": "text",
"type": "labels",
"value": {
"end": 23320,
"labels": [
"ANALYSIS"
],
"start": 22839,
"text": "\n 9. Analysis of above noted statutory provisions would show that under sub-section (1) of Section 92CA, where any person has entered into an international transaction or specified domestic transaction in any previous year and the Assessing Officer considers it necessary or expedient so to do, he may, with the previous approval of the Principal Commissioner or Commissioner refer the computation of arm's length price in relation to such transaction under Section 92C to the TPO."
}
},
{
"from_name": "label",
"id": "a81157462b6348acb6fdd01cf261124a",
"to_name": "text",
"type": "labels",
"value": {
"end": 23359,
"labels": [
"ANALYSIS"
],
"start": 23321,
"text": "Two things may be noted at this stage."
}
},
{
"from_name": "label",
"id": "7449ad6a4cd44e79acb4c6b5c1c10d72",
"to_name": "text",
"type": "labels",
"value": {
"end": 23486,
"labels": [
"ANALYSIS"
],
"start": 23360,
"text": "The group of words \"or specified domestic transaction\" were added to the said sub-section by Finance Act 2012 w.e.f. 1.4.2013."
}
},
{
"from_name": "label",
"id": "465dc5710539426789875e781f8f559c",
"to_name": "text",
"type": "labels",
"value": {
"end": 23660,
"labels": [
"ANALYSIS"
],
"start": 23487,
"text": "Secondly, the reference that the Assessing Officer may make to the TPO in this sub-section would be with the previous approval of the Principal Commissioner or Commissioner."
}
},
{
"from_name": "label",
"id": "259852eb55a341e0b7b66b563de97011",
"to_name": "text",
"type": "labels",
"value": {
"end": 23895,
"labels": [
"ANALYSIS"
],
"start": 23660,
"text": "\n 10. As per sub-section (2) of Section 92CA, where a reference is made under sub-section (1), the TPO shall serve a notice to the assessee calling for details in relation to international transaction or specified domestic transaction."
}
},
{
"from_name": "label",
"id": "2c59567961d844ae8de752fda7009e87",
"to_name": "text",
"type": "labels",
"value": {
"end": 24012,
"labels": [
"ANALYSIS"
],
"start": 23895,
"text": "\nHere also, the group of words \"or specified domestic transaction\" were inserted by Finance Act 2012 w.e.f.\n1.4.2013."
}
},
{
"from_name": "label",
"id": "cac59685232e4910b9a37627037fe84f",
"to_name": "text",
"type": "labels",
"value": {
"end": 24403,
"labels": [
"ANALYSIS"
],
"start": 24013,
"text": "Sub-section (2A) provides that where any other international transaction other than an international transaction referred to in sub-section (1) comes to the notice of the TPO during the course of the proceedings before him, the provisions of the said chapter would apply as if such other international transaction was an international transaction referred to him under sub-section (1).\n 11."
}
},
{
"from_name": "label",
"id": "d6951baf20ce4bdbad96bbb50f91c34a",
"to_name": "text",
"type": "labels",
"value": {
"end": 24565,
"labels": [
"ANALYSIS"
],
"start": 24404,
"text": "Sub-section (2A) was inserted by Finance Act 2011 w.e.f. 1.6.2011 and sub-section (2B) was inserted by Finance Act, 2012 with retrospective effect from 1.6.2002."
}
},
{
"from_name": "label",
"id": "fec85520e2be42e3a92be4858281d32c",
"to_name": "text",
"type": "labels",
"value": {
"end": 24872,
"labels": [
"ANALYSIS"
],
"start": 24566,
"text": "These two sub-sections have been introduced by the legislature in order to overcome the limitation of the TPO to examine an international transaction which has either not been reported by the Assessing Officer under sub-section (1) or which the assessee has omitted to report as required under Section 92E."
}
},
{
"from_name": "label",
"id": "ed8d3693fff745d2a69e12368a141878",
"to_name": "text",
"type": "labels",
"value": {
"end": 25067,
"labels": [
"ANALYSIS"
],
"start": 24873,
"text": "Sub-section (2B) of Section 92CA would cover a situation where the assessee does not report such transaction but it comes to the notice of the TPO during the court of the proceedings before him."
}
},
{
"from_name": "label",
"id": "f64be178e6a74b4fae7872cfb9c76e25",
"to_name": "text",
"type": "labels",
"value": {
"end": 25166,
"labels": [
"ANALYSIS"
],
"start": 25068,
"text": "In such a situation, he can examine as if the same has been referred to him under sub-section (1)."
}
},
{
"from_name": "label",
"id": "1bba92d08d6049ed95c5969f3236d60c",
"to_name": "text",
"type": "labels",
"value": {
"end": 25371,
"labels": [
"ANALYSIS"
],
"start": 25167,
"text": "Sub-section (2A) would cover a situation where an international transaction has not been referred to TPO by the Assessing Officer which comes to his notice during the course of the proceedings before him."
}
},
{
"from_name": "label",
"id": "1e0bf1f95ef3478c8c3562f4b75e7b71",
"to_name": "text",
"type": "labels",
"value": {
"end": 25518,
"labels": [
"ANALYSIS"
],
"start": 25372,
"text": "In such a situation, he would examine the transaction as if such international transaction is a transaction referred to him under sub-section (1)."
}
},
{
"from_name": "label",
"id": "77bb1873934c4c3180fd7419468921f9",
"to_name": "text",
"type": "labels",
"value": {
"end": 25634,
"labels": [
"ANALYSIS"
],
"start": 25519,
"text": "The common feature of both these sub-sections is that they take within the sweep only an international transaction."
}
},
{
"from_name": "label",
"id": "0abff26771e943d28e83862207857a04",
"to_name": "text",
"type": "labels",
"value": {
"end": 25713,
"labels": [
"ANALYSIS"
],
"start": 25635,
"text": "Conspicuous by absence is the reference to any specified domestic transaction."
}
},
{
"from_name": "label",
"id": "7333e44b14d04ff0b0bedb05b6b9598f",
"to_name": "text",
"type": "labels",
"value": {
"end": 26047,
"labels": [
"ANALYSIS"
],
"start": 25713,
"text": "\n 12. One thing therefore, that can be safely concluded is that the legislature while making amendments in various provisions contained in Chapter X of the Act, covering the cases of specified domestic transactions in transfer pricing mechanism, did not make any such corresponding change in sub-sections (2A) or (2B) of Section 92CA."
}
},
{
"from_name": "label",
"id": "c829a940ddf249259d6c59f8d12ffbd6",
"to_name": "text",
"type": "labels",
"value": {
"end": 26116,
"labels": [
"ANALYSIS"
],
"start": 26048,
"text": "We may recall, sub-section (2A) was inserted by Finance Act of 2011."
}
},
{
"from_name": "label",
"id": "1fe9e5a477ab4e66a8aaee1b0d09acc1",
"to_name": "text",
"type": "labels",
"value": {
"end": 26397,
"labels": [
"ANALYSIS"
],
"start": 26116,
"text": "\nTherefore, when under Finance Act of 2012, the specified domestic transactions were being made subject to transfer pricing mechanism, there was no reason for the legislature, if so thought necessary, to include a reference to specified domestic transaction under sub-section (2A)."
}
},
{
"from_name": "label",
"id": "12afad2c2e8d4f4a822db2d886d64dfe",
"to_name": "text",
"type": "labels",
"value": {
"end": 26642,
"labels": [
"ANALYSIS"
],
"start": 26398,
"text": "More significant indication of the conscious legislative process is the fact that sub-section (2B) was inserted under the same Finance Act of 2012 by which the specified domestic transactions became subject matter of transfer pricing mechanism."
}
},
{
"from_name": "label",
"id": "ca4e675c4b8f447bbf23b0ab1b3240e4",
"to_name": "text",
"type": "labels",
"value": {
"end": 26828,
"labels": [
"ANALYSIS"
],
"start": 26643,
"text": "We must, therefore, presume that the legislature consciously decided not to include a reference to a specified domestic transaction under sub-section (2A) and (2B) of Section 92CA.\n 13."
}
},
{
"from_name": "label",
"id": "cf6fe7aa19854b83b28c923c8ece978b",
"to_name": "text",
"type": "labels",
"value": {
"end": 27242,
"labels": [
"ANALYSIS"
],
"start": 26829,
"text": "It is indisputable that by virtue of sub-sections (2A) and (2B) of Section 92CA, in case of an international transaction, the TPO would have an authority to examine any international transaction which comes to his notice during the proceedings, whether a reference in this respect was made by the Assessing Officer or not and whether the assessee had reported such transaction under Section 92E of the Act or not."
}
},
{
"from_name": "label",
"id": "f4f92012193a410e8434f53f66a4e192",
"to_name": "text",
"type": "labels",
"value": {
"end": 27448,
"labels": [
"ANALYSIS"
],
"start": 27243,
"text": "However, in view of specific non-inclusion of the specified domestic transaction under the said sub- sections, in so far as the domestic transactions are concerned, the situation would be vastly different."
}
},
{
"from_name": "label",
"id": "f5053b36c730479b8e91ab18e97cf792",
"to_name": "text",
"type": "labels",
"value": {
"end": 27752,
"labels": [
"ANALYSIS"
],
"start": 27448,
"text": "\n 14. In plain terms, in absence of sub-sections (2A) and (2B) of Section 92CA, the TPO would get jurisdiction to examine a transaction whether it is international or specified domestic transaction, only upon reference being made by the Assessing Officer under sub-section (1) of Section 92CA of the Act."
}
},
{
"from_name": "label",
"id": "5ab2c316ce704d88ab190ce73d40610e",
"to_name": "text",
"type": "labels",
"value": {
"end": 28032,
"labels": [
"ANALYSIS"
],
"start": 27753,
"text": "Sub-section (2) of Section 92CA provides that where a reference is made under sub-section (1), the TPO would serve a notice to the assessee requiring him to furnish details in relation to international transaction or specified domestic transaction referred to in sub-section (1)."
}
},
{
"from_name": "label",
"id": "d1277f6eeaef4d778665563150bff228",
"to_name": "text",
"type": "labels",
"value": {
"end": 28260,
"labels": [
"ANALYSIS"
],
"start": 28033,
"text": "Thus, the jurisdiction of the TPO to issue a notice to the assessee would be in relation to international transaction or specified domestic transaction for which reference is made by the Assessing Officer under sub-section (1)."
}
},
{
"from_name": "label",
"id": "b62307b6b8b54566ae0511e6684fa9d1",
"to_name": "text",
"type": "labels",
"value": {
"end": 28668,
"labels": [
"ANALYSIS"
],
"start": 28261,
"text": "It is precisely for this reason that sub-sections (2A) and (2B) provide a deeming fiction where they provide that in case of an international transaction not referred to the TPO or an international transaction not reported by the assessee, which comes to his notice during the proceedings, the provision of the Chapter would apply as if such international transaction was one referred to in sub-section (1)."
}
},
{
"from_name": "label",
"id": "89461f5192f448d890b153578cea0d9e",
"to_name": "text",
"type": "labels",
"value": {
"end": 28835,
"labels": [
"ANALYSIS"
],
"start": 28669,
"text": "In absence of this deeming fiction, it would not be open for the TPO to exercise the powers under the said chapter in relation to the transaction not referred to him."
}
},
{
"from_name": "label",
"id": "18370c254d5e4692b43cc863b77f1c70",
"to_name": "text",
"type": "labels",
"value": {
"end": 28885,
"labels": [
"ANALYSIS"
],
"start": 28836,
"text": "The reference to be made by the Assessing Officer"
}
},
{
"from_name": "label",
"id": "3b7ff624e01a455587369f085b2430c0",
"to_name": "text",
"type": "labels",
"value": {
"end": 28912,
"labels": [
"ANALYSIS"
],
"start": 28886,
"text": "is not an empty formality."
}
},
{
"from_name": "label",
"id": "d6ef1d95d3774414905f894c1c4e263c",
"to_name": "text",
"type": "labels",
"value": {
"end": 29006,
"labels": [
"ANALYSIS"
],
"start": 28913,
"text": "Said reference has to be made only on approval of the Principal Commissioner or Commissioner."
}
},
{
"from_name": "label",
"id": "8070b491e3e04c32b7c998f017b84df9",
"to_name": "text",
"type": "labels",
"value": {
"end": 29130,
"labels": [
"ANALYSIS"
],
"start": 29007,
"text": "Legislature, requires the Assessing Officer to obtain an approval from senior Revenue Authority before a reference is made."
}
},
{
"from_name": "label",
"id": "0f4d833e12914723b5721c081ee1d899",
"to_name": "text",
"type": "labels",
"value": {
"end": 29254,
"labels": [
"ANALYSIS"
],
"start": 29131,
"text": "Such requirement cannot be jettisoned by the TPO exercising sue motu jurisdiction over the transaction not reported to him."
}
},
{
"from_name": "label",
"id": "a2df53b574cb47a6a16d41445721d2bb",
"to_name": "text",
"type": "labels",
"value": {
"end": 29639,
"labels": [
"ANALYSIS"
],
"start": 29254,
"text": "\n 15. This Court in case of Vodafone India Services Pvt Ltd Vs. Union of India & Ors.2 considered a question whether the TPO could have considered a transaction coming to his notice during the course of the proceedings before him, though not referred to him by the Assessing Officer in a case which arose prior to 1.6.2011 when sub-section (2A) was inserted in Section 92CA of the Act."
}
},
{
"from_name": "label",
"id": "e97c289ba34749578be23bbbdd91b4f5",
"to_name": "text",
"type": "labels",
"value": {
"end": 29700,
"labels": [
"ANALYSIS"
],
"start": 29640,
"text": "In this context, the Court held and observed as under:- \"28."
}
},
{
"from_name": "label",
"id": "5eb9b50368764beaa3d72154ca6eb1bd",
"to_name": "text",
"type": "labels",
"value": {
"end": 29802,
"labels": [
"ANALYSIS"
],
"start": 29701,
"text": "Sub-section (2A) undoubtedly confers fresh jurisdiction upon and extends the jurisdiction of the TPO."
}
},
{
"from_name": "label",
"id": "e06ee2c3fd5c4dd788e9a9e404d0b0e3",
"to_name": "text",
"type": "labels",
"value": {
"end": 29969,
"labels": [
"ANALYSIS"
],
"start": 29803,
"text": "Prior thereto, the TPO was not entitled to deal with or consider international transactions which came to his notice without the same being referred to him by the AO."
}
},
{
"from_name": "label",
"id": "5073f73e561a4288838786f1cb91d3c4",
"to_name": "text",
"type": "labels",
"value": {
"end": 30302,
"labels": [
"ANALYSIS"
],
"start": 29969,
"text": "\n Prior to sub-section (2A) being introduced with effect from 1st June, 2011, the TPO was entitled to determine the arm's length price in relation to an international transaction only upon the same being 2 [2013] 359 ITR 133 (Bom) referred to him for computation by the AO with the previous approval of the Commissioner.\"\n 16."
}
},
{
"from_name": "label",
"id": "a2f23ec2ff7c465b8e794bff830cfc3b",
"to_name": "text",
"type": "labels",
"value": {
"end": 30401,
"labels": [
"ANALYSIS"
],
"start": 30303,
"text": "Even the Central Board of Direct Taxes (\"CBDT\" for short) has dealt with this situation similarly."
}
},
{
"from_name": "label",
"id": "c28c16c3b05d481e804397f6748b7a39",
"to_name": "text",
"type": "labels",
"value": {
"end": 30521,
"labels": [
"ANALYSIS"
],
"start": 30402,
"text": "In an instruction 3 of 2003 dated 20.5.2013, following clarification was made:- (ii) Role of Transfer Pricing Officer :"
}
},
{
"from_name": "label",
"id": "6c4f5705136949778ac9878b9bfef028",
"to_name": "text",
"type": "labels",
"value": {
"end": 30606,
"labels": [
"ANALYSIS"
],
"start": 30522,
"text": "The role of the TPO begins after a reference is received from the Assessing Officer."
}
},
{
"from_name": "label",
"id": "05e9e3af677143b29e1e553dfd288be6",
"to_name": "text",
"type": "labels",
"value": {
"end": 30786,
"labels": [
"ANALYSIS"
],
"start": 30607,
"text": "In terms of Section 92CA, this role is limited to the determination of arm's length price in relation to the international transaction(s) referred to him by the Assessing Officer."
}
},
{
"from_name": "label",
"id": "ed8880d2808e45d29ef6e0a8a69c88b3",
"to_name": "text",
"type": "labels",
"value": {
"end": 31085,
"labels": [
"ANALYSIS"
],
"start": 30787,
"text": "If during the course of proceedings before him, it is found that there are certain other transactions; while have not been referred to him by the Assessing Officer, he will have to take up the matter with the Assessing Officer so that a fresh reference is received with regard to such transactions."
}
},
{
"from_name": "label",
"id": "d2954a0e7336491e9750ec9c7180d45c",
"to_name": "text",
"type": "labels",
"value": {
"end": 31174,
"labels": [
"ANALYSIS"
],
"start": 31086,
"text": "It may be noted that the reference to the TPO is transaction and enterprise specific.\"\n "
}
},
{
"from_name": "label",
"id": "9ccba2ab1e204135891db5f9fa934ac0",
"to_name": "text",
"type": "labels",
"value": {
"end": 31293,
"labels": [
"ANALYSIS"
],
"start": 31174,
"text": "In later Instruction No. 15/2015 dated 16.10.2015, it was clarified as under:- \"4. Role of Transfer Pricing Officer 4.1"
}
},
{
"from_name": "label",
"id": "e406ccd0fbde4439a27f5f98c90561b1",
"to_name": "text",
"type": "labels",
"value": {
"end": 31363,
"labels": [
"ANALYSIS"
],
"start": 31294,
"text": "The role of the TPO begins after a reference is received from the AO."
}
},
{
"from_name": "label",
"id": "3fdb61a973bd4eb28ba79cad03e0dd8f",
"to_name": "text",
"type": "labels",
"value": {
"end": 31524,
"labels": [
"ANALYSIS"
],
"start": 31364,
"text": "In terms of Section 92CA of the Act, this role is limited to the determination of the ALP in relation to international transaction(s) referred to him by the AO."
}
},
{
"from_name": "label",
"id": "0a49e403969542c1b40cb828c1aa71ea",
"to_name": "text",
"type": "labels",
"value": {
"end": 31808,
"labels": [
"ANALYSIS"
],
"start": 31525,
"text": "However, if any other international transaction comes to the notice of the TPO during the course of the proceedings before him, then he is empowered to determine the ALP of such other international transactions also by virtue of sub-sections (2A) and (2B) of Section 92CA of the Act."
}
},
{
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"id": "92c3a142bd9a4bbdad6705e8280a9983",
"to_name": "text",
"type": "labels",
"value": {
"end": 31901,
"labels": [
"ANALYSIS"
],
"start": 31809,
"text": "The transfer price has to be determined by the TPO in terms of Section 92C of the Act.\"\n 17."
}
},
{
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"id": "5e5970f9d43a4ecdbebff6e45260c576",
"to_name": "text",
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"value": {
"end": 32162,
"labels": [
"ANALYSIS"
],
"start": 31902,
"text": "Inescapable conclusion that we have reached is that in relation to a specified domestic transaction, the TPO can under take transfer pricing study only in relation to those transactions which are referred to him under sub-section (1) of Section 92C of the Act."
}
},
{
"from_name": "label",
"id": "4c404bb760934aef8673b28bec49f081",
"to_name": "text",
"type": "labels",
"value": {
"end": 32462,
"labels": [
"ANALYSIS"
],
"start": 32163,
"text": "Sub-section (2A) and (2B) of Section 92C are confined to international transactions and with the aid of any interpretive process, the said provision cannot be applied to empower the TPO to examine any specified domestic transaction not referred to him by the Assessing Officer under sub-section (1)."
}
},
{
"from_name": "label",
"id": "ce370c1861544e53b1106bc80eb3a378",
"to_name": "text",
"type": "labels",
"value": {
"end": 32539,
"labels": [
"ANALYSIS"
],
"start": 32463,
"text": "Any other view would be doing violence to the plain language of the statute."
}
},
{
"from_name": "label",
"id": "9e88f19b97034a28bb63e0f8554f69cc",
"to_name": "text",
"type": "labels",
"value": {
"end": 32796,
"labels": [
"ANALYSIS"
],
"start": 32539,
"text": "\n 18. Learned counsel for the Revenue is correct in pointing out that in the present case, the assessee did not report such transaction at all and therefore, the Assessing Officer had no occasion to notice such transaction as specified domestic transaction."
}
},
{
"from_name": "label",
"id": "978884c44f5145d498c3b4b767015be0",
"to_name": "text",
"type": "labels",
"value": {
"end": 32877,
"labels": [
"ANALYSIS"
],
"start": 32797,
"text": "His reference, therefore, was necessarily confined to the reported transactions."
}
},
{
"from_name": "label",
"id": "b21ce759512b4828a67a02dc5dbc8a91",
"to_name": "text",
"type": "labels",
"value": {
"end": 33009,
"labels": [
"ANALYSIS"
],
"start": 32878,
"text": "The TPO noticed this anomaly, he proceeded to determine the arm's length price after full opportunity of hearing to the petitioner."
}
},
{
"from_name": "label",
"id": "bc45ba54ddb640cda4b8efdfac495c49",
"to_name": "text",
"type": "labels",
"value": {
"end": 33196,
"labels": [
"ANALYSIS"
],
"start": 33009,
"text": "\n 19. Even in such a situation, the statute does not permit the TPO to assume the jurisdiction to determine the arm's length price of a specified domestic transaction not reported to him."
}
},
{
"from_name": "label",
"id": "69def05a6bf944219eb04d48b6e64653",
"to_name": "text",
"type": "labels",
"value": {
"end": 33407,
"labels": [
"ANALYSIS"
],
"start": 33197,
"text": "There may be number of cases where the assessee may bonafide hold a belief that certain transaction is not a specified domestic transaction and therefore, would not report the same under Section 92E of the Act."
}
},
{
"from_name": "label",
"id": "a672f8b8df724d42aa13a1ea990e9463",
"to_name": "text",
"type": "labels",
"value": {
"end": 33548,
"labels": [
"ANALYSIS"
],
"start": 33408,
"text": "Whether bonafide or not, not making a report by the assessee of a specified domestic transaction would not leave the revenue without remedy."
}
},
{
"from_name": "label",
"id": "a112cee1ca644edeb00c362df199e757",
"to_name": "text",
"type": "labels",
"value": {
"end": 33763,
"labels": [
"ANALYSIS"
],
"start": 33549,
"text": "As clarified by CBDT in the instructions dated 20.5.2013, it is always open for the TPO who notices such transaction during the course of the proceedings before him to call for a reference by the Assessing Officer."
}
},
{
"from_name": "label",
"id": "c4ef57d5ca4d4eddb198b44c89e6c7a8",
"to_name": "text",
"type": "labels",
"value": {
"end": 33925,
"labels": [
"ANALYSIS"
],
"start": 33764,
"text": "If the Assessing Officer does make a report, only then TPO can undertake further steps as envisaged under sub-section (2) and other sub-sections of Section 92CA."
}
},
{
"from_name": "label",
"id": "a2052d90928840a4a43e4060bb493b81",
"to_name": "text",
"type": "labels",
"value": {
"end": 33970,
"labels": [
"ANALYSIS"
],
"start": 33926,
"text": "As noted, the statute is sufficiently clear."
}
},
{
"from_name": "label",
"id": "1a019c01d41f4c518d6931e8cceb41e8",
"to_name": "text",
"type": "labels",
"value": {
"end": 34253,
"labels": [
"ANALYSIS"
],
"start": 33971,
"text": "The legislature while expanding the scope of the transfer pricing study by the TPO to a transaction not referred him or not reported by the Assessing Officer, under sub-section (2A) and (2B) of Section 92CA, has confined the applicability thereof only to international transactions."
}
},
{
"from_name": "label",
"id": "c3da6cdf2e074ccbafb08792aca27202",
"to_name": "text",
"type": "labels",
"value": {
"end": 34475,
"labels": [
"ANALYSIS"
],
"start": 34254,
"text": "The TPO exercising such powers suo motu in relation to a specified domestic transaction would be transgressing his jurisdiction and in the process would render the requirement of sub-section (1) of Section 92CA redundant."
}
},
{
"from_name": "label",
"id": "3e3897af954642efb68cf1aea2c1570e",
"to_name": "text",
"type": "labels",
"value": {
"end": 34621,
"labels": [
"ANALYSIS"
],
"start": 34476,
"text": "As noted, the reference that the Assessing Officer can make to the TPO would have the approval of the Principal Commissioner or the Commissioner."
}
},
{
"from_name": "label",
"id": "096074fb24c242d1bbc7f0578d7bbf7c",
"to_name": "text",
"type": "labels",
"value": {
"end": 34782,
"labels": [
"ANALYSIS"
],
"start": 34621,
"text": "\n 20. Under these circumstances, in relation to the transaction of payment to creditors in demerger process, the TPO had no jurisdiction to make any adjustments."
}
},
{
"from_name": "label",
"id": "678ea07411de48efb66f7918686dceab",
"to_name": "text",
"type": "labels",
"value": {
"end": 34958,
"labels": [
"ANALYSIS"
],
"start": 34783,
"text": "Under these circumstances and even otherwise, we are not inclined to examine the adjustment on merits though it was argued before us by the learned counsel for the petitioner."
}
},
{
"from_name": "label",
"id": "ef59b2988fd94b59b995b97c3362baab",
"to_name": "text",
"type": "labels",
"value": {
"end": 35213,
"labels": [
"ANALYSIS"
],
"start": 34958,
"text": "\n 21. Coming to the adjustment made by the TPO towards payment of subscription fees, even though the petitioner may have certain arguable points, that by itself, would not enable us to bypass the entire statutory scheme of assessment, appeal and revision."
}
},
{
"from_name": "label",
"id": "e893c9c48c294441954aa55876e64102",
"to_name": "text",
"type": "labels",
"value": {
"end": 35319,
"labels": [
"ANALYSIS"
],
"start": 35214,
"text": "Once the TPO makes his report, the provisions are made in the statute how such report would be acted upon"
}
},
{
"from_name": "label",
"id": "74df0ef6c03f450b92a4c7ab8edca211",
"to_name": "text",
"type": "labels",
"value": {
"end": 35484,
"labels": [
"ANALYSIS"
],
"start": 35319,
"text": ". The petitioner would have full innings to oppose the contents of such report and take such challenge in the appeal in case the petitioner fails at the first stage."
}
},
{
"from_name": "label",
"id": "7fd91a509d8047cca0963bda9c27a9bb",
"to_name": "text",
"type": "labels",
"value": {
"end": 35682,
"labels": [
"ANALYSIS"
],
"start": 35485,
"text": "When a statute that too, fiscal statute makes detail provisions for assessment, appeals and revisions, ordinarily the Court would not examine the issues on merits bypassing such statutory remedies."
}
},
{
"from_name": "label",
"id": "ff5ec52cb9874ddd9087af0ec37326e1",
"to_name": "text",
"type": "labels",
"value": {
"end": 35803,
"labels": [
"ANALYSIS"
],
"start": 35683,
"text": "Reference in this respect can be made to the decision of the Supreme Court in the case of CIT Vs. Chhabil Dass Agarwal3."
}
},
{
"from_name": "label",
"id": "77ca71444d4d4e228ceaa7e2b3e7225f",
"to_name": "text",
"type": "labels",
"value": {
"end": 36012,
"labels": [
"ANALYSIS"
],
"start": 35804,
"text": "In the said judgment taking note of the larger number of decisions of the Supreme Court in context of exercising writ jurisdiction when statutory appeal remedies are available, it was observed as under:- \"19."
}
},
{
"from_name": "label",
"id": "f96bf1ee477c4d4c8034a8e6f3b8bd94",
"to_name": "text",
"type": "labels",
"value": {
"end": 36887,
"labels": [
"ANALYSIS"
],
"start": 36013,
"text": "Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal's case, Titagarh Paper Mills' case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for 3 [2013] 357 (SC) redressal of grievance still holds the field."
}
},
{
"from_name": "label",
"id": "952cf6631de747f897db1e51cfb02cbb",
"to_name": "text",
"type": "labels",
"value": {
"end": 37047,
"labels": [
"ANALYSIS"
],
"start": 36888,
"text": "Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation."
}
},
{
"from_name": "label",
"id": "7ac16fcb85744c21b6f1cad57cee69dc",
"to_name": "text",
"type": "labels",
"value": {
"end": 37236,
"labels": [
"RATIO"
],
"start": 37047,
"text": "\n All the contentions on merits raised by the learned counsel for the petitioner in relation to this adjustment require minute examination of documents and materials on record and accounts."
}
},
{
"from_name": "label",
"id": "32da7d2136574d808387d9fd84360f11",
"to_name": "text",
"type": "labels",
"value": {
"end": 37327,
"labels": [
"RATIO"
],
"start": 37237,
"text": "Even the contention of breach of natural justice is not possible of summary consideration."
}
},
{
"from_name": "label",
"id": "fbf276a319644990923c2a6c4f24ee07",
"to_name": "text",
"type": "labels",
"value": {
"end": 37386,
"labels": [
"RATIO"
],
"start": 37328,
"text": "The TPO had issued several notices during the proceedings."
}
},
{
"from_name": "label",
"id": "78f87aec01ae49fb97aad5f2b36bb9f9",
"to_name": "text",
"type": "labels",
"value": {
"end": 37603,
"labels": [
"RATIO"
],
"start": 37386,
"text": "\nWhether precise query was raised in relation to the adjustment ultimately suggested would require minute and detailed examination of documents on record, an exercise we are not inclined to undertake in this petition."
}
},
{
"from_name": "label",
"id": "aae47523491f448f9fa9072fcdb88047",
"to_name": "text",
"type": "labels",
"value": {
"end": 37793,
"labels": [
"RATIO"
],
"start": 37604,
"text": "When the Act provides for statutory appeals and further appeal to the High Court on substantial question of law, such exercise, we would be well advised not to undertake in a writ petition."
}
},
{
"from_name": "label",
"id": "f76cec920f134a2593c54e7e72a668f3",
"to_name": "text",
"type": "labels",
"value": {
"end": 38013,
"labels": [
"RPC"
],
"start": 37793,
"text": "\n 22. In view of the above discussion, the impugned order of the TPO is quashed in so far as it provides adjustment of the arm's length price towards payment of creditors in demerger process of a sum of Rs. 57.54 crores."
}
},
{
"from_name": "label",
"id": "3e50978bd60449a896a74f1699bf143d",
"to_name": "text",
"type": "labels",
"value": {
"end": 38057,
"labels": [
"RPC"
],
"start": 38014,
"text": "Rest of the impugned order stands as it is."
}
},
{
"from_name": "label",
"id": "6550956e83ff4b83a64c9d88875b2ba0",
"to_name": "text",
"type": "labels",
"value": {
"end": 38103,
"labels": [
"RPC"
],
"start": 38057,
"text": "\n 23. The petition is disposed of accordingly."
}
},
{
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"id": "358af6c90b3748578560e9173e693fa0",
"to_name": "text",
"type": "labels",
"value": {
"end": 38154,
"labels": [
"NONE"
],
"start": 38103,
"text": "\n [ SARANG V. KOTWAL, J. ] [ AKIL KURESHI, J ]"
}
}
]
}
] | 1,768 | {
"text": "R.M(Pr.ivAatMe SBecrEetRarKy) AR IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n O.O.C.J.\n\n WRIT PETITION NO. 3386 OF 2018\n\n Times Global Broadcasting Company Ltd .. Petitioner\n\n Versus\n\n Union of India & Ors. .. Respondents\n\n ...................\n\n Mr. Jehangir Mistri, Sr. Counsel a/w Mr. Harsh Kapadia for the\n Petitioner\n\n Mr. P. C. Chhotaray a/w Mr. P.A. Narayanan for Respondent Nos. 2\n to 4\n\n ...................\n\n CORAM : AKIL KURESHI &\n SARANG V. KOTWAL, JJ.\n\n DATE : MARCH 15, 2019.\n\n ORAL JUDGMENT (Per Akil Kureshi, J.) 1. The petitioner has challenged an order dated 15.10.2018 as at Annexure \"M\" to the petition passed by the Transfer Pricing Officer (\"TPO\" for short) under Section 92CA(3) of the Income Tax Act, 1961 (\"the Act\" for short).\n 2. Brief facts are as under:- 2.1 Petitioner - Times Global Broadcasting Company Ltd is a company registered under the Companies Act, 1956 and his a wholly owned subsidiary of Benett, Coleman and Company Ltd (hereinafter referred to as \"BCCL\"). The petitioner is engaged in the business of distribution of television channels for the Times Group entities. It also provides support services to Times Group entities in the area of finance, legal, human resources, commercial, administration and technical and broadcasting. With effect from 1.4.2014, the petitioner demerged one of its business undertakings into BCCL. The scheme of demerger was approved by the High Court at Bombay by an order dated 16.1.2015. Consequently, the business pertaining to \"Times Now\" television channel of the petitioner got vested in BCCL.\nAll assets and liabilities pertaining to demerged undertaking were also transferred to BCCL at the book value as on 31.3.2014. The difference between assets and liabilities was then adjusted against the brought forward profit and loss account balance as on 31.3.2014. However, no expenditure or income was charged to the profit and loss account for the financial year as per the scheme of demerger approved by the High Court.\n 2.2 For the assessment year 2015-16, the petitioner filed return of income on 28.11.2015 declaring total income of Rs. 5.90 crores (rounded off). In the said return, the petitioner had reported following two specified domestic transactions:- Sr. Nature of Related Amount Method No. transaction party (Rs. in Crs) adopted for benchmarking 1 Payment of subscription BCCL 39.45 Transaction Net Margin fees earned from distribution ZENL 9.73 Method ('TNMM') services Key Managerial 3.00 Other Method (Rule 10AB) 2 Payment to Key Management Personnel Personnel 52.19 Total The petitioner would point out that under the distribution services, the petitioner distributes television channels owned by BCCL and Zoom Entertainment Network Ltd ('ZENL' for short), either directly or through its distribution network. Upon distribution, it receives subscription fees, retains 8% of the fees as its service income and remits the balance to BCCL and ZENL based on their respective revenue share. Likewise, under support services, the petitioner manages back office operations of its group companies, including BCCL and ZENL. For this work, the petitioner is compensated at a cost plus 10% mark-up basis.\n 2.3 According to the petitioner, the distribution services involved a payment to related parties and accordingly, in terms of Section 92E of the Act, such transaction was reported in the prescribed form '3CEB'. According to the petitioner, the support services resulted into an income in the hands of the petitioner and therefore, the same could not be considered a specified domestic transaction and was accordingly, not reported.\n 2.4 In order to determine the arm's length of the specified domestic transaction, the petitioner had adopted TNMM as the 'Most Appropriate Method'. The petitioner presented data to contend that the payment of subscription fee to the related party was at arm's length.\n 2.5 Return of income filed by the petitioner was selected for scrutiny. The Assessing Officer made a reference to the TPO for determining the arm's length price of the specified domestic transactions reported in from \"3CEB\". The petitioner appeared before the TPO in response to the notice issued and besides others, took a contention that in view of the express omission of clause (i) to Section 92BA of the Act without any saving clause, reference itself was not competent. Further correspondence ensued between TPO and the petitioner company during which the TPO also desired to take within the sweep of transfer pricing study, the petitioner's transactions of the adjustment of assets on demerger of its unit. It may be recorded that the petitioner opposed such proposal for making transfer pricing adjustment on merits without specifically raising the objection of jurisdiction of the TPO to examine the said transaction in absence of a specific reference by the Assessing Officer. Be that as it may, the TPO passed the impugned order on 15.10.2018 in which he provided for a total adjustment of Rs. 84.09 crores. This comprised of the arm's length price adjustment of Rs. 26.55 crores made on the specified domestic transaction as reported in from 3CEB towards payment of subscription fees and arm's length price adjustment of Rs. 57.54 crores made on the specified domestic transaction not reported in form 3CEB towards what revenue contends was payment of creditors in demerger process. We may, however, record that the petitioner does not even accept that there was any such payment in the process of demerger.\n 2.6 With respect to the adjustment towards payment of subscription fees, the TPO carried out detailed analysis and examination, considered the petitioner's submissions and arrived at said figure of Rs. 26.55 crore in following manner:- Description Amount in Rs.\nTotal Operating Revenue of the Distribution Segment 53,91,00,265 Total Operating Expenses of the Distribution Segment 80,49,04,800 Operating Profit Operating Margins (26,58,04,535) Operating Margins of Comparables (49.30%) ALP adjustment with reference to variance in margins @ (49.25%) of (0.05%) Operating Revenue 26,55,06,880 With respect to suo motu adjustment towards payment of creditors in demerger process, in order to arrive at the figure of Rs. 57.54 crores, he made following observations:- \" In this instant case of assessee, the Creditors of assessee which are transferred to Holding Company and also admittedly an Associates Enterprise in a non-cash transaction of demerger represents both revenue as well as capital items as per the breakup provided by assessee in its submissions. Therefore, the same are within the ambit of \"Any Expenditure\" as provided under Section 92BA of the Act and arms length price of the transactions is required to be computed in accordance with provisions of the Act.\n The amount of outstanding creditors pertaining to the demerged unit of assessee is Nil and its books as on 31.5.2015 and hence,this amounts to a payment as envisaged under the provisions of Section 92BA of the Act.\n 7.7 As per the provisions of Section 92C of the Act, the arm's length price in relation to a specified domestic transaction shall be determined by any of the methods, being the most appropriate method, having regard to the nature of transaction or class of transaction or class of associated persons or functions performed by such persons or such other relevant factors as the Board may prescribe. The assessee has however not done the transfer pricing study of the above stated transactions nor applied any method to determine Arm's Length Price of the transactions.\n 7.8 As per provisions of section 92E of the Act, every person who has entered into an international transaction or specified domestic transaction during a previous year shall obtain a report from an accountant and furnish such report on or before the specified date in the prescribed form duly signed and verified in the prescribed manner by such accountant and setting forth such particulars as may be prescribed. The assessee is required to report the Specified Domestic Transaction in column No. 22 of Form 3CEB filed.\nHowever, no such reporting was made in the form No. 3CEB filed in respect of other SDT's already discussed above.\n 7.9 In view of the above discussed legal position and facts of the case and gross amount of creditors paid amounting to Rs.\n57,54,00,000/- as reconciled by assessee in the course of proceedings failed to report these transactions in the report filed in Form No. 3CEB and also failed to maintain and furnish proper details for determination of ALP for the transactions. The gross consideration paid being the value of asset transferred against these creditors is Rs. 62,31,00,000/- as reconciled by assessee in the course of proceedings. The assessee has however did not submit the fair market valuation and its cost of acquisition of the assets adjusted against the creditors despite repeated opportunities availed.\nTherefore, any excess payment over the book value of the creditors could not be taken into account in determination of the ALP of the creditors so paid or adjusted.\n 7.10 The assessee having squared off the creditors in its books through book entires, the provisions of Section 40A(3A) are triggered and thus, allowable expenditure representing these creditors paid will be Nil as it becomes deemed income of the assessee as per the said provisions of the Act. Accordingly, the Arms Length price of the transactions is determined at Nil by using this method considering the same to be \"other method\" recognized under the Act. An adjustment of Rs. 57,54,00,000/- is accordingly made to the total income of assessee representing ALP adjustment of the creators tranferred through demerger.\n The AO may also alternatively and without prejudice to the above adjustment bring the above amount to tax u/s. 40A(3A) of the Act.\n (Adjustment - Rs. 57,54,00,000/-) 7.11 The penalty proceedings u/s. 271AA, u/s. 271BA and 271G of the Act for non-compliance to the provisions of Section 92C, 92D and 92E of the Act in respect of above stated International Transaction with AE's are being separately initiated or intimated to the AO as the case may be.\n 7.12 AO is also requested to initiate penalty proceedings u/s. 271(1) (c) of the Act in respect of other adjustments made to total income on account of furnishing inaccurate particulars of taxable income.\n 8. TPO's conclusions: In view of the above following adjustment is made in ALP.\n Adjustment to taxable income: SR. Adjustments on account of Amount in Rs.\n 26,55,06,880 NO. 57,54,00,000 1 ALP adjustment made on SDT's reported in the form 84,09,06,880 3CEB towards payment of subscription fees.\n 2 ALP adjustment made on SDT's not reported in the form 3CEB towards payment of creditors in the Demerger Process Total Adjustments made 2.7 The petitioner has challenged both these adjustments on various grounds. With respect to adjustment of Rs. 57.54 crores towards payment of creditors in demerger process, the case of the petitioner is that in absence of any specific reference by the Assessing Officer of this transaction, it was not competent for the TPO to make any such sue motu adjustment. It was contended that even on merits, the adjustment is wholly impermissible, since in the process, no expenditure was made by the assessee, the transaction would not be covered under Section 92BA(i) of the Act. With respect to the adjustment towards payment of subscription fees, the case of the petitioner is that the same was made without proper notice. It is even otherwise ex facie bad and is against the judgments of the High Court.\n 2.8 The case of the Revenue in brief is that the TPO can examine any specified domestic transaction even if not specifically referred by the Assessing Officer. The petitioner had not reported the transaction in question though it was a specified domestic transaction. TPO, therefore, correctly examined the same after putting the petitioner to notice.\n With respect to adjustment towards payment of subscription fees, the case of the department is that the TPO has undertaken a detail analysis, the same is subject to opposition by the petitioner before the Revenue Authorities.\n This Court should not entertain a challenge on this ground and the petitioner be relegated to appeal route.\n 3. Before deciding the rival contentions, we may record that learned counsel Mr. Chhotaray for the department had raised an objection to the very maintainability of this petition contending that the petition is filed at a premature stage.\nHis argument was that whatever be the nature of the order passed by the TPO, the petitioner must be reletgated to the departmental proceedings and thereafter, appeal. At this stage, the Court should not examine the legality or otherwise of the report of the TPO.\n 4. We would first deal with this preliminary objection of the department. It is well settled through series of judgments of the High Courts and Supreme Court that writ jurisdiction of the High Courts in exercise of powers under Article 226 of Constitution of India is extremely wide. If a jurisdictional error is pointed out or it is shown that an authority has acted wholly without jurisdiction, the Court can, without relegating the petitioner to the departmental or even statutory remedies, strike down exercise of such powers. In case of Calcutta Discount Co Ltd Vs. ITO & Anr.1, the Constitution Bench of the Supreme Court in the context of a notice of reopening of assessment issued by the Assessing Officer had held and observed that, though the writ of prohibition or certiorary will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting 1 41 ITR 191 without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts, it is well settled, will issue appropriate orders or directions to prevent such consequences. The existence of such alternative remedy is not however always a sufficient reason for refusing a party quick relief by a writ or order prohibiting an authority acting without jurisdiction from continuing such action. It was further observed that, when the Constitution confers on the High Courts the power to give relief it becomes the duty of the courts to give such relief in fit cases and the courts would be failing to perform their duty if relief is refused without adequate reasons. It is not necessary to refer to large number of authorities on the point in this context.\nTherefore, if we find that the action of the TPO or a part of it which can be severed from the rest was wholly without jurisdiction, we would not hesitate in striking down such order or part thereof merely because the statute provides certain appeal remedies to the aggrieved assessee.\n 5. In this background, we may first advert to the transfer pricing adjustment in relation to the payment of creditors in demerger process. We may recall, admitted position is that the petitioner, holding a belief that this transaction was not a specified domestic transaction, had not reported the same in the form 3CEB. The reference made by the Assessing Officer to the TPO was confined to those specified domestic transactions reported by the petitioner. Consequently, undisputed fact that emerges from the record is that this transaction was not part of the reference made by the Assessing Officer. In this context, the question arises whether the TPO could have on his own, suo motu examined the transaction and made transfer pricing adjustment in his order.\n 6. Chapter X of the Act pertains to special provisions relating to avoidance of tax. Section 92 contained in the said chapter pertains to computation of income from international transaction having regard to arm's length price. As is well known, when these transfer pricing provisions were initially introduced in the Act, only international transactions were brought within fold of transfer pricing mechanism.\nSubsequently, several amendments were made in the provisions contained in Chapter X by Finance Act, 2012 bringing within the fold of transfer pricing mechanism certain domestic transactions. Sub-section (2A) inserted in Section 92 of the Act by Finance Act 2012 w.e.f. 1.4.2013 provides that any allowance for an expenditure or interest or allocation of any cost or expense or any income in relation to the specified domestic transaction shall be computed having regard to the arm's length price. Clause (ii) of Section 92F defines the term 'arm's length price'. The meaning of term 'associated enterprise' is provided in Section 92A. Section 92BA pertains to meaning of specified domestic transaction.\nClause (i) thereof provided that for the purpose of the said Section and Sections 92, 92C, 92D and 92E specified domestic transaction in case of an assessee would mean any expenditure in respect of which payment has been made or is to be made to a person, referred to in clause (b) of sub- section (2) of Section 40A.\n 7. Section 92CA of the Act pertains to reference to Transfer Pricing Officer. Relevant portion of this Section reads as under:- (1) Where any person, being the assessee, has entered into an international transaction [or specified domestic transaction] in any previous year, and the Assessing Officer considers it necessary or expedient so to do, he may, with the previous approval of the [Principal Commissioner or] Commissioner, refer the computation of the arm's length price in relation to the said international transaction or specified domestic transaction under section 92C to the Transfer Pricing Officer.\n (2) Where a reference is made under sub-section (1), the Transfer Pricing Officer shall serve a notice on the assessee requiring him to produce or cause to be produced on a date to be specified therein, any evidence on which the assessee may rely in support of the computation made by him of the arm's length price in relation to the international transaction [or specified domestic transaction] referred to in sub-section (1).\n [(2A) Where any other international transaction [other than an international transaction referred under sub-section (1)], comes to the notice of the Transfer Pricing Officer during the course of the proceedings before him, the provisions of this Chapter shall apply as if such other international transaction is an international transaction referred to him under sub-section (1).] [(2B) Where in respect of an international transaction, the assessee has not furnished the report under section 92E and such transaction comes to the notice of the Transfer Pricing Officer during the course of the proceeding before him, the provisions of this Chapter shall apply as if such transaction is an international transaction referred to him under sub-section (1).] [(2C) Nothing contained in sub-section (2B) shall empower the Assessing Officer either to assess or reassess under section 147 or pass an order enhancing the assessment or reducing a refund already made or otherwise increasing the liability of the assessee under section 154, for any assessment year, proceedings for which have been completed before the 1st day of July, 2012.] (3) On the date specified in the notice under sub-section (2), or as soon thereafter as may be, after hearing such evidence as the assessee may produce, including any information or documents referred to in sub-section (3) of section 92D and after considering such evidence as the Transfer Pricing Officer may require on any specified points and after taking into account all relevant materials which he has gathered, the Transfer Pricing Officer shall, by order in writing, determine the arm's length price in relation to the international transaction [or specified domestic transaction] in accordance with sub-section (3) of section 92C and send a copy of his order to the Assessing Officer and to the assessee.\n [(3A) Where a reference was made under sub-section (1) before the 1st day of June, 2007 but the order under sub-section (3) has not been made by the Transfer Pricing Officer before the said date, or a reference under sub-section (1) is made on or after the 1st day of June, 2007, an order under sub-section (3) may be made at any time before sixty days prior to the date on which the period of limitation referred to in section 153, or as the case may be, in section 153Bfor making the order of assessment or reassessment or recomputation or fresh assessment, as the case may be, expires:] [Provided that in the circumstances referred to in clause (ii) or clause (x) of Explanation 1 to section 153, if the period of limitation available to the Transfer Pricing Officer for making an order is less than sixty days, such remaining period shall be extended to sixty days and the aforesaid period of limitation shall be deemed to have been extended accordingly.] [(4) On receipt of the order under sub-section (3), the Assessing Officer shall proceed to compute the total income of the assessee under sub-section (4) of section 92C in conformity with the arm's length price as so determined by the Transfer Pricing Officer.] 8. Section 92E requires every person who has entered into an international transaction or a specified domestic tranasaction during a previous year to obtain a report from an accountant and furnish the report on or before the specified date in the prescribed form and verified in specified manner containing particulars as may be prescribed.\n 9. Analysis of above noted statutory provisions would show that under sub-section (1) of Section 92CA, where any person has entered into an international transaction or specified domestic transaction in any previous year and the Assessing Officer considers it necessary or expedient so to do, he may, with the previous approval of the Principal Commissioner or Commissioner refer the computation of arm's length price in relation to such transaction under Section 92C to the TPO. Two things may be noted at this stage. The group of words \"or specified domestic transaction\" were added to the said sub-section by Finance Act 2012 w.e.f. 1.4.2013. Secondly, the reference that the Assessing Officer may make to the TPO in this sub-section would be with the previous approval of the Principal Commissioner or Commissioner.\n 10. As per sub-section (2) of Section 92CA, where a reference is made under sub-section (1), the TPO shall serve a notice to the assessee calling for details in relation to international transaction or specified domestic transaction.\nHere also, the group of words \"or specified domestic transaction\" were inserted by Finance Act 2012 w.e.f.\n1.4.2013. Sub-section (2A) provides that where any other international transaction other than an international transaction referred to in sub-section (1) comes to the notice of the TPO during the course of the proceedings before him, the provisions of the said chapter would apply as if such other international transaction was an international transaction referred to him under sub-section (1).\n 11. Sub-section (2A) was inserted by Finance Act 2011 w.e.f. 1.6.2011 and sub-section (2B) was inserted by Finance Act, 2012 with retrospective effect from 1.6.2002. These two sub-sections have been introduced by the legislature in order to overcome the limitation of the TPO to examine an international transaction which has either not been reported by the Assessing Officer under sub-section (1) or which the assessee has omitted to report as required under Section 92E. Sub-section (2B) of Section 92CA would cover a situation where the assessee does not report such transaction but it comes to the notice of the TPO during the court of the proceedings before him. In such a situation, he can examine as if the same has been referred to him under sub-section (1). Sub-section (2A) would cover a situation where an international transaction has not been referred to TPO by the Assessing Officer which comes to his notice during the course of the proceedings before him. In such a situation, he would examine the transaction as if such international transaction is a transaction referred to him under sub-section (1). The common feature of both these sub-sections is that they take within the sweep only an international transaction. Conspicuous by absence is the reference to any specified domestic transaction.\n 12. One thing therefore, that can be safely concluded is that the legislature while making amendments in various provisions contained in Chapter X of the Act, covering the cases of specified domestic transactions in transfer pricing mechanism, did not make any such corresponding change in sub-sections (2A) or (2B) of Section 92CA. We may recall, sub-section (2A) was inserted by Finance Act of 2011.\nTherefore, when under Finance Act of 2012, the specified domestic transactions were being made subject to transfer pricing mechanism, there was no reason for the legislature, if so thought necessary, to include a reference to specified domestic transaction under sub-section (2A). More significant indication of the conscious legislative process is the fact that sub-section (2B) was inserted under the same Finance Act of 2012 by which the specified domestic transactions became subject matter of transfer pricing mechanism. We must, therefore, presume that the legislature consciously decided not to include a reference to a specified domestic transaction under sub-section (2A) and (2B) of Section 92CA.\n 13. It is indisputable that by virtue of sub-sections (2A) and (2B) of Section 92CA, in case of an international transaction, the TPO would have an authority to examine any international transaction which comes to his notice during the proceedings, whether a reference in this respect was made by the Assessing Officer or not and whether the assessee had reported such transaction under Section 92E of the Act or not. However, in view of specific non-inclusion of the specified domestic transaction under the said sub- sections, in so far as the domestic transactions are concerned, the situation would be vastly different.\n 14. In plain terms, in absence of sub-sections (2A) and (2B) of Section 92CA, the TPO would get jurisdiction to examine a transaction whether it is international or specified domestic transaction, only upon reference being made by the Assessing Officer under sub-section (1) of Section 92CA of the Act. Sub-section (2) of Section 92CA provides that where a reference is made under sub-section (1), the TPO would serve a notice to the assessee requiring him to furnish details in relation to international transaction or specified domestic transaction referred to in sub-section (1). Thus, the jurisdiction of the TPO to issue a notice to the assessee would be in relation to international transaction or specified domestic transaction for which reference is made by the Assessing Officer under sub-section (1). It is precisely for this reason that sub-sections (2A) and (2B) provide a deeming fiction where they provide that in case of an international transaction not referred to the TPO or an international transaction not reported by the assessee, which comes to his notice during the proceedings, the provision of the Chapter would apply as if such international transaction was one referred to in sub-section (1). In absence of this deeming fiction, it would not be open for the TPO to exercise the powers under the said chapter in relation to the transaction not referred to him. The reference to be made by the Assessing Officer is not an empty formality. Said reference has to be made only on approval of the Principal Commissioner or Commissioner. Legislature, requires the Assessing Officer to obtain an approval from senior Revenue Authority before a reference is made. Such requirement cannot be jettisoned by the TPO exercising sue motu jurisdiction over the transaction not reported to him.\n 15. This Court in case of Vodafone India Services Pvt Ltd Vs. Union of India & Ors.2 considered a question whether the TPO could have considered a transaction coming to his notice during the course of the proceedings before him, though not referred to him by the Assessing Officer in a case which arose prior to 1.6.2011 when sub-section (2A) was inserted in Section 92CA of the Act. In this context, the Court held and observed as under:- \"28. Sub-section (2A) undoubtedly confers fresh jurisdiction upon and extends the jurisdiction of the TPO. Prior thereto, the TPO was not entitled to deal with or consider international transactions which came to his notice without the same being referred to him by the AO.\n Prior to sub-section (2A) being introduced with effect from 1st June, 2011, the TPO was entitled to determine the arm's length price in relation to an international transaction only upon the same being 2 [2013] 359 ITR 133 (Bom) referred to him for computation by the AO with the previous approval of the Commissioner.\"\n 16. Even the Central Board of Direct Taxes (\"CBDT\" for short) has dealt with this situation similarly. In an instruction 3 of 2003 dated 20.5.2013, following clarification was made:- (ii) Role of Transfer Pricing Officer : The role of the TPO begins after a reference is received from the Assessing Officer. In terms of Section 92CA, this role is limited to the determination of arm's length price in relation to the international transaction(s) referred to him by the Assessing Officer. If during the course of proceedings before him, it is found that there are certain other transactions; while have not been referred to him by the Assessing Officer, he will have to take up the matter with the Assessing Officer so that a fresh reference is received with regard to such transactions. It may be noted that the reference to the TPO is transaction and enterprise specific.\"\n In later Instruction No. 15/2015 dated 16.10.2015, it was clarified as under:- \"4. Role of Transfer Pricing Officer 4.1 The role of the TPO begins after a reference is received from the AO. In terms of Section 92CA of the Act, this role is limited to the determination of the ALP in relation to international transaction(s) referred to him by the AO. However, if any other international transaction comes to the notice of the TPO during the course of the proceedings before him, then he is empowered to determine the ALP of such other international transactions also by virtue of sub-sections (2A) and (2B) of Section 92CA of the Act. The transfer price has to be determined by the TPO in terms of Section 92C of the Act.\"\n 17. Inescapable conclusion that we have reached is that in relation to a specified domestic transaction, the TPO can under take transfer pricing study only in relation to those transactions which are referred to him under sub-section (1) of Section 92C of the Act. Sub-section (2A) and (2B) of Section 92C are confined to international transactions and with the aid of any interpretive process, the said provision cannot be applied to empower the TPO to examine any specified domestic transaction not referred to him by the Assessing Officer under sub-section (1). Any other view would be doing violence to the plain language of the statute.\n 18. Learned counsel for the Revenue is correct in pointing out that in the present case, the assessee did not report such transaction at all and therefore, the Assessing Officer had no occasion to notice such transaction as specified domestic transaction. His reference, therefore, was necessarily confined to the reported transactions. The TPO noticed this anomaly, he proceeded to determine the arm's length price after full opportunity of hearing to the petitioner.\n 19. Even in such a situation, the statute does not permit the TPO to assume the jurisdiction to determine the arm's length price of a specified domestic transaction not reported to him. There may be number of cases where the assessee may bonafide hold a belief that certain transaction is not a specified domestic transaction and therefore, would not report the same under Section 92E of the Act. Whether bonafide or not, not making a report by the assessee of a specified domestic transaction would not leave the revenue without remedy. As clarified by CBDT in the instructions dated 20.5.2013, it is always open for the TPO who notices such transaction during the course of the proceedings before him to call for a reference by the Assessing Officer. If the Assessing Officer does make a report, only then TPO can undertake further steps as envisaged under sub-section (2) and other sub-sections of Section 92CA. As noted, the statute is sufficiently clear. The legislature while expanding the scope of the transfer pricing study by the TPO to a transaction not referred him or not reported by the Assessing Officer, under sub-section (2A) and (2B) of Section 92CA, has confined the applicability thereof only to international transactions. The TPO exercising such powers suo motu in relation to a specified domestic transaction would be transgressing his jurisdiction and in the process would render the requirement of sub-section (1) of Section 92CA redundant. As noted, the reference that the Assessing Officer can make to the TPO would have the approval of the Principal Commissioner or the Commissioner.\n 20. Under these circumstances, in relation to the transaction of payment to creditors in demerger process, the TPO had no jurisdiction to make any adjustments. Under these circumstances and even otherwise, we are not inclined to examine the adjustment on merits though it was argued before us by the learned counsel for the petitioner.\n 21. Coming to the adjustment made by the TPO towards payment of subscription fees, even though the petitioner may have certain arguable points, that by itself, would not enable us to bypass the entire statutory scheme of assessment, appeal and revision. Once the TPO makes his report, the provisions are made in the statute how such report would be acted upon. The petitioner would have full innings to oppose the contents of such report and take such challenge in the appeal in case the petitioner fails at the first stage. When a statute that too, fiscal statute makes detail provisions for assessment, appeals and revisions, ordinarily the Court would not examine the issues on merits bypassing such statutory remedies. Reference in this respect can be made to the decision of the Supreme Court in the case of CIT Vs. Chhabil Dass Agarwal3. In the said judgment taking note of the larger number of decisions of the Supreme Court in context of exercising writ jurisdiction when statutory appeal remedies are available, it was observed as under:- \"19. Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal's case, Titagarh Paper Mills' case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for 3 [2013] 357 (SC) redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.\n All the contentions on merits raised by the learned counsel for the petitioner in relation to this adjustment require minute examination of documents and materials on record and accounts. Even the contention of breach of natural justice is not possible of summary consideration. The TPO had issued several notices during the proceedings.\nWhether precise query was raised in relation to the adjustment ultimately suggested would require minute and detailed examination of documents on record, an exercise we are not inclined to undertake in this petition. When the Act provides for statutory appeals and further appeal to the High Court on substantial question of law, such exercise, we would be well advised not to undertake in a writ petition.\n 22. In view of the above discussion, the impugned order of the TPO is quashed in so far as it provides adjustment of the arm's length price towards payment of creditors in demerger process of a sum of Rs. 57.54 crores. Rest of the impugned order stands as it is.\n 23. The petition is disposed of accordingly.\n [ SARANG V. KOTWAL, J. ] [ AKIL KURESHI, J ] "
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{
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{
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{
"from_name": null,
"id": "bbad46c57dfd44ac983d257b1d0f03c4",
"to_name": null,
"type": null,
"value": {
"end": 46,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nAZAMJAHI MILLS LTD. HYDERABAD\n\nVs."
}
},
{
"from_name": null,
"id": "286826d26b0c46b283190d3a55960dbc",
"to_name": null,
"type": null,
"value": {
"end": 153,
"labels": [
"PREAMBLE"
],
"start": 48,
"text": "RESPONDENT:\nTHE COMMISSIONER OF INCOME TAX,HYDERABAD\n\nDATE OF JUDGMENT17/03/1976\n\nBENCH:\nKHANNA, HANS RAJ"
}
},
{
"from_name": null,
"id": "88cc48618c344d18b1766d6a5d630df0",
"to_name": null,
"type": null,
"value": {
"end": 713,
"labels": [
"PREAMBLE"
],
"start": 153,
"text": "\nBENCH:\nKHANNA, HANS RAJ\nGOSWAMI, P.K.\n\nCITATION: 1976 SCR (3) 645\n 1976 AIR 1172\n 1976 SCC (2) 258\n\nACT:\n Income-tax-Assessee in Princely State-Payment by\n\nGovernment of India by cheque posted in British India-\nWhether receipt by assessee in British India liable to\nIndian Income Tax.\n\nHEADNOTE:\n The Government of India was placing bulk purchase\n\norders with the assessee-company, a textile mill, which had,\nduring the assessment years 1945-46, 1946-47 and 1947-48,\nits registered office in the Hyderabad State outside British\nIndia."
}
},
{
"from_name": null,
"id": "3377d5a85bdb47f29e2faea8d765d445",
"to_name": null,
"type": null,
"value": {
"end": 840,
"labels": [
"PREAMBLE"
],
"start": 714,
"text": "After the despatch of the goods, the assessee was\nsubmitting its bill in the prescribed form which also\ncontained the receipt."
}
},
{
"from_name": null,
"id": "397cdbe281984d38aca98ad78eeafed4",
"to_name": null,
"type": null,
"value": {
"end": 1018,
"labels": [
"PREAMBLE"
],
"start": 841,
"text": "The receipt had the words 'Please pay\nby cheque to self/Banker on Bank/Treasury at.....' and the\nassessee used to enter the words 'Hyderabad (Dn). in the\nblank space after 'at'."
}
},
{
"from_name": null,
"id": "d344688011f743eca8da0b6288c39f5a",
"to_name": null,
"type": null,
"value": {
"end": 1469,
"labels": [
"PREAMBLE"
],
"start": 1019,
"text": "But on the back of the bulk purchase\norder form, there were instructions that the payment was to\nbe made by the Controller of Supply Accounts, Bombay, and\nthe Government of India had also issued general instructions\nto all textile mills in the Princely States that all\npayments were to be made 'by cheque on Government Treasury\nin Br. India, or alternatively on a branch in Br. India,\nwhich transacts Government business of the Reserve Bank of\nIndia."
}
},
{
"from_name": null,
"id": "1bf298fea14844e6b7f6a660131b3249",
"to_name": null,
"type": null,
"value": {
"end": 1581,
"labels": [
"PREAMBLE"
],
"start": 1470,
"text": "All payments were made on behalf of the Government of\nIndia by cheques which were sent to the assessee by post."
}
},
{
"from_name": null,
"id": "2b7cce98cb18406d873de7b15ece7715",
"to_name": null,
"type": null,
"value": {
"end": 1696,
"labels": [
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],
"start": 1581,
"text": "\nSome of the cheques were drawn on banks in Br. India and\nothers on banks in the Hyderabad State.\n^\n\n HELD:"
}
},
{
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"id": "b774c6891bb849a381fa7bc8ab9a9ff0",
"to_name": null,
"type": null,
"value": {
"end": 1743,
"labels": [
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],
"start": 1697,
"text": "The sale proceeds should be held to have been\n"
}
},
{
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"id": "ef677f09e6d44e75b9862bb78b204791",
"to_name": null,
"type": null,
"value": {
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"labels": [
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],
"start": 1743,
"text": "received"
}
},
{
"from_name": null,
"id": "3634fb65cfe44fd1ae6f9fd9d6325ed6",
"to_name": null,
"type": null,
"value": {
"end": 1767,
"labels": [
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],
"start": 1752,
"text": "by the assessee"
}
},
{
"from_name": null,
"id": "8c977a9fed7847a8ae083d2b24b8971d",
"to_name": null,
"type": null,
"value": {
"end": 1799,
"labels": [
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],
"start": 1768,
"text": "from the Government of India in"
}
},
{
"from_name": null,
"id": "6c55cb0fcc734e13b4047b69c955bf45",
"to_name": null,
"type": null,
"value": {
"end": 1886,
"labels": [
"PREAMBLE"
],
"start": 1799,
"text": "\nBritish India and not in Hyderabad State, and hence were\nsubject to Indian income-tax."
}
},
{
"from_name": null,
"id": "cf7876324f384bab83ff4b27d3b09748",
"to_name": null,
"type": null,
"value": {
"end": 1894,
"labels": [
"PREAMBLE"
],
"start": 1887,
"text": "[647F-G"
}
},
{
"from_name": null,
"id": "e12436ca50f74ae2a37c1a2115dcfe46",
"to_name": null,
"type": null,
"value": {
"end": 2127,
"labels": [
"PREAMBLE"
],
"start": 1894,
"text": "]\n\n In the absence of a request by the creditor or an\nagreement between the parties regarding the sending of money\nby cheque by post, the mere posting of the cheque would not\noperate as delivery of the cheque to the creditor."
}
},
{
"from_name": null,
"id": "cb24b611805c4f5a9bb51a7a8174706e",
"to_name": null,
"type": null,
"value": {
"end": 2393,
"labels": [
"PREAMBLE"
],
"start": 2128,
"text": "Where,\nhowever, a cheque is sent by post in pursuance of an\nagreement between the parties or a request by the creditor\nthat the money be sent by cheque by post, the post office\nwould be treated as the agent of the creditor for the\npurpose of receiving such payment."
}
},
{
"from_name": null,
"id": "baf9eb780fd642878f6111d8b74e9bd2",
"to_name": null,
"type": null,
"value": {
"end": 2496,
"labels": [
"PREAMBLE"
],
"start": 2394,
"text": "Such an agreement or\n\nrequest need not be express and may be implied from the\nfacts and circumstances."
}
},
{
"from_name": null,
"id": "df66f2d127874f6d9925430786600104",
"to_name": null,
"type": null,
"value": {
"end": 2504,
"labels": [
"PREAMBLE"
],
"start": 2497,
"text": "[648A-C"
}
},
{
"from_name": null,
"id": "0bfe2916af8f428080deae4007a67f79",
"to_name": null,
"type": null,
"value": {
"end": 2570,
"labels": [
"PREAMBLE"
],
"start": 2504,
"text": "]\n\n The facts of the case and the course of dealings show\n"
}
},
{
"from_name": null,
"id": "b7a8c6b4a46c4c0da688aaa6dd10d116",
"to_name": null,
"type": null,
"value": {
"end": 2737,
"labels": [
"PREAMBLE"
],
"start": 2570,
"text": "that it was the understanding between the Government of\nIndia and the assessee that the payment would be made on\naccount of goods supplied by the assessee, by cheques."
}
},
{
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"id": "e7623a97bdd34191b2455128e1c7a1b7",
"to_name": null,
"type": null,
"value": {
"end": 2878,
"labels": [
"PREAMBLE"
],
"start": 2738,
"text": "The\ncheques were in the very nature of things to be sent from\nBritish India by post as that is the usual and normal agency\nfor transmission."
}
},
{
"from_name": null,
"id": "cd802095ebb948fc9540838df5fdb8bb",
"to_name": null,
"type": null,
"value": {
"end": 3148,
"labels": [
"PREAMBLE"
],
"start": 2879,
"text": "As the cheques were sent to the assesseee\non behalf of the Government of India by post from British\nIndia in pursuance of an understanding between the parties,\nthe payment to the assessee shall be treated to have been\nmade in British India to the agent of the assessee."
}
},
{
"from_name": null,
"id": "7cf62a8a136a48b593bcf08645acefe7",
"to_name": null,
"type": null,
"value": {
"end": 3342,
"labels": [
"PREAMBLE"
],
"start": 3149,
"text": "[647G-\n648A]\n\n Indo re Malwa United Mills Ltd. v. Commissioner of\nIncome-tax, 59 ITR 738; Commissioner of Income-tax, Bombay\nSouth, Bombay v. Ogale Glass Works Ltd. 25 ITR 529 and Shri\n"
}
},
{
"from_name": null,
"id": "35902fe8798547bda3e64b5ae4e464dc",
"to_name": null,
"type": null,
"value": {
"end": 3349,
"labels": [
"PREAMBLE"
],
"start": 3342,
"text": "Jagdish"
}
},
{
"from_name": null,
"id": "15c2ec5529bd4f56b57451735cc2cd2b",
"to_name": null,
"type": null,
"value": {
"end": 3413,
"labels": [
"PREAMBLE"
],
"start": 3350,
"text": "Mills Ltd. v. Commissioner of Income-tax, 37 ITR\n114, followed."
}
},
{
"from_name": null,
"id": "079d7d9805c846dc826f35bafec1b71b",
"to_name": null,
"type": null,
"value": {
"end": 3509,
"labels": [
"PREAMBLE"
],
"start": 3424,
"text": "Commissioner of Income-tax, Bihar & Orissa v. Patney &\nCo. 36 ITR 488, distinguished."
}
},
{
"from_name": null,
"id": "a6bf580b20e841e1a39249be24a9a539",
"to_name": null,
"type": null,
"value": {
"end": 3550,
"labels": [
"PREAMBLE"
],
"start": 3510,
"text": "JUDGMENT:\n CIVIL APPELLATE JURISDICTION:"
}
},
{
"from_name": null,
"id": "bbea904e17f74475a37511f2d90736a0",
"to_name": null,
"type": null,
"value": {
"end": 3585,
"labels": [
"NONE"
],
"start": 3551,
"text": "Civil Appeal Nos. 980-982 of 1971."
}
},
{
"from_name": null,
"id": "b3595eced70a45f08acc7940038297b3",
"to_name": null,
"type": null,
"value": {
"end": 3721,
"labels": [
"NONE"
],
"start": 3585,
"text": "\n Appeals by Special Leave from the Judgment and Order dated the 9-2-70 of the Andhra Pradesh High Court in case Referred No. 1 of 1967."
}
},
{
"from_name": null,
"id": "7fa74cc16d424a38b042cd509411cd49",
"to_name": null,
"type": null,
"value": {
"end": 3776,
"labels": [
"NONE"
],
"start": 3721,
"text": "\n R. Vasudev Pillai and P. K. Pillai for the Appellant."
}
},
{
"from_name": null,
"id": "e6cbf440021047adb305a1768ec0e9f2",
"to_name": null,
"type": null,
"value": {
"end": 3826,
"labels": [
"NONE"
],
"start": 3776,
"text": "\n R. M. Mehta and S. P. Nayar, for the Respondent."
}
},
{
"from_name": null,
"id": "3e4e9173978d496cbc0aa6d7054db3c7",
"to_name": null,
"type": null,
"value": {
"end": 4629,
"labels": [
"NONE"
],
"start": 3826,
"text": "\n The Judgment of the Court was delivered by KHANNA, J.-This judgment would disposed of three civil appeals Nos. 980 to 982 of 1971 which have been filed by special leave against the judgment of the Andhra Pradesh High Court on a reference under section 66 of the Indian Income-tax Act, 1922 (hereinafter referred to as the Act) answering besides two other questions with which we are not concerned, the following question against the assessee appellant and in favour of the revenue: \"Whether, on the facts and in the circumstances of the case, the sale proceeds were received from Government of India in British India?\"\n The assessee company is a public limited company registered in what was at the relevant time the Nizam's Dominion (hereinafter referred to as Hyderabad State) outside British India."
}
},
{
"from_name": null,
"id": "038b03a3268e4ad5bc07e4cdaa7b5d33",
"to_name": null,
"type": null,
"value": {
"end": 4814,
"labels": [
"FAC"
],
"start": 4630,
"text": "The matter relates to assessment years 1945-46, 1946-47 and 1947-48 for which the relevant accounting period ended on October 5, 1944, October 5, 1945 and October 5, 1946 respectively."
}
},
{
"from_name": null,
"id": "28aea2279cc543dcb57ab2296b029edc",
"to_name": null,
"type": null,
"value": {
"end": 4887,
"labels": [
"FAC"
],
"start": 4814,
"text": "\n The assessee company had a textile mill at Warangal in Hyderabad State."
}
},
{
"from_name": null,
"id": "3dc24c13dee249d89687b0fcccbd57a2",
"to_name": null,
"type": null,
"value": {
"end": 4981,
"labels": [
"FAC"
],
"start": 4888,
"text": "During the Second World War the company supplied textile goods to the Department of Supplies."
}
},
{
"from_name": null,
"id": "0599723fc9614b54851336408a25ab86",
"to_name": null,
"type": null,
"value": {
"end": 5042,
"labels": [
"FAC"
],
"start": 4981,
"text": "\n Government of India under what was known as \"Panel System\"."
}
},
{
"from_name": null,
"id": "6f43f0f87cbf48afbc510ec47c35f721",
"to_name": null,
"type": null,
"value": {
"end": 5163,
"labels": [
"FAC"
],
"start": 5042,
"text": "\n The Government used to place bulk purchase orders with the company for the supply to goods according to specifications."
}
},
{
"from_name": null,
"id": "322b19c4f89747f3870662a1edb0a216",
"to_name": null,
"type": null,
"value": {
"end": 5236,
"labels": [
"FAC"
],
"start": 5163,
"text": "\n The delivery of the goods used to be made by the company FOR Warrangal."
}
},
{
"from_name": null,
"id": "1ee5d6eb0bb64babad0c64ba4c42ff05",
"to_name": null,
"type": null,
"value": {
"end": 5354,
"labels": [
"FAC"
],
"start": 5237,
"text": "After the goods were despatched, the assessee company submitted bill in form W.S.B. 116 giving details of the supply."
}
},
{
"from_name": null,
"id": "70621c82f8f545e4b4f1eda6937fcbcd",
"to_name": null,
"type": null,
"value": {
"end": 5541,
"labels": [
"FAC"
],
"start": 5355,
"text": "The prescribed form contained the following receipt: \"Received Payment One anna Please pay by Cheque to Self stamp on ============== original Bankers copy only."
}
},
{
"from_name": null,
"id": "97b526c9527d4caca9cc665eb3b8d1a8",
"to_name": null,
"type": null,
"value": {
"end": 5582,
"labels": [
"FAC"
],
"start": 5542,
"text": "on Bank at...........\n ------------"
}
},
{
"from_name": null,
"id": "d22fc9048d464ebaa2332dbc48e4ed9e",
"to_name": null,
"type": null,
"value": {
"end": 5623,
"labels": [
"FAC"
],
"start": 5583,
"text": "Treasury Contractor's Signature "
}
},
{
"from_name": null,
"id": "01313e8fba764e8ea19613d659f1081a",
"to_name": null,
"type": null,
"value": {
"end": 5650,
"labels": [
"FAC"
],
"start": 5623,
"text": "Contractor's signature \"\n "
}
},
{
"from_name": null,
"id": "7d38228faf2e4b5299836977954b2d86",
"to_name": null,
"type": null,
"value": {
"end": 5743,
"labels": [
"FAC"
],
"start": 5650,
"text": "The assessee used to enter the words \"Hyderabad (Dn)\" in the blank space after the word \"at\"."
}
},
{
"from_name": null,
"id": "4fefd00546224c49a93f20c7b28d9de8",
"to_name": null,
"type": null,
"value": {
"end": 5889,
"labels": [
"FAC"
],
"start": 5744,
"text": "On the back of the bulk purchase order form, there were instructions that the payment was to be made by the Controller of Supply Accounts Bombay."
}
},
{
"from_name": null,
"id": "6841915d04f849e3ad08463ac5e33077",
"to_name": null,
"type": null,
"value": {
"end": 6185,
"labels": [
"FAC"
],
"start": 5890,
"text": "The Government of India issued general instructions to all textile mills in the Indian States that all payments were to be made \"by cheque on Government Treasury in British India, or alternatively on a branch in British India, which transacts Government business of the Reserve Bank of India\".\n "
}
},
{
"from_name": null,
"id": "f968cee63ad54f79a23ecd5fec549d62",
"to_name": null,
"type": null,
"value": {
"end": 6297,
"labels": [
"FAC"
],
"start": 6185,
"text": "All payments were made on behalf of the Government of India by cheques, which were sent to the assessee by post."
}
},
{
"from_name": null,
"id": "308bc443696c492dad0a8d4488f075ac",
"to_name": null,
"type": null,
"value": {
"end": 6400,
"labels": [
"FAC"
],
"start": 6298,
"text": "Some of these cheques were drawn on banks in British India and the others on banks in Hyderabad State."
}
},
{
"from_name": null,
"id": "9eb2984ffa084ab081e82fcce51e366b",
"to_name": null,
"type": null,
"value": {
"end": 6561,
"labels": [
"FAC"
],
"start": 6401,
"text": "All the cheques received from the Government, including those drawn on banks in British India, were collected through the assessee's bankers in Hyderabad State."
}
},
{
"from_name": null,
"id": "6f49ff5d2fe543e38a11e11609c34823",
"to_name": null,
"type": null,
"value": {
"end": 6814,
"labels": [
"FAC"
],
"start": 6563,
"text": "In making the assessment the Income-tax Officer held that the sale proceeds in respect of cheques, which had been drawn on banks in British India, were received by the assessee in British India and as such the assessee was liable to tax under the Act."
}
},
{
"from_name": null,
"id": "0e467d2a100d4c92bca818eade97011b",
"to_name": null,
"type": null,
"value": {
"end": 7008,
"labels": [
"FAC"
],
"start": 6815,
"text": "In respect of cheques drawn on the banks in Hyderabad State, the Income-tax Officer held that no income had accrued in British India and was, therefore, not subject to assessment under the Act."
}
},
{
"from_name": null,
"id": "727d72bd475f4e16a1bf3f983120ad06",
"to_name": null,
"type": null,
"value": {
"end": 7152,
"labels": [
"FAC"
],
"start": 7009,
"text": "The assessee took the matter in appeal to the Assistant Commissioner claiming that no portion of the income had been received in British India."
}
},
{
"from_name": null,
"id": "d322123ce1dc4df78645baf61520897e",
"to_name": null,
"type": null,
"value": {
"end": 7325,
"labels": [
"FAC"
],
"start": 7153,
"text": "The Appellate Assistant Commissioner held that the entire sale proceeds had been received in British India and he, therefore, passed an order enhancing the assessed amount."
}
},
{
"from_name": null,
"id": "b22a8a61147e48338b04693baa3e0989",
"to_name": null,
"type": null,
"value": {
"end": 7441,
"labels": [
"FAC"
],
"start": 7326,
"text": "On further appeal by the assessee the Income-tax Appellate Tribunal upheld the order of the Assistant Commissioner."
}
},
{
"from_name": null,
"id": "fb34a1d1f06a488899f474245d2433b1",
"to_name": null,
"type": null,
"value": {
"end": 7706,
"labels": [
"FAC"
],
"start": 7442,
"text": "At the request of the assessee the question reproduced above along with two other questions relating to the power of the Appellate Assistant Commissioner to enhance the amount of assessable income as also the question of limitation were referred to the High Court."
}
},
{
"from_name": null,
"id": "a4f080be4dfc4e40988293dea6396d35",
"to_name": null,
"type": null,
"value": {
"end": 7879,
"labels": [
"RLC"
],
"start": 7707,
"text": "The High Court answered the question reproduced above as well as the other two questions with which we are not concerned, in favour of the revenue and against the assessee."
}
},
{
"from_name": null,
"id": "68470588557f40708c29e8d1f9fb5d9b",
"to_name": null,
"type": null,
"value": {
"end": 8103,
"labels": [
"RLC"
],
"start": 7880,
"text": "So far as the question reproduced above is concerned, the High Court took the view that the matter was concluded by the decision of this Court in the case of Indore Malwa United Mills Ltd. v. Commissioner of Income- tax(1)."
}
},
{
"from_name": null,
"id": "ec64d8a15e2e473d820541069d0f405e",
"to_name": null,
"type": null,
"value": {
"end": 8426,
"labels": [
"ARG_PETITIONER"
],
"start": 8105,
"text": "In appeal before us Mr. Vasudev Pillai on behalf of the appellant has assailed the judgment of the High Court and has contended that on the facts and circumstances of the case, the sale proceeds should be held to have been received by the assessee from the Government of India not in British India but in Hyderabad State."
}
},
{
"from_name": null,
"id": "10db651d132e4c78a3944bf5d6f2f7f3",
"to_name": null,
"type": null,
"value": {
"end": 8481,
"labels": [
"ANALYSIS"
],
"start": 8427,
"text": "There is, in our opinion, no force in this contention."
}
},
{
"from_name": null,
"id": "f74246526fc9436f894563c7f61d952d",
"to_name": null,
"type": null,
"value": {
"end": 8683,
"labels": [
"ANALYSIS"
],
"start": 8481,
"text": "\n It would appear from the resume of facts given above that all payments were made on behalf of the Government of India by cheques and those cheques were sent by post from British India to the assessee."
}
},
{
"from_name": null,
"id": "650eacb7793642b8b32813b483e4c5b8",
"to_name": null,
"type": null,
"value": {
"end": 8916,
"labels": [
"ANALYSIS"
],
"start": 8684,
"text": "The facts of the case and the course of dealings show that it was the understanding between the Government of India and the assessee company that the payment would be made on account of the goods supplied by the assessee by cheques."
}
},
{
"from_name": null,
"id": "b040fdf26d504e118742551f5141b599",
"to_name": null,
"type": null,
"value": {
"end": 9070,
"labels": [
"ANALYSIS"
],
"start": 8917,
"text": "The cheques were in the very nature of things to be sent from British India by post as that is usual and normal agency for transmission of such articles."
}
},
{
"from_name": null,
"id": "a2a8e3fa5ed24187b6f37605f3d78413",
"to_name": null,
"type": null,
"value": {
"end": 9317,
"labels": [
"ANALYSIS"
],
"start": 9071,
"text": "As the cheques were sent to the assessee company on behalf of the Government of India by post from British India in pursuance of an understanding between the parties, the payment to the assessee shall be treated to havebeen made in British India."
}
},
{
"from_name": null,
"id": "ca612b3316ef4e44aeb612cdf175a103",
"to_name": null,
"type": null,
"value": {
"end": 9396,
"labels": [
"ANALYSIS"
],
"start": 9318,
"text": "The post office in such cases is taken to be an agent of the assessee company."
}
},
{
"from_name": null,
"id": "7149273434f04ea398c3d76bcdf2946b",
"to_name": null,
"type": null,
"value": {
"end": 9642,
"labels": [
"ANALYSIS"
],
"start": 9397,
"text": "The position in law is that in the absence of a request by the creditor or an agreement between the parties regarding the sending of money by cheque by post, the mere posting of cheque would not operate as delivery of the cheque to the creditor."
}
},
{
"from_name": null,
"id": "b9cd1db6bcb84e4f9643c082b04741dc",
"to_name": null,
"type": null,
"value": {
"end": 9908,
"labels": [
"ANALYSIS"
],
"start": 9642,
"text": "\nWhere, however, a cheque is sent by post in pursuance of an agreement between the parties or a request by the creditor that the money be sent by cheque by post, the post office would be treated as the agent of the creditor for the purpose of receiving such payment."
}
},
{
"from_name": null,
"id": "5a778651868e4f2cb59659cf23f33e4f",
"to_name": null,
"type": null,
"value": {
"end": 10049,
"labels": [
"ANALYSIS"
],
"start": 9909,
"text": "The agreement or request need not, however, be express; it may also be implied to be spelt out from the facts and circumstances of the case."
}
},
{
"from_name": null,
"id": "5ae93a2cc394437689eac526e3448cae",
"to_name": null,
"type": null,
"value": {
"end": 10161,
"labels": [
"ANALYSIS"
],
"start": 10049,
"text": "\n The question of law arising in this case is not res integra and is concluded by three decisions of this Court."
}
},
{
"from_name": null,
"id": "b4e5c65ac119408cbafdeb8708f54b4b",
"to_name": null,
"type": null,
"value": {
"end": 10239,
"labels": [
"PRE_RELIED"
],
"start": 10161,
"text": "\nIn Commissioner of Income-tax, Bombay South, Bombay v. Ogale Glass Works Ltd."
}
},
{
"from_name": null,
"id": "a73ea30891bb406bab092e7251cb4df1",
"to_name": null,
"type": null,
"value": {
"end": 10428,
"labels": [
"PRE_RELIED"
],
"start": 10240,
"text": "the assessee, a non-resident company carrying on business of manufacturing certain articles in the State of Aundh, secured some contract for the supply of goods to the Government of India."
}
},
{
"from_name": null,
"id": "c11d44ee704c4884b20cab1c7e88159a",
"to_name": null,
"type": null,
"value": {
"end": 10816,
"labels": [
"PRE_RELIED"
],
"start": 10429,
"text": "The contract provided that \"unless otherwise agreed between the parties payment for the delivery of the stores will be made on submission of bills in the prescribed form in accordance with instructions given in the acceptance of tender by cheque on a Government Treasury in India or on a branch of the Reserve Bank of India or the Imperial Bank of India transacting Government business.\""
}
},
{
"from_name": null,
"id": "e76fc1ea50674b08bd5d0a2ed89e36e7",
"to_name": null,
"type": null,
"value": {
"end": 10974,
"labels": [
"PRE_RELIED"
],
"start": 10817,
"text": "The assessee submitted the bill in the prescribed form and wrote on it as follows: \"Kindly remit the amount by a cheque in our favour on any bank in Bombay.\""
}
},
{
"from_name": null,
"id": "210ffc30e7514e1facbea23a0b0c287a",
"to_name": null,
"type": null,
"value": {
"end": 11061,
"labels": [
"PRE_RELIED"
],
"start": 10975,
"text": "The assessee received cheques drawn on the Bombay branch of the Reserve Bank of India."
}
},
{
"from_name": null,
"id": "0fe9d38298d04d8bab22e3f5a9c1dc00",
"to_name": null,
"type": null,
"value": {
"end": 11133,
"labels": [
"PRE_RELIED"
],
"start": 11062,
"text": "The assessee realised the amount of the cheques through the Aundh Bank."
}
},
{
"from_name": null,
"id": "4e52acc18c364b4f824ed3fd9f641201",
"to_name": null,
"type": null,
"value": {
"end": 11219,
"labels": [
"PRE_RELIED"
],
"start": 11134,
"text": "It was held that the posting of cheques in Delhi in law amounted to payment in Delhi."
}
},
{
"from_name": null,
"id": "e227a45e676e42059a88bf076840d591",
"to_name": null,
"type": null,
"value": {
"end": 11370,
"labels": [
"PRE_RELIED"
],
"start": 11220,
"text": "It was further observed that the circumstances of the case revealed an implied agreement under which cheques were accepted unconditionally as payment."
}
},
{
"from_name": null,
"id": "be524820fe88423c83c971d97c03786b",
"to_name": null,
"type": null,
"value": {
"end": 11629,
"labels": [
"PRE_RELIED"
],
"start": 11371,
"text": "Even if the cheques, according to this Court, were taken conditionally the cheques having been not dishonoured, the payment related back to the dates of the receipt of the cheques and in law the dates of payment were the dates of the delivery of the cheques."
}
},
{
"from_name": null,
"id": "93f94eedb37d4466a6e49febe8589c3d",
"to_name": null,
"type": null,
"value": {
"end": 11789,
"labels": [
"PRE_RELIED"
],
"start": 11630,
"text": "Income, profits and gains in respect of the sales made to the Government of India were accordingly held to have been received by the assessee in British India."
}
},
{
"from_name": null,
"id": "a30792e5e1464ac5a4156984a4d30fbe",
"to_name": null,
"type": null,
"value": {
"end": 12294,
"labels": [
"PRE_RELIED"
],
"start": 11790,
"text": "Dealing with the question of the understanding between the parties in that case, this Court observed: \"According to the course of business usage in general to which, as part of the surrounding circumstances, attention has to be paid, under the authorities cited above, the parties must have intended that the cheques should be sent by post which is the usual and normal agency for transmission of such articles and according to the Tribunal's findings they were in fact received by the assessee by post.\""
}
},
{
"from_name": null,
"id": "119f451a27884fe29399082151799323",
"to_name": null,
"type": null,
"value": {
"end": 12512,
"labels": [
"ARG_PETITIONER"
],
"start": 12294,
"text": "\nThe above case been sought to be distinguished by Mr. Pillai on the ground that in that case the assessee had written on the bill form thewords: \"kindly remit the amount by cheque in our favour on any bank in Bombay.\""
}
},
{
"from_name": null,
"id": "92cd918fee894b3a8d1d8544c16dd4a8",
"to_name": null,
"type": null,
"value": {
"end": 12591,
"labels": [
"ARG_PETITIONER"
],
"start": 12513,
"text": "It is said that the bill submitted by the appellant contained no such writing."
}
},
{
"from_name": null,
"id": "52835688695240c79e3eda25f14a3267",
"to_name": null,
"type": null,
"value": {
"end": 12949,
"labels": [
"PRE_RELIED"
],
"start": 12592,
"text": "A similar argument was advanced on behalf of the assessee company in the case of Shri Jagdish Mills Ltd. v. Commissioner of Income-tax(1) and it was held that the absence of such an express request would not make material difference if the course of dealings between the parties showed an implied request by the assessee company to send the cheques by post."
}
},
{
"from_name": null,
"id": "ce30b232f97e4225b61dc0bc32668456",
"to_name": null,
"type": null,
"value": {
"end": 13049,
"labels": [
"PRE_RELIED"
],
"start": 12950,
"text": "In Jagdish Mills' case the assessee company was incorporated in Baroda State outside British India."
}
},
{
"from_name": null,
"id": "49b1475762f048b382630d27ef486f76",
"to_name": null,
"type": null,
"value": {
"end": 13143,
"labels": [
"PRE_RELIED"
],
"start": 13050,
"text": "The company accepted orders for the supply of goods F.O.R. Baroda to the Government of India."
}
},
{
"from_name": null,
"id": "ca6c3a5b86ed4443b6b4b60442db2f41",
"to_name": null,
"type": null,
"value": {
"end": 13203,
"labels": [
"PRE_RELIED"
],
"start": 13144,
"text": "The manufacture and delivery of goods took place at Baroda."
}
},
{
"from_name": null,
"id": "2bdf230ea6624fd3b35ca0b39b0769b9",
"to_name": null,
"type": null,
"value": {
"end": 13391,
"labels": [
"PRE_RELIED"
],
"start": 13204,
"text": "The company after effecting delivery of the goods submitted bills in the prescribed form which contained the sentence that \"Government should pay the amount due to the company by cheque.\""
}
},
{
"from_name": null,
"id": "20cd3692770348428cf0902b5a2087f6",
"to_name": null,
"type": null,
"value": {
"end": 13490,
"labels": [
"PRE_RELIED"
],
"start": 13392,
"text": "There was, however, nothing in the bills to show in what way the payment by cheque was to be made."
}
},
{
"from_name": null,
"id": "96a4192b77dc4749a8e6e635d9192a09",
"to_name": null,
"type": null,
"value": {
"end": 13737,
"labels": [
"PRE_RELIED"
],
"start": 13490,
"text": "\nThe company thereafter received at Baroda, in payment of its bills, cheques through post from the Government drawn on a Government Treasury or on a branch of the Reserve Bank of India or the Imperial Bank of India transacting Government business."
}
},
{
"from_name": null,
"id": "dc6ae51158904195aea42fc676728fcd",
"to_name": null,
"type": null,
"value": {
"end": 13853,
"labels": [
"PRE_RELIED"
],
"start": 13738,
"text": "The company endorsed the cheques and sent them either to Bombay or Ahmedabad in its banking account at such places."
}
},
{
"from_name": null,
"id": "c6e96ce4566d428cb1ea84296115ba4d",
"to_name": null,
"type": null,
"value": {
"end": 14099,
"labels": [
"PRE_RELIED"
],
"start": 13854,
"text": "It was held that according to the course of business usage in general which was followed in the case, the parties must have intended that the cheques should be sent by post which was the usual and normal agency for transmission of such articles."
}
},
{
"from_name": null,
"id": "ad0aed66954f426b92a4f20cfa9ac959",
"to_name": null,
"type": null,
"value": {
"end": 14198,
"labels": [
"PRE_RELIED"
],
"start": 14100,
"text": "An implied request by the company to send the cheques by post from Delhi was accordingly inferred."
}
},
{
"from_name": null,
"id": "d14f9e2e76ae4a08a825c10abc69509e",
"to_name": null,
"type": null,
"value": {
"end": 14309,
"labels": [
"PRE_RELIED"
],
"start": 14199,
"text": "The post office was held to have become the agent of the assessee for the purpose of receiving those payments."
}
},
{
"from_name": null,
"id": "c6a029007e294864bb9f3ebf1b3baa3b",
"to_name": null,
"type": null,
"value": {
"end": 14502,
"labels": [
"PRE_RELIED"
],
"start": 14310,
"text": "This Court consequently came to the conclusion that the amounts of cheques were received by the assessee in British India and as such were liable to be taxed under section 4(1) (a) of the Act."
}
},
{
"from_name": null,
"id": "c3824346ca764af09baa70a59291ed82",
"to_name": null,
"type": null,
"value": {
"end": 14640,
"labels": [
"PRE_RELIED"
],
"start": 14504,
"text": "The facts of the case of Indore Malwa United Mills Ltd.\nv. Commissioner of Income-tax (supra) were similar to those of the present case."
}
},
{
"from_name": null,
"id": "af0f0d20ceda49e0a17cfe0a965fb287",
"to_name": null,
"type": null,
"value": {
"end": 14773,
"labels": [
"PRE_RELIED"
],
"start": 14641,
"text": "In that case the assessee, a non- resident, carried on the business of manufacturing textile goods at Indore, outside British India."
}
},
{
"from_name": null,
"id": "41aaabb9b98e41d683070deb8e848330",
"to_name": null,
"type": null,
"value": {
"end": 14924,
"labels": [
"PRE_RELIED"
],
"start": 14774,
"text": "The assessee supplied textile goods to the Stores Department of the Government of India under orders placed by the latter with the assessee at Indore."
}
},
{
"from_name": null,
"id": "0033edb0a06c4fef9cf7a5cd4a2e106c",
"to_name": null,
"type": null,
"value": {
"end": 14969,
"labels": [
"PRE_RELIED"
],
"start": 14925,
"text": "The delivery of the goods was F.O.R.\nIndore."
}
},
{
"from_name": null,
"id": "0f27a3199ebb4e379c85f1dbce26de1c",
"to_name": null,
"type": null,
"value": {
"end": 15080,
"labels": [
"PRE_RELIED"
],
"start": 14970,
"text": "The bills contained the following instruction for payment: \"Please pay by cheque to self on a bank at Indore.\""
}
},
{
"from_name": null,
"id": "0823bc8723ce40a8b2c72e1b239ede53",
"to_name": null,
"type": null,
"value": {
"end": 15258,
"labels": [
"PRE_RELIED"
],
"start": 15081,
"text": "The Government of India drew cheques in favour of the assessee for the amounts of the bills on the Reserve Bank of India, Bombay and sent them by post to the assessee at Indore."
}
},
{
"from_name": null,
"id": "bd13059aec8047408e1f6f2657df36c0",
"to_name": null,
"type": null,
"value": {
"end": 15409,
"labels": [
"PRE_RELIED"
],
"start": 15259,
"text": "The assessee deposited the cheques in its account with the Imperial Bank of India, Indore and on clearance, the amounts were credited to that account."
}
},
{
"from_name": null,
"id": "996cf6a27eb74bafbb03a0c5db805403",
"to_name": null,
"type": null,
"value": {
"end": 15648,
"labels": [
"PRE_RELIED"
],
"start": 15410,
"text": "Question which arose for decision was whether the assessee company was liable to pay tax in the taxable territories on the ground that the sale proceeds, which included the profit element therein, were received in the taxable territories."
}
},
{
"from_name": null,
"id": "48150a6002af43fe9c611b891981fd40",
"to_name": null,
"type": null,
"value": {
"end": 16040,
"labels": [
"PRE_RELIED"
],
"start": 15649,
"text": "It was held that if by an agreement, express or implied, between the creditor and the debtor orby request, express or implied, by the creditor, the debtor is authorised to pay the debt by a cheque, and to send the cheque to the creditor by post, the post office becomes the agent of the creditor to receive the cheque and the creditor receives payment as soon as the cheque is posted to him."
}
},
{
"from_name": null,
"id": "4744e99f599a48dba10f687d569524ae",
"to_name": null,
"type": null,
"value": {
"end": 16189,
"labels": [
"PRE_RELIED"
],
"start": 16041,
"text": "It was also held that there was an implied agreement between the parties that the Government of India would send the cheque by post to the assessee."
}
},
{
"from_name": null,
"id": "5a62a7450e51467585c54e8a4c06f7fb",
"to_name": null,
"type": null,
"value": {
"end": 16430,
"labels": [
"PRE_RELIED"
],
"start": 16190,
"text": "The sale proceeds which included the profit element therein were, in the opinion of this Court, received in British India where the cheques were posted, and the profits in respect of the sales were taxable under section 4(1) (a) of the Act."
}
},
{
"from_name": null,
"id": "2ff66d770c7f46dca8b61b0be7d32adf",
"to_name": null,
"type": null,
"value": {
"end": 16529,
"labels": [
"ARG_PETITIONER"
],
"start": 16430,
"text": "\n Mr. Pillai has referred to the case of Commissioner of Income-tax, Bihar & Orissa v. Patney & Co."
}
},
{
"from_name": null,
"id": "8c69b910b4174a839d7d8bb6a6f5ef73",
"to_name": null,
"type": null,
"value": {
"end": 16684,
"labels": [
"ANALYSIS"
],
"start": 16530,
"text": "This case cannot be of much help because in that case the assessee had expressly required the commission to be paid at Secunderabad outside British India."
}
},
{
"from_name": null,
"id": "e75710365e114b81ac48ac77a4c7d2af",
"to_name": null,
"type": null,
"value": {
"end": 16880,
"labels": [
"ANALYSIS"
],
"start": 16685,
"text": "It was because of this circumstance that this Court found that the rule laid down in Ogale Glass Works' case (supra) did not apply and the money was not received by the assessee in British India."
}
},
{
"from_name": null,
"id": "1c30a90cb8ec4bbfb7a15409df44f42f",
"to_name": null,
"type": null,
"value": {
"end": 17203,
"labels": [
"RATIO"
],
"start": 16880,
"text": "\n So far as the present case is concerned it has already been pointed out above, that the circumstances of the case and the course of dealings between the parties show that there was an implied agreement or understanding between the parties that the money would be sent to the assessee by cheques posted from British India."
}
},
{
"from_name": null,
"id": "6a1871395ed34fe3aebf068e6738a937",
"to_name": null,
"type": null,
"value": {
"end": 17342,
"labels": [
"RATIO"
],
"start": 17204,
"text": "The High Court, in our opinion, rightly decided the question reproduced above against the assessee appellant and in favour of the revenue."
}
},
{
"from_name": null,
"id": "5a368d4d925d42f6b424f61f78312022",
"to_name": null,
"type": null,
"value": {
"end": 17431,
"labels": [
"RPC"
],
"start": 17342,
"text": "\n The appeals consequently fail and are dismissed but in the circumstances without costs."
}
},
{
"from_name": null,
"id": "71075e719249469eba0ef004d0d0535e",
"to_name": null,
"type": null,
"value": {
"end": 17487,
"labels": [
"RPC"
],
"start": 17431,
"text": "\n V.P.S. Appeals dismissed."
}
}
]
}
] | 4,117 | {
"text": "PETITIONER:\nAZAMJAHI MILLS LTD. HYDERABAD\n\nVs.\n\nRESPONDENT:\nTHE COMMISSIONER OF INCOME TAX,HYDERABAD\n\nDATE OF JUDGMENT17/03/1976\n\nBENCH:\nKHANNA, HANS RAJ\nBENCH:\nKHANNA, HANS RAJ\nGOSWAMI, P.K.\n\nCITATION: 1976 SCR (3) 645\n 1976 AIR 1172\n 1976 SCC (2) 258\n\nACT:\n Income-tax-Assessee in Princely State-Payment by\n\nGovernment of India by cheque posted in British India-\nWhether receipt by assessee in British India liable to\nIndian Income Tax.\n\nHEADNOTE:\n The Government of India was placing bulk purchase\n\norders with the assessee-company, a textile mill, which had,\nduring the assessment years 1945-46, 1946-47 and 1947-48,\nits registered office in the Hyderabad State outside British\nIndia. After the despatch of the goods, the assessee was\nsubmitting its bill in the prescribed form which also\ncontained the receipt. The receipt had the words 'Please pay\nby cheque to self/Banker on Bank/Treasury at.....' and the\nassessee used to enter the words 'Hyderabad (Dn). in the\nblank space after 'at'. But on the back of the bulk purchase\norder form, there were instructions that the payment was to\nbe made by the Controller of Supply Accounts, Bombay, and\nthe Government of India had also issued general instructions\nto all textile mills in the Princely States that all\npayments were to be made 'by cheque on Government Treasury\nin Br. India, or alternatively on a branch in Br. India,\nwhich transacts Government business of the Reserve Bank of\nIndia. All payments were made on behalf of the Government of\nIndia by cheques which were sent to the assessee by post.\nSome of the cheques were drawn on banks in Br. India and\nothers on banks in the Hyderabad State.\n^\n\n HELD: The sale proceeds should be held to have been\nreceived by the assessee from the Government of India in\nBritish India and not in Hyderabad State, and hence were\nsubject to Indian income-tax. [647F-G]\n\n In the absence of a request by the creditor or an\nagreement between the parties regarding the sending of money\nby cheque by post, the mere posting of the cheque would not\noperate as delivery of the cheque to the creditor. Where,\nhowever, a cheque is sent by post in pursuance of an\nagreement between the parties or a request by the creditor\nthat the money be sent by cheque by post, the post office\nwould be treated as the agent of the creditor for the\npurpose of receiving such payment. Such an agreement or\n\nrequest need not be express and may be implied from the\nfacts and circumstances. [648A-C]\n\n The facts of the case and the course of dealings show\nthat it was the understanding between the Government of\nIndia and the assessee that the payment would be made on\naccount of goods supplied by the assessee, by cheques. The\ncheques were in the very nature of things to be sent from\nBritish India by post as that is the usual and normal agency\nfor transmission. As the cheques were sent to the assesseee\non behalf of the Government of India by post from British\nIndia in pursuance of an understanding between the parties,\nthe payment to the assessee shall be treated to have been\nmade in British India to the agent of the assessee. [647G-\n648A]\n\n Indo re Malwa United Mills Ltd. v. Commissioner of\nIncome-tax, 59 ITR 738; Commissioner of Income-tax, Bombay\nSouth, Bombay v. Ogale Glass Works Ltd. 25 ITR 529 and Shri\nJagdish Mills Ltd. v. Commissioner of Income-tax, 37 ITR\n114, followed.\n\n Commissioner of Income-tax, Bihar & Orissa v. Patney &\nCo. 36 ITR 488, distinguished.\nJUDGMENT:\n CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 980-982 of 1971.\n Appeals by Special Leave from the Judgment and Order dated the 9-2-70 of the Andhra Pradesh High Court in case Referred No. 1 of 1967.\n R. Vasudev Pillai and P. K. Pillai for the Appellant.\n R. M. Mehta and S. P. Nayar, for the Respondent.\n The Judgment of the Court was delivered by KHANNA, J.-This judgment would disposed of three civil appeals Nos. 980 to 982 of 1971 which have been filed by special leave against the judgment of the Andhra Pradesh High Court on a reference under section 66 of the Indian Income-tax Act, 1922 (hereinafter referred to as the Act) answering besides two other questions with which we are not concerned, the following question against the assessee appellant and in favour of the revenue: \"Whether, on the facts and in the circumstances of the case, the sale proceeds were received from Government of India in British India?\"\n The assessee company is a public limited company registered in what was at the relevant time the Nizam's Dominion (hereinafter referred to as Hyderabad State) outside British India. The matter relates to assessment years 1945-46, 1946-47 and 1947-48 for which the relevant accounting period ended on October 5, 1944, October 5, 1945 and October 5, 1946 respectively.\n The assessee company had a textile mill at Warangal in Hyderabad State. During the Second World War the company supplied textile goods to the Department of Supplies.\n Government of India under what was known as \"Panel System\".\n The Government used to place bulk purchase orders with the company for the supply to goods according to specifications.\n The delivery of the goods used to be made by the company FOR Warrangal. After the goods were despatched, the assessee company submitted bill in form W.S.B. 116 giving details of the supply. The prescribed form contained the following receipt: \"Received Payment One anna Please pay by Cheque to Self stamp on ============== original Bankers copy only. on Bank at...........\n ------------ Treasury Contractor's Signature Contractor's signature \"\n The assessee used to enter the words \"Hyderabad (Dn)\" in the blank space after the word \"at\". On the back of the bulk purchase order form, there were instructions that the payment was to be made by the Controller of Supply Accounts Bombay. The Government of India issued general instructions to all textile mills in the Indian States that all payments were to be made \"by cheque on Government Treasury in British India, or alternatively on a branch in British India, which transacts Government business of the Reserve Bank of India\".\n All payments were made on behalf of the Government of India by cheques, which were sent to the assessee by post. Some of these cheques were drawn on banks in British India and the others on banks in Hyderabad State. All the cheques received from the Government, including those drawn on banks in British India, were collected through the assessee's bankers in Hyderabad State.\n In making the assessment the Income-tax Officer held that the sale proceeds in respect of cheques, which had been drawn on banks in British India, were received by the assessee in British India and as such the assessee was liable to tax under the Act. In respect of cheques drawn on the banks in Hyderabad State, the Income-tax Officer held that no income had accrued in British India and was, therefore, not subject to assessment under the Act. The assessee took the matter in appeal to the Assistant Commissioner claiming that no portion of the income had been received in British India. The Appellate Assistant Commissioner held that the entire sale proceeds had been received in British India and he, therefore, passed an order enhancing the assessed amount. On further appeal by the assessee the Income-tax Appellate Tribunal upheld the order of the Assistant Commissioner. At the request of the assessee the question reproduced above along with two other questions relating to the power of the Appellate Assistant Commissioner to enhance the amount of assessable income as also the question of limitation were referred to the High Court. The High Court answered the question reproduced above as well as the other two questions with which we are not concerned, in favour of the revenue and against the assessee. So far as the question reproduced above is concerned, the High Court took the view that the matter was concluded by the decision of this Court in the case of Indore Malwa United Mills Ltd. v. Commissioner of Income- tax(1).\n In appeal before us Mr. Vasudev Pillai on behalf of the appellant has assailed the judgment of the High Court and has contended that on the facts and circumstances of the case, the sale proceeds should be held to have been received by the assessee from the Government of India not in British India but in Hyderabad State. There is, in our opinion, no force in this contention.\n It would appear from the resume of facts given above that all payments were made on behalf of the Government of India by cheques and those cheques were sent by post from British India to the assessee. The facts of the case and the course of dealings show that it was the understanding between the Government of India and the assessee company that the payment would be made on account of the goods supplied by the assessee by cheques. The cheques were in the very nature of things to be sent from British India by post as that is usual and normal agency for transmission of such articles. As the cheques were sent to the assessee company on behalf of the Government of India by post from British India in pursuance of an understanding between the parties, the payment to the assessee shall be treated to havebeen made in British India. The post office in such cases is taken to be an agent of the assessee company. The position in law is that in the absence of a request by the creditor or an agreement between the parties regarding the sending of money by cheque by post, the mere posting of cheque would not operate as delivery of the cheque to the creditor.\nWhere, however, a cheque is sent by post in pursuance of an agreement between the parties or a request by the creditor that the money be sent by cheque by post, the post office would be treated as the agent of the creditor for the purpose of receiving such payment. The agreement or request need not, however, be express; it may also be implied to be spelt out from the facts and circumstances of the case.\n The question of law arising in this case is not res integra and is concluded by three decisions of this Court.\nIn Commissioner of Income-tax, Bombay South, Bombay v. Ogale Glass Works Ltd. the assessee, a non-resident company carrying on business of manufacturing certain articles in the State of Aundh, secured some contract for the supply of goods to the Government of India. The contract provided that \"unless otherwise agreed between the parties payment for the delivery of the stores will be made on submission of bills in the prescribed form in accordance with instructions given in the acceptance of tender by cheque on a Government Treasury in India or on a branch of the Reserve Bank of India or the Imperial Bank of India transacting Government business.\" The assessee submitted the bill in the prescribed form and wrote on it as follows: \"Kindly remit the amount by a cheque in our favour on any bank in Bombay.\" The assessee received cheques drawn on the Bombay branch of the Reserve Bank of India. The assessee realised the amount of the cheques through the Aundh Bank. It was held that the posting of cheques in Delhi in law amounted to payment in Delhi. It was further observed that the circumstances of the case revealed an implied agreement under which cheques were accepted unconditionally as payment. Even if the cheques, according to this Court, were taken conditionally the cheques having been not dishonoured, the payment related back to the dates of the receipt of the cheques and in law the dates of payment were the dates of the delivery of the cheques. Income, profits and gains in respect of the sales made to the Government of India were accordingly held to have been received by the assessee in British India. Dealing with the question of the understanding between the parties in that case, this Court observed: \"According to the course of business usage in general to which, as part of the surrounding circumstances, attention has to be paid, under the authorities cited above, the parties must have intended that the cheques should be sent by post which is the usual and normal agency for transmission of such articles and according to the Tribunal's findings they were in fact received by the assessee by post.\"\nThe above case been sought to be distinguished by Mr. Pillai on the ground that in that case the assessee had written on the bill form thewords: \"kindly remit the amount by cheque in our favour on any bank in Bombay.\" It is said that the bill submitted by the appellant contained no such writing. A similar argument was advanced on behalf of the assessee company in the case of Shri Jagdish Mills Ltd. v. Commissioner of Income-tax(1) and it was held that the absence of such an express request would not make material difference if the course of dealings between the parties showed an implied request by the assessee company to send the cheques by post. In Jagdish Mills' case the assessee company was incorporated in Baroda State outside British India. The company accepted orders for the supply of goods F.O.R. Baroda to the Government of India. The manufacture and delivery of goods took place at Baroda. The company after effecting delivery of the goods submitted bills in the prescribed form which contained the sentence that \"Government should pay the amount due to the company by cheque.\" There was, however, nothing in the bills to show in what way the payment by cheque was to be made.\nThe company thereafter received at Baroda, in payment of its bills, cheques through post from the Government drawn on a Government Treasury or on a branch of the Reserve Bank of India or the Imperial Bank of India transacting Government business. The company endorsed the cheques and sent them either to Bombay or Ahmedabad in its banking account at such places. It was held that according to the course of business usage in general which was followed in the case, the parties must have intended that the cheques should be sent by post which was the usual and normal agency for transmission of such articles. An implied request by the company to send the cheques by post from Delhi was accordingly inferred. The post office was held to have become the agent of the assessee for the purpose of receiving those payments. This Court consequently came to the conclusion that the amounts of cheques were received by the assessee in British India and as such were liable to be taxed under section 4(1) (a) of the Act.\n The facts of the case of Indore Malwa United Mills Ltd.\nv. Commissioner of Income-tax (supra) were similar to those of the present case. In that case the assessee, a non- resident, carried on the business of manufacturing textile goods at Indore, outside British India. The assessee supplied textile goods to the Stores Department of the Government of India under orders placed by the latter with the assessee at Indore. The delivery of the goods was F.O.R.\nIndore. The bills contained the following instruction for payment: \"Please pay by cheque to self on a bank at Indore.\"\nThe Government of India drew cheques in favour of the assessee for the amounts of the bills on the Reserve Bank of India, Bombay and sent them by post to the assessee at Indore. The assessee deposited the cheques in its account with the Imperial Bank of India, Indore and on clearance, the amounts were credited to that account. Question which arose for decision was whether the assessee company was liable to pay tax in the taxable territories on the ground that the sale proceeds, which included the profit element therein, were received in the taxable territories. It was held that if by an agreement, express or implied, between the creditor and the debtor orby request, express or implied, by the creditor, the debtor is authorised to pay the debt by a cheque, and to send the cheque to the creditor by post, the post office becomes the agent of the creditor to receive the cheque and the creditor receives payment as soon as the cheque is posted to him. It was also held that there was an implied agreement between the parties that the Government of India would send the cheque by post to the assessee. The sale proceeds which included the profit element therein were, in the opinion of this Court, received in British India where the cheques were posted, and the profits in respect of the sales were taxable under section 4(1) (a) of the Act.\n Mr. Pillai has referred to the case of Commissioner of Income-tax, Bihar & Orissa v. Patney & Co. This case cannot be of much help because in that case the assessee had expressly required the commission to be paid at Secunderabad outside British India. It was because of this circumstance that this Court found that the rule laid down in Ogale Glass Works' case (supra) did not apply and the money was not received by the assessee in British India.\n So far as the present case is concerned it has already been pointed out above, that the circumstances of the case and the course of dealings between the parties show that there was an implied agreement or understanding between the parties that the money would be sent to the assessee by cheques posted from British India. The High Court, in our opinion, rightly decided the question reproduced above against the assessee appellant and in favour of the revenue.\n The appeals consequently fail and are dismissed but in the circumstances without costs.\n V.P.S. Appeals dismissed.\n "
} |
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"text": "\n\nHemant Kawadu Chauriwal,"
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"text": ".... APPELLANT\nAged about 33 years,\nR/o Nehru Nagar, Ghatanji,\nTahsilGhatanji, District Yavatmal.\n\nVERSUS\n\nThe State of Maharashtra,\nthrough PSO Police Station Ghatanji,\n\nTahsil Ghatanji, District Yavatmal. .... RESPONDENT"
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"text": "\n Dr. (Ms.) U.K. Kalsi, Advocate for the appellant,\n Mr. M.K. Pathan, APP for the respondent.\n\n___________________________________________________________________\n\nCRIMINAL APPEAL NO.70 OF 2007\n\nSau. Vachhalla Kawadu Chauriwal, .... APPELLANT\nAged about 68 years,\nR/o Nehru Nagar, Ghatanji,\nTahsilGhatanji, District Yavatmal.\n\n VERSUS\nThe State of Maharashtra,\n\nthrough PSO Police Station Ghatanji,\nTahsil Ghatanji, District Yavatmal. .... RESPONDENT\n\n___________________________________________________________________\n\n Dr. (Ms.) U.K. Kalsi, Advocate for the appellant,\n Mr. M.K. Pathan, APP for the respondent."
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"text": "____\n\n CORAM : P.V. HARDAS & M.L. TAHALIYANI, JJ.\n DATED : JULY 02, 2012."
}
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"text": "\n\nORAL JUDGMENT : (PER M.L. TAHALIYANI, J.) "
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"text": "1. These two appeals are being decided by the common judgment as they arise out of the conviction recorded by the learned Additional Sessions Judge, Pandharkawada (Kelapur) in Sessions Trial No.64/2004."
}
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{
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"text": "The appellant Hemant Kawadu Chauriwal in Criminal Appeal No.53/2007 and the appellant Sau. Vachhalla Kawadu Chauriwal in Criminal Appeal No.70/2007 were tried by the learned Additional Sessions Judge along with accused No.2 Kawadu Ambar Chauriwal, accused No.3 Vasanta Kawadu Chauriwal and accused No.5 Sau Vanita Chandrakrushna Chauragade for the offences punishable under Sections 304B read with Section 34 and Section 498A read with Section 34 of the Indian Penal Code."
}
},
{
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"id": "2f5d1b720d6748aeabfce76ac708f827",
"to_name": null,
"type": null,
"value": {
"end": 2260,
"labels": [
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],
"start": 2118,
"text": "The appellant Hemant in Appeal No.53/2007 was also in alternative tried for the offence punishable under Section 302 of the Indian Penal Code."
}
},
{
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"id": "3d85c85c16744d198f5da532136cd74b",
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"type": null,
"value": {
"end": 2423,
"labels": [
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],
"start": 2261,
"text": "On conclusion of trial the appellants and other accused were acquitted of the offence punishable under Section 304B read with Section 34 of the Indian Penal Code."
}
},
{
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"id": "a65f1a639f4c4eb588823d24d4093580",
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"value": {
"end": 2568,
"labels": [
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],
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"text": "The original accused Nos.2,3 & 5 were also acquitted of the offence punishable under Section 498A read with Section 34 of the Indian Penal Code."
}
},
{
"from_name": null,
"id": "fb84b8a903be4b77b2165bcea99fc580",
"to_name": null,
"type": null,
"value": {
"end": 2708,
"labels": [
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],
"start": 2569,
"text": "The appellant Hemant in Appeal No.53/2007 was found guilty of the offences punishable under Sections 302 and 498A of the Indian Penal Code."
}
},
{
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"id": "817a7ed27a704456b6b8b175408d6a24",
"to_name": null,
"type": null,
"value": {
"end": 2917,
"labels": [
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],
"start": 2709,
"text": "He was sentenced to suffer imprisonment for life and to pay a fine of Rs.1000/, in default to suffer rigorous imprisonment for six months for the offence punishable under Section 302 of the Indian Penal Code."
}
},
{
"from_name": null,
"id": "8763d2907d064f57a23b4a34684f8da1",
"to_name": null,
"type": null,
"value": {
"end": 3154,
"labels": [
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],
"start": 2918,
"text": "He was further sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.1,000/, in default to suffer rigorous imprisonment for three months for the offence punishable under Section 498A of the Indian Penal Code."
}
},
{
"from_name": null,
"id": "5a0c52c07b18493d93230b0f88ed6925",
"to_name": null,
"type": null,
"value": {
"end": 3537,
"labels": [
"RLC"
],
"start": 3155,
"text": "As far as accused No.4 Sau. Vachhalla is concerned, she has been convicted for the offence punishable under Section 498A of the Indian Penal Code only and has been sentenced to suffer simple imprisonment for one year and to pay a fine of Rs.1,000/, in default to suffer further simple imprisonment for one month for the offence punishable under Section 498A of the Indian Penal Code"
}
},
{
"from_name": null,
"id": "b31a3c1aba234b46b7aab58a01c2ef4b",
"to_name": null,
"type": null,
"value": {
"end": 3706,
"labels": [
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],
"start": 3537,
"text": ".\n 2. The appellant in Appeal No.53/2007 will be referred to as 'appellant No.1' and appellant in Appeal No.70/2007 will be referred to as 'appellant No.2' hereinafter."
}
},
{
"from_name": null,
"id": "d8bc69fbaa8846f187eabc5d989074cc",
"to_name": null,
"type": null,
"value": {
"end": 3919,
"labels": [
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],
"start": 3706,
"text": "\n 3. The deceased Asha Hemant Chauriwal (hereinafter referred to as 'deceased'), daughter of P.W.3Devidas Atmaram Dohare and P.W.4Sau.\n Chandrakala Devidas Dohare, was married to appellant No.1 on 29th May, 2001."
}
},
{
"from_name": null,
"id": "fb1a4f39d81f48e98342c7f23bc30701",
"to_name": null,
"type": null,
"value": {
"end": 3989,
"labels": [
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],
"start": 3920,
"text": "After the marriage, she went to stay with appellant No.1 at Ghatanji."
}
},
{
"from_name": null,
"id": "ffdb920bd904468da87a989e08969602",
"to_name": null,
"type": null,
"value": {
"end": 4092,
"labels": [
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],
"start": 3989,
"text": "\nAppellant No.1 was member of joint family of which appellant No.2 and other accused were also members."
}
},
{
"from_name": null,
"id": "f8d957e5b41e4adb812a39dc2edb6757",
"to_name": null,
"type": null,
"value": {
"end": 4173,
"labels": [
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],
"start": 4093,
"text": "Original accused No.2 is father of appellant No.1 and husband of appellant No.2."
}
},
{
"from_name": null,
"id": "6d71ce5317b54ac9b0e72a0c60363397",
"to_name": null,
"type": null,
"value": {
"end": 4281,
"labels": [
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],
"start": 4174,
"text": "Original accused No.3 is brother of appellant No.1 and original accused No.5 is a sister of appellant No.1."
}
},
{
"from_name": null,
"id": "33b3bda66e254aa991fa0bd2635c33bc",
"to_name": null,
"type": null,
"value": {
"end": 4467,
"labels": [
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],
"start": 4281,
"text": "\n 4. It is alleged that after the marriage, the deceased was being subjected to mental and physical cruelty on the ground that she had not brought sufficient valuable articles in dowry."
}
},
{
"from_name": null,
"id": "99086a8e30174659a255bb59958a7bd9",
"to_name": null,
"type": null,
"value": {
"end": 4524,
"labels": [
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],
"start": 4468,
"text": "The deceased was not being given sufficient food to eat."
}
},
{
"from_name": null,
"id": "61b832b6aa914f15bb21d84984ae1378",
"to_name": null,
"type": null,
"value": {
"end": 4664,
"labels": [
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],
"start": 4525,
"text": "She was being tortured every now and then on the ground that she did not know cooking and that the food cooked by her was not tasty enough."
}
},
{
"from_name": null,
"id": "3fee00bcbb1d480c9a615285225fe61c",
"to_name": null,
"type": null,
"value": {
"end": 4756,
"labels": [
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],
"start": 4665,
"text": "These facts she had been disclosing to her parents whenever she visited her parental house."
}
},
{
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"id": "ee952f7127d14789a1ea341eaf540490",
"to_name": null,
"type": null,
"value": {
"end": 4855,
"labels": [
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],
"start": 4756,
"text": "\n 5. The incident in question had occurred on 20th June, 2004 at matrimonial home of the deceased."
}
},
{
"from_name": null,
"id": "0ca2e20b4db94b5eb9d683f944c0cce2",
"to_name": null,
"type": null,
"value": {
"end": 4950,
"labels": [
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],
"start": 4856,
"text": "It is alleged that the appellants had poured kerosene on the deceased and had set her on fire."
}
},
{
"from_name": null,
"id": "bbea2b97d81849bc8e6879f28f3e39bd",
"to_name": null,
"type": null,
"value": {
"end": 5011,
"labels": [
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],
"start": 4951,
"text": "She was thereafter taken to Ghatanji Hospital for treatment."
}
},
{
"from_name": null,
"id": "27d85ef1e2af4852927157d465034c52",
"to_name": null,
"type": null,
"value": {
"end": 5082,
"labels": [
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],
"start": 5012,
"text": "She was removed to Yavatmal Government Hospital for further treatment."
}
},
{
"from_name": null,
"id": "add471a57bcd48e6aa287e911af25861",
"to_name": null,
"type": null,
"value": {
"end": 5149,
"labels": [
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],
"start": 5083,
"text": "In the meantime, the news was received by parents of the deceased."
}
},
{
"from_name": null,
"id": "1c657afd940a4e679b3899db2697757e",
"to_name": null,
"type": null,
"value": {
"end": 5193,
"labels": [
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],
"start": 5150,
"text": "They also reached the hospital at Yavatmal."
}
},
{
"from_name": null,
"id": "94226ca0d3f3455b8f26e952a1d0309b",
"to_name": null,
"type": null,
"value": {
"end": 5359,
"labels": [
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],
"start": 5194,
"text": "Police Officer from Yavatmal Police had requested the Naib Tahsildar Smt. Pushpalata Bharti (P.W.1) to record statement of the deceased at Yavatmal General Hospital."
}
},
{
"from_name": null,
"id": "1e9992c940614c2ab4dc62ec4de365ef",
"to_name": null,
"type": null,
"value": {
"end": 5438,
"labels": [
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],
"start": 5360,
"text": "The request letter was handed over to the NaibTahsildar by a Police Constable."
}
},
{
"from_name": null,
"id": "b3d318b0db3847b0b10e40b492065d59",
"to_name": null,
"type": null,
"value": {
"end": 5478,
"labels": [
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],
"start": 5439,
"text": "The NaibTahsildar reached the hospital."
}
},
{
"from_name": null,
"id": "3aca342a94af44f4846298eaa0737740",
"to_name": null,
"type": null,
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"end": 5618,
"labels": [
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"text": "She took opinion of the Medical Officer with regard to the condition of the deceased and thereafter she recorded statement of the deceased."
}
},
{
"from_name": null,
"id": "b98d44a4a76b414c8bdd09393ce04c88",
"to_name": null,
"type": null,
"value": {
"end": 5815,
"labels": [
"FAC"
],
"start": 5619,
"text": "The deceased had allegedly stated before the NaibTahsildar (Executive Magistrate) that since her parents had not given sufficient dowry at the time of marriage, she was being physically assaulted."
}
},
{
"from_name": null,
"id": "dceb673d5adf4f30a7448530db729b7e",
"to_name": null,
"type": null,
"value": {
"end": 5949,
"labels": [
"FAC"
],
"start": 5816,
"text": "It was further stated by her that on 20th June, 2004 at about 800 a.m. appellant No.1 had poured kerosene on her and set her on fire."
}
},
{
"from_name": null,
"id": "aa8c57e3744948c7aaf5837321d34218",
"to_name": null,
"type": null,
"value": {
"end": 6020,
"labels": [
"FAC"
],
"start": 5950,
"text": "Appellant No.2 and other accused had abused her and had assaulted her."
}
},
{
"from_name": null,
"id": "a710891f9ca94693b5d56598b6c9aa6a",
"to_name": null,
"type": null,
"value": {
"end": 6107,
"labels": [
"FAC"
],
"start": 6021,
"text": "She had further stated that her husband should be punished for crime committed by him."
}
},
{
"from_name": null,
"id": "153e1f7744d0437e83f046253ff6b654",
"to_name": null,
"type": null,
"value": {
"end": 6189,
"labels": [
"FAC"
],
"start": 6108,
"text": "The statement of the deceased was recorded at about 5.45 p.m. on 20th June, 2004."
}
},
{
"from_name": null,
"id": "fff7ec68d77741eeaadb083bce4babfc",
"to_name": null,
"type": null,
"value": {
"end": 6431,
"labels": [
"FAC"
],
"start": 6189,
"text": "\n 6. Since the incident had occurred at Ghatanji and the police of Ghatanji came to know about the incident, a Police Officer from Ghatanji Police Station had reached the spot and had drawn detail crime report, which includes the panchanama."
}
},
{
"from_name": null,
"id": "66aa43f422864a589db4cec6806148e5",
"to_name": null,
"type": null,
"value": {
"end": 6646,
"labels": [
"FAC"
],
"start": 6432,
"text": "The offence was registered at Ghatanji Police Station on 21st June, 2004 after receipt of the above stated dying declaration recorded by Executive Magistrate by Ghatanji Police Station from Yavatmal Police Station."
}
},
{
"from_name": null,
"id": "d2bd3f77b38f48e7a526b6a1ac65377a",
"to_name": null,
"type": null,
"value": {
"end": 6793,
"labels": [
"FAC"
],
"start": 6647,
"text": "The First Information Report was registered for the offences punishable under Sections 307 and 498A read with Section 34 of the Indian Penal Code."
}
},
{
"from_name": null,
"id": "65292b4ea4814be88b49750a033d4b11",
"to_name": null,
"type": null,
"value": {
"end": 6831,
"labels": [
"FAC"
],
"start": 6794,
"text": "The deceased died on 22nd June, 2004."
}
},
{
"from_name": null,
"id": "438ccd346b0340629cf702eef95628f9",
"to_name": null,
"type": null,
"value": {
"end": 7002,
"labels": [
"FAC"
],
"start": 6832,
"text": "After the death of deceased Asha Hemant Chauriwal, the police started investigation for the offences punishable under Sections 302 and 304B of the Indian Penal Code also."
}
},
{
"from_name": null,
"id": "4a27c6ddd9a34769b730f2d0148d831d",
"to_name": null,
"type": null,
"value": {
"end": 7096,
"labels": [
"FAC"
],
"start": 7002,
"text": "\n 7. During the course of investigation, statements of parents of the deceased were recorded."
}
},
{
"from_name": null,
"id": "ec1cf28306d74bf1a2331cb9b85c9a10",
"to_name": null,
"type": null,
"value": {
"end": 7147,
"labels": [
"FAC"
],
"start": 7097,
"text": "Dead body was subjected to postmortem examination."
}
},
{
"from_name": null,
"id": "705b0627961a491faa67697556bff4dc",
"to_name": null,
"type": null,
"value": {
"end": 7204,
"labels": [
"FAC"
],
"start": 7148,
"text": "All the injuries on the deceased were found ante mortem."
}
},
{
"from_name": null,
"id": "df5ec3fa6b064e82b2fc1cb60515d3d2",
"to_name": null,
"type": null,
"value": {
"end": 7301,
"labels": [
"FAC"
],
"start": 7205,
"text": "The deceased had sustained about 88% of burn injuries on various limbs from neck to lower limbs."
}
},
{
"from_name": null,
"id": "315e9d2fd0ed4ee78fd166e88ebae7f9",
"to_name": null,
"type": null,
"value": {
"end": 7407,
"labels": [
"FAC"
],
"start": 7302,
"text": "The cause of death was stated to be septicemia as a result of 88% dermo epidermal infected burn injuries."
}
},
{
"from_name": null,
"id": "aa48c3b163f84dce9806e44ef22ecb8b",
"to_name": null,
"type": null,
"value": {
"end": 7492,
"labels": [
"FAC"
],
"start": 7408,
"text": "After completion of investigation, chargesheet was filed in the court of Magistrate."
}
},
{
"from_name": null,
"id": "792b942112ff444a9e807342a5d0ab7d",
"to_name": null,
"type": null,
"value": {
"end": 7667,
"labels": [
"FAC"
],
"start": 7492,
"text": "\n 8. The learned trial Judge framed charge against appellant No.1 for the offences punishable under Sections 302, 304B and 498A read with Section 34 of the Indian Penal Code."
}
},
{
"from_name": null,
"id": "1fe5015c7b7f4d4294b8fb415b74df69",
"to_name": null,
"type": null,
"value": {
"end": 7884,
"labels": [
"FAC"
],
"start": 7668,
"text": "As far as appellant No.2 and other accused are concerned, the learned trial Judge had framed charge against them for the offences punishable under Sections 498A and 304B read with Section 34 of the Indian Penal Code."
}
},
{
"from_name": null,
"id": "d717ec19a4c94d6698838426cb093932",
"to_name": null,
"type": null,
"value": {
"end": 7959,
"labels": [
"FAC"
],
"start": 7885,
"text": "The appellants and the other accused had pleaded not guilty to the charge."
}
},
{
"from_name": null,
"id": "5cc33156f87f4fcf8dbff4d19cf95a86",
"to_name": null,
"type": null,
"value": {
"end": 8087,
"labels": [
"FAC"
],
"start": 7960,
"text": "The defence of the appellants and the other accused was that the deceased had committed suicide by pouring kerosene on herself."
}
},
{
"from_name": null,
"id": "0fae68bf32314b81ba1eb3c161713560",
"to_name": null,
"type": null,
"value": {
"end": 8267,
"labels": [
"FAC"
],
"start": 8088,
"text": "It was their case that the parents of the appellants had taken the deceased to the hospital for treatment after breaking open the door of the room where she had committed suicide."
}
},
{
"from_name": null,
"id": "d02e106d04ba451d88463788c9cfa75e",
"to_name": null,
"type": null,
"value": {
"end": 8282,
"labels": [
"FAC"
],
"start": 8269,
"text": "9. "
}
},
{
"from_name": null,
"id": "620598557b724d12b82d47661cb69301",
"to_name": null,
"type": null,
"value": {
"end": 8355,
"labels": [
"FAC"
],
"start": 8282,
"text": "The prosecution had examined in all six witnesses in support of its case."
}
},
{
"from_name": null,
"id": "2f43578f148f4b4595fa60cf6096754c",
"to_name": null,
"type": null,
"value": {
"end": 8488,
"labels": [
"FAC"
],
"start": 8356,
"text": "P.W.1Pushpalata Bharti is the Executive Magistrate, who had recorded the statement of the deceased at Government Hospital, Yavatmal."
}
},
{
"from_name": null,
"id": "674be2e6cd3344919028410d1de4f560",
"to_name": null,
"type": null,
"value": {
"end": 8603,
"labels": [
"FAC"
],
"start": 8488,
"text": "\n P.W.2Prakash is the Police Constable who had carried dying declaration of the deceased from Yavatmal to Ghatanji."
}
},
{
"from_name": null,
"id": "7ded71dd3f274bff92c222ed8f1c295f",
"to_name": null,
"type": null,
"value": {
"end": 8694,
"labels": [
"FAC"
],
"start": 8604,
"text": "P.W.3Devidas and P.W.4 Chandrakala are the father and mother respectively of the deceased."
}
},
{
"from_name": null,
"id": "5bce208a7c14475a9b2d9376b59febb1",
"to_name": null,
"type": null,
"value": {
"end": 8812,
"labels": [
"FAC"
],
"start": 8695,
"text": "P.W.5 Dr. Sarika Naik is the Medical Officer who had examined the deceased before recording of her dying declaration."
}
},
{
"from_name": null,
"id": "41f20887afb24aab8248f5df09f436ba",
"to_name": null,
"type": null,
"value": {
"end": 8893,
"labels": [
"FAC"
],
"start": 8813,
"text": "P.W.6Dipak Gotmare is the Police Officer, who had carried out the investigation."
}
},
{
"from_name": null,
"id": "d356cc95e2af4860946e5810eb1a64cb",
"to_name": null,
"type": null,
"value": {
"end": 9002,
"labels": [
"FAC"
],
"start": 8894,
"text": "The PostMortem Report at Exh.97 was admitted to be true and correct by the appellants and the other accused."
}
},
{
"from_name": null,
"id": "4884bdeced334d8896f9b6d2eb603300",
"to_name": null,
"type": null,
"value": {
"end": 9084,
"labels": [
"FAC"
],
"start": 9002,
"text": "\n 10. As such the cause of death has not been disputed by the appellants."
}
},
{
"from_name": null,
"id": "765624ddda9a45cc829f80d3851fba40",
"to_name": null,
"type": null,
"value": {
"end": 9286,
"labels": [
"FAC"
],
"start": 9085,
"text": "The question before the trial Court was as to whether 88% burn injuries, which resulted into septicemia and ultimately caused death of the deceased, were caused by the appellants and the other accused."
}
},
{
"from_name": null,
"id": "239c6bcf427b44fbbae40e7a7d9e5f9a",
"to_name": null,
"type": null,
"value": {
"end": 9414,
"labels": [
"RLC"
],
"start": 9287,
"text": "All the accused have been acquitted of the offence punishable under Section 304B read with Section 34 of the Indian Penal Code."
}
},
{
"from_name": null,
"id": "b036be03121c43d1a3bbfd7aaaa235d2",
"to_name": null,
"type": null,
"value": {
"end": 9531,
"labels": [
"RLC"
],
"start": 9415,
"text": "However, the appellant No.1 has been convicted of the offence punishable under Section 302 of the Indian Penal Code."
}
},
{
"from_name": null,
"id": "a871215785814bd29525981d22cccc04",
"to_name": null,
"type": null,
"value": {
"end": 9869,
"labels": [
"ANALYSIS"
],
"start": 9531,
"text": "\n 11. Before we examine the order of conviction for the offence punishable under Section 498A of the Indian Penal Code recorded against both the appellants, we propose to examine the judgment of the learned trial Court with regard to the conviction of appellant No.1 for the offence punishable under Section 302 of the Indian Penal Code."
}
},
{
"from_name": null,
"id": "33b4c5ac310d4486b389d73d6ed6e4bc",
"to_name": null,
"type": null,
"value": {
"end": 10038,
"labels": [
"ANALYSIS"
],
"start": 9870,
"text": "The learned trial Court has believed the dying declaration (Exh.60) of the deceased and has come to the conclusion that appellant No.1 had caused death of the deceased."
}
},
{
"from_name": null,
"id": "d974764aeb8542889120e0ba3984377c",
"to_name": null,
"type": null,
"value": {
"end": 10280,
"labels": [
"ANALYSIS"
],
"start": 10039,
"text": "To examine whether the finding given by the learned trial Court is right or wrong, it will be necessary to state in brief the evidence with regard to requisitioning the services of the Executive Magistrate and recording of dying declaration."
}
},
{
"from_name": null,
"id": "067390eaeaae454d8ed6922e783ec4eb",
"to_name": null,
"type": null,
"value": {
"end": 10369,
"labels": [
"ANALYSIS"
],
"start": 10280,
"text": "\n 12. There is no dispute that the incident in question had occurred on 20th June, 2004."
}
},
{
"from_name": null,
"id": "8b18bae712104b72a01a84e27a5a22d6",
"to_name": null,
"type": null,
"value": {
"end": 10447,
"labels": [
"ANALYSIS"
],
"start": 10370,
"text": "The deceased was admitted in Government Hospital at Yavatmal on the same day."
}
},
{
"from_name": null,
"id": "c2b7c95d53754f6e849d6acebb607f24",
"to_name": null,
"type": null,
"value": {
"end": 10525,
"labels": [
"ANALYSIS"
],
"start": 10448,
"text": "Her statement was recorded by the P.W.1 Executive Magistrate on the same day."
}
},
{
"from_name": null,
"id": "967c1a4d44bf4d958efd474737818ece",
"to_name": null,
"type": null,
"value": {
"end": 10647,
"labels": [
"ANALYSIS"
],
"start": 10526,
"text": "It is also not in dispute that the First Information Report was registered at Ghatanji Police Station on 21st June, 2004."
}
},
{
"from_name": null,
"id": "1f769e87f63f4bb2ac8ba1692a036dab",
"to_name": null,
"type": null,
"value": {
"end": 10784,
"labels": [
"ANALYSIS"
],
"start": 10648,
"text": "It is also not in dispute that the deceased had died on 22nd June, 2004 and thereafter Section 302 of the Indian Penal Code was applied."
}
},
{
"from_name": null,
"id": "8d452ced8d294aa989d4a5dd095b3061",
"to_name": null,
"type": null,
"value": {
"end": 10928,
"labels": [
"ANALYSIS"
],
"start": 10785,
"text": "The Investigating Officer P.W.6Dipak Gotmare of Ghatanji Police Station had visited the spot immediately after the incident on 20th June, 2004."
}
},
{
"from_name": null,
"id": "c086d755757444b6a3daa952be5cafcd",
"to_name": null,
"type": null,
"value": {
"end": 11024,
"labels": [
"ANALYSIS"
],
"start": 10929,
"text": "He however had not registered any offence after his return to the Police Station from the spot."
}
},
{
"from_name": null,
"id": "e07a3499c3b7406bb6c84398941c9ca6",
"to_name": null,
"type": null,
"value": {
"end": 11172,
"labels": [
"ANALYSIS"
],
"start": 11024,
"text": "\n 13. P.W.6Dipak Gotmare has stated in his evidence that he had received information that Asha Hemant Chauriwal had set herself on fire."
}
},
{
"from_name": null,
"id": "70def6d4af0647e6b392cdfe1b6d6d93",
"to_name": null,
"type": null,
"value": {
"end": 11415,
"labels": [
"ANALYSIS"
],
"start": 11172,
"text": "\n The circumstances involving recording of dying declaration and the dying declaration itself will have to be examined in the light of this statement of the Police Officer, who had received information of the incident, which was first in time."
}
},
{
"from_name": null,
"id": "97916d1c09754c8098b7837163c0e1b4",
"to_name": null,
"type": null,
"value": {
"end": 11620,
"labels": [
"ANALYSIS"
],
"start": 11415,
"text": "\n 14. P.W.1Pushpalata, the Executive Magistrate, has stated that she had received the memo from the police for recording dying declaration and she had visited Ward No.26 of Government Hospital."
}
},
{
"from_name": null,
"id": "9dbe0118b78d4d528e905aa9efb50b83",
"to_name": null,
"type": null,
"value": {
"end": 11686,
"labels": [
"ANALYSIS"
],
"start": 11621,
"text": "She had recorded statement of the deceased Asha Hemant Chauriwal."
}
},
{
"from_name": null,
"id": "57c654cfc28e442da4f75e003e2fc52f",
"to_name": null,
"type": null,
"value": {
"end": 11809,
"labels": [
"ANALYSIS"
],
"start": 11687,
"text": "According to this witness, the Medical Officer had certified that the deceased was in a fit condition to make a statement."
}
},
{
"from_name": null,
"id": "5acafad055204da896a99823cd9bd577",
"to_name": null,
"type": null,
"value": {
"end": 11866,
"labels": [
"ANALYSIS"
],
"start": 11810,
"text": "The memo received by this witness is produced at Exh.59."
}
},
{
"from_name": null,
"id": "99231a1fe3234d5b965df39e3f9aac10",
"to_name": null,
"type": null,
"value": {
"end": 11946,
"labels": [
"ANALYSIS"
],
"start": 11867,
"text": "The Medical Officer, who had examined the deceased, has been examined as P.W.5."
}
},
{
"from_name": null,
"id": "8726ba034f634e8e8feea5156796b265",
"to_name": null,
"type": null,
"value": {
"end": 11954,
"labels": [
"ANALYSIS"
],
"start": 11947,
"text": "P.W.5Dr"
}
},
{
"from_name": null,
"id": "e4141a47c82c475985a4faeed3986b46",
"to_name": null,
"type": null,
"value": {
"end": 12138,
"labels": [
"ANALYSIS"
],
"start": 11954,
"text": ". Sarika Naik has stated that at the request of P.W.1Pushpalata, she had examined the deceased and had certified that the deceased was mentally competent to give her dying declaration."
}
},
{
"from_name": null,
"id": "70d127e984944477b6119f340472707a",
"to_name": null,
"type": null,
"value": {
"end": 12251,
"labels": [
"ANALYSIS"
],
"start": 12139,
"text": "The memo received by P.W.1Pushpalata is at Exh.59 and the certificate given by the Medical Officer is at Exh.96."
}
},
{
"from_name": null,
"id": "a47d31e53abd4ba499fe2ffeda81a6da",
"to_name": null,
"type": null,
"value": {
"end": 12462,
"labels": [
"ANALYSIS"
],
"start": 12252,
"text": "In her statement, which was reduced to writing by P.W.1Pushpalata, the deceased had stated before P.W.1 that she was being tortured at her matrimonial home and they had been constantly demanding money from her."
}
},
{
"from_name": null,
"id": "49a171a27c7b45a1a9c93fda5261fa16",
"to_name": null,
"type": null,
"value": {
"end": 12551,
"labels": [
"ANALYSIS"
],
"start": 12463,
"text": "The deceased had also stated that on 20th June, 2004 she was set on fire by her husband."
}
},
{
"from_name": null,
"id": "801d974bc9484610930a5b2b70079c20",
"to_name": null,
"type": null,
"value": {
"end": 12628,
"labels": [
"ANALYSIS"
],
"start": 12552,
"text": "She also wanted her husband to be punished for the offence committed by him."
}
},
{
"from_name": null,
"id": "c708e458462d46d08c2e871d23342373",
"to_name": null,
"type": null,
"value": {
"end": 12828,
"labels": [
"ANALYSIS"
],
"start": 12629,
"text": "In this regard, it is necessary to be stated here that the officer of Yavatmal Police, who had issued request letter to P.W.1Pushpalata for recording statement of the deceased, has not been examined."
}
},
{
"from_name": null,
"id": "82b0863317f941708b963497eaca1791",
"to_name": null,
"type": null,
"value": {
"end": 12939,
"labels": [
"ANALYSIS"
],
"start": 12829,
"text": "The prosecution has also not examined the Police Constable who had carried request letter to P.W.1 Pushpalata."
}
},
{
"from_name": null,
"id": "778d52c806d349ce8356e87a261d86b1",
"to_name": null,
"type": null,
"value": {
"end": 13070,
"labels": [
"ANALYSIS"
],
"start": 12940,
"text": "It is also not clear from the evidence of P.W.1Pushpalata as to who had collected the dying declaration recorded by her at Exh.60."
}
},
{
"from_name": null,
"id": "4fea1cc9c3304b09998b1b9b32001ec9",
"to_name": null,
"type": null,
"value": {
"end": 13349,
"labels": [
"ANALYSIS"
],
"start": 13071,
"text": "There is no evidence at what time the dying declaration was collected from P.W.1 Pushpalata and in whose custody it was lying before it reached Ghatanji Police Station where a First Information Report was registered on the basis of the dying declaration carried by P.W.2Prakash."
}
},
{
"from_name": null,
"id": "04cd16c434cb4f3e90ec46b8fb86068b",
"to_name": null,
"type": null,
"value": {
"end": 13479,
"labels": [
"ANALYSIS"
],
"start": 13350,
"text": "In fact, it was the duty of the learned trial Court to examine whether the statement made by the deceased was voluntary and true."
}
},
{
"from_name": null,
"id": "302336237b67400785eaabb254460ad8",
"to_name": null,
"type": null,
"value": {
"end": 13628,
"labels": [
"ANALYSIS"
],
"start": 13480,
"text": "The learned trial Court should have borne in mind that dying declaration has to be judged and appreciated in light of the surrounding circumstances."
}
},
{
"from_name": null,
"id": "d2afb6ce195d4b8789ac82cd64fa8bfc",
"to_name": null,
"type": null,
"value": {
"end": 13839,
"labels": [
"PRE_RELIED"
],
"start": 13628,
"text": "\n 15. In a latest judgment reported at 2012(3) SCALE 438 (MANU/SC/0212/2012) in the matter of Bhajju @ Karan Singh Vs. State of Madhya Pradesh, the Hon'ble Supreme Court at Para No.12 has stated as under : \"12."
}
},
{
"from_name": null,
"id": "939b90c4419b4eafb388f9ba2cc2c8f9",
"to_name": null,
"type": null,
"value": {
"end": 13977,
"labels": [
"PRE_RELIED"
],
"start": 13840,
"text": "The law is wellsettled that a dying declaration is admissible in evidence and the admissibility is founded on the principle of necessity."
}
},
{
"from_name": null,
"id": "7030d9c221264365b95ba5dd79fa21d1",
"to_name": null,
"type": null,
"value": {
"end": 14053,
"labels": [
"PRE_RELIED"
],
"start": 13978,
"text": "A dying declaration, if found reliable, can form the basis of a conviction."
}
},
{
"from_name": null,
"id": "885a3f988353496a9e48eef8582ffff8",
"to_name": null,
"type": null,
"value": {
"end": 14163,
"labels": [
"PRE_RELIED"
],
"start": 14054,
"text": "A Court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction."
}
},
{
"from_name": null,
"id": "78a21d8527f748678bda01d8530cc311",
"to_name": null,
"type": null,
"value": {
"end": 14269,
"labels": [
"PRE_RELIED"
],
"start": 14164,
"text": "The dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence."
}
},
{
"from_name": null,
"id": "c08adc3a4aac4c319731fe05e43df92c",
"to_name": null,
"type": null,
"value": {
"end": 14439,
"labels": [
"PRE_RELIED"
],
"start": 14270,
"text": "It has to be judged and appreciated in light of the surrounding circumstances and its weight determined by reference to the principle governing the weighing of evidence."
}
},
{
"from_name": null,
"id": "0021ea91ebf34c7a80c788ed94dc2c79",
"to_name": null,
"type": null,
"value": {
"end": 14895,
"labels": [
"PRE_RELIED"
],
"start": 14440,
"text": "If in a given case a particular dying declaration suffers from any infirmity, either of its own or as disclosed by the other evidence adduced in the case or the circumstances coming to its notice, the Court may, as a rule of prudence, look for corroboration and if the infirmities are such as would render a dying declaration so infirm that it pricks the conscience of the Court, the same may be refused to be accepted as forming basis of the conviction.\""
}
},
{
"from_name": null,
"id": "61ea07fc9a3443648af502f8193f024a",
"to_name": null,
"type": null,
"value": {
"end": 15007,
"labels": [
"ANALYSIS"
],
"start": 14897,
"text": "It is thus clear that the dying declaration can be basis for conviction without there being any corroboration."
}
},
{
"from_name": null,
"id": "1665d7845f4f4084920b5731e8875da7",
"to_name": null,
"type": null,
"value": {
"end": 15081,
"labels": [
"ANALYSIS"
],
"start": 15008,
"text": "However, it is necessary that it must enjoy full confidence of the Court."
}
},
{
"from_name": null,
"id": "9938a967fe0145e687d839dabddc6751",
"to_name": null,
"type": null,
"value": {
"end": 15230,
"labels": [
"ANALYSIS"
],
"start": 15082,
"text": "To determine whether it enjoys full confidence of the Court or not, it is necessary to judge the dying declaration like any other piece of evidence."
}
},
{
"from_name": null,
"id": "14ee1c258a0741f9b41918228f46a470",
"to_name": null,
"type": null,
"value": {
"end": 15439,
"labels": [
"ANALYSIS"
],
"start": 15231,
"text": "The Hon'ble Supreme Court has said that it is to be judged and appreciated in light of the surrounding circumstances and its weight determined by reference to the principle governing the weighing of evidence."
}
},
{
"from_name": null,
"id": "0733d99bcea54370ad58a988f376f8a5",
"to_name": null,
"type": null,
"value": {
"end": 15582,
"labels": [
"PRE_RELIED"
],
"start": 15439,
"text": "\n 16. The Hon'ble Supreme Court in the matter of Sharda Vs. State of Rajasthan reported at AIR 2010 SC 408 has said at Para 34 as under : \"34."
}
},
{
"from_name": null,
"id": "55760b40510d4159895b197cee307497",
"to_name": null,
"type": null,
"value": {
"end": 15766,
"labels": [
"PRE_RELIED"
],
"start": 15583,
"text": "Though a dying declaration is entitled and is still recognized by law to be given greater weightage but it has also to be kept in mind that accused had no chance of cross examination."
}
},
{
"from_name": null,
"id": "4d3ea4655b33451381e8e4f22ac9bf01",
"to_name": null,
"type": null,
"value": {
"end": 15862,
"labels": [
"PRE_RELIED"
],
"start": 15767,
"text": "Such a right of crossexamination is essential for eliciting the truth as an obligation of oath."
}
},
{
"from_name": null,
"id": "9db5e8d6412b47a69f01fe1e07f8d7bc",
"to_name": null,
"type": null,
"value": {
"end": 16017,
"labels": [
"PRE_RELIED"
],
"start": 15863,
"text": "This is the reason, generally, the court insists that the dying declaration should be such which inspires full confidence of the court of its correctness."
}
},
{
"from_name": null,
"id": "de2a78c2a5cb46709774417240dbe295",
"to_name": null,
"type": null,
"value": {
"end": 16155,
"labels": [
"PRE_RELIED"
],
"start": 16018,
"text": "The court has to be on guard that such statement of deceased was not as a result of either tutoring, prompting or product of imagination."
}
},
{
"from_name": null,
"id": "a3dca93eacda47f0b89fdd909e72dea8",
"to_name": null,
"type": null,
"value": {
"end": 16298,
"labels": [
"PRE_RELIED"
],
"start": 16156,
"text": "The court must be further satisfied that deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants."
}
},
{
"from_name": null,
"id": "753abf6cc64e472bb4c537093e146356",
"to_name": null,
"type": null,
"value": {
"end": 16494,
"labels": [
"PRE_RELIED"
],
"start": 16299,
"text": "Once the court is satisfied that the aforesaid requirement and also to the fact that declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration."
}
},
{
"from_name": null,
"id": "b6b8639196864163b2d67405557c8a18",
"to_name": null,
"type": null,
"value": {
"end": 16626,
"labels": [
"PRE_RELIED"
],
"start": 16495,
"text": "It is not an absolute rule of law that the dying declaration cannot be form the sole basis of conviction unless it is corroborated."
}
},
{
"from_name": null,
"id": "c1e5774edcbe444ba7021c1f3ba0543b",
"to_name": null,
"type": null,
"value": {
"end": 16702,
"labels": [
"PRE_RELIED"
],
"start": 16626,
"text": "\n The rule requiring corroboration is merely a rule of prudence.\"\n 17. "
}
},
{
"from_name": null,
"id": "eed4bcdae81d4654a5bec1ba8be8381c",
"to_name": null,
"type": null,
"value": {
"end": 17024,
"labels": [
"ANALYSIS"
],
"start": 16702,
"text": "In the present case, the prosecution has not given any explanation as to why did they fail to examine the Police Officer, who had issued request letter to the Executive Magistrate for recording dying declaration and at the same time why the Police Constable, who had carried the request letter, has also not been examined."
}
},
{
"from_name": null,
"id": "5796f812b45c43549c06dca6d9a471ce",
"to_name": null,
"type": null,
"value": {
"end": 17185,
"labels": [
"ANALYSIS"
],
"start": 17025,
"text": "Non examination of these two witnesses by itself would not have been fatal to the prosecution case, had the other circumstances inspired confidence in our mind."
}
},
{
"from_name": null,
"id": "184c4ecdf62a49ddb0d2e7a1206c2499",
"to_name": null,
"type": null,
"value": {
"end": 17402,
"labels": [
"ANALYSIS"
],
"start": 17186,
"text": "It is stated by P.W.1Pushpalata in her examinationinchief that relatives of the deceased were present in Burn Ward and she had requested a constable to ask all the relatives to withdraw themselves from the Burn Ward."
}
},
{
"from_name": null,
"id": "fb770e2ef412451380432a6394856323",
"to_name": null,
"type": null,
"value": {
"end": 17547,
"labels": [
"ANALYSIS"
],
"start": 17403,
"text": "It has also come in the evidence of P.W.3Devidas and P.W.4Chandrakala that they had reached hospital before arrival of the Executive Magistrate."
}
},
{
"from_name": null,
"id": "60a20e05beea46b5bea7935c09d73947",
"to_name": null,
"type": null,
"value": {
"end": 17677,
"labels": [
"ANALYSIS"
],
"start": 17548,
"text": "The presence of relatives by itself also is no reason to come to the conclusion that the person giving the statement was tutored."
}
},
{
"from_name": null,
"id": "9b39c10db7e64a9e8cec72a70845584c",
"to_name": null,
"type": null,
"value": {
"end": 17818,
"labels": [
"ANALYSIS"
],
"start": 17678,
"text": "At the same time, it is to be borne in mind that primarily it is the duty of the prosecution to prove its case beyond all reasonable doubts."
}
},
{
"from_name": null,
"id": "dead45d0120d441f8c35f50e67719014",
"to_name": null,
"type": null,
"value": {
"end": 17996,
"labels": [
"ANALYSIS"
],
"start": 17819,
"text": "The court is not only under obligation to examine the dying declaration but it is also under obligation to examine the circumstances in which the dying declaration was recorded."
}
},
{
"from_name": null,
"id": "3a3da6a4156943fa85044ca3c7b1f0eb",
"to_name": null,
"type": null,
"value": {
"end": 18214,
"labels": [
"ANALYSIS"
],
"start": 17996,
"text": "\n 18. In the present case, Police Officer P.W.6Dipak Gotmare has stated that he received information that deceased Asha Hemant Chauriwal had set herself on fire and he had reached the spot for drawing spot panchanama."
}
},
{
"from_name": null,
"id": "35e28d52b4464132a75acdcdd35950b7",
"to_name": null,
"type": null,
"value": {
"end": 18324,
"labels": [
"ANALYSIS"
],
"start": 18215,
"text": "The contents of dying declaration are contrary to the information received by police which was first in time."
}
},
{
"from_name": null,
"id": "f8d84ae6c342436f9fc2d4583c068d9c",
"to_name": null,
"type": null,
"value": {
"end": 18458,
"labels": [
"ANALYSIS"
],
"start": 18325,
"text": "The prosecution has not been able to rule out the possibility of creating a false dying declaration at the instance of the relatives."
}
},
{
"from_name": null,
"id": "ce46b3ef52cf4b8db9d22130263df5bc",
"to_name": null,
"type": null,
"value": {
"end": 18546,
"labels": [
"ANALYSIS"
],
"start": 18459,
"text": "We are fortified our view due to certain facts stated by P.W.6 in his crossexamination."
}
},
{
"from_name": null,
"id": "83aed1e1ee344d749dcf7881ddf33edb",
"to_name": null,
"type": null,
"value": {
"end": 18730,
"labels": [
"ANALYSIS"
],
"start": 18547,
"text": "P.W.6Dipak Gotmare, Investigating Officer, has stated in the crossexamination that he had not seized burnt pieces of clothes from the spot of occurrence as those were not found there."
}
},
{
"from_name": null,
"id": "19d61d5854fc4342a4bdc35a4b7b55b6",
"to_name": null,
"type": null,
"value": {
"end": 18801,
"labels": [
"ANALYSIS"
],
"start": 18730,
"text": "\n He had also not collected sample of soil from the spot of occurrence."
}
},
{
"from_name": null,
"id": "8a30a2116ce147cbacd5d136f31a13de",
"to_name": null,
"type": null,
"value": {
"end": 18865,
"labels": [
"ANALYSIS"
],
"start": 18802,
"text": "He did not find burnt pieces of clothes any where in the house."
}
},
{
"from_name": null,
"id": "9981e09bc22640178c479f2269c29687",
"to_name": null,
"type": null,
"value": {
"end": 19011,
"labels": [
"ANALYSIS"
],
"start": 18866,
"text": "As such we had requested the learned Additional Public Prosecutor to let us know from the evidence as to exactly where the incident had occurred."
}
},
{
"from_name": null,
"id": "199c0ac56fac4aea8526a4fa4831b820",
"to_name": null,
"type": null,
"value": {
"end": 19239,
"labels": [
"ANALYSIS"
],
"start": 19012,
"text": "After having gone through the evidence and the crime report including panchanama, the learned Additional Public Prosecutor has not been able to tell us as to what was the location where the deceased had sustained burn injuries."
}
},
{
"from_name": null,
"id": "2132e4d78af74fbfb00991da75d7a699",
"to_name": null,
"type": null,
"value": {
"end": 19397,
"labels": [
"ANALYSIS"
],
"start": 19239,
"text": "\n 19. The appellants and accused had given explanation in their statements under Section 313 of the Code of Criminal Procedure, which appears to be probable."
}
},
{
"from_name": null,
"id": "38e672c59a614f158d282698535d5c30",
"to_name": null,
"type": null,
"value": {
"end": 19522,
"labels": [
"ANALYSIS"
],
"start": 19398,
"text": "It is explained by the appellants and the other accused that the deceased had set herself on fire and had committed suicide."
}
},
{
"from_name": null,
"id": "9af61362befb4826bb68923000f2fdba",
"to_name": null,
"type": null,
"value": {
"end": 19696,
"labels": [
"ANALYSIS"
],
"start": 19522,
"text": "\n It is worth mentioning that P.W.2Prakash, who was working as Head Constable at Yavatmal Police Headquarters, has stated that he was posted at City Police Station, Yavatmal."
}
},
{
"from_name": null,
"id": "e78ce11f6ce4420492e639b63abdab14",
"to_name": null,
"type": null,
"value": {
"end": 19792,
"labels": [
"ANALYSIS"
],
"start": 19697,
"text": "He had carried dying declaration of the deceased to Ghatanji Police Station on 21st June, 2004."
}
},
{
"from_name": null,
"id": "a20758154e3a4d43ba0c777d32c6efa6",
"to_name": null,
"type": null,
"value": {
"end": 19900,
"labels": [
"ANALYSIS"
],
"start": 19793,
"text": "He had lodged his report, which was recorded as First Information Report Exh.78 at Ghatanji Police Station."
}
},
{
"from_name": null,
"id": "baff17faaf6f4f9694b897862fe7a1b8",
"to_name": null,
"type": null,
"value": {
"end": 19994,
"labels": [
"ANALYSIS"
],
"start": 19901,
"text": "The statement of the deceased was recorded at about 5.45 p.m. on 20th June, 2004 at Yavatmal."
}
},
{
"from_name": null,
"id": "b5b5e2d2517d426089fc77be91cb008c",
"to_name": null,
"type": null,
"value": {
"end": 20095,
"labels": [
"ANALYSIS"
],
"start": 19995,
"text": "The statement of the deceased was a statement within the meaning of Section 157 of the Evidence Act."
}
},
{
"from_name": null,
"id": "c357135818ed446ba9e9f4369934dfd7",
"to_name": null,
"type": null,
"value": {
"end": 20131,
"labels": [
"ANALYSIS"
],
"start": 20096,
"text": "It was not a confidential document."
}
},
{
"from_name": null,
"id": "d56088e5b0eb41c7bf68f065a8437c8f",
"to_name": null,
"type": null,
"value": {
"end": 20220,
"labels": [
"ANALYSIS"
],
"start": 20132,
"text": "An offence could have been registered at Yavatmal Police Station by giving No.'00/2004'."
}
},
{
"from_name": null,
"id": "10e85f4385584a55869e99f9ee2f7808",
"to_name": null,
"type": null,
"value": {
"end": 20546,
"labels": [
"ANALYSIS"
],
"start": 20221,
"text": "In fact it is the practice in Maharashtra that whenever the First Information Report of cognizable offence is received by the Police Station with regard to the offence which had not occurred within the jurisdiction of the said police station, the First Information Report is recorded under '00' number of the particular year."
}
},
{
"from_name": null,
"id": "4bffc3c93f6a447ab3f164eacf27469e",
"to_name": null,
"type": null,
"value": {
"end": 20673,
"labels": [
"ANALYSIS"
],
"start": 20547,
"text": "The said First Information Report is later on transferred to the police Station having jurisdiction over the place of offence."
}
},
{
"from_name": null,
"id": "1740796da0c64f71a2c18a6f97f8cc34",
"to_name": null,
"type": null,
"value": {
"end": 20758,
"labels": [
"ANALYSIS"
],
"start": 20674,
"text": "As such there are a lot of mysterious circumstances which have remained unexplained."
}
},
{
"from_name": null,
"id": "3d8042d93c534fe0a403914708491fba",
"to_name": null,
"type": null,
"value": {
"end": 20876,
"labels": [
"ANALYSIS"
],
"start": 20759,
"text": "These unexplained circumstances create a reasonable doubt in our mind as to the correctness of the dying declaration."
}
},
{
"from_name": null,
"id": "cbe5469f83354458aab8a176d183f681",
"to_name": null,
"type": null,
"value": {
"end": 21001,
"labels": [
"ANALYSIS"
],
"start": 20877,
"text": "It need not be stated here that it is the duty of the Court to examine whether the dying declaration was voluntary and true."
}
},
{
"from_name": null,
"id": "8bd530d7d752441c8bba7421550f0adb",
"to_name": null,
"type": null,
"value": {
"end": 21147,
"labels": [
"ANALYSIS"
],
"start": 21002,
"text": "In the present case, we doubt as to whether the statement reduced to writing by P.W.1Pushpalata produced at Exh.60 was statement of the deceased."
}
},
{
"from_name": null,
"id": "774f228fee784d23b3ded5032f807a89",
"to_name": null,
"type": null,
"value": {
"end": 21295,
"labels": [
"ANALYSIS"
],
"start": 21147,
"text": "\n 20. The evidence of parents of the deceased does not help in any manner as far as charge under Section 302 of the Indian Penal Code is concerned."
}
},
{
"from_name": null,
"id": "2f5fc6d60db54f319bf27b336d7c35d8",
"to_name": null,
"type": null,
"value": {
"end": 21401,
"labels": [
"ANALYSIS"
],
"start": 21296,
"text": "The conviction recorded against appellant No.1 was purely based on the dying declaration of the deceased."
}
},
{
"from_name": null,
"id": "ef365585108b47e584ac3bde46033c34",
"to_name": null,
"type": null,
"value": {
"end": 21773,
"labels": [
"ANALYSIS"
],
"start": 21402,
"text": "In view of our finding that there are many mysterious circumstances, which have remained unexplained and that the dying declaration of the deceased reduced to writing by P.W.1 Pushpalata does not appear to be genuine dying declaration, we are of the view that appellant No.1 should have been acquitted of the offence punishable under Section 302 of the Indian Penal Code."
}
},
{
"from_name": null,
"id": "ece6075e091f46b38e686c4dbfe27306",
"to_name": null,
"type": null,
"value": {
"end": 21995,
"labels": [
"ANALYSIS"
],
"start": 21773,
"text": "\n 21. As far as charge under Section 498A read with Section 34 of the Indian Penal Code is concerned, the conviction is mainly based on the letters produced by the parents of the deceased before the Investigating Officer."
}
},
{
"from_name": null,
"id": "e12763097f354f19b232b252389e7cf5",
"to_name": null,
"type": null,
"value": {
"end": 22095,
"labels": [
"ANALYSIS"
],
"start": 21996,
"text": "P.W.3Devidas has stated in his evidence that he had handed over letters received from the deceased."
}
},
{
"from_name": null,
"id": "711cd775cbd44030b9cbb76743343d4b",
"to_name": null,
"type": null,
"value": {
"end": 22140,
"labels": [
"ANALYSIS"
],
"start": 22096,
"text": "He has identified signature of the deceased."
}
},
{
"from_name": null,
"id": "fbf0ad3937c34de6b7c666187c560dee",
"to_name": null,
"type": null,
"value": {
"end": 22271,
"labels": [
"ANALYSIS"
],
"start": 22141,
"text": "P.W.6Dipak Gotmare, the Investigating Officer, in his evidence, has stated that he had seized letters under the panchanama Exh.63."
}
},
{
"from_name": null,
"id": "a1f987dd31e34837a915e0e3303974f8",
"to_name": null,
"type": null,
"value": {
"end": 22349,
"labels": [
"ANALYSIS"
],
"start": 22272,
"text": "The letters seized under the said panchanama were exhibited at Exhs.82 to 90."
}
},
{
"from_name": null,
"id": "14006278d1ef498db694ca35217b6d19",
"to_name": null,
"type": null,
"value": {
"end": 22420,
"labels": [
"ANALYSIS"
],
"start": 22349,
"text": "\nHowever, there is no further investigation with regard to the letters."
}
},
{
"from_name": null,
"id": "364cc94afafd4436b2ed469e9096db7f",
"to_name": null,
"type": null,
"value": {
"end": 22550,
"labels": [
"ANALYSIS"
],
"start": 22421,
"text": "The admitted signatures of the deceased were not collected and opinion of the expert was not sought by the Investigating Officer."
}
},
{
"from_name": null,
"id": "712f375d99994a93bf94df77add68d5e",
"to_name": null,
"type": null,
"value": {
"end": 22670,
"labels": [
"ANALYSIS"
],
"start": 22551,
"text": "Even there does not appear to be attempt on the part of Investigating Officer to verify the genuineness of the letters."
}
},
{
"from_name": null,
"id": "5524cb5f33d24d54a590539dc20ea522",
"to_name": null,
"type": null,
"value": {
"end": 22890,
"labels": [
"ANALYSIS"
],
"start": 22671,
"text": "In the circumstances, in our opinion, the conviction recorded by the learned Additional Sessions Judge for the offence punishable under Section 498A read with Section 34 of the Indian Penal Code is also not sustainable."
}
},
{
"from_name": null,
"id": "5e1b376ed8fc480fa9ec2fc4b9d1ed9b",
"to_name": null,
"type": null,
"value": {
"end": 23138,
"labels": [
"ANALYSIS"
],
"start": 22891,
"text": "Though the Investigating Officer has stated in his evidence that he made efforts to collect natural handwriting of the deceased, but he could not do so, he has not explained as to what steps he had taken to get natural handwriting of the deceased."
}
},
{
"from_name": null,
"id": "84026af6081f427ea4c04c4514169531",
"to_name": null,
"type": null,
"value": {
"end": 23448,
"labels": [
"ANALYSIS"
],
"start": 23138,
"text": "\n 22. As such the learned trial Court should not have based conviction of the appellants for the offence punishable under Section 498A read with Section 34 of the Indian penal Code only on the basis of the letters produced by father of the deceased, which according to him were written to him by his daughter."
}
},
{
"from_name": null,
"id": "8721313dfe50426faef3bb11e30b8a8e",
"to_name": null,
"type": null,
"value": {
"end": 23594,
"labels": [
"ANALYSIS"
],
"start": 23449,
"text": "The learned trial Court should have asked for better evidence or at least proof of the fact that the letters were in handwriting of the deceased."
}
},
{
"from_name": null,
"id": "1580c055066243c39b03294f03501ad7",
"to_name": null,
"type": null,
"value": {
"end": 23660,
"labels": [
"ANALYSIS"
],
"start": 23595,
"text": "The investigation, in our opinion, was carried out very shabbily."
}
},
{
"from_name": null,
"id": "d6b210b36baf4cb096974b401ccd9af0",
"to_name": null,
"type": null,
"value": {
"end": 23767,
"labels": [
"ANALYSIS"
],
"start": 23661,
"text": "Either there was sabotage or a false case has been prepared under the pressure of parents of the deceased."
}
},
{
"from_name": null,
"id": "0ec4796a38d24c5bbb320eb2aeaa673f",
"to_name": null,
"type": null,
"value": {
"end": 23886,
"labels": [
"ANALYSIS"
],
"start": 23768,
"text": "We are aware that the mistake on the part of the Investigating Officer should not by itself be a ground for acquittal."
}
},
{
"from_name": null,
"id": "491049eb8db04fafa299e56e5cf5cbd8",
"to_name": null,
"type": null,
"value": {
"end": 24089,
"labels": [
"ANALYSIS"
],
"start": 23887,
"text": "If the acceptable evidence is sufficient to record conviction, the mistakes committed by the Investigating Officer should not come in the way of convicting the accused of the offence proved against him."
}
},
{
"from_name": null,
"id": "4af23828808f4ce19288eab7f5ee3ae4",
"to_name": null,
"type": null,
"value": {
"end": 24379,
"labels": [
"RATIO"
],
"start": 24090,
"text": "However, in the present case, the mistakes committed by the Investigating Officer, deliberately or negligently, have adversely affected the prosecution case to such an extent that we find it highly risky to sustain the conviction recorded by the learned trial Judge against the appellants."
}
},
{
"from_name": null,
"id": "618d5b2bc78a445fbc3e861979fe3774",
"to_name": null,
"type": null,
"value": {
"end": 24477,
"labels": [
"RATIO"
],
"start": 24380,
"text": "We have come to the conclusion that the judgment is not sustainable and it needs to be set aside."
}
},
{
"from_name": null,
"id": "84d851658bbe40a1b2b405daf20099df",
"to_name": null,
"type": null,
"value": {
"end": 24517,
"labels": [
"RPC"
],
"start": 24477,
"text": "\nBoth the appeals deserve to be allowed."
}
},
{
"from_name": null,
"id": "a08f317fd0924681836429f8cb85c4a0",
"to_name": null,
"type": null,
"value": {
"end": 24553,
"labels": [
"RPC"
],
"start": 24518,
"text": "Hence, we pass the following order."
}
},
{
"from_name": null,
"id": "9fcaacc946f24731a23bdaedf63bac02",
"to_name": null,
"type": null,
"value": {
"end": 24767,
"labels": [
"RPC"
],
"start": 24553,
"text": "\n i) These criminal appeals are allowed and the conviction and sentence of the appellants is hereby quashed and set aside and the appellants are acquitted of the offences with which they were charged and convicted."
}
},
{
"from_name": null,
"id": "8f1a32a0eadd4c5cbbafcf792e5ffcb2",
"to_name": null,
"type": null,
"value": {
"end": 24824,
"labels": [
"RPC"
],
"start": 24767,
"text": "\n ii) Fine if paid by the appellants be refunded to them."
}
},
{
"from_name": null,
"id": "718ea081282246d5813e201b6fc76672",
"to_name": null,
"type": null,
"value": {
"end": 24983,
"labels": [
"RPC"
],
"start": 24824,
"text": "\n iii) Since the appellant Hemant Kawadu Chauriwal in Criminal Appeal No.53 of 2007 is in Jail, he be released forthwith, if not required in any other offence."
}
},
{
"from_name": null,
"id": "ab413a8253684eefb61e6ad4fe5a62d2",
"to_name": null,
"type": null,
"value": {
"end": 25064,
"labels": [
"RPC"
],
"start": 24983,
"text": "\n iv) Bailbonds of the appellant Sau. Vachhalla Kawadu Chauriwal stand cancelled."
}
},
{
"from_name": null,
"id": "95b7a6c13bfc4847abba86583bf6d6c1",
"to_name": null,
"type": null,
"value": {
"end": 25083,
"labels": [
"NONE"
],
"start": 25064,
"text": "\n JUDGE JUDGE."
}
}
]
}
] | 4,149 | {
"text": "IN THE HIGH COURT OF JUDICATURE AT BOMBAY,\n NAGPUR BENCH, NAGPUR.\n\nCRIMINAL APPEAL NO.53 OF 2007\n WITH\n\nCRIMINAL APPEAL NO.70 OF 2007\n\nCRIMINAL APPEAL NO.53 OF 2007\n\nHemant Kawadu Chauriwal, .... APPELLANT\nAged about 33 years,\nR/o Nehru Nagar, Ghatanji,\nTahsilGhatanji, District Yavatmal.\n\nVERSUS\n\nThe State of Maharashtra,\nthrough PSO Police Station Ghatanji,\n\nTahsil Ghatanji, District Yavatmal. .... RESPONDENT\n\n___________________________________________________________________\n Dr. (Ms.) U.K. Kalsi, Advocate for the appellant,\n Mr. M.K. Pathan, APP for the respondent.\n\n___________________________________________________________________\n\nCRIMINAL APPEAL NO.70 OF 2007\n\nSau. Vachhalla Kawadu Chauriwal, .... APPELLANT\nAged about 68 years,\nR/o Nehru Nagar, Ghatanji,\nTahsilGhatanji, District Yavatmal.\n\n VERSUS\nThe State of Maharashtra,\n\nthrough PSO Police Station Ghatanji,\nTahsil Ghatanji, District Yavatmal. .... RESPONDENT\n\n___________________________________________________________________\n\n Dr. (Ms.) U.K. Kalsi, Advocate for the appellant,\n Mr. M.K. Pathan, APP for the respondent.\n\n___________________________________________________________________\n\n CORAM : P.V. HARDAS & M.L. TAHALIYANI, JJ.\n DATED : JULY 02, 2012.\n\nORAL JUDGMENT : (PER M.L. TAHALIYANI, J.) 1. These two appeals are being decided by the common judgment as they arise out of the conviction recorded by the learned Additional Sessions Judge, Pandharkawada (Kelapur) in Sessions Trial No.64/2004.\n The appellant Hemant Kawadu Chauriwal in Criminal Appeal No.53/2007 and the appellant Sau. Vachhalla Kawadu Chauriwal in Criminal Appeal No.70/2007 were tried by the learned Additional Sessions Judge along with accused No.2 Kawadu Ambar Chauriwal, accused No.3 Vasanta Kawadu Chauriwal and accused No.5 Sau Vanita Chandrakrushna Chauragade for the offences punishable under Sections 304B read with Section 34 and Section 498A read with Section 34 of the Indian Penal Code. The appellant Hemant in Appeal No.53/2007 was also in alternative tried for the offence punishable under Section 302 of the Indian Penal Code. On conclusion of trial the appellants and other accused were acquitted of the offence punishable under Section 304B read with Section 34 of the Indian Penal Code. The original accused Nos.2,3 & 5 were also acquitted of the offence punishable under Section 498A read with Section 34 of the Indian Penal Code. The appellant Hemant in Appeal No.53/2007 was found guilty of the offences punishable under Sections 302 and 498A of the Indian Penal Code. He was sentenced to suffer imprisonment for life and to pay a fine of Rs.1000/, in default to suffer rigorous imprisonment for six months for the offence punishable under Section 302 of the Indian Penal Code. He was further sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.1,000/, in default to suffer rigorous imprisonment for three months for the offence punishable under Section 498A of the Indian Penal Code. As far as accused No.4 Sau. Vachhalla is concerned, she has been convicted for the offence punishable under Section 498A of the Indian Penal Code only and has been sentenced to suffer simple imprisonment for one year and to pay a fine of Rs.1,000/, in default to suffer further simple imprisonment for one month for the offence punishable under Section 498A of the Indian Penal Code.\n 2. The appellant in Appeal No.53/2007 will be referred to as 'appellant No.1' and appellant in Appeal No.70/2007 will be referred to as 'appellant No.2' hereinafter.\n 3. The deceased Asha Hemant Chauriwal (hereinafter referred to as 'deceased'), daughter of P.W.3Devidas Atmaram Dohare and P.W.4Sau.\n Chandrakala Devidas Dohare, was married to appellant No.1 on 29th May, 2001. After the marriage, she went to stay with appellant No.1 at Ghatanji.\nAppellant No.1 was member of joint family of which appellant No.2 and other accused were also members. Original accused No.2 is father of appellant No.1 and husband of appellant No.2. Original accused No.3 is brother of appellant No.1 and original accused No.5 is a sister of appellant No.1.\n 4. It is alleged that after the marriage, the deceased was being subjected to mental and physical cruelty on the ground that she had not brought sufficient valuable articles in dowry. The deceased was not being given sufficient food to eat. She was being tortured every now and then on the ground that she did not know cooking and that the food cooked by her was not tasty enough. These facts she had been disclosing to her parents whenever she visited her parental house.\n 5. The incident in question had occurred on 20th June, 2004 at matrimonial home of the deceased. It is alleged that the appellants had poured kerosene on the deceased and had set her on fire. She was thereafter taken to Ghatanji Hospital for treatment. She was removed to Yavatmal Government Hospital for further treatment. In the meantime, the news was received by parents of the deceased. They also reached the hospital at Yavatmal. Police Officer from Yavatmal Police had requested the Naib Tahsildar Smt. Pushpalata Bharti (P.W.1) to record statement of the deceased at Yavatmal General Hospital. The request letter was handed over to the NaibTahsildar by a Police Constable. The NaibTahsildar reached the hospital. She took opinion of the Medical Officer with regard to the condition of the deceased and thereafter she recorded statement of the deceased. The deceased had allegedly stated before the NaibTahsildar (Executive Magistrate) that since her parents had not given sufficient dowry at the time of marriage, she was being physically assaulted. It was further stated by her that on 20th June, 2004 at about 800 a.m. appellant No.1 had poured kerosene on her and set her on fire. Appellant No.2 and other accused had abused her and had assaulted her. She had further stated that her husband should be punished for crime committed by him. The statement of the deceased was recorded at about 5.45 p.m. on 20th June, 2004.\n 6. Since the incident had occurred at Ghatanji and the police of Ghatanji came to know about the incident, a Police Officer from Ghatanji Police Station had reached the spot and had drawn detail crime report, which includes the panchanama. The offence was registered at Ghatanji Police Station on 21st June, 2004 after receipt of the above stated dying declaration recorded by Executive Magistrate by Ghatanji Police Station from Yavatmal Police Station. The First Information Report was registered for the offences punishable under Sections 307 and 498A read with Section 34 of the Indian Penal Code. The deceased died on 22nd June, 2004. After the death of deceased Asha Hemant Chauriwal, the police started investigation for the offences punishable under Sections 302 and 304B of the Indian Penal Code also.\n 7. During the course of investigation, statements of parents of the deceased were recorded. Dead body was subjected to postmortem examination. All the injuries on the deceased were found ante mortem. The deceased had sustained about 88% of burn injuries on various limbs from neck to lower limbs. The cause of death was stated to be septicemia as a result of 88% dermo epidermal infected burn injuries. After completion of investigation, chargesheet was filed in the court of Magistrate.\n 8. The learned trial Judge framed charge against appellant No.1 for the offences punishable under Sections 302, 304B and 498A read with Section 34 of the Indian Penal Code. As far as appellant No.2 and other accused are concerned, the learned trial Judge had framed charge against them for the offences punishable under Sections 498A and 304B read with Section 34 of the Indian Penal Code. The appellants and the other accused had pleaded not guilty to the charge. The defence of the appellants and the other accused was that the deceased had committed suicide by pouring kerosene on herself. It was their case that the parents of the appellants had taken the deceased to the hospital for treatment after breaking open the door of the room where she had committed suicide.\n 9. The prosecution had examined in all six witnesses in support of its case. P.W.1Pushpalata Bharti is the Executive Magistrate, who had recorded the statement of the deceased at Government Hospital, Yavatmal.\n P.W.2Prakash is the Police Constable who had carried dying declaration of the deceased from Yavatmal to Ghatanji. P.W.3Devidas and P.W.4 Chandrakala are the father and mother respectively of the deceased. P.W.5 Dr. Sarika Naik is the Medical Officer who had examined the deceased before recording of her dying declaration. P.W.6Dipak Gotmare is the Police Officer, who had carried out the investigation. The PostMortem Report at Exh.97 was admitted to be true and correct by the appellants and the other accused.\n 10. As such the cause of death has not been disputed by the appellants. The question before the trial Court was as to whether 88% burn injuries, which resulted into septicemia and ultimately caused death of the deceased, were caused by the appellants and the other accused. All the accused have been acquitted of the offence punishable under Section 304B read with Section 34 of the Indian Penal Code. However, the appellant No.1 has been convicted of the offence punishable under Section 302 of the Indian Penal Code.\n 11. Before we examine the order of conviction for the offence punishable under Section 498A of the Indian Penal Code recorded against both the appellants, we propose to examine the judgment of the learned trial Court with regard to the conviction of appellant No.1 for the offence punishable under Section 302 of the Indian Penal Code. The learned trial Court has believed the dying declaration (Exh.60) of the deceased and has come to the conclusion that appellant No.1 had caused death of the deceased. To examine whether the finding given by the learned trial Court is right or wrong, it will be necessary to state in brief the evidence with regard to requisitioning the services of the Executive Magistrate and recording of dying declaration.\n 12. There is no dispute that the incident in question had occurred on 20th June, 2004. The deceased was admitted in Government Hospital at Yavatmal on the same day. Her statement was recorded by the P.W.1 Executive Magistrate on the same day. It is also not in dispute that the First Information Report was registered at Ghatanji Police Station on 21st June, 2004. It is also not in dispute that the deceased had died on 22nd June, 2004 and thereafter Section 302 of the Indian Penal Code was applied. The Investigating Officer P.W.6Dipak Gotmare of Ghatanji Police Station had visited the spot immediately after the incident on 20th June, 2004. He however had not registered any offence after his return to the Police Station from the spot.\n 13. P.W.6Dipak Gotmare has stated in his evidence that he had received information that Asha Hemant Chauriwal had set herself on fire.\n The circumstances involving recording of dying declaration and the dying declaration itself will have to be examined in the light of this statement of the Police Officer, who had received information of the incident, which was first in time.\n 14. P.W.1Pushpalata, the Executive Magistrate, has stated that she had received the memo from the police for recording dying declaration and she had visited Ward No.26 of Government Hospital. She had recorded statement of the deceased Asha Hemant Chauriwal. According to this witness, the Medical Officer had certified that the deceased was in a fit condition to make a statement. The memo received by this witness is produced at Exh.59. The Medical Officer, who had examined the deceased, has been examined as P.W.5. P.W.5Dr. Sarika Naik has stated that at the request of P.W.1Pushpalata, she had examined the deceased and had certified that the deceased was mentally competent to give her dying declaration. The memo received by P.W.1Pushpalata is at Exh.59 and the certificate given by the Medical Officer is at Exh.96. In her statement, which was reduced to writing by P.W.1Pushpalata, the deceased had stated before P.W.1 that she was being tortured at her matrimonial home and they had been constantly demanding money from her. The deceased had also stated that on 20th June, 2004 she was set on fire by her husband. She also wanted her husband to be punished for the offence committed by him. In this regard, it is necessary to be stated here that the officer of Yavatmal Police, who had issued request letter to P.W.1Pushpalata for recording statement of the deceased, has not been examined. The prosecution has also not examined the Police Constable who had carried request letter to P.W.1 Pushpalata. It is also not clear from the evidence of P.W.1Pushpalata as to who had collected the dying declaration recorded by her at Exh.60. There is no evidence at what time the dying declaration was collected from P.W.1 Pushpalata and in whose custody it was lying before it reached Ghatanji Police Station where a First Information Report was registered on the basis of the dying declaration carried by P.W.2Prakash. In fact, it was the duty of the learned trial Court to examine whether the statement made by the deceased was voluntary and true. The learned trial Court should have borne in mind that dying declaration has to be judged and appreciated in light of the surrounding circumstances.\n 15. In a latest judgment reported at 2012(3) SCALE 438 (MANU/SC/0212/2012) in the matter of Bhajju @ Karan Singh Vs. State of Madhya Pradesh, the Hon'ble Supreme Court at Para No.12 has stated as under : \"12. The law is wellsettled that a dying declaration is admissible in evidence and the admissibility is founded on the principle of necessity. A dying declaration, if found reliable, can form the basis of a conviction. A Court of facts is not excluded from acting upon an uncorroborated dying declaration for finding conviction. The dying declaration, as a piece of evidence, stands on the same footing as any other piece of evidence. It has to be judged and appreciated in light of the surrounding circumstances and its weight determined by reference to the principle governing the weighing of evidence. If in a given case a particular dying declaration suffers from any infirmity, either of its own or as disclosed by the other evidence adduced in the case or the circumstances coming to its notice, the Court may, as a rule of prudence, look for corroboration and if the infirmities are such as would render a dying declaration so infirm that it pricks the conscience of the Court, the same may be refused to be accepted as forming basis of the conviction.\"\n It is thus clear that the dying declaration can be basis for conviction without there being any corroboration. However, it is necessary that it must enjoy full confidence of the Court. To determine whether it enjoys full confidence of the Court or not, it is necessary to judge the dying declaration like any other piece of evidence. The Hon'ble Supreme Court has said that it is to be judged and appreciated in light of the surrounding circumstances and its weight determined by reference to the principle governing the weighing of evidence.\n 16. The Hon'ble Supreme Court in the matter of Sharda Vs. State of Rajasthan reported at AIR 2010 SC 408 has said at Para 34 as under : \"34. Though a dying declaration is entitled and is still recognized by law to be given greater weightage but it has also to be kept in mind that accused had no chance of cross examination. Such a right of crossexamination is essential for eliciting the truth as an obligation of oath. This is the reason, generally, the court insists that the dying declaration should be such which inspires full confidence of the court of its correctness. The court has to be on guard that such statement of deceased was not as a result of either tutoring, prompting or product of imagination. The court must be further satisfied that deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the court is satisfied that the aforesaid requirement and also to the fact that declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It is not an absolute rule of law that the dying declaration cannot be form the sole basis of conviction unless it is corroborated.\n The rule requiring corroboration is merely a rule of prudence.\"\n 17. In the present case, the prosecution has not given any explanation as to why did they fail to examine the Police Officer, who had issued request letter to the Executive Magistrate for recording dying declaration and at the same time why the Police Constable, who had carried the request letter, has also not been examined. Non examination of these two witnesses by itself would not have been fatal to the prosecution case, had the other circumstances inspired confidence in our mind. It is stated by P.W.1Pushpalata in her examinationinchief that relatives of the deceased were present in Burn Ward and she had requested a constable to ask all the relatives to withdraw themselves from the Burn Ward. It has also come in the evidence of P.W.3Devidas and P.W.4Chandrakala that they had reached hospital before arrival of the Executive Magistrate. The presence of relatives by itself also is no reason to come to the conclusion that the person giving the statement was tutored. At the same time, it is to be borne in mind that primarily it is the duty of the prosecution to prove its case beyond all reasonable doubts. The court is not only under obligation to examine the dying declaration but it is also under obligation to examine the circumstances in which the dying declaration was recorded.\n 18. In the present case, Police Officer P.W.6Dipak Gotmare has stated that he received information that deceased Asha Hemant Chauriwal had set herself on fire and he had reached the spot for drawing spot panchanama. The contents of dying declaration are contrary to the information received by police which was first in time. The prosecution has not been able to rule out the possibility of creating a false dying declaration at the instance of the relatives. We are fortified our view due to certain facts stated by P.W.6 in his crossexamination. P.W.6Dipak Gotmare, Investigating Officer, has stated in the crossexamination that he had not seized burnt pieces of clothes from the spot of occurrence as those were not found there.\n He had also not collected sample of soil from the spot of occurrence. He did not find burnt pieces of clothes any where in the house. As such we had requested the learned Additional Public Prosecutor to let us know from the evidence as to exactly where the incident had occurred. After having gone through the evidence and the crime report including panchanama, the learned Additional Public Prosecutor has not been able to tell us as to what was the location where the deceased had sustained burn injuries.\n 19. The appellants and accused had given explanation in their statements under Section 313 of the Code of Criminal Procedure, which appears to be probable. It is explained by the appellants and the other accused that the deceased had set herself on fire and had committed suicide.\n It is worth mentioning that P.W.2Prakash, who was working as Head Constable at Yavatmal Police Headquarters, has stated that he was posted at City Police Station, Yavatmal. He had carried dying declaration of the deceased to Ghatanji Police Station on 21st June, 2004. He had lodged his report, which was recorded as First Information Report Exh.78 at Ghatanji Police Station. The statement of the deceased was recorded at about 5.45 p.m. on 20th June, 2004 at Yavatmal. The statement of the deceased was a statement within the meaning of Section 157 of the Evidence Act. It was not a confidential document. An offence could have been registered at Yavatmal Police Station by giving No.'00/2004'. In fact it is the practice in Maharashtra that whenever the First Information Report of cognizable offence is received by the Police Station with regard to the offence which had not occurred within the jurisdiction of the said police station, the First Information Report is recorded under '00' number of the particular year. The said First Information Report is later on transferred to the police Station having jurisdiction over the place of offence. As such there are a lot of mysterious circumstances which have remained unexplained. These unexplained circumstances create a reasonable doubt in our mind as to the correctness of the dying declaration. It need not be stated here that it is the duty of the Court to examine whether the dying declaration was voluntary and true. In the present case, we doubt as to whether the statement reduced to writing by P.W.1Pushpalata produced at Exh.60 was statement of the deceased.\n 20. The evidence of parents of the deceased does not help in any manner as far as charge under Section 302 of the Indian Penal Code is concerned. The conviction recorded against appellant No.1 was purely based on the dying declaration of the deceased. In view of our finding that there are many mysterious circumstances, which have remained unexplained and that the dying declaration of the deceased reduced to writing by P.W.1 Pushpalata does not appear to be genuine dying declaration, we are of the view that appellant No.1 should have been acquitted of the offence punishable under Section 302 of the Indian Penal Code.\n 21. As far as charge under Section 498A read with Section 34 of the Indian Penal Code is concerned, the conviction is mainly based on the letters produced by the parents of the deceased before the Investigating Officer. P.W.3Devidas has stated in his evidence that he had handed over letters received from the deceased. He has identified signature of the deceased. P.W.6Dipak Gotmare, the Investigating Officer, in his evidence, has stated that he had seized letters under the panchanama Exh.63. The letters seized under the said panchanama were exhibited at Exhs.82 to 90.\nHowever, there is no further investigation with regard to the letters. The admitted signatures of the deceased were not collected and opinion of the expert was not sought by the Investigating Officer. Even there does not appear to be attempt on the part of Investigating Officer to verify the genuineness of the letters. In the circumstances, in our opinion, the conviction recorded by the learned Additional Sessions Judge for the offence punishable under Section 498A read with Section 34 of the Indian Penal Code is also not sustainable. Though the Investigating Officer has stated in his evidence that he made efforts to collect natural handwriting of the deceased, but he could not do so, he has not explained as to what steps he had taken to get natural handwriting of the deceased.\n 22. As such the learned trial Court should not have based conviction of the appellants for the offence punishable under Section 498A read with Section 34 of the Indian penal Code only on the basis of the letters produced by father of the deceased, which according to him were written to him by his daughter. The learned trial Court should have asked for better evidence or at least proof of the fact that the letters were in handwriting of the deceased. The investigation, in our opinion, was carried out very shabbily. Either there was sabotage or a false case has been prepared under the pressure of parents of the deceased. We are aware that the mistake on the part of the Investigating Officer should not by itself be a ground for acquittal. If the acceptable evidence is sufficient to record conviction, the mistakes committed by the Investigating Officer should not come in the way of convicting the accused of the offence proved against him. However, in the present case, the mistakes committed by the Investigating Officer, deliberately or negligently, have adversely affected the prosecution case to such an extent that we find it highly risky to sustain the conviction recorded by the learned trial Judge against the appellants. We have come to the conclusion that the judgment is not sustainable and it needs to be set aside.\nBoth the appeals deserve to be allowed. Hence, we pass the following order.\n i) These criminal appeals are allowed and the conviction and sentence of the appellants is hereby quashed and set aside and the appellants are acquitted of the offences with which they were charged and convicted.\n ii) Fine if paid by the appellants be refunded to them.\n iii) Since the appellant Hemant Kawadu Chauriwal in Criminal Appeal No.53 of 2007 is in Jail, he be released forthwith, if not required in any other offence.\n iv) Bailbonds of the appellant Sau. Vachhalla Kawadu Chauriwal stand cancelled.\n JUDGE JUDGE.\npma "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
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"end": 94,
"labels": [
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],
"start": 0,
"text": "PETITIONER:\nDWARKA PRASAD\n\nVs.\n\nRESPONDENT:\nSTATE OF UTTAR PRADESH\n\nDATE OF JUDGMENT23/02/1993"
}
},
{
"from_name": null,
"id": "a8fede8b447e495b8a0de5a4f6b6f7f0",
"to_name": null,
"type": null,
"value": {
"end": 1085,
"labels": [
"PREAMBLE"
],
"start": 96,
"text": "BENCH:\nSINGH N.P. (J)\nBENCH:\nSINGH N.P. (J)\nREDDY, K. JAYACHANDRA (J)\n\nCITATION: 1993 SCC Supl. (3) 141\n 1993 SCR (2) 70 1993 SCALE (1)675\n JT 1993 (2) 168\n\nACT:\nPenal Code, 1860 : Sections 302, 307, 34-Charged under-\nAppreciation of evidence-Prosecution case-Free fight not\nproved-Injuries found on the person of the accused-\nSignificance of-Delay in lodging FIR-Effect of-Motive\ndisclosed by prosecution-Acceptability of-Accused's version\nProbability of.\nPenal Code, 1860 : Section 97 read with Section 105,\nEvidence Act 1872 : Right of private defence-When available-\nAccused causing injury with a Ballam in the chest of the\nvictim resulting death-\"Whether right of private defence\navailable.\nCode of Criminal Procedure, 1974: Section 313 Statement\nmade by accused under-Duty of Court while using.\n\nHEADNOTE:\nThe prosecution's case was that on the date of occurrence,\nthe pw.2 and the deceased were returning after answering the\ncall of nature at about 6 P.M."
}
},
{
"from_name": null,
"id": "60044d4b8c2545caaabee362c5b1f51d",
"to_name": null,
"type": null,
"value": {
"end": 1146,
"labels": [
"PREAMBLE"
],
"start": 1086,
"text": "At that time the appellant\nalong with co-accused came there."
}
},
{
"from_name": null,
"id": "9b1b3235dbb2423fa8390ceb2ac2c884",
"to_name": null,
"type": null,
"value": {
"end": 1230,
"labels": [
"PREAMBLE"
],
"start": 1147,
"text": "Seeing the p.w.2 and the\ndeceased the accused came rushed towards them with knives."
}
},
{
"from_name": null,
"id": "fdabaca71b6644c8a16e5872a90e7cc9",
"to_name": null,
"type": null,
"value": {
"end": 1296,
"labels": [
"PREAMBLE"
],
"start": 1231,
"text": "Appellant chased the deceased and gave a knife blow on his\nchest."
}
},
{
"from_name": null,
"id": "88e76960e3db4e8593c4ca0ae13fb00f",
"to_name": null,
"type": null,
"value": {
"end": 1349,
"labels": [
"PREAMBLE"
],
"start": 1297,
"text": "The P.W.2 received a knife blow from the co-accused."
}
},
{
"from_name": null,
"id": "e3ad8112766c4d8dae332cfafb45279f",
"to_name": null,
"type": null,
"value": {
"end": 1383,
"labels": [
"PREAMBLE"
],
"start": 1349,
"text": "\nThereafter the accused fled away."
}
},
{
"from_name": null,
"id": "b7b0be34cf254915ab07b2bd60311d56",
"to_name": null,
"type": null,
"value": {
"end": 1445,
"labels": [
"PREAMBLE"
],
"start": 1384,
"text": "The victim died on the\nway while he was being taken to Debai."
}
},
{
"from_name": null,
"id": "a547f587b78e4618a8ff98500839a70d",
"to_name": null,
"type": null,
"value": {
"end": 1670,
"labels": [
"PREAMBLE"
],
"start": 1446,
"text": "The P.W. 2. lodged\nthe first information report on the same night at about\n11.30 P.M.\nThe motive for the occurrence was that about 10 or 12 days\nbefore the date of occurrence, the appellant abused the\nP.W.2 and the deceased."
}
},
{
"from_name": null,
"id": "5522a89452cd4052b3db756be946ca6c",
"to_name": null,
"type": null,
"value": {
"end": 1849,
"labels": [
"PREAMBLE"
],
"start": 1671,
"text": "They gave two/three slaps to the\nappellant\nThe appellant-accused's case was that for last two days\nprior to the date of occurrence the crop of his grand-father\nwas being damaged."
}
},
{
"from_name": null,
"id": "ce252dfad9264bfcaf306b5c4a7b931b",
"to_name": null,
"type": null,
"value": {
"end": 1897,
"labels": [
"PREAMBLE"
],
"start": 1850,
"text": "Therefore, he was keeping a watch on the\nfield."
}
},
{
"from_name": null,
"id": "de318dd24ed34a84893d4163d12c1c4b",
"to_name": null,
"type": null,
"value": {
"end": 1956,
"labels": [
"PREAMBLE"
],
"start": 1898,
"text": "During night the P.W.2 and the deceased came to the\nfield."
}
},
{
"from_name": null,
"id": "83591579bc79420ba74b55a80ca07981",
"to_name": null,
"type": null,
"value": {
"end": 2011,
"labels": [
"PREAMBLE"
],
"start": 1957,
"text": "Seeing them, the appellant raised an alarm Chor-\nChor."
}
},
{
"from_name": null,
"id": "9d6f4f1106144cbfa5d1a1f88cd0cfe4",
"to_name": null,
"type": null,
"value": {
"end": 2033,
"labels": [
"PREAMBLE"
],
"start": 2012,
"text": "They started running."
}
},
{
"from_name": null,
"id": "76d4d592c5a845adab6d83325a074660",
"to_name": null,
"type": null,
"value": {
"end": 2073,
"labels": [
"PREAMBLE"
],
"start": 2034,
"text": "The appellant chased them to\ncatchthem."
}
},
{
"from_name": null,
"id": "ef7193bc13654f14a6f70a4cd0115839",
"to_name": null,
"type": null,
"value": {
"end": 2145,
"labels": [
"PREAMBLE"
],
"start": 2074,
"text": "But they turned back and started assaulting the\nappellant with lathies."
}
},
{
"from_name": null,
"id": "75721155b1f44c6288600d19a922a6e8",
"to_name": null,
"type": null,
"value": {
"end": 2207,
"labels": [
"PREAMBLE"
],
"start": 2146,
"text": "The appellant attacked them with a\n'ballam' to save his life."
}
},
{
"from_name": null,
"id": "f65766beef4340689c4e3ec76562caf7",
"to_name": null,
"type": null,
"value": {
"end": 2288,
"labels": [
"PREAMBLE"
],
"start": 2208,
"text": "The injuries on the person of\n\nthe appellant were examined, in the next morning."
}
},
{
"from_name": null,
"id": "e2f66ed56fd64d15894f0b609f25f65a",
"to_name": null,
"type": null,
"value": {
"end": 2477,
"labels": [
"PREAMBLE"
],
"start": 2289,
"text": "He filed\n\nan application before the Superintendent of Police and a\n\ncase was registered at about 10.25 A.M. on the next day of\n\nthe date of occurrence on the basis of appellant's petition."
}
},
{
"from_name": null,
"id": "92007f67f6c8482986d5df4cb044a584",
"to_name": null,
"type": null,
"value": {
"end": 2655,
"labels": [
"PREAMBLE"
],
"start": 2477,
"text": "\n\nThe trial Court acquitted the appellant of the charges under\n\nsections 302 and 307 read with section 34 of the penal Code.\n\nThe State's appeal was allowed by the High Court and"
}
},
{
"from_name": null,
"id": "05ef5be955604b00b9626d0bb5dd01bd",
"to_name": null,
"type": null,
"value": {
"end": 3251,
"labels": [
"PREAMBLE"
],
"start": 2656,
"text": "the\n\npresent appellant was convicted under section 302 of the\n\nPenal Code and was sentenced to undergo rigorous\n\nimprisonment for life.\n\nPresent appeal was filed by the accused against the High\n\nCourt's judgment.\n\nThe State contended that if the version of appellant was\n\naccepted, it would amount to a case of free fight between\n\nthe prosecution party and the accused, both being armed and\n\nthat in a case of free right no party could claim right of\n\nprivate defence.\n\nPartly allowing the appeal, this court,\n\nHELD: 1.01. A free right is that when both sides mean to\n\nright a pitched battle."
}
},
{
"from_name": null,
"id": "fdd5f5f5422a4882acfbfd6c232dbfcf",
"to_name": null,
"type": null,
"value": {
"end": 3389,
"labels": [
"PREAMBLE"
],
"start": 3252,
"text": "The question of who attacks and who\n\ndefends in such a fight is wholly immaterial and depends on\n\nthe tactics adopted by the rival party."
}
},
{
"from_name": null,
"id": "828f98bdc0164699b135680f5d96872b",
"to_name": null,
"type": null,
"value": {
"end": 3491,
"labels": [
"PREAMBLE"
],
"start": 3390,
"text": "In such cases of\n\nmutual rights, both sides can be convicted for their\n\nindividual acts, [76E]\n\n1.02."
}
},
{
"from_name": null,
"id": "037966ebce4a406883f77dd73ae73904",
"to_name": null,
"type": null,
"value": {
"end": 3653,
"labels": [
"PREAMBLE"
],
"start": 3492,
"text": " So far the facts of the present case are\n\nconcerned, if the version disclosed by the accused can be\n\nheld to be a probable version of the occurrence then it\n\n"
}
},
{
"from_name": null,
"id": "0e1c5a6cc71c4142bd9e507b267b5cfa",
"to_name": null,
"type": null,
"value": {
"end": 3695,
"labels": [
"PREAMBLE"
],
"start": 3653,
"text": "cannot be held to be a case of free fight."
}
},
{
"from_name": null,
"id": "db058b0739274f9fbb5839a6076f1e5a",
"to_name": null,
"type": null,
"value": {
"end": 3708,
"labels": [
"PREAMBLE"
],
"start": 3696,
"text": "[76G]\n\n1.03."
}
},
{
"from_name": null,
"id": "ae0709f8abb444e68cfeed61e4e5109e",
"to_name": null,
"type": null,
"value": {
"end": 3910,
"labels": [
"PREAMBLE"
],
"start": 3709,
"text": " In any particular case the injuries found on the\n\nperson of the accused being serious in nature may assume\n\nimportance in respect of the genesis and manner of\n\noccurrence alleged by the prosecution."
}
},
{
"from_name": null,
"id": "273f1776e54e4464a4e0e2c8099c0748",
"to_name": null,
"type": null,
"value": {
"end": 4878,
"labels": [
"PREAMBLE"
],
"start": 3911,
"text": "In other case the\n\ninjuries being superficial, by themselves may not affect the\n\nprosecution case; the version disclosed by the prosecution\n\nhaving been proved by witnesses who are independent,\n\nreliable and trustworthy, supported by the circumstances of\n\nthat particular case, including the promptness with\n\nwhich the first information report was lodged on behalf of\n\nthe prosecution. But if the first information report has\n\nnot been lodged promptly and there is no reasonable\n\nexplanation for the delay-, the witnesses who support the\n\nversion of the prosecution are not only inimical but even\n\ntheir evidence is not consistent with the circumstances\n\nfound during the course of investigation, then in that\n\nsituation, injuries on the person of the accused which are\n\nnot very serious in nature assume importance for the purpose\n\nof consideration as to whether the defence of the right of\n\nprivate defence pleaded by the accused should be accepted.\n\n[80B-D]\n\n1.04."
}
},
{
"from_name": null,
"id": "3dbeed0c36954c0d93bf8c016aa33472",
"to_name": null,
"type": null,
"value": {
"end": 5116,
"labels": [
"PREAMBLE"
],
"start": 4879,
"text": "So far the present case is concerned the injuries\n\nfound on the person of the appellant are not serious in\n\nnature and merely on the ground that prosecution has\n\nsuppressed those injuries, the appellant is not entitled to\n\nthe acquittal."
}
},
{
"from_name": null,
"id": "8803b8c46b5e48b99358507bbdf0e8d6",
"to_name": null,
"type": null,
"value": {
"end": 5249,
"labels": [
"PREAMBLE"
],
"start": 5117,
"text": "But those injuries can certainly be taken\n\ninto consideration while judging whether the defence version\n\nof the accused is probable."
}
},
{
"from_name": null,
"id": "099b96e54e794d409506e5173e685290",
"to_name": null,
"type": null,
"value": {
"end": 5262,
"labels": [
"PREAMBLE"
],
"start": 5250,
"text": "[80H]\n\n1.05."
}
},
{
"from_name": null,
"id": "4b6da5537ce64b2680b3013b571c76ea",
"to_name": null,
"type": null,
"value": {
"end": 5354,
"labels": [
"PREAMBLE"
],
"start": 5263,
"text": " The motive disclosed on behalf of the prosecution\n\nfor the occurrence is not acceptable."
}
},
{
"from_name": null,
"id": "faecb190e872430697af0dd5741da3ff",
"to_name": null,
"type": null,
"value": {
"end": 5606,
"labels": [
"PREAMBLE"
],
"start": 5355,
"text": "Even if it is assumed\n\nthat because of some altercation 10/12 days before the date\n\nof occurrence, the appellant had decided to cause the murder\n\nof the deceased, then more injuries would have been caused\n\non the person of the victim by the appellant."
}
},
{
"from_name": null,
"id": "70b3ba24c7ed4f1abe4e61ceda057e8b",
"to_name": null,
"type": null,
"value": {
"end": 5618,
"labels": [
"PREAMBLE"
],
"start": 5607,
"text": "[81B]\n\n1.06"
}
},
{
"from_name": null,
"id": "6df6b89dbcba40228d11fa08fb905eaa",
"to_name": null,
"type": null,
"value": {
"end": 5712,
"labels": [
"PREAMBLE"
],
"start": 5618,
"text": ". The delay in lodging the first information report\n\nby PW-2 has not at all been explained."
}
},
{
"from_name": null,
"id": "d5c1ad75bcad4a98abd215d26337fa08",
"to_name": null,
"type": null,
"value": {
"end": 5795,
"labels": [
"PREAMBLE"
],
"start": 5713,
"text": "The occurrence\n\n\naccording to prosecution took place at 6.00 P.M. in the\n\nevening."
}
},
{
"from_name": null,
"id": "bdafbf5e8f054eae814021406099e3bc",
"to_name": null,
"type": null,
"value": {
"end": 5896,
"labels": [
"PREAMBLE"
],
"start": 5796,
"text": "The victim while being taken to Debai which is at\n\na distance of five kilometers expired on the way."
}
},
{
"from_name": null,
"id": "1cdeb3234f4240eabafb7de8efb53da3",
"to_name": null,
"type": null,
"value": {
"end": 5983,
"labels": [
"PREAMBLE"
],
"start": 5897,
"text": "Then why\n\nfirst information report was lodged at 11.30 P.M., there is\n\nno explanation."
}
},
{
"from_name": null,
"id": "5d4999acd2374d08b1ecfaad6faec198",
"to_name": null,
"type": null,
"value": {
"end": 6126,
"labels": [
"PREAMBLE"
],
"start": 5984,
"text": "On the other hand the appellant's case is\n\nthat the occurrence did not take place at 6.00 P.M. in the\n\nevening but at later part in the night."
}
},
{
"from_name": null,
"id": "5a840728f6bf4e67bfc9b46c33eb042f",
"to_name": null,
"type": null,
"value": {
"end": 6161,
"labels": [
"PREAMBLE"
],
"start": 6127,
"text": "That appears to be\n\nmore probable."
}
},
{
"from_name": null,
"id": "a734cc6b57254c7c801871053a8cdd6a",
"to_name": null,
"type": null,
"value": {
"end": 6174,
"labels": [
"PREAMBLE"
],
"start": 6162,
"text": "[81C]\n\n1.07."
}
},
{
"from_name": null,
"id": "ebb89c69322d43cb938c8eb238c56322",
"to_name": null,
"type": null,
"value": {
"end": 6331,
"labels": [
"PREAMBLE"
],
"start": 6175,
"text": " The injury found on the chest of the deceased is\n\ninconsistent with the prosecution case that appellant chased\n\nthe deceased and then gave a blow by knife."
}
},
{
"from_name": null,
"id": "229c395f2bc74a4ebe79fe3f4cde2303",
"to_name": null,
"type": null,
"value": {
"end": 6527,
"labels": [
"PREAMBLE"
],
"start": 6332,
"text": "But it is\n\nconsistent with the defence version that soon the deceased\n\nand PW.2 returned and started assaulting the appellant when\n\nthe appellant gave a ballam blow in the chest of the\n\ndeceased."
}
},
{
"from_name": null,
"id": "4ff0ec8e639f40069b448c5fdf1e8cb2",
"to_name": null,
"type": null,
"value": {
"end": 6671,
"labels": [
"PREAMBLE"
],
"start": 6528,
"text": "If the appellant had given the ballam blow while\n\nchasing the deceased, in that event it would have caused\n\ninjury on the back of the deceased."
}
},
{
"from_name": null,
"id": "b8b74f7e74364e31ac98658eb990e46d",
"to_name": null,
"type": null,
"value": {
"end": 6684,
"labels": [
"PREAMBLE"
],
"start": 6672,
"text": "[81F]\n\n1.08."
}
},
{
"from_name": null,
"id": "7a6a912255454b48836b89972d6313e0",
"to_name": null,
"type": null,
"value": {
"end": 6740,
"labels": [
"PREAMBLE"
],
"start": 6686,
"text": "Taking all facts and circumstances into\n\nconsideration"
}
},
{
"from_name": null,
"id": "e26b043158e24fceb7c4b806e95ce2ec",
"to_name": null,
"type": null,
"value": {
"end": 6825,
"labels": [
"PREAMBLE"
],
"start": 6741,
"text": "the version of the accused of the occurrence\n\nappears to be probable and acceptable."
}
},
{
"from_name": null,
"id": "9162e1fbbea14affa50fed578a83a679",
"to_name": null,
"type": null,
"value": {
"end": 6833,
"labels": [
"PREAMBLE"
],
"start": 6826,
"text": "[82G]\n\n"
}
},
{
"from_name": null,
"id": "448f8652d90c463496bbe038b39723be",
"to_name": null,
"type": null,
"value": {
"end": 7333,
"labels": [
"PREAMBLE"
],
"start": 6833,
"text": "Gajanandv.State of Uttar Pradesh, AIR1954SC 695;Kanbi Nanji\n\nVirji v. State of Gujarat AIR 1970 SC 219; Puran v. State\n\nof Rajasthan, AIR 1976 SC 912; Vishvas Aba Kurane v. State\n\nof Maharashtra, AIR 1978 SC 414; The State of Gujarat v. Bai\n\nFatima, AIR 1975 SC 1478; Lakshman Singh v. State of Bihar,\n\nAIR 1976 SC 2263; Bhaba Nanda Sarma v. The State of Assam,\n\nAIR 1977 SC 2252; Hare Krishna Singh v. State of Bihar, AIR\n\n1988 SC 863 and State of Rajasthan v. Madho, AIR 1991 SC\n\n1065, referred to."
}
},
{
"from_name": null,
"id": "5ee618533c68461191f870f0cd18559f",
"to_name": null,
"type": null,
"value": {
"end": 7346,
"labels": [
"PREAMBLE"
],
"start": 7334,
"text": "[76F]\n\n2.01."
}
},
{
"from_name": null,
"id": "94938d013c384969aa52dc8f9ae65ca9",
"to_name": null,
"type": null,
"value": {
"end": 7572,
"labels": [
"PREAMBLE"
],
"start": 7347,
"text": " Once it is established by the prosecution that the\n\noccurrence in question is result of a free fight then\n\nnormally no right of private defence is available to either\n\nparty and they will be guilty of their respective acts."
}
},
{
"from_name": null,
"id": "16b4f9a83ab3469a8d788d377de89496",
"to_name": null,
"type": null,
"value": {
"end": 7586,
"labels": [
"PREAMBLE"
],
"start": 7572,
"text": "\n\n[76G]\n\n2.02."
}
},
{
"from_name": null,
"id": "51099a6ecbe2422d9c1fe7155d0d6ec9",
"to_name": null,
"type": null,
"value": {
"end": 7677,
"labels": [
"PREAMBLE"
],
"start": 7588,
"text": "Accused pleading the right of private defence need\n\nnot prove it beyond reasonable doubt."
}
},
{
"from_name": null,
"id": "41974ff42be34618b7c026a3e2d93982",
"to_name": null,
"type": null,
"value": {
"end": 7836,
"labels": [
"PREAMBLE"
],
"start": 7678,
"text": "It is enough if on\n\nthe basis of the circumstances of a particular case,\n\napplying the test of preponderance or probabilities the\n\nversion becomes acceptable."
}
},
{
"from_name": null,
"id": "9f0dd2c363df401fa28c096e7955e768",
"to_name": null,
"type": null,
"value": {
"end": 7849,
"labels": [
"PREAMBLE"
],
"start": 7837,
"text": "[80E]\n\n2.03."
}
},
{
"from_name": null,
"id": "8d60b5a3d3924b0b8a5339d6ed653130",
"to_name": null,
"type": null,
"value": {
"end": 8085,
"labels": [
"PREAMBLE"
],
"start": 7850,
"text": " There are no two parallel versions before the\n\nCourt, one on behalf of the prosecution and other on behalf\n\nof the accused and the Court is required to choose as to\n\nwhich of the two versions is the correct version of the\n\noccurrence."
}
},
{
"from_name": null,
"id": "3227038353bc415aa000bb53c307916f",
"to_name": null,
"type": null,
"value": {
"end": 8321,
"labels": [
"PREAMBLE"
],
"start": 8086,
"text": "The burden placed on the accused is discharged\n\nno sooner he creates a doubt in the mind of the Court and\n\nsatisfies the Court that the version disclosed by him in the\n\nfacts and circumstances of that particular case is more\n\nprobable."
}
},
{
"from_name": null,
"id": "38aebb4a038843faaccb3087b3f8ab33",
"to_name": null,
"type": null,
"value": {
"end": 8335,
"labels": [
"PREAMBLE"
],
"start": 8322,
"text": "[80E-F]\n\n2.04"
}
},
{
"from_name": null,
"id": "9c459c7cabb34c6bbe1b518b95b39978",
"to_name": null,
"type": null,
"value": {
"end": 8383,
"labels": [
"PREAMBLE"
],
"start": 8335,
"text": ". If the right of private defence is available."
}
},
{
"from_name": null,
"id": "939f7a5277a847c59c5eb580a5e115cc",
"to_name": null,
"type": null,
"value": {
"end": 8498,
"labels": [
"PREAMBLE"
],
"start": 8385,
"text": "While judging the question whether the accused has exceeded\n\nsuch right, should not be weighed in a golden scale."
}
},
{
"from_name": null,
"id": "4a39b9c821e94432bcd5f9811887aa3c",
"to_name": null,
"type": null,
"value": {
"end": 8627,
"labels": [
"PREAMBLE"
],
"start": 8499,
"text": "But\n\nthe right of private defence does not extend to the\n\ninfliction of more harm than is necessary for the purpose of\n\ndefence."
}
},
{
"from_name": null,
"id": "fbe79e18d88342bba5d8aac0ce398afc",
"to_name": null,
"type": null,
"value": {
"end": 8798,
"labels": [
"PREAMBLE"
],
"start": 8628,
"text": "When the appellant caused the injury with a\n\nballani (spear) in the chest of the victim which resulted in\n\nhis death, certainly he exceeded his right of private\n\ndefence."
}
},
{
"from_name": null,
"id": "2ed90efeb95842ec8b1247dbb92251bb",
"to_name": null,
"type": null,
"value": {
"end": 9083,
"labels": [
"PREAMBLE"
],
"start": 8799,
"text": "[82H, 83A]\n\nPartap v. )le State of U.P., [1975] 2 SCC 798; Mohan Singh\n\nv. State of Punjab, AIR 1975 SC 2161; Seniyal Udayar v.\n\nState of Tamil Nadu, AIR 1987 SC 1289; Vijayee Singh v.\n\nState of U.P., [1990] 3 SCC 190 and Buta\n\nSingh v. State of Punjab, [1991] 2 SCC 612, referred to."
}
},
{
"from_name": null,
"id": "b807bedd63fe44029e96f550d88eecd1",
"to_name": null,
"type": null,
"value": {
"end": 9095,
"labels": [
"PREAMBLE"
],
"start": 9083,
"text": "\n\n[80G]\n\n\n3."
}
},
{
"from_name": null,
"id": "b661e2a1172a457c940e81354228ef52",
"to_name": null,
"type": null,
"value": {
"end": 9136,
"labels": [
"PREAMBLE"
],
"start": 9096,
"text": "An admission has to be taken as a whole."
}
},
{
"from_name": null,
"id": "7b699ee6a69f46bf938d270ca8111199",
"to_name": null,
"type": null,
"value": {
"end": 9539,
"labels": [
"PREAMBLE"
],
"start": 9137,
"text": "It was not\nopen to the High Court to reject one part so far the\naggression and assault by the prosecution party which\naccording to the appellant preceded giving of the ballam\nblow, and to accept only the later part of the statement\nthat appellant gave a ballam blow, for the purpose of\nconvicting the appellant [82D].\nHanumant Govind Nargundkar v. State of Madhya Pradesh, AIR\n1952 SC 343, referred to."
}
},
{
"from_name": null,
"id": "0d02a2b31ee74b7c8570395ea7997382",
"to_name": null,
"type": null,
"value": {
"end": 9556,
"labels": [
"PREAMBLE"
],
"start": 9540,
"text": "[82E]\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "327990eaaa254d28ac5dcb3c3a79934e",
"to_name": null,
"type": null,
"value": {
"end": 9622,
"labels": [
"NONE"
],
"start": 9556,
"text": "\nCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 827 of 1981."
}
},
{
"from_name": null,
"id": "2faabcdfd42d4c0fa33b5616039d3c43",
"to_name": null,
"type": null,
"value": {
"end": 9731,
"labels": [
"NONE"
],
"start": 9623,
"text": "From the Judgment and Order dated 22.7.81 of the Allahabad High Court in Government Appeal No. 1861 of 1975."
}
},
{
"from_name": null,
"id": "155ea9433ceb4d84b062bb9f3b6a2fc3",
"to_name": null,
"type": null,
"value": {
"end": 9836,
"labels": [
"NONE"
],
"start": 9731,
"text": "\nP.K. Dey, Rakesh Goswami and Ms.Rani Jethmalani (N.P.) for the Appellant.\nR.C. Verma for the Respondent."
}
},
{
"from_name": null,
"id": "a244b0ec73e44726ad4a17db51542a41",
"to_name": null,
"type": null,
"value": {
"end": 9894,
"labels": [
"NONE"
],
"start": 9836,
"text": "\nThe Judgment of the Court was delivered by N.P. SINGH, J."
}
},
{
"from_name": null,
"id": "d61037e1e1a84c67b3323aed2e152e23",
"to_name": null,
"type": null,
"value": {
"end": 10023,
"labels": [
"RLC"
],
"start": 9895,
"text": "The appellant was acquitted of the charges under sections 302 and 307 read with section 34 of the Penal Code by the Trial Court."
}
},
{
"from_name": null,
"id": "428e312fa2e24f66af904f290337c86c",
"to_name": null,
"type": null,
"value": {
"end": 10218,
"labels": [
"RLC"
],
"start": 10024,
"text": "On appeal being filed on behalf of the State of Uttar Pradesh he has been convicted under section 302 of the Penal Code by the High Court and sentenced to undergo rigorous imprisonment for life."
}
},
{
"from_name": null,
"id": "e779fee8335c41c29d127b3cd77104ce",
"to_name": null,
"type": null,
"value": {
"end": 10421,
"labels": [
"FAC"
],
"start": 10218,
"text": "\nIt is the case of the prosecution that on 25.2.1974 at about 6.00 P.M. Chandrapal (PW-2) along with Jagdish (hereinafter referred to as \"the deceased\") were returning after answering the call of nature."
}
},
{
"from_name": null,
"id": "9189bd89b57a4463a460a9d9abbeab14",
"to_name": null,
"type": null,
"value": {
"end": 10631,
"labels": [
"FAC"
],
"start": 10422,
"text": "It is said that at that time this appellant along with co-accussed Ramesh came from the side of the village; seeing Chandrapal (PW-2) and the deceased, the appellant and Ramesh rushed towards them with knives."
}
},
{
"from_name": null,
"id": "7883b98a68244c0a8c454d58273b3129",
"to_name": null,
"type": null,
"value": {
"end": 10708,
"labels": [
"FAC"
],
"start": 10632,
"text": "After some chase the appellant gave a knife blow on the chest of the victim."
}
},
{
"from_name": null,
"id": "aa228a72ae8945de86e6da9dfe402652",
"to_name": null,
"type": null,
"value": {
"end": 10770,
"labels": [
"FAC"
],
"start": 10709,
"text": "The co-accused Ramesh gave a knife blow to Chandrapal (PW-2)."
}
},
{
"from_name": null,
"id": "ea05b43f3f624af38ba564078a193d41",
"to_name": null,
"type": null,
"value": {
"end": 10817,
"labels": [
"FAC"
],
"start": 10771,
"text": "Thereafter the appellant and Ramesh fled away."
}
},
{
"from_name": null,
"id": "846529f52ffb4e9fa99a2a74a1818e9e",
"to_name": null,
"type": null,
"value": {
"end": 10991,
"labels": [
"FAC"
],
"start": 10818,
"text": "The victim while being taken to Debai, died on the way, Chandrapal (PW-2) lodged the first information report at the Police Station Debai at about 11.30 P.M. the same night."
}
},
{
"from_name": null,
"id": "cee268052e914f03bd1cb19b265ba69c",
"to_name": null,
"type": null,
"value": {
"end": 11294,
"labels": [
"FAC"
],
"start": 10991,
"text": "The motive of the occurrence, according to the prosecution, is that about 10 or 12 days before the date of the aforesaid occurrence, there was some altercation between Chandrapal (PW-2) and the deceased on the one side and this appellant on the other, in which the appellant is said to have abused them."
}
},
{
"from_name": null,
"id": "6a260b2bca784728971fde57ee1d4c2e",
"to_name": null,
"type": null,
"value": {
"end": 11374,
"labels": [
"FAC"
],
"start": 11295,
"text": "Chandrapal (P.W-2) and the deceased had given two/three slaps to the appellant."
}
},
{
"from_name": null,
"id": "4b7d6224348a4e62b337c5f411b8ae81",
"to_name": null,
"type": null,
"value": {
"end": 11474,
"labels": [
"FAC"
],
"start": 11374,
"text": "\nThe defence of the appellant was that the prosecution has suppressed the real manner of occurrence."
}
},
{
"from_name": null,
"id": "d03c6e046fd04a81ad518810f0c94553",
"to_name": null,
"type": null,
"value": {
"end": 11611,
"labels": [
"FAC"
],
"start": 11475,
"text": "According to the appellant,. for last two days prior to the date of occurrence the crop of his grand-father Sohan Lal was being damaged."
}
},
{
"from_name": null,
"id": "46bc350b9ead4652b4c2e07432ffe601",
"to_name": null,
"type": null,
"value": {
"end": 11669,
"labels": [
"FAC"
],
"start": 11612,
"text": "Because of that he was keeping a watch on the said field."
}
},
{
"from_name": null,
"id": "51d008f93532475199ad085c0702d1ec",
"to_name": null,
"type": null,
"value": {
"end": 11736,
"labels": [
"FAC"
],
"start": 11670,
"text": "During night Chandrapal (PW-2) and the deceased came to the field."
}
},
{
"from_name": null,
"id": "1db72065290a450ca11a923db6880e74",
"to_name": null,
"type": null,
"value": {
"end": 11777,
"labels": [
"FAC"
],
"start": 11737,
"text": "The appellant raised an alarm chor-chor."
}
},
{
"from_name": null,
"id": "aeaf5ea63aff43b5b67c2f99dbf113ed",
"to_name": null,
"type": null,
"value": {
"end": 11840,
"labels": [
"FAC"
],
"start": 11777,
"text": "\nThereafter Chandrapal (PW-2) and the deceased started running."
}
},
{
"from_name": null,
"id": "a7d7fbbea6fd4b4da907caf0b441eda1",
"to_name": null,
"type": null,
"value": {
"end": 11881,
"labels": [
"FAC"
],
"start": 11841,
"text": "The appellant chased them to catch them."
}
},
{
"from_name": null,
"id": "6bcbbc0815e54b768c04719aab0eb439",
"to_name": null,
"type": null,
"value": {
"end": 11958,
"labels": [
"FAC"
],
"start": 11882,
"text": "But soon they turned back and started assaulting the appellant with lathies."
}
},
{
"from_name": null,
"id": "192b5a67b90b4539a9aef7cdf6c2cc5a",
"to_name": null,
"type": null,
"value": {
"end": 12023,
"labels": [
"FAC"
],
"start": 11959,
"text": "To save his life the appellant attacked with a 'ballam' (spear)."
}
},
{
"from_name": null,
"id": "8b863984abc64bb193062cb2e670665c",
"to_name": null,
"type": null,
"value": {
"end": 12099,
"labels": [
"FAC"
],
"start": 12024,
"text": "The injuries on the person of the appellant were examined the next morning."
}
},
{
"from_name": null,
"id": "2a9658569e47440ca6cc39195fd51697",
"to_name": null,
"type": null,
"value": {
"end": 12317,
"labels": [
"FAC"
],
"start": 12100,
"text": "He also filed an application before the Superintendent of Police, giving his version of the occurrence in which he admitted that when he was being assaulted by Chandrapal (PW-2) and the deceased, he bad used a ballam."
}
},
{
"from_name": null,
"id": "359e3e2230c849619ccea3d28c25c3f8",
"to_name": null,
"type": null,
"value": {
"end": 12450,
"labels": [
"FAC"
],
"start": 12318,
"text": "A case was registered by the Police at about 10.25 A.M. on 26.2.1974, on the basis of the petition filed on behalf of the appellant."
}
},
{
"from_name": null,
"id": "04d6cdd04cf94dfa91faead09badbc88",
"to_name": null,
"type": null,
"value": {
"end": 12583,
"labels": [
"FAC"
],
"start": 12450,
"text": "\nThe injuries on the person of the appellant were examined by Dr. R.P. Rastogi at the District Hospital, Bullandshahar, on 26.2.1974."
}
},
{
"from_name": null,
"id": "7fbdf7c828074dfc86f9ceb0a09712d7",
"to_name": null,
"type": null,
"value": {
"end": 12700,
"labels": [
"FAC"
],
"start": 12584,
"text": "He found the following injuries on his person:- \"(1) Faint contusion 2 cm x 1/2 cm back of left shoulder upper part."
}
},
{
"from_name": null,
"id": "9b691e6696b8448c96fd2b55e5e8f034",
"to_name": null,
"type": null,
"value": {
"end": 12813,
"labels": [
"FAC"
],
"start": 12700,
"text": "\n (2) Faint contusion 10 cm x 2 cm on outer side left back at the lower angle of scapula."
}
},
{
"from_name": null,
"id": "eea75588d78a4349b9de8f94a63ae01d",
"to_name": null,
"type": null,
"value": {
"end": 12945,
"labels": [
"FAC"
],
"start": 12839,
"text": "(3) Faint contusion 4 1/2 cm x 1 cm on back of upper part 1/3rd left forearm.\n (4)"
}
},
{
"from_name": null,
"id": "2b3e8800ac0348069bf09a454781cb72",
"to_name": null,
"type": null,
"value": {
"end": 13030,
"labels": [
"FAC"
],
"start": 12946,
"text": "Faint contusion 12 cm x 1 cm on the back and inner aspect left forearm upper 1/3rd.\""
}
},
{
"from_name": null,
"id": "48a9d67e37f74972b2fa26d59714e308",
"to_name": null,
"type": null,
"value": {
"end": 13218,
"labels": [
"FAC"
],
"start": 13030,
"text": "\nDuring the post mortem examination of the deceased which was also held on 26.2.1974, the following injury was found on his person:- \"Stab wound 1\" x 1/2\" x 1.3/4\"."
}
},
{
"from_name": null,
"id": "2df8d93823fb44b6986bb6b5624e6195",
"to_name": null,
"type": null,
"value": {
"end": 13258,
"labels": [
"FAC"
],
"start": 13219,
"text": "On probing, on left side front of chest"
}
},
{
"from_name": null,
"id": "97ccf0f5d76d4c19bcd9aa49989a4902",
"to_name": null,
"type": null,
"value": {
"end": 13348,
"labels": [
"FAC"
],
"start": 13258,
"text": ", 2.1/2\" inner to left nipple at 10 O' clock position pointing the onwards and downwards.\""
}
},
{
"from_name": null,
"id": "012796de486d452f9a7a9a6fc396c9e7",
"to_name": null,
"type": null,
"value": {
"end": 13469,
"labels": [
"FAC"
],
"start": 13348,
"text": "\nThe Doctor (PW-1), who held the post mortem examination, ad- mitted that the aforesaid injury could be caused by ballam."
}
},
{
"from_name": null,
"id": "90c32f2b7855475bbc485d407360e5e1",
"to_name": null,
"type": null,
"value": {
"end": 13684,
"labels": [
"FAC"
],
"start": 13470,
"text": "So far Chandrapal (PW-2) is concerned, the Doctor noted the following injury on 26.2.1974:- \"Abrasion 1-1/2 x 1/3\" on the left side front of chest, horizontally with shallow edge, medically, 7\" below ancillary pit."
}
},
{
"from_name": null,
"id": "a2f3ac61608441b48896e12fdb6ca913",
"to_name": null,
"type": null,
"value": {
"end": 13755,
"labels": [
"FAC"
],
"start": 13685,
"text": "The wound was not bleeding afresh, but had got clotted blood over it.\""
}
},
{
"from_name": null,
"id": "272efb9f1a1240518a6c8a2b31aa4695",
"to_name": null,
"type": null,
"value": {
"end": 13858,
"labels": [
"FAC"
],
"start": 13755,
"text": "\nThe Doctor in Court stated that possibility of self- infliction of that injury could not be ruled out."
}
},
{
"from_name": null,
"id": "4df40e459ac84dff869b9bada7e9aa8d",
"to_name": null,
"type": null,
"value": {
"end": 14147,
"labels": [
"ARG_RESPONDENT"
],
"start": 13858,
"text": "\nAccording to the State, even if the version disclosed by the appellant is accepted, it will amount to a case of free fight between the prosecution party and the accused, both being armed and when there is a free fight there is no question of right of private defence accruing to any side."
}
},
{
"from_name": null,
"id": "dbfce1d5a395435e9d7d7ac0421db3e0",
"to_name": null,
"type": null,
"value": {
"end": 14216,
"labels": [
"ANALYSIS"
],
"start": 14147,
"text": "\nA free fight is that when both sides mean to fight a pitched battle."
}
},
{
"from_name": null,
"id": "0b8b722ec6384c8a9386f515ac36841d",
"to_name": null,
"type": null,
"value": {
"end": 14352,
"labels": [
"ANALYSIS"
],
"start": 14217,
"text": "The question of who attacks and who defends in such a fight is wholly immaterial and depends on the tactics adopted by the rival party."
}
},
{
"from_name": null,
"id": "59118d8de504412c81a78cd26ba23151",
"to_name": null,
"type": null,
"value": {
"end": 14439,
"labels": [
"ANALYSIS"
],
"start": 14353,
"text": "In such cases of mutual fights, both sides can be convicted for their individual acts."
}
},
{
"from_name": null,
"id": "1438adf1692848f69c5c6b6e32798c59",
"to_name": null,
"type": null,
"value": {
"end": 14718,
"labels": [
"PRE_RELIED"
],
"start": 14440,
"text": "This position has been settled by this Court in the cases of Gajanand v. State of Uttar Pradesh, AIR 1954 SC 695; Kanbi Nanji Virji v. State of Gujarat AIR 1970 SC 219; Puran v.\nState of Rajasthan, AIR 1976 SC 912 and Vishvas Aba Kurane v. State of Maharashtra, AIR 1978 SC 414."
}
},
{
"from_name": null,
"id": "9e81c6800097496a818391c3806a871c",
"to_name": null,
"type": null,
"value": {
"end": 14947,
"labels": [
"ANALYSIS"
],
"start": 14719,
"text": "As such once it is established by the prosecution that the occurrence in question is result of a free fight then normally no right of private defence is available to either party and they will be guilty of their respective acts."
}
},
{
"from_name": null,
"id": "7ea3c867d98841f7826eab861f417516",
"to_name": null,
"type": null,
"value": {
"end": 15149,
"labels": [
"ANALYSIS"
],
"start": 14947,
"text": "\nBut so far the facts of the present case are concerned, if the version disclosed by the accused can be held to be a probable version of the occurrence then it cannot be held to be a case of free fight."
}
},
{
"from_name": null,
"id": "db6a01dce90947819cffc3560273c9b0",
"to_name": null,
"type": null,
"value": {
"end": 15364,
"labels": [
"ANALYSIS"
],
"start": 15150,
"text": "According to the appellant, the crops of the field of his grand-father were being damaged for last two days prior to the date of the occurrence; because of that appellant claims that he was watching the said field."
}
},
{
"from_name": null,
"id": "ab6ad17345aa45748f18cef055043a64",
"to_name": null,
"type": null,
"value": {
"end": 15469,
"labels": [
"ANALYSIS"
],
"start": 15365,
"text": "During the night thedeceased and Chandrapal (PW-2) came to the same field and the appellant chased them."
}
},
{
"from_name": null,
"id": "c5638cad91a443f3b992c9720bc38a4c",
"to_name": null,
"type": null,
"value": {
"end": 15546,
"labels": [
"ANALYSIS"
],
"start": 15470,
"text": "But soon they turned back and started assaulting the appellant with lathies."
}
},
{
"from_name": null,
"id": "cc40f23a0d5548d78b4bfecbbb011b4a",
"to_name": null,
"type": null,
"value": {
"end": 15671,
"labels": [
"ANALYSIS"
],
"start": 15547,
"text": "At this stage the appellant wielded his ballam (spear) which caused an injury to the deceased which ultimately proved fatal."
}
},
{
"from_name": null,
"id": "0cbf27d579c44bf28b19604a1ca2d73d",
"to_name": null,
"type": null,
"value": {
"end": 15961,
"labels": [
"ANALYSIS"
],
"start": 15672,
"text": "It is an admitted position that the appellant filed a petition before the Superintendent of Police giving his version of the occurrence in the morning of 'basis of that a case was registered at about 10.25 A.M. on 26.2.1974, the occurrence having taken place during the night of 25.2.1974."
}
},
{
"from_name": null,
"id": "2ce53d3907374b1ba4375509735c2929",
"to_name": null,
"type": null,
"value": {
"end": 16099,
"labels": [
"ANALYSIS"
],
"start": 15962,
"text": "This fact has been admitted by Shri Manohar Singh (PW-6) who has proved the first information report lodged on behalf of the prosecution."
}
},
{
"from_name": null,
"id": "b2522c7a175241d38cda0d60185fe3d1",
"to_name": null,
"type": null,
"value": {
"end": 16254,
"labels": [
"ANALYSIS"
],
"start": 16100,
"text": "On the examination, Dr. R.P. Rastogi (PW-3) of the District Hospital, Bullandshahar, did find four injuries including one on the scapula of the appellant."
}
},
{
"from_name": null,
"id": "62838e179cc04affbc32db2796245b0c",
"to_name": null,
"type": null,
"value": {
"end": 16302,
"labels": [
"ANALYSIS"
],
"start": 16255,
"text": "It is true that injuries were simple in nature."
}
},
{
"from_name": null,
"id": "bee303c71e1a433a8f23e294cf8844d5",
"to_name": null,
"type": null,
"value": {
"end": 16530,
"labels": [
"ANALYSIS"
],
"start": 16303,
"text": "But even on the deceased only one injury 1\" x 1/2 1.3/4\" was found on the left side front of the chest, which according to the Doctor who held the post mortem examination, could have been caused by a weapon like ballam (spear)."
}
},
{
"from_name": null,
"id": "858fb42cfea64ab3988af4a4d56978c6",
"to_name": null,
"type": null,
"value": {
"end": 16927,
"labels": [
"ANALYSIS"
],
"start": 16531,
"text": "In the statement under section 313 of the Code of Criminal Procedure (hereinafter referred to as \"the Code\") given by the appellant, it was stated by the appellant in detail as to how the standing crops on the land of his grand-father were being damaged and on the night of the occurrence he was guarding the field when he saw the deceased and Chandrapal (PW-2) destroying the crops in the field."
}
},
{
"from_name": null,
"id": "f23a22d436634fc8b013fa4bc35ab1be",
"to_name": null,
"type": null,
"value": {
"end": 17004,
"labels": [
"ANALYSIS"
],
"start": 16928,
"text": "He also stated that he shouted chor-chor and then chased them to catch them."
}
},
{
"from_name": null,
"id": "6b63dfbba2aa45b5b5c383dfe61c49d3",
"to_name": null,
"type": null,
"value": {
"end": 17114,
"labels": [
"ANALYSIS"
],
"start": 17005,
"text": "But soon they turned round and started giving lathies blows and in self- defence the appellant used a ballam."
}
},
{
"from_name": null,
"id": "a01e6319342b47f6b4560a1ac11283f7",
"to_name": null,
"type": null,
"value": {
"end": 17206,
"labels": [
"ANALYSIS"
],
"start": 17115,
"text": "It appears that all this happened in the aforesaid field which the apppellant was guarding."
}
},
{
"from_name": null,
"id": "4edcf2c9c6434862afa13fbd903683a7",
"to_name": null,
"type": null,
"value": {
"end": 17436,
"labels": [
"ANALYSIS"
],
"start": 17206,
"text": "\n From time to time this Court has pointed out that merely because some injuries are found on the accused, which have not been explained by the prosecution, by itself shall not be a ground for rejecting the whole prosecution case."
}
},
{
"from_name": null,
"id": "6a29c30404e0407f866d5a33fec9cdb0",
"to_name": null,
"type": null,
"value": {
"end": 17518,
"labels": [
"ANALYSIS"
],
"start": 17437,
"text": "It will depend on facts of each case what inference should be drawn by the Court."
}
},
{
"from_name": null,
"id": "c3878119ffd44ae5b70f771bd0874f8a",
"to_name": null,
"type": null,
"value": {
"end": 17892,
"labels": [
"PRE_RELIED"
],
"start": 17519,
"text": "In the case of The State of Gujarat v.\n Bai Fatima, AIR 1975 SC 1478, it was said that when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow :- \"(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence."
}
},
{
"from_name": null,
"id": "84cf1c341e8644b1a224fbaa806e2d9e",
"to_name": null,
"type": null,
"value": {
"end": 19027,
"labels": [
"PRE_RELIED"
],
"start": 17892,
"text": "\n (2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.\n (3) It does not affect the prosecution case at all.\"\n The aforesaid three inferences drawn on basis of the nature of injuries were reiterated in the case of Lakshmi Singh v.\n State of Bihar, AIR 1976 SC 2263, and it was further observed:- \"It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences: (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version: (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case."
}
},
{
"from_name": null,
"id": "de3c2d1d62c746729969a2b2aa2c2ed1",
"to_name": null,
"type": null,
"value": {
"end": 19322,
"labels": [
"PRE_RELIED"
],
"start": 19028,
"text": "The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.\""
}
},
{
"from_name": null,
"id": "5052fb51becf4df196896b832a245fa8",
"to_name": null,
"type": null,
"value": {
"end": 19555,
"labels": [
"PRE_RELIED"
],
"start": 19323,
"text": "A three-Judge Bench in yet another case of Bliaba Nanda Sarma v. The State of Assam, AIR 1977 SC 2252, said:- \"The prosecution is not obliged to explain the injuries on the person of an accused in all cases and in all circumstances."
}
},
{
"from_name": null,
"id": "efacab8c052141e6ae046ad13a100e22",
"to_name": null,
"type": null,
"value": {
"end": 19576,
"labels": [
"PRE_RELIED"
],
"start": 19556,
"text": "This is not the law."
}
},
{
"from_name": null,
"id": "1f3f54b014014e9ca020b6d096778ad4",
"to_name": null,
"type": null,
"value": {
"end": 19801,
"labels": [
"PRE_RELIED"
],
"start": 19577,
"text": "It all depends upon the facts and circumstances of each case whether the prosecution case becomes reasonably doubtful for its failure to explain the injuries on the accused.\"\n "
}
},
{
"from_name": null,
"id": "8cb2225af021430ca5d070f082ccc532",
"to_name": null,
"type": null,
"value": {
"end": 20146,
"labels": [
"PRE_RELIED"
],
"start": 19801,
"text": "In the case of Hare Krishna Singh v. State of Bihar, AIR 1988 SC 863, it was said: \"If the witnesses examined on behalf of the prosecution are believed by the Court in proof of the guilt of the accused beyond any reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise."
}
},
{
"from_name": null,
"id": "3b7d8d30bf8f4a98a4fd9d9c2fbd4891",
"to_name": null,
"type": null,
"value": {
"end": 20851,
"labels": [
"PRE_RELIED"
],
"start": 20147,
"text": "When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and in what circumstances injuries have been inflicted on the person of the accused.\"\n But in the case of State of Rajasthan v.\n Madho, AIR 1991 SC 1065, it was held: \"If the prosecution witnesses shy away from the reality and do not explain the injuries caused to the respondents herein it casts a doubt on the genesis of the prosecution case since the evidence shows that these injuries were sustained in the course of the same incident."
}
},
{
"from_name": null,
"id": "0bb24feca1374899ab1068cfd1602ce1",
"to_name": null,
"type": null,
"value": {
"end": 20937,
"labels": [
"PRE_RELIED"
],
"start": 20852,
"text": "It gives the impression that the witnesses are suppressing some part of the incident."
}
},
{
"from_name": null,
"id": "3281c206b28a42c795b59aba0b073a20",
"to_name": null,
"type": null,
"value": {
"end": 21192,
"labels": [
"PRE_RELIED"
],
"start": 20938,
"text": "The High Court was, therefore, of the opinion that having regard to the fact that they have failed to explain the injuries sustained by the two respondents in the course of the same transaction, the respondents were entitled to the benefit of the doubt.\""
}
},
{
"from_name": null,
"id": "79cea3028d204f28bf7b47bddace0d0a",
"to_name": null,
"type": null,
"value": {
"end": 21329,
"labels": [
"ANALYSIS"
],
"start": 21192,
"text": "\nAs first impression there appears to be some conflict in the views expressed in the different judgments of this Court referred to above."
}
},
{
"from_name": null,
"id": "8a87143b4ffb488aae01ac6bb7dda932",
"to_name": null,
"type": null,
"value": {
"end": 21600,
"labels": [
"ANALYSIS"
],
"start": 21330,
"text": "But on proper reading with reference to the facts of each case, there is no basic difference and according to us this Court rightly in the case of The State of Gujarat v. Bai Fatima (supra) put in three categories the result which may follow from the facts of each case."
}
},
{
"from_name": null,
"id": "65120afbcb984e049c4a78cf42c817fe",
"to_name": null,
"type": null,
"value": {
"end": 21726,
"labels": [
"ANALYSIS"
],
"start": 21601,
"text": "It is well-known that guilt of theaccused is to be judged on the basis of the facts and circumstances of the particular case."
}
},
{
"from_name": null,
"id": "27e2c02000fb4bbba7c527184620213e",
"to_name": null,
"type": null,
"value": {
"end": 21922,
"labels": [
"ANALYSIS"
],
"start": 21727,
"text": "In any particular case the injuries found on the person of the accused being serious in nature may assume importance in respect of the genesis and manner of occurrence alleged by the prosecution."
}
},
{
"from_name": null,
"id": "944e29d89ecb4ab8b5ce5f12cbcc0c82",
"to_name": null,
"type": null,
"value": {
"end": 22303,
"labels": [
"ANALYSIS"
],
"start": 21922,
"text": "\nIn other case the injuries being superficial, by themselves may not affect the prosecution case; the version disclosed by the prosecution having been proved by witnesses who are independent, reliable and trustworthy, supported by the circumstances of that particular case, including the prompt- ness with which the first information report was lodged on behalf of the prosecution."
}
},
{
"from_name": null,
"id": "1e3fa217752e49bdba6bd2721160d3ee",
"to_name": null,
"type": null,
"value": {
"end": 22859,
"labels": [
"ANALYSIS"
],
"start": 22304,
"text": "But if the first information report has not been lodged promptly and there is no reasonable explanation for the delay; the witnesses who support the version of the prosecution are not only inimical but even their evidence is not consistent with the circumstances found during the course of investigation, then in that situation, injuries on the person of the accused which are not very serious in nature assume importance for the purpose of consideration as to whether the defence of the right of private defence pleaded by the accused should be accepted."
}
},
{
"from_name": null,
"id": "73d15df47e404882a063bf286c22fa3e",
"to_name": null,
"type": null,
"value": {
"end": 22970,
"labels": [
"ANALYSIS"
],
"start": 22859,
"text": "\nIt is well-known that accused pleading the right of private defence need not prove it beyond reasonable doubt."
}
},
{
"from_name": null,
"id": "7605011e383e40d98e6a592f70f2023c",
"to_name": null,
"type": null,
"value": {
"end": 23126,
"labels": [
"ANALYSIS"
],
"start": 22971,
"text": "It is enough if on the basis of the circumstances of a particular case, applying the test of preponderance or probabilities the version becomes acceptable."
}
},
{
"from_name": null,
"id": "8039430e0f434f26be5eb40ccc1e9b2b",
"to_name": null,
"type": null,
"value": {
"end": 23358,
"labels": [
"ANALYSIS"
],
"start": 23127,
"text": "There are not two parallel versions before the Court, one on behalf of the prosecution and other on behalf of the accused and the Court is required to choose as to which of the two versions is the correct version of the occurrence."
}
},
{
"from_name": null,
"id": "f97dc93c91e5434fac0836314418c251",
"to_name": null,
"type": null,
"value": {
"end": 23590,
"labels": [
"ANALYSIS"
],
"start": 23359,
"text": "The burden placed on the accused is discharged no sooner he creates a doubt in the mind of the Court and satisfies the Court that the version disclosed by him in the facts and circumstances of that particular case is more probable."
}
},
{
"from_name": null,
"id": "666468b8b56f43d0b0f4836d1cf1e925",
"to_name": null,
"type": null,
"value": {
"end": 23956,
"labels": [
"PRE_RELIED"
],
"start": 23591,
"text": "The onus of the accused under section 105 of the Evidence Act has been examined by this Court in the cases of Partap v. The State of U.P., [1976] 2 SCC 798; Mohan Singh v. State of Punjab, AIR 1975 SC 2161; Seriyal Udayar v. State of Tamil Nadu, AIR 1987 SC 1289; Vijayee Singh v. State of U.P., [1990] 3 SCC 190 and Buta Singh v. State of Punjab, [1991] 2 SCC 612."
}
},
{
"from_name": null,
"id": "52dd9f82eacd43e0afa68994ea78115e",
"to_name": null,
"type": null,
"value": {
"end": 24190,
"labels": [
"ANALYSIS"
],
"start": 23956,
"text": "\nSo far the present case is concerned the injuries found on the person of the appellant are not serious in nature and merely on the ground that prosecution has suppressed those injuries, the appellant is not entitled to the acquittal."
}
},
{
"from_name": null,
"id": "d89773d10ff14ac786681e98e3f94fbb",
"to_name": null,
"type": null,
"value": {
"end": 24320,
"labels": [
"ANALYSIS"
],
"start": 24190,
"text": "\nBut those injuries can certainly be taken into considerationwhile judging whether the defence version of the accused is probable."
}
},
{
"from_name": null,
"id": "d551ec616fa241d5a866b639426499ef",
"to_name": null,
"type": null,
"value": {
"end": 24408,
"labels": [
"ANALYSIS"
],
"start": 24321,
"text": "The motive disclosed on behalf of the prosecution for the occurrence is not acceptable."
}
},
{
"from_name": null,
"id": "27969165622b47b68c5b2cf90c5fa7cc",
"to_name": null,
"type": null,
"value": {
"end": 24689,
"labels": [
"ANALYSIS"
],
"start": 24409,
"text": "Even if it is assumed that because of some altercation 10/12 days before the date of occurrence, the appellant had decided to cause the murder of Jagdish then more injuries would have been caused on the person of the victim by the appellant instead of an injury 1\" x 1/2 x 1 3/4\"."
}
},
{
"from_name": null,
"id": "fe0caf252e524e048b7d44af797b6709",
"to_name": null,
"type": null,
"value": {
"end": 24839,
"labels": [
"ANALYSIS"
],
"start": 24690,
"text": "The prosecution case regarding assault by Ramesh with a knife on Chandrapal (PW-2) has been disbelieved by the Trial Court as well as the High Court."
}
},
{
"from_name": null,
"id": "3c63b097effe40f4a8e88c5e5cc93cc7",
"to_name": null,
"type": null,
"value": {
"end": 24941,
"labels": [
"ANALYSIS"
],
"start": 24839,
"text": "\nThe delay in lodging the first information report by Chandrapal (PW-2) has not at all been explained."
}
},
{
"from_name": null,
"id": "c92b87c34aed48448249a38965980a51",
"to_name": null,
"type": null,
"value": {
"end": 25021,
"labels": [
"ANALYSIS"
],
"start": 24942,
"text": "The occurrence according to prosecution took place at 6.00 P.M.\nin the evening."
}
},
{
"from_name": null,
"id": "84aa1b9645e24d0fa2df9c023cc40313",
"to_name": null,
"type": null,
"value": {
"end": 25121,
"labels": [
"ANALYSIS"
],
"start": 25022,
"text": "The victim while being taken to Debai which is at a distance of five kilometers expired on the way."
}
},
{
"from_name": null,
"id": "76006ae33913419ca04123c5549a4819",
"to_name": null,
"type": null,
"value": {
"end": 25206,
"labels": [
"ANALYSIS"
],
"start": 25121,
"text": "\nThen why first information report was lodged at 11.30 P.M., there is no explanation."
}
},
{
"from_name": null,
"id": "ae046e8a1afb4f08ae50274448e20976",
"to_name": null,
"type": null,
"value": {
"end": 25347,
"labels": [
"ANALYSIS"
],
"start": 25207,
"text": "On the other hand the appellant's case is that the occurrence did not take place at 6.00 P.M.\nin the evening but at later part in the night."
}
},
{
"from_name": null,
"id": "4760176995e44e1d96ae596440ec6593",
"to_name": null,
"type": null,
"value": {
"end": 25381,
"labels": [
"ANALYSIS"
],
"start": 25348,
"text": "That appears to be more probable."
}
},
{
"from_name": null,
"id": "caf0fe7a43d441aba17f5a101a485402",
"to_name": null,
"type": null,
"value": {
"end": 25543,
"labels": [
"ANALYSIS"
],
"start": 25382,
"text": "The appellant appeared before the Superintendent of Police, the next morning and disclosed his version of the occurrence on basis of which a case was registered."
}
},
{
"from_name": null,
"id": "dd6333cc6e1544129be39024e98a179c",
"to_name": null,
"type": null,
"value": {
"end": 25598,
"labels": [
"ANALYSIS"
],
"start": 25544,
"text": "His injuries were also examined only the next morning."
}
},
{
"from_name": null,
"id": "3cedefa7fb9240b0965af89357c72271",
"to_name": null,
"type": null,
"value": {
"end": 25767,
"labels": [
"ANALYSIS"
],
"start": 25599,
"text": "He also took a firm stand during his statement under section 313 that he give a ballam blow when the deceased and Chandrapal (PW-2) started assaulting him with lathies."
}
},
{
"from_name": null,
"id": "4851398c0f0c4d09b3b575110a31bd91",
"to_name": null,
"type": null,
"value": {
"end": 25817,
"labels": [
"ANALYSIS"
],
"start": 25768,
"text": "Out of the four injuries one was on the scapula,."
}
},
{
"from_name": null,
"id": "61cc8057bffd459c848baa97e32eb2b5",
"to_name": null,
"type": null,
"value": {
"end": 25891,
"labels": [
"ANALYSIS"
],
"start": 25817,
"text": "\nThe doctor has not opined that they were manufactured or self- inflicted."
}
},
{
"from_name": null,
"id": "537456acc5c147fcace4be996f277c55",
"to_name": null,
"type": null,
"value": {
"end": 26030,
"labels": [
"ANALYSIS"
],
"start": 25892,
"text": "Those injuries, according to the doctor, had been caused by a blunt weapon which is consistent with the defence version of the occurrence."
}
},
{
"from_name": null,
"id": "748864bc952340d09fd676912c7f5b3e",
"to_name": null,
"type": null,
"value": {
"end": 26184,
"labels": [
"ANALYSIS"
],
"start": 26031,
"text": "The injury found on the chest of the deceased is inconsistent with the prosecution case that appellant chased the deceased and then gave a blow by knife."
}
},
{
"from_name": null,
"id": "a0f92a72c20945478593c0b4068d81c6",
"to_name": null,
"type": null,
"value": {
"end": 26389,
"labels": [
"ANALYSIS"
],
"start": 26185,
"text": "But it is consistent with the defence version that soon the deceased and Chandrapal (PW-2) returned and started assaulting the appellant when the appellant gave a ballam blow in the chest of the deceased."
}
},
{
"from_name": null,
"id": "ab6b919472da408d9ae0d703cbd5116e",
"to_name": null,
"type": null,
"value": {
"end": 26531,
"labels": [
"ANALYSIS"
],
"start": 26389,
"text": "\nIf the appellant had given the ballam blow while chasing the deceased, in that event it would have caused injury on the back of the deceased."
}
},
{
"from_name": null,
"id": "a44fe98182f649d7a1892e5564013815",
"to_name": null,
"type": null,
"value": {
"end": 26607,
"labels": [
"ANALYSIS"
],
"start": 26531,
"text": "\nThe High Court has not disbelieved 'the version disclosed by the appellant."
}
},
{
"from_name": null,
"id": "fe21c55d09e34eef9ee5b7a417e44511",
"to_name": null,
"type": null,
"value": {
"end": 26942,
"labels": [
"ANALYSIS"
],
"start": 26608,
"text": "The High Court on consideration of the evidence and the circumstances of the case has observed:- \"It is true that this respondent gave a different time of the occurrence and his version of the occurrence was also different and it has been disbelieved by the learned Sessions Judge, obviously on cogent grounds."
}
},
{
"from_name": null,
"id": "c66f533a06f9494c8ea5f8cb302c3317",
"to_name": null,
"type": null,
"value": {
"end": 27121,
"labels": [
"ANALYSIS"
],
"start": 26943,
"text": "But this cannot wash out the effect of his clear stand all through that there was a marpit between him and the informant and the deceased in which he had wielded a spear on them."
}
},
{
"from_name": null,
"id": "e31c339da2cc44f9822e57f7a67c7be9",
"to_name": null,
"type": null,
"value": {
"end": 27569,
"labels": [
"ANALYSIS"
],
"start": 27122,
"text": "This part of this respondent's version was clearly severable from the rest of his version and it was not at all necessary that if the learned Sessions Judge disbelieved his version regarding the manner of the occurrence, he was bound to rule out of consideration this admission of the respondent which was clearly separate and severable from the rest of his story.\"\nThe High Court has used a part of the statement of the appellant as an admission."
}
},
{
"from_name": null,
"id": "0887989970bf495eb417628c4b4991a1",
"to_name": null,
"type": null,
"value": {
"end": 27728,
"labels": [
"ANALYSIS"
],
"start": 27570,
"text": "According to us, that part of the statement made by the accused under section 313 of the Code cannot be used as an admission, supporting the prosecution case."
}
},
{
"from_name": null,
"id": "51bcf1a0be7a47c8a8693ff82ad2b838",
"to_name": null,
"type": null,
"value": {
"end": 27791,
"labels": [
"ANALYSIS"
],
"start": 27729,
"text": "It is well-known that an admission has to be taken as a whole."
}
},
{
"from_name": null,
"id": "bbb5f132a47045e785e3601d6840c48a",
"to_name": null,
"type": null,
"value": {
"end": 28103,
"labels": [
"ANALYSIS"
],
"start": 27792,
"text": "It was not open to the High Court to reject one part so far the aggression and assault by the prosecution party which according to the appellant preceded giving of the ballam blow, and to accept only the later part of the statement that appellant gave a ballam blow, for the purpose of convicting the appellant."
}
},
{
"from_name": null,
"id": "5076b98630eb4f368d6e317dd33dd75e",
"to_name": null,
"type": null,
"value": {
"end": 28191,
"labels": [
"PRE_RELIED"
],
"start": 28104,
"text": "In the case of Hanumant Govind Nargunadkar v. State of Madhya Pradesh, AIR 1952 SC 343."
}
},
{
"from_name": null,
"id": "f526e9b2a7144acebdac5273102af308",
"to_name": null,
"type": null,
"value": {
"end": 28352,
"labels": [
"PRE_RELIED"
],
"start": 28192,
"text": "it was said:- \"It is settled law that an admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him."
}
},
{
"from_name": null,
"id": "1ab75284fc5b48ebbfbd6990f06d8c8f",
"to_name": null,
"type": null,
"value": {
"end": 28412,
"labels": [
"PRE_RELIED"
],
"start": 28353,
"text": "An admission must be used either as a whole or not at all.\""
}
},
{
"from_name": null,
"id": "070daeae8a2c4d078f17557645ee57e2",
"to_name": null,
"type": null,
"value": {
"end": 28591,
"labels": [
"ANALYSIS"
],
"start": 28412,
"text": "\nThe High Court should have taken the whole statement made by the appellant as an admission and then should have examined what shall be the effect thereof on the prosecution case."
}
},
{
"from_name": null,
"id": "412f5a05e4b444d79d4b502f6e286503",
"to_name": null,
"type": null,
"value": {
"end": 28746,
"labels": [
"RATIO"
],
"start": 28591,
"text": "\nAccording to us, taking all facts and circumstances into consideration the version of the accused of the occurrence appears to be probable and acceptable."
}
},
{
"from_name": null,
"id": "26b5c9f613b848ffac08e48a3a73a26c",
"to_name": null,
"type": null,
"value": {
"end": 28865,
"labels": [
"ISSUE"
],
"start": 28746,
"text": "\n The next question is as to whether in the circumstances of the case appellant could have caused the death of Jagdish."
}
},
{
"from_name": null,
"id": "0d593cd1b83b4b3fa260fa6b44cd57d1",
"to_name": null,
"type": null,
"value": {
"end": 29081,
"labels": [
"RATIO"
],
"start": 28865,
"text": "\n While accepting the plea of right of private defence it has been said that if the right is available, while judging the question whether the accused has exceeded such right, should not be weighed in a golden scale."
}
},
{
"from_name": null,
"id": "b9d89a6ee7884eebad65bfeb0e407592",
"to_name": null,
"type": null,
"value": {
"end": 29203,
"labels": [
"ANALYSIS"
],
"start": 29082,
"text": "But the right of private defence does not extend to infliction of more harm than is necessary for the purpose of defence."
}
},
{
"from_name": null,
"id": "c9b272fe46834641bdd3840d90cbd917",
"to_name": null,
"type": null,
"value": {
"end": 29370,
"labels": [
"RATIO"
],
"start": 29204,
"text": "When the appellant caused the injury with a ballam (spear) in the chest of the victim which resulted in his death, certainly he exceeded his right of private defence."
}
},
{
"from_name": null,
"id": "fda1de72a7774523afdd76e0eb9e2da8",
"to_name": null,
"type": null,
"value": {
"end": 29465,
"labels": [
"RPC"
],
"start": 29371,
"text": "Accordingly, the conviction of the appellant under section 302 of the Penal Code is set aside."
}
},
{
"from_name": null,
"id": "136836811b324f8184662f261e3f9ade",
"to_name": null,
"type": null,
"value": {
"end": 29633,
"labels": [
"RPC"
],
"start": 29465,
"text": "\n But the appellant is convicted under section 304, Part-1, and sentenced to rigorous imprisonment for seven years which according to us shall meet the ends of justice."
}
},
{
"from_name": null,
"id": "3d322ed4eddb41a2a94d0609ea5486c9",
"to_name": null,
"type": null,
"value": {
"end": 29694,
"labels": [
"RPC"
],
"start": 29634,
"text": "The appeal is allowed in part to the extent indicated above."
}
},
{
"from_name": null,
"id": "01857bbc9f694f22b74cafc0edef32db",
"to_name": null,
"type": null,
"value": {
"end": 29739,
"labels": [
"RPC"
],
"start": 29694,
"text": "\n V.P.R. Appeal allowed partly."
}
}
]
}
] | 4,091 | {
"text": "PETITIONER:\nDWARKA PRASAD\n\nVs.\n\nRESPONDENT:\nSTATE OF UTTAR PRADESH\n\nDATE OF JUDGMENT23/02/1993\n\nBENCH:\nSINGH N.P. (J)\nBENCH:\nSINGH N.P. (J)\nREDDY, K. JAYACHANDRA (J)\n\nCITATION: 1993 SCC Supl. (3) 141\n 1993 SCR (2) 70 1993 SCALE (1)675\n JT 1993 (2) 168\n\nACT:\nPenal Code, 1860 : Sections 302, 307, 34-Charged under-\nAppreciation of evidence-Prosecution case-Free fight not\nproved-Injuries found on the person of the accused-\nSignificance of-Delay in lodging FIR-Effect of-Motive\ndisclosed by prosecution-Acceptability of-Accused's version\nProbability of.\nPenal Code, 1860 : Section 97 read with Section 105,\nEvidence Act 1872 : Right of private defence-When available-\nAccused causing injury with a Ballam in the chest of the\nvictim resulting death-\"Whether right of private defence\navailable.\nCode of Criminal Procedure, 1974: Section 313 Statement\nmade by accused under-Duty of Court while using.\n\nHEADNOTE:\nThe prosecution's case was that on the date of occurrence,\nthe pw.2 and the deceased were returning after answering the\ncall of nature at about 6 P.M. At that time the appellant\nalong with co-accused came there. Seeing the p.w.2 and the\ndeceased the accused came rushed towards them with knives.\nAppellant chased the deceased and gave a knife blow on his\nchest. The P.W.2 received a knife blow from the co-accused.\nThereafter the accused fled away. The victim died on the\nway while he was being taken to Debai. The P.W. 2. lodged\nthe first information report on the same night at about\n11.30 P.M.\nThe motive for the occurrence was that about 10 or 12 days\nbefore the date of occurrence, the appellant abused the\nP.W.2 and the deceased. They gave two/three slaps to the\nappellant\nThe appellant-accused's case was that for last two days\nprior to the date of occurrence the crop of his grand-father\nwas being damaged. Therefore, he was keeping a watch on the\nfield. During night the P.W.2 and the deceased came to the\nfield. Seeing them, the appellant raised an alarm Chor-\nChor. They started running. The appellant chased them to\ncatchthem. But they turned back and started assaulting the\nappellant with lathies. The appellant attacked them with a\n'ballam' to save his life. The injuries on the person of\n\nthe appellant were examined, in the next morning. He filed\n\nan application before the Superintendent of Police and a\n\ncase was registered at about 10.25 A.M. on the next day of\n\nthe date of occurrence on the basis of appellant's petition.\n\nThe trial Court acquitted the appellant of the charges under\n\nsections 302 and 307 read with section 34 of the penal Code.\n\nThe State's appeal was allowed by the High Court and the\n\npresent appellant was convicted under section 302 of the\n\nPenal Code and was sentenced to undergo rigorous\n\nimprisonment for life.\n\nPresent appeal was filed by the accused against the High\n\nCourt's judgment.\n\nThe State contended that if the version of appellant was\n\naccepted, it would amount to a case of free fight between\n\nthe prosecution party and the accused, both being armed and\n\nthat in a case of free right no party could claim right of\n\nprivate defence.\n\nPartly allowing the appeal, this court,\n\nHELD: 1.01. A free right is that when both sides mean to\n\nright a pitched battle. The question of who attacks and who\n\ndefends in such a fight is wholly immaterial and depends on\n\nthe tactics adopted by the rival party. In such cases of\n\nmutual rights, both sides can be convicted for their\n\nindividual acts, [76E]\n\n1.02. So far the facts of the present case are\n\nconcerned, if the version disclosed by the accused can be\n\nheld to be a probable version of the occurrence then it\n\ncannot be held to be a case of free fight. [76G]\n\n1.03. In any particular case the injuries found on the\n\nperson of the accused being serious in nature may assume\n\nimportance in respect of the genesis and manner of\n\noccurrence alleged by the prosecution. In other case the\n\ninjuries being superficial, by themselves may not affect the\n\nprosecution case; the version disclosed by the prosecution\n\nhaving been proved by witnesses who are independent,\n\nreliable and trustworthy, supported by the circumstances of\n\nthat particular case, including the promptness with\n\nwhich the first information report was lodged on behalf of\n\nthe prosecution. But if the first information report has\n\nnot been lodged promptly and there is no reasonable\n\nexplanation for the delay-, the witnesses who support the\n\nversion of the prosecution are not only inimical but even\n\ntheir evidence is not consistent with the circumstances\n\nfound during the course of investigation, then in that\n\nsituation, injuries on the person of the accused which are\n\nnot very serious in nature assume importance for the purpose\n\nof consideration as to whether the defence of the right of\n\nprivate defence pleaded by the accused should be accepted.\n\n[80B-D]\n\n1.04. So far the present case is concerned the injuries\n\nfound on the person of the appellant are not serious in\n\nnature and merely on the ground that prosecution has\n\nsuppressed those injuries, the appellant is not entitled to\n\nthe acquittal. But those injuries can certainly be taken\n\ninto consideration while judging whether the defence version\n\nof the accused is probable. [80H]\n\n1.05. The motive disclosed on behalf of the prosecution\n\nfor the occurrence is not acceptable. Even if it is assumed\n\nthat because of some altercation 10/12 days before the date\n\nof occurrence, the appellant had decided to cause the murder\n\nof the deceased, then more injuries would have been caused\n\non the person of the victim by the appellant. [81B]\n\n1.06. The delay in lodging the first information report\n\nby PW-2 has not at all been explained. The occurrence\n\n\naccording to prosecution took place at 6.00 P.M. in the\n\nevening. The victim while being taken to Debai which is at\n\na distance of five kilometers expired on the way. Then why\n\nfirst information report was lodged at 11.30 P.M., there is\n\nno explanation. On the other hand the appellant's case is\n\nthat the occurrence did not take place at 6.00 P.M. in the\n\nevening but at later part in the night. That appears to be\n\nmore probable. [81C]\n\n1.07. The injury found on the chest of the deceased is\n\ninconsistent with the prosecution case that appellant chased\n\nthe deceased and then gave a blow by knife. But it is\n\nconsistent with the defence version that soon the deceased\n\nand PW.2 returned and started assaulting the appellant when\n\nthe appellant gave a ballam blow in the chest of the\n\ndeceased. If the appellant had given the ballam blow while\n\nchasing the deceased, in that event it would have caused\n\ninjury on the back of the deceased. [81F]\n\n1.08. Taking all facts and circumstances into\n\nconsideration the version of the accused of the occurrence\n\nappears to be probable and acceptable. [82G]\n\nGajanandv.State of Uttar Pradesh, AIR1954SC 695;Kanbi Nanji\n\nVirji v. State of Gujarat AIR 1970 SC 219; Puran v. State\n\nof Rajasthan, AIR 1976 SC 912; Vishvas Aba Kurane v. State\n\nof Maharashtra, AIR 1978 SC 414; The State of Gujarat v. Bai\n\nFatima, AIR 1975 SC 1478; Lakshman Singh v. State of Bihar,\n\nAIR 1976 SC 2263; Bhaba Nanda Sarma v. The State of Assam,\n\nAIR 1977 SC 2252; Hare Krishna Singh v. State of Bihar, AIR\n\n1988 SC 863 and State of Rajasthan v. Madho, AIR 1991 SC\n\n1065, referred to. [76F]\n\n2.01. Once it is established by the prosecution that the\n\noccurrence in question is result of a free fight then\n\nnormally no right of private defence is available to either\n\nparty and they will be guilty of their respective acts.\n\n[76G]\n\n2.02. Accused pleading the right of private defence need\n\nnot prove it beyond reasonable doubt. It is enough if on\n\nthe basis of the circumstances of a particular case,\n\napplying the test of preponderance or probabilities the\n\nversion becomes acceptable. [80E]\n\n2.03. There are no two parallel versions before the\n\nCourt, one on behalf of the prosecution and other on behalf\n\nof the accused and the Court is required to choose as to\n\nwhich of the two versions is the correct version of the\n\noccurrence. The burden placed on the accused is discharged\n\nno sooner he creates a doubt in the mind of the Court and\n\nsatisfies the Court that the version disclosed by him in the\n\nfacts and circumstances of that particular case is more\n\nprobable. [80E-F]\n\n2.04. If the right of private defence is available.\n\nWhile judging the question whether the accused has exceeded\n\nsuch right, should not be weighed in a golden scale. But\n\nthe right of private defence does not extend to the\n\ninfliction of more harm than is necessary for the purpose of\n\ndefence. When the appellant caused the injury with a\n\nballani (spear) in the chest of the victim which resulted in\n\nhis death, certainly he exceeded his right of private\n\ndefence. [82H, 83A]\n\nPartap v. )le State of U.P., [1975] 2 SCC 798; Mohan Singh\n\nv. State of Punjab, AIR 1975 SC 2161; Seniyal Udayar v.\n\nState of Tamil Nadu, AIR 1987 SC 1289; Vijayee Singh v.\n\nState of U.P., [1990] 3 SCC 190 and Buta\n\nSingh v. State of Punjab, [1991] 2 SCC 612, referred to.\n\n[80G]\n\n\n3. An admission has to be taken as a whole. It was not\nopen to the High Court to reject one part so far the\naggression and assault by the prosecution party which\naccording to the appellant preceded giving of the ballam\nblow, and to accept only the later part of the statement\nthat appellant gave a ballam blow, for the purpose of\nconvicting the appellant [82D].\nHanumant Govind Nargundkar v. State of Madhya Pradesh, AIR\n1952 SC 343, referred to. [82E]\n\nJUDGMENT:\nCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 827 of 1981.\nFrom the Judgment and Order dated 22.7.81 of the Allahabad High Court in Government Appeal No. 1861 of 1975.\nP.K. Dey, Rakesh Goswami and Ms.Rani Jethmalani (N.P.) for the Appellant.\nR.C. Verma for the Respondent.\nThe Judgment of the Court was delivered by N.P. SINGH, J. The appellant was acquitted of the charges under sections 302 and 307 read with section 34 of the Penal Code by the Trial Court. On appeal being filed on behalf of the State of Uttar Pradesh he has been convicted under section 302 of the Penal Code by the High Court and sentenced to undergo rigorous imprisonment for life.\nIt is the case of the prosecution that on 25.2.1974 at about 6.00 P.M. Chandrapal (PW-2) along with Jagdish (hereinafter referred to as \"the deceased\") were returning after answering the call of nature. It is said that at that time this appellant along with co-accussed Ramesh came from the side of the village; seeing Chandrapal (PW-2) and the deceased, the appellant and Ramesh rushed towards them with knives. After some chase the appellant gave a knife blow on the chest of the victim. The co-accused Ramesh gave a knife blow to Chandrapal (PW-2). Thereafter the appellant and Ramesh fled away. The victim while being taken to Debai, died on the way, Chandrapal (PW-2) lodged the first information report at the Police Station Debai at about 11.30 P.M. the same night.The motive of the occurrence, according to the prosecution, is that about 10 or 12 days before the date of the aforesaid occurrence, there was some altercation between Chandrapal (PW-2) and the deceased on the one side and this appellant on the other, in which the appellant is said to have abused them. Chandrapal (P.W-2) and the deceased had given two/three slaps to the appellant.\nThe defence of the appellant was that the prosecution has suppressed the real manner of occurrence. According to the appellant,. for last two days prior to the date of occurrence the crop of his grand-father Sohan Lal was being damaged. Because of that he was keeping a watch on the said field. During night Chandrapal (PW-2) and the deceased came to the field. The appellant raised an alarm chor-chor.\nThereafter Chandrapal (PW-2) and the deceased started running. The appellant chased them to catch them. But soon they turned back and started assaulting the appellant with lathies. To save his life the appellant attacked with a 'ballam' (spear). The injuries on the person of the appellant were examined the next morning. He also filed an application before the Superintendent of Police, giving his version of the occurrence in which he admitted that when he was being assaulted by Chandrapal (PW-2) and the deceased, he bad used a ballam. A case was registered by the Police at about 10.25 A.M. on 26.2.1974, on the basis of the petition filed on behalf of the appellant.\nThe injuries on the person of the appellant were examined by Dr. R.P. Rastogi at the District Hospital, Bullandshahar, on 26.2.1974. He found the following injuries on his person:- \"(1) Faint contusion 2 cm x 1/2 cm back of left shoulder upper part.\n (2) Faint contusion 10 cm x 2 cm on outer side left back at the lower angle of scapula.\n (3) Faint contusion 4 1/2 cm x 1 cm on back of upper part 1/3rd left forearm.\n (4) Faint contusion 12 cm x 1 cm on the back and inner aspect left forearm upper 1/3rd.\"\nDuring the post mortem examination of the deceased which was also held on 26.2.1974, the following injury was found on his person:- \"Stab wound 1\" x 1/2\" x 1.3/4\". On probing, on left side front of chest, 2.1/2\" inner to left nipple at 10 O' clock position pointing the onwards and downwards.\"\nThe Doctor (PW-1), who held the post mortem examination, ad- mitted that the aforesaid injury could be caused by ballam.\nSo far Chandrapal (PW-2) is concerned, the Doctor noted the following injury on 26.2.1974:- \"Abrasion 1-1/2 x 1/3\" on the left side front of chest, horizontally with shallow edge, medically, 7\" below ancillary pit. The wound was not bleeding afresh, but had got clotted blood over it.\"\nThe Doctor in Court stated that possibility of self- infliction of that injury could not be ruled out.\nAccording to the State, even if the version disclosed by the appellant is accepted, it will amount to a case of free fight between the prosecution party and the accused, both being armed and when there is a free fight there is no question of right of private defence accruing to any side.\nA free fight is that when both sides mean to fight a pitched battle. The question of who attacks and who defends in such a fight is wholly immaterial and depends on the tactics adopted by the rival party. In such cases of mutual fights, both sides can be convicted for their individual acts. This position has been settled by this Court in the cases of Gajanand v. State of Uttar Pradesh, AIR 1954 SC 695; Kanbi Nanji Virji v. State of Gujarat AIR 1970 SC 219; Puran v.\nState of Rajasthan, AIR 1976 SC 912 and Vishvas Aba Kurane v. State of Maharashtra, AIR 1978 SC 414. As such once it is established by the prosecution that the occurrence in question is result of a free fight then normally no right of private defence is available to either party and they will be guilty of their respective acts.\nBut so far the facts of the present case are concerned, if the version disclosed by the accused can be held to be a probable version of the occurrence then it cannot be held to be a case of free fight. According to the appellant, the crops of the field of his grand-father were being damaged for last two days prior to the date of the occurrence; because of that appellant claims that he was watching the said field. During the night thedeceased and Chandrapal (PW-2) came to the same field and the appellant chased them. But soon they turned back and started assaulting the appellant with lathies. At this stage the appellant wielded his ballam (spear) which caused an injury to the deceased which ultimately proved fatal. It is an admitted position that the appellant filed a petition before the Superintendent of Police giving his version of the occurrence in the morning of 'basis of that a case was registered at about 10.25 A.M. on 26.2.1974, the occurrence having taken place during the night of 25.2.1974. This fact has been admitted by Shri Manohar Singh (PW-6) who has proved the first information report lodged on behalf of the prosecution. On the examination, Dr. R.P. Rastogi (PW-3) of the District Hospital, Bullandshahar, did find four injuries including one on the scapula of the appellant. It is true that injuries were simple in nature. But even on the deceased only one injury 1\" x 1/2 1.3/4\" was found on the left side front of the chest, which according to the Doctor who held the post mortem examination, could have been caused by a weapon like ballam (spear). In the statement under section 313 of the Code of Criminal Procedure (hereinafter referred to as \"the Code\") given by the appellant, it was stated by the appellant in detail as to how the standing crops on the land of his grand-father were being damaged and on the night of the occurrence he was guarding the field when he saw the deceased and Chandrapal (PW-2) destroying the crops in the field. He also stated that he shouted chor-chor and then chased them to catch them. But soon they turned round and started giving lathies blows and in self- defence the appellant used a ballam. It appears that all this happened in the aforesaid field which the apppellant was guarding.\n From time to time this Court has pointed out that merely because some injuries are found on the accused, which have not been explained by the prosecution, by itself shall not be a ground for rejecting the whole prosecution case. It will depend on facts of each case what inference should be drawn by the Court. In the case of The State of Gujarat v.\n Bai Fatima, AIR 1975 SC 1478, it was said that when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow :- \"(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence.\n (2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.\n (3) It does not affect the prosecution case at all.\"\n The aforesaid three inferences drawn on basis of the nature of injuries were reiterated in the case of Lakshmi Singh v.\n State of Bihar, AIR 1976 SC 2263, and it was further observed:- \"It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences: (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version: (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.\"\nA three-Judge Bench in yet another case of Bliaba Nanda Sarma v. The State of Assam, AIR 1977 SC 2252, said:- \"The prosecution is not obliged to explain the injuries on the person of an accused in all cases and in all circumstances. This is not the law. It all depends upon the facts and circumstances of each case whether the prosecution case becomes reasonably doubtful for its failure to explain the injuries on the accused.\"\n In the case of Hare Krishna Singh v. State of Bihar, AIR 1988 SC 863, it was said: \"If the witnesses examined on behalf of the prosecution are believed by the Court in proof of the guilt of the accused beyond any reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and in what circumstances injuries have been inflicted on the person of the accused.\"\n But in the case of State of Rajasthan v.\n Madho, AIR 1991 SC 1065, it was held: \"If the prosecution witnesses shy away from the reality and do not explain the injuries caused to the respondents herein it casts a doubt on the genesis of the prosecution case since the evidence shows that these injuries were sustained in the course of the same incident. It gives the impression that the witnesses are suppressing some part of the incident. The High Court was, therefore, of the opinion that having regard to the fact that they have failed to explain the injuries sustained by the two respondents in the course of the same transaction, the respondents were entitled to the benefit of the doubt.\"\nAs first impression there appears to be some conflict in the views expressed in the different judgments of this Court referred to above. But on proper reading with reference to the facts of each case, there is no basic difference and according to us this Court rightly in the case of The State of Gujarat v. Bai Fatima (supra) put in three categories the result which may follow from the facts of each case. It is well-known that guilt of theaccused is to be judged on the basis of the facts and circumstances of the particular case. In any particular case the injuries found on the person of the accused being serious in nature may assume importance in respect of the genesis and manner of occurrence alleged by the prosecution.\nIn other case the injuries being superficial, by themselves may not affect the prosecution case; the version disclosed by the prosecution having been proved by witnesses who are independent, reliable and trustworthy, supported by the circumstances of that particular case, including the prompt- ness with which the first information report was lodged on behalf of the prosecution. But if the first information report has not been lodged promptly and there is no reasonable explanation for the delay; the witnesses who support the version of the prosecution are not only inimical but even their evidence is not consistent with the circumstances found during the course of investigation, then in that situation, injuries on the person of the accused which are not very serious in nature assume importance for the purpose of consideration as to whether the defence of the right of private defence pleaded by the accused should be accepted.\nIt is well-known that accused pleading the right of private defence need not prove it beyond reasonable doubt. It is enough if on the basis of the circumstances of a particular case, applying the test of preponderance or probabilities the version becomes acceptable. There are not two parallel versions before the Court, one on behalf of the prosecution and other on behalf of the accused and the Court is required to choose as to which of the two versions is the correct version of the occurrence. The burden placed on the accused is discharged no sooner he creates a doubt in the mind of the Court and satisfies the Court that the version disclosed by him in the facts and circumstances of that particular case is more probable. The onus of the accused under section 105 of the Evidence Act has been examined by this Court in the cases of Partap v. The State of U.P., [1976] 2 SCC 798; Mohan Singh v. State of Punjab, AIR 1975 SC 2161; Seriyal Udayar v. State of Tamil Nadu, AIR 1987 SC 1289; Vijayee Singh v. State of U.P., [1990] 3 SCC 190 and Buta Singh v. State of Punjab, [1991] 2 SCC 612.\nSo far the present case is concerned the injuries found on the person of the appellant are not serious in nature and merely on the ground that prosecution has suppressed those injuries, the appellant is not entitled to the acquittal.\nBut those injuries can certainly be taken into considerationwhile judging whether the defence version of the accused is probable. The motive disclosed on behalf of the prosecution for the occurrence is not acceptable. Even if it is assumed that because of some altercation 10/12 days before the date of occurrence, the appellant had decided to cause the murder of Jagdish then more injuries would have been caused on the person of the victim by the appellant instead of an injury 1\" x 1/2 x 1 3/4\". The prosecution case regarding assault by Ramesh with a knife on Chandrapal (PW-2) has been disbelieved by the Trial Court as well as the High Court.\nThe delay in lodging the first information report by Chandrapal (PW-2) has not at all been explained. The occurrence according to prosecution took place at 6.00 P.M.\nin the evening. The victim while being taken to Debai which is at a distance of five kilometers expired on the way.\nThen why first information report was lodged at 11.30 P.M., there is no explanation. On the other hand the appellant's case is that the occurrence did not take place at 6.00 P.M.\nin the evening but at later part in the night. That appears to be more probable. The appellant appeared before the Superintendent of Police, the next morning and disclosed his version of the occurrence on basis of which a case was registered. His injuries were also examined only the next morning. He also took a firm stand during his statement under section 313 that he give a ballam blow when the deceased and Chandrapal (PW-2) started assaulting him with lathies. Out of the four injuries one was on the scapula,.\nThe doctor has not opined that they were manufactured or self- inflicted. Those injuries, according to the doctor, had been caused by a blunt weapon which is consistent with the defence version of the occurrence. The injury found on the chest of the deceased is inconsistent with the prosecution case that appellant chased the deceased and then gave a blow by knife. But it is consistent with the defence version that soon the deceased and Chandrapal (PW-2) returned and started assaulting the appellant when the appellant gave a ballam blow in the chest of the deceased.\nIf the appellant had given the ballam blow while chasing the deceased, in that event it would have caused injury on the back of the deceased.\nThe High Court has not disbelieved 'the version disclosed by the appellant. The High Court on consideration of the evidence and the circumstances of the case has observed:- \"It is true that this respondent gave a different time of the occurrence and his version of the occurrence was also different and it has been disbelieved by the learned Sessions Judge, obviously on cogent grounds. But this cannot wash out the effect of his clear stand all through that there was a marpit between him and the informant and the deceased in which he had wielded a spear on them. This part of this respondent's version was clearly severable from the rest of his version and it was not at all necessary that if the learned Sessions Judge disbelieved his version regarding the manner of the occurrence, he was bound to rule out of consideration this admission of the respondent which was clearly separate and severable from the rest of his story.\"\nThe High Court has used a part of the statement of the appellant as an admission. According to us, that part of the statement made by the accused under section 313 of the Code cannot be used as an admission, supporting the prosecution case. It is well-known that an admission has to be taken as a whole. It was not open to the High Court to reject one part so far the aggression and assault by the prosecution party which according to the appellant preceded giving of the ballam blow, and to accept only the later part of the statement that appellant gave a ballam blow, for the purpose of convicting the appellant. In the case of Hanumant Govind Nargunadkar v. State of Madhya Pradesh, AIR 1952 SC 343. it was said:- \"It is settled law that an admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him. An admission must be used either as a whole or not at all.\"\nThe High Court should have taken the whole statement made by the appellant as an admission and then should have examined what shall be the effect thereof on the prosecution case.\nAccording to us, taking all facts and circumstances into consideration the version of the accused of the occurrence appears to be probable and acceptable.\n The next question is as to whether in the circumstances of the case appellant could have caused the death of Jagdish.\n While accepting the plea of right of private defence it has been said that if the right is available, while judging the question whether the accused has exceeded such right, should not be weighed in a golden scale. But the right of private defence does not extend to infliction of more harm than is necessary for the purpose of defence. When the appellant caused the injury with a ballam (spear) in the chest of the victim which resulted in his death, certainly he exceeded his right of private defence. Accordingly, the conviction of the appellant under section 302 of the Penal Code is set aside.\n But the appellant is convicted under section 304, Part-1, and sentenced to rigorous imprisonment for seven years which according to us shall meet the ends of justice. The appeal is allowed in part to the extent indicated above.\n V.P.R. Appeal allowed partly.\n "
} |
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"text": "IN THE COURT OF THE IV"
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"text": "\n SESSIONS JUDGE, MYSURU"
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"text": "\n\n :: PRESENT ::\n\n Sri Hosamani Pundalik,\n IV"
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"text": "Addl. District & Sessions Judge,"
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"start": 232,
"text": "Mysuru.\n \\\n\n SC.No.40/2018\n\n Dated this the 8th day of July, 2019\n\nComplainant:\n\n State by Jayapura Police\n\n (Rep. By Public Prosecutor)\n\n Versus\n\nAccused:\n\n Basappa,\n S/o late Basavegowda,\n Aged 52 years,\n Resident of D. Salundi Village,\n Mysuru District.\n\n "
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"text": "(By Smt. V.Mythili., Advocate)\n\n1."
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"text": "Date of offence : 01.09.2017\n\n"
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"text": "2. Date of report of offence : 02.09.2017\n\n"
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"text": "3. Arrest"
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"text": "of the accused"
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"text": "Arrested on : 03.09.2017\n\n Remanded to JC :"
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"text": "03.09.2017"
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"labels": [
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"start": 1408,
"text": "Released on : Accused is in JC\n\n Period of custody : Year/s, Month/s, Day/s\n\n For Accused 01 10 05\n\n\n4. Name of the complainant : Kumara\n\n5. Date of commencement of : 03.08.2018\n recording of evidence\n\n6. Date of closing of evidence : 30.05.2019\n\n7."
}
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"text": "Offences"
}
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"text": "complained"
}
},
{
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"value": {
"end": 2125,
"labels": [
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"start": 2090,
"text": "of : U/sec.302 of Indian Penal"
}
},
{
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"text": "\n Code\n\n8"
}
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{
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],
"start": 2169,
"text": ". Opinion of the Judge : The accused found guilty of\n the offence U/sec.302 of\n Indian Penal Code."
}
},
{
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"text": "\n\n *~*~*\n\nJ U D G M E N T\n "
}
},
{
"from_name": null,
"id": "df4087d6de6b444dacb5622c693a558d",
"to_name": null,
"type": null,
"value": {
"end": 2562,
"labels": [
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],
"start": 2398,
"text": "This is a charge sheet filed by the Circle Inspector, Mysuru Rural Circle, Mysuru against the accused for the offence punishable U/sec.302 of Indian Penal Code.\n 2."
}
},
{
"from_name": null,
"id": "82d3deba10fa4c889c0770016809c6dd",
"to_name": null,
"type": null,
"value": {
"end": 2612,
"labels": [
"FAC"
],
"start": 2563,
"text": "The case of the prosecution in brief is as under:"
}
},
{
"from_name": null,
"id": "fa88e36753ea49a8a535b90cc45ebf1b",
"to_name": null,
"type": null,
"value": {
"end": 3248,
"labels": [
"FAC"
],
"start": 2613,
"text": "That on 01.09.2017 at about 11.00 a.m. the deceased Shivamma came to the house of the accused who is her brother, for bringing food as husband of her sister was admitted in the hospital, as such when Shivamma requested for providing prepared food, at that time accused picked up quarrel with Shivamma in respect of property and assaulted Shivamma with Repees patti (wooden plank) on her head, to which she has sustained grievous injuries with bleeding and lost her conscious, immediately she was shifted to Aravinda Hospital, Mysuru and on the way while shifting to NIMHANS Hospital, Bengaluru she died on 02.09.2017 at about 4.30 a.m."
}
},
{
"from_name": null,
"id": "78a5c91e3f8c49e5ac51924a74db36d5",
"to_name": null,
"type": null,
"value": {
"end": 3385,
"labels": [
"FAC"
],
"start": 3249,
"text": "Thereafter sister's son of the accused by name Kumara lodged first information before the police about the alleged incident in question."
}
},
{
"from_name": null,
"id": "3447381c38f144d19e06355bd00b7cb5",
"to_name": null,
"type": null,
"value": {
"end": 3494,
"labels": [
"FAC"
],
"start": 3386,
"text": "On the basis of said information a crime came to be registered in Cr.No.145/2017 of Jayapura Police Station."
}
},
{
"from_name": null,
"id": "9f2f25a0f76b49d9923a41d532e1a371",
"to_name": null,
"type": null,
"value": {
"end": 3562,
"labels": [
"FAC"
],
"start": 3495,
"text": "The F.I.R.\nwas submitted to the jurisdictional Judicial Magistrate."
}
},
{
"from_name": null,
"id": "f87baeab14c64458aee282084b0104f2",
"to_name": null,
"type": null,
"value": {
"end": 4230,
"labels": [
"FAC"
],
"start": 3563,
"text": "Thereafter, the Investigating Officer went to the K.R.\nHospital and conducted Inquest panchanama and arrested the accused and recorded confessional statement of the accused and thereafter he went to the spot with the accused and conducted spot panchanama and seized material objects under cover of panchanama and also conducted another seizure panchanama at the instance of the accused and seized Repees Patti (wooden plank) and recorded the statement of witnesses and obtained Post Mortem report, FSL report and after completion of the investigation the I.O. has filed the present charge sheet against the accused for the offence punishable under Sec.302 of IPC.\n 3."
}
},
{
"from_name": null,
"id": "11fa8d370c1c466d80afc8717d4691a3",
"to_name": null,
"type": null,
"value": {
"end": 4422,
"labels": [
"FAC"
],
"start": 4231,
"text": "After filing of the chargesheet, as there are sufficient grounds to proceed against the accused, the cognizance of the offence alleged against the accused was taken by the Learned Magistrate."
}
},
{
"from_name": null,
"id": "99337341c7464fb291e370f25ba4bca7",
"to_name": null,
"type": null,
"value": {
"end": 4496,
"labels": [
"FAC"
],
"start": 4423,
"text": "The accused is in judicial custody and he is represented by the Advocate."
}
},
{
"from_name": null,
"id": "ca5fc011d8d643a99f6c512b7f4dd36c",
"to_name": null,
"type": null,
"value": {
"end": 4627,
"labels": [
"FAC"
],
"start": 4496,
"text": "\nThe Learned Magistrate has also furnished the copies of the prosecution papers to the accused as required U/sec.207 of Cr.P.C.\n 4."
}
},
{
"from_name": null,
"id": "5482cc2626474c7f994db4e5a2c47f1b",
"to_name": null,
"type": null,
"value": {
"end": 4851,
"labels": [
"FAC"
],
"start": 4628,
"text": "As the offence punishable U/sec.302 of Indian Penal Code is exclusively triable by the Court of Sessions, the Learned Magistrate has committed the case to the Sessions Court by exercising his powers U/sec.209 of Cr.P.C.\n 5."
}
},
{
"from_name": null,
"id": "d2edb525e41b458ba11691bbed57addb",
"to_name": null,
"type": null,
"value": {
"end": 5005,
"labels": [
"FAC"
],
"start": 4852,
"text": "After receipt of records the learned Prl. District & Sessions Judge, Mysuru made over the present case to this court for disposal in accordance with law."
}
},
{
"from_name": null,
"id": "eb3528b16cef4011936733a572ac9db6",
"to_name": null,
"type": null,
"value": {
"end": 5171,
"labels": [
"FAC"
],
"start": 5006,
"text": "The accused secured before the court by issuing intimation to the Jail Authority for production of the accused before the court and he is represented by the counsel."
}
},
{
"from_name": null,
"id": "817bb626fd15407d9940e802144f98f7",
"to_name": null,
"type": null,
"value": {
"end": 5267,
"labels": [
"ANALYSIS"
],
"start": 5171,
"text": "\n 6. After hearing the Learned Public Prosecutor and that of the learned counsel for the accused"
}
},
{
"from_name": null,
"id": "2dbe62a3d4a14800b9865b4b97182222",
"to_name": null,
"type": null,
"value": {
"end": 5520,
"labels": [
"ANALYSIS"
],
"start": 5267,
"text": ". As there are sufficient material available on record, my learned Predecessor has framed the charge U/sec.302 of Indian Penal Code against the accused and the same was read over and explained to accused and he pleaded not guilty and claims to be tried."
}
},
{
"from_name": null,
"id": "4468f6ae25d1459aa447b2c40eb4f555",
"to_name": null,
"type": null,
"value": {
"end": 5735,
"labels": [
"ANALYSIS"
],
"start": 5520,
"text": "\n 7. In order to prove its case, the prosecution has examined in all 16 witnesses as PW.1 to PW.16 and got marked as many as 13 documents as Ex.P.1 to P.13 and four material objects as MO.1 to 4 and closed the side."
}
},
{
"from_name": null,
"id": "2b9b908f16f34ff497eacb4bfeafff70",
"to_name": null,
"type": null,
"value": {
"end": 5992,
"labels": [
"ANALYSIS"
],
"start": 5735,
"text": "\n 8. After closure of the evidence on the side of the prosecution, the statement of accused as required U/sec.313 of Cr.P.C., has been recorded to enable the accused to explain the incriminating evidence appearing against him in the case of the prosecution."
}
},
{
"from_name": null,
"id": "2d61c81615404b33a372a543817bff9c",
"to_name": null,
"type": null,
"value": {
"end": 6277,
"labels": [
"ANALYSIS"
],
"start": 5993,
"text": "The case of the accused is of total denial and he has not chosen to lead any oral evidence and in support of his defence in the present case he has got marked Ex.D1 Statement under Sec.161 Cr.P.C. of Nagendra (PW.8) and Ex.D2 Statement under Sec.161 Cr.P.C. of Siddarama (PW.9).\n 9."
}
},
{
"from_name": null,
"id": "0147e3c5304c447c8489a2c6603ef59d",
"to_name": null,
"type": null,
"value": {
"end": 6455,
"labels": [
"ANALYSIS"
],
"start": 6278,
"text": "Thereafter, I have heard the arguments advanced by the Learned Public Prosecutor for the State and that of the learned counsel for the accused at length and perused the records."
}
},
{
"from_name": null,
"id": "2cf26bae79fa4b1580c696e1b8d4f325",
"to_name": null,
"type": null,
"value": {
"end": 7049,
"labels": [
"ISSUE"
],
"start": 6455,
"text": "\n 10. The points that would arise for my consideration in this case are as under: 1. Whether the prosecution proves beyond all reasonable doubt that, on 01.09.2017 at about 11.00 a.m. at the house of accused, the accused assaulted Shivamma with Repees patti (wooden plank) on her head, to which she sustained bleeding grievous injures and lost her conscious and died on the way to NIMHANS Hospital on 02.09.2017 at about 4.30 a.m. and the accused committed murder by intentionally and knowingly causing the death of Shivamma and thereby committed an offence punishable under Sec.302 of IPC?\n 2."
}
},
{
"from_name": null,
"id": "b41888a57df640fba88bdf3f31076840",
"to_name": null,
"type": null,
"value": {
"end": 7062,
"labels": [
"ISSUE"
],
"start": 7050,
"text": "What Order ?"
}
},
{
"from_name": null,
"id": "f98be6e287a54dcaac49e992756053ba",
"to_name": null,
"type": null,
"value": {
"end": 7224,
"labels": [
"ANALYSIS"
],
"start": 7062,
"text": "\n 11. My findings to the above points are as under: Point No.1 : In the Affirmative Point No.2 : As per the final order, for the following: :: R E A S O N S :: 12"
}
},
{
"from_name": null,
"id": "ccc18da221d8470e85113130ae61da88",
"to_name": null,
"type": null,
"value": {
"end": 7237,
"labels": [
"ANALYSIS"
],
"start": 7224,
"text": ". Point No.1:"
}
},
{
"from_name": null,
"id": "b6e9b2c359c04e76b03482892b585b77",
"to_name": null,
"type": null,
"value": {
"end": 7393,
"labels": [
"ANALYSIS"
],
"start": 7238,
"text": "As already pointed out by me the Prosecution has examined as many as 16 witnesses and got marked 13 documents as Ex.P1 to Ex.P13 and four MOs as MO.1 to 4."
}
},
{
"from_name": null,
"id": "00894c20920947c5aee162060186aa42",
"to_name": null,
"type": null,
"value": {
"end": 7519,
"labels": [
"ANALYSIS"
],
"start": 7394,
"text": "PW.1 Kumara, first informant who has lodged the first information before the police and eye witness to the alleged incident."
}
},
{
"from_name": null,
"id": "27e5062f9a714aaa85120dca6e5df63a",
"to_name": null,
"type": null,
"value": {
"end": 7526,
"labels": [
"ANALYSIS"
],
"start": 7520,
"text": "PW.2 "
}
},
{
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"id": "359d5931b10f4040889b25634dbd249e",
"to_name": null,
"type": null,
"value": {
"end": 7604,
"labels": [
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],
"start": 7526,
"text": "Shwetha, daughterinlaw of the accused and eyewitness to the alleged incident ."
}
},
{
"from_name": null,
"id": "1fa5bbce22104f3d851e3d021c9c41bb",
"to_name": null,
"type": null,
"value": {
"end": 7611,
"labels": [
"ANALYSIS"
],
"start": 7605,
"text": "PW.3 "
}
},
{
"from_name": null,
"id": "0ae1475f8b2b463b9fb73f033bb50e42",
"to_name": null,
"type": null,
"value": {
"end": 7671,
"labels": [
"ANALYSIS"
],
"start": 7611,
"text": "Malagamma neighbour and eyewitness to the alleged incident."
}
},
{
"from_name": null,
"id": "9f292c1dad164cdb8d7c702c59df5fd7",
"to_name": null,
"type": null,
"value": {
"end": 7734,
"labels": [
"ANALYSIS"
],
"start": 7672,
"text": "PW.4 Doreswamy, pancha to the inquest panchanama of Shivamma."
}
},
{
"from_name": null,
"id": "bddf88e2d8d14795b1b1498c850581af",
"to_name": null,
"type": null,
"value": {
"end": 7741,
"labels": [
"ANALYSIS"
],
"start": 7735,
"text": "PW.5 "
}
},
{
"from_name": null,
"id": "d25251f01a9c40e88a13149fb2513493",
"to_name": null,
"type": null,
"value": {
"end": 7800,
"labels": [
"ANALYSIS"
],
"start": 7741,
"text": "Ramesha, son of the deceased Shivamma and hear say witness."
}
},
{
"from_name": null,
"id": "6249d1dfe7e04698973688d6826f6893",
"to_name": null,
"type": null,
"value": {
"end": 7891,
"labels": [
"ANALYSIS"
],
"start": 7801,
"text": "PW.6 Sakamma, wife of Ramesh and daughterinlaw of deceased Shivamma and hear say witness."
}
},
{
"from_name": null,
"id": "ddefb385e56449a59daeb9040d540a48",
"to_name": null,
"type": null,
"value": {
"end": 7898,
"labels": [
"ANALYSIS"
],
"start": 7892,
"text": "PW.7 "
}
},
{
"from_name": null,
"id": "5207e62770e34d40995f100e4672025c",
"to_name": null,
"type": null,
"value": {
"end": 7950,
"labels": [
"ANALYSIS"
],
"start": 7898,
"text": "Kalamma, sister of the accused and hear say witness."
}
},
{
"from_name": null,
"id": "65b6a2cdb9aa4d038a6eb8c2e8e172d8",
"to_name": null,
"type": null,
"value": {
"end": 7957,
"labels": [
"ANALYSIS"
],
"start": 7951,
"text": "PW.8 "
}
},
{
"from_name": null,
"id": "187748e323d848de87013f40e0df2a7e",
"to_name": null,
"type": null,
"value": {
"end": 8030,
"labels": [
"ANALYSIS"
],
"start": 7957,
"text": "Nagendra son of the accused and husband of Shweatha and hear say witness."
}
},
{
"from_name": null,
"id": "ea0a16f4441a4a37a66ecbed980f5d39",
"to_name": null,
"type": null,
"value": {
"end": 8123,
"labels": [
"ANALYSIS"
],
"start": 8031,
"text": "PW.9 Siddarama @ Siddaramegowda, son of the accused and eyewitness to the alleged incident."
}
},
{
"from_name": null,
"id": "ea08b4ab77e14f4fa103c09b1efbe714",
"to_name": null,
"type": null,
"value": {
"end": 8198,
"labels": [
"ANALYSIS"
],
"start": 8124,
"text": "PW.10 Dr.\nSomashekar, Scientific Officer, RFSL, who examined the viscera."
}
},
{
"from_name": null,
"id": "a45b9b4c9ea04ab4ad7e312b8422a61f",
"to_name": null,
"type": null,
"value": {
"end": 8285,
"labels": [
"ANALYSIS"
],
"start": 8199,
"text": "PW.11 Dr. Chandrashekar, Assistant Director, RFSL, who examined the Material Objects."
}
},
{
"from_name": null,
"id": "6bb2df9e80d54ab08e3b4e6706486d5a",
"to_name": null,
"type": null,
"value": {
"end": 8293,
"labels": [
"ANALYSIS"
],
"start": 8286,
"text": "PW.12 "
}
},
{
"from_name": null,
"id": "fbb2e84c8cc849058b65856ecd080c23",
"to_name": null,
"type": null,
"value": {
"end": 8372,
"labels": [
"ANALYSIS"
],
"start": 8293,
"text": "Dr.\nAnil Sangli, who treated the injured at initial stage in Aravinda Hospital."
}
},
{
"from_name": null,
"id": "c3ba6216499c4785bd6a8c7c21716537",
"to_name": null,
"type": null,
"value": {
"end": 8423,
"labels": [
"ANALYSIS"
],
"start": 8373,
"text": "PW.13 Dr. Dayanand R., who conducted post mortem."
}
},
{
"from_name": null,
"id": "5b7136a1a84e4443b2827c2ca281011f",
"to_name": null,
"type": null,
"value": {
"end": 8431,
"labels": [
"ANALYSIS"
],
"start": 8424,
"text": "PW.14 "
}
},
{
"from_name": null,
"id": "9b4d0b1f752c48859a9e4a41d2bd5629",
"to_name": null,
"type": null,
"value": {
"end": 8588,
"labels": [
"ANALYSIS"
],
"start": 8431,
"text": "Chandra M., pancha to the inquest panchanama Ex.P.4, spot panchanama Ex.P.2 and seizure of MO.1 to 4 and seizure panchanama of Repees patti as per Ex.P.10."
}
},
{
"from_name": null,
"id": "dcd8cce6bdb14501b54834d2e2815535",
"to_name": null,
"type": null,
"value": {
"end": 8596,
"labels": [
"ANALYSIS"
],
"start": 8589,
"text": "PW.15 "
}
},
{
"from_name": null,
"id": "61c1e55e0b8e4da787f9c3be086a5df1",
"to_name": null,
"type": null,
"value": {
"end": 8640,
"labels": [
"ANALYSIS"
],
"start": 8596,
"text": "Jagadeesha C., ASI, who registered the case."
}
},
{
"from_name": null,
"id": "1f67b7bace0448cd9d07f7a99f3d9ef3",
"to_name": null,
"type": null,
"value": {
"end": 8648,
"labels": [
"ANALYSIS"
],
"start": 8641,
"text": "PW.16 "
}
},
{
"from_name": null,
"id": "150079c6f16e4085b9a53fac30bdcc48",
"to_name": null,
"type": null,
"value": {
"end": 8743,
"labels": [
"ANALYSIS"
],
"start": 8648,
"text": "Kareem Ravathar, Investigation Officer, who conducted investigation and filed the charge sheet."
}
},
{
"from_name": null,
"id": "b92e110a678f45bfaefc63eec88c7a6c",
"to_name": null,
"type": null,
"value": {
"end": 8849,
"labels": [
"ANALYSIS"
],
"start": 8744,
"text": "The details of Ex.P1 to Ex.P13, MO.1 to 4 and Ex.D1 and Ex.D2 are given in the annexure to this judgment."
}
},
{
"from_name": null,
"id": "ccf93c979a9643fa95e88308f50c8717",
"to_name": null,
"type": null,
"value": {
"end": 9079,
"labels": [
"ARG_PETITIONER"
],
"start": 8851,
"text": "13. The learned Public Prosecutor for the state has submitted that the oral and documentary evidence adduced by the prosecution are sufficient to bring home the alleged guilt of the accused and prayed for convicting the accused."
}
},
{
"from_name": null,
"id": "be777319800d40fc8ae4931cd6e4734b",
"to_name": null,
"type": null,
"value": {
"end": 9279,
"labels": [
"ARG_RESPONDENT"
],
"start": 9079,
"text": "\n Per contra, it is contended by the learned counsel for the accused that the prosecution has failed to prove beyond all reasonable doubt that the accused has committed an offence alleged against him."
}
},
{
"from_name": null,
"id": "d8218c58a72e41648de3f964528c8639",
"to_name": null,
"type": null,
"value": {
"end": 9850,
"labels": [
"ARG_RESPONDENT"
],
"start": 9280,
"text": "Further contended that there is a contradiction and omissions in the evidence adduced by the prosecution and prayed for acquittal of the accused by relying on the judgment reported in 2012 Crl.L.J.293 in the case of Ganeshi Paswan and another Vs. State of Jharkhand, wherein the Hon'ble Jharkahand High Court has held that: Vital contradictions in evidence of eyewitnesses Difference was relating to presence of eyewitnesses Fardbeyan was recorded after about 5 hours of time of occurrence But manner of occurrence as stated by witnesses was not disclosed in F.I.R. "
}
},
{
"from_name": null,
"id": "033d512d071e4dc2a0633d9d380e7b33",
"to_name": null,
"type": null,
"value": {
"end": 9861,
"labels": [
"ARG_RESPONDENT"
],
"start": 9850,
"text": "Post Mortem"
}
},
{
"from_name": null,
"id": "0489501b75644939be653d5d2d1cfb97",
"to_name": null,
"type": null,
"value": {
"end": 9871,
"labels": [
"ARG_RESPONDENT"
],
"start": 9862,
"text": "conducted"
}
},
{
"from_name": null,
"id": "b80bde3a21af468cbf7f912f38dbbaff",
"to_name": null,
"type": null,
"value": {
"end": 9932,
"labels": [
"ARG_RESPONDENT"
],
"start": 9872,
"text": "with ante mortem injuries Accused deserve benefit of doubt."
}
},
{
"from_name": null,
"id": "e8312c4a6f234851b2e172c21db4dc97",
"to_name": null,
"type": null,
"value": {
"end": 10470,
"labels": [
"ARG_RESPONDENT"
],
"start": 9932,
"text": "\nAnother decision reported in 2011 Crl.L.J. 4338 in the case of Sayaji Hanmat Bankar Vs. State of Maharashtra, wherein the Hon'ble Supreme Court has held that : Sudden fight Quarrel ensuing between accused and wife as soon as he entered house in drunken condition Accused thereupon first threw water pot and then burning lamp on deceased wife Wife getting 70% burns because of nylon saree worn by her Death resulted because of sudden fight, without premeditation Accused liable to be convicted under S.304, Part I and not for murder."
}
},
{
"from_name": null,
"id": "a6a961d0a431499c8e935362f17ef1d8",
"to_name": null,
"type": null,
"value": {
"end": 10551,
"labels": [
"ANALYSIS"
],
"start": 10470,
"text": "\n 14. Now we shall turn out attention to the evidence adduced by the prosecution."
}
},
{
"from_name": null,
"id": "f24889b4873749038b8b136ccabf3c1d",
"to_name": null,
"type": null,
"value": {
"end": 10671,
"labels": [
"ANALYSIS"
],
"start": 10552,
"text": "Now coming to the evidence of PW.1, PW.1 Kumara is sister's son of the accused and eyewitness to the alleged incident."
}
},
{
"from_name": null,
"id": "5d581b2497fd461ba70ec0138378013d",
"to_name": null,
"type": null,
"value": {
"end": 10780,
"labels": [
"ANALYSIS"
],
"start": 10672,
"text": "PW.1 in his evidence has stated that accused is his maternal uncle and he is residing in D. Salundi village."
}
},
{
"from_name": null,
"id": "8682d250188b45f38ecab38327aceac3",
"to_name": null,
"type": null,
"value": {
"end": 11007,
"labels": [
"ANALYSIS"
],
"start": 10781,
"text": "Further he has stated that on 01.09.2017 he had been to the house of accused at that time his aunt by name Shivamma also came to the house of accused to take food to the husband of her sister, who was admitted in the hospital."
}
},
{
"from_name": null,
"id": "4059db0b3c4d4cd8ad38314bbc751e25",
"to_name": null,
"type": null,
"value": {
"end": 12126,
"labels": [
"ANALYSIS"
],
"start": 11007,
"text": "\nFurther PW.1 in his evidence has stated that when his auntShivamma requested to provide prepared food or else to give money to buy the food, for which accused picked up quarrel with Shivamma in respect of property matter and assaulted with repees patti (wooden plank) on her head and caused bleeding injuries and she fell down and lost her conscious and blood oozed out from her nose, ear and mouth, at that time himself, son of accused by name Siddarama and daughterinlaw Shwetha were present, said Shwetha brought one lungi cloth and tied it to head of Shivamma and they shifted the injured to Aravinda Hospital in Ambulance but she was referred to NIMHANS Hospital, Bengaluru for further treatment and hence they informed the same to the Nagendra, who is another son of accused, thereafter Nagendra and his mother came to the hospital and then they proceeded to Bengaluru but the doctors of NIMHANS hospital after examining Shivamma in the Ambulance declared that she was dead, then the dead body of Shivamma was kept in mortuary of K.R. hospital and then he went to the police station and lodged first information."
}
},
{
"from_name": null,
"id": "00d2dd7e5edb4583b87ff4e6ce7bbbe7",
"to_name": null,
"type": null,
"value": {
"end": 12177,
"labels": [
"ANALYSIS"
],
"start": 12127,
"text": "PW.1 identified MO.1 Repees patti (wooden plank)."
}
},
{
"from_name": null,
"id": "7d4c5d019af34e8ba3149d4a52740bf6",
"to_name": null,
"type": null,
"value": {
"end": 12288,
"labels": [
"ANALYSIS"
],
"start": 12178,
"text": "Nothing is elicited in the cross examination of PW.1 made on behalf of the accused to disbelieve his evidence."
}
},
{
"from_name": null,
"id": "5bbe589eb81d4f108fec5e5031a13842",
"to_name": null,
"type": null,
"value": {
"end": 12402,
"labels": [
"ANALYSIS"
],
"start": 12289,
"text": "The evidence of PW.1 is cogent, convincing and reliable evidence and I have no reason to disbelieve his evidence."
}
},
{
"from_name": null,
"id": "e27f1452fe854e7b8aede99f7a82174d",
"to_name": null,
"type": null,
"value": {
"end": 12551,
"labels": [
"ANALYSIS"
],
"start": 12402,
"text": "\n 15. PW.2 Shwetha, who is the daughterinlaw of the accused and eyewitness to the alleged incident, who tied lungi (cloth) to the deceased Shivamma."
}
},
{
"from_name": null,
"id": "0611d0b8009f421fbdea01e3e66fcc62",
"to_name": null,
"type": null,
"value": {
"end": 12793,
"labels": [
"ANALYSIS"
],
"start": 12552,
"text": "PW.2 in her evidence has stated that PW.1 is her uncle, accused is her fatherinlaw and accused had two wives and that the first wife of accused by name Leelavathi @ Beeramma died since 25 years back and second wife by name Siddamma is alive."
}
},
{
"from_name": null,
"id": "81bd63e43a2c4ce2a2566327d553ccd1",
"to_name": null,
"type": null,
"value": {
"end": 12908,
"labels": [
"ANALYSIS"
],
"start": 12794,
"text": "Further she has stated that accused had 3 children, they are Nagendra (who is her husband), Revanna and Siddaramu."
}
},
{
"from_name": null,
"id": "edb86b2ef8aa49ca94f3e785232eab4a",
"to_name": null,
"type": null,
"value": {
"end": 13154,
"labels": [
"ANALYSIS"
],
"start": 12909,
"text": "Further PW.2 has stated that accused had 4 sisters, deceased Shivamma is his elder sister and they had quarrel with respect to property matter and the civil case was ended in conciliation but all the sisters used to come to the house of accused."
}
},
{
"from_name": null,
"id": "82be2673f1554b279e650e54e4749b0d",
"to_name": null,
"type": null,
"value": {
"end": 13743,
"labels": [
"ANALYSIS"
],
"start": 13155,
"text": "On 01.09.2017 at about 10.30 11.00 a.m. when PW.2, accused and Siddarama were in the house at that time PW.1 Kumara came to see her son and deceased Shivamma also came to take food to the husband of her sister, who was hospitalised, at that time Shivamma requested to provide prepared food or else to give money to buy the food, for which accused picked up quarrel with Shivamma in respect of property matter and assaulted with repees patti (wooden plank) on her head and caused bleeding injuries and she fell down and lost her conscious and blood oozed out from her nose, ear and mouth."
}
},
{
"from_name": null,
"id": "a9cd4b57ea804f7d8e31e844f5150f5f",
"to_name": null,
"type": null,
"value": {
"end": 14064,
"labels": [
"ANALYSIS"
],
"start": 13744,
"text": "PW.2 has further stated that at that time the son of accused by name Siddarama and herself were present, then she tied lungi (cloth) to the head of Shivamma, then accused on seeing the blood went away thereafter PW.1 and Siddarama called Ambulance and took her to Aravinda hospital but they referred to NIMHANS hospital."
}
},
{
"from_name": null,
"id": "e9678d7a3592414aae28bc282dcb3579",
"to_name": null,
"type": null,
"value": {
"end": 14153,
"labels": [
"ANALYSIS"
],
"start": 14065,
"text": "There the doctors examined Shivamma in the Ambulance and declared the death of Shivamma."
}
},
{
"from_name": null,
"id": "c6f322353b2d483daa7ad5bce114ddfc",
"to_name": null,
"type": null,
"value": {
"end": 14308,
"labels": [
"ANALYSIS"
],
"start": 14154,
"text": "Thereafter they came back to Mysuru and the dead body was kept in the mortuary of K.R. hospital and she has identified MO.1 Repees patti and MO.2 lungi."
}
},
{
"from_name": null,
"id": "a9a70fc935b44c53b4b2ba76d93e89ad",
"to_name": null,
"type": null,
"value": {
"end": 14575,
"labels": [
"ANALYSIS"
],
"start": 14309,
"text": "Further PW.2 in her evidence has stated that on 03.09.2017 at about 12.30 1.00 p.m. police have brought the accused near the house and accused showed the place of incident to the police, at that time police have collected blood stained mud and nonblood stained mud."
}
},
{
"from_name": null,
"id": "cf96a47f891b4857b490c313e8720ab8",
"to_name": null,
"type": null,
"value": {
"end": 14781,
"labels": [
"ANALYSIS"
],
"start": 14576,
"text": "Thereafter, she handed over lungi (cloth) which was tied to deceased Shivamma's head and police have seized the same under the cover of mahazar Ex.P.2.\nCW.5, 6 & accused have signed to the Ex.P.2 Mahazar."
}
},
{
"from_name": null,
"id": "be5ba664c17e476a952c7bb8607da54b",
"to_name": null,
"type": null,
"value": {
"end": 14808,
"labels": [
"ANALYSIS"
],
"start": 14781,
"text": "\nPW.2 has identified MO.3 "
}
},
{
"from_name": null,
"id": "ebdf85e990ba46d488c653ff945956cb",
"to_name": null,
"type": null,
"value": {
"end": 14855,
"labels": [
"ANALYSIS"
],
"start": 14808,
"text": "blood stained mud and MO.4 nonblood stained mud"
}
},
{
"from_name": null,
"id": "7070bbcc321e4f69936e5709776e707d",
"to_name": null,
"type": null,
"value": {
"end": 14966,
"labels": [
"ANALYSIS"
],
"start": 14855,
"text": ". Nothing is elicited in the crossexamination of PW.2 made on behalf of the accused to disbelieve her evidence."
}
},
{
"from_name": null,
"id": "0aed94da6bd84fb285369fed370d7195",
"to_name": null,
"type": null,
"value": {
"end": 15080,
"labels": [
"ANALYSIS"
],
"start": 14967,
"text": "The evidence of PW.2 is cogent, convincing and reliable evidence and I have no reason to disbelieve his evidence."
}
},
{
"from_name": null,
"id": "928c9dc6a1264575a289b8498a8cb501",
"to_name": null,
"type": null,
"value": {
"end": 15160,
"labels": [
"ANALYSIS"
],
"start": 15080,
"text": "\n 16. PW.3 Malagamma, who is neighbour and eye witness to the alleged incident."
}
},
{
"from_name": null,
"id": "8c24adb83add46f7bfcde9a28557dbce",
"to_name": null,
"type": null,
"value": {
"end": 15282,
"labels": [
"ANALYSIS"
],
"start": 15161,
"text": "PW.3 in her evidence has stated that she knows PW.1 and 2 and also accused and her house is near to the house of accused."
}
},
{
"from_name": null,
"id": "3db47ec754504851a6152a4d71be5d6d",
"to_name": null,
"type": null,
"value": {
"end": 15375,
"labels": [
"ANALYSIS"
],
"start": 15283,
"text": "PW.3 has stated in her evidence that accused had two wives, three children and four sisters."
}
},
{
"from_name": null,
"id": "8310a478850f46c0a40cf9dd7108c085",
"to_name": null,
"type": null,
"value": {
"end": 15429,
"labels": [
"ANALYSIS"
],
"start": 15376,
"text": "Deceased Shivamma is the elder sister of the accused."
}
},
{
"from_name": null,
"id": "1352e5e51c6f4aeaa052a0a8ce06d646",
"to_name": null,
"type": null,
"value": {
"end": 15756,
"labels": [
"ANALYSIS"
],
"start": 15430,
"text": "PW.3 has stated in her evidence that about 3 years 1 month back to the date of incident quarrel was taking place with Shivamma and she intervened and advised accused not to quarrel, but the accused took Repees patti (wooden plank) and assaulted Shivamma with Repees patti (wooden plank) on her head and she sustained injuries."
}
},
{
"from_name": null,
"id": "0453b41710024b9db03e28bdbc9fb8d4",
"to_name": null,
"type": null,
"value": {
"end": 16008,
"labels": [
"ANALYSIS"
],
"start": 15757,
"text": "PW.2 Shwetha tied lungi (cloth) to the head of Shivamma, thereafter herself, son of the accused and others shifted the injured to the hospital and thereafter injured was shifted to Bengaluru but Shivamma did not survive and she attended the funerals."
}
},
{
"from_name": null,
"id": "6de424a909594ebf869a27ea066b54d7",
"to_name": null,
"type": null,
"value": {
"end": 16031,
"labels": [
"ANALYSIS"
],
"start": 16009,
"text": "PW.3 identified MO.1 "
}
},
{
"from_name": null,
"id": "8dd105d1e544427ebc5a3f7c314f0cd8",
"to_name": null,
"type": null,
"value": {
"end": 16037,
"labels": [
"ANALYSIS"
],
"start": 16031,
"text": "Repees"
}
},
{
"from_name": null,
"id": "a73816ed99324f509a979919480e40ab",
"to_name": null,
"type": null,
"value": {
"end": 16083,
"labels": [
"ANALYSIS"
],
"start": 16038,
"text": "patti (wooden plank) and MO.2 lungi (cloth)."
}
},
{
"from_name": null,
"id": "55a4169e5ea54d1b872f37d66f631008",
"to_name": null,
"type": null,
"value": {
"end": 16193,
"labels": [
"ANALYSIS"
],
"start": 16084,
"text": "Nothing is elicited in the crossexamination of PW.3 made on behalf of the accused to disbelieve her evidence."
}
},
{
"from_name": null,
"id": "f6157d1ce05b442f8806eb0e82f385bf",
"to_name": null,
"type": null,
"value": {
"end": 16307,
"labels": [
"ANALYSIS"
],
"start": 16194,
"text": "The evidence of PW.3 is cogent, convincing and reliable evidence and I have no reason to disbelieve his evidence."
}
},
{
"from_name": null,
"id": "58bab792d85a41b79e08a1457738a131",
"to_name": null,
"type": null,
"value": {
"end": 16415,
"labels": [
"ANALYSIS"
],
"start": 16307,
"text": "\n 17. PW.9 Siddarama @ Siddaramegowda, who is the son of the accused and eyewitness to the alleged incident"
}
},
{
"from_name": null,
"id": "3a3d65b505b34683a2bfd17ec83399b8",
"to_name": null,
"type": null,
"value": {
"end": 16654,
"labels": [
"ANALYSIS"
],
"start": 16415,
"text": ". PW.9 in his evidence has stated that accused is his father and accused had two wives, his mother name is Leelavathi @ Beeramma and she had three children, all of them are married and his brothers are drivers and he was doing agriculture."
}
},
{
"from_name": null,
"id": "e90625da97be457fa05c232f393277e7",
"to_name": null,
"type": null,
"value": {
"end": 16861,
"labels": [
"ANALYSIS"
],
"start": 16655,
"text": "His father has got four sisters and he has got landed property, to which sisters have questioned regarding sale of landed property, to which there was no cordial relationship between his father and sisters."
}
},
{
"from_name": null,
"id": "48d947aaae4b44ccbbdef5558f91c6f1",
"to_name": null,
"type": null,
"value": {
"end": 16914,
"labels": [
"ANALYSIS"
],
"start": 16862,
"text": "CW.9 is his aunt and she is elder sister of accused."
}
},
{
"from_name": null,
"id": "5a65799e530c4de3815d6d983ad8a482",
"to_name": null,
"type": null,
"value": {
"end": 16967,
"labels": [
"ANALYSIS"
],
"start": 16915,
"text": "Husband of CW.9 was admitted in Sanitarium hospital."
}
},
{
"from_name": null,
"id": "b210d6814324455b8e7a709fca037974",
"to_name": null,
"type": null,
"value": {
"end": 17507,
"labels": [
"ANALYSIS"
],
"start": 16968,
"text": "PW.9 further in his evidence has stated that about 1 years back, his aunt Shivamma came to the house from hospital to take food and requested the accused to provide prepared food or else to give money to buy the food, for which accused picked up quarrel with Shivamma in respect of property matter and assaulted with repees patti (wooden plank) on her head and caused bleeding injuries and she fell down and lost her conscious and blood oozed out from her nose, ear and mouth and his sisterinlaw tied lungi (cloth) to the head of Shivamma."
}
},
{
"from_name": null,
"id": "1d5bf9874fdf441782853b9eb34071cc",
"to_name": null,
"type": null,
"value": {
"end": 17892,
"labels": [
"ANALYSIS"
],
"start": 17508,
"text": "PW.9 has specifically stated that because of property dispute the accused assaulted to Shivamma with Repees Patti (wooden plank) and himself, PW.1, 2 & 3 were present at the time of incident and took her to Aravinda hospital and thereafter PW.1, 7 & 8 took her to NIMHANS hospital and he came to know about the death of Shivamma through phone by his brother at about 5.00 to 6.00 a.m."
}
},
{
"from_name": null,
"id": "31cfe6d28b2c4fcdb9cbcdfc318bbbb5",
"to_name": null,
"type": null,
"value": {
"end": 17966,
"labels": [
"ANALYSIS"
],
"start": 17893,
"text": "Thereafter, PW.1 went to the police station and lodged first information."
}
},
{
"from_name": null,
"id": "7977d5ec370343ebab467a6df3a1b883",
"to_name": null,
"type": null,
"value": {
"end": 18168,
"labels": [
"ANALYSIS"
],
"start": 17967,
"text": "PW.9 further in his evidence has specifically stated that because of the property dispute accused assaulted Shivamma and died due to head injury and he has identified MO.1 Repees patti (wooden plank)."
}
},
{
"from_name": null,
"id": "9592842a6b1e445bb9900be0ee527353",
"to_name": null,
"type": null,
"value": {
"end": 18297,
"labels": [
"ANALYSIS"
],
"start": 18169,
"text": "On careful perusal of this evidence, it can be said that the property dispute is the motive for the accused to assault Shivamma."
}
},
{
"from_name": null,
"id": "45d5141f947a49d9b3284ccdba7248ce",
"to_name": null,
"type": null,
"value": {
"end": 18461,
"labels": [
"ANALYSIS"
],
"start": 18298,
"text": "PW.9 in his evidence denied the statement Ex.D2(a) that his mother died 25 years back and also denied Ex.D2(b) that civil case ended with the mediation of lawyer."
}
},
{
"from_name": null,
"id": "3a137597516d4834a336e2e0350362e3",
"to_name": null,
"type": null,
"value": {
"end": 18571,
"labels": [
"ANALYSIS"
],
"start": 18462,
"text": "These contradictions are not material contradictions and are not going to effect the case of the prosecution."
}
},
{
"from_name": null,
"id": "0f68629b3a4445acb37bfc49aaaf7d63",
"to_name": null,
"type": null,
"value": {
"end": 18681,
"labels": [
"ANALYSIS"
],
"start": 18572,
"text": "Nothing is elicited in the crossexamination of PW.9 made on behalf of the accused to disbelieve his evidence."
}
},
{
"from_name": null,
"id": "10784bdcd79c4e4d90d4a5ca72bc4d06",
"to_name": null,
"type": null,
"value": {
"end": 18795,
"labels": [
"ANALYSIS"
],
"start": 18682,
"text": "The evidence of PW.9 is cogent, convincing and reliable evidence and I have no reason to disbelieve his evidence."
}
},
{
"from_name": null,
"id": "ff053993b22348208670062080449493",
"to_name": null,
"type": null,
"value": {
"end": 18844,
"labels": [
"ANALYSIS"
],
"start": 18797,
"text": "18. PW.5 Ramesh, son of the deceased Shivamma."
}
},
{
"from_name": null,
"id": "bc2818bdbdcc4b96bbd7b5a42ea3afba",
"to_name": null,
"type": null,
"value": {
"end": 19290,
"labels": [
"ANALYSIS"
],
"start": 18844,
"text": "\nPW.8 in his evidence has stated that about 2 years back his mother went to see the Marigowda, who is admitted in the hospital and thereafter he went to the house of accused and there he came to know that the accused assaulted to his mother in respect of property dispute and she was admitted to Aravinda hospital and thereafter she was shifted to Bengaluru, there she died and then dead body of Shivamma was shifted to mortuary of K.R.\nHospital."
}
},
{
"from_name": null,
"id": "ca40c6dff199409e817c906ea3626d1c",
"to_name": null,
"type": null,
"value": {
"end": 19359,
"labels": [
"ANALYSIS"
],
"start": 19291,
"text": "PW.6 Sakamma, wife of PW.5 and daughter inlaw of deceased Shivamma."
}
},
{
"from_name": null,
"id": "64a23eed4b564f57a4e30e2953e43b94",
"to_name": null,
"type": null,
"value": {
"end": 19818,
"labels": [
"ANALYSIS"
],
"start": 19360,
"text": "PW.6 in her evidence has stated that about 1 years back her motherinlaw went to see the Marigowda, who is admitted in the hospital and thereafter she went to the house of accused and there she came to know that the accused assaulted to her motherinlaw in respect of property dispute and she was admitted to Aravinda hospital and thereafter she was shifted to Bengaluru, there she died and then dead body of Shivamma was shifted to mortuary of K.R.\nHospital."
}
},
{
"from_name": null,
"id": "014803a5616648ad8c656865c27a1f8f",
"to_name": null,
"type": null,
"value": {
"end": 19881,
"labels": [
"ANALYSIS"
],
"start": 19819,
"text": "PW.7 Kalamma, who is sister of accused and deceased Shivamma."
}
},
{
"from_name": null,
"id": "1677589400a74126a157e211bc50debf",
"to_name": null,
"type": null,
"value": {
"end": 20197,
"labels": [
"ANALYSIS"
],
"start": 19882,
"text": "PW.7 in her evidence has stated that about 1 year back, she came to know that the accused assaulted to her sister Shivamma and she was admitted to Aravinda hospital and thereafter she was shifted to NIMHANS Hospital, Bengaluru, there she died and then dead body of Shivamma was shifted to mortuary of K.R. Hospital."
}
},
{
"from_name": null,
"id": "2db9f2c394d44d7ba8d35adc37035d85",
"to_name": null,
"type": null,
"value": {
"end": 20273,
"labels": [
"ANALYSIS"
],
"start": 20198,
"text": "PW.8 Nagendra, son of the accused and husband of PW.2 and brother of PW.9."
}
},
{
"from_name": null,
"id": "478b5d6a44034b88b5f255d2002d899e",
"to_name": null,
"type": null,
"value": {
"end": 20561,
"labels": [
"ANALYSIS"
],
"start": 20274,
"text": "PW.8 in his evidence has stated that about 1 year back his aunt Shivamma came to his house to take food and there was quarrel between his aunt Shivamma and his father (accused) and he assaulted her with Repees Patti (wooden plank) in respect of property, to which she sustained injuries."
}
},
{
"from_name": null,
"id": "0f4b4bb500f242f0ae3d8983d0b528f7",
"to_name": null,
"type": null,
"value": {
"end": 20742,
"labels": [
"ANALYSIS"
],
"start": 20562,
"text": "Then Shivamma was admitted to Aravinda hospital and thereafter she was shifted to Bengaluru, there she died and then dead body of Shivamma was shifted to mortuary of K.R. Hospital."
}
},
{
"from_name": null,
"id": "c26a8e8b9e8b4e7f8bcfd82f122dfcdd",
"to_name": null,
"type": null,
"value": {
"end": 20828,
"labels": [
"ANALYSIS"
],
"start": 20743,
"text": "PW.5 to 8 are hear say witnesses and they have supported the case of the prosecution."
}
},
{
"from_name": null,
"id": "88392808638f4d8184e972967e400213",
"to_name": null,
"type": null,
"value": {
"end": 21058,
"labels": [
"ANALYSIS"
],
"start": 20829,
"text": "PW.8 in his evidence denied the statement Ex.D1(a) that civil case ended with the mediation of lawyer and also denied the statement Ex.D1(b) that the accused married to Siddamma after the death of his mother about 25 years back."
}
},
{
"from_name": null,
"id": "fc6abefa41e2407f9ae4af530740b11f",
"to_name": null,
"type": null,
"value": {
"end": 21168,
"labels": [
"ANALYSIS"
],
"start": 21059,
"text": "These contradictions are not material contradictions and are not going to effect the case of the prosecution."
}
},
{
"from_name": null,
"id": "cc908b3822cc4f8483bb7eea0cb8080f",
"to_name": null,
"type": null,
"value": {
"end": 21236,
"labels": [
"ANALYSIS"
],
"start": 21168,
"text": "\n 19. PW.4 Doreswamy, pancha to the inquest panchanama of Shivamma."
}
},
{
"from_name": null,
"id": "29697e65dd1f4aaaad567b8215dd188a",
"to_name": null,
"type": null,
"value": {
"end": 21498,
"labels": [
"ANALYSIS"
],
"start": 21237,
"text": "PW.4 in his evidence has stated that about one year back at mortuary of K.R.\nHospital the police have conducted inquest of deceased Shivamma as per Ex.P.4 and further he has stated that deceased Shivamma died as the accused assaulted her in respect of property."
}
},
{
"from_name": null,
"id": "c97d1f779720419fb45533d81554c233",
"to_name": null,
"type": null,
"value": {
"end": 21609,
"labels": [
"ANALYSIS"
],
"start": 21499,
"text": "Nothing is elicited in the cross examination of PW.4 made on behalf of the accused to disbelieve her evidence."
}
},
{
"from_name": null,
"id": "b244a6e30ac44c63912fb007a0c05820",
"to_name": null,
"type": null,
"value": {
"end": 21723,
"labels": [
"ANALYSIS"
],
"start": 21610,
"text": "The evidence of PW.4 is cogent, convincing and reliable evidence and I have no reason to disbelieve his evidence."
}
},
{
"from_name": null,
"id": "6f5ea35ed8af4e938b7b4f6f13aee121",
"to_name": null,
"type": null,
"value": {
"end": 21846,
"labels": [
"ANALYSIS"
],
"start": 21725,
"text": "20. PW.14 Chandra M, pancha to the inquest panchanama of deceased Shivamma, spot panchanama and also seizure panchanama."
}
},
{
"from_name": null,
"id": "fbef4661eb804ec5a949257cdba6b8f9",
"to_name": null,
"type": null,
"value": {
"end": 22095,
"labels": [
"ANALYSIS"
],
"start": 21847,
"text": "PW.14 in his evidence has stated that on 02.09.2017 deceased Shivamma died and police have conducted inquest panchanama of deceased Shivamma as per Ex.P.4 and obtained his signature and further stated that there was injury on the head of dead body."
}
},
{
"from_name": null,
"id": "06a22c05bc62403b871976360016530f",
"to_name": null,
"type": null,
"value": {
"end": 22436,
"labels": [
"ANALYSIS"
],
"start": 22096,
"text": "Further PW.14 in his evidence stated that on 03.09.2017 the police have conducted spot panchanama as per Ex.P.2 and seized MO.2 to 4 and further in his evidence stated that the police have also conducted seizure panchanama as per Ex.P.10 near Mount Litera convent at the instance of the accused and seized MO.1 Repees Patti (wooden plank)."
}
},
{
"from_name": null,
"id": "3fe7eae985484650a0124f950b72eae0",
"to_name": null,
"type": null,
"value": {
"end": 22547,
"labels": [
"ANALYSIS"
],
"start": 22437,
"text": "Nothing is elicited in the crossexamination of PW.14 made on behalf of the accused to disbelieve his evidence."
}
},
{
"from_name": null,
"id": "f5ee3d981b61490f88af10b333202ec8",
"to_name": null,
"type": null,
"value": {
"end": 23355,
"labels": [
"ANALYSIS"
],
"start": 22549,
"text": "21. PW.10 Dr. Somashekar, Scientific Officer, RFSL has stated in his evidence that he has received item No.1 Stomach, small intestine and its contents, item No.2 portion of liver and kidney, item No.3 blood, item No.4 satuarated solution of sodium chloride as preservative and he opined in his evidence that Residues of volatile poisons, ethyl alcohol, pesticides, barbiturates, benzodiazepine group of drugs, toxic metal ions and anions were not detected in all the above stated articles.\n 22. PW.11 Dr. Chandrashekar, Assistant Director, RFSL, Mysuru has stated in his evidence that he has received item No.1 blood stained mud, item No.2 sample mud, item No.3 one lungi, item No.4 Repees patti (wooden plank) and he opined in his evidence that (1) blood stain was detected in article No.1 and 3."
}
},
{
"from_name": null,
"id": "179cddb3a5aa41d986ee1b9b2f5d9c69",
"to_name": null,
"type": null,
"value": {
"end": 23462,
"labels": [
"ANALYSIS"
],
"start": 23356,
"text": "(2) blood stain was not detected in item No.2 and 4. (3) Article No.1 and 3 were stained with human blood."
}
},
{
"from_name": null,
"id": "da7739fa69b64706a3f28c19a99054fe",
"to_name": null,
"type": null,
"value": {
"end": 23520,
"labels": [
"ANALYSIS"
],
"start": 23463,
"text": "(4) Article No.1 and 3 were stained with \"O\" group blood."
}
},
{
"from_name": null,
"id": "9054b7d36c42483f844a11439e8358a3",
"to_name": null,
"type": null,
"value": {
"end": 23533,
"labels": [
"ANALYSIS"
],
"start": 23520,
"text": "\n 23. PW.12 "
}
},
{
"from_name": null,
"id": "18406232142c41608c23afc365e63f2b",
"to_name": null,
"type": null,
"value": {
"end": 23564,
"labels": [
"ANALYSIS"
],
"start": 23533,
"text": "Dr. Anil Sangli, Neuro Surgeon."
}
},
{
"from_name": null,
"id": "930c5f4e136f44a68560cd3b49f746b6",
"to_name": null,
"type": null,
"value": {
"end": 23872,
"labels": [
"ANALYSIS"
],
"start": 23565,
"text": "PW.12 in his evidence has stated that on 01.09.2017 at about 3.10 p.m. by name Shivamma admitted in Aravinda Hospital with alleged assault by the younger brother Basappa of the patient around 10.00 a.m. on the same day and she was hit by wooden log on the head as per information by Nagendra and Siddarama."
}
},
{
"from_name": null,
"id": "dc2b906598104a4185c28b30ae4ab4fb",
"to_name": null,
"type": null,
"value": {
"end": 23936,
"labels": [
"ANALYSIS"
],
"start": 23873,
"text": "The patient had immediate loss of conscious and injury to head."
}
},
{
"from_name": null,
"id": "a826306beb1c4b169683a64663ab5fe4",
"to_name": null,
"type": null,
"value": {
"end": 24035,
"labels": [
"ANALYSIS"
],
"start": 23937,
"text": "She was having seizures, was unconscious with a score of E1VTM5 and right sided complete weakness."
}
},
{
"from_name": null,
"id": "6052fc7292dc48e8b3673f38353764bd",
"to_name": null,
"type": null,
"value": {
"end": 24116,
"labels": [
"ANALYSIS"
],
"start": 24036,
"text": "Her brain scan revealed a left sided extra dural hemorrhage with mid line shift."
}
},
{
"from_name": null,
"id": "c23a806776fb4beeb86b6b1a982cfec8",
"to_name": null,
"type": null,
"value": {
"end": 24151,
"labels": [
"ANALYSIS"
],
"start": 24116,
"text": "\nShe was advised emergency surgery."
}
},
{
"from_name": null,
"id": "c3d655d01742402b878e2d38d7cf0ff1",
"to_name": null,
"type": null,
"value": {
"end": 24231,
"labels": [
"ANALYSIS"
],
"start": 24152,
"text": "Relatives wanted to take the patient to NIMHANS hospital for further treatment."
}
},
{
"from_name": null,
"id": "d8203517ae1745cd9ef541c9401ae956",
"to_name": null,
"type": null,
"value": {
"end": 24572,
"labels": [
"ANALYSIS"
],
"start": 24232,
"text": "A perusal of the evidence of the doctor makes it clear that the case history recorded by the doctor to whom deceased was taken for treatment deposing that soon after the deceased was admitted in the hospital, the Nagendra and Siddarama informed that the accused assaulted to Shivamma and the same was noted in the case papers by the doctor."
}
},
{
"from_name": null,
"id": "d54f160dbd8e48c88ac96548b293d1d4",
"to_name": null,
"type": null,
"value": {
"end": 24801,
"labels": [
"ANALYSIS"
],
"start": 24573,
"text": "The evidence of the doctor supports to the case of the prosecution and hence it is held that doctor has no reason to falsely depose against the accused or to prepare false case papers and it inspires the confidence of the court."
}
},
{
"from_name": null,
"id": "b6d34b80b00c45cfa7eb84b73073184a",
"to_name": null,
"type": null,
"value": {
"end": 24814,
"labels": [
"ANALYSIS"
],
"start": 24801,
"text": "\n 24. PW.13 "
}
},
{
"from_name": null,
"id": "f0540dfbe72c4f52b72adc9dfe78e976",
"to_name": null,
"type": null,
"value": {
"end": 24899,
"labels": [
"ANALYSIS"
],
"start": 24814,
"text": "Dr. Dayanand R., Associate Professor, Department of Forensic Laboratory, MMC, Mysuru."
}
},
{
"from_name": null,
"id": "d72fbf2ab3354cef98a1246816e88393",
"to_name": null,
"type": null,
"value": {
"end": 25105,
"labels": [
"ANALYSIS"
],
"start": 24899,
"text": "\nPW.13 in his evidence has stated that On 02.09.2017 at 5.00 pm he received requisition from CPI, Mysuru Rural Circle, Jayapura PS to conduct postmortem on the body of deceased Shivamma aged about 60 years."
}
},
{
"from_name": null,
"id": "390b7d6e860c47a88f21f2fc29b39a49",
"to_name": null,
"type": null,
"value": {
"end": 25202,
"labels": [
"ANALYSIS"
],
"start": 25106,
"text": "Accordingly, on the same day from 5.00 p.m. to 6.00 pm, he had conducted postmortem of Shivamma."
}
},
{
"from_name": null,
"id": "fb5c4b9d35864f6cb77c46e8b19ca035",
"to_name": null,
"type": null,
"value": {
"end": 25418,
"labels": [
"ANALYSIS"
],
"start": 25203,
"text": "During his examination noted the following injuries; 1. Stapled wound measuring 12cm present over the left parietal area with 21 staples in sito, situated 7cm above the left mastoid process and 2cm left of mid line."
}
},
{
"from_name": null,
"id": "1accee0b37f347f4912ccd0c77594d5a",
"to_name": null,
"type": null,
"value": {
"end": 25751,
"labels": [
"ANALYSIS"
],
"start": 25419,
"text": "On removal of staples and reflection shows extravasation of blood.\n 2. Contusion 4 X 3cm present over the top of the right shoulder.\n PW.13 has opined that the above mentioned injuries are antimortem in nature and has further deposed in his evidence that on dissection he found the following internal injuries; 1. Scalp described."
}
},
{
"from_name": null,
"id": "7c2048f828aa49248eab848ada7d3920",
"to_name": null,
"type": null,
"value": {
"end": 25857,
"labels": [
"ANALYSIS"
],
"start": 25752,
"text": "On reflection shows extravasation of blood over the left fronto temporo parietal area and occipital area."
}
},
{
"from_name": null,
"id": "01415a0f31aa422ab85ad4e72caf907b",
"to_name": null,
"type": null,
"value": {
"end": 25946,
"labels": [
"ANALYSIS"
],
"start": 25858,
"text": "Skulldepressed communited fractures over the area of 6X 4cm over the left parietal area."
}
},
{
"from_name": null,
"id": "4767e8f452474469a0c67e5afeb226ae",
"to_name": null,
"type": null,
"value": {
"end": 26012,
"labels": [
"ANALYSIS"
],
"start": 25947,
"text": "Fissure fracture 7cm present over the left tempro parietal areal."
}
},
{
"from_name": null,
"id": "9ee48324c3104afead5a6a430a0b5497",
"to_name": null,
"type": null,
"value": {
"end": 26052,
"labels": [
"ANALYSIS"
],
"start": 26013,
"text": "One end joining with previous fracture."
}
},
{
"from_name": null,
"id": "9c050e43cfa44e4e92562bea81d5e685",
"to_name": null,
"type": null,
"value": {
"end": 26125,
"labels": [
"ANALYSIS"
],
"start": 26053,
"text": "Fissure fracture 4cm present over the left side of middle cranial fossa."
}
},
{
"from_name": null,
"id": "44a4a8eb08d2403182f1bda230cf7c7c",
"to_name": null,
"type": null,
"value": {
"end": 26187,
"labels": [
"ANALYSIS"
],
"start": 26125,
"text": "\n 2. Membraneslacerated corresponding to the fracture site."
}
},
{
"from_name": null,
"id": "18ea81a7ef7e44cdaa0467628d96eb1b",
"to_name": null,
"type": null,
"value": {
"end": 26280,
"labels": [
"ANALYSIS"
],
"start": 26187,
"text": "\n 3. Brain and spinal cord Diffused subdural and subarachnoid hemorrhage present all over."
}
},
{
"from_name": null,
"id": "fbacd87375b24a6a803dc783feef345c",
"to_name": null,
"type": null,
"value": {
"end": 26376,
"labels": [
"ANALYSIS"
],
"start": 26281,
"text": "Extra dural hemorrhage present over an area of 10X 8 cm present over left tempro parietal area."
}
},
{
"from_name": null,
"id": "de3a3d4329334fde88b753155a8b03f3",
"to_name": null,
"type": null,
"value": {
"end": 26409,
"labels": [
"ANALYSIS"
],
"start": 26377,
"text": "All other organs were congested."
}
},
{
"from_name": null,
"id": "63aed08f5b1645cfbc73d30d1b8abd40",
"to_name": null,
"type": null,
"value": {
"end": 26446,
"labels": [
"ANALYSIS"
],
"start": 26410,
"text": "Blood effused around fracture sites."
}
},
{
"from_name": null,
"id": "6e623123dcca4116b67e7492bb45ed0e",
"to_name": null,
"type": null,
"value": {
"end": 26502,
"labels": [
"ANALYSIS"
],
"start": 26446,
"text": "\n Blood and visra sent to RFSL for chemical analysis."
}
},
{
"from_name": null,
"id": "f7e131271bf4434581aa7426131e49d9",
"to_name": null,
"type": null,
"value": {
"end": 26675,
"labels": [
"ANALYSIS"
],
"start": 26502,
"text": "\n On 17.11.2017 after receiving report from RFSL.\n PW.13 has opined that death is due to complications of head injury sustained and has issued PM report as per Ex.P.8."
}
},
{
"from_name": null,
"id": "b7da75a336854343a5e475fd750b81d1",
"to_name": null,
"type": null,
"value": {
"end": 26772,
"labels": [
"ANALYSIS"
],
"start": 26676,
"text": "Nothing is elicited in the cross examination of PW.13 by the accused to disbelieve his evidence."
}
},
{
"from_name": null,
"id": "54eed93f9a0c477495d2b47c7356088e",
"to_name": null,
"type": null,
"value": {
"end": 26785,
"labels": [
"ANALYSIS"
],
"start": 26774,
"text": "25. PW.15 "
}
},
{
"from_name": null,
"id": "c4c214e8c998429ca661905eb7465fb2",
"to_name": null,
"type": null,
"value": {
"end": 26804,
"labels": [
"ANALYSIS"
],
"start": 26785,
"text": "Jagadeesha C., ASI."
}
},
{
"from_name": null,
"id": "66886fabd98141bcad188845f13e1b1d",
"to_name": null,
"type": null,
"value": {
"end": 26978,
"labels": [
"ANALYSIS"
],
"start": 26805,
"text": "PW.15 in his evidence has stated that on 02.09.2017 at about 11.00 a.m. when he was incharge of police station, complainant appeared before him and lodged first information."
}
},
{
"from_name": null,
"id": "054fc63dfa4f40d29ad5a8a45afd4cd4",
"to_name": null,
"type": null,
"value": {
"end": 27198,
"labels": [
"ANALYSIS"
],
"start": 26979,
"text": "On the basis of said information, a case was registered in Cr.No.145/2017 of Jayapura police station and FIR was submitted to the court as well to his departmental heads and handed over further investigation to the CPI."
}
},
{
"from_name": null,
"id": "c573ec2891f34b1d94403b72f4bedc94",
"to_name": null,
"type": null,
"value": {
"end": 27281,
"labels": [
"ANALYSIS"
],
"start": 27199,
"text": "PW.15 has further stated that he has arrested the accused and produced before CPI."
}
},
{
"from_name": null,
"id": "4a0fb6f7b89c4da096575d9bc41ff4b8",
"to_name": null,
"type": null,
"value": {
"end": 27314,
"labels": [
"ANALYSIS"
],
"start": 27281,
"text": "\n 26. PW.16 Kareem Ravatar, CPI."
}
},
{
"from_name": null,
"id": "9694d387455347d8b2a4a5a11addee3a",
"to_name": null,
"type": null,
"value": {
"end": 28301,
"labels": [
"ANALYSIS"
],
"start": 27315,
"text": "PW.16 in his evidence has stated that on 29.09.2017 at 11.30 a.m. he took further investigation from PW.15 and went to K.R.\nHospital and conducted inquest panchanama as per Ex.P.4 in the presence of witnesses and thereafter on 03.09.2017 at about 8.30 a.m., his subordinates brought the accused before him and he arrested the accused after following necessary procedure as required to be followed under law and recorded confessional statement of the accused as per Ex.P12 and thereafter he has conducted spot panchanama in the presence of panchas and seized MO.2 to 4 as per Ex.P.2 and thereafter he conducted seizure panchanama and seized MO.1 at the instance of the accused as per Ex.P.10 and subjected the property to the property form and thereafter recorded statements of witnesses and also police officials and thereafter he obtained PM report, FSL reports and final opinion of the doctors and after completion of the investigation, has filed the charge sheet against the accused."
}
},
{
"from_name": null,
"id": "b2cc959ba6e14631a3954b3f55e5ca94",
"to_name": null,
"type": null,
"value": {
"end": 28397,
"labels": [
"ANALYSIS"
],
"start": 28302,
"text": "Nothing is elicited in the crossexamination of PW.16 by the accused to disbelieve his evidence."
}
},
{
"from_name": null,
"id": "ecf8023f949e46dcb16d1d22d3560e9b",
"to_name": null,
"type": null,
"value": {
"end": 29053,
"labels": [
"ANALYSIS"
],
"start": 28397,
"text": "\n 27. It is the case of the prosecution that on 01.09.2017 at about 11.00 a.m. deceased Shivamma came to the house of the accused who is her brother, for bringing food as husband of her sister was admitted in the hospital, as such when Shivamma requested for providing prepared food, at that time accused picked up quarrel with Shivamma in respect of property dispute and assaulted Shivamma with Repees patti (wooden plank) on her head, to which she has sustained grievous injuries with bleeding, immediately she was shifted to Aravinda Hospital, Mysuru and on the way while shifting to NIMHANS Hospital, Bengaluru she died on 02.09.2017 at about 4.30 a.m."
}
},
{
"from_name": null,
"id": "6c3dddbd92824e88920097635b39cf70",
"to_name": null,
"type": null,
"value": {
"end": 29626,
"labels": [
"ANALYSIS"
],
"start": 29054,
"text": "It is pertinent to note that PW.1 to 3 & 9 in their evidence stated that the accused picked up quarrel with Shivamma in respect of property matter and assaulted with repees patti (wooden plank) on her head and caused bleeding injuries and she fell down and lost her conscious and blood oozed out from her nose, ear and mouth and she died due to injuries, therefore it can be held that PW.1 to 3 and 9 had no reasons to falsely depose against the accused, the evidence of PW.1 to 3 & 9 are cogent, convincing & reliable evidence, which inspires the confidence of the court."
}
},
{
"from_name": null,
"id": "11ef566a89dd42d0af9f10de60589ad8",
"to_name": null,
"type": null,
"value": {
"end": 29717,
"labels": [
"ANALYSIS"
],
"start": 29627,
"text": "Nothing is elicited in the crossexamination of PW.1 to 3 & 9 to disbelieve their evidence."
}
},
{
"from_name": null,
"id": "c7f11062bb6e43ed8f342873db3bd127",
"to_name": null,
"type": null,
"value": {
"end": 29815,
"labels": [
"ANALYSIS"
],
"start": 29718,
"text": "Though there are minor discrepancies and contradictions in the evidence they are very negligible."
}
},
{
"from_name": null,
"id": "a12a823932e74e20ad48751dd7f8b109",
"to_name": null,
"type": null,
"value": {
"end": 30000,
"labels": [
"ANALYSIS"
],
"start": 29815,
"text": "\nUnder these circumstances it is evident that the recovery of MO.1 Repees Patti (wooden plank) at the instance of accused is admissible as provided under Sec.27 of Indian Evidence Act."
}
},
{
"from_name": null,
"id": "2eee55fdd5ab4533a2f21bfbd9ff49af",
"to_name": null,
"type": null,
"value": {
"end": 30139,
"labels": [
"ANALYSIS"
],
"start": 30001,
"text": "No doubt motive moves a man to do a particular act and there cannot be any action without motive which must exist for every voluntary act."
}
},
{
"from_name": null,
"id": "d8b670228cb349b0818f5d06da8509ca",
"to_name": null,
"type": null,
"value": {
"end": 30298,
"labels": [
"ANALYSIS"
],
"start": 30140,
"text": "In the instant case the prosecution has specifically alleged that the accused assaulted Shivamma with Repees Patti (wooden plank) because of property dispute."
}
},
{
"from_name": null,
"id": "9eb9c4c5b3944676be1dd67cd318e6e2",
"to_name": null,
"type": null,
"value": {
"end": 30506,
"labels": [
"ANALYSIS"
],
"start": 30299,
"text": "The fact that the accused murdered the Shivamma by assaulting with Repees Patti (wooden plank) on her head causing bleeding injuries resulting in death and it is evident that his motive was to kill Shivamma."
}
},
{
"from_name": null,
"id": "c5da0c726fc641cc89a7c39a8b81e29f",
"to_name": null,
"type": null,
"value": {
"end": 30626,
"labels": [
"ANALYSIS"
],
"start": 30507,
"text": "The prosecution is able to establish and proved that the death of Shivamma is homicidal and it is clear case of murder."
}
},
{
"from_name": null,
"id": "3e5a4aa62d81426f8b1552250f93abe1",
"to_name": null,
"type": null,
"value": {
"end": 30867,
"labels": [
"ANALYSIS"
],
"start": 30626,
"text": "\n 28. The object and purpose of a statement under Section 313 Cr.P.C. is to notify the accused about the incriminating circumstance appearing in the case against him and also to provide an opportunity to explain about his conduct or version."
}
},
{
"from_name": null,
"id": "adc32a3a890f4310b8c027a74047e72f",
"to_name": null,
"type": null,
"value": {
"end": 30970,
"labels": [
"ANALYSIS"
],
"start": 30868,
"text": "In the present case on hand all the incriminating circumstances were put to the accused on 20.06.2019."
}
},
{
"from_name": null,
"id": "a7ecb221aa4c49488927a3b6dd76dcc2",
"to_name": null,
"type": null,
"value": {
"end": 31050,
"labels": [
"ANALYSIS"
],
"start": 30971,
"text": "His case was of entire denial and made no statements about his say on the case."
}
},
{
"from_name": null,
"id": "bc1401c8da1741f49be0c978cc26ef5a",
"to_name": null,
"type": null,
"value": {
"end": 31156,
"labels": [
"ANALYSIS"
],
"start": 31051,
"text": "In fact he answered in the negative when questioned as to whether he has any thing to say about the case."
}
},
{
"from_name": null,
"id": "ff7d79ece4b94fbebc440c789f627680",
"to_name": null,
"type": null,
"value": {
"end": 31245,
"labels": [
"ANALYSIS"
],
"start": 31157,
"text": "Opportunity was given to adduce defence evidence but he did not utilize the opportunity."
}
},
{
"from_name": null,
"id": "2826623368a24753bf0f5654312ab716",
"to_name": null,
"type": null,
"value": {
"end": 31494,
"labels": [
"ANALYSIS"
],
"start": 31246,
"text": "Considering the defence taken by the accused in the case on hand, I am of the opinion that he ought to has furnished his version during recording of 313 Statement and also ought to have adduced his side evidence but he has not adduced his evidence."
}
},
{
"from_name": null,
"id": "72b79b5ce8d9414fa55f374c6f7e6a32",
"to_name": null,
"type": null,
"value": {
"end": 31787,
"labels": [
"PRE_RELIED"
],
"start": 31494,
"text": "\n 29. The Hon'ble Supreme Court in case of Sunil Mahadeo Jadhav V/s State of Maharashtra, (2013) 15 SCC 177 has drawn reference to Section 106 of the Evidence Act 1872 which states that when any act is especially within the knowledge of any person, the burden of proving that fact is upon him."
}
},
{
"from_name": null,
"id": "2df2a8237bbe436c898e19d299fa113d",
"to_name": null,
"type": null,
"value": {
"end": 31947,
"labels": [
"PRE_RELIED"
],
"start": 31788,
"text": "The accused had stated nothing in this regard in his statement under Section 313 CrPC and also failed to adduce any evidence in defence to explain his defence."
}
},
{
"from_name": null,
"id": "2597e693b3f64dc48a7c81b817d318a8",
"to_name": null,
"type": null,
"value": {
"end": 32177,
"labels": [
"PRE_RELIED"
],
"start": 31947,
"text": "\n 30. The Hon'ble Supreme Court in case of Phula Singh V/s State of H.P reported in (2014) 4 SCC 9 had rejected the submission that prosecution has to establish each and every fact and accused has a right only to maintain silence."
}
},
{
"from_name": null,
"id": "124bcfc26f9e456bb56f05aabf3bd2d9",
"to_name": null,
"type": null,
"value": {
"end": 32303,
"labels": [
"PRE_RELIED"
],
"start": 32178,
"text": "Adverse inference was drawn against the accused for not at all trying to explain the incriminating circumstances against him."
}
},
{
"from_name": null,
"id": "bd4b9ed1e2ca43f7af49596f72600961",
"to_name": null,
"type": null,
"value": {
"end": 32475,
"labels": [
"ANALYSIS"
],
"start": 32303,
"text": "\n 31. As observed above in the case on hand also the accused had failed to explain the incriminating circumstances brought to his notice during questioning U/s. 313 Cr.P.C."
}
},
{
"from_name": null,
"id": "259c196e6e2b4ddcb22e1b71baf08174",
"to_name": null,
"type": null,
"value": {
"end": 32683,
"labels": [
"ANALYSIS"
],
"start": 32476,
"text": "Since he had answered in the Negative when asked about his say about the case, adverse inference can be drawn that the accused had murdered Shivamma by assaulted with Repees Patti (wooden plank) on her head."
}
},
{
"from_name": null,
"id": "feb295f04df443ee9a36eaad135b6b4f",
"to_name": null,
"type": null,
"value": {
"end": 33214,
"labels": [
"ANALYSIS"
],
"start": 32683,
"text": "\n 32. It is pertinent to note that the CPI after registration of the case, took the further investigation on the same day at about 11.30 a.m. and went to the K.R.Hospital and conducted inquest panchanama of deceased Shivamma and arrested the accused and recorded confessional statement as per Ex.P12 and went to the spot with the accused and conducted spot panchanama and seized MOs under cover of panchanama as per Ex.P.2 and also conducted another seizure panchanama as per Ex.P.10 and seized MO.1 at the instance of the accused."
}
},
{
"from_name": null,
"id": "6d604c40e613407e8a5db8f002cb39b7",
"to_name": null,
"type": null,
"value": {
"end": 33370,
"labels": [
"ANALYSIS"
],
"start": 33215,
"text": "It is clear that the Medical Officer, who conducted post mortem and gave evidence as PW.13 has opined that the death is due to complication of head injury."
}
},
{
"from_name": null,
"id": "059db56961a34dd28f0850e4029810fb",
"to_name": null,
"type": null,
"value": {
"end": 33474,
"labels": [
"ANALYSIS"
],
"start": 33371,
"text": "The evidence of Medical Officer and Investigation Officer corroborates to the evidence of eyewitnesses."
}
},
{
"from_name": null,
"id": "681beea03300412fbaec1c396a3dc0e8",
"to_name": null,
"type": null,
"value": {
"end": 33584,
"labels": [
"ANALYSIS"
],
"start": 33475,
"text": "The ruling relied by the learned counsel for the accused is not going to helpful for the case of the accused."
}
},
{
"from_name": null,
"id": "f57257faec2d40e2a7494129b89314c9",
"to_name": null,
"type": null,
"value": {
"end": 33937,
"labels": [
"PRE_RELIED"
],
"start": 33584,
"text": "\n 33. It is pertinent to note that the decision in the case of State of Andhra Pradesh Vs. R.Punnayya, reported in AIR 1977 SC 45, wherein the Hon'ble Supreme Court observed that when the Court is confronted with the question whether the offence is 'murder' or culpable homicide not amounting to murder', the problem is to be approached in three stages."
}
},
{
"from_name": null,
"id": "aa612216edde44ff887c79096a7ec82e",
"to_name": null,
"type": null,
"value": {
"end": 34079,
"labels": [
"PRE_RELIED"
],
"start": 33938,
"text": "The question to be considered at first stage is whether the accused has done an act by doing which he has caused the death of another person."
}
},
{
"from_name": null,
"id": "df2acfdc252845fd9b4e9347180597a1",
"to_name": null,
"type": null,
"value": {
"end": 34290,
"labels": [
"PRE_RELIED"
],
"start": 34080,
"text": "Proof of such casual connection between the act of the accused and the death leads to the second stage for consideration whether that act of the accused amounts to 'culpable homicide' as defined in Section 299."
}
},
{
"from_name": null,
"id": "62a0f3925777450c8a64a04a026212d7",
"to_name": null,
"type": null,
"value": {
"end": 34436,
"labels": [
"PRE_RELIED"
],
"start": 34290,
"text": "\nIf the answer of this question is prima facie found in the affirmative the stage is reached for considering the operation of Section 300 IP Code."
}
},
{
"from_name": null,
"id": "59e6dd6650774b5f93e17d4f04b81132",
"to_name": null,
"type": null,
"value": {
"end": 34648,
"labels": [
"PRE_RELIED"
],
"start": 34437,
"text": "This is the stage at which the Court should determine whether the acts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of \"murder\" contained in Section 300."
}
},
{
"from_name": null,
"id": "18a920a8aae24a43ab6537ddc1c4462b",
"to_name": null,
"type": null,
"value": {
"end": 34852,
"labels": [
"PRE_RELIED"
],
"start": 34649,
"text": "If the answer to this question is in the negative the offence would be culpable homicide not amounting to murder punishable under the first or the second or the third clause of section 299 is applicable."
}
},
{
"from_name": null,
"id": "ceabec06e50441e28af9507731d8520e",
"to_name": null,
"type": null,
"value": {
"end": 35076,
"labels": [
"PRE_RELIED"
],
"start": 34853,
"text": "If the question is found to be positive, but comes within any of the Exceptions enumerated in Section 300, the offence would still be culpable homicide not amounting to murder punishable under the first part of section 304."
}
},
{
"from_name": null,
"id": "34f56cdf428e4d73a3a669e57cbe7e71",
"to_name": null,
"type": null,
"value": {
"end": 35304,
"labels": [
"PRE_RELIED"
],
"start": 35077,
"text": "But sometimes the facts are so intertwined and the second and third stages are so telescoped into each other that it may not be convenient to give a separate treatment to the matters involved in the second and the third stages."
}
},
{
"from_name": null,
"id": "d1e9ac4b12004aa39ab26eafabaf843f",
"to_name": null,
"type": null,
"value": {
"end": 35492,
"labels": [
"PRE_RELIED"
],
"start": 35305,
"text": "Further the acts and circumstances proved by the prosecution brings the case squarely within the ambit of the four clauses of the definition of \"murder' contained in Section 300 IPC.\n 34."
}
},
{
"from_name": null,
"id": "6541364ba6e147c5afe4aaa0c82ce5fb",
"to_name": null,
"type": null,
"value": {
"end": 35898,
"labels": [
"ANALYSIS"
],
"start": 35493,
"text": "It is pertinent to note that PW.1 to 3 and 9 eye witnesses to the alleged incident, in their evidence specifically stated that accused picked up quarrel with Shivamma in respect of property matter and assaulted with repees patti (wooden plank) on her head and caused bleeding injuries and she fell down and lost her conscious and blood oozed out from her nose, ear and mouth and she died due to injuries."
}
},
{
"from_name": null,
"id": "fd9a8e876b9c4a6c98aa6918f76f5e58",
"to_name": null,
"type": null,
"value": {
"end": 36049,
"labels": [
"ANALYSIS"
],
"start": 35899,
"text": "The evidence of PW.1 to 3 and 9 corroborated to the evidence of PW.13 Medical Officer and evidence of PW.15 & 16 evidence of Investigating Officers."
}
},
{
"from_name": null,
"id": "2a7ff72d2b98486a818ff66c55da88e9",
"to_name": null,
"type": null,
"value": {
"end": 36163,
"labels": [
"ANALYSIS"
],
"start": 36050,
"text": "The evidence of PW.1 to 3 and 9 and PW.7 and PW.13, 15 & 16 pointing out the accused as perpetrator of the crime."
}
},
{
"from_name": null,
"id": "c654632421794380bf76b3cb9ff7f9a2",
"to_name": null,
"type": null,
"value": {
"end": 36481,
"labels": [
"ANALYSIS"
],
"start": 36164,
"text": "PW.1 is the son of the sister of the accused, PW.2 is the daughterinlaw of the accused (wife of the son of the accused), PW.9 is the son of the accused and PW.3 is the neighbour. PW.1 to 3 & 9 are the eyewitnesses to the alleged incident and nothing is elicited in their crossexamination to disbelieve their evidence."
}
},
{
"from_name": null,
"id": "a616966ba9aa4524bb3fa6400cdfc0e7",
"to_name": null,
"type": null,
"value": {
"end": 36691,
"labels": [
"ANALYSIS"
],
"start": 36482,
"text": "Therefore, the evidence of above witnesses are cogent, convincing and reliable evidence and I have no reason to disbelieve their evidence and the evidence of PW.1 to 3 & 9 inspires the confidence of the court."
}
},
{
"from_name": null,
"id": "66f15e688e8d44c9a3bb03881591af86",
"to_name": null,
"type": null,
"value": {
"end": 36875,
"labels": [
"RATIO"
],
"start": 36691,
"text": "\nFurther the acts and circumstances proved by the prosecution brings the case squarely within the ambit of the four clauses of the definition of murder contained in Section 300 of IPC."
}
},
{
"from_name": null,
"id": "edbbb88fa090447fbb3de82cc0d03008",
"to_name": null,
"type": null,
"value": {
"end": 37034,
"labels": [
"RATIO"
],
"start": 36876,
"text": "Therefore, in the circumstances it can be held that the evidence adduced by the prosecution are sufficient to hold the accused is guilty under Sec.302 of IPC."
}
},
{
"from_name": null,
"id": "acc421145d784217b84f0416abc898c5",
"to_name": null,
"type": null,
"value": {
"end": 37206,
"labels": [
"RATIO"
],
"start": 37035,
"text": "For the far going reasons, I hold that the prosecution has successfully proved that, the accused has committed the offence alleged against him beyond all reasonable doubt."
}
},
{
"from_name": null,
"id": "07a9f67bfaf14bc0846e81fb41607f4d",
"to_name": null,
"type": null,
"value": {
"end": 37255,
"labels": [
"RPC"
],
"start": 37207,
"text": "Hence, I answered Point No.1 in the AFFIRMATIVE."
}
},
{
"from_name": null,
"id": "3701d86b539a41518fc913139413cd7f",
"to_name": null,
"type": null,
"value": {
"end": 37272,
"labels": [
"RPC"
],
"start": 37255,
"text": "\n 35. Point No.2:"
}
},
{
"from_name": null,
"id": "b37516b6b8ca4f83bb752b174989f00c",
"to_name": null,
"type": null,
"value": {
"end": 37343,
"labels": [
"RPC"
],
"start": 37273,
"text": "In view of my findings on Point No.1, I proceed to pass the following:"
}
},
{
"from_name": null,
"id": "0453c02aed3a48c9ab5bef929ef20f94",
"to_name": null,
"type": null,
"value": {
"end": 37564,
"labels": [
"RPC"
],
"start": 37344,
"text": ":: ORDER :: Accused is convicted for the offence punishable U/sec.302 of Indian Penal Code by acting U/sec.235(2) of Cr.P.C.\n MO.1 to 4 are ordered to be destroyed after expiry of the appeal period as same are worthless."
}
},
{
"from_name": null,
"id": "892b2d880d2341bdb0992d1b8950e298",
"to_name": null,
"type": null,
"value": {
"end": 37758,
"labels": [
"NONE"
],
"start": 37564,
"text": "\n To hear on sentence by 09.07.2019.\n [Dictated to the Stenographer directly on computer, corrected and signed by me, then order pronounced in the Open Court, on this the 8th day of July, 2019]."
}
},
{
"from_name": null,
"id": "36a391af0be64f668d9d613805dcf535",
"to_name": null,
"type": null,
"value": {
"end": 37779,
"labels": [
"NONE"
],
"start": 37760,
"text": "[HOSAMANI PUNDALIK]"
}
},
{
"from_name": null,
"id": "7420ed2e67894f4fb1d143dedd16234f",
"to_name": null,
"type": null,
"value": {
"end": 37823,
"labels": [
"NONE"
],
"start": 37780,
"text": "IV Addl. District & Sessions Judge, Mysuru."
}
},
{
"from_name": null,
"id": "5401136bcae047cfa53db3e3aa7f3cb7",
"to_name": null,
"type": null,
"value": {
"end": 37955,
"labels": [
"NONE"
],
"start": 37823,
"text": "\n Dated this the 9th day of July 2019 ORDER REGARDING SENTENCE The accused produced before the Court for hearing regarding sentence."
}
},
{
"from_name": null,
"id": "a199add7f3cf4e1ba1efc4e815719988",
"to_name": null,
"type": null,
"value": {
"end": 38110,
"labels": [
"ANALYSIS"
],
"start": 37957,
"text": "2. I have heard the arguments advanced by the learned counsel for the accused and that of the learned Public Prosecutor for the State regarding sentence."
}
},
{
"from_name": null,
"id": "5d67b0caeced45aaab1e457eeb0b60a6",
"to_name": null,
"type": null,
"value": {
"end": 38335,
"labels": [
"ANALYSIS"
],
"start": 38111,
"text": "The learned counsel for the accused has submitted that, the accused is aged about 64 years and he has given only one blow without any intention to cause death and he may be imposed with minimum sentence prescribed under law."
}
},
{
"from_name": null,
"id": "417d57c389164e2398579749e3d6f986",
"to_name": null,
"type": null,
"value": {
"end": 38508,
"labels": [
"ANALYSIS"
],
"start": 38335,
"text": "\n 3. Per contra, learned Public Prosecutor has submitted that the accused committed murder of his own sister and he assaulted to the deceased in respect of property dispute."
}
},
{
"from_name": null,
"id": "3a6b03a10eef4cf39bafb3d635318d0e",
"to_name": null,
"type": null,
"value": {
"end": 38587,
"labels": [
"ANALYSIS"
],
"start": 38509,
"text": "Hence, he prayed to sentence the accused as provided under Sec.302 of IPC.\n 4."
}
},
{
"from_name": null,
"id": "1276586893444ed08078f4098843faeb",
"to_name": null,
"type": null,
"value": {
"end": 38789,
"labels": [
"ANALYSIS"
],
"start": 38588,
"text": "It is pertinent to note that charge sheet reveals that age of the accused is 52 years and the prosecution has proved the guilt of accused for the offence punishable under Sec. 302 of Indian Penal Code."
}
},
{
"from_name": null,
"id": "1c1fa39f55da4bdf829319a308adabf4",
"to_name": null,
"type": null,
"value": {
"end": 38896,
"labels": [
"ANALYSIS"
],
"start": 38790,
"text": "The offence under Sec.302 of Indian Penal Code is punishable with death or imprisonment for life and fine."
}
},
{
"from_name": null,
"id": "8ca716f9314d4f879ac2877c0688c8d3",
"to_name": null,
"type": null,
"value": {
"end": 39012,
"labels": [
"ANALYSIS"
],
"start": 38897,
"text": "But, there is no evidence placed on record to show that, it is a rarest of rare case so as to impose death penalty."
}
},
{
"from_name": null,
"id": "522e55a42a2b4f5c8e3ca8ba7ad71818",
"to_name": null,
"type": null,
"value": {
"end": 39295,
"labels": [
"ANALYSIS"
],
"start": 39013,
"text": "However, it is evident that the accused had caused the death of his own sister Shivamma by assaulting with Repees Patti (wooden plank) on her head when she came to his house for taking prepared food to provide the same to the husband of her sister who was admitted in the hospital."
}
},
{
"from_name": null,
"id": "da4fd9a3cc8a4f50a33f71f529ac129c",
"to_name": null,
"type": null,
"value": {
"end": 39585,
"labels": [
"ANALYSIS"
],
"start": 39296,
"text": "Under these circumstances, in my considered opinion, it is just and proper to impose punishment of rigorous imprisonment for life with fine of Rs.1,00,000/ (Rupees one lakh only) to the accused for the offence under Sec.302 of IPC, which will serve the purpose to meet the ends of justice."
}
},
{
"from_name": null,
"id": "a38540cf4ed54ed597ebd1b31d5c65ed",
"to_name": null,
"type": null,
"value": {
"end": 39908,
"labels": [
"RPC"
],
"start": 39585,
"text": "\n 5. In the light of the above discussion, accused is liable to undergo sentences and accordingly, I pass the following; ORDER The accused Basappa is sentenced to undergo Rigorous Imprisonment for life for the offence punishable under Section 302 of I.P.C. and sentenced to pay fine of Rs.1,00,000/ (Rupees one lakh only)."
}
},
{
"from_name": null,
"id": "db6df73de88548c483d3f360de31e2f3",
"to_name": null,
"type": null,
"value": {
"end": 39992,
"labels": [
"RPC"
],
"start": 39909,
"text": "In default of payment of fine, he shall undergo simple imprisonment for six months."
}
},
{
"from_name": null,
"id": "5e0404308bd84cfca8a6944df97f00ca",
"to_name": null,
"type": null,
"value": {
"end": 40143,
"labels": [
"RPC"
],
"start": 39994,
"text": "The period of detention of accused in judicial custody is set off as against the sentence imposed against him, as required under Sec.428 of Cr.P.C.\n "
}
},
{
"from_name": null,
"id": "de1d0a04a72a4014b6ea41323deb70b9",
"to_name": null,
"type": null,
"value": {
"end": 40336,
"labels": [
"RPC"
],
"start": 40143,
"text": "Out of the fine amount collected, Rs.80,000/ (Rupees Eighty thousand only) shall be paid to the Legal Representatives of the deceased Shivamma by way of compensation under Sec.357A of Cr.P.C.\n "
}
},
{
"from_name": null,
"id": "4e265e04d7044325991a7547f8ca7422",
"to_name": null,
"type": null,
"value": {
"end": 40342,
"labels": [
"RPC"
],
"start": 40336,
"text": "Office"
}
},
{
"from_name": null,
"id": "afbb5a041e034b8c83d1a9da167f1aaf",
"to_name": null,
"type": null,
"value": {
"end": 40418,
"labels": [
"RPC"
],
"start": 40343,
"text": "is directed to furnish free copy of this judgment to the accused forthwith."
}
},
{
"from_name": null,
"id": "0e7b60e4abc64768a57cd29550aa0653",
"to_name": null,
"type": null,
"value": {
"end": 40576,
"labels": [
"NONE"
],
"start": 40418,
"text": "\n [Dictated to the Stenographer directly on computer, corrected and signed by me, then order pronounced in the Open Court, on this the 9th day of July, 2019]."
}
},
{
"from_name": null,
"id": "6d69c33714c747fbb560409bf4a3af85",
"to_name": null,
"type": null,
"value": {
"end": 40600,
"labels": [
"NONE"
],
"start": 40578,
"text": "[HOSAMANI PUNDALIK] IV"
}
},
{
"from_name": null,
"id": "03a3ade1890046158460aab0e017c938",
"to_name": null,
"type": null,
"value": {
"end": 40641,
"labels": [
"NONE"
],
"start": 40601,
"text": "Addl. District & Sessions Judge, Mysuru."
}
},
{
"from_name": null,
"id": "6fb0511b981848a982854f1be546aef7",
"to_name": null,
"type": null,
"value": {
"end": 40703,
"labels": [
"NONE"
],
"start": 40643,
"text": "ANNEXURE List of witnesses examined for the Prosecution: PW."
}
},
{
"from_name": null,
"id": "51ce8c874c9f4b1eb1c588536ba1eedd",
"to_name": null,
"type": null,
"value": {
"end": 40719,
"labels": [
"NONE"
],
"start": 40704,
"text": "1. Kumara PW."
}
},
{
"from_name": null,
"id": "5e641eeea74146f5a92bb37d28c0019e",
"to_name": null,
"type": null,
"value": {
"end": 40736,
"labels": [
"NONE"
],
"start": 40720,
"text": "2. Shwetha PW."
}
},
{
"from_name": null,
"id": "14f2cb1babe349ddb76865c01ec4927d",
"to_name": null,
"type": null,
"value": {
"end": 40755,
"labels": [
"NONE"
],
"start": 40737,
"text": "3. Malagamma PW."
}
},
{
"from_name": null,
"id": "24577198e0e84d8db1948c2774619c86",
"to_name": null,
"type": null,
"value": {
"end": 40774,
"labels": [
"NONE"
],
"start": 40756,
"text": "4. Doreswamy PW."
}
},
{
"from_name": null,
"id": "009cf1029ac646baa93b5a34cf4371bd",
"to_name": null,
"type": null,
"value": {
"end": 40790,
"labels": [
"NONE"
],
"start": 40775,
"text": "5. Ramesh PW."
}
},
{
"from_name": null,
"id": "2961b431a8824acea9470cf136439b1a",
"to_name": null,
"type": null,
"value": {
"end": 40807,
"labels": [
"NONE"
],
"start": 40791,
"text": "6. Sakamma PW."
}
},
{
"from_name": null,
"id": "17698100199c434ba9d26ca72c8f427f",
"to_name": null,
"type": null,
"value": {
"end": 40824,
"labels": [
"NONE"
],
"start": 40808,
"text": "7. Kalamma PW."
}
},
{
"from_name": null,
"id": "37e94dd8b8b048ef9649ec5ba8f8a162",
"to_name": null,
"type": null,
"value": {
"end": 40842,
"labels": [
"NONE"
],
"start": 40825,
"text": "8. Nagendra PW."
}
},
{
"from_name": null,
"id": "110b69a6103e4440b5a822759fd30da1",
"to_name": null,
"type": null,
"value": {
"end": 40878,
"labels": [
"NONE"
],
"start": 40843,
"text": "9. Siddarama @ Siddaramegowda PW."
}
},
{
"from_name": null,
"id": "d07a56de78c64c909443ce332c91791f",
"to_name": null,
"type": null,
"value": {
"end": 40902,
"labels": [
"NONE"
],
"start": 40879,
"text": "10. Dr. Somashekar PW."
}
},
{
"from_name": null,
"id": "002c2c9b54a04ff2b1e0417f2c01b5e5",
"to_name": null,
"type": null,
"value": {
"end": 40929,
"labels": [
"NONE"
],
"start": 40903,
"text": "11. Dr. Chandrashekar PW."
}
},
{
"from_name": null,
"id": "98a7ea37f34948fa8da7df7bb38f87df",
"to_name": null,
"type": null,
"value": {
"end": 40954,
"labels": [
"NONE"
],
"start": 40930,
"text": "12. Dr. Anil Sangli PW."
}
},
{
"from_name": null,
"id": "1b37060053af4bc88057ce3fb4fcefd5",
"to_name": null,
"type": null,
"value": {
"end": 40979,
"labels": [
"NONE"
],
"start": 40955,
"text": "13. Dr. Dayanad R.\n PW."
}
},
{
"from_name": null,
"id": "cbaf26eb7e91479e9c5f517411da80a2",
"to_name": null,
"type": null,
"value": {
"end": 41001,
"labels": [
"NONE"
],
"start": 40980,
"text": "14. Chandra PW. 15."
}
},
{
"from_name": null,
"id": "22fd1433b7624044ab3e7fd452adcdcb",
"to_name": null,
"type": null,
"value": {
"end": 41016,
"labels": [
"NONE"
],
"start": 41002,
"text": " Jagadish PW."
}
},
{
"from_name": null,
"id": "71a66ed4db6246f28f55578a98a14434",
"to_name": null,
"type": null,
"value": {
"end": 41038,
"labels": [
"NONE"
],
"start": 41017,
"text": "16. Kareem Ravathar"
}
},
{
"from_name": null,
"id": "e776ff90f86f4dec98bd0eab5f9a1b2c",
"to_name": null,
"type": null,
"value": {
"end": 41138,
"labels": [
"NONE"
],
"start": 41039,
"text": "List of witnesses examined for the accused : - NIL - List of documents marked for the Prosecution :"
}
},
{
"from_name": null,
"id": "fae6c21065e2477cb5bb8cc2347b19cd",
"to_name": null,
"type": null,
"value": {
"end": 42791,
"labels": [
"NONE"
],
"start": 41139,
"text": "Ex.P. 1 Complaint Ex.P.\nEx.P. 1(a) Signature of PW.1 Ex.P.\nEx.P. 1(b) Signature of PW.15 Ex.P.\nEx.P. 2 Mahazar Ex.P.\nEx.P. 2(a) Signature of PW.2 Ex.P.\nEx.P. 2(b) Signature of PW.14 Ex.P. 2(c) Signature of PW.16 Ex.P.\nEx.P. 3 Mahazar Ex.P.\nEx.P. 3(a) Statement of PW.3 Ex.P.\n 4 Inquest Mahazar Ex.P.\nEx.P. 4(a) & Signature of PW.4 Ex.P. (b) Ex.P.\nEx.P. 4(c) Signature of PW.16 Ex.P.\nEx.P. 5 F.S.L. Report 5(a) Signature of PW.10 5(b) Signature of Sujatha K.M.\n 6 FSL Report 6(a) & Signature of PW.11 (b) 6(c) Sample seal 7 Medical record 7(a) Signature of PW.12 8 P.M. Report 8(a) Signature of PW.13 9 Doctor's Report 9(a) Signature of PW.13 Ex.P. 10 Mahazar Ex.P. 10(a) Signature of PW.14 Ex.P. 10(b) Signature of Krishnamurthy Ex.P. 10(c) Signature of PW.16 Ex.P. 11 FIR Ex.P. 11(a) Signature of PW.15 Ex.P. 12 Voluntary statement of the accused Ex.P. 12(a) Signature of the accused Ex.P. 12(b) Signature of PW.16 Ex.P. 12(c) Portion of voluntary statement Ex.P. 13 Rough sketch Ex.P. 13(a) Signature of PW.16 List of documents marked for the accused : Ex.D. 1 Statement under 161 Cr.P.C. of PW.8 Ex.D. 1(a) Portion of 161 Cr.P.C. statement of PW.8 Ex.D. 1(b) Portion of 161 Cr.P.C. statement of PW.8 Ex.D. 2 Statement under 161 Cr.P.C. of PW.9 Ex.D. 2(a) Portion of 161 Cr.P.C. statement of PW.9 Ex.D. 2(b) Portion of 161 Cr.P.C. statement of PW.9 List of Material objects : MO. 1 Wooden Repees MO. 2 Lungi MO. 3 Blood stained mud MO. 4 Non-blood stained mud [HOSAMANI PUNDALIK] IV Addl. District & Sessions Judge, Mysuru.\n gkc/*"
}
}
]
}
] | 4,236 | {
"text": "IN THE COURT OF THE IV ADDL DISTRICT AND\n SESSIONS JUDGE, MYSURU\n\n :: PRESENT ::\n\n Sri Hosamani Pundalik,\n IV Addl. District & Sessions Judge,\n\n Mysuru.\n \\\n\n SC.No.40/2018\n\n Dated this the 8th day of July, 2019\n\nComplainant:\n\n State by Jayapura Police\n\n (Rep. By Public Prosecutor)\n\n Versus\n\nAccused:\n\n Basappa,\n S/o late Basavegowda,\n Aged 52 years,\n Resident of D. Salundi Village,\n Mysuru District.\n\n (By Smt. V.Mythili., Advocate)\n\n1. Date of offence : 01.09.2017\n\n2. Date of report of offence : 02.09.2017\n\n3. Arrest of the accused\n\n Arrested on : 03.09.2017\n\n Remanded to JC : 03.09.2017\n\n Released on : Accused is in JC\n\n Period of custody : Year/s, Month/s, Day/s\n\n For Accused 01 10 05\n\n\n4. Name of the complainant : Kumara\n\n5. Date of commencement of : 03.08.2018\n recording of evidence\n\n6. Date of closing of evidence : 30.05.2019\n\n7. Offences complained of : U/sec.302 of Indian Penal\n Code\n\n8. Opinion of the Judge : The accused found guilty of\n the offence U/sec.302 of\n Indian Penal Code.\n\n *~*~*\n\nJ U D G M E N T\n This is a charge sheet filed by the Circle Inspector, Mysuru Rural Circle, Mysuru against the accused for the offence punishable U/sec.302 of Indian Penal Code.\n 2. The case of the prosecution in brief is as under: That on 01.09.2017 at about 11.00 a.m. the deceased Shivamma came to the house of the accused who is her brother, for bringing food as husband of her sister was admitted in the hospital, as such when Shivamma requested for providing prepared food, at that time accused picked up quarrel with Shivamma in respect of property and assaulted Shivamma with Repees patti (wooden plank) on her head, to which she has sustained grievous injuries with bleeding and lost her conscious, immediately she was shifted to Aravinda Hospital, Mysuru and on the way while shifting to NIMHANS Hospital, Bengaluru she died on 02.09.2017 at about 4.30 a.m. Thereafter sister's son of the accused by name Kumara lodged first information before the police about the alleged incident in question. On the basis of said information a crime came to be registered in Cr.No.145/2017 of Jayapura Police Station. The F.I.R.\nwas submitted to the jurisdictional Judicial Magistrate.\nThereafter, the Investigating Officer went to the K.R.\nHospital and conducted Inquest panchanama and arrested the accused and recorded confessional statement of the accused and thereafter he went to the spot with the accused and conducted spot panchanama and seized material objects under cover of panchanama and also conducted another seizure panchanama at the instance of the accused and seized Repees Patti (wooden plank) and recorded the statement of witnesses and obtained Post Mortem report, FSL report and after completion of the investigation the I.O. has filed the present charge sheet against the accused for the offence punishable under Sec.302 of IPC.\n 3. After filing of the chargesheet, as there are sufficient grounds to proceed against the accused, the cognizance of the offence alleged against the accused was taken by the Learned Magistrate. The accused is in judicial custody and he is represented by the Advocate.\nThe Learned Magistrate has also furnished the copies of the prosecution papers to the accused as required U/sec.207 of Cr.P.C.\n 4. As the offence punishable U/sec.302 of Indian Penal Code is exclusively triable by the Court of Sessions, the Learned Magistrate has committed the case to the Sessions Court by exercising his powers U/sec.209 of Cr.P.C.\n 5. After receipt of records the learned Prl. District & Sessions Judge, Mysuru made over the present case to this court for disposal in accordance with law. The accused secured before the court by issuing intimation to the Jail Authority for production of the accused before the court and he is represented by the counsel.\n 6. After hearing the Learned Public Prosecutor and that of the learned counsel for the accused. As there are sufficient material available on record, my learned Predecessor has framed the charge U/sec.302 of Indian Penal Code against the accused and the same was read over and explained to accused and he pleaded not guilty and claims to be tried.\n 7. In order to prove its case, the prosecution has examined in all 16 witnesses as PW.1 to PW.16 and got marked as many as 13 documents as Ex.P.1 to P.13 and four material objects as MO.1 to 4 and closed the side.\n 8. After closure of the evidence on the side of the prosecution, the statement of accused as required U/sec.313 of Cr.P.C., has been recorded to enable the accused to explain the incriminating evidence appearing against him in the case of the prosecution. The case of the accused is of total denial and he has not chosen to lead any oral evidence and in support of his defence in the present case he has got marked Ex.D1 Statement under Sec.161 Cr.P.C. of Nagendra (PW.8) and Ex.D2 Statement under Sec.161 Cr.P.C. of Siddarama (PW.9).\n 9. Thereafter, I have heard the arguments advanced by the Learned Public Prosecutor for the State and that of the learned counsel for the accused at length and perused the records.\n 10. The points that would arise for my consideration in this case are as under: 1. Whether the prosecution proves beyond all reasonable doubt that, on 01.09.2017 at about 11.00 a.m. at the house of accused, the accused assaulted Shivamma with Repees patti (wooden plank) on her head, to which she sustained bleeding grievous injures and lost her conscious and died on the way to NIMHANS Hospital on 02.09.2017 at about 4.30 a.m. and the accused committed murder by intentionally and knowingly causing the death of Shivamma and thereby committed an offence punishable under Sec.302 of IPC?\n 2. What Order ?\n 11. My findings to the above points are as under: Point No.1 : In the Affirmative Point No.2 : As per the final order, for the following: :: R E A S O N S :: 12. Point No.1: As already pointed out by me the Prosecution has examined as many as 16 witnesses and got marked 13 documents as Ex.P1 to Ex.P13 and four MOs as MO.1 to 4. PW.1 Kumara, first informant who has lodged the first information before the police and eye witness to the alleged incident. PW.2 Shwetha, daughterinlaw of the accused and eyewitness to the alleged incident . PW.3 Malagamma neighbour and eyewitness to the alleged incident. PW.4 Doreswamy, pancha to the inquest panchanama of Shivamma. PW.5 Ramesha, son of the deceased Shivamma and hear say witness. PW.6 Sakamma, wife of Ramesh and daughterinlaw of deceased Shivamma and hear say witness. PW.7 Kalamma, sister of the accused and hear say witness. PW.8 Nagendra son of the accused and husband of Shweatha and hear say witness. PW.9 Siddarama @ Siddaramegowda, son of the accused and eyewitness to the alleged incident. PW.10 Dr.\nSomashekar, Scientific Officer, RFSL, who examined the viscera. PW.11 Dr. Chandrashekar, Assistant Director, RFSL, who examined the Material Objects. PW.12 Dr.\nAnil Sangli, who treated the injured at initial stage in Aravinda Hospital. PW.13 Dr. Dayanand R., who conducted post mortem. PW.14 Chandra M., pancha to the inquest panchanama Ex.P.4, spot panchanama Ex.P.2 and seizure of MO.1 to 4 and seizure panchanama of Repees patti as per Ex.P.10. PW.15 Jagadeesha C., ASI, who registered the case. PW.16 Kareem Ravathar, Investigation Officer, who conducted investigation and filed the charge sheet. The details of Ex.P1 to Ex.P13, MO.1 to 4 and Ex.D1 and Ex.D2 are given in the annexure to this judgment.\n 13. The learned Public Prosecutor for the state has submitted that the oral and documentary evidence adduced by the prosecution are sufficient to bring home the alleged guilt of the accused and prayed for convicting the accused.\n Per contra, it is contended by the learned counsel for the accused that the prosecution has failed to prove beyond all reasonable doubt that the accused has committed an offence alleged against him. Further contended that there is a contradiction and omissions in the evidence adduced by the prosecution and prayed for acquittal of the accused by relying on the judgment reported in 2012 Crl.L.J.293 in the case of Ganeshi Paswan and another Vs. State of Jharkhand, wherein the Hon'ble Jharkahand High Court has held that: Vital contradictions in evidence of eyewitnesses Difference was relating to presence of eyewitnesses Fardbeyan was recorded after about 5 hours of time of occurrence But manner of occurrence as stated by witnesses was not disclosed in F.I.R. Post Mortem conducted with ante mortem injuries Accused deserve benefit of doubt.\nAnother decision reported in 2011 Crl.L.J. 4338 in the case of Sayaji Hanmat Bankar Vs. State of Maharashtra, wherein the Hon'ble Supreme Court has held that : Sudden fight Quarrel ensuing between accused and wife as soon as he entered house in drunken condition Accused thereupon first threw water pot and then burning lamp on deceased wife Wife getting 70% burns because of nylon saree worn by her Death resulted because of sudden fight, without premeditation Accused liable to be convicted under S.304, Part I and not for murder.\n 14. Now we shall turn out attention to the evidence adduced by the prosecution. Now coming to the evidence of PW.1, PW.1 Kumara is sister's son of the accused and eyewitness to the alleged incident. PW.1 in his evidence has stated that accused is his maternal uncle and he is residing in D. Salundi village. Further he has stated that on 01.09.2017 he had been to the house of accused at that time his aunt by name Shivamma also came to the house of accused to take food to the husband of her sister, who was admitted in the hospital.\nFurther PW.1 in his evidence has stated that when his auntShivamma requested to provide prepared food or else to give money to buy the food, for which accused picked up quarrel with Shivamma in respect of property matter and assaulted with repees patti (wooden plank) on her head and caused bleeding injuries and she fell down and lost her conscious and blood oozed out from her nose, ear and mouth, at that time himself, son of accused by name Siddarama and daughterinlaw Shwetha were present, said Shwetha brought one lungi cloth and tied it to head of Shivamma and they shifted the injured to Aravinda Hospital in Ambulance but she was referred to NIMHANS Hospital, Bengaluru for further treatment and hence they informed the same to the Nagendra, who is another son of accused, thereafter Nagendra and his mother came to the hospital and then they proceeded to Bengaluru but the doctors of NIMHANS hospital after examining Shivamma in the Ambulance declared that she was dead, then the dead body of Shivamma was kept in mortuary of K.R. hospital and then he went to the police station and lodged first information. PW.1 identified MO.1 Repees patti (wooden plank). Nothing is elicited in the cross examination of PW.1 made on behalf of the accused to disbelieve his evidence. The evidence of PW.1 is cogent, convincing and reliable evidence and I have no reason to disbelieve his evidence.\n 15. PW.2 Shwetha, who is the daughterinlaw of the accused and eyewitness to the alleged incident, who tied lungi (cloth) to the deceased Shivamma. PW.2 in her evidence has stated that PW.1 is her uncle, accused is her fatherinlaw and accused had two wives and that the first wife of accused by name Leelavathi @ Beeramma died since 25 years back and second wife by name Siddamma is alive. Further she has stated that accused had 3 children, they are Nagendra (who is her husband), Revanna and Siddaramu. Further PW.2 has stated that accused had 4 sisters, deceased Shivamma is his elder sister and they had quarrel with respect to property matter and the civil case was ended in conciliation but all the sisters used to come to the house of accused. On 01.09.2017 at about 10.30 11.00 a.m. when PW.2, accused and Siddarama were in the house at that time PW.1 Kumara came to see her son and deceased Shivamma also came to take food to the husband of her sister, who was hospitalised, at that time Shivamma requested to provide prepared food or else to give money to buy the food, for which accused picked up quarrel with Shivamma in respect of property matter and assaulted with repees patti (wooden plank) on her head and caused bleeding injuries and she fell down and lost her conscious and blood oozed out from her nose, ear and mouth. PW.2 has further stated that at that time the son of accused by name Siddarama and herself were present, then she tied lungi (cloth) to the head of Shivamma, then accused on seeing the blood went away thereafter PW.1 and Siddarama called Ambulance and took her to Aravinda hospital but they referred to NIMHANS hospital. There the doctors examined Shivamma in the Ambulance and declared the death of Shivamma. Thereafter they came back to Mysuru and the dead body was kept in the mortuary of K.R. hospital and she has identified MO.1 Repees patti and MO.2 lungi. Further PW.2 in her evidence has stated that on 03.09.2017 at about 12.30 1.00 p.m. police have brought the accused near the house and accused showed the place of incident to the police, at that time police have collected blood stained mud and nonblood stained mud. Thereafter, she handed over lungi (cloth) which was tied to deceased Shivamma's head and police have seized the same under the cover of mahazar Ex.P.2.\nCW.5, 6 & accused have signed to the Ex.P.2 Mahazar.\nPW.2 has identified MO.3 blood stained mud and MO.4 nonblood stained mud. Nothing is elicited in the crossexamination of PW.2 made on behalf of the accused to disbelieve her evidence. The evidence of PW.2 is cogent, convincing and reliable evidence and I have no reason to disbelieve his evidence.\n 16. PW.3 Malagamma, who is neighbour and eye witness to the alleged incident. PW.3 in her evidence has stated that she knows PW.1 and 2 and also accused and her house is near to the house of accused. PW.3 has stated in her evidence that accused had two wives, three children and four sisters. Deceased Shivamma is the elder sister of the accused. PW.3 has stated in her evidence that about 3 years 1 month back to the date of incident quarrel was taking place with Shivamma and she intervened and advised accused not to quarrel, but the accused took Repees patti (wooden plank) and assaulted Shivamma with Repees patti (wooden plank) on her head and she sustained injuries. PW.2 Shwetha tied lungi (cloth) to the head of Shivamma, thereafter herself, son of the accused and others shifted the injured to the hospital and thereafter injured was shifted to Bengaluru but Shivamma did not survive and she attended the funerals. PW.3 identified MO.1 Repees patti (wooden plank) and MO.2 lungi (cloth). Nothing is elicited in the crossexamination of PW.3 made on behalf of the accused to disbelieve her evidence. The evidence of PW.3 is cogent, convincing and reliable evidence and I have no reason to disbelieve his evidence.\n 17. PW.9 Siddarama @ Siddaramegowda, who is the son of the accused and eyewitness to the alleged incident. PW.9 in his evidence has stated that accused is his father and accused had two wives, his mother name is Leelavathi @ Beeramma and she had three children, all of them are married and his brothers are drivers and he was doing agriculture. His father has got four sisters and he has got landed property, to which sisters have questioned regarding sale of landed property, to which there was no cordial relationship between his father and sisters. CW.9 is his aunt and she is elder sister of accused. Husband of CW.9 was admitted in Sanitarium hospital. PW.9 further in his evidence has stated that about 1 years back, his aunt Shivamma came to the house from hospital to take food and requested the accused to provide prepared food or else to give money to buy the food, for which accused picked up quarrel with Shivamma in respect of property matter and assaulted with repees patti (wooden plank) on her head and caused bleeding injuries and she fell down and lost her conscious and blood oozed out from her nose, ear and mouth and his sisterinlaw tied lungi (cloth) to the head of Shivamma. PW.9 has specifically stated that because of property dispute the accused assaulted to Shivamma with Repees Patti (wooden plank) and himself, PW.1, 2 & 3 were present at the time of incident and took her to Aravinda hospital and thereafter PW.1, 7 & 8 took her to NIMHANS hospital and he came to know about the death of Shivamma through phone by his brother at about 5.00 to 6.00 a.m. Thereafter, PW.1 went to the police station and lodged first information. PW.9 further in his evidence has specifically stated that because of the property dispute accused assaulted Shivamma and died due to head injury and he has identified MO.1 Repees patti (wooden plank). On careful perusal of this evidence, it can be said that the property dispute is the motive for the accused to assault Shivamma. PW.9 in his evidence denied the statement Ex.D2(a) that his mother died 25 years back and also denied Ex.D2(b) that civil case ended with the mediation of lawyer. These contradictions are not material contradictions and are not going to effect the case of the prosecution. Nothing is elicited in the crossexamination of PW.9 made on behalf of the accused to disbelieve his evidence. The evidence of PW.9 is cogent, convincing and reliable evidence and I have no reason to disbelieve his evidence.\n 18. PW.5 Ramesh, son of the deceased Shivamma.\nPW.8 in his evidence has stated that about 2 years back his mother went to see the Marigowda, who is admitted in the hospital and thereafter he went to the house of accused and there he came to know that the accused assaulted to his mother in respect of property dispute and she was admitted to Aravinda hospital and thereafter she was shifted to Bengaluru, there she died and then dead body of Shivamma was shifted to mortuary of K.R.\nHospital. PW.6 Sakamma, wife of PW.5 and daughter inlaw of deceased Shivamma. PW.6 in her evidence has stated that about 1 years back her motherinlaw went to see the Marigowda, who is admitted in the hospital and thereafter she went to the house of accused and there she came to know that the accused assaulted to her motherinlaw in respect of property dispute and she was admitted to Aravinda hospital and thereafter she was shifted to Bengaluru, there she died and then dead body of Shivamma was shifted to mortuary of K.R.\nHospital. PW.7 Kalamma, who is sister of accused and deceased Shivamma. PW.7 in her evidence has stated that about 1 year back, she came to know that the accused assaulted to her sister Shivamma and she was admitted to Aravinda hospital and thereafter she was shifted to NIMHANS Hospital, Bengaluru, there she died and then dead body of Shivamma was shifted to mortuary of K.R. Hospital. PW.8 Nagendra, son of the accused and husband of PW.2 and brother of PW.9. PW.8 in his evidence has stated that about 1 year back his aunt Shivamma came to his house to take food and there was quarrel between his aunt Shivamma and his father (accused) and he assaulted her with Repees Patti (wooden plank) in respect of property, to which she sustained injuries. Then Shivamma was admitted to Aravinda hospital and thereafter she was shifted to Bengaluru, there she died and then dead body of Shivamma was shifted to mortuary of K.R. Hospital.\nPW.5 to 8 are hear say witnesses and they have supported the case of the prosecution. PW.8 in his evidence denied the statement Ex.D1(a) that civil case ended with the mediation of lawyer and also denied the statement Ex.D1(b) that the accused married to Siddamma after the death of his mother about 25 years back. These contradictions are not material contradictions and are not going to effect the case of the prosecution.\n 19. PW.4 Doreswamy, pancha to the inquest panchanama of Shivamma. PW.4 in his evidence has stated that about one year back at mortuary of K.R.\nHospital the police have conducted inquest of deceased Shivamma as per Ex.P.4 and further he has stated that deceased Shivamma died as the accused assaulted her in respect of property. Nothing is elicited in the cross examination of PW.4 made on behalf of the accused to disbelieve her evidence. The evidence of PW.4 is cogent, convincing and reliable evidence and I have no reason to disbelieve his evidence.\n 20. PW.14 Chandra M, pancha to the inquest panchanama of deceased Shivamma, spot panchanama and also seizure panchanama. PW.14 in his evidence has stated that on 02.09.2017 deceased Shivamma died and police have conducted inquest panchanama of deceased Shivamma as per Ex.P.4 and obtained his signature and further stated that there was injury on the head of dead body. Further PW.14 in his evidence stated that on 03.09.2017 the police have conducted spot panchanama as per Ex.P.2 and seized MO.2 to 4 and further in his evidence stated that the police have also conducted seizure panchanama as per Ex.P.10 near Mount Litera convent at the instance of the accused and seized MO.1 Repees Patti (wooden plank). Nothing is elicited in the crossexamination of PW.14 made on behalf of the accused to disbelieve his evidence.\n 21. PW.10 Dr. Somashekar, Scientific Officer, RFSL has stated in his evidence that he has received item No.1 Stomach, small intestine and its contents, item No.2 portion of liver and kidney, item No.3 blood, item No.4 satuarated solution of sodium chloride as preservative and he opined in his evidence that Residues of volatile poisons, ethyl alcohol, pesticides, barbiturates, benzodiazepine group of drugs, toxic metal ions and anions were not detected in all the above stated articles.\n 22. PW.11 Dr. Chandrashekar, Assistant Director, RFSL, Mysuru has stated in his evidence that he has received item No.1 blood stained mud, item No.2 sample mud, item No.3 one lungi, item No.4 Repees patti (wooden plank) and he opined in his evidence that (1) blood stain was detected in article No.1 and 3. (2) blood stain was not detected in item No.2 and 4. (3) Article No.1 and 3 were stained with human blood. (4) Article No.1 and 3 were stained with \"O\" group blood.\n 23. PW.12 Dr. Anil Sangli, Neuro Surgeon. PW.12 in his evidence has stated that on 01.09.2017 at about 3.10 p.m. by name Shivamma admitted in Aravinda Hospital with alleged assault by the younger brother Basappa of the patient around 10.00 a.m. on the same day and she was hit by wooden log on the head as per information by Nagendra and Siddarama. The patient had immediate loss of conscious and injury to head. She was having seizures, was unconscious with a score of E1VTM5 and right sided complete weakness. Her brain scan revealed a left sided extra dural hemorrhage with mid line shift.\nShe was advised emergency surgery. Relatives wanted to take the patient to NIMHANS hospital for further treatment. A perusal of the evidence of the doctor makes it clear that the case history recorded by the doctor to whom deceased was taken for treatment deposing that soon after the deceased was admitted in the hospital, the Nagendra and Siddarama informed that the accused assaulted to Shivamma and the same was noted in the case papers by the doctor. The evidence of the doctor supports to the case of the prosecution and hence it is held that doctor has no reason to falsely depose against the accused or to prepare false case papers and it inspires the confidence of the court.\n 24. PW.13 Dr. Dayanand R., Associate Professor, Department of Forensic Laboratory, MMC, Mysuru.\nPW.13 in his evidence has stated that On 02.09.2017 at 5.00 pm he received requisition from CPI, Mysuru Rural Circle, Jayapura PS to conduct postmortem on the body of deceased Shivamma aged about 60 years. Accordingly, on the same day from 5.00 p.m. to 6.00 pm, he had conducted postmortem of Shivamma. During his examination noted the following injuries; 1. Stapled wound measuring 12cm present over the left parietal area with 21 staples in sito, situated 7cm above the left mastoid process and 2cm left of mid line. On removal of staples and reflection shows extravasation of blood.\n 2. Contusion 4 X 3cm present over the top of the right shoulder.\n PW.13 has opined that the above mentioned injuries are antimortem in nature and has further deposed in his evidence that on dissection he found the following internal injuries; 1. Scalp described. On reflection shows extravasation of blood over the left fronto temporo parietal area and occipital area. Skulldepressed communited fractures over the area of 6X 4cm over the left parietal area. Fissure fracture 7cm present over the left tempro parietal areal. One end joining with previous fracture. Fissure fracture 4cm present over the left side of middle cranial fossa.\n 2. Membraneslacerated corresponding to the fracture site.\n 3. Brain and spinal cord Diffused subdural and subarachnoid hemorrhage present all over. Extra dural hemorrhage present over an area of 10X 8 cm present over left tempro parietal area. All other organs were congested. Blood effused around fracture sites.\n Blood and visra sent to RFSL for chemical analysis.\n On 17.11.2017 after receiving report from RFSL.\n PW.13 has opined that death is due to complications of head injury sustained and has issued PM report as per Ex.P.8. Nothing is elicited in the cross examination of PW.13 by the accused to disbelieve his evidence.\n 25. PW.15 Jagadeesha C., ASI. PW.15 in his evidence has stated that on 02.09.2017 at about 11.00 a.m. when he was incharge of police station, complainant appeared before him and lodged first information. On the basis of said information, a case was registered in Cr.No.145/2017 of Jayapura police station and FIR was submitted to the court as well to his departmental heads and handed over further investigation to the CPI. PW.15 has further stated that he has arrested the accused and produced before CPI.\n 26. PW.16 Kareem Ravatar, CPI. PW.16 in his evidence has stated that on 29.09.2017 at 11.30 a.m. he took further investigation from PW.15 and went to K.R.\nHospital and conducted inquest panchanama as per Ex.P.4 in the presence of witnesses and thereafter on 03.09.2017 at about 8.30 a.m., his subordinates brought the accused before him and he arrested the accused after following necessary procedure as required to be followed under law and recorded confessional statement of the accused as per Ex.P12 and thereafter he has conducted spot panchanama in the presence of panchas and seized MO.2 to 4 as per Ex.P.2 and thereafter he conducted seizure panchanama and seized MO.1 at the instance of the accused as per Ex.P.10 and subjected the property to the property form and thereafter recorded statements of witnesses and also police officials and thereafter he obtained PM report, FSL reports and final opinion of the doctors and after completion of the investigation, has filed the charge sheet against the accused. Nothing is elicited in the crossexamination of PW.16 by the accused to disbelieve his evidence.\n 27. It is the case of the prosecution that on 01.09.2017 at about 11.00 a.m. deceased Shivamma came to the house of the accused who is her brother, for bringing food as husband of her sister was admitted in the hospital, as such when Shivamma requested for providing prepared food, at that time accused picked up quarrel with Shivamma in respect of property dispute and assaulted Shivamma with Repees patti (wooden plank) on her head, to which she has sustained grievous injuries with bleeding, immediately she was shifted to Aravinda Hospital, Mysuru and on the way while shifting to NIMHANS Hospital, Bengaluru she died on 02.09.2017 at about 4.30 a.m. It is pertinent to note that PW.1 to 3 & 9 in their evidence stated that the accused picked up quarrel with Shivamma in respect of property matter and assaulted with repees patti (wooden plank) on her head and caused bleeding injuries and she fell down and lost her conscious and blood oozed out from her nose, ear and mouth and she died due to injuries, therefore it can be held that PW.1 to 3 and 9 had no reasons to falsely depose against the accused, the evidence of PW.1 to 3 & 9 are cogent, convincing & reliable evidence, which inspires the confidence of the court. Nothing is elicited in the crossexamination of PW.1 to 3 & 9 to disbelieve their evidence. Though there are minor discrepancies and contradictions in the evidence they are very negligible.\nUnder these circumstances it is evident that the recovery of MO.1 Repees Patti (wooden plank) at the instance of accused is admissible as provided under Sec.27 of Indian Evidence Act. No doubt motive moves a man to do a particular act and there cannot be any action without motive which must exist for every voluntary act. In the instant case the prosecution has specifically alleged that the accused assaulted Shivamma with Repees Patti (wooden plank) because of property dispute. The fact that the accused murdered the Shivamma by assaulting with Repees Patti (wooden plank) on her head causing bleeding injuries resulting in death and it is evident that his motive was to kill Shivamma. The prosecution is able to establish and proved that the death of Shivamma is homicidal and it is clear case of murder.\n 28. The object and purpose of a statement under Section 313 Cr.P.C. is to notify the accused about the incriminating circumstance appearing in the case against him and also to provide an opportunity to explain about his conduct or version. In the present case on hand all the incriminating circumstances were put to the accused on 20.06.2019. His case was of entire denial and made no statements about his say on the case. In fact he answered in the negative when questioned as to whether he has any thing to say about the case. Opportunity was given to adduce defence evidence but he did not utilize the opportunity. Considering the defence taken by the accused in the case on hand, I am of the opinion that he ought to has furnished his version during recording of 313 Statement and also ought to have adduced his side evidence but he has not adduced his evidence.\n 29. The Hon'ble Supreme Court in case of Sunil Mahadeo Jadhav V/s State of Maharashtra, (2013) 15 SCC 177 has drawn reference to Section 106 of the Evidence Act 1872 which states that when any act is especially within the knowledge of any person, the burden of proving that fact is upon him. The accused had stated nothing in this regard in his statement under Section 313 CrPC and also failed to adduce any evidence in defence to explain his defence.\n 30. The Hon'ble Supreme Court in case of Phula Singh V/s State of H.P reported in (2014) 4 SCC 9 had rejected the submission that prosecution has to establish each and every fact and accused has a right only to maintain silence. Adverse inference was drawn against the accused for not at all trying to explain the incriminating circumstances against him.\n 31. As observed above in the case on hand also the accused had failed to explain the incriminating circumstances brought to his notice during questioning U/s. 313 Cr.P.C. Since he had answered in the Negative when asked about his say about the case, adverse inference can be drawn that the accused had murdered Shivamma by assaulted with Repees Patti (wooden plank) on her head.\n 32. It is pertinent to note that the CPI after registration of the case, took the further investigation on the same day at about 11.30 a.m. and went to the K.R.Hospital and conducted inquest panchanama of deceased Shivamma and arrested the accused and recorded confessional statement as per Ex.P12 and went to the spot with the accused and conducted spot panchanama and seized MOs under cover of panchanama as per Ex.P.2 and also conducted another seizure panchanama as per Ex.P.10 and seized MO.1 at the instance of the accused. It is clear that the Medical Officer, who conducted post mortem and gave evidence as PW.13 has opined that the death is due to complication of head injury. The evidence of Medical Officer and Investigation Officer corroborates to the evidence of eyewitnesses. The ruling relied by the learned counsel for the accused is not going to helpful for the case of the accused.\n 33. It is pertinent to note that the decision in the case of State of Andhra Pradesh Vs. R.Punnayya, reported in AIR 1977 SC 45, wherein the Hon'ble Supreme Court observed that when the Court is confronted with the question whether the offence is 'murder' or culpable homicide not amounting to murder', the problem is to be approached in three stages. The question to be considered at first stage is whether the accused has done an act by doing which he has caused the death of another person. Proof of such casual connection between the act of the accused and the death leads to the second stage for consideration whether that act of the accused amounts to 'culpable homicide' as defined in Section 299.\nIf the answer of this question is prima facie found in the affirmative the stage is reached for considering the operation of Section 300 IP Code. This is the stage at which the Court should determine whether the acts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of \"murder\" contained in Section 300. If the answer to this question is in the negative the offence would be culpable homicide not amounting to murder punishable under the first or the second or the third clause of section 299 is applicable. If the question is found to be positive, but comes within any of the Exceptions enumerated in Section 300, the offence would still be culpable homicide not amounting to murder punishable under the first part of section 304. But sometimes the facts are so intertwined and the second and third stages are so telescoped into each other that it may not be convenient to give a separate treatment to the matters involved in the second and the third stages. Further the acts and circumstances proved by the prosecution brings the case squarely within the ambit of the four clauses of the definition of \"murder' contained in Section 300 IPC.\n 34. It is pertinent to note that PW.1 to 3 and 9 eye witnesses to the alleged incident, in their evidence specifically stated that accused picked up quarrel with Shivamma in respect of property matter and assaulted with repees patti (wooden plank) on her head and caused bleeding injuries and she fell down and lost her conscious and blood oozed out from her nose, ear and mouth and she died due to injuries. The evidence of PW.1 to 3 and 9 corroborated to the evidence of PW.13 Medical Officer and evidence of PW.15 & 16 evidence of Investigating Officers. The evidence of PW.1 to 3 and 9 and PW.7 and PW.13, 15 & 16 pointing out the accused as perpetrator of the crime. PW.1 is the son of the sister of the accused, PW.2 is the daughterinlaw of the accused (wife of the son of the accused), PW.9 is the son of the accused and PW.3 is the neighbour. PW.1 to 3 & 9 are the eyewitnesses to the alleged incident and nothing is elicited in their crossexamination to disbelieve their evidence. Therefore, the evidence of above witnesses are cogent, convincing and reliable evidence and I have no reason to disbelieve their evidence and the evidence of PW.1 to 3 & 9 inspires the confidence of the court.\nFurther the acts and circumstances proved by the prosecution brings the case squarely within the ambit of the four clauses of the definition of murder contained in Section 300 of IPC. Therefore, in the circumstances it can be held that the evidence adduced by the prosecution are sufficient to hold the accused is guilty under Sec.302 of IPC. For the far going reasons, I hold that the prosecution has successfully proved that, the accused has committed the offence alleged against him beyond all reasonable doubt. Hence, I answered Point No.1 in the AFFIRMATIVE.\n 35. Point No.2: In view of my findings on Point No.1, I proceed to pass the following: :: ORDER :: Accused is convicted for the offence punishable U/sec.302 of Indian Penal Code by acting U/sec.235(2) of Cr.P.C.\n MO.1 to 4 are ordered to be destroyed after expiry of the appeal period as same are worthless.\n To hear on sentence by 09.07.2019.\n [Dictated to the Stenographer directly on computer, corrected and signed by me, then order pronounced in the Open Court, on this the 8th day of July, 2019].\n [HOSAMANI PUNDALIK] IV Addl. District & Sessions Judge, Mysuru.\n Dated this the 9th day of July 2019 ORDER REGARDING SENTENCE The accused produced before the Court for hearing regarding sentence.\n 2. I have heard the arguments advanced by the learned counsel for the accused and that of the learned Public Prosecutor for the State regarding sentence. The learned counsel for the accused has submitted that, the accused is aged about 64 years and he has given only one blow without any intention to cause death and he may be imposed with minimum sentence prescribed under law.\n 3. Per contra, learned Public Prosecutor has submitted that the accused committed murder of his own sister and he assaulted to the deceased in respect of property dispute. Hence, he prayed to sentence the accused as provided under Sec.302 of IPC.\n 4. It is pertinent to note that charge sheet reveals that age of the accused is 52 years and the prosecution has proved the guilt of accused for the offence punishable under Sec. 302 of Indian Penal Code. The offence under Sec.302 of Indian Penal Code is punishable with death or imprisonment for life and fine. But, there is no evidence placed on record to show that, it is a rarest of rare case so as to impose death penalty. However, it is evident that the accused had caused the death of his own sister Shivamma by assaulting with Repees Patti (wooden plank) on her head when she came to his house for taking prepared food to provide the same to the husband of her sister who was admitted in the hospital. Under these circumstances, in my considered opinion, it is just and proper to impose punishment of rigorous imprisonment for life with fine of Rs.1,00,000/ (Rupees one lakh only) to the accused for the offence under Sec.302 of IPC, which will serve the purpose to meet the ends of justice.\n 5. In the light of the above discussion, accused is liable to undergo sentences and accordingly, I pass the following; ORDER The accused Basappa is sentenced to undergo Rigorous Imprisonment for life for the offence punishable under Section 302 of I.P.C. and sentenced to pay fine of Rs.1,00,000/ (Rupees one lakh only). In default of payment of fine, he shall undergo simple imprisonment for six months.\n The period of detention of accused in judicial custody is set off as against the sentence imposed against him, as required under Sec.428 of Cr.P.C.\n Out of the fine amount collected, Rs.80,000/ (Rupees Eighty thousand only) shall be paid to the Legal Representatives of the deceased Shivamma by way of compensation under Sec.357A of Cr.P.C.\n Office is directed to furnish free copy of this judgment to the accused forthwith.\n [Dictated to the Stenographer directly on computer, corrected and signed by me, then order pronounced in the Open Court, on this the 9th day of July, 2019].\n [HOSAMANI PUNDALIK] IV Addl. District & Sessions Judge, Mysuru.\n ANNEXURE List of witnesses examined for the Prosecution: PW. 1. Kumara PW. 2. Shwetha PW. 3. Malagamma PW. 4. Doreswamy PW. 5. Ramesh PW. 6. Sakamma PW. 7. Kalamma PW. 8. Nagendra PW. 9. Siddarama @ Siddaramegowda PW. 10. Dr. Somashekar PW. 11. Dr. Chandrashekar PW. 12. Dr. Anil Sangli PW. 13. Dr. Dayanad R.\n PW. 14. Chandra PW. 15. Jagadish PW. 16. Kareem Ravathar List of witnesses examined for the accused : - NIL - List of documents marked for the Prosecution : Ex.P. 1 Complaint Ex.P.\nEx.P. 1(a) Signature of PW.1 Ex.P.\nEx.P. 1(b) Signature of PW.15 Ex.P.\nEx.P. 2 Mahazar Ex.P.\nEx.P. 2(a) Signature of PW.2 Ex.P.\nEx.P. 2(b) Signature of PW.14 Ex.P. 2(c) Signature of PW.16 Ex.P.\nEx.P. 3 Mahazar Ex.P.\nEx.P. 3(a) Statement of PW.3 Ex.P.\n 4 Inquest Mahazar Ex.P.\nEx.P. 4(a) & Signature of PW.4 Ex.P. (b) Ex.P.\nEx.P. 4(c) Signature of PW.16 Ex.P.\nEx.P. 5 F.S.L. Report 5(a) Signature of PW.10 5(b) Signature of Sujatha K.M.\n 6 FSL Report 6(a) & Signature of PW.11 (b) 6(c) Sample seal 7 Medical record 7(a) Signature of PW.12 8 P.M. Report 8(a) Signature of PW.13 9 Doctor's Report 9(a) Signature of PW.13 Ex.P. 10 Mahazar Ex.P. 10(a) Signature of PW.14 Ex.P. 10(b) Signature of Krishnamurthy Ex.P. 10(c) Signature of PW.16 Ex.P. 11 FIR Ex.P. 11(a) Signature of PW.15 Ex.P. 12 Voluntary statement of the accused Ex.P. 12(a) Signature of the accused Ex.P. 12(b) Signature of PW.16 Ex.P. 12(c) Portion of voluntary statement Ex.P. 13 Rough sketch Ex.P. 13(a) Signature of PW.16 List of documents marked for the accused : Ex.D. 1 Statement under 161 Cr.P.C. of PW.8 Ex.D. 1(a) Portion of 161 Cr.P.C. statement of PW.8 Ex.D. 1(b) Portion of 161 Cr.P.C. statement of PW.8 Ex.D. 2 Statement under 161 Cr.P.C. of PW.9 Ex.D. 2(a) Portion of 161 Cr.P.C. statement of PW.9 Ex.D. 2(b) Portion of 161 Cr.P.C. statement of PW.9 List of Material objects : MO. 1 Wooden Repees MO. 2 Lungi MO. 3 Blood stained mud MO. 4 Non-blood stained mud [HOSAMANI PUNDALIK] IV Addl. District & Sessions Judge, Mysuru.\n gkc/* "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "b617b929b4944433bf03726d121e8a3d",
"to_name": null,
"type": null,
"value": {
"end": 50,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nNIMEON SANGMA & ORS.\n\nVs.\n\nRESPONDENT:"
}
},
{
"from_name": null,
"id": "7d3ee30f8beb4c3892edf4822a0fc46e",
"to_name": null,
"type": null,
"value": {
"end": 91,
"labels": [
"PREAMBLE"
],
"start": 50,
"text": "\nHOME SECRETARY, GOVT. OF MEGHALAYA & ORS"
}
},
{
"from_name": null,
"id": "a22eda018e734f2484d639bfcf2d441f",
"to_name": null,
"type": null,
"value": {
"end": 119,
"labels": [
"PREAMBLE"
],
"start": 91,
"text": "\n\nDATE OF JUDGMENT30/04/1979"
}
},
{
"from_name": null,
"id": "56853042b3c84883a8fd50627fad3af0",
"to_name": null,
"type": null,
"value": {
"end": 716,
"labels": [
"PREAMBLE"
],
"start": 121,
"text": "BENCH:\nKRISHNAIYER, V.R.\nBENCH:\nKRISHNAIYER, V.R.\nPATHAK, R.S.\nKOSHAL, A.D.\n\nCITATION: 1979 SCR (3) 785\n 1979 AIR 1518\n 1979 SCC (1) 700\n\nACT: of Justice-Pre-trial detention-\n Administration of cases including investigations and\n 209 & 309 of Criminal Procedure Code,\nExpeditious disposal\ntrials-Sections 167,\n1973.\n\nHEADNOTE:\n In their petition for the issue of a writ of habeas\n\ncorpus, the petitioners alleged illegal detention of a large\nnumber of persons under guise of the judicial process.\n^\n\n HELD : 1."
}
},
{
"from_name": null,
"id": "1ed03e2408c64756b3b10b440d308185",
"to_name": null,
"type": null,
"value": {
"end": 1005,
"labels": [
"PREAMBLE"
],
"start": 717,
"text": "Criminal Justice breaks down at a point when\nexpeditious trial is not attempted while the affected\nparties are languishing in jail. The Criminal Procedure Code\nin Sections 167, 209 and 309 has emphasised the importance\nof expeditious disposal of cases including investigations\nand trials."
}
},
{
"from_name": null,
"id": "563b2bb247574bf3951d966a8c783675",
"to_name": null,
"type": null,
"value": {
"end": 1023,
"labels": [
"PREAMBLE"
],
"start": 1006,
"text": "[786E]\n\n "
}
},
{
"from_name": null,
"id": "cea01848b2ef438095438d1ba820bb1f",
"to_name": null,
"type": null,
"value": {
"end": 1206,
"labels": [
"PREAMBLE"
],
"start": 1023,
"text": "2. The State Government to take a policy decision with\na view to ensure that accused persons, too indigent to set\nin motion the judicial process, do not suffer incarceration\nsilently."
}
},
{
"from_name": null,
"id": "162d2aa078e14bd2b338b4175163f19b",
"to_name": null,
"type": null,
"value": {
"end": 1226,
"labels": [
"PREAMBLE"
],
"start": 1207,
"text": "[787B]\n\n 3."
}
},
{
"from_name": null,
"id": "9093a2d697c9448c9153636f21584133",
"to_name": null,
"type": null,
"value": {
"end": 1503,
"labels": [
"PREAMBLE"
],
"start": 1227,
"text": "The Government will do well to comply with the\nspirit of the Code of Criminal Procedure especially in the\nmatter of persons sought to be bound over for good\nbehaviour, persons against whom summons cases are pending\nand persons who have been in custody for more than six\nmonths"
}
},
{
"from_name": null,
"id": "d0fd73aec2aa49648cde48047817f4ea",
"to_name": null,
"type": null,
"value": {
"end": 1658,
"labels": [
"PREAMBLE"
],
"start": 1504,
"text": "This will involve a mass release from jails, but\nGovernment has to pay homage in substance and reality to the\nprovisions of the Constitution and the Code."
}
},
{
"from_name": null,
"id": "06e87244acd0414480185305af3ee530",
"to_name": null,
"type": null,
"value": {
"end": 1880,
"labels": [
"PREAMBLE"
],
"start": 1659,
"text": "[787C]\n\n The Court directed that :-\n (a) The State do consent to release all persons who\nhave been in custody for over six months and whose trials\nhave not commenced or against whom charge sheets have not\n"
}
},
{
"from_name": null,
"id": "3ee5cfdc40714055bcef132ce2bca3aa",
"to_name": null,
"type": null,
"value": {
"end": 1889,
"labels": [
"PREAMBLE"
],
"start": 1880,
"text": "been laid"
}
},
{
"from_name": null,
"id": "6c0d62a6fc924712b624ce5fd3795c23",
"to_name": null,
"type": null,
"value": {
"end": 1948,
"labels": [
"PREAMBLE"
],
"start": 1890,
"text": "excepting in those cases under Sections 302 and\n395 I.P.C."
}
},
{
"from_name": null,
"id": "23bc3a5ad32f48cea6439c65a36e303a",
"to_name": null,
"type": null,
"value": {
"end": 2074,
"labels": [
"PREAMBLE"
],
"start": 1949,
"text": "[786G]\n (b) The State shall complete investigation within two\nmonths in cases where charge sheets have not been laid."
}
},
{
"from_name": null,
"id": "cd5d27856f0b46c2858efa07fa42b520",
"to_name": null,
"type": null,
"value": {
"end": 2233,
"labels": [
"PREAMBLE"
],
"start": 2074,
"text": "\n[786H]\n (c) The Sessions Court concerned should dispose of the\ncases where chargesheets have been laid and commitment has\nbeen made within six months."
}
},
{
"from_name": null,
"id": "6ce94eacd09c4e64870eafe54ba1aefd",
"to_name": null,
"type": null,
"value": {
"end": 2307,
"labels": [
"PREAMBLE"
],
"start": 2233,
"text": "\n\n [786H]\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "9d9df671bddd4b9a806f04fbcc449e89",
"to_name": null,
"type": null,
"value": {
"end": 2423,
"labels": [
"NONE"
],
"start": 2317,
"text": "CRIMINAL ORIGINAL JURISDICTION : Writ Petition No. 211 of 1979.\n K. Hingorani for the Petitioners."
}
},
{
"from_name": null,
"id": "65b7d97f4376496a9d7a1f78c4116d99",
"to_name": null,
"type": null,
"value": {
"end": 2469,
"labels": [
"NONE"
],
"start": 2423,
"text": "\n D. N. Mukherjee for the Respondents."
}
},
{
"from_name": null,
"id": "6e4defcd27bd4644921571bbeba370ff",
"to_name": null,
"type": null,
"value": {
"end": 2536,
"labels": [
"NONE"
],
"start": 2469,
"text": "\n The Order of the Court was delivered by KRISHNA IYER, J.-"
}
},
{
"from_name": null,
"id": "517f8e0d49cc42b8bd7a185bef2ee35a",
"to_name": null,
"type": null,
"value": {
"end": 2701,
"labels": [
"FAC"
],
"start": 2536,
"text": "This is a petition for the issuance of a writ of habeas corpus in view of alleged illegal detention of a large number of persons under guise of the judicial process."
}
},
{
"from_name": null,
"id": "a9fdc03237ea48c99f30a4539314d50b",
"to_name": null,
"type": null,
"value": {
"end": 3019,
"labels": [
"ANALYSIS"
],
"start": 2701,
"text": "\n Even without going into details, we are satisfied that petitioners Nos. 3 and 4 should be released on their own bonds to the satisfaction of the trial court subject to their reporting to the nearest police station once every fortnight and appearing in court whenever called upon to do so to take their trial."
}
},
{
"from_name": null,
"id": "6fe8b669a4374720bd2ae264aca86a54",
"to_name": null,
"type": null,
"value": {
"end": 3042,
"labels": [
"ANALYSIS"
],
"start": 3020,
"text": "We direct accordingly."
}
},
{
"from_name": null,
"id": "666a2b279a144601b5bcf6e63cf6654b",
"to_name": null,
"type": null,
"value": {
"end": 3186,
"labels": [
"ANALYSIS"
],
"start": 3042,
"text": "\n So far as petitioner No. 1 is concerned, the State in its affidavit swear that there is no such person in custody in connection with any case."
}
},
{
"from_name": null,
"id": "c2b646305c4142dfbab306e8f4db6ad6",
"to_name": null,
"type": null,
"value": {
"end": 3328,
"labels": [
"ANALYSIS"
],
"start": 3187,
"text": "This matter will be scrutinised further by the State so that it may satisfy itself that no one is in custody except under due process of law."
}
},
{
"from_name": null,
"id": "bb2c6281a974425daf0df83e2cd11f90",
"to_name": null,
"type": null,
"value": {
"end": 3578,
"labels": [
"ANALYSIS"
],
"start": 3328,
"text": "\n This Court in its earlier order dated March 5, 1979 has directed the State to file a statement containing particulars of the under-trial prisoners who have been confined in Jail for a period of over six months without their trials having commenced."
}
},
{
"from_name": null,
"id": "ed35eb1fd9234a3b905bbbaeab027a48",
"to_name": null,
"type": null,
"value": {
"end": 3739,
"labels": [
"ANALYSIS"
],
"start": 3579,
"text": "Further details as to the ages of such under-trials, the dates from which they were confined and the offences with which they were charged were also called for."
}
},
{
"from_name": null,
"id": "ec9aba5fa7c64473be2bf1e66285888e",
"to_name": null,
"type": null,
"value": {
"end": 3941,
"labels": [
"ANALYSIS"
],
"start": 3740,
"text": "In the reply statement put in by the respondent, we find a large number of cases where detention for considerable periods, without the trial having even commenced, is being suffered by various persons."
}
},
{
"from_name": null,
"id": "b58d68c88d644f41bb3ef8a42a9f736e",
"to_name": null,
"type": null,
"value": {
"end": 4074,
"labels": [
"ANALYSIS"
],
"start": 3942,
"text": "Criminal justice breaks down, at a point when expeditious trial is not attempted while the affected parties are languishing in jail."
}
},
{
"from_name": null,
"id": "96837f94c3874aca84462cf3dbbbc948",
"to_name": null,
"type": null,
"value": {
"end": 4231,
"labels": [
"ANALYSIS"
],
"start": 4075,
"text": "The Criminal Procedure Code in sections 167, 209 and 309 has emphasised the importance of expeditious disposal of cases including investigations and trials."
}
},
{
"from_name": null,
"id": "a9ef2eec35e647db990386ff3d2e7b5d",
"to_name": null,
"type": null,
"value": {
"end": 4478,
"labels": [
"ANALYSIS"
],
"start": 4232,
"text": "It is unfortunate, indeed pathetic, that there should have been such considerable delay in investigations by the police in utter disregard of the fact that a citizen has been deprived of his freedom on the ground that he is accused of an offence."
}
},
{
"from_name": null,
"id": "648072d4d0ac41d7818bc9b14d4a223d",
"to_name": null,
"type": null,
"value": {
"end": 4745,
"labels": [
"ANALYSIS"
],
"start": 4479,
"text": "We do not approve of this course and breach of the rule of law and express our strong displeasure at this chaotic state of affairs verging on wholesale breach of human rights guaranteed under the Constitution especially under Article 21 as interpreted by this Court."
}
},
{
"from_name": null,
"id": "dfe25476845d419b9d4d1a97e474ba7f",
"to_name": null,
"type": null,
"value": {
"end": 4852,
"labels": [
"ANALYSIS"
],
"start": 4745,
"text": "\n Even so we do not wish to pass any orders at the moment until more particulars are brought to our notice."
}
},
{
"from_name": null,
"id": "a44022d606a446469967b3fa01ca6aee",
"to_name": null,
"type": null,
"value": {
"end": 5181,
"labels": [
"RPC"
],
"start": 4853,
"text": "It will suffice for the present-and counsel for the State assures us that any direction given by this Court will be promptly complied with-that we direct the State to consent to release all persons who have been in custody for over six months and whose trials have not commenced or against whom charge sheets have not been laid."
}
},
{
"from_name": null,
"id": "6d94dacde6b94ef3b455e63a6feab91b",
"to_name": null,
"type": null,
"value": {
"end": 5259,
"labels": [
"RPC"
],
"start": 5182,
"text": "But make one exception in cases where sections 302 and 395, IPC are involved."
}
},
{
"from_name": null,
"id": "b617381518e147e788f9fc504d4ed49e",
"to_name": null,
"type": null,
"value": {
"end": 5552,
"labels": [
"RPC"
],
"start": 5260,
"text": "We direct that the State shall complete the investigation within two months from today where charge sheets have not been laid and further direct the Sessions Court concerned to dispose of the cases where charge sheets have been laid and commitment has been made, within six months from today."
}
},
{
"from_name": null,
"id": "a2fbcac7f153443c9589df5941ef17ba",
"to_name": null,
"type": null,
"value": {
"end": 5638,
"labels": [
"RPC"
],
"start": 5553,
"text": "A report will be made to this Court at the end of six months from today by the State."
}
},
{
"from_name": null,
"id": "2937f304cd7f4571979aa8d30802d41b",
"to_name": null,
"type": null,
"value": {
"end": 5941,
"labels": [
"RATIO"
],
"start": 5638,
"text": "\n We must emphatically record our view that there has been a self-condemnation in the statement put in by the State Government in that in quite a number of cases which are not of a serious character and even in those which involve serious offences, investigations have been pending for nearly two years."
}
},
{
"from_name": null,
"id": "9d4a0fa90996465395f38e1b6f3fa71f",
"to_name": null,
"type": null,
"value": {
"end": 6066,
"labels": [
"RATIO"
],
"start": 5942,
"text": "There are cases where persons have been in custody for five years-a situation too ghastly for a civilised country like ours."
}
},
{
"from_name": null,
"id": "f510c1230c3e4429be6225e3a9f808a6",
"to_name": null,
"type": null,
"value": {
"end": 6282,
"labels": [
"RATIO"
],
"start": 6067,
"text": "We therefore draw the attention of the State Government to take a policy decision with a view to ensure that accused persons, too indigent to set in motion the judicial process, do not suffer incarceration silently."
}
},
{
"from_name": null,
"id": "ac48c7f95d684202965390e58500333d",
"to_name": null,
"type": null,
"value": {
"end": 6560,
"labels": [
"RATIO"
],
"start": 6283,
"text": "The Government will do well to comply with the spirit of the Code of Criminal Procedure especially in the matter of persons sought to be bound over for good behaviour, persons against whom summons cases are pending and persons who have been in custody for more than six months."
}
},
{
"from_name": null,
"id": "4589eb8eb3f840a5b571fcf07cac05b3",
"to_name": null,
"type": null,
"value": {
"end": 6721,
"labels": [
"RATIO"
],
"start": 6561,
"text": "Maybe this will involve a mass release from Jails, but Government has to pay homage in substance and reality to the provisions of the Constitution and the Code."
}
},
{
"from_name": null,
"id": "6e962f8287194147870a7dcaa4450353",
"to_name": null,
"type": null,
"value": {
"end": 6791,
"labels": [
"RPC"
],
"start": 6722,
"text": "With these observations, and directions, we dispose of this petition."
}
},
{
"from_name": null,
"id": "53d663da55f341c1b8ae1ab6cf49d017",
"to_name": null,
"type": null,
"value": {
"end": 6831,
"labels": [
"NONE"
],
"start": 6791,
"text": "\n N.V.K. Petition disposed"
}
}
]
}
] | 4,287 | {
"text": "PETITIONER:\nNIMEON SANGMA & ORS.\n\nVs.\n\nRESPONDENT:\nHOME SECRETARY, GOVT. OF MEGHALAYA & ORS\n\nDATE OF JUDGMENT30/04/1979\n\nBENCH:\nKRISHNAIYER, V.R.\nBENCH:\nKRISHNAIYER, V.R.\nPATHAK, R.S.\nKOSHAL, A.D.\n\nCITATION: 1979 SCR (3) 785\n 1979 AIR 1518\n 1979 SCC (1) 700\n\nACT: of Justice-Pre-trial detention-\n Administration of cases including investigations and\n 209 & 309 of Criminal Procedure Code,\nExpeditious disposal\ntrials-Sections 167,\n1973.\n\nHEADNOTE:\n In their petition for the issue of a writ of habeas\n\ncorpus, the petitioners alleged illegal detention of a large\nnumber of persons under guise of the judicial process.\n^\n\n HELD : 1. Criminal Justice breaks down at a point when\nexpeditious trial is not attempted while the affected\nparties are languishing in jail. The Criminal Procedure Code\nin Sections 167, 209 and 309 has emphasised the importance\nof expeditious disposal of cases including investigations\nand trials. [786E]\n\n 2. The State Government to take a policy decision with\na view to ensure that accused persons, too indigent to set\nin motion the judicial process, do not suffer incarceration\nsilently. [787B]\n\n 3. The Government will do well to comply with the\nspirit of the Code of Criminal Procedure especially in the\nmatter of persons sought to be bound over for good\nbehaviour, persons against whom summons cases are pending\nand persons who have been in custody for more than six\nmonths This will involve a mass release from jails, but\nGovernment has to pay homage in substance and reality to the\nprovisions of the Constitution and the Code. [787C]\n\n The Court directed that :-\n (a) The State do consent to release all persons who\nhave been in custody for over six months and whose trials\nhave not commenced or against whom charge sheets have not\nbeen laid excepting in those cases under Sections 302 and\n395 I.P.C. [786G]\n (b) The State shall complete investigation within two\nmonths in cases where charge sheets have not been laid.\n[786H]\n (c) The Sessions Court concerned should dispose of the\ncases where chargesheets have been laid and commitment has\nbeen made within six months.\n\n [786H]\n\nJUDGMENT:\n CRIMINAL ORIGINAL JURISDICTION : Writ Petition No. 211 of 1979.\n K. Hingorani for the Petitioners.\n D. N. Mukherjee for the Respondents.\n The Order of the Court was delivered by KRISHNA IYER, J.-This is a petition for the issuance of a writ of habeas corpus in view of alleged illegal detention of a large number of persons under guise of the judicial process.\n Even without going into details, we are satisfied that petitioners Nos. 3 and 4 should be released on their own bonds to the satisfaction of the trial court subject to their reporting to the nearest police station once every fortnight and appearing in court whenever called upon to do so to take their trial. We direct accordingly.\n So far as petitioner No. 1 is concerned, the State in its affidavit swear that there is no such person in custody in connection with any case. This matter will be scrutinised further by the State so that it may satisfy itself that no one is in custody except under due process of law.\n This Court in its earlier order dated March 5, 1979 has directed the State to file a statement containing particulars of the under-trial prisoners who have been confined in Jail for a period of over six months without their trials having commenced. Further details as to the ages of such under-trials, the dates from which they were confined and the offences with which they were charged were also called for. In the reply statement put in by the respondent, we find a large number of cases where detention for considerable periods, without the trial having even commenced, is being suffered by various persons. Criminal justice breaks down, at a point when expeditious trial is not attempted while the affected parties are languishing in jail. The Criminal Procedure Code in sections 167, 209 and 309 has emphasised the importance of expeditious disposal of cases including investigations and trials. It is unfortunate, indeed pathetic, that there should have been such considerable delay in investigations by the police in utter disregard of the fact that a citizen has been deprived of his freedom on the ground that he is accused of an offence. We do not approve of this course and breach of the rule of law and express our strong displeasure at this chaotic state of affairs verging on wholesale breach of human rights guaranteed under the Constitution especially under Article 21 as interpreted by this Court.\n Even so we do not wish to pass any orders at the moment until more particulars are brought to our notice. It will suffice for the present-and counsel for the State assures us that any direction given by this Court will be promptly complied with-that we direct the State to consent to release all persons who have been in custody for over six months and whose trials have not commenced or against whom charge sheets have not been laid. But make one exception in cases where sections 302 and 395, IPC are involved. We direct that the State shall complete the investigation within two months from today where charge sheets have not been laid and further direct the Sessions Court concerned to dispose of the cases where charge sheets have been laid and commitment has been made, within six months from today. A report will be made to this Court at the end of six months from today by the State.\n We must emphatically record our view that there has been a self-condemnation in the statement put in by the State Government in that in quite a number of cases which are not of a serious character and even in those which involve serious offences, investigations have been pending for nearly two years. There are cases where persons have been in custody for five years-a situation too ghastly for a civilised country like ours. We therefore draw the attention of the State Government to take a policy decision with a view to ensure that accused persons, too indigent to set in motion the judicial process, do not suffer incarceration silently. The Government will do well to comply with the spirit of the Code of Criminal Procedure especially in the matter of persons sought to be bound over for good behaviour, persons against whom summons cases are pending and persons who have been in custody for more than six months. Maybe this will involve a mass release from Jails, but Government has to pay homage in substance and reality to the provisions of the Constitution and the Code. With these observations, and directions, we dispose of this petition.\n N.V.K. Petition disposed "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "4789e15c00ac4b05887a0910c6296158",
"to_name": null,
"type": null,
"value": {
"end": 153,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nCOMMISSIONER OF INCOME-TAX, BIHAR & ORISSA,PATNA\n\nVs.\n\nRESPONDENT:\nM/S. KIRKEND COAL COMPANY\n\nDATE OF JUDGMENT:\n12/03/1969\n\nBENCH:\nSHAH, J.C."
}
},
{
"from_name": null,
"id": "a787c15e3ff34323b36b938815526d7e",
"to_name": null,
"type": null,
"value": {
"end": 647,
"labels": [
"PREAMBLE"
],
"start": 153,
"text": "\nBENCH:\nSHAH, J.C.\nGROVER, A.N.\n\nCITATION: 1969 SCR (3) 983\n 1969 AIR 1352\n 1969 SCC (1) 776\n\nACT:\nIndian Income-tax, 1922, ss. 26, 28, 44 and 66--Penalty\nleviable on firm for assessment year 1948-49-Firm\nreconstituted in later years but business not discontinued-\nPenalty in respect of 1948-49 whether leviable on\nreconstituted firm-Section 44 not applicable to such cases\nApplicability of ss. 26 and 28-Question not raised before\nTribunal cannot be raised in reference under s. 66."
}
},
{
"from_name": null,
"id": "324c604c30c74facab547845deffbdbb",
"to_name": null,
"type": null,
"value": {
"end": 836,
"labels": [
"PREAMBLE"
],
"start": 647,
"text": "\n\nHEADNOTE:\nThe respondent was a firm on which penalty under s. 28(1)(c)\nof the Indian Income-tax Act, 1922 was imposed by the\nIncome-tax Officer in respect of the assessment year 1948-\n49."
}
},
{
"from_name": null,
"id": "756e66cebafe4443960a7b96c32b4b5e",
"to_name": null,
"type": null,
"value": {
"end": 984,
"labels": [
"PREAMBLE"
],
"start": 837,
"text": "At the time when the penalty was imposed the\nconstitution of the firm had changed though the same\nbusiness was continued by the reconstituted firm."
}
},
{
"from_name": null,
"id": "8f15a24e1e6340e8b1ddfdd01d42b7c2",
"to_name": null,
"type": null,
"value": {
"end": 1096,
"labels": [
"PREAMBLE"
],
"start": 985,
"text": "The\nappeals filed by the respondent before the Appellate\nAssistant Commissioner and the Tribunal were rejected."
}
},
{
"from_name": null,
"id": "8c21c7124cd8409fa7496240780abc41",
"to_name": null,
"type": null,
"value": {
"end": 1309,
"labels": [
"PREAMBLE"
],
"start": 1097,
"text": "In\nreference the High Court held that penalty could be legally\nimposed upon the original firm constituted in the account\nyear relevant to the assessment year 1948-49 and not upon\nthe new firm constituted in 1952."
}
},
{
"from_name": null,
"id": "a0e8bb0d3f7d4ecfa1be0ffe9a76ec0a",
"to_name": null,
"type": null,
"value": {
"end": 1529,
"labels": [
"PREAMBLE"
],
"start": 1310,
"text": "In coming to their\nconclusions the Tribunal as well as the High Court proceeded\non the assumption that the source and power of the Income-\ntax Officer to impose a penalty was in s. 44 of the Indian\nIncome-tax Act, 1922."
}
},
{
"from_name": null,
"id": "cb505051390045f9a7cdae943cc5a507",
"to_name": null,
"type": null,
"value": {
"end": 1801,
"labels": [
"PREAMBLE"
],
"start": 1530,
"text": "In appeal by the Revenue to this\nCourt,\nHELD : (i) Section 44 only applies to those cases in which\nthere has been discontinuance of the business and not to\ncases in which the business continues after the\nreconstitution of the firm, or there is succession to the\nbusiness."
}
},
{
"from_name": null,
"id": "1e87a0d52d514b969ba1ffe3fd72f756",
"to_name": null,
"type": null,
"value": {
"end": 1901,
"labels": [
"PREAMBLE"
],
"start": 1802,
"text": "Cases of reconstitution of the firm or succession\nto the business are covered by ss. 26(1) and (2)."
}
},
{
"from_name": null,
"id": "2a7f6638c7d94f9c847722039ba6bb7c",
"to_name": null,
"type": null,
"value": {
"end": 1989,
"labels": [
"PREAMBLE"
],
"start": 1902,
"text": "The\nTribunal and the High Court were therefore in error in\nrelying on s. 44 of the Act."
}
},
{
"from_name": null,
"id": "c406d42b3f934185ab571ea5b5279b0b",
"to_name": null,
"type": null,
"value": {
"end": 2204,
"labels": [
"PREAMBLE"
],
"start": 1990,
"text": "[988 A; 985 D-E]\n(ii) Assessment in Ch. IV of the Income-tax Act 1922\nincludes a proceeding for imposition of penalty and the\nexpression 'person' includes for the purpose of s. 28 a firm\nregistered or unregistered."
}
},
{
"from_name": null,
"id": "02be39a18f3f42629b894c3728cc206e",
"to_name": null,
"type": null,
"value": {
"end": 2341,
"labels": [
"PREAMBLE"
],
"start": 2205,
"text": "If there is reconstitution of\nthe firm by virtue of s. 26, the Income-tax Officer will in\nimposing the penalty proceed against the firm."
}
},
{
"from_name": null,
"id": "a715b7e3ecd940679708ceb850075b99",
"to_name": null,
"type": null,
"value": {
"end": 2443,
"labels": [
"PREAMBLE"
],
"start": 2342,
"text": "If there is\n\ndiscontinuance of the business penalty will be imposed\nagainst the partners of the firm."
}
},
{
"from_name": null,
"id": "66395f0b35914f5bb1aadec84e3684f9",
"to_name": null,
"type": null,
"value": {
"end": 2453,
"labels": [
"PREAMBLE"
],
"start": 2444,
"text": "[988 B-D]"
}
},
{
"from_name": null,
"id": "fd82e8deb2384aee977d9e21d0f455dc",
"to_name": null,
"type": null,
"value": {
"end": 2722,
"labels": [
"PREAMBLE"
],
"start": 2453,
"text": "\nIn the present case, however, this Court could not go into\nthe question whether penalty on the respondent firm was\nleviable under the terms of ss. 26 and 28 even though the\nquestion raised by the Tribunal was in terms sufficiently\ncomprehensive to embrace the enquiry."
}
},
{
"from_name": null,
"id": "fb98284927924fee8d04358c4219ec32",
"to_name": null,
"type": null,
"value": {
"end": 3041,
"labels": [
"PREAMBLE"
],
"start": 2723,
"text": "In a reference under\ns. 66 of the Indian Income-tax Act, 1922, only the question\nwhich was either raised or argued before the Tribunal may be\nanswered, even if the language of the question framed by the\nTribunal may apparently include an enquiry into other\nmatters which could have been but were not, raised or\nargued."
}
},
{
"from_name": null,
"id": "650716b2150b403fa9239f49ba92c1c3",
"to_name": null,
"type": null,
"value": {
"end": 3051,
"labels": [
"PREAMBLE"
],
"start": 3042,
"text": "[988 D-F]"
}
},
{
"from_name": null,
"id": "0543b386b3034ddc84f087ae5cf4db3d",
"to_name": null,
"type": null,
"value": {
"end": 3305,
"labels": [
"PREAMBLE"
],
"start": 3051,
"text": "\nShivram Poddar v. Income-tax Officer, Central Circle II,\nCalcutta & Anr., 51 I.T.R, 823, C. A. Abraham v. Income-tax\nOfficer, Kottayam andAnr., 41 I.T.R. 425 and Commissioner of Income-tax, Madras &\nAnr. V. S. V. Angidi Chettiar, 44 I.T.R, 739, applied."
}
},
{
"from_name": null,
"id": "3bcb4445b4244ae19e58b9a28b936a8b",
"to_name": null,
"type": null,
"value": {
"end": 3391,
"labels": [
"PREAMBLE"
],
"start": 3305,
"text": "\nS. M. S. Karuppiah Pillai v. Commissioner of Income-tax\nMadras, 9 I.T.R. 1, approved."
}
},
{
"from_name": null,
"id": "b8e6f10e26fc4ef4b08a5ede2b410a16",
"to_name": null,
"type": null,
"value": {
"end": 3402,
"labels": [
"PREAMBLE"
],
"start": 3391,
"text": "\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "c024bd091e9b49a190ff4d072cc2c406",
"to_name": null,
"type": null,
"value": {
"end": 3464,
"labels": [
"NONE"
],
"start": 3402,
"text": "\n CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2456 of 1966."
}
},
{
"from_name": null,
"id": "36ee811118c84df09669398a38c92f40",
"to_name": null,
"type": null,
"value": {
"end": 3587,
"labels": [
"NONE"
],
"start": 3466,
"text": "Appeal from the judgment and order dated January 27, 1964 of the Patna High Court in Misc. Judicial Case No. 299 of 1958."
}
},
{
"from_name": null,
"id": "eaaec5bff8784a2487e1ca8634d5c7ee",
"to_name": null,
"type": null,
"value": {
"end": 3640,
"labels": [
"NONE"
],
"start": 3587,
"text": "\n D. Narsaraju, S. K. Aiyar, R. N. Sachthey and B. D."
}
},
{
"from_name": null,
"id": "54b4dbffc72c4b0cbf7eb9c581ea20da",
"to_name": null,
"type": null,
"value": {
"end": 3673,
"labels": [
"NONE"
],
"start": 3640,
"text": "\n Sharma, for the appellant."
}
},
{
"from_name": null,
"id": "3b36fc50690043e9b6ff8afbeca16c52",
"to_name": null,
"type": null,
"value": {
"end": 3723,
"labels": [
"NONE"
],
"start": 3673,
"text": "\n C. K. Daphtary, Narain Rao, V. D. Narayan and D."
}
},
{
"from_name": null,
"id": "d6a36a19f0ac403499afdd7c5395ecc3",
"to_name": null,
"type": null,
"value": {
"end": 3735,
"labels": [
"NONE"
],
"start": 3723,
"text": "\n Goburdhun,"
}
},
{
"from_name": null,
"id": "fae65964152b4a3bb42f455598259825",
"to_name": null,
"type": null,
"value": {
"end": 3755,
"labels": [
"NONE"
],
"start": 3736,
"text": "for the respondent."
}
},
{
"from_name": null,
"id": "42623fe199d84f479adae0629fcac6d1",
"to_name": null,
"type": null,
"value": {
"end": 3808,
"labels": [
"NONE"
],
"start": 3757,
"text": "The Judgment of the Court was delivered by Shah, J."
}
},
{
"from_name": null,
"id": "cc042ea1914b4b42856c1a22bf9b4d2f",
"to_name": null,
"type": null,
"value": {
"end": 3997,
"labels": [
"FAC"
],
"start": 3809,
"text": "Indetermining the taxable income of the respondent firm for the assessment year 1948-49 the Income-tax Officer added to the income returned a sum of Rs. 1,60,000 as 'undisclosed receipts'."
}
},
{
"from_name": null,
"id": "574deff198c844f190099f7064e0979e",
"to_name": null,
"type": null,
"value": {
"end": 4094,
"labels": [
"RLC"
],
"start": 3998,
"text": "The order was confirmed in' appeal by the Appellate Assistant Commissioner, and by the Tribunal."
}
},
{
"from_name": null,
"id": "c1a17741a58f4f988df6c5abeb979a79",
"to_name": null,
"type": null,
"value": {
"end": 4330,
"labels": [
"FAC"
],
"start": 4095,
"text": "The Income-tax Officer had in the meantime commenced a proceeding for the levy of penalty and in exercise of the power under s. 28 (1) (c) of the Indian Income-tax Act, 1922 he directed the respondent firm to pay Rs. 60,000 as penalty."
}
},
{
"from_name": null,
"id": "31113174c5074897b9660fcc02c1491f",
"to_name": null,
"type": null,
"value": {
"end": 4398,
"labels": [
"FAC"
],
"start": 4331,
"text": "The Appellate Assistant Commissioner in appeal confirmed the order."
}
},
{
"from_name": null,
"id": "557e754fc1d240739b9b60bc174293cd",
"to_name": null,
"type": null,
"value": {
"end": 4584,
"labels": [
"RLC"
],
"start": 4399,
"text": "The Income-tax Appellate Tribunal rejected the contention of the respondent that the order imposing penalty upon the firm after the original firm was dissolved was without jurisdiction."
}
},
{
"from_name": null,
"id": "b0465d3929534c68ad6f66b3bad7d36d",
"to_name": null,
"type": null,
"value": {
"end": 4953,
"labels": [
"ISSUE"
],
"start": 4584,
"text": "\n The Tribunal referred at the instance of the respondent firm the following question to the High Court of Patna for opinion; \"Whether on the facts and in the circumstances of the case the imposition of penalty under s.\n 28 (1) (c) of the Indian Income-tax Act, upon the petitioner firm (respondent) as constituted at the time of levy of penalty was legal and valid?\"\n "
}
},
{
"from_name": null,
"id": "2fa7b9108a0e48f898df1c3ba8b3c2a8",
"to_name": null,
"type": null,
"value": {
"end": 5517,
"labels": [
"FAC"
],
"start": 4953,
"text": "The High Court called for a supplementary statement of the case and pursuant thereto the Tribunal submitted a statement on the specified points raised by the order of the High Court that (1)The firm which carried on the business during the calendar year 1947 was dissolved on July 7, 1951 when Butto Kristo Roy, one of the partners, died.\n (2)During the previous year 1947 there was no instrument of partnership in existence, but the terms of the oral partnership were the same as set out in the partnership deed dated October 17, 1949. (3)"
}
},
{
"from_name": null,
"id": "35ae5f3412944afeaf0868dc1d59de08",
"to_name": null,
"type": null,
"value": {
"end": 5648,
"labels": [
"FAC"
],
"start": 5518,
"text": "The business of the firm was continued with effect from July 8, 1951 by the new firm as successor to the business of the old firm."
}
},
{
"from_name": null,
"id": "a0328d247c4e49239baa275068f49584",
"to_name": null,
"type": null,
"value": {
"end": 5878,
"labels": [
"FAC"
],
"start": 5648,
"text": "\n The terms of the partnership were the same as set out in the deed dated October 17, 1949 and the partners and their shares were also the same except that Baidyanath Roy took the place of Butto Kristo Roy."
}
},
{
"from_name": null,
"id": "fce701cb582641dc97489b9ddba1990c",
"to_name": null,
"type": null,
"value": {
"end": 5907,
"labels": [
"FAC"
],
"start": 5878,
"text": "\n (4)"
}
},
{
"from_name": null,
"id": "cb8e7559f04743a0a4d112db24e7094e",
"to_name": null,
"type": null,
"value": {
"end": 6079,
"labels": [
"FAC"
],
"start": 5908,
"text": "With effect from April 28, 1952, the business was carried on by a partnership constituted by Baidyanath Roy and Bijali Kanti Roy under an instrument dated August 27, 1952."
}
},
{
"from_name": null,
"id": "abc9e4a1b906499384015bb800df534c",
"to_name": null,
"type": null,
"value": {
"end": 6259,
"labels": [
"FAC"
],
"start": 6079,
"text": "\n There was no dissolution of the firm, which was carrying on the business; there was only a change in the constitution of the old firm from April 28, 1952."
}
},
{
"from_name": null,
"id": "7603bde6c7cb423e8cc14919a5aaf0f4",
"to_name": null,
"type": null,
"value": {
"end": 6491,
"labels": [
"RLC"
],
"start": 6259,
"text": "\nThe High Court held that penalty could be legally levied only upon the original firm constituted in the account year relevant to the assessment year 1948-49 and not upon the new firm constituted under the deed dated April 27, 1952."
}
},
{
"from_name": null,
"id": "5bec64107240471ab50bcda09ec4b9e1",
"to_name": null,
"type": null,
"value": {
"end": 6715,
"labels": [
"ANALYSIS"
],
"start": 6491,
"text": "\n The Tribunal and the High Court approached the problem before them on the assumption that the source of the power of the Income-tax Officer to impose a penalty was in section 44 of the Indian Income-tax Act, 1922."
}
},
{
"from_name": null,
"id": "fb066eca52604120b3ad09665e15097e",
"to_name": null,
"type": null,
"value": {
"end": 6768,
"labels": [
"ANALYSIS"
],
"start": 6716,
"text": "In so assuming, in our judgment, they were in error."
}
},
{
"from_name": null,
"id": "eb6d9c77509b4bfcac99399711e3d7b6",
"to_name": null,
"type": null,
"value": {
"end": 7307,
"labels": [
"STA"
],
"start": 6769,
"text": "Section 44 of the Indian Income-tax Act, 1922, as it stood at the relevant date, in so far as it is material provided : \"Where any business, profession or vocation carried on by a firm has been discontinued every person who was at the time of such discontinuance a partner of such firm shall, in respect of the income, profits and gains of the firm be jointly and severally liable to assessment under Chapter IV and for the amount of tax payable and all the provisions of Chapter IV shall, so far as may be, apply to any such assessment\"."
}
},
{
"from_name": null,
"id": "ab4cf4bf97f94935ae2595a342094a46",
"to_name": null,
"type": null,
"value": {
"end": 7488,
"labels": [
"ANALYSIS"
],
"start": 7307,
"text": "\nThe section is fairly plain : it applies to cases of discontinuance of the business of a firm and not where there is dissolution of the firm but not discontinuance of its business."
}
},
{
"from_name": null,
"id": "db1e43d17c954077b5ad95a1b0fbbed0",
"to_name": null,
"type": null,
"value": {
"end": 8001,
"labels": [
"PRE_RELIED"
],
"start": 7488,
"text": "\nIn S. M. S. Karuppiah Pillai v. Commissioner of Income-tax, Madras(1), in dealing with the effect of s. 44 of the Indian Income-tax Act, 1922, before it was amended by Act 7 of 1939, a Full Bench of the Madras High Court observed \"This section (s.44) only applies when there has been discontinuance of the, business, The section (1) 911.T.R. I. says that if a business is discontinued the partners shall nevertheless be jointly and severally liable for the profits which had been earned\"."
}
},
{
"from_name": null,
"id": "00fae0d7ffe6497a9260d9ebfbcd8e93",
"to_name": null,
"type": null,
"value": {
"end": 8277,
"labels": [
"PRE_RELIED"
],
"start": 8002,
"text": "In Shivram Poddar v. Income-tax Officer, Central Circle II, Calcutta and Anr.(1) this Court examined the scheme of s. 44 (before it was amended by the Finance Act of 1958) and its inter-relation with the provisions of ss. 25(1), (2), 26(1), (2) and 28 (1) (c) in some detail."
}
},
{
"from_name": null,
"id": "7a53632776914d159e080fdbe10c1093",
"to_name": null,
"type": null,
"value": {
"end": 8497,
"labels": [
"ANALYSIS"
],
"start": 8278,
"text": "The Court observed : \"Section 44 operates in two classes of cases; where there is discontinuance of business, profession or vocation carried on by a firm or association, and where there is dissolution of an association."
}
},
{
"from_name": null,
"id": "3e2d1dc219f142cd9ec379984d5fa58f",
"to_name": null,
"type": null,
"value": {
"end": 8641,
"labels": [
"ANALYSIS"
],
"start": 8498,
"text": "It follows that mere dissolution of a firm without discontinuance of the business will not attract the application of s.44 of the Act........\n "
}
},
{
"from_name": null,
"id": "7c6f0af313894453af303e19c986e603",
"to_name": null,
"type": null,
"value": {
"end": 8773,
"labels": [
"ANALYSIS"
],
"start": 8641,
"text": "The reason for this distinction appears from the scheme of the Income-tax Act in its relation to assessment of the income of a firm."
}
},
{
"from_name": null,
"id": "ccdd5d4015454336a3753328b5313aa8",
"to_name": null,
"type": null,
"value": {
"end": 8991,
"labels": [
"ANALYSIS"
],
"start": 8774,
"text": "A firm whether registered or unregistered is recognised under the Act as a unit of assessment (sections 3 and 2(2)), and its income is computed under clauses (3) and (4) of section 23. as the income of any other unit."
}
},
{
"from_name": null,
"id": "01d35b4c73b1414d8bf8473a539058c0",
"to_name": null,
"type": null,
"value": {
"end": 9142,
"labels": [
"STA"
],
"start": 8992,
"text": "Section 25(1) relates to assessment in cases of a discontinued business-whether the business is carried on by a firm or by any other person..........."
}
},
{
"from_name": null,
"id": "9ff78aa060f34305b1467f0662aa43dc",
"to_name": null,
"type": null,
"value": {
"end": 9366,
"labels": [
"STA"
],
"start": 9143,
"text": "Then there is the special provision relating to assessment when at the time of making an assessment it is found that a change has occurred in the constitution of a firm, or a firm has been newly constituted : section 26(1)."
}
},
{
"from_name": null,
"id": "0cadae339bd941fb880ad41df054e72d",
"to_name": null,
"type": null,
"value": {
"end": 9859,
"labels": [
"ANALYSIS"
],
"start": 9367,
"text": "The date on which the change has occurred is immaterial; it may be in the year of account, in the year of assessment or even after the close of the year of assessment, The Income- fax Officer has under section 26(1) to assess the firm as constituted at the time of making the assessment, but the income, profits and gains of the previous year have, for the purpose of inclusion in the total income of the partners, to be apportioned between the partners who were entitled to receive the same."
}
},
{
"from_name": null,
"id": "e3b966db607342fdb8c674750ab4993a",
"to_name": null,
"type": null,
"value": {
"end": 10052,
"labels": [
"ANALYSIS"
],
"start": 9860,
"text": "Subsection (2) of section 26 relates to assessment in the case of succession to a person (which expression includes a firm) carrying on a business by another person in such capacity..........."
}
},
{
"from_name": null,
"id": "2bdf8d9c61ea43f98b35c73bf07f7cb1",
"to_name": null,
"type": null,
"value": {
"end": 10267,
"labels": [
"ANALYSIS"
],
"start": 10053,
"text": "Discontinuance of business has the same connotation in section 44 as if has in section 25 of the Act; it does not (1) 51 T.T.R. 823.\n cover mere change in ownership or in the constitution of the unit of assessment."
}
},
{
"from_name": null,
"id": "5a6cbaea15f84867a2e4ebfb940cd686",
"to_name": null,
"type": null,
"value": {
"end": 10683,
"labels": [
"ANALYSIS"
],
"start": 10267,
"text": "\n Section 44 is, therefore, attracted only when the business of a firm is discontinued, i.e.\n when there is complete cessation of the busi- ness and not when there is a change in the ownership of the firm, or in its constitution, because by reconstitution of the firm, no change is brought in the personality of the firm, and succession to the business and not discontinuance of the business results........."
}
},
{
"from_name": null,
"id": "59da084b2f1d429aa8ed0d12effd885e",
"to_name": null,
"type": null,
"value": {
"end": 10876,
"labels": [
"ANALYSIS"
],
"start": 10684,
"text": "But the Income-tax Act recognises a firm for purposes of assessment as a unit independent of the partners constituting it; it invests the firm with a personality which survives reconstitution."
}
},
{
"from_name": null,
"id": "f717adb9f61c4be087165e4d541f07fa",
"to_name": null,
"type": null,
"value": {
"end": 11079,
"labels": [
"ANALYSIS"
],
"start": 10877,
"text": "A firm discontinuing its business may be assessed in the manner provided by section 25(1) in the year of account in which it discontinues its business; it may also be assessed in the year of assessment."
}
},
{
"from_name": null,
"id": "5fd96b61323e4af68c5ee6097a89bc23",
"to_name": null,
"type": null,
"value": {
"end": 11142,
"labels": [
"ANALYSIS"
],
"start": 11080,
"text": "In either case it is the assessment of the income of the firm."
}
},
{
"from_name": null,
"id": "963df9a4f99d49b69723eb539dc9156f",
"to_name": null,
"type": null,
"value": {
"end": 11399,
"labels": [
"ANALYSIS"
],
"start": 11143,
"text": "Where the firm is dissolved, but the business is not discontinued, there being change in the constitution of the firm, assessment has to be made under section 26 (1), and if there be succession to the business assessment has to be made under section 26(2)."
}
},
{
"from_name": null,
"id": "9665b92ad1da449e9f18dc578ee906b1",
"to_name": null,
"type": null,
"value": {
"end": 11532,
"labels": [
"ANALYSIS"
],
"start": 11400,
"text": "The provisions relating to assessment on reconstituted or newly constituted firms, and on succession to the business are obligatory."
}
},
{
"from_name": null,
"id": "0e2e247c92dc47a29a8006dfe2528a4a",
"to_name": null,
"type": null,
"value": {
"end": 11720,
"labels": [
"ANALYSIS"
],
"start": 11533,
"text": "Therefore, even when there is change in the ownership of the business carried on by a firm on reconstitution or because of a new constitution, assessment must still be made upon the firm."
}
},
{
"from_name": null,
"id": "8aa26d03ac944c26aaa62da3e0e5451a",
"to_name": null,
"type": null,
"value": {
"end": 11842,
"labels": [
"ANALYSIS"
],
"start": 11721,
"text": "When there is succession, the successor and the person succeeded have to be assessed each in respect of his actual share."
}
},
{
"from_name": null,
"id": "5662816598744d76a0a7422962bdc010",
"to_name": null,
"type": null,
"value": {
"end": 12116,
"labels": [
"PRE_RELIED"
],
"start": 11842,
"text": "\n This scheme of assessment fumishes the reason for omitting reference to dissolution of a firm from section 44 when such dissolution is not accompanied by discontinuance of the business\".\nTwo other cases decided by this Court may be briefly noticed."
}
},
{
"from_name": null,
"id": "35c89e7da4aa4ace9cfe30c43c9f1605",
"to_name": null,
"type": null,
"value": {
"end": 12379,
"labels": [
"PRE_RELIED"
],
"start": 12117,
"text": "In C. A. Abraham v. Income-tax Officer, Kottayam and Another(1) there was discontinuance of the business of the firm consequent upon dissolution of the firm, s. 44 was held applicable, and it was held that imposition or penalty being a process of assessment the."
}
},
{
"from_name": null,
"id": "d5ec0ae6c8c44292b1c6a24db7b0d474",
"to_name": null,
"type": null,
"value": {
"end": 12472,
"labels": [
"PRE_RELIED"
],
"start": 12380,
"text": "Income-tax Officer was not incompetent to levy penalty after discontinuance of the business."
}
},
{
"from_name": null,
"id": "7c4271e98b2b4103aa3846ea4a6b8077",
"to_name": null,
"type": null,
"value": {
"end": 13031,
"labels": [
"PRE_RELIED"
],
"start": 12473,
"text": "In Commissioner of Income-tax, Madras and Another v. S. V. Angidi Chettiar (2) this Court held that the Income-tax Officer could exercise under s. 44 read with s.\n28 power to impose penalty upon the firm which discontinued its business on dissolution caused by the death of one of the partners (1) 41 I.T.R. 425.\n(2) 44 I. T. R 739.Section 44 therefore only applied to those cases in which there had been discontinuance of the business and not to case, in which the business continued after reconstitution of the firm or there was succession to the business."
}
},
{
"from_name": null,
"id": "bd4f2a28481f4934bebfc6ebab8b97e7",
"to_name": null,
"type": null,
"value": {
"end": 13144,
"labels": [
"ANALYSIS"
],
"start": 13032,
"text": "Cases of reconstitution of the firm or succession to the business of the firm are covered by ss. 26(1) and (2).\n"
}
},
{
"from_name": null,
"id": "01071cb5b8104f12a553e84715adb05d",
"to_name": null,
"type": null,
"value": {
"end": 13248,
"labels": [
"ANALYSIS"
],
"start": 13144,
"text": "\"Assessment\" in Chapter IV of the Income-tax Act, 1922, includes a proceeding for imposition of penalty."
}
},
{
"from_name": null,
"id": "bfb28592f52b44028161c3972e684d50",
"to_name": null,
"type": null,
"value": {
"end": 13684,
"labels": [
"ANALYSIS"
],
"start": 13249,
"text": "Section 28 of the Act authorises the Income-tax Officer, if satisfied, in the course of any proceeding under the Act that any person has, inter alia, concealed the particulars of his income or deliberately furnished inaccurate particulars of such income, to direct that such person shall pay by way of penalty, a sum of money not exceeding the amount specified therein in addition to the incometax and super-tax payable by such person."
}
},
{
"from_name": null,
"id": "db6cc4f98af24256bcb8b7d288ed0a04",
"to_name": null,
"type": null,
"value": {
"end": 13779,
"labels": [
"ANALYSIS"
],
"start": 13685,
"text": "The expression \" person\" includes for the purpose of s. 28, a firm registered or unregistered."
}
},
{
"from_name": null,
"id": "5ab7d30ff0fe4c92aa49104fc6ce4717",
"to_name": null,
"type": null,
"value": {
"end": 13917,
"labels": [
"ANALYSIS"
],
"start": 13780,
"text": "If there is reconstitution of the firm, by virtue of s. 26, the Income-tax Officer will in imposing the penalty proceed against the firm."
}
},
{
"from_name": null,
"id": "3d3bb4fef5574623b73db069fc820c28",
"to_name": null,
"type": null,
"value": {
"end": 14018,
"labels": [
"ANALYSIS"
],
"start": 13918,
"text": "If there is discontinuance of the business penalty will be imposed against the partners of the firm."
}
},
{
"from_name": null,
"id": "5d5597bfa6ec46f49f6d23c9663d7a1f",
"to_name": null,
"type": null,
"value": {
"end": 14125,
"labels": [
"ANALYSIS"
],
"start": 14018,
"text": "\nBefore the Tribunal and the High Court the case was argued on the footing that s. 44 alone was applicable."
}
},
{
"from_name": null,
"id": "e3e3eae24d87408c9296b9a3786542f6",
"to_name": null,
"type": null,
"value": {
"end": 14358,
"labels": [
"ANALYSIS"
],
"start": 14126,
"text": "Whether under the terms of s. 26 read with s. 28, penalty may be imposed upon the new partners for the failure of the partners of the firm constituted in the year of account relating to the assessment 1948-49 was never investigated."
}
},
{
"from_name": null,
"id": "9b373213b6f449fc832fd7393207d660",
"to_name": null,
"type": null,
"value": {
"end": 14694,
"labels": [
"ANALYSIS"
],
"start": 14358,
"text": "\n The question raised by the Tribunal is in terms sufficiently comprehensive to embrace an enquiry whether partners of the firm in existence on July 30, 1954, were liable to be assessed to penalty as successors in interest of the partners of the original firm in existence in the year of account relating to the assessment year 1948-49."
}
},
{
"from_name": null,
"id": "52623b78cd3e49e28192325cd39d62cb",
"to_name": null,
"type": null,
"value": {
"end": 15018,
"labels": [
"RATIO"
],
"start": 14695,
"text": "But in a reference under s. 66 of the Indian Income-tax Act, 1922, only the question which was either raised or argued before the Tribunal may be answered, even if the language of the question framed by the Tribunal may apparently include an enquiry into other matters which could have been, but were not, raised or argued."
}
},
{
"from_name": null,
"id": "d195548ecfba404a91c3476a6d5e991d",
"to_name": null,
"type": null,
"value": {
"end": 15054,
"labels": [
"RPC"
],
"start": 15020,
"text": "The appeal fails and is dismissed."
}
},
{
"from_name": null,
"id": "1c8bdfc7fac345c2b59b1f88994f08bf",
"to_name": null,
"type": null,
"value": {
"end": 15137,
"labels": [
"RPC"
],
"start": 15055,
"text": "In the circumstances of the case there will be no order as to costs in this Court."
}
},
{
"from_name": null,
"id": "9749e5c1cb824169a06c2706faeb73e5",
"to_name": null,
"type": null,
"value": {
"end": 15143,
"labels": [
"NONE"
],
"start": 15137,
"text": "\n G.C."
}
},
{
"from_name": null,
"id": "27e3ac5db09247e9bcae3f45280d53d2",
"to_name": null,
"type": null,
"value": {
"end": 15180,
"labels": [
"RPC"
],
"start": 15144,
"text": " Appeal dismissed."
}
}
]
}
] | 4,071 | {
"text": "PETITIONER:\nCOMMISSIONER OF INCOME-TAX, BIHAR & ORISSA,PATNA\n\nVs.\n\nRESPONDENT:\nM/S. KIRKEND COAL COMPANY\n\nDATE OF JUDGMENT:\n12/03/1969\n\nBENCH:\nSHAH, J.C.\nBENCH:\nSHAH, J.C.\nGROVER, A.N.\n\nCITATION: 1969 SCR (3) 983\n 1969 AIR 1352\n 1969 SCC (1) 776\n\nACT:\nIndian Income-tax, 1922, ss. 26, 28, 44 and 66--Penalty\nleviable on firm for assessment year 1948-49-Firm\nreconstituted in later years but business not discontinued-\nPenalty in respect of 1948-49 whether leviable on\nreconstituted firm-Section 44 not applicable to such cases\nApplicability of ss. 26 and 28-Question not raised before\nTribunal cannot be raised in reference under s. 66.\n\nHEADNOTE:\nThe respondent was a firm on which penalty under s. 28(1)(c)\nof the Indian Income-tax Act, 1922 was imposed by the\nIncome-tax Officer in respect of the assessment year 1948-\n49. At the time when the penalty was imposed the\nconstitution of the firm had changed though the same\nbusiness was continued by the reconstituted firm. The\nappeals filed by the respondent before the Appellate\nAssistant Commissioner and the Tribunal were rejected. In\nreference the High Court held that penalty could be legally\nimposed upon the original firm constituted in the account\nyear relevant to the assessment year 1948-49 and not upon\nthe new firm constituted in 1952. In coming to their\nconclusions the Tribunal as well as the High Court proceeded\non the assumption that the source and power of the Income-\ntax Officer to impose a penalty was in s. 44 of the Indian\nIncome-tax Act, 1922. In appeal by the Revenue to this\nCourt,\nHELD : (i) Section 44 only applies to those cases in which\nthere has been discontinuance of the business and not to\ncases in which the business continues after the\nreconstitution of the firm, or there is succession to the\nbusiness. Cases of reconstitution of the firm or succession\nto the business are covered by ss. 26(1) and (2). The\nTribunal and the High Court were therefore in error in\nrelying on s. 44 of the Act. [988 A; 985 D-E]\n(ii) Assessment in Ch. IV of the Income-tax Act 1922\nincludes a proceeding for imposition of penalty and the\nexpression 'person' includes for the purpose of s. 28 a firm\nregistered or unregistered. If there is reconstitution of\nthe firm by virtue of s. 26, the Income-tax Officer will in\nimposing the penalty proceed against the firm. If there is\n\ndiscontinuance of the business penalty will be imposed\nagainst the partners of the firm. [988 B-D]\nIn the present case, however, this Court could not go into\nthe question whether penalty on the respondent firm was\nleviable under the terms of ss. 26 and 28 even though the\nquestion raised by the Tribunal was in terms sufficiently\ncomprehensive to embrace the enquiry. In a reference under\ns. 66 of the Indian Income-tax Act, 1922, only the question\nwhich was either raised or argued before the Tribunal may be\nanswered, even if the language of the question framed by the\nTribunal may apparently include an enquiry into other\nmatters which could have been but were not, raised or\nargued. [988 D-F]\nShivram Poddar v. Income-tax Officer, Central Circle II,\nCalcutta & Anr., 51 I.T.R, 823, C. A. Abraham v. Income-tax\nOfficer, Kottayam andAnr., 41 I.T.R. 425 and Commissioner of Income-tax, Madras &\nAnr. V. S. V. Angidi Chettiar, 44 I.T.R, 739, applied.\nS. M. S. Karuppiah Pillai v. Commissioner of Income-tax\nMadras, 9 I.T.R. 1, approved.\n\nJUDGMENT:\n CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2456 of 1966.\n Appeal from the judgment and order dated January 27, 1964 of the Patna High Court in Misc. Judicial Case No. 299 of 1958.\n D. Narsaraju, S. K. Aiyar, R. N. Sachthey and B. D.\n Sharma, for the appellant.\n C. K. Daphtary, Narain Rao, V. D. Narayan and D.\n Goburdhun, for the respondent.\n The Judgment of the Court was delivered by Shah, J. Indetermining the taxable income of the respondent firm for the assessment year 1948-49 the Income-tax Officer added to the income returned a sum of Rs. 1,60,000 as 'undisclosed receipts'. The order was confirmed in' appeal by the Appellate Assistant Commissioner, and by the Tribunal. The Income-tax Officer had in the meantime commenced a proceeding for the levy of penalty and in exercise of the power under s. 28 (1) (c) of the Indian Income-tax Act, 1922 he directed the respondent firm to pay Rs. 60,000 as penalty. The Appellate Assistant Commissioner in appeal confirmed the order. The Income-tax Appellate Tribunal rejected the contention of the respondent that the order imposing penalty upon the firm after the original firm was dissolved was without jurisdiction.\n The Tribunal referred at the instance of the respondent firm the following question to the High Court of Patna for opinion; \"Whether on the facts and in the circumstances of the case the imposition of penalty under s.\n 28 (1) (c) of the Indian Income-tax Act, upon the petitioner firm (respondent) as constituted at the time of levy of penalty was legal and valid?\"\n The High Court called for a supplementary statement of the case and pursuant thereto the Tribunal submitted a statement on the specified points raised by the order of the High Court that (1)The firm which carried on the business during the calendar year 1947 was dissolved on July 7, 1951 when Butto Kristo Roy, one of the partners, died.\n (2)During the previous year 1947 there was no instrument of partnership in existence, but the terms of the oral partnership were the same as set out in the partnership deed dated October 17, 1949. (3) The business of the firm was continued with effect from July 8, 1951 by the new firm as successor to the business of the old firm.\n The terms of the partnership were the same as set out in the deed dated October 17, 1949 and the partners and their shares were also the same except that Baidyanath Roy took the place of Butto Kristo Roy.\n (4) With effect from April 28, 1952, the business was carried on by a partnership constituted by Baidyanath Roy and Bijali Kanti Roy under an instrument dated August 27, 1952.\n There was no dissolution of the firm, which was carrying on the business; there was only a change in the constitution of the old firm from April 28, 1952.\nThe High Court held that penalty could be legally levied only upon the original firm constituted in the account year relevant to the assessment year 1948-49 and not upon the new firm constituted under the deed dated April 27, 1952.\n The Tribunal and the High Court approached the problem before them on the assumption that the source of the power of the Income-tax Officer to impose a penalty was in section 44 of the Indian Income-tax Act, 1922. In so assuming, in our judgment, they were in error. Section 44 of the Indian Income-tax Act, 1922, as it stood at the relevant date, in so far as it is material provided : \"Where any business, profession or vocation carried on by a firm has been discontinued every person who was at the time of such discontinuance a partner of such firm shall, in respect of the income, profits and gains of the firm be jointly and severally liable to assessment under Chapter IV and for the amount of tax payable and all the provisions of Chapter IV shall, so far as may be, apply to any such assessment\".\nThe section is fairly plain : it applies to cases of discontinuance of the business of a firm and not where there is dissolution of the firm but not discontinuance of its business.\nIn S. M. S. Karuppiah Pillai v. Commissioner of Income-tax, Madras(1), in dealing with the effect of s. 44 of the Indian Income-tax Act, 1922, before it was amended by Act 7 of 1939, a Full Bench of the Madras High Court observed \"This section (s.44) only applies when there has been discontinuance of the, business, The section (1) 911.T.R. I. says that if a business is discontinued the partners shall nevertheless be jointly and severally liable for the profits which had been earned\".\nIn Shivram Poddar v. Income-tax Officer, Central Circle II, Calcutta and Anr.(1) this Court examined the scheme of s. 44 (before it was amended by the Finance Act of 1958) and its inter-relation with the provisions of ss. 25(1), (2), 26(1), (2) and 28 (1) (c) in some detail. The Court observed : \"Section 44 operates in two classes of cases; where there is discontinuance of business, profession or vocation carried on by a firm or association, and where there is dissolution of an association. It follows that mere dissolution of a firm without discontinuance of the business will not attract the application of s.44 of the Act........\n The reason for this distinction appears from the scheme of the Income-tax Act in its relation to assessment of the income of a firm. A firm whether registered or unregistered is recognised under the Act as a unit of assessment (sections 3 and 2(2)), and its income is computed under clauses (3) and (4) of section 23. as the income of any other unit. Section 25(1) relates to assessment in cases of a discontinued business-whether the business is carried on by a firm or by any other person........... Then there is the special provision relating to assessment when at the time of making an assessment it is found that a change has occurred in the constitution of a firm, or a firm has been newly constituted : section 26(1). The date on which the change has occurred is immaterial; it may be in the year of account, in the year of assessment or even after the close of the year of assessment, The Income- fax Officer has under section 26(1) to assess the firm as constituted at the time of making the assessment, but the income, profits and gains of the previous year have, for the purpose of inclusion in the total income of the partners, to be apportioned between the partners who were entitled to receive the same. Subsection (2) of section 26 relates to assessment in the case of succession to a person (which expression includes a firm) carrying on a business by another person in such capacity........... Discontinuance of business has the same connotation in section 44 as if has in section 25 of the Act; it does not (1) 51 T.T.R. 823.\n cover mere change in ownership or in the constitution of the unit of assessment.\n Section 44 is, therefore, attracted only when the business of a firm is discontinued, i.e.\n when there is complete cessation of the busi- ness and not when there is a change in the ownership of the firm, or in its constitution, because by reconstitution of the firm, no change is brought in the personality of the firm, and succession to the business and not discontinuance of the business results......... But the Income-tax Act recognises a firm for purposes of assessment as a unit independent of the partners constituting it; it invests the firm with a personality which survives reconstitution. A firm discontinuing its business may be assessed in the manner provided by section 25(1) in the year of account in which it discontinues its business; it may also be assessed in the year of assessment. In either case it is the assessment of the income of the firm. Where the firm is dissolved, but the business is not discontinued, there being change in the constitution of the firm, assessment has to be made under section 26 (1), and if there be succession to the business assessment has to be made under section 26(2). The provisions relating to assessment on reconstituted or newly constituted firms, and on succession to the business are obligatory. Therefore, even when there is change in the ownership of the business carried on by a firm on reconstitution or because of a new constitution, assessment must still be made upon the firm. When there is succession, the successor and the person succeeded have to be assessed each in respect of his actual share.\n This scheme of assessment fumishes the reason for omitting reference to dissolution of a firm from section 44 when such dissolution is not accompanied by discontinuance of the business\".\nTwo other cases decided by this Court may be briefly noticed. In C. A. Abraham v. Income-tax Officer, Kottayam and Another(1) there was discontinuance of the business of the firm consequent upon dissolution of the firm, s. 44 was held applicable, and it was held that imposition or penalty being a process of assessment the. Income-tax Officer was not incompetent to levy penalty after discontinuance of the business. In Commissioner of Income-tax, Madras and Another v. S. V. Angidi Chettiar (2) this Court held that the Income-tax Officer could exercise under s. 44 read with s.\n28 power to impose penalty upon the firm which discontinued its business on dissolution caused by the death of one of the partners (1) 41 I.T.R. 425.\n(2) 44 I. T. R 739.Section 44 therefore only applied to those cases in which there had been discontinuance of the business and not to case, in which the business continued after reconstitution of the firm or there was succession to the business. Cases of reconstitution of the firm or succession to the business of the firm are covered by ss. 26(1) and (2).\n\"Assessment\" in Chapter IV of the Income-tax Act, 1922, includes a proceeding for imposition of penalty. Section 28 of the Act authorises the Income-tax Officer, if satisfied, in the course of any proceeding under the Act that any person has, inter alia, concealed the particulars of his income or deliberately furnished inaccurate particulars of such income, to direct that such person shall pay by way of penalty, a sum of money not exceeding the amount specified therein in addition to the incometax and super-tax payable by such person. The expression \" person\" includes for the purpose of s. 28, a firm registered or unregistered. If there is reconstitution of the firm, by virtue of s. 26, the Income-tax Officer will in imposing the penalty proceed against the firm. If there is discontinuance of the business penalty will be imposed against the partners of the firm.\nBefore the Tribunal and the High Court the case was argued on the footing that s. 44 alone was applicable. Whether under the terms of s. 26 read with s. 28, penalty may be imposed upon the new partners for the failure of the partners of the firm constituted in the year of account relating to the assessment 1948-49 was never investigated.\n The question raised by the Tribunal is in terms sufficiently comprehensive to embrace an enquiry whether partners of the firm in existence on July 30, 1954, were liable to be assessed to penalty as successors in interest of the partners of the original firm in existence in the year of account relating to the assessment year 1948-49. But in a reference under s. 66 of the Indian Income-tax Act, 1922, only the question which was either raised or argued before the Tribunal may be answered, even if the language of the question framed by the Tribunal may apparently include an enquiry into other matters which could have been, but were not, raised or argued.\n The appeal fails and is dismissed. In the circumstances of the case there will be no order as to costs in this Court.\n G.C. Appeal dismissed.\n "
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"text": "(arising out of SLP (Crl.) No. 6225 of 2017)"
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"text": "\n\nPRADEEP BISOI @ RANJIT BISOI ... APPELLANT(S)\n VERSUS ... RESPONDENT(S)\n\nTHE STATE OF ODISHA\n\n J U D G M E N T"
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"text": "\n ASHOK BHUSHAN, J."
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"text": "This appeal has been filed by the accused against the judgment of Orissa High Court dated 25.01.2017."
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"text": "The Orissa High Court vide the impugned judgment has dismissed the criminal appeal filed by the appellant questioning his conviction under Section 304 Part II of the Indian Penal Code and sentence of five years rigorous imprisonment awarded by the trial court."
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],
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"text": "\n 2. The prosecution case as is revealed from the record is that Bhaskar Sahu (deceased) on 28.11.1990 in the morning at 7.00 A.M. was going near Belapada by a bicycle."
}
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{
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"start": 992,
"text": "Near the Belapada bridge, the accused threw a bomb towards the deceased, which hit the right leg of Bhaskar Sahu, the deceased, due to which he fell down on the road."
}
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"text": "Bhaskar Sahu when started running to save his life, accused came running before the deceased and dealt a kati blow on right shoulder of Bhaskar Sahu on which he fell down thereafter the accused poured acid on head, face and chest of Bhaskar Sahu."
}
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"text": "Thereafter the accused and his friends left that place."
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"text": "One Khalia Pati belonging to the village of Bhaskar Sahu took the deceased with the help of bicycle."
}
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"text": "Thereafter brother of Bhaskar Sahu Surendra Nath Sahu after receiving the news of assault came with Tarini Sahu, Kasinath Bisoi and Bidyadhar Babu belonging to the village and got admitted Bhaskar Sahu in Berhampur Medical College."
}
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"labels": [
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"text": "\nSuurendra Nath Sahu, the brother of Bhaskar Sahu lodged a First Information Report naming the accused."
}
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"text": "First Information Report was lodged under Sections 324/326/286/34 IPC."
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"start": 1970,
"text": "The I.O. visited the spot on 30.11.1990 and seized one blood stained stone and sample stone and one yellow colour banian with smell of acid and prepared the seizure list."
}
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"end": 2206,
"labels": [
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"start": 2141,
"text": "Some sample earth, one towel with smell of acid was also noticed."
}
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"text": "Thereafter the I.O. examined the witnesses."
}
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"text": "The I.O. on 05.12.1990 showed arrest of the accused."
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"start": 2304,
"text": "On 05.12.1990 the I.O.\nrecorded the statement of Bhaskar Sahu under Section 161 Cr.P.c. in which statement Bhaskar Sahu named the accused, the persons, who has thrown the bomb, hit with kati and thrown acid on his face and head."
}
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"start": 2533,
"text": "The accused was challaned and PW1, the informant, PW2 - Dandopani Dass and PW3 Prafulla Leuman Sahu were examined by the prosecution."
}
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"text": " I.O. (PW4) Prithandhi Moghi also appeared in the witness box."
}
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"text": "The deceased while still in hospital died on 25.03.1991."
}
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"text": "Defence examined two witnesses namely DW1 Ramesh Chandra Sahu and DW2 Bidyadhar Sahu."
}
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"labels": [
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"text": "3. The trial court after analyzing the evidence on record and hearing the counsel for the parties convicted the accused under Section 304 Part II of the I.P.C. and awarded five years rigorous imprisonment."
}
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"end": 3256,
"labels": [
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"text": "Aggrieved by the judgment of the trial court, the appeal was filed by the accused in the High Court, which has been dismissed by the High Court by the impugned judgment."
}
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"end": 3376,
"labels": [
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],
"start": 3256,
"text": "\n 4. Learned counsel for the appellant contends that there is contradiction in the evidence of PW1 with other witnesses."
}
},
{
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"to_name": "text",
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"value": {
"end": 3443,
"labels": [
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],
"start": 3377,
"text": "There is contradiction as to who took the injured to the hospital."
}
},
{
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"end": 3560,
"labels": [
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],
"start": 3444,
"text": "The victim became unconscious and it is unbelievable that he informed the PW1 that it was accused, who attacked him."
}
},
{
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"id": "5e4d5297eded4a15b4665b429dcbab46",
"to_name": "text",
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"value": {
"end": 3967,
"labels": [
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],
"start": 3561,
"text": "The statement of injured recorded under Section 161 Cr.P.C. cannot be treated as a dying declaration in view of the well settled principle of law enunciated by a Constitution Bench judgment of this Court in Laxman Vs. State of Maharashtra, (2002) 6 SCC 710, as to who is the author of the crime, both the Courts below arrived at the findings based on surmises and conjectures and not on evidence on record."
}
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"end": 4177,
"labels": [
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],
"start": 3967,
"text": "\n 5. Learned counsel for the State refuting the submission of counsel for the appellant contends that on the basis of evidence on record, both the Courts have rightly held the charge proved against the accused."
}
},
{
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"value": {
"end": 4305,
"labels": [
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],
"start": 4178,
"text": "No error has been committed by the Courts below relying on the statement made by the injured on 05.12.1990 recorded by the I.O."
}
},
{
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"id": "11a25bacdd8d4018b286ba36a6ff2e1b",
"to_name": "text",
"type": "labels",
"value": {
"end": 4481,
"labels": [
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],
"start": 4306,
"text": "Further, evidence of PW1, to whom deceased had informed that it was accused, who threw bomb and made kati attack and threw acid, has rightly been believed by the Courts below."
}
},
{
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"id": "8cee1626970f46c08f73a4b8f1177644",
"to_name": "text",
"type": "labels",
"value": {
"end": 4644,
"labels": [
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],
"start": 4482,
"text": "It is submitted that the statement made by the injured on 05.12.1990 was fully admissible and no error has been committed by the Courts below in relying the same."
}
},
{
"from_name": "label",
"id": "572c229dd0ee4b70b4ec288d9e0d347f",
"to_name": "text",
"type": "labels",
"value": {
"end": 4854,
"labels": [
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],
"start": 4645,
"text": "Learned counsel for the State has placed reliance on judgment of this Court in Mukeshbhai Gopalbhai Barot Vs. State of Gujarat, (2010) 8 SCALE 477 and Sri Bhagwan Vs. State of Uttar Pradesh, (2013) 12 SCC 137."
}
},
{
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"value": {
"end": 4962,
"labels": [
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],
"start": 4854,
"text": "\n 6. We have considered the submissions of the learned counsel for the parties and have perused the records."
}
},
{
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"id": "40a8628ccb03458180807d39b4117fb4",
"to_name": "text",
"type": "labels",
"value": {
"end": 5190,
"labels": [
"ARG_PETITIONER"
],
"start": 4962,
"text": "\n 7. The main thrust of submission of the learned counsel for the appellant is that statement recorded by I.O. on 05.12.1990 of the victim cannot be treated as dying declaration since death occurred after more than three months."
}
},
{
"from_name": "label",
"id": "9119323cb1af4cc1b7f56bceae4501ff",
"to_name": "text",
"type": "labels",
"value": {
"end": 5287,
"labels": [
"ARG_PETITIONER"
],
"start": 5191,
"text": "He submits that both Courts committed error in treating the said statement as dying declaration."
}
},
{
"from_name": "label",
"id": "873d9b4ab1d949bea3b9bf7e5b757ee9",
"to_name": "text",
"type": "labels",
"value": {
"end": 5434,
"labels": [
"ANALYSIS"
],
"start": 5287,
"text": "\n 8. Section 32 of the Evidence Act deals with cases in which statement of relevant fact by person who is dead or cannot be found etc. is relevant."
}
},
{
"from_name": "label",
"id": "47c8bbfcb9fc414aa4e2d184f656b408",
"to_name": "text",
"type": "labels",
"value": {
"end": 5612,
"labels": [
"STA"
],
"start": 5435,
"text": "Section 32 in so far as relevant in the present case is as follows:- S.32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant."
}
},
{
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"id": "a4ad5a497f584b2e8ff6aa02f7ea4f22",
"to_name": "text",
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"value": {
"end": 6236,
"labels": [
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],
"start": 5613,
"text": " Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases: (1) When it relates to cause of death. When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question."
}
},
{
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],
"start": 6236,
"text": "\n Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."
}
},
{
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"text": "xxxxxxxxxxxxxx"
}
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"text": "Illustrations: (a)"
}
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{
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"end": 6648,
"labels": [
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],
"start": 6514,
"text": "The question is, whether A was murdered by B; or A died of injuries received in a transaction in the course of which she was ravished."
}
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{
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"id": "341e56820beb434f95d7fb9f403aaa04",
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"labels": [
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"text": "The question is whether she was ravished by B; or"
}
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"end": 6812,
"labels": [
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],
"start": 6699,
"text": "The question is, whether A was killed by B under such circumstances that a suit would lie against B by A's widow."
}
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{
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"end": 6988,
"labels": [
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],
"start": 6812,
"text": "\n Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape and the actionable wrong under consideration, are relevant facts.\n 9."
}
},
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"start": 6989,
"text": "Other provisions relevant to be noticed are Section 161 and Section 162 of the Code of Criminal Procedure."
}
},
{
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"id": "4429ec1df2d24ef4a87c971b9801163e",
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"text": "\n Section 161 deals with examination of witnesses by police."
}
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"end": 7250,
"labels": [
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"start": 7156,
"text": "Section 162 deals with \"statements to police not to be signed Use of Statements in evidence\"."
}
},
{
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"id": "7277d8116d114e819ad2f496249a6bdc",
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"end": 7838,
"labels": [
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],
"start": 7252,
"text": "Section 162 Cr.P.C. is as follows:- 162. Statements to police not to be signed: Use of statements in evidence.--(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:"
}
},
{
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"end": 8434,
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],
"start": 7839,
"text": "Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act , 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination."
}
},
{
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"value": {
"end": 8664,
"labels": [
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],
"start": 8434,
"text": "\n (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872); or to affect the provisions of section 27 of that Act."
}
},
{
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"end": 9026,
"labels": [
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],
"start": 8664,
"text": "\n Explanation.--An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact."
}
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{
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"end": 9141,
"labels": [
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],
"start": 9026,
"text": "\n 10. Sub-section (2) to Section 162 incorporate a clear exception to what has been laid down in sub-section (1).\n "
}
},
{
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"end": 9316,
"labels": [
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],
"start": 9141,
"text": "The statement recorded by police under Section 161, falling within the provisions of clause (1) of Section 32 of Indian Evidence Act, thus, is clearly relevant and admissible."
}
},
{
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"end": 9459,
"labels": [
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],
"start": 9317,
"text": "In Mukeshbhai Gopalbhai Barot (supra), this Court had occasion to consider Sections 161 and 162 of Cr.P.C. and Section 32 of the Evidence Act."
}
},
{
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"id": "b4ab6af16dd64b5f86bd6863aebe5539",
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"value": {
"end": 9563,
"labels": [
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],
"start": 9460,
"text": "In the above case, the victim, who received burn injuries on 14.09.1993 was admitted to Civil Hospital."
}
},
{
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"id": "16e54df66c054ebbb365776885bbc11c",
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"end": 9638,
"labels": [
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],
"start": 9564,
"text": " Her statement was recorded by Executive Magistrate and by the Police."
}
},
{
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"end": 9779,
"labels": [
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],
"start": 9639,
"text": "The statement recorded by police under Section 161 Cr.P.C. was discarded by the High Court taking the view that it had no evidentiary value."
}
},
{
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"id": "47e77104727c4f02a6ed4fa3da9757e2",
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"end": 9838,
"labels": [
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],
"start": 9780,
"text": "The view of the High Court was not accepted by this Court."
}
},
{
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"value": {
"end": 9988,
"labels": [
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],
"start": 9840,
"text": "In paragraph Nos. 4 and 5, this Court held that the statement of persons recorded under Section 161 can be treated as dying declaration after death."
}
},
{
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"end": 10050,
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],
"start": 9989,
"text": "In paragraph Nos. 4 and 5, following has been laid down:- \"4."
}
},
{
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"end": 10132,
"labels": [
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],
"start": 10051,
"text": "We have considered the arguments advanced by the learned counsel for the parties."
}
},
{
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"end": 10373,
"labels": [
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],
"start": 10133,
"text": "At the very outset, we must deal with the observa- tions of the High Court that the dying decla- rations Ex.44 and 48 could not be taken as ev- idence in view of the provisions of Section 161 and 162 of the Cr.P.C. when read cumula- tively."
}
},
{
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"end": 10415,
"labels": [
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],
"start": 10374,
"text": "These findings are, however, erro- neous."
}
},
{
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"id": "b9c3a003905d4e5696c0bfd8da890931",
"to_name": "text",
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"end": 10579,
"labels": [
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],
"start": 10416,
"text": "Sub-Section (1) of Section 32 of the Indian Evidence Act, 1872 deals with several situations including the relevance of a state- ment made by a person who is dead."
}
},
{
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"id": "3b4e8933f97e467ab60c12fd9ca7e951",
"to_name": "text",
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"value": {
"end": 11035,
"labels": [
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],
"start": 10580,
"text": "The provi- sion reads as under: Sec.32. Cases in which statements of relevant fact by person who is dead or cannot be found, etc., is relevant. - Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable,"
}
},
{
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"id": "8ea85de5dfac4a519589bed482bae75d",
"to_name": "text",
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"value": {
"end": 11354,
"labels": [
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],
"start": 11036,
"text": "are themselves relevant facts in the following cases:- (1) When it relates to cause of death. - When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question."
}
},
{
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"value": {
"end": 11692,
"labels": [
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],
"start": 11354,
"text": "\n Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.\"\n We see that the aforesaid dying declara- tions are relevant in view of the above provi- sion."
}
},
{
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"end": 12205,
"labels": [
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],
"start": 11693,
"text": "Even otherwise, Section 161 and 162 of the Cr.P.C. admittedly provide for a restric- tive use of the statements recorded during the course of the investigation but sub-Section (2) of Section 162 deals with a situation where the maker of the statement dies and reads as under: \"(2) Nothing in this section shall be deemed to apply to any statement falling within the provi- sions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act.\"\n 5."
}
},
{
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"end": 12428,
"labels": [
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],
"start": 12206,
"text": "A bare perusal of the aforesaid provision when read with Section 32 of the Indian Evi- dence Act would reveal that a statement of a person recorded under Section 161 would be treated as a dying declaration after his death."
}
},
{
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"id": "8d09d722592e4f6abc7b71e28fda3521",
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"end": 12556,
"labels": [
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],
"start": 12429,
"text": "The observation of the High Court that the dying declarations Ex.44 and 48 had no ev- identiary value, therefore, is erroneous."
}
},
{
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"id": "5c47798b52e44e70ac646c6f7cb08443",
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"value": {
"end": 12727,
"labels": [
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],
"start": 12557,
"text": "In this view of the matter, the first dying dec- laration made to the Magistrate on 14th Sep- tember 1993 would, in fact, be the First In- formation Report in this case.\""
}
},
{
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"id": "dd8020138acf4846a860de44e3bc3af2",
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"end": 12909,
"labels": [
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],
"start": 12727,
"text": "\n 11. A similar view has been expressed by this Court in Sri Bhagwan (supra), where this Court had occasion to consider Section 161 Cr.P.C .and Section 32 of the Indian Evidence Act."
}
},
{
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"id": "87ac9d2a304b48ce86073b7db44c755c",
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"value": {
"end": 13004,
"labels": [
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],
"start": 12910,
"text": "This Court dealt with a statement under Section 161 Cr.P.C. subsequent to death of the victim."
}
},
{
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"id": "eaf0247063e24c4c86c9ea577b7c8a5e",
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"value": {
"end": 13053,
"labels": [
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],
"start": 13005,
"text": "In Para 20 to 24, following has been held:- \"20."
}
},
{
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"type": "labels",
"value": {
"end": 13377,
"labels": [
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],
"start": 13054,
"text": "While keeping the above prescription in mind, when we test the submission of the learned counsel for the appellant in the case on hand at the time when Section 161 CrPC statement of the deceased was recorded, the offence registered was under Section 326 IPC having regard to the grievous injuries sus- tained by the victim."
}
},
{
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"id": "447951525f3d4f8f8a338fc6bb30673e",
"to_name": "text",
"type": "labels",
"value": {
"end": 13533,
"labels": [
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],
"start": 13378,
"text": "PW 4 was not contemplat- ing to record the dying declaration of the victim inasmuch as the victim was seriously injured and immediately needed medical aid."
}
},
{
"from_name": "label",
"id": "6a8f2d5f185948df9cce65517b68731d",
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"end": 13763,
"labels": [
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],
"start": 13542,
"text": "Before sending him to the hospital for proper treatment PW 4 thought it fit to get the ver- sion about the occurrence recorded from the victim himself that had taken place and that is how Exhibit Ka-2 came to be recorded."
}
},
{
"from_name": "label",
"id": "fa4c3c0bfdf64680a7ffdae55599e368",
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"value": {
"end": 13836,
"labels": [
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],
"start": 13764,
"text": "Un- doubtedly, the statement was recorded as one under Section 161 CrPC."
}
},
{
"from_name": "label",
"id": "fc24a7da4d1c45989423f5d648ef68ec",
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"value": {
"end": 14017,
"labels": [
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],
"start": 13837,
"text": "Subsequent development resulted in the death of the victim on the next day and the law empowered the prosecution to rely on the said statement by treating it as a dying declaration"
}
},
{
"from_name": "label",
"id": "a77fff6490124f9f8e73e010959c795d",
"to_name": "text",
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"value": {
"end": 14144,
"labels": [
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],
"start": 14017,
"text": ", the question for con- sideration is whether the submission put forth on behalf of the respondent counsel merits ac- ceptance."
}
},
{
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"id": "0e47cef90e6f4734a9e66153b9371e03",
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"end": 14495,
"labels": [
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],
"start": 14144,
"text": "\n 21. Mr Ratnakar Dash, learned Senior Counsel made a specific reference to Section 162(2) CrPC in support of his submission that the said section carves out an exception and cre- dence that can be given to a Section 161 CrPC statement by leaving it like a declaration un- der Section 32(1) of the Evidence Act under certain exceptional circumstances."
}
},
{
"from_name": "label",
"id": "e279090c03d74bad80ff408f4a869881",
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"end": 14769,
"labels": [
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],
"start": 14496,
"text": "Section 162(2) CrPC reads as under: \"162. (2) Nothing in this section shall be deemed to apply to any statement falling within the provi- sions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.\""
}
},
{
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"end": 14850,
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],
"start": 14769,
"text": "\n 22. Under Section 32(1) of the Evidence Act it has been provided as under: \"32."
}
},
{
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"end": 14986,
"labels": [
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],
"start": 14851,
"text": "Cases in which statement of relevant fact by person who is dead or cannot be found, etc. is rele- vant.--Statements, written or verbal,"
}
},
{
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"id": "eade667ba49d4b9eb28c639922f73b09",
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"end": 15587,
"labels": [
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],
"start": 14987,
"text": "of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giv- ing evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are them- selves relevant facts in the follow- ing cases: (1) When it relates to cause of death.--When the statement is made by a person as to the cause of his death, or as to any of the circum- stances of the transaction which re- sulted in his death, in cases in which the cause of that person's death comes into question."
}
},
{
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"id": "635149f8c4ea439cbe68f29841b841f4",
"to_name": "text",
"type": "labels",
"value": {
"end": 15842,
"labels": [
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],
"start": 15587,
"text": "\n Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.\"\n 23."
}
},
{
"from_name": "label",
"id": "aa8cf06fc0f846b9bb0759a2bdf989e3",
"to_name": "text",
"type": "labels",
"value": {
"end": 16063,
"labels": [
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],
"start": 15843,
"text": "Going by Section 32(1) of the Evidence Act, it is quite clear that such statement would be relevant even if the person who made the statement was or was not at the time when he made it was under the expectation of death."
}
},
{
"from_name": "label",
"id": "b00f8f19bbe644ee9345a3e4386aaaa3",
"to_name": "text",
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"value": {
"end": 16340,
"labels": [
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],
"start": 16063,
"text": "\nHaving regard to the extraordinary credence attached to such statement falling under Sec- tion 32(1) of the Evidence Act, time and again this Court has cautioned as to the extreme care and caution to be taken while relying upon such evidence recorded as a dying decla- ration."
}
},
{
"from_name": "label",
"id": "0d770badd96e4f18afdf7d5d52a79356",
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"end": 16985,
"labels": [
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],
"start": 16342,
"text": "24. As far as the implication of Section 162(2) CrPC is concerned, as a proposition of law, unlike the excepted circumstances under which Section 161 CrPC statement could be re- lied upon, as rightly contended by the learned Senior Counsel for the respondent, once the said statement though recorded under Section 161 CrPC assumes the character of dying decla- ration falling within the four corners of Sec- tion 32(1) of the Evidence Act, then whatever credence that would apply to a declaration governed by Section 32(1) should automatically deemed to apply in all force to such a state- ment though was once recorded under Section 161 CrPC."
}
},
{
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"id": "2deb740dac6d478c8d42e5570623fdfc",
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"value": {
"end": 17556,
"labels": [
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],
"start": 16986,
"text": "The above statement of law would re- sult in a position that a purported recorded statement under Section 161 of a victim having regard to the subsequent event of the death of the person making the statement who was a vic- tim would enable the prosecuting authority to rely upon the said statement having regard to the nature and content of the said statement as one of dying declaration as deeming it and falling under Section 32(1) of Evidence Act and thereby commend all the credence that would be applicable to a dying declaration recorded and claimed as such.\"\n 12."
}
},
{
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"end": 17684,
"labels": [
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],
"start": 17557,
"text": "It is relevant to refer to judgment of this Court in Najjam Faraghi @ Nijjam Faruqui Vs. State of West Bengal, (1998) 2 SCC 45."
}
},
{
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"id": "2225da2bc547445ea47e5d7b6c9ff33a",
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"end": 17784,
"labels": [
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],
"start": 17685,
"text": "In the above case, the kerosene oil was poured on the victim and she was put on fire on 13.06.1985."
}
},
{
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"id": "85c92fe3fa344eff86ed356368aec180",
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"value": {
"end": 17836,
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],
"start": 17785,
"text": "She lived for about a month and died on 31.07.1985."
}
},
{
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"id": "887a13ecd0804d08b076e94b96de7986",
"to_name": "text",
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"value": {
"end": 17993,
"labels": [
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],
"start": 17837,
"text": "This Court referring to Section 32(1) held that mere fact that victim died long after making the dying declaration, the statement does not looses its value."
}
},
{
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"id": "fc323b7d5da74afc94a01e1a164a1b3e",
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"value": {
"end": 18034,
"labels": [
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],
"start": 17994,
"text": "In Para 9, following has been held:- \"9."
}
},
{
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"to_name": "text",
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"value": {
"end": 18188,
"labels": [
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],
"start": 18035,
"text": "There is no merit in the contention that the appellant's wife died long after making the dying declarations and therefore those statements have no value."
}
},
{
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"id": "59e839c4a1bb423486aa4d0bc4d19642",
"to_name": "text",
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"end": 18272,
"labels": [
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],
"start": 18189,
"text": "The contention over- looks the express provision in Section 32 of the Evidence Act."
}
},
{
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"id": "76cb672f14824e1ea7f479a308001b75",
"to_name": "text",
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"value": {
"end": 18580,
"labels": [
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],
"start": 18273,
"text": "The second paragraph of sub- section (1) reads as follows: \"Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the na- ture of the proceeding in which the cause of his death comes into ques- tion.\"\n "
}
},
{
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"id": "195b4e5baf784ba1a2a81fe409a91572",
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"end": 18718,
"labels": [
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],
"start": 18580,
"text": "No doubt it has been pointed out that when a person is expecting his death to take place shortly he would not be indulging in false- hood."
}
},
{
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"id": "00053ab9ab4e440cb94337f0ea695462",
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"end": 18832,
"labels": [
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],
"start": 18719,
"text": "But that does not mean that such a statement loses its value if the person lives for a longer time than expected."
}
},
{
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"end": 18931,
"labels": [
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],
"start": 18833,
"text": "The question has to be considered in each case on the facts and circumstances established therein."
}
},
{
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"id": "1bc952f2bb734423ad48a9d64cef9768",
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"end": 19154,
"labels": [
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],
"start": 18932,
"text": "If there is nothing on record to show that the statement could not have been true or if the other evidence on record corroborates the con- tents of the statements, the court can cer- tainly accept the same and act upon it."
}
},
{
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"end": 19312,
"labels": [
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],
"start": 19155,
"text": "In the present case both courts have discussed the entire evidence on record and found that two dying declarations contained in Exs. 5 and 6 are acceptable.\""
}
},
{
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"id": "be0af5da96ce4330922de8290128a8fc",
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"value": {
"end": 19476,
"labels": [
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],
"start": 19312,
"text": "\n 13. Much emphasis has been given by the learned counsel for the appellant on Constitution Bench judgment of this Court in Laxman Vs. State of Maharashtra (supra)."
}
},
{
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"id": "fc6325066a724c88925b2101d9f275a7",
"to_name": "text",
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"value": {
"end": 19746,
"labels": [
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],
"start": 19477,
"text": "The above constitution Bench was constituted to resolve the conflict between two Three-Judge Bench judgment of this Court, i.e. Paparambaka Rosamma and Others Vs. State of A.P. (1999) 7 SCC 695 and Koli Chunilal Savji and Another Vs. State of Gujarat, (1999) 9 SCC 562."
}
},
{
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"id": "271034a941974f14af6d71b7be5651bf",
"to_name": "text",
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"value": {
"end": 20075,
"labels": [
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],
"start": 19747,
"text": "The facts of the case and conflicting views expressed in the above two cases has been noticed in Paragraph Nos. 1 and 2, which are to the following effect:- \"In this criminal appeal, the conviction of the accused-appellant is based upon the dying declaration of the deceased which was recorded by the Judicial Magistrate (PW 4)."
}
},
{
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"id": "0a940f4e98f84118a9a866e12cba7a7b",
"to_name": "text",
"type": "labels",
"value": {
"end": 20219,
"labels": [
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],
"start": 20076,
"text": "The learned Sessions Judge as well as the High Court held the dying declaration made by the deceased to be truthful, voluntary and trustworthy."
}
},
{
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"id": "f6c74402e5cb47bbba754e9d677a4119",
"to_name": "text",
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"value": {
"end": 20593,
"labels": [
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],
"start": 20220,
"text": "The Magistrate in his evidence had stated that he had contacted the patient through the medical officer on duty and after putting some ques- tions to the patient to find out whether she was able to make the statement; whether she was set on fire; whether she was conscious and able to make the statement and on being satis- fied he recorded the statement of the de- ceased."
}
},
{
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"id": "421c9105908f4e5ba4c97573e601a581",
"to_name": "text",
"type": "labels",
"value": {
"end": 20681,
"labels": [
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],
"start": 20594,
"text": "There was a certificate of the doctor which indicates that the patient was con- scious."
}
},
{
"from_name": "label",
"id": "8123a8936a804e828176fcdaf06f4f51",
"to_name": "text",
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"value": {
"end": 21028,
"labels": [
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],
"start": 20682,
"text": "The High Court on consideration of the evidence of the Magistrate as well as on the certificate of the doctor on the dying decla- ration recorded by the Magistrate together with other circumstances on record came to the conclusion that the deceased Chandrakala was physically and mentally fit and as such the dying declaration can be relied upon."
}
},
{
"from_name": "label",
"id": "bf7e6ef9187a4a2895e624299928fb99",
"to_name": "text",
"type": "labels",
"value": {
"end": 21560,
"labels": [
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],
"start": 21029,
"text": "When the appeal against the judgment of the Aurangabad Bench of the Bombay High Court was placed be- fore a three-Judge Bench of this Court, the counsel for the appellant relied upon the de- cision of this Court in the case of Paparam- baka Rosamma v. State of A.P., (1999) 7 SCC 695 and contended that since the certification of the doctor was not to the effect that the patient was in a fit state of mind to make the statement, the dying declaration could not have been accepted by the Court to form the sole basis of conviction."
}
},
{
"from_name": "label",
"id": "297e221ef3d44b4083f255174a7c672d",
"to_name": "text",
"type": "labels",
"value": {
"end": 22103,
"labels": [
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],
"start": 21561,
"text": "On behalf of the counsel appearing for the State another three- Judge Bench decision of this Court in the case of Koli Chunilal Savji v. State of Gujarat (1999) 9 SCCC 562 was relied upon wherein this Court has held that if the materials on record indicate that the deceased was fully conscious and was capable of making a statement, the dy- ing declaration of the deceased thus recorded cannot be ignored merely because the doctor had not made the endorsement that the deceased was in a fit state of mind to make the state- ment in question."
}
},
{
"from_name": "label",
"id": "b6800423a57642da81b1730ad684765a",
"to_name": "text",
"type": "labels",
"value": {
"end": 22299,
"labels": [
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],
"start": 22104,
"text": "Since the two aforesaid de- cisions expressed by two Benches of three learned Judges was somewhat contradictory the Bench by order dated 27-7-2002 referred the question to the Constitution Bench."
}
},
{
"from_name": "label",
"id": "37046a67ed6648f7811b82b4009ca08c",
"to_name": "text",
"type": "labels",
"value": {
"end": 22605,
"labels": [
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],
"start": 22299,
"text": "\n 2. At the outset we make it clear that we are only resolving the so-called conflict be- tween the aforesaid three-Judge Bench decision of this Court, whereafter the criminal appeal will be placed before the Bench presided over by Justice M.B. Shah who had referred the mat- ter to the Constitution Bench."
}
},
{
"from_name": "label",
"id": "b2ce76b3c58748e7b6a9e72e9e0ca042",
"to_name": "text",
"type": "labels",
"value": {
"end": 22829,
"labels": [
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],
"start": 22606,
"text": "We are, there- fore, refraining from examining the evidence on record to come to a conclusion one way or the other and we are restricting our consider- ations to the correctness of the two decisions referred to supra.\"\n 14."
}
},
{
"from_name": "label",
"id": "58f9c04d8cea4c70804ba3bfad0952c0",
"to_name": "text",
"type": "labels",
"value": {
"end": 22929,
"labels": [
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],
"start": 22830,
"text": "The Constitution Bench approved the view taken by later judgment in Koli Chunilal Savji (supra). "
}
},
{
"from_name": "label",
"id": "22b75c36eb894a04a62dc71131b37a91",
"to_name": "text",
"type": "labels",
"value": {
"end": 22983,
"labels": [
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],
"start": 22929,
"text": "In Paragraph No. 5, following has been laid down:- \"5."
}
},
{
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"id": "cc2884c91fbc411e8d7dc2f54967f501",
"to_name": "text",
"type": "labels",
"value": {
"end": 23442,
"labels": [
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],
"start": 22984,
"text": "The Court also in the aforesaid case relied upon the decision of this Court in Har- jit Kaur v. State of Punjab4 wherein the Mag- istrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and ob- tained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner."
}
},
{
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"id": "652f5a05175a4338a99b8360f2288d6f",
"to_name": "text",
"type": "labels",
"value": {
"end": 24047,
"labels": [
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],
"start": 23443,
"text": "For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this Court in Paparambaka Rosamma v. State of A.P.\n(1999) 7 SCC 695 (at SCC p. 701, para 8) to the effect that \"in the absence of a medical certi- fication that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the sub- jective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration\"\n has been too broadly stated and is not the correct enunciation of law."
}
},
{
"from_name": "label",
"id": "99991cb758e745f3bb14143307a92c38",
"to_name": "text",
"type": "labels",
"value": {
"end": 24501,
"labels": [
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],
"start": 24048,
"text": "It is indeed a hy- pertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the ques- tions he had put to the patient and from the answers elicited was satisfied that the pa- tient was in a fit state of mind whereafter he recorded the dying declaration."
}
},
{
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"id": "c13a244531314bad9e91fc4396ceeb3d",
"to_name": "text",
"type": "labels",
"value": {
"end": 24747,
"labels": [
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],
"start": 24502,
"text": "Therefore, the judgment of this Court in Paparambaka Rosamma v. State of A.P. (1999) 7 SCC 695 must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chuni- lal Savji v. State of Gujarat (1999) 9 SCC 562.\""
}
},
{
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"id": "2a818f28889240eda4216c9e6b0ac5bb",
"to_name": "text",
"type": "labels",
"value": {
"end": 25158,
"labels": [
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],
"start": 24747,
"text": "\n 15. The view expressed by Three-Judge Bench in Paparambaka Rosamma (supra) that in the absence of medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration, does not lay down a correct law."
}
},
{
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"id": "a403f5da89c04314b27f0dedda9385fc",
"to_name": "text",
"type": "labels",
"value": {
"end": 25313,
"labels": [
"ANALYSIS"
],
"start": 25159,
"text": "Thus, the Constitution bench was only considering the question of nature of medical certification regarding fitness of victim to make a dying declaration."
}
},
{
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"id": "d342fdb9184146d4bbed653c99f7c4ca",
"to_name": "text",
"type": "labels",
"value": {
"end": 25464,
"labels": [
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],
"start": 25314,
"text": "The proposition laid down in the above case does not in any manner support the contention raised by the counsel for the appellant in the present case."
}
},
{
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"id": "2c00442f3cb749268d5a50faad50ac64",
"to_name": "text",
"type": "labels",
"value": {
"end": 25568,
"labels": [
"ANALYSIS"
],
"start": 25465,
"text": "Present is a case where a statement was recorded by I.O. under Section 161 of the victim on 05.12.1990."
}
},
{
"from_name": "label",
"id": "92d777426cd44cef9a12955c62007b0b",
"to_name": "text",
"type": "labels",
"value": {
"end": 25679,
"labels": [
"ANALYSIS"
],
"start": 25569,
"text": "Both the trial court and the High Court held the statement relevant and placed reliance on the said statement."
}
},
{
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"id": "372dcb0a8b984878a35876b0f1343ddb",
"to_name": "text",
"type": "labels",
"value": {
"end": 25837,
"labels": [
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],
"start": 25679,
"text": "\n 16. We have noticed that this Court has laid down that statement under Section 161 Cr.P.C., which is covered under Section 32(1) is relevant and admissible."
}
},
{
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"id": "ee688860436c4b49a6be645d7ae4cff0",
"to_name": "text",
"type": "labels",
"value": {
"end": 26011,
"labels": [
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],
"start": 25838,
"text": "Thus, we do not find any error in the judgment of the trial court as well as of the High Court in relying on the statement of the injured recorded by the I.O. on 05.12.1990."
}
},
{
"from_name": "label",
"id": "a43adda05c154f5cad26bfb97db3db15",
"to_name": "text",
"type": "labels",
"value": {
"end": 26229,
"labels": [
"ANALYSIS"
],
"start": 26012,
"text": "It is also relevant to notice that I.O. in his cross-examination has stated that he went on the night of 30.11.1990 to the Medical College to record the statement but as his condition was serious, he was not examined."
}
},
{
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"id": "0abd8af96c3d4e25941d060f2f9b39b7",
"to_name": "text",
"type": "labels",
"value": {
"end": 26384,
"labels": [
"ANALYSIS"
],
"start": 26230,
"text": "Thus, reliance on the statement made on 05.12.1990 to the I.O. does not lead to any suspicious circumstances so as to discard the value of such statement."
}
},
{
"from_name": "label",
"id": "82a341963c3747f797704e3ac39fc857",
"to_name": "text",
"type": "labels",
"value": {
"end": 26815,
"labels": [
"ANALYSIS"
],
"start": 26385,
"text": "The statement, which was made by the victim on 05.12.1990 was to the following effect:- \"My name is Bhaskar Sahu, S/o. Kaibalya Sahu, present/permanent Resident of Village - Langal Dei, P.S. Digapahandi Dist. Gangnam, Today, i.e. on 05.12.1920, being at the Medical College ward I hereby give my verbal statement that, I was going to Belapada from our Village Langal Del on 28.11.1990 at about 6:30 to 7:00 O'clock on my bi-cycle."
}
},
{
"from_name": "label",
"id": "43b33acc08fc4a028e26d0d07eaf39ef",
"to_name": "text",
"type": "labels",
"value": {
"end": 26977,
"labels": [
"ANALYSIS"
],
"start": 26816,
"text": "On my way near the bridge of Belapada Village, inhabitant of our village namely Pradeep Bisoi, S/o. Madhab Bisoi and some of his friends were waiting to kill me."
}
},
{
"from_name": "label",
"id": "36785203f46142d3a612b70191ca6cc9",
"to_name": "text",
"type": "labels",
"value": {
"end": 27004,
"labels": [
"ANALYSIS"
],
"start": 26978,
"text": "They had come by a Scoter."
}
},
{
"from_name": "label",
"id": "0878347ac9a34ab1a99aa507b489186f",
"to_name": "text",
"type": "labels",
"value": {
"end": 27025,
"labels": [
"ANALYSIS"
],
"start": 27005,
"text": "I don't know others."
}
},
{
"from_name": "label",
"id": "2be2de8bb3854d89afa514ad07860221",
"to_name": "text",
"type": "labels",
"value": {
"end": 27185,
"labels": [
"ANALYSIS"
],
"start": 27026,
"text": "Near the Belapada Bridge, all of a sudden Pradeep Bisoi threw a Bomb towards me which was defused after hitting my right leg for which I fell down on the road."
}
},
{
"from_name": "label",
"id": "636545a77d39462ab7c6cb760a102cff",
"to_name": "text",
"type": "labels",
"value": {
"end": 27360,
"labels": [
"ANALYSIS"
],
"start": 27186,
"text": "When I started running, trying to save my life, at that time Pradeep Bisoi came running after me and dealt a kati blow on my right solder, for which I fell down bloodstained."
}
},
{
"from_name": "label",
"id": "87f07f415e424edc8bf376fecb03ce1f",
"to_name": "text",
"type": "labels",
"value": {
"end": 27484,
"labels": [
"ANALYSIS"
],
"start": 27361,
"text": "Thereafter from a bottle carried by him, he poured acid on my head, face, chest and also on my entire body To save my life."
}
},
{
"from_name": "label",
"id": "fd6ce44ce0aa4f65801dfef25b43eb45",
"to_name": "text",
"type": "labels",
"value": {
"end": 27531,
"labels": [
"ANALYSIS"
],
"start": 27485,
"text": "I threw away my black color vest from my body."
}
},
{
"from_name": "label",
"id": "10a65a77790443d19290714bba1a0f73",
"to_name": "text",
"type": "labels",
"value": {
"end": 27612,
"labels": [
"ANALYSIS"
],
"start": 27532,
"text": "Looking at my critical condition, Pradeep Bisoi and his friends left that place."
}
},
{
"from_name": "label",
"id": "68845626055a4b90a5083f11d7db6b73",
"to_name": "text",
"type": "labels",
"value": {
"end": 27912,
"labels": [
"ANALYSIS"
],
"start": 27613,
"text": "After that, the son of Khalia Pati of our village saw me, and while taking me by the help of a cycle, my brother Surendar Sahu got that news and Tarini Sahu, and Kishnath Bisoi and Bidhyadhara Babu of our village reached to me and my brother immediately admitted me in the Berhampur Medical Collage."
}
},
{
"from_name": "label",
"id": "88ed34b90bc04dbb953bc08622214976",
"to_name": "text",
"type": "labels",
"value": {
"end": 27953,
"labels": [
"ANALYSIS"
],
"start": 27913,
"text": "Otherwise I would have died on the spot."
}
},
{
"from_name": "label",
"id": "a47e08af0aa04680b8f2e37319c23ce5",
"to_name": "text",
"type": "labels",
"value": {
"end": 28022,
"labels": [
"ANALYSIS"
],
"start": 27954,
"text": "Because of our previous enmity, Pradeep Bisoi was trying to kill me."
}
},
{
"from_name": "label",
"id": "cf90b2a4319841208fe9f0eaa9e41677",
"to_name": "text",
"type": "labels",
"value": {
"end": 28044,
"labels": [
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],
"start": 28023,
"text": "But I was just saved."
}
},
{
"from_name": "label",
"id": "ff9649c1ea234731bf5bb7269cf4058c",
"to_name": "text",
"type": "labels",
"value": {
"end": 28080,
"labels": [
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],
"start": 28045,
"text": "There is no chance of my survival.\""
}
},
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"text": "\n 17. The trial court after appreciation of evidence recorded the findings that deceased had acid injuries as well as bomb blast injuries."
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"text": "In the acid attack, he has lost his eye-sight and also lost his right foot."
}
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"text": "The trial court has rightly held that statement of deceased made on 05.12.1990 is admissible under Section 32 because it is regarding his cause of death and how he was injured."
}
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"text": "In para 8 of the judgment, trial court has recorded as follows:- \"8. From the medical report it is clear that the deceased was having acid injury and bomb blasting injury and during the treatment he died in the hospital."
}
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"text": "Now it is to be seen who has caused those acid and bomb blast injuries on the person of the deceased."
}
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"text": "There is no eye witness to the occurrence."
}
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"text": "The deceased had given information to the P.W.1 and also to the I.O."
}
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"text": "P.W.1 says that he learnt from the deceased that accused assaulted him and threw acid on his face, and other parts of his body and he reported the matter to the police, after knowing the fact from the deceased, vide Ext. 12."
}
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"text": "It is also clear from the evidence of P.W.3 that he carried the deceased to the hospital, who had sustained injuries."
}
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"text": "The statement of the deceased to P.W.1 is admissible under 32 of the Evidence Act."
}
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"text": "Because, it gives regarding his cause of death and how he was injured.\""
}
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"start": 29404,
"text": "\n 18. The injuries on the body of deceased fully support the prosecution case."
}
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"end": 29688,
"labels": [
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],
"start": 29483,
"text": " The statement made by the deceased on 05.12.1990, thus, finds corroboration from the injuries on the body of deceased and the sequences of the events and manner of incidents as claimed by the prosecution."
}
},
{
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"end": 29753,
"labels": [
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],
"start": 29689,
"text": "The PW1, the informant has fully supported the prosecution case."
}
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"value": {
"end": 29913,
"labels": [
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],
"start": 29753,
"text": "\n 19. The High Court while dismissing the appeal has also made observation that conviction and sentence of the accused was for a lesser offence and lenient one."
}
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{
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"end": 30059,
"labels": [
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],
"start": 29913,
"text": "\n 20. We having gone through the evidence on record are fully satisfied that the trial court did not commit any error in convicting the appellant."
}
},
{
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"end": 30175,
"labels": [
"RPC"
],
"start": 30060,
"text": "High Court while deciding the appeal has also analysed the evidence on record and has rightly dismissed the appeal."
}
},
{
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"value": {
"end": 30243,
"labels": [
"RPC"
],
"start": 30176,
"text": "We, thus, do not find any merit in this appeal, which is dismissed."
}
},
{
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"to_name": "text",
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"value": {
"end": 30255,
"labels": [
"NONE"
],
"start": 30243,
"text": "\n New Delhi,"
}
},
{
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"to_name": "text",
"type": "labels",
"value": {
"end": 30337,
"labels": [
"NONE"
],
"start": 30256,
"text": " ......................J.\nOctober 10, 2018. ( A.K. SIKRI )"
}
},
{
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"value": {
"end": 30360,
"labels": [
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],
"start": 30338,
"text": "......................"
}
},
{
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"to_name": "text",
"type": "labels",
"value": {
"end": 30410,
"labels": [
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],
"start": 30360,
"text": "J.\n ( ASHOK BHUSHAN )"
}
}
]
}
] | 1,757 | {
"text": " REPORTABLE\n\n IN THE SUPREME COURT OF INDIA\nCRIMINAL APPELLATE JURISDICTION\n\n CRIMINAL APPEAL NO.1192 OF 2018\n(arising out of SLP (Crl.) No. 6225 of 2017)\n\nPRADEEP BISOI @ RANJIT BISOI ... APPELLANT(S)\n VERSUS ... RESPONDENT(S)\n\nTHE STATE OF ODISHA\n\n J U D G M E N T\n ASHOK BHUSHAN, J.\n This appeal has been filed by the accused against the judgment of Orissa High Court dated 25.01.2017. The Orissa High Court vide the impugned judgment has dismissed the criminal appeal filed by the appellant questioning his conviction under Section 304 Part II of the Indian Penal Code and sentence of five years rigorous imprisonment awarded by the trial court.\n 2. The prosecution case as is revealed from the record is that Bhaskar Sahu (deceased) on 28.11.1990 in the morning at 7.00 A.M. was going near Belapada by a bicycle. Near the Belapada bridge, the accused threw a bomb towards the deceased, which hit the right leg of Bhaskar Sahu, the deceased, due to which he fell down on the road. Bhaskar Sahu when started running to save his life, accused came running before the deceased and dealt a kati blow on right shoulder of Bhaskar Sahu on which he fell down thereafter the accused poured acid on head, face and chest of Bhaskar Sahu. Thereafter the accused and his friends left that place. One Khalia Pati belonging to the village of Bhaskar Sahu took the deceased with the help of bicycle. Thereafter brother of Bhaskar Sahu Surendra Nath Sahu after receiving the news of assault came with Tarini Sahu, Kasinath Bisoi and Bidyadhar Babu belonging to the village and got admitted Bhaskar Sahu in Berhampur Medical College.\nSuurendra Nath Sahu, the brother of Bhaskar Sahu lodged a First Information Report naming the accused. First Information Report was lodged under Sections 324/326/286/34 IPC. The I.O. visited the spot on 30.11.1990 and seized one blood stained stone and sample stone and one yellow colour banian with smell of acid and prepared the seizure list. Some sample earth, one towel with smell of acid was also noticed. Thereafter the I.O. examined the witnesses. The I.O. on 05.12.1990 showed arrest of the accused. On 05.12.1990 the I.O.\nrecorded the statement of Bhaskar Sahu under Section 161 Cr.P.c. in which statement Bhaskar Sahu named the accused, the persons, who has thrown the bomb, hit with kati and thrown acid on his face and head. The accused was challaned and PW1, the informant, PW2 - Dandopani Dass and PW3 Prafulla Leuman Sahu were examined by the prosecution. I.O. (PW4) Prithandhi Moghi also appeared in the witness box. The deceased while still in hospital died on 25.03.1991. Defence examined two witnesses namely DW1 Ramesh Chandra Sahu and DW2 Bidyadhar Sahu.\n 3. The trial court after analyzing the evidence on record and hearing the counsel for the parties convicted the accused under Section 304 Part II of the I.P.C. and awarded five years rigorous imprisonment. Aggrieved by the judgment of the trial court, the appeal was filed by the accused in the High Court, which has been dismissed by the High Court by the impugned judgment.\n 4. Learned counsel for the appellant contends that there is contradiction in the evidence of PW1 with other witnesses. There is contradiction as to who took the injured to the hospital. The victim became unconscious and it is unbelievable that he informed the PW1 that it was accused, who attacked him. The statement of injured recorded under Section 161 Cr.P.C. cannot be treated as a dying declaration in view of the well settled principle of law enunciated by a Constitution Bench judgment of this Court in Laxman Vs. State of Maharashtra, (2002) 6 SCC 710, as to who is the author of the crime, both the Courts below arrived at the findings based on surmises and conjectures and not on evidence on record.\n 5. Learned counsel for the State refuting the submission of counsel for the appellant contends that on the basis of evidence on record, both the Courts have rightly held the charge proved against the accused. No error has been committed by the Courts below relying on the statement made by the injured on 05.12.1990 recorded by the I.O. Further, evidence of PW1, to whom deceased had informed that it was accused, who threw bomb and made kati attack and threw acid, has rightly been believed by the Courts below. It is submitted that the statement made by the injured on 05.12.1990 was fully admissible and no error has been committed by the Courts below in relying the same. Learned counsel for the State has placed reliance on judgment of this Court in Mukeshbhai Gopalbhai Barot Vs. State of Gujarat, (2010) 8 SCALE 477 and Sri Bhagwan Vs. State of Uttar Pradesh, (2013) 12 SCC 137.\n 6. We have considered the submissions of the learned counsel for the parties and have perused the records.\n 7. The main thrust of submission of the learned counsel for the appellant is that statement recorded by I.O. on 05.12.1990 of the victim cannot be treated as dying declaration since death occurred after more than three months. He submits that both Courts committed error in treating the said statement as dying declaration.\n 8. Section 32 of the Evidence Act deals with cases in which statement of relevant fact by person who is dead or cannot be found etc. is relevant. Section 32 in so far as relevant in the present case is as follows:- S.32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases: (1) When it relates to cause of death. When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.\n Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.\n xxxxxxxxxxxxxx Illustrations: (a) The question is, whether A was murdered by B; or A died of injuries received in a transaction in the course of which she was ravished. The question is whether she was ravished by B; or The question is, whether A was killed by B under such circumstances that a suit would lie against B by A's widow.\n Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape and the actionable wrong under consideration, are relevant facts.\n 9. Other provisions relevant to be noticed are Section 161 and Section 162 of the Code of Criminal Procedure.\n Section 161 deals with examination of witnesses by police. Section 162 deals with \"statements to police not to be signed Use of Statements in evidence\".\n Section 162 Cr.P.C. is as follows:- 162. Statements to police not to be signed: Use of statements in evidence.--(1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act , 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.\n (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872); or to affect the provisions of section 27 of that Act.\n Explanation.--An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.\n 10. Sub-section (2) to Section 162 incorporate a clear exception to what has been laid down in sub-section (1).\n The statement recorded by police under Section 161, falling within the provisions of clause (1) of Section 32 of Indian Evidence Act, thus, is clearly relevant and admissible. In Mukeshbhai Gopalbhai Barot (supra), this Court had occasion to consider Sections 161 and 162 of Cr.P.C. and Section 32 of the Evidence Act. In the above case, the victim, who received burn injuries on 14.09.1993 was admitted to Civil Hospital. Her statement was recorded by Executive Magistrate and by the Police. The statement recorded by police under Section 161 Cr.P.C. was discarded by the High Court taking the view that it had no evidentiary value. The view of the High Court was not accepted by this Court.\n In paragraph Nos. 4 and 5, this Court held that the statement of persons recorded under Section 161 can be treated as dying declaration after death. In paragraph Nos. 4 and 5, following has been laid down:- \"4. We have considered the arguments advanced by the learned counsel for the parties. At the very outset, we must deal with the observa- tions of the High Court that the dying decla- rations Ex.44 and 48 could not be taken as ev- idence in view of the provisions of Section 161 and 162 of the Cr.P.C. when read cumula- tively. These findings are, however, erro- neous. Sub-Section (1) of Section 32 of the Indian Evidence Act, 1872 deals with several situations including the relevance of a state- ment made by a person who is dead. The provi- sion reads as under: Sec.32. Cases in which statements of relevant fact by person who is dead or cannot be found, etc., is relevant. - Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:- (1) When it relates to cause of death. - When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.\n Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.\"\n We see that the aforesaid dying declara- tions are relevant in view of the above provi- sion. Even otherwise, Section 161 and 162 of the Cr.P.C. admittedly provide for a restric- tive use of the statements recorded during the course of the investigation but sub-Section (2) of Section 162 deals with a situation where the maker of the statement dies and reads as under: \"(2) Nothing in this section shall be deemed to apply to any statement falling within the provi- sions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act.\"\n 5. A bare perusal of the aforesaid provision when read with Section 32 of the Indian Evi- dence Act would reveal that a statement of a person recorded under Section 161 would be treated as a dying declaration after his death. The observation of the High Court that the dying declarations Ex.44 and 48 had no ev- identiary value, therefore, is erroneous. In this view of the matter, the first dying dec- laration made to the Magistrate on 14th Sep- tember 1993 would, in fact, be the First In- formation Report in this case.\"\n 11. A similar view has been expressed by this Court in Sri Bhagwan (supra), where this Court had occasion to consider Section 161 Cr.P.C .and Section 32 of the Indian Evidence Act. This Court dealt with a statement under Section 161 Cr.P.C. subsequent to death of the victim. In Para 20 to 24, following has been held:- \"20. While keeping the above prescription in mind, when we test the submission of the learned counsel for the appellant in the case on hand at the time when Section 161 CrPC statement of the deceased was recorded, the offence registered was under Section 326 IPC having regard to the grievous injuries sus- tained by the victim. PW 4 was not contemplat- ing to record the dying declaration of the victim inasmuch as the victim was seriously injured and immediately needed medical aid.\n Before sending him to the hospital for proper treatment PW 4 thought it fit to get the ver- sion about the occurrence recorded from the victim himself that had taken place and that is how Exhibit Ka-2 came to be recorded. Un- doubtedly, the statement was recorded as one under Section 161 CrPC. Subsequent development resulted in the death of the victim on the next day and the law empowered the prosecution to rely on the said statement by treating it as a dying declaration, the question for con- sideration is whether the submission put forth on behalf of the respondent counsel merits ac- ceptance.\n 21. Mr Ratnakar Dash, learned Senior Counsel made a specific reference to Section 162(2) CrPC in support of his submission that the said section carves out an exception and cre- dence that can be given to a Section 161 CrPC statement by leaving it like a declaration un- der Section 32(1) of the Evidence Act under certain exceptional circumstances. Section 162(2) CrPC reads as under: \"162. (2) Nothing in this section shall be deemed to apply to any statement falling within the provi- sions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.\"\n 22. Under Section 32(1) of the Evidence Act it has been provided as under: \"32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc. is rele- vant.--Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giv- ing evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are them- selves relevant facts in the follow- ing cases: (1) When it relates to cause of death.--When the statement is made by a person as to the cause of his death, or as to any of the circum- stances of the transaction which re- sulted in his death, in cases in which the cause of that person's death comes into question.\n Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.\"\n 23. Going by Section 32(1) of the Evidence Act, it is quite clear that such statement would be relevant even if the person who made the statement was or was not at the time when he made it was under the expectation of death.\nHaving regard to the extraordinary credence attached to such statement falling under Sec- tion 32(1) of the Evidence Act, time and again this Court has cautioned as to the extreme care and caution to be taken while relying upon such evidence recorded as a dying decla- ration.\n 24. As far as the implication of Section 162(2) CrPC is concerned, as a proposition of law, unlike the excepted circumstances under which Section 161 CrPC statement could be re- lied upon, as rightly contended by the learned Senior Counsel for the respondent, once the said statement though recorded under Section 161 CrPC assumes the character of dying decla- ration falling within the four corners of Sec- tion 32(1) of the Evidence Act, then whatever credence that would apply to a declaration governed by Section 32(1) should automatically deemed to apply in all force to such a state- ment though was once recorded under Section 161 CrPC. The above statement of law would re- sult in a position that a purported recorded statement under Section 161 of a victim having regard to the subsequent event of the death of the person making the statement who was a vic- tim would enable the prosecuting authority to rely upon the said statement having regard to the nature and content of the said statement as one of dying declaration as deeming it and falling under Section 32(1) of Evidence Act and thereby commend all the credence that would be applicable to a dying declaration recorded and claimed as such.\"\n 12. It is relevant to refer to judgment of this Court in Najjam Faraghi @ Nijjam Faruqui Vs. State of West Bengal, (1998) 2 SCC 45. In the above case, the kerosene oil was poured on the victim and she was put on fire on 13.06.1985. She lived for about a month and died on 31.07.1985. This Court referring to Section 32(1) held that mere fact that victim died long after making the dying declaration, the statement does not looses its value. In Para 9, following has been held:- \"9. There is no merit in the contention that the appellant's wife died long after making the dying declarations and therefore those statements have no value. The contention over- looks the express provision in Section 32 of the Evidence Act. The second paragraph of sub- section (1) reads as follows: \"Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the na- ture of the proceeding in which the cause of his death comes into ques- tion.\"\n No doubt it has been pointed out that when a person is expecting his death to take place shortly he would not be indulging in false- hood. But that does not mean that such a statement loses its value if the person lives for a longer time than expected. The question has to be considered in each case on the facts and circumstances established therein. If there is nothing on record to show that the statement could not have been true or if the other evidence on record corroborates the con- tents of the statements, the court can cer- tainly accept the same and act upon it. In the present case both courts have discussed the entire evidence on record and found that two dying declarations contained in Exs. 5 and 6 are acceptable.\"\n 13. Much emphasis has been given by the learned counsel for the appellant on Constitution Bench judgment of this Court in Laxman Vs. State of Maharashtra (supra). The above constitution Bench was constituted to resolve the conflict between two Three-Judge Bench judgment of this Court, i.e. Paparambaka Rosamma and Others Vs. State of A.P. (1999) 7 SCC 695 and Koli Chunilal Savji and Another Vs. State of Gujarat, (1999) 9 SCC 562. The facts of the case and conflicting views expressed in the above two cases has been noticed in Paragraph Nos. 1 and 2, which are to the following effect:- \"In this criminal appeal, the conviction of the accused-appellant is based upon the dying declaration of the deceased which was recorded by the Judicial Magistrate (PW 4). The learned Sessions Judge as well as the High Court held the dying declaration made by the deceased to be truthful, voluntary and trustworthy. The Magistrate in his evidence had stated that he had contacted the patient through the medical officer on duty and after putting some ques- tions to the patient to find out whether she was able to make the statement; whether she was set on fire; whether she was conscious and able to make the statement and on being satis- fied he recorded the statement of the de- ceased. There was a certificate of the doctor which indicates that the patient was con- scious. The High Court on consideration of the evidence of the Magistrate as well as on the certificate of the doctor on the dying decla- ration recorded by the Magistrate together with other circumstances on record came to the conclusion that the deceased Chandrakala was physically and mentally fit and as such the dying declaration can be relied upon. When the appeal against the judgment of the Aurangabad Bench of the Bombay High Court was placed be- fore a three-Judge Bench of this Court, the counsel for the appellant relied upon the de- cision of this Court in the case of Paparam- baka Rosamma v. State of A.P., (1999) 7 SCC 695 and contended that since the certification of the doctor was not to the effect that the patient was in a fit state of mind to make the statement, the dying declaration could not have been accepted by the Court to form the sole basis of conviction. On behalf of the counsel appearing for the State another three- Judge Bench decision of this Court in the case of Koli Chunilal Savji v. State of Gujarat (1999) 9 SCCC 562 was relied upon wherein this Court has held that if the materials on record indicate that the deceased was fully conscious and was capable of making a statement, the dy- ing declaration of the deceased thus recorded cannot be ignored merely because the doctor had not made the endorsement that the deceased was in a fit state of mind to make the state- ment in question. Since the two aforesaid de- cisions expressed by two Benches of three learned Judges was somewhat contradictory the Bench by order dated 27-7-2002 referred the question to the Constitution Bench.\n 2. At the outset we make it clear that we are only resolving the so-called conflict be- tween the aforesaid three-Judge Bench decision of this Court, whereafter the criminal appeal will be placed before the Bench presided over by Justice M.B. Shah who had referred the mat- ter to the Constitution Bench. We are, there- fore, refraining from examining the evidence on record to come to a conclusion one way or the other and we are restricting our consider- ations to the correctness of the two decisions referred to supra.\"\n 14. The Constitution Bench approved the view taken by later judgment in Koli Chunilal Savji (supra). In Paragraph No. 5, following has been laid down:- \"5. The Court also in the aforesaid case relied upon the decision of this Court in Har- jit Kaur v. State of Punjab4 wherein the Mag- istrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and ob- tained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this Court in Paparambaka Rosamma v. State of A.P.\n(1999) 7 SCC 695 (at SCC p. 701, para 8) to the effect that \"in the absence of a medical certi- fication that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the sub- jective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration\"\n has been too broadly stated and is not the correct enunciation of law. It is indeed a hy- pertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the ques- tions he had put to the patient and from the answers elicited was satisfied that the pa- tient was in a fit state of mind whereafter he recorded the dying declaration. Therefore, the judgment of this Court in Paparambaka Rosamma v. State of A.P. (1999) 7 SCC 695 must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chuni- lal Savji v. State of Gujarat (1999) 9 SCC 562.\"\n 15. The view expressed by Three-Judge Bench in Paparambaka Rosamma (supra) that in the absence of medical certification that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who opined that the injured was in a fit state of mind at the time of making a declaration, does not lay down a correct law. Thus, the Constitution bench was only considering the question of nature of medical certification regarding fitness of victim to make a dying declaration. The proposition laid down in the above case does not in any manner support the contention raised by the counsel for the appellant in the present case. Present is a case where a statement was recorded by I.O. under Section 161 of the victim on 05.12.1990. Both the trial court and the High Court held the statement relevant and placed reliance on the said statement.\n 16. We have noticed that this Court has laid down that statement under Section 161 Cr.P.C., which is covered under Section 32(1) is relevant and admissible. Thus, we do not find any error in the judgment of the trial court as well as of the High Court in relying on the statement of the injured recorded by the I.O. on 05.12.1990. It is also relevant to notice that I.O. in his cross-examination has stated that he went on the night of 30.11.1990 to the Medical College to record the statement but as his condition was serious, he was not examined. Thus, reliance on the statement made on 05.12.1990 to the I.O. does not lead to any suspicious circumstances so as to discard the value of such statement. The statement, which was made by the victim on 05.12.1990 was to the following effect:- \"My name is Bhaskar Sahu, S/o. Kaibalya Sahu, present/permanent Resident of Village - Langal Dei, P.S. Digapahandi Dist. Gangnam, Today, i.e. on 05.12.1920, being at the Medical College ward I hereby give my verbal statement that, I was going to Belapada from our Village Langal Del on 28.11.1990 at about 6:30 to 7:00 O'clock on my bi-cycle. On my way near the bridge of Belapada Village, inhabitant of our village namely Pradeep Bisoi, S/o. Madhab Bisoi and some of his friends were waiting to kill me. They had come by a Scoter. I don't know others. Near the Belapada Bridge, all of a sudden Pradeep Bisoi threw a Bomb towards me which was defused after hitting my right leg for which I fell down on the road. When I started running, trying to save my life, at that time Pradeep Bisoi came running after me and dealt a kati blow on my right solder, for which I fell down bloodstained. Thereafter from a bottle carried by him, he poured acid on my head, face, chest and also on my entire body To save my life. I threw away my black color vest from my body. Looking at my critical condition, Pradeep Bisoi and his friends left that place. After that, the son of Khalia Pati of our village saw me, and while taking me by the help of a cycle, my brother Surendar Sahu got that news and Tarini Sahu, and Kishnath Bisoi and Bidhyadhara Babu of our village reached to me and my brother immediately admitted me in the Berhampur Medical Collage. Otherwise I would have died on the spot. Because of our previous enmity, Pradeep Bisoi was trying to kill me. But I was just saved. There is no chance of my survival.\"\n 17. The trial court after appreciation of evidence recorded the findings that deceased had acid injuries as well as bomb blast injuries. In the acid attack, he has lost his eye-sight and also lost his right foot. The trial court has rightly held that statement of deceased made on 05.12.1990 is admissible under Section 32 because it is regarding his cause of death and how he was injured. In para 8 of the judgment, trial court has recorded as follows:- \"8. From the medical report it is clear that the deceased was having acid injury and bomb blasting injury and during the treatment he died in the hospital. Now it is to be seen who has caused those acid and bomb blast injuries on the person of the deceased. There is no eye witness to the occurrence. The deceased had given information to the P.W.1 and also to the I.O. P.W.1 says that he learnt from the deceased that accused assaulted him and threw acid on his face, and other parts of his body and he reported the matter to the police, after knowing the fact from the deceased, vide Ext. 12. It is also clear from the evidence of P.W.3 that he carried the deceased to the hospital, who had sustained injuries. The statement of the deceased to P.W.1 is admissible under 32 of the Evidence Act. Because, it gives regarding his cause of death and how he was injured.\"\n 18. The injuries on the body of deceased fully support the prosecution case. The statement made by the deceased on 05.12.1990, thus, finds corroboration from the injuries on the body of deceased and the sequences of the events and manner of incidents as claimed by the prosecution. The PW1, the informant has fully supported the prosecution case.\n 19. The High Court while dismissing the appeal has also made observation that conviction and sentence of the accused was for a lesser offence and lenient one.\n 20. We having gone through the evidence on record are fully satisfied that the trial court did not commit any error in convicting the appellant. High Court while deciding the appeal has also analysed the evidence on record and has rightly dismissed the appeal. We, thus, do not find any merit in this appeal, which is dismissed.\n New Delhi, ......................J.\nOctober 10, 2018. ( A.K. SIKRI ) ......................J.\n ( ASHOK BHUSHAN ) "
} |
{
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{
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"text": "Non-Reportable\n\n"
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"text": "IN THE SUPREME COURT OF INDIA"
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"start": 76,
"text": "\n CIVIL APPELLATE JURISDICTION\n\n Civil Appeal No.18830 of 2017\n\nUnion of India & Ors."
}
},
{
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"start": 175,
"text": ".... Appellant(s)\n\n Versus\n\nChandra Bhushan Yadav .... Respondent(s)\n\n W I T H\n"
}
},
{
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"id": "7786ce217d1a49ac9a11e643bbb038b9",
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"start": 302,
"text": "Civil Appeal No.7440 of 2018"
}
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{
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"labels": [
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],
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"text": "\n\nJ U D G M E N T"
}
},
{
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"type": null,
"value": {
"end": 369,
"labels": [
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],
"start": 347,
"text": "\n L. NAGESWARA RAO, J."
}
},
{
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"id": "835af4d7290a4ce3a9ba9890cf349546",
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"type": null,
"value": {
"end": 561,
"labels": [
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],
"start": 369,
"text": "\n 1. The District Court Martial imposed a punishment of dismissal of the Respondent from service and reduction of the ranks apart from sentencing him to rigorous imprisonment for three months."
}
},
{
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"id": "52f609be300e4725a7775099ff571db2",
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"value": {
"end": 750,
"labels": [
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],
"start": 562,
"text": "The Armed Forces Tribunal, Regional Bench, Lucknow (for short \"the Tribunal\") set aside the order of the District Court Martial aggrieved by which the Union of India has filed this Appeal."
}
},
{
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"id": "4e72eca0e3ec42b093acd817168cc1c6",
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"type": null,
"value": {
"end": 853,
"labels": [
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],
"start": 751,
"text": "The Respondent was enrolled in the Indian Air Force in the trade of Equipment Assistant on 18.01.1988."
}
},
{
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"id": "6af2054d93214d40b7b7183ec50d9c40",
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"value": {
"end": 917,
"labels": [
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],
"start": 854,
"text": "He was posted to 402 Air Force Station, Kanpur in August, 1997."
}
},
{
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"id": "c4d42bd461834421b401e52c8c522b9a",
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"value": {
"end": 992,
"labels": [
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],
"start": 918,
"text": "The Respondent was assigned duty in Diesel and Petrol Store on 02.02.2000."
}
},
{
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"id": "8dd7f1c9ccd04a809aa918a3abe02ed1",
"to_name": null,
"type": null,
"value": {
"end": 1151,
"labels": [
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],
"start": 992,
"text": "\nInformation was received from a civilian on 03.05.2000 that 7 barrels of diesel were unloaded in civil area at Pappu Ka Plot at about 1400 hrs. on 02.05.2000."
}
},
{
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"id": "14005c5768574c38b3c238361363ac38",
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"value": {
"end": 1298,
"labels": [
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],
"start": 1152,
"text": "The informant informed 4 Provost & Security (Unit), Air Force, Kanpur, that he saw two airmen in uniform, out of which one was of dark complexion."
}
},
{
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"id": "eebc65f983e943e99b6add334c9b9010",
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"value": {
"end": 1423,
"labels": [
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],
"start": 1299,
"text": "The informant further stated that a similar incident of unloading of barrels was observed by him on 20.04.2000 also as well."
}
},
{
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"id": "e368af6448c04910945be3c7dd1e7a6f",
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"value": {
"end": 1729,
"labels": [
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],
"start": 1423,
"text": "\n 2. A detailed report was sent by 4 Provost & Security (Unit), Air Force, Kanpur by a letter dated 10.05.2000 in which it was indicated that the Respondent-herein and Corporal G.S. Mani, Equipment Assistant were involved in taking out POL (Petrol, Oil & Lubricants) belonging to Air Force Station, Kanpur."
}
},
{
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"id": "3b80abf43ea248fe8342b76fc47a15b8",
"to_name": null,
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"value": {
"end": 1827,
"labels": [
"FAC"
],
"start": 1730,
"text": "Air-Officer-Commanding, 402 Air Force Station, Kanpur directed a Court of Inquiry to be convened."
}
},
{
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"id": "7ec028858b844243a91599383629d605",
"to_name": null,
"type": null,
"value": {
"end": 2036,
"labels": [
"FAC"
],
"start": 1828,
"text": "By its report dated 31.05.2000, the Court of Inquiry found that DHPP quantity of 5800 Ltrs. and petrol of 5000 Ltrs. was misappropriated by the Respondent and the then Corporal G.S. Mani, Equipment Assistant."
}
},
{
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"id": "7bf82ccaafe941ea81c639919d8a44ba",
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"value": {
"end": 2252,
"labels": [
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],
"start": 2037,
"text": "According to the report, manipulation was done by raising gate passes for a quantity more than which was authorised by issuance of vouchers and obtaining the signature of Senior Logistic Officer on such gate passes."
}
},
{
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"id": "554b5188c94948bc9eb1956e1c7155c2",
"to_name": null,
"type": null,
"value": {
"end": 2324,
"labels": [
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],
"start": 2253,
"text": "The said gate passes were used to take out kerosene, diesel and petrol."
}
},
{
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"type": null,
"value": {
"end": 2510,
"labels": [
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],
"start": 2325,
"text": "A second set of vouchers were prepared for the purpose of issuing gate passes when items were taken out of guard room, which were later destroyed after safe passage from the guard room."
}
},
{
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"id": "b1d77f9fa086482692275fb9c6aab8ce",
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"value": {
"end": 2569,
"labels": [
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],
"start": 2511,
"text": "The misappropriated items were disposed in the civil area."
}
},
{
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"id": "bde6f030320e4b6db36307a61f42508a",
"to_name": null,
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"value": {
"end": 2934,
"labels": [
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],
"start": 2570,
"text": "On the basis of the said finding, the Court of Inquiry recommended following actions : (a) Initiate strict disciplinary action against Corporal C.B. Yadav (Respondent) and others involved in the said action; (b) To make good the loss incurred due to such action and to recover the cost of quantity DHPP 400 Ltrs. and quantity 200 Ltrs. of petrol (Rs.68,520/-).\n 3."
}
},
{
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"id": "82410ab8b573428b8c9c7e29c3e1b253",
"to_name": null,
"type": null,
"value": {
"end": 3064,
"labels": [
"FAC"
],
"start": 2935,
"text": "An Additional Court of Inquiry was ordered to further investigate into certain other aspects not covered by the Court of Inquiry."
}
},
{
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"id": "84c4f2b4bbd944f6bf92102a7b1429ad",
"to_name": null,
"type": null,
"value": {
"end": 3213,
"labels": [
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],
"start": 3065,
"text": "By the Report dated 12.07.2007, the Additional Court of Inquiry found that the Respondent had prepared the gate passes in advance on some occasions."
}
},
{
"from_name": null,
"id": "3f837214e06f4e8aa29f3052d8aa0d7d",
"to_name": null,
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"value": {
"end": 3364,
"labels": [
"FAC"
],
"start": 3214,
"text": "The record of the Court of Inquiry and Additional Court of Inquiry proceedings were forwarded to the Head Quarters, Maintenance Command on 26.07.2000."
}
},
{
"from_name": null,
"id": "30eaf92ec6df4bf5a3d655453ebc7ea5",
"to_name": null,
"type": null,
"value": {
"end": 3536,
"labels": [
"FAC"
],
"start": 3365,
"text": "The Court of Inquiry proceedings were approved by the AOC-in-C, Maintenance Command, pursuant to which disciplinary action was initiated against the Respondent and others."
}
},
{
"from_name": null,
"id": "ff4b75f3946843b7872e05b191674d24",
"to_name": null,
"type": null,
"value": {
"end": 3733,
"labels": [
"FAC"
],
"start": 3536,
"text": "\nA charge sheet was framed containing 14 charges and a hearing of charge under Rule 24 of the Air Force Rules, 1969 (for short \"the Rules\") was conducted before the Air Officer Commanding-in-Chief."
}
},
{
"from_name": null,
"id": "b33899bea25b4961b97020761cc330f7",
"to_name": null,
"type": null,
"value": {
"end": 3790,
"labels": [
"FAC"
],
"start": 3734,
"text": "The AOC-in-C ordered evidence to be recorded in writing."
}
},
{
"from_name": null,
"id": "dd0f0bd3f9e7426485e2eb861493c398",
"to_name": null,
"type": null,
"value": {
"end": 3958,
"labels": [
"FAC"
],
"start": 3791,
"text": "After considering the summary of evidence, the AOC-in-C found that there was insufficient evidence to sustain Charges 1 to 5 and therefore, those charges were dropped."
}
},
{
"from_name": null,
"id": "588a33a03d85411f8cc7d2c3737f5593",
"to_name": null,
"type": null,
"value": {
"end": 4010,
"labels": [
"FAC"
],
"start": 3959,
"text": "A charge sheet containing fresh charges was issued."
}
},
{
"from_name": null,
"id": "eff26350b91b44a785742cfd3883a801",
"to_name": null,
"type": null,
"value": {
"end": 4136,
"labels": [
"FAC"
],
"start": 4010,
"text": "\n 4. On 27.08.2001, AOC-in-C Head Quarters, Maintenance Command convened a District Court Martial for trial of the Respondent."
}
},
{
"from_name": null,
"id": "6df52cb816734ccea56f6f1733c6ac0a",
"to_name": null,
"type": null,
"value": {
"end": 4348,
"labels": [
"FAC"
],
"start": 4137,
"text": "The District Court Martial found the Respondent guilty and imposed a punishment of dismissal from service and reduction of the rank apart from sentencing the Respondent to rigorous imprisonment for three months."
}
},
{
"from_name": null,
"id": "dc4594b881964a65b743b7c85a07878f",
"to_name": null,
"type": null,
"value": {
"end": 4406,
"labels": [
"FAC"
],
"start": 4349,
"text": "The order dated 25.10.2001 was set aside by the Tribunal."
}
},
{
"from_name": null,
"id": "9b0f01f1ec014e70abc2ee7371c67c95",
"to_name": null,
"type": null,
"value": {
"end": 4524,
"labels": [
"FAC"
],
"start": 4407,
"text": "The Respondent was directed to have been in continuous service for the purpose of pension and other service benefits."
}
},
{
"from_name": null,
"id": "8714c8e30b6448029e1b42aeabaa714b",
"to_name": null,
"type": null,
"value": {
"end": 4580,
"labels": [
"FAC"
],
"start": 4525,
"text": "However, arrears of salary was confined to 50 per cent."
}
},
{
"from_name": null,
"id": "c1065eb3356d4e46810f87919df4cc8b",
"to_name": null,
"type": null,
"value": {
"end": 4814,
"labels": [
"FAC"
],
"start": 4580,
"text": "\n 5. The Tribunal held that the allegation against the Respondent being theft and misappropriation of kerosene and diesel, the loss caused due to theft required to be reported to the civil police as per Para 804(b) of the Regulations."
}
},
{
"from_name": null,
"id": "e9d5c483a2204053a6bd4cb7d3afc2a0",
"to_name": null,
"type": null,
"value": {
"end": 5027,
"labels": [
"FAC"
],
"start": 4815,
"text": "By referring to Section 154 of the Code of Criminal Procedure, 1973 (for short \"the Cr.\nPC), the Tribunal held that it is mandatory that a First Information Report (FIR) had to be registered in a cognizable case."
}
},
{
"from_name": null,
"id": "78638fd582a8489695e7f321d8e11a62",
"to_name": null,
"type": null,
"value": {
"end": 5173,
"labels": [
"FAC"
],
"start": 5028,
"text": "The Tribunal observed that the Respondent was not given an opportunity in terms of Rule 156 of the Rules during the Court of Inquiry proceedings."
}
},
{
"from_name": null,
"id": "575235073821416f99e8482327fbc770",
"to_name": null,
"type": null,
"value": {
"end": 5352,
"labels": [
"FAC"
],
"start": 5174,
"text": "In view of the violation of sub-rule (2), (6) and (7) of Rule 156 of the Air Force Rules, the Tribunal was of the view that the proceedings of the Court of Inquiry were vitiated."
}
},
{
"from_name": null,
"id": "1881c321a827468fb544bcacf557208c",
"to_name": null,
"type": null,
"value": {
"end": 5578,
"labels": [
"FAC"
],
"start": 5353,
"text": "The contention on behalf of the Respondent that there was violation of Rule 24 of the Rules and that the summary of evidence was also not recorded in accordance with the prescribed procedure, was not accepted by the Tribunal."
}
},
{
"from_name": null,
"id": "b4593ad193194d07bfaea09cd99fa750",
"to_name": null,
"type": null,
"value": {
"end": 5598,
"labels": [
"FAC"
],
"start": 5579,
"text": "Group Captain A.K.\n"
}
},
{
"from_name": null,
"id": "8f8e4d0994ca43dfadd994c1423ef8e3",
"to_name": null,
"type": null,
"value": {
"end": 5865,
"labels": [
"FAC"
],
"start": 5598,
"text": "Gurtu, Senior Personnel Staff Officer (SPSO), Head Quarters for Air Officer, Commanding-in-Chief signed the order by which the District Court Martial was convened which, according to the Tribunal was in violation of Section 111 of the Act and Rule 43(4) of the Rules."
}
},
{
"from_name": null,
"id": "87c02e12457747d5b2c52c76307d137d",
"to_name": null,
"type": null,
"value": {
"end": 5962,
"labels": [
"FAC"
],
"start": 5866,
"text": "The Tribunal observed that only the AOC-in-C is competent to convene the District Court Martial."
}
},
{
"from_name": null,
"id": "55e06016895e4c5084d089c6420d8d07",
"to_name": null,
"type": null,
"value": {
"end": 6111,
"labels": [
"FAC"
],
"start": 5963,
"text": "The Tribunal re-appreciated the evidence and came to the conclusion that the charges against the Respondent were not proved beyond reasonable doubt."
}
},
{
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"id": "003ae4b2ae7c43dba147fc246c40b635",
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"value": {
"end": 6145,
"labels": [
"FAC"
],
"start": 6111,
"text": "\nFirst Information Report (FIR) 6."
}
},
{
"from_name": null,
"id": "35f5fcb58cba4168a44ba977a73634af",
"to_name": null,
"type": null,
"value": {
"end": 6369,
"labels": [
"ARG_RESPONDENT"
],
"start": 6146,
"text": "Mr. Vinay Kumar Garg, learned Senior Counsel appearing on behalf of the Respondent submitted that Para 804 (b) of the Regulations imposes an obligation that a loss caused due to theft should be reported to the civil police."
}
},
{
"from_name": null,
"id": "3df3ca6e983e46d7a77790c8b6d64c1d",
"to_name": null,
"type": null,
"value": {
"end": 6519,
"labels": [
"ARG_RESPONDENT"
],
"start": 6370,
"text": "He supported the finding of the Tribunal that there is requirement of compulsory registration of FIR in view of the provisions of Section 154 Cr. PC."
}
},
{
"from_name": null,
"id": "c8bb2ca296f4410984ba795e92d2d39e",
"to_name": null,
"type": null,
"value": {
"end": 6663,
"labels": [
"ARG_PETITIONER"
],
"start": 6520,
"text": "Mr.\nR. Balasubramanian, learned Senior Counsel appearing for the Union of India submitted that Para 804(b) of the Regulations is not mandatory."
}
},
{
"from_name": null,
"id": "f659c656aaa945348db10d55138fb62d",
"to_name": null,
"type": null,
"value": {
"end": 6758,
"labels": [
"ARG_PETITIONER"
],
"start": 6664,
"text": "It is open to the authorities to report a theft to the civil police if the situation warrants."
}
},
{
"from_name": null,
"id": "ce44cb715c504876b67b0ff7fe16d622",
"to_name": null,
"type": null,
"value": {
"end": 6884,
"labels": [
"ARG_PETITIONER"
],
"start": 6759,
"text": "He submitted that the Air Force Act, 1950 and Air Force Regulations, 1964 govern the conduct and discipline of the Air Force."
}
},
{
"from_name": null,
"id": "7f6359e758fe4516b8fcc5535e82c4d3",
"to_name": null,
"type": null,
"value": {
"end": 7100,
"labels": [
"ARG_PETITIONER"
],
"start": 6885,
"text": "The Air Force Act, 1950 is a special law in which detailed procedure for conducting of trial by a Court Martial has been prescribed and no requirement for registration of an FIR is mandatory under the Rules therein."
}
},
{
"from_name": null,
"id": "290f40abd8644d28bd4219430d001b09",
"to_name": null,
"type": null,
"value": {
"end": 7191,
"labels": [
"ARG_PETITIONER"
],
"start": 7101,
"text": "The conduct of trial including investigation is covered under Air Force Act and the Rules."
}
},
{
"from_name": null,
"id": "50bde8a761d54495bbaa6ee13b1daf64",
"to_name": null,
"type": null,
"value": {
"end": 7325,
"labels": [
"ARG_PETITIONER"
],
"start": 7192,
"text": "He referred to Section 5 of the Cr. PC to submit that the Cr. PC is not applicable to the personnel governed under the Air Force Act."
}
},
{
"from_name": null,
"id": "a5e56085329a48c59f9d743b40d044b6",
"to_name": null,
"type": null,
"value": {
"end": 7443,
"labels": [
"ARG_PETITIONER"
],
"start": 7326,
"text": "He relied upon the judgment of this Court in Ajmer Singh & Ors.\nv. Union of India & Ors.1 in support of his argument."
}
},
{
"from_name": null,
"id": "cbe0ad5a0553444db11189bb48abb0ad",
"to_name": null,
"type": null,
"value": {
"end": 7857,
"labels": [
"PRE_RELIED"
],
"start": 7443,
"text": "\n 7. In Ajmer Singh (supra), it was held as follows : \"7. Section 5 of the Code of Criminal Procedure lays down that nothing contained in the said Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force."
}
},
{
"from_name": null,
"id": "86502ff0edda4d8badd49250c43b5c5c",
"to_name": null,
"type": null,
"value": {
"end": 8422,
"labels": [
"PRE_RELIED"
],
"start": 7858,
"text": "The relevant Chapters of the Army Act, the Navy Act and the Air Force Act embody a completely self-contained comprehensive Code specifying the various offences under those Acts and 1 (1987) 3 SCC 340 prescribing the procedure for detention and custody of offenders, investigation and trial of the offenders by court martial, the punishments to be awarded for the various offences, confirmation and revision of the sentences imposed by court martial, the execution of such sentences and the grant of pardons, remissions and suspensions in respect of such sentences."
}
},
{
"from_name": null,
"id": "06817621645440ddbb19a355edb04266",
"to_name": null,
"type": null,
"value": {
"end": 8637,
"labels": [
"PRE_RELIED"
],
"start": 8423,
"text": "These enactments, therefore, constitute a special law in force conferring special jurisdiction and powers on court martial and prescribing a special form of procedure for the trial of the offences under those Acts."
}
},
{
"from_name": null,
"id": "c4dd618310684c59bbe3fe8a4728a8f7",
"to_name": null,
"type": null,
"value": {
"end": 8825,
"labels": [
"PRE_RELIED"
],
"start": 8638,
"text": "The effect of Section 5 of the Code of Criminal Procedure is to render the provisions of the Code of Criminal Procedure inapplicable in respect of all matters covered by such special law."
}
},
{
"from_name": null,
"id": "2ef5f13ce42d4a31a6bf10dc96580a25",
"to_name": null,
"type": null,
"value": {
"end": 9007,
"labels": [
"PRE_RELIED"
],
"start": 8826,
"text": "\"\n 8. It is clear from the above that the Air Force Act is a special law conferring jurisdiction and powers on the Court Martial and prescribing the procedure for trial of offences."
}
},
{
"from_name": null,
"id": "f71393baa84b48a0af0f9ae4bc0ab70d",
"to_name": null,
"type": null,
"value": {
"end": 9130,
"labels": [
"ANALYSIS"
],
"start": 9008,
"text": "It is also clear that the Code of Criminal Procedure is not applicable in respect of matters covered by the Air Force Act."
}
},
{
"from_name": null,
"id": "ed415f10426e455f9f31590ec9e25830",
"to_name": null,
"type": null,
"value": {
"end": 9299,
"labels": [
"FAC"
],
"start": 9131,
"text": "Hence, the finding recorded by the Tribunal that it is mandatory for the authorities to report the offences to civil police for registration of an FIR is unsustainable."
}
},
{
"from_name": null,
"id": "35172980c0284bf192d0cb9f822d22a2",
"to_name": null,
"type": null,
"value": {
"end": 9492,
"labels": [
"FAC"
],
"start": 9300,
"text": "The Tribunal further relied upon Para 804(b) of the Regulations to hold that it is incumbent on the part of the authorities to report an offence to the civil police for registration of an FIR."
}
},
{
"from_name": null,
"id": "e8f9c80f3104477ab1574338a7a94bee",
"to_name": null,
"type": null,
"value": {
"end": 9740,
"labels": [
"FAC"
],
"start": 9493,
"text": "Para 804(b) is as follows: \"804. Loss of Air Force Equipment and Foodstuffs.\n (a) .. ..\n (b) A loss which is supposed to be due to theft will be reported at once to the civil police, when the circumstances warrant the course of action."
}
},
{
"from_name": null,
"id": "3d64e82ffbdc436b8b62975313ea6b2e",
"to_name": null,
"type": null,
"value": {
"end": 9872,
"labels": [
"FAC"
],
"start": 9741,
"text": "In any court of inquiry which may subsequently be held, evidence will be taken to show the date on which the loss was so reported.\""
}
},
{
"from_name": null,
"id": "bc45724191e749528d1abf8bb1c5416b",
"to_name": null,
"type": null,
"value": {
"end": 10013,
"labels": [
"FAC"
],
"start": 9872,
"text": "\n 9. There can be no doubt from a plain reading of the Regulations that the reporting of an offence of theft to the civil police is optional."
}
},
{
"from_name": null,
"id": "8281a7c727a0419392a8633d4a38ad0b",
"to_name": null,
"type": null,
"value": {
"end": 10118,
"labels": [
"FAC"
],
"start": 10014,
"text": "Only when the circumstances warrant such reporting to the civil police, the competent officer can do so."
}
},
{
"from_name": null,
"id": "1ebc2c8494da41f292d6a2cac73ff20d",
"to_name": null,
"type": null,
"value": {
"end": 10235,
"labels": [
"FAC"
],
"start": 10119,
"text": "For the aforementioned reasons, para 804 (b) of the Regulations of the Air Force Act cannot be said to be mandatory."
}
},
{
"from_name": null,
"id": "ea1e87c2d41344779b82b293fd1cb17f",
"to_name": null,
"type": null,
"value": {
"end": 10258,
"labels": [
"FAC"
],
"start": 10235,
"text": "\n Court of Inquiry: 10."
}
},
{
"from_name": null,
"id": "76c60584dc1545da89655e6e6ab8a05b",
"to_name": null,
"type": null,
"value": {
"end": 10394,
"labels": [
"FAC"
],
"start": 10259,
"text": "The contention of the Respondent which was accepted by the Tribunal relates to the violation of sub- Rule (2), (6) and (7) of Rule 156."
}
},
{
"from_name": null,
"id": "bdb62ef86fee4f5993405403a5e2f09d",
"to_name": null,
"type": null,
"value": {
"end": 11544,
"labels": [
"FAC"
],
"start": 10395,
"text": "It is necessary to reproduce sub-Rule (2), (6) and (7) of Rule 156 which are as under : \"156. Courts of inquiry other than those held under section 107.-- (1) .. ..\n (2) Save in the case of a prisoner of war who is still absent, whenever any inquiry affects the character or service reputation of a person subject to the Act, full opportunity must be afforded to such person of being present throughout the inquiry and of making any statements and of giving any evidence he may wish to make or give, and of cross-examining and witness whose evidence, in his opinion, affects his character or service reputation, and producing any witnesses in defence of his character or service reputation.\n (3) .. ..\n (4) .. ..\n (5) .. ..\n (6) The proceedings of a court of inquiry, or any confession or statement or answer to a question made or given at a court of inquiry, shall not be admissible in evidence against a person subject to Air Force Law, nor shall any evidence respecting the proceedings of the court be given against any such person except upon the trial of such person for wilfully giving false evidence before that court."
}
},
{
"from_name": null,
"id": "c3571be071d9480c912bd872688bc635",
"to_name": null,
"type": null,
"value": {
"end": 11882,
"labels": [
"FAC"
],
"start": 11544,
"text": "\n (7) Any person subject to the Act whose character or service reputation is in the opinion of the Chief of the Air Staff, affected by anything in the evidence before or in the report of a court of inquiry shall be entitled to a copy of the proceedings of such court unless the Chief of the Air Staff sees reason to order otherwise.\"\n 11."
}
},
{
"from_name": null,
"id": "9cf54e574f0f444d82039c9e71eae8d4",
"to_name": null,
"type": null,
"value": {
"end": 12052,
"labels": [
"FAC"
],
"start": 11883,
"text": "The Tribunal was of the view that the Respondent was not given sufficient opportunity to defend himself during the course of the proceedings before the Court of Inquiry."
}
},
{
"from_name": null,
"id": "58e852310011489581080c26a01aac0e",
"to_name": null,
"type": null,
"value": {
"end": 12169,
"labels": [
"FAC"
],
"start": 12054,
"text": "12. According to the Respondent, he was not permitted to be present during the recording of statement of witnesses."
}
},
{
"from_name": null,
"id": "04b998bdc1404c3f9ebf891d66053c69",
"to_name": null,
"type": null,
"value": {
"end": 12240,
"labels": [
"FAC"
],
"start": 12170,
"text": "He was also deprived of an opportunity to cross-examine the witnesses."
}
},
{
"from_name": null,
"id": "8644904405764f0a9d9d21d0425d0ac6",
"to_name": null,
"type": null,
"value": {
"end": 12388,
"labels": [
"FAC"
],
"start": 12241,
"text": "The contention on behalf of the Union of India is that the Respondent was given an opportunity to make a statement and to cross- examine witnesses."
}
},
{
"from_name": null,
"id": "8542add9a48449538040e37c67d3b893",
"to_name": null,
"type": null,
"value": {
"end": 12448,
"labels": [
"FAC"
],
"start": 12389,
"text": "He was also given a chance to produce documentary evidence."
}
},
{
"from_name": null,
"id": "5589108f0ac64d50b42287c03b2f0fbe",
"to_name": null,
"type": null,
"value": {
"end": 12612,
"labels": [
"FAC"
],
"start": 12449,
"text": "The Respondent made a statement on 19.07.2000 to the effect that he did not wish to cross-examine witnesses and to produce any documentary evidence in his defence."
}
},
{
"from_name": null,
"id": "d6cae8699f314e45a25a9bba1be7e2f0",
"to_name": null,
"type": null,
"value": {
"end": 12747,
"labels": [
"FAC"
],
"start": 12614,
"text": "13. The statement made by the Respondent was produced before us which indicates that he did not utilize the opportunity given to him."
}
},
{
"from_name": null,
"id": "d8fc01d0ce6e4ff3801c4730daec2da4",
"to_name": null,
"type": null,
"value": {
"end": 12927,
"labels": [
"FAC"
],
"start": 12748,
"text": "Therefore, it cannot be held that there is violation of Rule 156 of the Rules and the Tribunal committed an error in holding that the proceedings of Court of Inquiry are vitiated."
}
},
{
"from_name": null,
"id": "fe12d50f8cfa4057aa4792802e92dd16",
"to_name": null,
"type": null,
"value": {
"end": 12948,
"labels": [
"FAC"
],
"start": 12927,
"text": "\nConvening Order: 14."
}
},
{
"from_name": null,
"id": "8c98577b5b63495a993907ae4513b67c",
"to_name": null,
"type": null,
"value": {
"end": 13142,
"labels": [
"FAC"
],
"start": 12949,
"text": "The contention of the Respondent is that Group Captain A.K. Gurtu, Senior Personnel Staff Officer (SPSO), Head Quarters MC IAF signed the order by which the District Court Martial was convened."
}
},
{
"from_name": null,
"id": "0a7fa47e7e5d469fabf2024614c90bad",
"to_name": null,
"type": null,
"value": {
"end": 13225,
"labels": [
"FAC"
],
"start": 13143,
"text": "It is urged that AOC-in-C is the competent authority to convene the Court Martial."
}
},
{
"from_name": null,
"id": "645dbaac344543fe9c5b0aebad48a562",
"to_name": null,
"type": null,
"value": {
"end": 13353,
"labels": [
"FAC"
],
"start": 13226,
"text": "The Union of India justified the order by which the District Court Martial was convened in accordance with the Air Force Rules."
}
},
{
"from_name": null,
"id": "ed574544327c4bc2bfc760ee1ecd5ada",
"to_name": null,
"type": null,
"value": {
"end": 13566,
"labels": [
"FAC"
],
"start": 13353,
"text": "\n 15. Section 111 of the Air Force Act provides that District Court Martial may be convened by an officer having power to convene a General Court Martial, or by an officer empowered by warrant of any such officer."
}
},
{
"from_name": null,
"id": "e60c8f177e554be6b80e66c48d207853",
"to_name": null,
"type": null,
"value": {
"end": 13635,
"labels": [
"FAC"
],
"start": 13566,
"text": "\nRule 43 deals with convening of General and District Court Martials."
}
},
{
"from_name": null,
"id": "806a01a18d174150a5da0a0612328436",
"to_name": null,
"type": null,
"value": {
"end": 13752,
"labels": [
"FAC"
],
"start": 13636,
"text": "Rule 43(4) which is relevant for our purpose reads as under : \"43. Convening of general and district court- martial."
}
},
{
"from_name": null,
"id": "5b6d5d2a65ba44a8871c523a4d05372c",
"to_name": null,
"type": null,
"value": {
"end": 14064,
"labels": [
"FAC"
],
"start": 13753,
"text": "-- (4) After the convening officer has appointed or detailed the officer to form a Court-Martial under sub-rule (3), convening order of the Court-Martial and endorsement on the charge- sheet for trial of the accused by court-martial may either be signed by convening officer or by a staff officer on his behalf."
}
},
{
"from_name": null,
"id": "d4f6dcbadc7a40fe95c6333ae5a11db0",
"to_name": null,
"type": null,
"value": {
"end": 14193,
"labels": [
"FAC"
],
"start": 14065,
"text": "The charge sheet on which the accused to be tried, the summary of evidence and the convening order for assembly of Court-Martial"
}
},
{
"from_name": null,
"id": "62fdce0aa5df4c84af06811a0006626e",
"to_name": null,
"type": null,
"value": {
"end": 14290,
"labels": [
"FAC"
],
"start": 14194,
"text": "shall then be sent to the senior officer of Court-Martial and the Judge Advocate, if appointed.\""
}
},
{
"from_name": null,
"id": "f45c9d2c85a946fabaac7769cd95b39e",
"to_name": null,
"type": null,
"value": {
"end": 14473,
"labels": [
"PRE_RELIED"
],
"start": 14290,
"text": "\n 16. In Union of India & Ors. v. Ex. Flt. Lt. G.S.\n Bajwa2, this Court examined the issue pertaining to the authority competent to convene the Court Martial and held as follows: \"44."
}
},
{
"from_name": null,
"id": "bf88981df32f4248b34db5a406af9562",
"to_name": null,
"type": null,
"value": {
"end": 14665,
"labels": [
"PRE_RELIED"
],
"start": 14474,
"text": "A ground was taken before the High Court (Ground f) that the convening of the General Court Martial was signed by an officer, in whose name no delegation or such authority had ever been made."
}
},
{
"from_name": null,
"id": "338b8a30833f448f92b2a12160bdd549",
"to_name": null,
"type": null,
"value": {
"end": 14911,
"labels": [
"PRE_RELIED"
],
"start": 14666,
"text": "In reply thereto the appellant had submitted that the convening order was signed by the said officer on behalf of the Air Officer In-charge Personnel, who had after due application of mind, issued the order for convening the above Court Martial."
}
},
{
"from_name": null,
"id": "31665cd73ddb46e39f55e9eda3f89be2",
"to_name": null,
"type": null,
"value": {
"end": 15031,
"labels": [
"PRE_RELIED"
],
"start": 14912,
"text": "It was not disputed before us that the Air Officer In- charge Personnel (AOP) was empowered to convene a Court Martial."
}
},
{
"from_name": null,
"id": "5d76fe1b1b08403eaae14bab5b59d1b9",
"to_name": null,
"type": null,
"value": {
"end": 15377,
"labels": [
"PRE_RELIED"
],
"start": 15032,
"text": "The only question which, therefore, requires consideration is 2 (2003) 9 SCC 630 whether the order convening the General Court Martial was passed by the AOP and it was only formally communicated under signatures of the Air Commodore concerned or whether the Air Commodore named therein, who was not empowered, himself passed the convening order."
}
},
{
"from_name": null,
"id": "bf1516b83e84406ca04d4251e3cd5ea9",
"to_name": null,
"type": null,
"value": {
"end": 15506,
"labels": [
"PRE_RELIED"
],
"start": 15378,
"text": "With a view to avoid any controversy on this factual position, we directed the appellant to produce before us the original file."
}
},
{
"from_name": null,
"id": "6ec98ad955544c5ea14f44b6e247c9bc",
"to_name": null,
"type": null,
"value": {
"end": 15648,
"labels": [
"PRE_RELIED"
],
"start": 15507,
"text": "We have perused the file and we find that the order for convening the General Court Martial was approved by Air Marshal D.A. LaFontaine, AOP."
}
},
{
"from_name": null,
"id": "f169badaad0843219c6c6ec7c300eb65",
"to_name": null,
"type": null,
"value": {
"end": 15776,
"labels": [
"PRE_RELIED"
],
"start": 15648,
"text": "\n There is, therefore, no force in the submission that the convening order was unauthorized and, therefore, illegal.\"\n 17."
}
},
{
"from_name": null,
"id": "767907d7e73b4bbab3d8835735c1567e",
"to_name": null,
"type": null,
"value": {
"end": 15978,
"labels": [
"ANALYSIS"
],
"start": 15777,
"text": "The order dated 18.08.2001 by which the District Court Martial was convened is issued in the name of Air Marshall S.S. Gupta, PVSM, AVSM, VSM, ADC, Air Officer Commanding-in-Chief, Maintenance Command."
}
},
{
"from_name": null,
"id": "71ccab89670a43dfa3c564f7c411b107",
"to_name": null,
"type": null,
"value": {
"end": 16177,
"labels": [
"ANALYSIS"
],
"start": 15979,
"text": "There is no doubt that the order was signed by Group Captain A.K. Gurtu, SPSO, Head Quarters MC IAF who is the Personnel Staff Officer for Air Officer Commanding-in- Chief, Maintenance Command, IAF."
}
},
{
"from_name": null,
"id": "6852baafe2b743e8879d41ba5ac6ea49",
"to_name": null,
"type": null,
"value": {
"end": 16306,
"labels": [
"ANALYSIS"
],
"start": 16178,
"text": "Rule 43(4) provides that a convening order may be signed by the Commanding Officer or by the Senior Staff Officer on his behalf."
}
},
{
"from_name": null,
"id": "4f971867d97d42c08c7038d693b88e53",
"to_name": null,
"type": null,
"value": {
"end": 16445,
"labels": [
"ANALYSIS"
],
"start": 16307,
"text": "The fact that Group Captain A.K. Gurtu was the Senior Personnel Staff officer for the AOC-in-C Maintenance Command, IAF is not in dispute."
}
},
{
"from_name": null,
"id": "0e38453a419d4c3d80d988e80c34e914",
"to_name": null,
"type": null,
"value": {
"end": 16596,
"labels": [
"ANALYSIS"
],
"start": 16446,
"text": "A perusal of the Record reveals that the convening order had the approval of the competent authority and as such, it cannot be termed as unauthorized."
}
},
{
"from_name": null,
"id": "95323135c1674cec8abcdf2ae27e0d30",
"to_name": null,
"type": null,
"value": {
"end": 16855,
"labels": [
"ANALYSIS"
],
"start": 16597,
"text": "Another submission that was made by the learned Senior Counsel for the Respondent is that according to the Organizational Chart of Head Quarters MC IAF it is only Senior Air & Administrative Staff Officer (SAASO) who can be the Staff Officer of the AOC-in-C."
}
},
{
"from_name": null,
"id": "a08374015269496194cab49cbb92aa26",
"to_name": null,
"type": null,
"value": {
"end": 16943,
"labels": [
"ANALYSIS"
],
"start": 16856,
"text": "The said submission was countered by the learned Senior Counsel for the Union of India."
}
},
{
"from_name": null,
"id": "bd80be568ed3466b9e92e8afbb24f777",
"to_name": null,
"type": null,
"value": {
"end": 17129,
"labels": [
"ANALYSIS"
],
"start": 16944,
"text": "It was contended that that Group Captain A.K.\nGurtu was Senior Personnel Staff Officer (SPSO) and lesser than that of Senior Air & Administrative Staff Officer (SAASO) in the hierarchy."
}
},
{
"from_name": null,
"id": "0bb2d7b023fe4e058aa0089b64944b36",
"to_name": null,
"type": null,
"value": {
"end": 17207,
"labels": [
"ANALYSIS"
],
"start": 17130,
"text": "There is no requirement that only SAASO can be the Staff Officer to AoC-in-C."
}
},
{
"from_name": null,
"id": "c1d73a91988b40eea6b0ecb1ab69cd84",
"to_name": null,
"type": null,
"value": {
"end": 17274,
"labels": [
"ANALYSIS"
],
"start": 17208,
"text": "Even Officers lower than SAASO can be appointed as Staff Officers."
}
},
{
"from_name": null,
"id": "5a8945b1998744c58e418f3e21bb57d6",
"to_name": null,
"type": null,
"value": {
"end": 17512,
"labels": [
"ANALYSIS"
],
"start": 17275,
"text": "According to Mr. R.\n Balasubramanian, learned Senior Counsel, it is evident from the order itself that Group Captain A.K. Gurtu who is Senior Personnel Staff Officer (SPSO) was the Staff Officer and competent to sign the convening order."
}
},
{
"from_name": null,
"id": "8116dcd1c8f746c1b54dacdfe62ff137",
"to_name": null,
"type": null,
"value": {
"end": 17674,
"labels": [
"ANALYSIS"
],
"start": 17512,
"text": "\n 18. The convening order which was signed by the Staff Officer of the AOC-in-C is in accord with Rule 43(4) of the Rule and no fault can be found with the order."
}
},
{
"from_name": null,
"id": "1e3146d3a0fe4bc38fe536cfdbf959dd",
"to_name": null,
"type": null,
"value": {
"end": 17783,
"labels": [
"ANALYSIS"
],
"start": 17675,
"text": "The Tribunal committed an error in holding that the convening order was by an officer who was not competent."
}
},
{
"from_name": null,
"id": "3b7df4badad14e758170b89c1feaecb5",
"to_name": null,
"type": null,
"value": {
"end": 17802,
"labels": [
"ANALYSIS"
],
"start": 17785,
"text": "Charges 5 & 6 19."
}
},
{
"from_name": null,
"id": "1051225e21254d39906f44b82278f6f6",
"to_name": null,
"type": null,
"value": {
"end": 17883,
"labels": [
"ANALYSIS"
],
"start": 17803,
"text": "The District Court Martial found the Respondent guilty of Charges 1, 2, 5 and 6."
}
},
{
"from_name": null,
"id": "41cd7d87b3c94becb5f4f87d853b1d9f",
"to_name": null,
"type": null,
"value": {
"end": 17923,
"labels": [
"ANALYSIS"
],
"start": 17884,
"text": "He was exonerated of Charges 3 and 4."
}
},
{
"from_name": null,
"id": "b2be0465095e47babc4acefb02248623",
"to_name": null,
"type": null,
"value": {
"end": 18047,
"labels": [
"ANALYSIS"
],
"start": 17924,
"text": "The confirmation authority held that there was no sufficient evidence in relation to Charges 1 and 2 and they were dropped."
}
},
{
"from_name": null,
"id": "68fd4a0800744818a173b6e4466efb5f",
"to_name": null,
"type": null,
"value": {
"end": 18113,
"labels": [
"ANALYSIS"
],
"start": 18048,
"text": "What remains to be seen is whether Charges 5 & 6 are established."
}
},
{
"from_name": null,
"id": "71afc7e0fb1e46f7983c75e4c04e1b68",
"to_name": null,
"type": null,
"value": {
"end": 19729,
"labels": [
"ANALYSIS"
],
"start": 18113,
"text": "\n Charges 5 & 6 are as follows: \"\n Fifth Charge Committing Criminal Breach of Trust Section 52(c) in Respect of property belonging to Air Force Act, the Govt.\n In that he, 1950 At 402 AF Station, on 20 April 2000, being the NCO i/c POL, Stores of 402 Sixth charge AF Station and in that capacity Section 52(c) entrusted with POL Stores of the unit, Air Force Act, dishonestly misappropriated 1400 1950 Ltrs of DHPP(N), by raising IAFF(Q) 429 No.EX/IV/P/10 (2000-2001) for 200 ltrs of Petrol 87 MT 800 ltrs of DHPP(N), but physically issuing 702670-K Cpl Mani GS Eqpt Asst of 7 AF Hospital 200 ltrs of Petrol 87 MT, 2200 ltrs DHPP(N) and nil Kerosene oil quantity, by writing quantity 200 ltrs of Petrol 87 MT, 800 Ltrs of DHPP(N) and 1400 ltrs of kerosene Oil on gate pass No.3129 dated 29 April 2000.\n Committing criminal breach of trust in respect of property belonging to the Govt.\n In that he, At 402 AF Station, on 02 May 2000 being the NCO i/c POL, stores of 402 AF Station and in that capacity entrusted with POL stores of the unit, dishonestly misappropriated 1400 lrts of DHPP(N), by making use of two sets of IAFF(Q) 429 bearing same serial No.EX/IV/P/16 (2000-20010 for a single transaction of issue of POL to 7 AF Hospital first set (receipted blue) showing issue of 2400 ltrs of Kerosene oil only and second set (original black) showing issue of 2400 ltrs of kerosene oil and 1400 ltrs of DHPP(N), and physically issuing to 702670-K Cpl Mani GS Eqpt Asst of 7 AF Hospital as per second set and gate pass No.3131 dated 02 May 2000."
}
},
{
"from_name": null,
"id": "cc17fea255e444b2bb98e34f2fa5faed",
"to_name": null,
"type": null,
"value": {
"end": 19736,
"labels": [
"ANALYSIS"
],
"start": 19729,
"text": "\n \"\n 20"
}
},
{
"from_name": null,
"id": "bcf0517c1d2f4ac7b3f016c1d3e22052",
"to_name": null,
"type": null,
"value": {
"end": 19874,
"labels": [
"ANALYSIS"
],
"start": 19736,
"text": ". The Tribunal on a reconsideration of the evidence on record concluded that Charges 5 and 6 were not established beyond reasonable doubt."
}
},
{
"from_name": null,
"id": "3523b45bef7b4fee8b64585b9e62e303",
"to_name": null,
"type": null,
"value": {
"end": 19959,
"labels": [
"ANALYSIS"
],
"start": 19875,
"text": "PW1 Corporal M.K. Sharma failed to identify the signatures appended on the vouchers."
}
},
{
"from_name": null,
"id": "10932892fcca4ec181cf9b9ddd58a99f",
"to_name": null,
"type": null,
"value": {
"end": 20117,
"labels": [
"ANALYSIS"
],
"start": 19960,
"text": "PW2 Sergeant L. Singh who was the Record Keeper in Security Section deposed that he was not aware as to who was responsible for the issuance of kerosene oil."
}
},
{
"from_name": null,
"id": "9569572a067a477e9b200709a40431bc",
"to_name": null,
"type": null,
"value": {
"end": 20231,
"labels": [
"ANALYSIS"
],
"start": 20118,
"text": "W.O. S.K. Singh who was examined as PW3, does not remember the dates and data with regard to deficiencies of POL."
}
},
{
"from_name": null,
"id": "c7c487a777d64470996a868ed064dc9e",
"to_name": null,
"type": null,
"value": {
"end": 20332,
"labels": [
"ANALYSIS"
],
"start": 20232,
"text": "He stated that no deficiency was found in POL during the weekly snap checks from February-May, 2000."
}
},
{
"from_name": null,
"id": "ad3ca3b97aa74a368024bcc0b734c6c7",
"to_name": null,
"type": null,
"value": {
"end": 20455,
"labels": [
"ANALYSIS"
],
"start": 20333,
"text": "He further stated that the Respondent was not related to issuance of kerosene oil during the months of February-May, 2000."
}
},
{
"from_name": null,
"id": "8a8e998d09884679bf7615e04653482c",
"to_name": null,
"type": null,
"value": {
"end": 20621,
"labels": [
"ANALYSIS"
],
"start": 20456,
"text": "Wing Commander J.K. Chakraborty who appeared as PW4 admitted that there was no deficiency of diesel at the time of handing and taking over of duty by the Respondent."
}
},
{
"from_name": null,
"id": "22f57cbbe64440bab8742c99dacb8fbc",
"to_name": null,
"type": null,
"value": {
"end": 20718,
"labels": [
"ANALYSIS"
],
"start": 20622,
"text": "PW5 Flight Lieutenant Arvind Kumar had no personal knowledge of the evidence as he was on leave."
}
},
{
"from_name": null,
"id": "c3aa5b4c4b09448395a68f6155638f38",
"to_name": null,
"type": null,
"value": {
"end": 20785,
"labels": [
"ANALYSIS"
],
"start": 20719,
"text": "However, he stated that there was no surplus or deficiency of POL."
}
},
{
"from_name": null,
"id": "6914e590ee6742c3a8c1851383bc5007",
"to_name": null,
"type": null,
"value": {
"end": 20915,
"labels": [
"ANALYSIS"
],
"start": 20786,
"text": "PW6 Corporal G.S. Mani admitted to unloading seven empty barrels at Pardevanpurwa on 20.04.2000 at the request of the Respondent."
}
},
{
"from_name": null,
"id": "7a41facfa7104fa09929626c992019c8",
"to_name": null,
"type": null,
"value": {
"end": 21000,
"labels": [
"ANALYSIS"
],
"start": 20916,
"text": "He further stated that an amount of Rs.1,500/- was forcibly given by the Respondent."
}
},
{
"from_name": null,
"id": "e60002ae32504b95843312fbc8555250",
"to_name": null,
"type": null,
"value": {
"end": 21134,
"labels": [
"ANALYSIS"
],
"start": 21001,
"text": "He also stated that he carried 20 barrels for collecting 2400 liters of kerosene oil and again collected seven barrels on 02.05.2000."
}
},
{
"from_name": null,
"id": "ce4ff8ece6fc47e2b09d9df0b397b78c",
"to_name": null,
"type": null,
"value": {
"end": 21288,
"labels": [
"ANALYSIS"
],
"start": 21135,
"text": "During cross-examination, he was confronted with his previous statement wherein he stated that he was coerced to make a statement against the Respondent."
}
},
{
"from_name": null,
"id": "f1f961e73cd34668953f0291dde2cfc7",
"to_name": null,
"type": null,
"value": {
"end": 21406,
"labels": [
"ANALYSIS"
],
"start": 21289,
"text": "In view of the contradictions made by PW6 who is the co-accused, the Tribunal held that he is not a reliable witness."
}
},
{
"from_name": null,
"id": "312260d560ab4807b6f3514e7ab6e61c",
"to_name": null,
"type": null,
"value": {
"end": 21533,
"labels": [
"ANALYSIS"
],
"start": 21407,
"text": "PW7 Corporal S. Singh categorically stated that the loading of barrels containing POL was at the behest of Corporal G.S. Mani."
}
},
{
"from_name": null,
"id": "cdbdfbdcf965464981e46c8d17b1b927",
"to_name": null,
"type": null,
"value": {
"end": 21668,
"labels": [
"ANALYSIS"
],
"start": 21534,
"text": "PW8 Hasan R. Lascar who was working in the Medical Ward stated that he loaded empty barrels on the instructions of Corporal G.S. Mani."
}
},
{
"from_name": null,
"id": "b79b209ce5c04f8fb0cb0d1e93cf7739",
"to_name": null,
"type": null,
"value": {
"end": 21806,
"labels": [
"ANALYSIS"
],
"start": 21669,
"text": "PW9 Rajendra Prasad Lascar also stated that loading and off loading of diesel at Pardevanpurwa was in the presence of Corporal G.S. Mani."
}
},
{
"from_name": null,
"id": "0b75632b788f407d8f4a36e1d000c918",
"to_name": null,
"type": null,
"value": {
"end": 21929,
"labels": [
"RATIO"
],
"start": 21807,
"text": "21. We have examined the evidence to satisfy ourselves as to whether there is any iota of evidence against the Respondent."
}
},
{
"from_name": null,
"id": "a58fafb9d2d640448001440558f1f0c5",
"to_name": null,
"type": null,
"value": {
"end": 22091,
"labels": [
"RATIO"
],
"start": 21930,
"text": "It appears from the evidence that Corporal G.S. Mani was actively involved in the transportation of diesel barrels and loading and off loading in the civil area."
}
},
{
"from_name": null,
"id": "61d4a44c4a04422789b9d0ab119a929c",
"to_name": null,
"type": null,
"value": {
"end": 22149,
"labels": [
"RATIO"
],
"start": 22092,
"text": "Curiously no action was taken against Corporal G.S. Mani."
}
},
{
"from_name": null,
"id": "9ac093568b0649c08a48ddf403f1b4d8",
"to_name": null,
"type": null,
"value": {
"end": 22255,
"labels": [
"RATIO"
],
"start": 22150,
"text": "There is no evidence on record to connect the Respondent to the offence of illegal transportation of POL."
}
},
{
"from_name": null,
"id": "be30a663820e4224af5d1c1b5951ed5d",
"to_name": null,
"type": null,
"value": {
"end": 22437,
"labels": [
"RATIO"
],
"start": 22256,
"text": "Though we are not in agreement with the Tribunal on the other issues, in view of lack of any evidence against the Respondent, we are inclined to uphold the judgment of the Tribunal."
}
},
{
"from_name": null,
"id": "5c4ff02b04a74c56bd795640332b3c5f",
"to_name": null,
"type": null,
"value": {
"end": 22462,
"labels": [
"RPC"
],
"start": 22438,
"text": "The Appeal is dismissed."
}
},
{
"from_name": null,
"id": "81b5136cfeac42db81593b835cc7c497",
"to_name": null,
"type": null,
"value": {
"end": 22494,
"labels": [
"RPC"
],
"start": 22462,
"text": "\nCivil Appeal No.7440 of 2018 22"
}
},
{
"from_name": null,
"id": "caa3b22433b047699a2443d4af4c2377",
"to_name": null,
"type": null,
"value": {
"end": 22656,
"labels": [
"RPC"
],
"start": 22494,
"text": ". This appeal has been filed by the Respondent aggrieved by the directions of the Tribunal that the Appellant shall pay only 50 per cent of the arrears of salary."
}
},
{
"from_name": null,
"id": "405ce966d0b6406db353415d9eeeca34",
"to_name": null,
"type": null,
"value": {
"end": 22786,
"labels": [
"RPC"
],
"start": 22657,
"text": "After considering the submissions of the learned Senior Counsel, we are not inclined to interfere with the order of the Tribunal."
}
},
{
"from_name": null,
"id": "d9a6b5db3537469da56f3df79a967518",
"to_name": null,
"type": null,
"value": {
"end": 22823,
"labels": [
"RPC"
],
"start": 22787,
"text": "The appeal is accordingly dismissed."
}
},
{
"from_name": null,
"id": "90f58786de6442c39ed16946978f6210",
"to_name": null,
"type": null,
"value": {
"end": 22884,
"labels": [
"NONE"
],
"start": 22825,
"text": "..................................J.\n "
}
},
{
"from_name": null,
"id": "2ab3d4104580418db0e95603078b97f6",
"to_name": null,
"type": null,
"value": {
"end": 22901,
"labels": [
"NONE"
],
"start": 22884,
"text": "[L. NAGESWARA RAO"
}
},
{
"from_name": null,
"id": "5a7f77c03d424bf0b0e155cccf27cfcb",
"to_name": null,
"type": null,
"value": {
"end": 22937,
"labels": [
"NONE"
],
"start": 22901,
"text": "] .................................."
}
},
{
"from_name": null,
"id": "ff12acda8381436fbbfc64ae3203336e",
"to_name": null,
"type": null,
"value": {
"end": 23014,
"labels": [
"NONE"
],
"start": 22937,
"text": "J.\n [DEEPAK GUPTA] New Delhi, January 17, 2020."
}
}
]
}
] | 4,157 | {
"text": " Non-Reportable\n\nIN THE SUPREME COURT OF INDIA\n CIVIL APPELLATE JURISDICTION\n\n Civil Appeal No.18830 of 2017\n\nUnion of India & Ors. .... Appellant(s)\n\n Versus\n\nChandra Bhushan Yadav .... Respondent(s)\n\n W I T H\nCivil Appeal No.7440 of 2018\n\nJ U D G M E N T\n L. NAGESWARA RAO, J.\n 1. The District Court Martial imposed a punishment of dismissal of the Respondent from service and reduction of the ranks apart from sentencing him to rigorous imprisonment for three months. The Armed Forces Tribunal, Regional Bench, Lucknow (for short \"the Tribunal\") set aside the order of the District Court Martial aggrieved by which the Union of India has filed this Appeal. The Respondent was enrolled in the Indian Air Force in the trade of Equipment Assistant on 18.01.1988. He was posted to 402 Air Force Station, Kanpur in August, 1997. The Respondent was assigned duty in Diesel and Petrol Store on 02.02.2000.\nInformation was received from a civilian on 03.05.2000 that 7 barrels of diesel were unloaded in civil area at Pappu Ka Plot at about 1400 hrs. on 02.05.2000. The informant informed 4 Provost & Security (Unit), Air Force, Kanpur, that he saw two airmen in uniform, out of which one was of dark complexion. The informant further stated that a similar incident of unloading of barrels was observed by him on 20.04.2000 also as well.\n 2. A detailed report was sent by 4 Provost & Security (Unit), Air Force, Kanpur by a letter dated 10.05.2000 in which it was indicated that the Respondent-herein and Corporal G.S. Mani, Equipment Assistant were involved in taking out POL (Petrol, Oil & Lubricants) belonging to Air Force Station, Kanpur. Air-Officer-Commanding, 402 Air Force Station, Kanpur directed a Court of Inquiry to be convened. By its report dated 31.05.2000, the Court of Inquiry found that DHPP quantity of 5800 Ltrs. and petrol of 5000 Ltrs. was misappropriated by the Respondent and the then Corporal G.S. Mani, Equipment Assistant. According to the report, manipulation was done by raising gate passes for a quantity more than which was authorised by issuance of vouchers and obtaining the signature of Senior Logistic Officer on such gate passes. The said gate passes were used to take out kerosene, diesel and petrol. A second set of vouchers were prepared for the purpose of issuing gate passes when items were taken out of guard room, which were later destroyed after safe passage from the guard room. The misappropriated items were disposed in the civil area. On the basis of the said finding, the Court of Inquiry recommended following actions : (a) Initiate strict disciplinary action against Corporal C.B. Yadav (Respondent) and others involved in the said action; (b) To make good the loss incurred due to such action and to recover the cost of quantity DHPP 400 Ltrs. and quantity 200 Ltrs. of petrol (Rs.68,520/-).\n 3. An Additional Court of Inquiry was ordered to further investigate into certain other aspects not covered by the Court of Inquiry. By the Report dated 12.07.2007, the Additional Court of Inquiry found that the Respondent had prepared the gate passes in advance on some occasions. The record of the Court of Inquiry and Additional Court of Inquiry proceedings were forwarded to the Head Quarters, Maintenance Command on 26.07.2000. The Court of Inquiry proceedings were approved by the AOC-in-C, Maintenance Command, pursuant to which disciplinary action was initiated against the Respondent and others.\nA charge sheet was framed containing 14 charges and a hearing of charge under Rule 24 of the Air Force Rules, 1969 (for short \"the Rules\") was conducted before the Air Officer Commanding-in-Chief. The AOC-in-C ordered evidence to be recorded in writing. After considering the summary of evidence, the AOC-in-C found that there was insufficient evidence to sustain Charges 1 to 5 and therefore, those charges were dropped. A charge sheet containing fresh charges was issued.\n 4. On 27.08.2001, AOC-in-C Head Quarters, Maintenance Command convened a District Court Martial for trial of the Respondent. The District Court Martial found the Respondent guilty and imposed a punishment of dismissal from service and reduction of the rank apart from sentencing the Respondent to rigorous imprisonment for three months. The order dated 25.10.2001 was set aside by the Tribunal. The Respondent was directed to have been in continuous service for the purpose of pension and other service benefits. However, arrears of salary was confined to 50 per cent.\n 5. The Tribunal held that the allegation against the Respondent being theft and misappropriation of kerosene and diesel, the loss caused due to theft required to be reported to the civil police as per Para 804(b) of the Regulations. By referring to Section 154 of the Code of Criminal Procedure, 1973 (for short \"the Cr.\nPC), the Tribunal held that it is mandatory that a First Information Report (FIR) had to be registered in a cognizable case. The Tribunal observed that the Respondent was not given an opportunity in terms of Rule 156 of the Rules during the Court of Inquiry proceedings. In view of the violation of sub-rule (2), (6) and (7) of Rule 156 of the Air Force Rules, the Tribunal was of the view that the proceedings of the Court of Inquiry were vitiated. The contention on behalf of the Respondent that there was violation of Rule 24 of the Rules and that the summary of evidence was also not recorded in accordance with the prescribed procedure, was not accepted by the Tribunal. Group Captain A.K.\nGurtu, Senior Personnel Staff Officer (SPSO), Head Quarters for Air Officer, Commanding-in-Chief signed the order by which the District Court Martial was convened which, according to the Tribunal was in violation of Section 111 of the Act and Rule 43(4) of the Rules. The Tribunal observed that only the AOC-in-C is competent to convene the District Court Martial. The Tribunal re-appreciated the evidence and came to the conclusion that the charges against the Respondent were not proved beyond reasonable doubt.\nFirst Information Report (FIR) 6. Mr. Vinay Kumar Garg, learned Senior Counsel appearing on behalf of the Respondent submitted that Para 804 (b) of the Regulations imposes an obligation that a loss caused due to theft should be reported to the civil police. He supported the finding of the Tribunal that there is requirement of compulsory registration of FIR in view of the provisions of Section 154 Cr. PC. Mr.\nR. Balasubramanian, learned Senior Counsel appearing for the Union of India submitted that Para 804(b) of the Regulations is not mandatory. It is open to the authorities to report a theft to the civil police if the situation warrants. He submitted that the Air Force Act, 1950 and Air Force Regulations, 1964 govern the conduct and discipline of the Air Force. The Air Force Act, 1950 is a special law in which detailed procedure for conducting of trial by a Court Martial has been prescribed and no requirement for registration of an FIR is mandatory under the Rules therein. The conduct of trial including investigation is covered under Air Force Act and the Rules. He referred to Section 5 of the Cr. PC to submit that the Cr. PC is not applicable to the personnel governed under the Air Force Act. He relied upon the judgment of this Court in Ajmer Singh & Ors.\nv. Union of India & Ors.1 in support of his argument.\n 7. In Ajmer Singh (supra), it was held as follows : \"7. Section 5 of the Code of Criminal Procedure lays down that nothing contained in the said Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. The relevant Chapters of the Army Act, the Navy Act and the Air Force Act embody a completely self-contained comprehensive Code specifying the various offences under those Acts and 1 (1987) 3 SCC 340 prescribing the procedure for detention and custody of offenders, investigation and trial of the offenders by court martial, the punishments to be awarded for the various offences, confirmation and revision of the sentences imposed by court martial, the execution of such sentences and the grant of pardons, remissions and suspensions in respect of such sentences. These enactments, therefore, constitute a special law in force conferring special jurisdiction and powers on court martial and prescribing a special form of procedure for the trial of the offences under those Acts. The effect of Section 5 of the Code of Criminal Procedure is to render the provisions of the Code of Criminal Procedure inapplicable in respect of all matters covered by such special law. \"\n 8. It is clear from the above that the Air Force Act is a special law conferring jurisdiction and powers on the Court Martial and prescribing the procedure for trial of offences. It is also clear that the Code of Criminal Procedure is not applicable in respect of matters covered by the Air Force Act. Hence, the finding recorded by the Tribunal that it is mandatory for the authorities to report the offences to civil police for registration of an FIR is unsustainable. The Tribunal further relied upon Para 804(b) of the Regulations to hold that it is incumbent on the part of the authorities to report an offence to the civil police for registration of an FIR. Para 804(b) is as follows: \"804. Loss of Air Force Equipment and Foodstuffs.\n (a) .. ..\n (b) A loss which is supposed to be due to theft will be reported at once to the civil police, when the circumstances warrant the course of action. In any court of inquiry which may subsequently be held, evidence will be taken to show the date on which the loss was so reported.\"\n 9. There can be no doubt from a plain reading of the Regulations that the reporting of an offence of theft to the civil police is optional. Only when the circumstances warrant such reporting to the civil police, the competent officer can do so. For the aforementioned reasons, para 804 (b) of the Regulations of the Air Force Act cannot be said to be mandatory.\n Court of Inquiry: 10. The contention of the Respondent which was accepted by the Tribunal relates to the violation of sub- Rule (2), (6) and (7) of Rule 156. It is necessary to reproduce sub-Rule (2), (6) and (7) of Rule 156 which are as under : \"156. Courts of inquiry other than those held under section 107.-- (1) .. ..\n (2) Save in the case of a prisoner of war who is still absent, whenever any inquiry affects the character or service reputation of a person subject to the Act, full opportunity must be afforded to such person of being present throughout the inquiry and of making any statements and of giving any evidence he may wish to make or give, and of cross-examining and witness whose evidence, in his opinion, affects his character or service reputation, and producing any witnesses in defence of his character or service reputation.\n (3) .. ..\n (4) .. ..\n (5) .. ..\n (6) The proceedings of a court of inquiry, or any confession or statement or answer to a question made or given at a court of inquiry, shall not be admissible in evidence against a person subject to Air Force Law, nor shall any evidence respecting the proceedings of the court be given against any such person except upon the trial of such person for wilfully giving false evidence before that court.\n (7) Any person subject to the Act whose character or service reputation is in the opinion of the Chief of the Air Staff, affected by anything in the evidence before or in the report of a court of inquiry shall be entitled to a copy of the proceedings of such court unless the Chief of the Air Staff sees reason to order otherwise.\"\n 11. The Tribunal was of the view that the Respondent was not given sufficient opportunity to defend himself during the course of the proceedings before the Court of Inquiry.\n 12. According to the Respondent, he was not permitted to be present during the recording of statement of witnesses. He was also deprived of an opportunity to cross-examine the witnesses. The contention on behalf of the Union of India is that the Respondent was given an opportunity to make a statement and to cross- examine witnesses. He was also given a chance to produce documentary evidence. The Respondent made a statement on 19.07.2000 to the effect that he did not wish to cross-examine witnesses and to produce any documentary evidence in his defence.\n 13. The statement made by the Respondent was produced before us which indicates that he did not utilize the opportunity given to him. Therefore, it cannot be held that there is violation of Rule 156 of the Rules and the Tribunal committed an error in holding that the proceedings of Court of Inquiry are vitiated.\nConvening Order: 14. The contention of the Respondent is that Group Captain A.K. Gurtu, Senior Personnel Staff Officer (SPSO), Head Quarters MC IAF signed the order by which the District Court Martial was convened. It is urged that AOC-in-C is the competent authority to convene the Court Martial. The Union of India justified the order by which the District Court Martial was convened in accordance with the Air Force Rules.\n 15. Section 111 of the Air Force Act provides that District Court Martial may be convened by an officer having power to convene a General Court Martial, or by an officer empowered by warrant of any such officer.\nRule 43 deals with convening of General and District Court Martials. Rule 43(4) which is relevant for our purpose reads as under : \"43. Convening of general and district court- martial. -- (4) After the convening officer has appointed or detailed the officer to form a Court-Martial under sub-rule (3), convening order of the Court-Martial and endorsement on the charge- sheet for trial of the accused by court-martial may either be signed by convening officer or by a staff officer on his behalf. The charge sheet on which the accused to be tried, the summary of evidence and the convening order for assembly of Court-Martial shall then be sent to the senior officer of Court-Martial and the Judge Advocate, if appointed.\"\n 16. In Union of India & Ors. v. Ex. Flt. Lt. G.S.\n Bajwa2, this Court examined the issue pertaining to the authority competent to convene the Court Martial and held as follows: \"44. A ground was taken before the High Court (Ground f) that the convening of the General Court Martial was signed by an officer, in whose name no delegation or such authority had ever been made. In reply thereto the appellant had submitted that the convening order was signed by the said officer on behalf of the Air Officer In-charge Personnel, who had after due application of mind, issued the order for convening the above Court Martial. It was not disputed before us that the Air Officer In- charge Personnel (AOP) was empowered to convene a Court Martial. The only question which, therefore, requires consideration is 2 (2003) 9 SCC 630 whether the order convening the General Court Martial was passed by the AOP and it was only formally communicated under signatures of the Air Commodore concerned or whether the Air Commodore named therein, who was not empowered, himself passed the convening order. With a view to avoid any controversy on this factual position, we directed the appellant to produce before us the original file. We have perused the file and we find that the order for convening the General Court Martial was approved by Air Marshal D.A. LaFontaine, AOP.\n There is, therefore, no force in the submission that the convening order was unauthorized and, therefore, illegal.\"\n 17. The order dated 18.08.2001 by which the District Court Martial was convened is issued in the name of Air Marshall S.S. Gupta, PVSM, AVSM, VSM, ADC, Air Officer Commanding-in-Chief, Maintenance Command. There is no doubt that the order was signed by Group Captain A.K. Gurtu, SPSO, Head Quarters MC IAF who is the Personnel Staff Officer for Air Officer Commanding-in- Chief, Maintenance Command, IAF. Rule 43(4) provides that a convening order may be signed by the Commanding Officer or by the Senior Staff Officer on his behalf. The fact that Group Captain A.K. Gurtu was the Senior Personnel Staff officer for the AOC-in-C Maintenance Command, IAF is not in dispute. A perusal of the Record reveals that the convening order had the approval of the competent authority and as such, it cannot be termed as unauthorized. Another submission that was made by the learned Senior Counsel for the Respondent is that according to the Organizational Chart of Head Quarters MC IAF it is only Senior Air & Administrative Staff Officer (SAASO) who can be the Staff Officer of the AOC-in-C. The said submission was countered by the learned Senior Counsel for the Union of India. It was contended that that Group Captain A.K.\nGurtu was Senior Personnel Staff Officer (SPSO) and lesser than that of Senior Air & Administrative Staff Officer (SAASO) in the hierarchy. There is no requirement that only SAASO can be the Staff Officer to AoC-in-C. Even Officers lower than SAASO can be appointed as Staff Officers. According to Mr. R.\n Balasubramanian, learned Senior Counsel, it is evident from the order itself that Group Captain A.K. Gurtu who is Senior Personnel Staff Officer (SPSO) was the Staff Officer and competent to sign the convening order.\n 18. The convening order which was signed by the Staff Officer of the AOC-in-C is in accord with Rule 43(4) of the Rule and no fault can be found with the order. The Tribunal committed an error in holding that the convening order was by an officer who was not competent.\n Charges 5 & 6 19. The District Court Martial found the Respondent guilty of Charges 1, 2, 5 and 6. He was exonerated of Charges 3 and 4. The confirmation authority held that there was no sufficient evidence in relation to Charges 1 and 2 and they were dropped. What remains to be seen is whether Charges 5 & 6 are established.\n Charges 5 & 6 are as follows: \"\n Fifth Charge Committing Criminal Breach of Trust Section 52(c) in Respect of property belonging to Air Force Act, the Govt.\n In that he, 1950 At 402 AF Station, on 20 April 2000, being the NCO i/c POL, Stores of 402 Sixth charge AF Station and in that capacity Section 52(c) entrusted with POL Stores of the unit, Air Force Act, dishonestly misappropriated 1400 1950 Ltrs of DHPP(N), by raising IAFF(Q) 429 No.EX/IV/P/10 (2000-2001) for 200 ltrs of Petrol 87 MT 800 ltrs of DHPP(N), but physically issuing 702670-K Cpl Mani GS Eqpt Asst of 7 AF Hospital 200 ltrs of Petrol 87 MT, 2200 ltrs DHPP(N) and nil Kerosene oil quantity, by writing quantity 200 ltrs of Petrol 87 MT, 800 Ltrs of DHPP(N) and 1400 ltrs of kerosene Oil on gate pass No.3129 dated 29 April 2000.\n Committing criminal breach of trust in respect of property belonging to the Govt.\n In that he, At 402 AF Station, on 02 May 2000 being the NCO i/c POL, stores of 402 AF Station and in that capacity entrusted with POL stores of the unit, dishonestly misappropriated 1400 lrts of DHPP(N), by making use of two sets of IAFF(Q) 429 bearing same serial No.EX/IV/P/16 (2000-20010 for a single transaction of issue of POL to 7 AF Hospital first set (receipted blue) showing issue of 2400 ltrs of Kerosene oil only and second set (original black) showing issue of 2400 ltrs of kerosene oil and 1400 ltrs of DHPP(N), and physically issuing to 702670-K Cpl Mani GS Eqpt Asst of 7 AF Hospital as per second set and gate pass No.3131 dated 02 May 2000.\n \"\n 20. The Tribunal on a reconsideration of the evidence on record concluded that Charges 5 and 6 were not established beyond reasonable doubt. PW1 Corporal M.K. Sharma failed to identify the signatures appended on the vouchers. PW2 Sergeant L. Singh who was the Record Keeper in Security Section deposed that he was not aware as to who was responsible for the issuance of kerosene oil. W.O. S.K. Singh who was examined as PW3, does not remember the dates and data with regard to deficiencies of POL. He stated that no deficiency was found in POL during the weekly snap checks from February-May, 2000. He further stated that the Respondent was not related to issuance of kerosene oil during the months of February-May, 2000. Wing Commander J.K. Chakraborty who appeared as PW4 admitted that there was no deficiency of diesel at the time of handing and taking over of duty by the Respondent. PW5 Flight Lieutenant Arvind Kumar had no personal knowledge of the evidence as he was on leave. However, he stated that there was no surplus or deficiency of POL. PW6 Corporal G.S. Mani admitted to unloading seven empty barrels at Pardevanpurwa on 20.04.2000 at the request of the Respondent. He further stated that an amount of Rs.1,500/- was forcibly given by the Respondent. He also stated that he carried 20 barrels for collecting 2400 liters of kerosene oil and again collected seven barrels on 02.05.2000. During cross-examination, he was confronted with his previous statement wherein he stated that he was coerced to make a statement against the Respondent. In view of the contradictions made by PW6 who is the co-accused, the Tribunal held that he is not a reliable witness. PW7 Corporal S. Singh categorically stated that the loading of barrels containing POL was at the behest of Corporal G.S. Mani. PW8 Hasan R. Lascar who was working in the Medical Ward stated that he loaded empty barrels on the instructions of Corporal G.S. Mani. PW9 Rajendra Prasad Lascar also stated that loading and off loading of diesel at Pardevanpurwa was in the presence of Corporal G.S. Mani.\n21. We have examined the evidence to satisfy ourselves as to whether there is any iota of evidence against the Respondent. It appears from the evidence that Corporal G.S. Mani was actively involved in the transportation of diesel barrels and loading and off loading in the civil area. Curiously no action was taken against Corporal G.S. Mani. There is no evidence on record to connect the Respondent to the offence of illegal transportation of POL. Though we are not in agreement with the Tribunal on the other issues, in view of lack of any evidence against the Respondent, we are inclined to uphold the judgment of the Tribunal. The Appeal is dismissed.\nCivil Appeal No.7440 of 2018 22. This appeal has been filed by the Respondent aggrieved by the directions of the Tribunal that the Appellant shall pay only 50 per cent of the arrears of salary.\nAfter considering the submissions of the learned Senior Counsel, we are not inclined to interfere with the order of the Tribunal. The appeal is accordingly dismissed.\n ..................................J.\n [L. NAGESWARA RAO] ..................................J.\n [DEEPAK GUPTA] New Delhi, January 17, 2020.\n "
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{
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{
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"id": "8247b9414fc940f493c375367ed77e07",
"to_name": "text",
"type": "labels",
"value": {
"end": 855,
"labels": [
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],
"start": 0,
"text": "PETITIONER:\nVIJAY ENTERPRISES AND ORS.\n\nVs.\n\nRESPONDENT:\nSALES TAX OFFICER AND ORS.\n\nDATE OF JUDGMENT11/02/1992\n\nBENCH:\nREDDY, K. JAYACHANDRA (J)\nBENCH:\nREDDY, K. JAYACHANDRA (J)\nPATNAIK, R.C. (J)\n\nCITATION: 1992 SCR (1) 594\n 1992 AIR 760 JT 1992 (1) 579\n 1992 SCC (2) 55\n 1992 SCALE (1)304\n\nACT:\n Uttar Pradesh Sales Tax Act, 1948:\n\n Section 4-A and Notification dated 29.1.1985-Exemption\nof Sales tax to new industrial units-First sale of\nmanufactured goods made within six months from date of\nproduction-Diesel set purchased before date of first sale-\nWhether cost of diesel set to be included in capital\ninvestment and exemption granted for five years from date of\nfirst sale.\n\nHEADNOTE:\n The petitioners were a small scale industrial unit\n\nmanufacturing cycle stands and carriers."
}
},
{
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"id": "47c40190099e4333b19f9b5cbe600b93",
"to_name": "text",
"type": "labels",
"value": {
"end": 979,
"labels": [
"PREAMBLE"
],
"start": 856,
"text": "They applied for\npower connection in December, 1984, but it was given only on\n20.5.86, though it was sanctioned on 19.1.86."
}
},
{
"from_name": "label",
"id": "214b8492b6594e208702fa80140a8f21",
"to_name": "text",
"type": "labels",
"value": {
"end": 1120,
"labels": [
"PREAMBLE"
],
"start": 980,
"text": "Meanwhile,\nthe petitioners started production manually with effect from\n1.3.85 and effected first sale of the manufactured goods on\n30.3.85."
}
},
{
"from_name": "label",
"id": "b5d3210d891142a3a0d3ff2f1b71657b",
"to_name": "text",
"type": "labels",
"value": {
"end": 1294,
"labels": [
"PREAMBLE"
],
"start": 1121,
"text": "On their application for exemption from the\npayment of sales tax under Section 4-A of the U.P. Sales Tax\nAct, 1948, and the Notifications issued thereunder from time\nto time"
}
},
{
"from_name": "label",
"id": "5ee3ed2d8f9c467e92d5a08cf4040607",
"to_name": "text",
"type": "labels",
"value": {
"end": 1353,
"labels": [
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],
"start": 1294,
"text": ", the Divisional Joint Director of the Sales Tax\nDepartment"
}
},
{
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"id": "c20efcf5fc8f4b6d9387dbf2ace8ff35",
"to_name": "text",
"type": "labels",
"value": {
"end": 1439,
"labels": [
"PREAMBLE"
],
"start": 1354,
"text": "granted exemption for a period of three years\nonly commencing from 1.3.85.\n\n "
}
},
{
"from_name": "label",
"id": "ac5ca4010eed42d38eaa8f34859bb2bc",
"to_name": "text",
"type": "labels",
"value": {
"end": 1842,
"labels": [
"PREAMBLE"
],
"start": 1439,
"text": "The petitioners filed a review application contending\nthat the exemption should be with effect from 20.5.86, on\nwhich date the power connection was given and production\ncommenced with the help of electricity and that the\nexemption should be for five years from 20.5.86, since on\nthat date their capital investment was more than Rs.3,00,000\nincluding Rs. 72,800, the cost of diesel set purchased by\nthem."
}
},
{
"from_name": "label",
"id": "f999c4cbd41941138d8c989599721bcb",
"to_name": "text",
"type": "labels",
"value": {
"end": 2004,
"labels": [
"PREAMBLE"
],
"start": 1843,
"text": "The petitioners' plea that 30.3.85 as the date of\nfirst sale was accepted, but their plea that the date of\nstarting of production should be 20.5.86 was rejected."
}
},
{
"from_name": "label",
"id": "fddd7f456d50471489210c2ab81ab87f",
"to_name": "text",
"type": "labels",
"value": {
"end": 2071,
"labels": [
"PREAMBLE"
],
"start": 2004,
"text": "\nHence the petitioners filed a Writ Petition before the High\nCourt."
}
},
{
"from_name": "label",
"id": "b95619df2ccf46a2a685eeb9490e19a2",
"to_name": "text",
"type": "labels",
"value": {
"end": 2813,
"labels": [
"PREAMBLE"
],
"start": 2071,
"text": "\n\n Rejecting the petitioners' pleas that the date of\ngetting power connection, i.e. 20.5.86 should be taken as\nthe date of starting production, and that the capital\ninvestment in the unit was more than Rs. 3,00,000 during\n\n 595\nthe period between 1.3.85 i.e. the date of starting\n\nproduction, and 30.3.85, i.e. the date of first sale, the\nHigh Court held that the first sale, i.e. 30.3.1985, should\nbe taken as date of commencement of the period of exemption\nand that the petitioners were entitled for exemption only\nfor a period of three years from that date in view of\nSection 4-A of the Act and the relevant notifications.\n\n "
}
},
{
"from_name": "label",
"id": "a6059d0a53524cc5877286164cbb7cbf",
"to_name": "text",
"type": "labels",
"value": {
"end": 3211,
"labels": [
"PREAMBLE"
],
"start": 2813,
"text": "In the special leave Petition before this Court, the\npetitioners contended that once it was accepted that the\ndate of first sale was 30.3.85, the cost of diesel unit\namounting to Rs. 72,800 should also be included in the\ncapital investment, in which case the total capital\ninvestment would be above Rs. 3 lakhs and accordingly, the\nexemption should be for five years as per the relevant\nprovisions."
}
},
{
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"id": "4296960dbbe140dd97d43b7bfe73f3bf",
"to_name": "text",
"type": "labels",
"value": {
"end": 3292,
"labels": [
"PREAMBLE"
],
"start": 3211,
"text": "\n\n Disposing of the Special Leave Petition, this Court,\n HELD: 1."
}
},
{
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"id": "c3922c3916af41cf8ca00ddf384746ef",
"to_name": "text",
"type": "labels",
"value": {
"end": 3466,
"labels": [
"PREAMBLE"
],
"start": 3293,
"text": "The petitioners are entitled for exemption\nunder Section 4-A of the U.P. Sales Tax Act, 1948, for five\nyears from 30.3.1985 and accordingly they should be given\nthe benefit."
}
},
{
"from_name": "label",
"id": "4f5575cb966c473d806c076ed84fb2c6",
"to_name": "text",
"type": "labels",
"value": {
"end": 3480,
"labels": [
"PREAMBLE"
],
"start": 3466,
"text": "\n 2.1."
}
},
{
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"id": "8862b2a65bd743698becec75e0a563b6",
"to_name": "text",
"type": "labels",
"value": {
"end": 3747,
"labels": [
"PREAMBLE"
],
"start": 3481,
"text": "Section 4-A of the Act provides for granting\nexemption to the new industrial units with a view to\nincrease the production of any goods and the period of\nexemption should be from the date of first sale within the\nsix months' time from the date of starting production."
}
},
{
"from_name": "label",
"id": "46b5c0192fc04619962e248de4c87bfe",
"to_name": "text",
"type": "labels",
"value": {
"end": 4117,
"labels": [
"PREAMBLE"
],
"start": 3748,
"text": "The\nNotification dated 29.1.1985 issued by the State Government\nunder Section 4-A specified the date of commencement of the\nperiod of exemption as the date of first sale, if such sale\ntook place not later than six months from the date of\nstarting production, or, in other cases, from the date\nfollowing the expiration of six months from the date of\nstarting production."
}
},
{
"from_name": "label",
"id": "41677e1a099448faa3009481f0d7a303",
"to_name": "text",
"type": "labels",
"value": {
"end": 4395,
"labels": [
"PREAMBLE"
],
"start": 4118,
"text": "Column 3 of the Table appended to the\nNotification shows that in respect of the units mentioned\ntherein in Serial No. 3, the exemption should be for three\nyears if the total capital investment does not exceed Rs.\n3,00,000 and if it exceeds Rs. 3,00,000 it should be five\nyears."
}
},
{
"from_name": "label",
"id": "616abb76b96a44e490e1b369ed2c4c17",
"to_name": "text",
"type": "labels",
"value": {
"end": 4420,
"labels": [
"PREAMBLE"
],
"start": 4396,
"text": "[598A-B, E]\n 2.2"
}
},
{
"from_name": "label",
"id": "2eed2fdeda0e4c749c8470f1d4872b3a",
"to_name": "text",
"type": "labels",
"value": {
"end": 4840,
"labels": [
"PREAMBLE"
],
"start": 4421,
"text": "In the instant case, the petitioners' case has been\nthat they purchased and installed a diesel unit on 4.3.1985\namounting to Rs. 72,800 and as such, it must be held that\nthe cost of the diesel unit should be included in the\ncapital investment, in which case the total capital\ninvestment would be more than Rs. 3,00,000 on the date of\nfirst sale, namely, 30.3.1985, and therefore, the exemption\nshould be for five years."
}
},
{
"from_name": "label",
"id": "550cc4e53b014f52b7d4f7ea8d6c3c8b",
"to_name": "text",
"type": "labels",
"value": {
"end": 4954,
"labels": [
"PREAMBLE"
],
"start": 4841,
"text": "The Joint\n\n 596"
}
},
{
"from_name": "label",
"id": "7142db40f30a410789c198b65f01ccf6",
"to_name": "text",
"type": "labels",
"value": {
"end": 5085,
"labels": [
"PREAMBLE"
],
"start": 4954,
"text": "\nDirector rejected the claim to include the cost of diesel\nunit on the sole ground that it was purchased after starting\nproduction."
}
},
{
"from_name": "label",
"id": "5d4d01b954de436b9512e8d9bf339c6a",
"to_name": "text",
"type": "labels",
"value": {
"end": 5405,
"labels": [
"PREAMBLE"
],
"start": 5086,
"text": "However, before the High Court the State\nGovernment alongwith their counter-affidavit have annexed\nthe bill dated 4.3.1985, which shows that the diesel set was\npurchased by the petitioners for total cost of Rs. 72,800.\nTherefore, it cannot be in dispute that the diesel set was\npurchased by the petitioners on 4.3.1985."
}
},
{
"from_name": "label",
"id": "ef6255f622b44f0e9345237e8bd9823e",
"to_name": "text",
"type": "labels",
"value": {
"end": 5432,
"labels": [
"PREAMBLE"
],
"start": 5406,
"text": "[598E, 601D]\n\n 2.3"
}
},
{
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"id": "e3d1976905364644acb3857bcd498e44",
"to_name": "text",
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"end": 5839,
"labels": [
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],
"start": 5432,
"text": ". In view of the categorical finding of the High\nCourt that the date of commencement of production was\n1.3.1985 and the date of first sale was 30.3.1985, the date\nof purchase of diesel set which is 4.3.1985, was clearly\nprior to the date of first sale, and, therefore, the cost of\nthe diesel set should also be included in the capital\ninvestment as on 30.3.1985, and then it would be more than\nRs. 3,00,000."
}
},
{
"from_name": "label",
"id": "3dfce5689a764ce0bf405ce87f00878b",
"to_name": "text",
"type": "labels",
"value": {
"end": 5941,
"labels": [
"PREAMBLE"
],
"start": 5840,
"text": "Thus, it is clear that the exemption should\nbe for five years from 30.3.1985 i.e. date of first sale,"
}
},
{
"from_name": "label",
"id": "7d30cd15d9c845218c38c9d7037cff97",
"to_name": "text",
"type": "labels",
"value": {
"end": 5972,
"labels": [
"PREAMBLE"
],
"start": 5942,
"text": "as\nper the relevant provisions"
}
},
{
"from_name": "label",
"id": "98011e81fbe44cbe807743d4b82cb6d1",
"to_name": "text",
"type": "labels",
"value": {
"end": 6081,
"labels": [
"NONE"
],
"start": 5972,
"text": ". [601E-F]\n\nJUDGMENT: CIVIL APPELLATE JURISDICTION : Special Leave Petition (Civil) No. 8543 of 1990."
}
},
{
"from_name": "label",
"id": "c5ee57c170954c21b3e063ae0d83e64a",
"to_name": "text",
"type": "labels",
"value": {
"end": 6205,
"labels": [
"NONE"
],
"start": 6091,
"text": "From the Judgment and Order dated 25.5. 1990 of the Allahabad High Court in Civil Misc. Writ No. 36 (Tax) of 1989."
}
},
{
"from_name": "label",
"id": "86a1a55c2117459fb9bbb43298f19668",
"to_name": "text",
"type": "labels",
"value": {
"end": 6251,
"labels": [
"NONE"
],
"start": 6205,
"text": "\n P.P Rao and A.S. Pundir for the Petitioners."
}
},
{
"from_name": "label",
"id": "df9d786e9e0145e68ad56d8e80afb68f",
"to_name": "text",
"type": "labels",
"value": {
"end": 6301,
"labels": [
"NONE"
],
"start": 6251,
"text": "\n Ashok K. Srivastava for the Respondents."
}
},
{
"from_name": "label",
"id": "a7bca63025034833a361ea63f373e20c",
"to_name": "text",
"type": "labels",
"value": {
"end": 6442,
"labels": [
"NONE"
],
"start": 6301,
"text": "\n The following Order of the court was delivered: The matter is being disposed of at the stage of admission after hearing both sides."
}
},
{
"from_name": "label",
"id": "7d592e82389d4b7e8b5eb84abb4650be",
"to_name": "text",
"type": "labels",
"value": {
"end": 6553,
"labels": [
"FAC"
],
"start": 6442,
"text": "\n The petitioners in these appeals have filed the S.L.P.\nagainst the order of the Allahabad High Court."
}
},
{
"from_name": "label",
"id": "f8f74c9961024568ba33b80eb82cabe4",
"to_name": "text",
"type": "labels",
"value": {
"end": 6693,
"labels": [
"FAC"
],
"start": 6554,
"text": "The petitioners belong to a re-established small scale industrial unit for manufacturing cycle stands and carriers during the year 1984-85."
}
},
{
"from_name": "label",
"id": "5bb04aee5d3f44b49dcd122f37efbf06",
"to_name": "text",
"type": "labels",
"value": {
"end": 6779,
"labels": [
"FAC"
],
"start": 6694,
"text": "They applied for power connection in December, 1984 but it was sanctioned on 19.1.86."
}
},
{
"from_name": "label",
"id": "e9b55d0bbdf54cc2af42f9d2c5878abf",
"to_name": "text",
"type": "labels",
"value": {
"end": 6868,
"labels": [
"FAC"
],
"start": 6779,
"text": "\nMeanwhile the petitioners, however, started production manually with effect from 1.3.85."
}
},
{
"from_name": "label",
"id": "7f4e54d99f084f1bae32cab292a07a88",
"to_name": "text",
"type": "labels",
"value": {
"end": 6937,
"labels": [
"FAC"
],
"start": 6869,
"text": "They effected their first sale of the manufactured goods on 30.3.85."
}
},
{
"from_name": "label",
"id": "7e7d6ada356d4b3da67562d71520be84",
"to_name": "text",
"type": "labels",
"value": {
"end": 7016,
"labels": [
"FAC"
],
"start": 6938,
"text": "It is their case that they purchased a diesel unit and installed it on 4.3.85."
}
},
{
"from_name": "label",
"id": "21cdf4b59cfc408ca02c46e6bb0d1070",
"to_name": "text",
"type": "labels",
"value": {
"end": 7166,
"labels": [
"FAC"
],
"start": 7017,
"text": "According to them the total investment including the cost diesel unit 597 was more than Rs. 3,00,000 as on 30.3.85, when the first sale was effected."
}
},
{
"from_name": "label",
"id": "112414e75bef4dcbbdc9eff633b26352",
"to_name": "text",
"type": "labels",
"value": {
"end": 7337,
"labels": [
"FAC"
],
"start": 7167,
"text": "The petitioners applied for exemption from the payment of sales tax under Section 4-A of the U.P.\nSales Tax Act and the Notifications thereunder issued from time to time."
}
},
{
"from_name": "label",
"id": "9560c01e5dc74ec19e0a34bba165df38",
"to_name": "text",
"type": "labels",
"value": {
"end": 7523,
"labels": [
"FAC"
],
"start": 7338,
"text": "The Divisional Joint Director by his Order dated 26.4.1988 informed the petitioners that exemption was granted under Section 4-A for a period of three years only commencing from 1.3.85."
}
},
{
"from_name": "label",
"id": "c2cc6529b94d435d8f36c7fc4255088c",
"to_name": "text",
"type": "labels",
"value": {
"end": 7848,
"labels": [
"FAC"
],
"start": 7524,
"text": "A review was filed by the petitioners contending that the exemption should be with effect from 20.5.86 on which date the power connection was given and production commenced with the help of electricity and on that date their capital investment was more than Rs.\n3,00,000 and therefore the exemption should be for five years."
}
},
{
"from_name": "label",
"id": "8cf71b532b054d4582d83773e0de70a2",
"to_name": "text",
"type": "labels",
"value": {
"end": 8055,
"labels": [
"FAC"
],
"start": 7849,
"text": "By proceedings dated 23.12.1988 the petitioners were informed that 30.3.85 has been accepted as the date of first sale, but their plea that the date of starting of production should be 20.5.85 was rejected."
}
},
{
"from_name": "label",
"id": "12dd9163037846bdbfcb497e04edbca9",
"to_name": "text",
"type": "labels",
"value": {
"end": 8125,
"labels": [
"FAC"
],
"start": 8056,
"text": "Questioning the same a Writ Petition was filed before the High Court."
}
},
{
"from_name": "label",
"id": "6b649d5731de4fbd918ef82b4f127cfd",
"to_name": "text",
"type": "labels",
"value": {
"end": 8250,
"labels": [
"FAC"
],
"start": 8125,
"text": "\n The High Court accepted the petitioners' plea that 30.3.85 is the date of first sale manufactured goods by the petitioners."
}
},
{
"from_name": "label",
"id": "44ac21c12e8c48488e3dbb8779a86b3f",
"to_name": "text",
"type": "labels",
"value": {
"end": 8407,
"labels": [
"FAC"
],
"start": 8251,
"text": "However, the plea of the petitioners that the date of getting power connection i.e. 20.5.86 should be taken as the date of starting production was rejected."
}
},
{
"from_name": "label",
"id": "50402df9c27b40f89036d6be7b23dfde",
"to_name": "text",
"type": "labels",
"value": {
"end": 8553,
"labels": [
"FAC"
],
"start": 8408,
"text": "The High Court also observed that the date of first sale, namely 30.3.85, should be taken as the date of commencement of the period of exemption."
}
},
{
"from_name": "label",
"id": "bbabe2b4d59d4a8f888d8e255f0ae18f",
"to_name": "text",
"type": "labels",
"value": {
"end": 8826,
"labels": [
"FAC"
],
"start": 8554,
"text": "Having thus found, the High court, however was not prepared to accept the petitioners' plea that the capital investment in the unit was more than Rs.\n3,00,000 during the period between 1.3.85, i.e. the date of starting production, and 30.3.85, i.e. the date of first sale."
}
},
{
"from_name": "label",
"id": "906b719a58d84dd6bddefc90494c7c76",
"to_name": "text",
"type": "labels",
"value": {
"end": 9050,
"labels": [
"FAC"
],
"start": 8827,
"text": "In the result, it was declared that the petitioners were entitled for exemption only for a period of three years from the date of first sale, namely 30.3.85, in view of Section 4-A of the Act and the relevant notifications."
}
},
{
"from_name": "label",
"id": "c88003673f1b4ef7a788097ba63d28ab",
"to_name": "text",
"type": "labels",
"value": {
"end": 9578,
"labels": [
"ARG_PETITIONER"
],
"start": 9052,
"text": "The learned counsel for the petitioners contended that when once it is accepted that the date of first sale is 30.3.85, then the exemption should be on the basis of the capital investment as it stood on that date and since the petitioners have already installed the diesel unit and the cost of diesel unit amounting to Rs. 72,800 should also be included in the capital investment, then the total capital investment would be above Rs. 3,00,000 and on which the exemption should be for five years as per the relevant provisions."
}
},
{
"from_name": "label",
"id": "c83b625896b34aeaba7972ab68d9a449",
"to_name": "text",
"type": "labels",
"value": {
"end": 9698,
"labels": [
"ANALYSIS"
],
"start": 9579,
"text": "To appreciate this contention it becomes necessary to refer to some of the provisions and the notifications thereunder."
}
},
{
"from_name": "label",
"id": "510a2d55dee64377a8cef54006549aea",
"to_name": "text",
"type": "labels",
"value": {
"end": 9974,
"labels": [
"ANALYSIS"
],
"start": 9700,
"text": "598 Section 4-A of the Act provides for granting exemption to the new industrial units with a view to increase the production of any goods and the period of exemption should be from the date of the first sale within the six months' time from the date of starting production."
}
},
{
"from_name": "label",
"id": "b5f0757b66e944c698f905344cc2a1af",
"to_name": "text",
"type": "labels",
"value": {
"end": 10356,
"labels": [
"ANALYSIS"
],
"start": 9975,
"text": "A Notification was issued by the State Government on 29.1.85 under Section 4-A of the Act specifying the date of commencement of the period of exemption as \"the date of first sale, if such sale takes place not later than six months from the date of starting production, or, in other cases, from the date following the expiration of six months from the date of starting production\"."
}
},
{
"from_name": "label",
"id": "a8908075ef2349e0acbdf6d31ae4f9a3",
"to_name": "text",
"type": "labels",
"value": {
"end": 10530,
"labels": [
"ANALYSIS"
],
"start": 10357,
"text": "In the light of the above provisions and the notifications thereunder, the date of exemption in the instant case should be taken as 30.3.1985, namely the date of first sale."
}
},
{
"from_name": "label",
"id": "961a4c0e9a234a1f9f8ee40fcca6b73a",
"to_name": "text",
"type": "labels",
"value": {
"end": 10561,
"labels": [
"ANALYSIS"
],
"start": 10531,
"text": "This aspect is not in dispute."
}
},
{
"from_name": "label",
"id": "6b1ff04146504d3799abb4de125e557e",
"to_name": "text",
"type": "labels",
"value": {
"end": 10645,
"labels": [
"ANALYSIS"
],
"start": 10562,
"text": "Then the question is whether the exemption should be for three years or five years?"
}
},
{
"from_name": "label",
"id": "29dddbdefd2447c3943f87524e7d4e7c",
"to_name": "text",
"type": "labels",
"value": {
"end": 10771,
"labels": [
"ANALYSIS"
],
"start": 10646,
"text": "It depends upon the question as to what was the total capital investment on 30.3.1985; was it less than Rs. 3,00,000 or more?"
}
},
{
"from_name": "label",
"id": "37a74c661c7d40718030e15c763dd662",
"to_name": "text",
"type": "labels",
"value": {
"end": 11107,
"labels": [
"ANALYSIS"
],
"start": 10771,
"text": "\n Column 3 of the Table appended to the Notification dated 29.1.1985 issued under Section 4-A of the Act shows that in respect of the units mentioned therein in Serial No.\n3, the exemption should for three years if the total capital investment does not exceed Rs. 3,00,000 and if it exceeds Rs. 3,00,000 it should be five years."
}
},
{
"from_name": "label",
"id": "62bbb235f04b4065ac2b8bbd29c2210f",
"to_name": "text",
"type": "labels",
"value": {
"end": 11549,
"labels": [
"ANALYSIS"
],
"start": 11108,
"text": "The petitioners' case throughout has been that they purchased and installed a diesel unit on 4.3.1985 amounting to Rs. 72,800 and that since the same is not in dispute at all, it must be held that the cost of the diesel unit should be included in the capital investment, and then the total capital investment would be more than Rs. 3,00,000 as on the date of first sale namely 30.3.1985, in which case the exemption should be for five years."
}
},
{
"from_name": "label",
"id": "f3458b21bf5f47c9b581de6f0b559e09",
"to_name": "text",
"type": "labels",
"value": {
"end": 11672,
"labels": [
"ANALYSIS"
],
"start": 11550,
"text": "We may mention here that this point was not considered by the High Court in the manner it is submitted by the petitioners."
}
},
{
"from_name": "label",
"id": "b482d21fd31743de93acc9c20ffa54a0",
"to_name": "text",
"type": "labels",
"value": {
"end": 11892,
"labels": [
"ANALYSIS"
],
"start": 11673,
"text": "No doubt, before the High Court the petitioners' contention was that the date 20.5.86, when the power was supplied, should be the date of starting of production and from that date the exemption should be for five years."
}
},
{
"from_name": "label",
"id": "cabfddb7264848ea8c5ee092d64660bb",
"to_name": "text",
"type": "labels",
"value": {
"end": 12073,
"labels": [
"ANALYSIS"
],
"start": 11893,
"text": "The High Court rejected this contention by observing: \"The petitioners did not aver specifically that even on 1.3.1985/30.3.1985, their investment was more than rupees three lacks."
}
},
{
"from_name": "label",
"id": "1893bd26139f44a1958fa0520ceec697",
"to_name": "text",
"type": "labels",
"value": {
"end": 12191,
"labels": [
"ANALYSIS"
],
"start": 12074,
"text": "In such a situation, we cannot find fault with the authority for not recording a clear find on this issue\".\n "
}
},
{
"from_name": "label",
"id": "7037da075c384536be84e8ee1f800cde",
"to_name": "text",
"type": "labels",
"value": {
"end": 12314,
"labels": [
"ANALYSIS"
],
"start": 12191,
"text": "In observing so, the High Court relied on two paragraphs in the 599 review petition filed before the Sales Tax Authorities."
}
},
{
"from_name": "label",
"id": "804c098b786f4ac284e57462c6a5bb2e",
"to_name": "text",
"type": "labels",
"value": {
"end": 12593,
"labels": [
"ARG_PETITIONER"
],
"start": 12316,
"text": "The learned counsel submitted that even if the period of exemption cannot be reckoned from 20.5.86 (the date on which the power was supplied), yet the same should be reckoned atleast from 30.3.1985, on which date the total capital investment was above Rs. 3,00,000 undoubtedly."
}
},
{
"from_name": "label",
"id": "c176cd0ebe6a468689191be83daad5c8",
"to_name": "text",
"type": "labels",
"value": {
"end": 12794,
"labels": [
"ARG_RESPONDENT"
],
"start": 12594,
"text": "The learned counsel for the State submitted that such a contention was not put forward by the petitioners before the High Court and, therefore, the petitioners cannot raise the same before this Court."
}
},
{
"from_name": "label",
"id": "c378a0460ee44e7aa6ef12326c8f6928",
"to_name": "text",
"type": "labels",
"value": {
"end": 13213,
"labels": [
"RLC"
],
"start": 12794,
"text": "\n The High Court has given a categorical finding as under: \"In the circumstances of the present case, we find that the date of starting production in the petitioners unit is 1.3.1985 and in view of sub- section (1) of section 4-A, the date of the first sale, i.e., 30.3.1985, should be taken as the date of commencement of the period of exemption, the same falling within six months of the date of starting production\"."
}
},
{
"from_name": "label",
"id": "32f34b8fed004d8187bb1c9a997934fb",
"to_name": "text",
"type": "labels",
"value": {
"end": 13233,
"labels": [
"RLC"
],
"start": 13214,
"text": "(emphasis supplied)"
}
},
{
"from_name": "label",
"id": "f95ec44d26b741bab75d7c57a43375d8",
"to_name": "text",
"type": "labels",
"value": {
"end": 13317,
"labels": [
"RLC"
],
"start": 13234,
"text": "Therefore, 30.3.1985 should be the date of commencement of the period of exemption."
}
},
{
"from_name": "label",
"id": "41af2801e2014486b821ba809702b334",
"to_name": "text",
"type": "labels",
"value": {
"end": 13584,
"labels": [
"RLC"
],
"start": 13318,
"text": "In the review petition filed before the Joint Director of Industries, no doubt, it is clearly mentioned that on 19.4.1986 the capital investment was Rs. 5,26,273 and that the Sales Tax Officer cannot reduce the capital investment by excluding the cost of diesel set."
}
},
{
"from_name": "label",
"id": "beecfedd1db54a9f8ed9b2fa0d072914",
"to_name": "text",
"type": "labels",
"value": {
"end": 13848,
"labels": [
"RLC"
],
"start": 13585,
"text": "But in the counter-affidavit filed by the State Government before the High Court, it is mentioned thus: \"The dealer filed a review application before the Joint Director of Industries stating that exemption should be granted w.e.f. 30.3.85, the date of first sale."
}
},
{
"from_name": "label",
"id": "ccf084c04f9a4cf9b1d55f0a5b2e8b12",
"to_name": "text",
"type": "labels",
"value": {
"end": 14007,
"labels": [
"RLC"
],
"start": 13849,
"text": "It was also stated that capital investment upto 30.3.85 was more than 3 lacks including generator for Rs. 72,800 purchase vide Bill No.\n 107/84-85 dt. 4.3.85."
}
},
{
"from_name": "label",
"id": "3453bebc6f004845b2f0500da5198924",
"to_name": "text",
"type": "labels",
"value": {
"end": 14376,
"labels": [
"RLC"
],
"start": 14008,
"text": "Regarding this application enquiries were made and it was found that dealer started production from 1.3.85 manually and he had not purchased any machine driven by power before 1.3.85 and generator was purchased locally on 4.3.85 i.e. after the date of starting production vide Bill No. 107/84-85 dated 4.3.85 for Rs. 72,800 by transfer of documents against form `C'.\n "
}
},
{
"from_name": "label",
"id": "62f8073b62c744788aaf1bcd42987b8f",
"to_name": "text",
"type": "labels",
"value": {
"end": 14517,
"labels": [
"RLC"
],
"start": 14376,
"text": "Therefore, investment in the generator cannot be included in the machinary investment because the generator was not used 600 for production.\""
}
},
{
"from_name": "label",
"id": "abaab8821c9c485aaaa94278e26fe376",
"to_name": "text",
"type": "labels",
"value": {
"end": 14963,
"labels": [
"ARG_PETITIONER"
],
"start": 14519,
"text": "Relying on these admissions, the learned counsel submitted that it is an admitted fact that the Bill dated 4.3.85 which is for Rs. 72,800 in respect of the diesel set purchased should be included in the capital investment and that the Joint Director excluded that amount on the wrong assumption that the exemption period should be counted from the date of production and the total investment as on that day alone is relevant which is erroneous."
}
},
{
"from_name": "label",
"id": "8bb56774afd14edf8462be9829f6693d",
"to_name": "text",
"type": "labels",
"value": {
"end": 15191,
"labels": [
"ANALYSIS"
],
"start": 14964,
"text": "From the above material it cannot be said that this aspect was not an issue before the High Court but the same lost its significance in view of the larger claim made by the petitioners that the exemption should be from 20.5.86."
}
},
{
"from_name": "label",
"id": "12343aea01a74bba9f2b9bc287826fcf",
"to_name": "text",
"type": "labels",
"value": {
"end": 15276,
"labels": [
"ARG_RESPONDENT"
],
"start": 15192,
"text": "The learned counsel for the State, however, submits that the matter may be remanded."
}
},
{
"from_name": "label",
"id": "1b0d673f23474ee78eb37f01724b398c",
"to_name": "text",
"type": "labels",
"value": {
"end": 15389,
"labels": [
"ANALYSIS"
],
"start": 15277,
"text": "We do not think it is necessary to do so in view of the cogent and clear material, which cannot be controverted."
}
},
{
"from_name": "label",
"id": "9372466a8e0a40b3bdc6252b58d739a8",
"to_name": "text",
"type": "labels",
"value": {
"end": 15654,
"labels": [
"ANALYSIS"
],
"start": 15389,
"text": "\n Before proceeding we may extract the order which was impugned before the High Court: \"Letter No. 8971 DS/8/Sales Tax/88-89 Office Joint Director Industries(D.S.) Dated: 29th Dec. 1988 M/s. Vijay Enterprises, 93, A Cooperative Ind. Estate Kanpur."
}
},
{
"from_name": "label",
"id": "a7d7be931e7c42a4a6f3d7c75805b4ae",
"to_name": "text",
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"value": {
"end": 15800,
"labels": [
"ANALYSIS"
],
"start": 15654,
"text": "\n Kindly refer to your letter dated 16.6.1988 which is on the subject of reconsideration of relief of exemption of Sales Tax granted to your unit."
}
},
{
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"id": "d7f696c7631247f4b12f7debebe73dba",
"to_name": "text",
"type": "labels",
"value": {
"end": 16052,
"labels": [
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],
"start": 15802,
"text": "The Division of committee in meeting dated 23.12.1988 having considered in this respect has decided as follows: 1. Sales Tax exemption is hereby amended with effect from date of first sale 30.3.1985 instead of date of production 1.3.1985 for 3 years."
}
},
{
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"end": 16210,
"labels": [
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"start": 16053,
"text": "The other terms relating to exemption shall be according to eligibility certificate dated 26.4.1988.\n 2. Investment on land/building exceeds the necessity.\n "
}
},
{
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"id": "040bc90ead104454b600159b5ebee90f",
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"text": "The generator is not utilised for starting production and the permission of the Electricity 601 Department for this is also not there."
}
},
{
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"id": "59311df7ceb44bba90c0a0fca73b6325",
"to_name": "text",
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"end": 16535,
"labels": [
"ANALYSIS"
],
"start": 16345,
"text": "The Generator has been purchased after starting production hence investment of generator amounting to Rs. 72,800 till the date of starting production is not acceptable as capital investment."
}
},
{
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"id": "97a49e4e773a419ca76fe466e3441a66",
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"labels": [
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],
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"text": "Thus on the date of starting production investment on Land/Building and Machines is less than Rs. 3 lakhs."
}
},
{
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"labels": [
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"text": "Hence the demand for 5 years tax exemption is rejected."
}
},
{
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"labels": [
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],
"start": 16700,
"text": "sd/- Joint Director Industries (DS)\"\n [emphasis supplied]"
}
},
{
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"id": "e625d12636914c738fb5ae5b6620b575",
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"labels": [
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],
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"text": "The last few lines in the above Order which are underlined show that the Joint Director rejected the claim to include the cost of diesel unit on the sole ground that it was purchased after starting production."
}
},
{
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"labels": [
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],
"start": 16968,
"text": "Before the High Court the State Government alongwith their counter-affidavit have annexed the Bill dated 4.3.1985 which shows that the diesel set was purchased by the petitioners for total cost of Rs. 72,800."
}
},
{
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"to_name": "text",
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"value": {
"end": 17398,
"labels": [
"ANALYSIS"
],
"start": 17177,
"text": "If we take into the account the above admission made in the counter-affidavit by the State Government and the contents of this bill it cannot be in dispute that the diesel set was purchased by the petitioners on 1.3.1985."
}
},
{
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"id": "33344976b6804e24b9938bea3b5fa626",
"to_name": "text",
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"value": {
"end": 17806,
"labels": [
"RATIO"
],
"start": 17399,
"text": "Now, in view of the categorical finding of the High Court that the date of commencement of production was 1.3.1985 and the date of first sale was 30.3.85, the date of purchase of diesel set which is 4.3.1985 was clearly prior to the date of first sale, and therefore, the cost of the diesel set should also be included in the capital investment as on 30.3.1985, and then it would be more than Rs.\n 3,00,000."
}
},
{
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"id": "ae3f3c02a2c6484e90628209e80f626e",
"to_name": "text",
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"value": {
"end": 17957,
"labels": [
"RATIO"
],
"start": 17807,
"text": "Thus the position becomes clear that the exemption should be for five years from the date of 30.3.1985 as per the relevant provisions mentioned above."
}
},
{
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"labels": [
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"start": 17957,
"text": "\n We are satisfied that the petitioners are entitled for exemption under Section 4-A of the U.P. Sales Tax Act for five years from 30.3.1985 and accordingly they should be given the benefit."
}
},
{
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"value": {
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"labels": [
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],
"start": 18147,
"text": "\n With this direction the Special Leave Petition is disposed of."
}
},
{
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"labels": [
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],
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"text": "There will be no order as to costs."
}
},
{
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"id": "c03a873e965346bba325892fe2e9ccb5",
"to_name": "text",
"type": "labels",
"value": {
"end": 18311,
"labels": [
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],
"start": 18247,
"text": "\n N.P.V. Petition disposed of.\n 602"
}
}
]
}
] | 1,781 | {
"text": "PETITIONER:\nVIJAY ENTERPRISES AND ORS.\n\nVs.\n\nRESPONDENT:\nSALES TAX OFFICER AND ORS.\n\nDATE OF JUDGMENT11/02/1992\n\nBENCH:\nREDDY, K. JAYACHANDRA (J)\nBENCH:\nREDDY, K. JAYACHANDRA (J)\nPATNAIK, R.C. (J)\n\nCITATION: 1992 SCR (1) 594\n 1992 AIR 760 JT 1992 (1) 579\n 1992 SCC (2) 55\n 1992 SCALE (1)304\n\nACT:\n Uttar Pradesh Sales Tax Act, 1948:\n\n Section 4-A and Notification dated 29.1.1985-Exemption\nof Sales tax to new industrial units-First sale of\nmanufactured goods made within six months from date of\nproduction-Diesel set purchased before date of first sale-\nWhether cost of diesel set to be included in capital\ninvestment and exemption granted for five years from date of\nfirst sale.\n\nHEADNOTE:\n The petitioners were a small scale industrial unit\n\nmanufacturing cycle stands and carriers. They applied for\npower connection in December, 1984, but it was given only on\n20.5.86, though it was sanctioned on 19.1.86. Meanwhile,\nthe petitioners started production manually with effect from\n1.3.85 and effected first sale of the manufactured goods on\n30.3.85. On their application for exemption from the\npayment of sales tax under Section 4-A of the U.P. Sales Tax\nAct, 1948, and the Notifications issued thereunder from time\nto time, the Divisional Joint Director of the Sales Tax\nDepartment granted exemption for a period of three years\nonly commencing from 1.3.85.\n\n The petitioners filed a review application contending\nthat the exemption should be with effect from 20.5.86, on\nwhich date the power connection was given and production\ncommenced with the help of electricity and that the\nexemption should be for five years from 20.5.86, since on\nthat date their capital investment was more than Rs.3,00,000\nincluding Rs. 72,800, the cost of diesel set purchased by\nthem. The petitioners' plea that 30.3.85 as the date of\nfirst sale was accepted, but their plea that the date of\nstarting of production should be 20.5.86 was rejected.\nHence the petitioners filed a Writ Petition before the High\nCourt.\n\n Rejecting the petitioners' pleas that the date of\ngetting power connection, i.e. 20.5.86 should be taken as\nthe date of starting production, and that the capital\ninvestment in the unit was more than Rs. 3,00,000 during\n\n 595\nthe period between 1.3.85 i.e. the date of starting\n\nproduction, and 30.3.85, i.e. the date of first sale, the\nHigh Court held that the first sale, i.e. 30.3.1985, should\nbe taken as date of commencement of the period of exemption\nand that the petitioners were entitled for exemption only\nfor a period of three years from that date in view of\nSection 4-A of the Act and the relevant notifications.\n\n In the special leave Petition before this Court, the\npetitioners contended that once it was accepted that the\ndate of first sale was 30.3.85, the cost of diesel unit\namounting to Rs. 72,800 should also be included in the\ncapital investment, in which case the total capital\ninvestment would be above Rs. 3 lakhs and accordingly, the\nexemption should be for five years as per the relevant\nprovisions.\n\n Disposing of the Special Leave Petition, this Court,\n HELD: 1. The petitioners are entitled for exemption\nunder Section 4-A of the U.P. Sales Tax Act, 1948, for five\nyears from 30.3.1985 and accordingly they should be given\nthe benefit.\n 2.1. Section 4-A of the Act provides for granting\nexemption to the new industrial units with a view to\nincrease the production of any goods and the period of\nexemption should be from the date of first sale within the\nsix months' time from the date of starting production. The\nNotification dated 29.1.1985 issued by the State Government\nunder Section 4-A specified the date of commencement of the\nperiod of exemption as the date of first sale, if such sale\ntook place not later than six months from the date of\nstarting production, or, in other cases, from the date\nfollowing the expiration of six months from the date of\nstarting production. Column 3 of the Table appended to the\nNotification shows that in respect of the units mentioned\ntherein in Serial No. 3, the exemption should be for three\nyears if the total capital investment does not exceed Rs.\n3,00,000 and if it exceeds Rs. 3,00,000 it should be five\nyears. [598A-B, E]\n 2.2 In the instant case, the petitioners' case has been\nthat they purchased and installed a diesel unit on 4.3.1985\namounting to Rs. 72,800 and as such, it must be held that\nthe cost of the diesel unit should be included in the\ncapital investment, in which case the total capital\ninvestment would be more than Rs. 3,00,000 on the date of\nfirst sale, namely, 30.3.1985, and therefore, the exemption\nshould be for five years. The Joint\n\n 596\nDirector rejected the claim to include the cost of diesel\nunit on the sole ground that it was purchased after starting\nproduction. However, before the High Court the State\nGovernment alongwith their counter-affidavit have annexed\nthe bill dated 4.3.1985, which shows that the diesel set was\npurchased by the petitioners for total cost of Rs. 72,800.\nTherefore, it cannot be in dispute that the diesel set was\npurchased by the petitioners on 4.3.1985. [598E, 601D]\n\n 2.3. In view of the categorical finding of the High\nCourt that the date of commencement of production was\n1.3.1985 and the date of first sale was 30.3.1985, the date\nof purchase of diesel set which is 4.3.1985, was clearly\nprior to the date of first sale, and, therefore, the cost of\nthe diesel set should also be included in the capital\ninvestment as on 30.3.1985, and then it would be more than\nRs. 3,00,000. Thus, it is clear that the exemption should\nbe for five years from 30.3.1985 i.e. date of first sale, as\nper the relevant provisions. [601E-F]\n\nJUDGMENT: CIVIL APPELLATE JURISDICTION : Special Leave Petition (Civil) No. 8543 of 1990.\n From the Judgment and Order dated 25.5. 1990 of the Allahabad High Court in Civil Misc. Writ No. 36 (Tax) of 1989.\n P.P Rao and A.S. Pundir for the Petitioners.\n Ashok K. Srivastava for the Respondents.\n The following Order of the court was delivered: The matter is being disposed of at the stage of admission after hearing both sides.\n The petitioners in these appeals have filed the S.L.P.\nagainst the order of the Allahabad High Court. The petitioners belong to a re-established small scale industrial unit for manufacturing cycle stands and carriers during the year 1984-85. They applied for power connection in December, 1984 but it was sanctioned on 19.1.86.\nMeanwhile the petitioners, however, started production manually with effect from 1.3.85. They effected their first sale of the manufactured goods on 30.3.85. It is their case that they purchased a diesel unit and installed it on 4.3.85. According to them the total investment including the cost diesel unit 597 was more than Rs. 3,00,000 as on 30.3.85, when the first sale was effected. The petitioners applied for exemption from the payment of sales tax under Section 4-A of the U.P.\nSales Tax Act and the Notifications thereunder issued from time to time. The Divisional Joint Director by his Order dated 26.4.1988 informed the petitioners that exemption was granted under Section 4-A for a period of three years only commencing from 1.3.85. A review was filed by the petitioners contending that the exemption should be with effect from 20.5.86 on which date the power connection was given and production commenced with the help of electricity and on that date their capital investment was more than Rs.\n3,00,000 and therefore the exemption should be for five years. By proceedings dated 23.12.1988 the petitioners were informed that 30.3.85 has been accepted as the date of first sale, but their plea that the date of starting of production should be 20.5.85 was rejected. Questioning the same a Writ Petition was filed before the High Court.\n The High Court accepted the petitioners' plea that 30.3.85 is the date of first sale manufactured goods by the petitioners. However, the plea of the petitioners that the date of getting power connection i.e. 20.5.86 should be taken as the date of starting production was rejected. The High Court also observed that the date of first sale, namely 30.3.85, should be taken as the date of commencement of the period of exemption. Having thus found, the High court, however was not prepared to accept the petitioners' plea that the capital investment in the unit was more than Rs.\n3,00,000 during the period between 1.3.85, i.e. the date of starting production, and 30.3.85, i.e. the date of first sale. In the result, it was declared that the petitioners were entitled for exemption only for a period of three years from the date of first sale, namely 30.3.85, in view of Section 4-A of the Act and the relevant notifications.\n The learned counsel for the petitioners contended that when once it is accepted that the date of first sale is 30.3.85, then the exemption should be on the basis of the capital investment as it stood on that date and since the petitioners have already installed the diesel unit and the cost of diesel unit amounting to Rs. 72,800 should also be included in the capital investment, then the total capital investment would be above Rs. 3,00,000 and on which the exemption should be for five years as per the relevant provisions. To appreciate this contention it becomes necessary to refer to some of the provisions and the notifications thereunder.\n 598 Section 4-A of the Act provides for granting exemption to the new industrial units with a view to increase the production of any goods and the period of exemption should be from the date of the first sale within the six months' time from the date of starting production. A Notification was issued by the State Government on 29.1.85 under Section 4-A of the Act specifying the date of commencement of the period of exemption as \"the date of first sale, if such sale takes place not later than six months from the date of starting production, or, in other cases, from the date following the expiration of six months from the date of starting production\". In the light of the above provisions and the notifications thereunder, the date of exemption in the instant case should be taken as 30.3.1985, namely the date of first sale. This aspect is not in dispute. Then the question is whether the exemption should be for three years or five years? It depends upon the question as to what was the total capital investment on 30.3.1985; was it less than Rs. 3,00,000 or more?\n Column 3 of the Table appended to the Notification dated 29.1.1985 issued under Section 4-A of the Act shows that in respect of the units mentioned therein in Serial No.\n3, the exemption should for three years if the total capital investment does not exceed Rs. 3,00,000 and if it exceeds Rs. 3,00,000 it should be five years. The petitioners' case throughout has been that they purchased and installed a diesel unit on 4.3.1985 amounting to Rs. 72,800 and that since the same is not in dispute at all, it must be held that the cost of the diesel unit should be included in the capital investment, and then the total capital investment would be more than Rs. 3,00,000 as on the date of first sale namely 30.3.1985, in which case the exemption should be for five years. We may mention here that this point was not considered by the High Court in the manner it is submitted by the petitioners. No doubt, before the High Court the petitioners' contention was that the date 20.5.86, when the power was supplied, should be the date of starting of production and from that date the exemption should be for five years. The High Court rejected this contention by observing: \"The petitioners did not aver specifically that even on 1.3.1985/30.3.1985, their investment was more than rupees three lacks. In such a situation, we cannot find fault with the authority for not recording a clear find on this issue\".\n In observing so, the High Court relied on two paragraphs in the 599 review petition filed before the Sales Tax Authorities.\n The learned counsel submitted that even if the period of exemption cannot be reckoned from 20.5.86 (the date on which the power was supplied), yet the same should be reckoned atleast from 30.3.1985, on which date the total capital investment was above Rs. 3,00,000 undoubtedly. The learned counsel for the State submitted that such a contention was not put forward by the petitioners before the High Court and, therefore, the petitioners cannot raise the same before this Court.\n The High Court has given a categorical finding as under: \"In the circumstances of the present case, we find that the date of starting production in the petitioners unit is 1.3.1985 and in view of sub- section (1) of section 4-A, the date of the first sale, i.e., 30.3.1985, should be taken as the date of commencement of the period of exemption, the same falling within six months of the date of starting production\". (emphasis supplied) Therefore, 30.3.1985 should be the date of commencement of the period of exemption. In the review petition filed before the Joint Director of Industries, no doubt, it is clearly mentioned that on 19.4.1986 the capital investment was Rs. 5,26,273 and that the Sales Tax Officer cannot reduce the capital investment by excluding the cost of diesel set. But in the counter-affidavit filed by the State Government before the High Court, it is mentioned thus: \"The dealer filed a review application before the Joint Director of Industries stating that exemption should be granted w.e.f. 30.3.85, the date of first sale. It was also stated that capital investment upto 30.3.85 was more than 3 lacks including generator for Rs. 72,800 purchase vide Bill No.\n 107/84-85 dt. 4.3.85. Regarding this application enquiries were made and it was found that dealer started production from 1.3.85 manually and he had not purchased any machine driven by power before 1.3.85 and generator was purchased locally on 4.3.85 i.e. after the date of starting production vide Bill No. 107/84-85 dated 4.3.85 for Rs. 72,800 by transfer of documents against form `C'.\n Therefore, investment in the generator cannot be included in the machinary investment because the generator was not used 600 for production.\"\n Relying on these admissions, the learned counsel submitted that it is an admitted fact that the Bill dated 4.3.85 which is for Rs. 72,800 in respect of the diesel set purchased should be included in the capital investment and that the Joint Director excluded that amount on the wrong assumption that the exemption period should be counted from the date of production and the total investment as on that day alone is relevant which is erroneous. From the above material it cannot be said that this aspect was not an issue before the High Court but the same lost its significance in view of the larger claim made by the petitioners that the exemption should be from 20.5.86. The learned counsel for the State, however, submits that the matter may be remanded. We do not think it is necessary to do so in view of the cogent and clear material, which cannot be controverted.\n Before proceeding we may extract the order which was impugned before the High Court: \"Letter No. 8971 DS/8/Sales Tax/88-89 Office Joint Director Industries(D.S.) Dated: 29th Dec. 1988 M/s. Vijay Enterprises, 93, A Cooperative Ind. Estate Kanpur.\n Kindly refer to your letter dated 16.6.1988 which is on the subject of reconsideration of relief of exemption of Sales Tax granted to your unit.\n The Division of committee in meeting dated 23.12.1988 having considered in this respect has decided as follows: 1. Sales Tax exemption is hereby amended with effect from date of first sale 30.3.1985 instead of date of production 1.3.1985 for 3 years. The other terms relating to exemption shall be according to eligibility certificate dated 26.4.1988.\n 2. Investment on land/building exceeds the necessity.\n The generator is not utilised for starting production and the permission of the Electricity 601 Department for this is also not there. The Generator has been purchased after starting production hence investment of generator amounting to Rs. 72,800 till the date of starting production is not acceptable as capital investment. Thus on the date of starting production investment on Land/Building and Machines is less than Rs. 3 lakhs. Hence the demand for 5 years tax exemption is rejected.\n sd/- Joint Director Industries (DS)\"\n [emphasis supplied] The last few lines in the above Order which are underlined show that the Joint Director rejected the claim to include the cost of diesel unit on the sole ground that it was purchased after starting production. Before the High Court the State Government alongwith their counter-affidavit have annexed the Bill dated 4.3.1985 which shows that the diesel set was purchased by the petitioners for total cost of Rs. 72,800. If we take into the account the above admission made in the counter-affidavit by the State Government and the contents of this bill it cannot be in dispute that the diesel set was purchased by the petitioners on 1.3.1985. Now, in view of the categorical finding of the High Court that the date of commencement of production was 1.3.1985 and the date of first sale was 30.3.85, the date of purchase of diesel set which is 4.3.1985 was clearly prior to the date of first sale, and therefore, the cost of the diesel set should also be included in the capital investment as on 30.3.1985, and then it would be more than Rs.\n 3,00,000. Thus the position becomes clear that the exemption should be for five years from the date of 30.3.1985 as per the relevant provisions mentioned above.\n We are satisfied that the petitioners are entitled for exemption under Section 4-A of the U.P. Sales Tax Act for five years from 30.3.1985 and accordingly they should be given the benefit.\n With this direction the Special Leave Petition is disposed of. There will be no order as to costs.\n N.P.V. Petition disposed of.\n 602 "
} |
{
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} | [
{
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{
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"start": 11,
"text": "IN THE HIGH COURT OF JUDICATURE AT BOMBAY :\n NAGPUR BENCH : NAGPUR.\n\n Writ Petition No.5768 of 2016\n\nRuchi w/o Bhanupratapsingh Gour, .... Petitioner.\nAged about 32 years, Occ.Household,\nr/o.C/o.Arunkumar Kiledar, Sadar Bazar,\nBaitul (MP) 460 001.\n\n Versus\n\nBhanupratapsingh Gour s/o Sureshsingh Gour, .... Respondent.\nAged about 37 years, Occ. Business,\nR/o. B/2B, Corporation Colony,\nNorth Ambazari Road, Nagpur 440 033.\n\nMrs. Jyoti Dharmadhikari, Counsel for petitioner.\nMr. Sudhir T. Dhurway, Counsel for respondent.\n\n Coram : Manish Pitale, J.\n Dated : 29th January, 2019.\n\nORLA JUDGMENT"
}
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"text": "\n Rule."
}
},
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],
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"text": "Rule returnable forthwith by consent of learned Counsel appearing for the parties."
}
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{
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"text": "2. "
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],
"start": 834,
"text": "By this Writ Petition, the petitioner has challenged order dated 27072016, passed by the Family Court, Nagpur, whereby an application (Exhibit44) filed on behalf of the petitioner for permission to file counterclaim and for claiming reliefs under the provisions of the Protection of Women from Domestic Violence Act, 2005 (for short, 'Act of 2005'"
}
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"value": {
"end": 1197,
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],
"start": 1181,
"text": "), was rejected."
}
},
{
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"value": {
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],
"start": 1197,
"text": "\n 3. The petitioner and respondent were married on 20042007 at Baitul."
}
},
{
"from_name": null,
"id": "9be99b4a2af84f37bf196ac56325de5c",
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"value": {
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"start": 1269,
"text": "On 13052014, the respondent (husband) filed a petition for grant of divorce against the petitioner (wife) before the Family Court."
}
},
{
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"text": "During the pendency of the said petition, on 27012015, the respondent filed an application for restraining the petitioner from doing any unlawful act and from entering the house of the respondent."
}
},
{
"from_name": null,
"id": "1947c3a39513433d8513edd2e2aa4f9a",
"to_name": null,
"type": null,
"value": {
"end": 1750,
"labels": [
"FAC"
],
"start": 1597,
"text": "On 11012016, the respondent filed reply to the said application and she also filed written statement to the petition for divorce filed by the respondent."
}
},
{
"from_name": null,
"id": "20156ed9e18249b0b43f732a670d69ed",
"to_name": null,
"type": null,
"value": {
"end": 1898,
"labels": [
"FAC"
],
"start": 1751,
"text": "The said application filed on behalf of the respondent was directed to be decided along with the main petition for divorce filed by the respondent."
}
},
{
"from_name": null,
"id": "f8fa022ba1694fb8b01440e9467919b1",
"to_name": null,
"type": null,
"value": {
"end": 2514,
"labels": [
"FAC"
],
"start": 1898,
"text": "\n 4. According to the petitioner, during the pendency of the said petition and the application filed by the respondent, on 01042016, she was illegally prevented from entering the matrimonial house and that gave rise to cause of action for her to claim Restitution of Conjugal Rights and to claim certain reliefs under the Act of 2005.\n 5. Accordingly, on 14062016, the petitioner filed an application for permission to file counterclaim for restitution of conjugal rights and for reliefs under the provisions of the Act of 2005, claiming that she had been thrown out of the matrimonial house from 01042016 onwards."
}
},
{
"from_name": null,
"id": "3758ef0a1cbf418a9013b993d8de5d18",
"to_name": null,
"type": null,
"value": {
"end": 2562,
"labels": [
"FAC"
],
"start": 2515,
"text": "This application was opposed by the respondent."
}
},
{
"from_name": null,
"id": "584ae3cc2c574592a1528ed74f158f00",
"to_name": null,
"type": null,
"value": {
"end": 2990,
"labels": [
"RLC"
],
"start": 2562,
"text": "\n 6. By the impugned order dated 27072016, the Family Court has rejected the application filed by the petitioner on the ground that under Order VIII Rule 6A of the Code of Civil Procedure, 1908 (CPC), the petitioner ought to have raised her counterclaim either along with the written statement or within the period of limitation prescribed for raising her defence in response to the petition of divorce filed by the respondent."
}
},
{
"from_name": null,
"id": "5490f4525ff54f2ab21248763ba55cf3",
"to_name": null,
"type": null,
"value": {
"end": 3271,
"labels": [
"RLC"
],
"start": 2991,
"text": "It was found by the Family Court that since the written statement was already filed by the petitioner and the limitation for filing counterclaim under Order VIII Rule 6A of the CPC had expired, she could not raise any claim towards Restitution of Conjugal Rights as sought by her."
}
},
{
"from_name": null,
"id": "c3aff02043d54acf972922ad131fcf4a",
"to_name": null,
"type": null,
"value": {
"end": 3465,
"labels": [
"RLC"
],
"start": 3272,
"text": "As regards the relief sought to be claimed by the petitioner in the pending proceeding, it was observed by the Family Court that under Section 26 of the Act of 2005, the petitioner could do so."
}
},
{
"from_name": null,
"id": "163773f4d1cd4394a3a97af448351ded",
"to_name": null,
"type": null,
"value": {
"end": 3619,
"labels": [
"RLC"
],
"start": 3466,
"text": "But, since the Family Court found that the right to raise a counterclaim by the petitioner was barred by limitation, the entire application was rejected."
}
},
{
"from_name": null,
"id": "c528ef161f584c2abed0885050cb2290",
"to_name": null,
"type": null,
"value": {
"end": 4146,
"labels": [
"ARG_PETITIONER"
],
"start": 3619,
"text": "\n 7. Mrs. Jyoti Dharmadhikari, learned Counsel appearing for the petitioner, submitted that the impugned order passed by the Family Court was unsustainable because, on application of Section 23A of the Hindu Marriage Act, 1955 (for short, 'Act of 1955') read with Section 21 thereof, it was evident that the limitation prescribed under Order VIII Rule 6A of the CPC for raising counterclaim would not apply in the present proceedings before the Family Court initiated by the respondent under the provisions of the Act of 1955."
}
},
{
"from_name": null,
"id": "04172164fa53492ca3bc460dfbab3cdb",
"to_name": null,
"type": null,
"value": {
"end": 4350,
"labels": [
"ARG_PETITIONER"
],
"start": 4147,
"text": "It was submitted that Section 21 of the Act of 1955, clearly states that subject to other provisions of the Act of 1955, all proceedings under the said Act would be regulated as far as may be by the CPC."
}
},
{
"from_name": null,
"id": "cf8f5b73fbd94afeae99612f12e08a6c",
"to_name": null,
"type": null,
"value": {
"end": 4605,
"labels": [
"ARG_PETITIONER"
],
"start": 4351,
"text": "It was submitted that since Section 23A of the Act of 1955, specifically provided for right to raise a counterclaim and no limitation was prescribed for the same, the Family Court could not have rejected the application filed on behalf of the petitioner."
}
},
{
"from_name": null,
"id": "2718a58c35bc499488b78c7477f579db",
"to_name": null,
"type": null,
"value": {
"end": 4752,
"labels": [
"ARG_PETITIONER"
],
"start": 4606,
"text": "Reliance was placed on judgment of the Madhya Pradesh High Court in the case of Sameeran Roy vs Smt. Leena Roy, reported at AIR 2001 MP 192.\n 8. "
}
},
{
"from_name": null,
"id": "ad3dba3071684cbbb042225a939987b9",
"to_name": null,
"type": null,
"value": {
"end": 5093,
"labels": [
"ARG_RESPONDENT"
],
"start": 4752,
"text": "On the other hand Mr. Sudhir Dhurway, learned Counsel appearing for the respondent, submitted that the Family Court was justified in rejecting the application of the petitioner because the counterclaim, if any, ought to have been raised along with written statement or within the limitation as prescribed under Order VIII Rule 6A of the CPC."
}
},
{
"from_name": null,
"id": "891769ff66114cd5ba650945b1f3c2ee",
"to_name": null,
"type": null,
"value": {
"end": 5333,
"labels": [
"ARG_RESPONDENT"
],
"start": 5094,
"text": "It was sought to be argued that the reliefs claimed by the petitioner under the provisions of the Act of 2005, could not have been entertained by the Family Court and that such reliefs ought to have been claimed before the Criminal Courts."
}
},
{
"from_name": null,
"id": "255999d23c3a4e5495da23ad2be37e61",
"to_name": null,
"type": null,
"value": {
"end": 5414,
"labels": [
"ARG_RESPONDENT"
],
"start": 5334,
"text": "On this basis, it was submitted that the Writ Petition deserves to be dismissed."
}
},
{
"from_name": null,
"id": "799f4ab12aec40ccafe4e67c3abbc1eb",
"to_name": null,
"type": null,
"value": {
"end": 5420,
"labels": [
"ANALYSIS"
],
"start": 5414,
"text": "\n 9. "
}
},
{
"from_name": null,
"id": "6d5811306d7d449e87a75ec54cd18581",
"to_name": null,
"type": null,
"value": {
"end": 5473,
"labels": [
"ANALYSIS"
],
"start": 5420,
"text": "Heard Counsel for the parties and perused the record."
}
},
{
"from_name": null,
"id": "d57cdb233fd84d7ab78715a64635b503",
"to_name": null,
"type": null,
"value": {
"end": 5837,
"labels": [
"ANALYSIS"
],
"start": 5474,
"text": "The only question that arises for consideration in this Writ Petition is, as to whether the Family Court was justified in relying upon Order VIII Rule 6A of the CPC, to hold that the petitioner was not entitled to raise a counterclaim after having filed the written statement and upon expiry of period of limitation prescribed under Order VIII Rule 6A of the CPC."
}
},
{
"from_name": null,
"id": "b4a4cda04c5e4a0188e673ff63e0df43",
"to_name": null,
"type": null,
"value": {
"end": 6081,
"labels": [
"ANALYSIS"
],
"start": 5838,
"text": "The findings rendered by the Family Court can be upset only if it is found that the CPC would be applicable to the right of the petitioner to submit a counterclaim in the proceedings for divorce filed by the respondent before the Family Court."
}
},
{
"from_name": null,
"id": "25b703443a214c4c9af985397dad50b2",
"to_name": null,
"type": null,
"value": {
"end": 6189,
"labels": [
"STA"
],
"start": 6082,
"text": "In this regard the following provisions of the Act of 1955 are relevant: \"21. Application of Act 5 of 1908."
}
},
{
"from_name": null,
"id": "cc5d7dcb32074dceb255a186e6a19e48",
"to_name": null,
"type": null,
"value": {
"end": 6475,
"labels": [
"STA"
],
"start": 6190,
"text": "Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908.\"\n \"23A. Relief for respondent in divorce and other proceedings."
}
},
{
"from_name": null,
"id": "e528161e60144d1b9fdd9b331b868067",
"to_name": null,
"type": null,
"value": {
"end": 7215,
"labels": [
"STA"
],
"start": 6475,
"text": "In any proceedings for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner's adultery, cruelty or desertion, but also make a counterclaim for any relief under this Act on the ground, and if the petitioner's adultery, cruelty or desertion is proved the Court may give to the respondent any relief if he or she had presented a petition seeking such relief on that ground.\"\n 10. A perusal of the above quoted Section 23A of the Act of 1955, that any proceedings for divorce initiated by a party, the respondent would be entitled to raise a counterclaim and it would have to be treated as if the respondent had filed a petition seeking such relief."
}
},
{
"from_name": null,
"id": "aeabe075261841158b9a0b4e9e75769e",
"to_name": null,
"type": null,
"value": {
"end": 7370,
"labels": [
"ANALYSIS"
],
"start": 7216,
"text": "There is no period of limitation or any other rider mentioned in the said Section 23A of the Act of 1955, as provided under Order VIII Rule 6A of the CPC."
}
},
{
"from_name": null,
"id": "1a43f1941e504c3ebd5c6e124a26abe7",
"to_name": null,
"type": null,
"value": {
"end": 7550,
"labels": [
"ANALYSIS"
],
"start": 7372,
"text": "Section 21 of the Act of 1955, quoted above, shows that the CPC would be applicable to the proceedings initiated under the said Act subject to other provisions contained therein."
}
},
{
"from_name": null,
"id": "0298f93ef31348b1a90236614f839780",
"to_name": null,
"type": null,
"value": {
"end": 7843,
"labels": [
"ANALYSIS"
],
"start": 7551,
"text": "A conjoint reading of the aforesaid Section 21 and Section 23A of the Act of 1955 shows that the respondent in a proceeding initiated under the Act of 1955, would have a right to raise a counterclaim without being subjected to the specific fetters contained in Order VIII Rule 6A of the CPC ."
}
},
{
"from_name": null,
"id": "2ddf87885a524055877091280c4164c3",
"to_name": null,
"type": null,
"value": {
"end": 8000,
"labels": [
"ANALYSIS"
],
"start": 7844,
"text": "This is because, to the extent of applicability of Section 23A of the Act of 1955, the provisions of Order VIII Rule 6A of the CPC, would not be applicable."
}
},
{
"from_name": null,
"id": "7fde1ac8be8f4ee28ab7c6084ce5b9d4",
"to_name": null,
"type": null,
"value": {
"end": 8198,
"labels": [
"ANALYSIS"
],
"start": 8001,
"text": "This clearly shows that the Family Court erred while passing the impugned order and holding that the application for raising counterclaim filed on behalf of the petitioner could not be entertained."
}
},
{
"from_name": null,
"id": "224445af857f4777a033eeefff1932a2",
"to_name": null,
"type": null,
"value": {
"end": 8422,
"labels": [
"PRE_RELIED"
],
"start": 8198,
"text": "\n 11. In the judgment in the case of Sameeran Roy vs Smt.\n Leena Roy (supra) relied upon by the learned Counsel appearing for the petitioner, in a similar situation, Madhya Pradesh High Court has held as follows : \"8."
}
},
{
"from_name": null,
"id": "fbeac070422c45caba49a1872f07cd75",
"to_name": null,
"type": null,
"value": {
"end": 8489,
"labels": [
"PRE_RELIED"
],
"start": 8423,
"text": "At this juncture, I may profitably refer to Section 21 of the Act."
}
},
{
"from_name": null,
"id": "f0ae056837934725bbb20d26a3743cd1",
"to_name": null,
"type": null,
"value": {
"end": 8544,
"labels": [
"PRE_RELIED"
],
"start": 8490,
"text": "It reads as under : \"21. Application of Act 5 of 1908."
}
},
{
"from_name": null,
"id": "cb0da5118339407392be59d17f6e8cd9",
"to_name": null,
"type": null,
"value": {
"end": 8769,
"labels": [
"PRE_RELIED"
],
"start": 8545,
"text": "Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908.\"\n "
}
},
{
"from_name": null,
"id": "baa95dc86bab428bb468593f7c1149eb",
"to_name": null,
"type": null,
"value": {
"end": 8923,
"labels": [
"ANALYSIS"
],
"start": 8769,
"text": "The aforesaid provision makes it luminously clear that the proceeding under the Act shall be regulated as far as may be the Code of Civil Procedure, 1908."
}
},
{
"from_name": null,
"id": "b3a29f5e82f74043ba1a5a82e87bbf53",
"to_name": null,
"type": null,
"value": {
"end": 9069,
"labels": [
"ANALYSIS"
],
"start": 8924,
"text": "Thus, this section clearly indicates that to an application under Section 13 of the Act the Code of Civil Procedure does not automatically apply."
}
},
{
"from_name": null,
"id": "6777149beb0a4a079d11f63c13d11d0a",
"to_name": null,
"type": null,
"value": {
"end": 9247,
"labels": [
"ANALYSIS"
],
"start": 9070,
"text": "The applicability of Code of Civil Procedure has been hedged by two conditions, namely, subject to other provisions of the Act and subject to the Rules framed by the High Court."
}
},
{
"from_name": null,
"id": "a07617af40ce456f8d0611cd5e5ebd3f",
"to_name": null,
"type": null,
"value": {
"end": 9335,
"labels": [
"ANALYSIS"
],
"start": 9248,
"text": "That apart, the terms \"as far as may be\"\n have also to be given its due prominence."
}
},
{
"from_name": null,
"id": "b4df017c636e44c3b2fdfb6b5a097111",
"to_name": null,
"type": null,
"value": {
"end": 9488,
"labels": [
"ANALYSIS"
],
"start": 9336,
"text": "Thus, it is apparent that if any provision is in existence under the Act it would oust the application of the provisions of the Code of Civil Procedure."
}
},
{
"from_name": null,
"id": "50acce3bc6324e98aab7219b9d264bd0",
"to_name": null,
"type": null,
"value": {
"end": 9550,
"labels": [
"ANALYSIS"
],
"start": 9489,
"text": "In this context, Section 23A of the Act assumes significance."
}
},
{
"from_name": null,
"id": "cc42c3f713e34b76924b7f71b41a90c1",
"to_name": null,
"type": null,
"value": {
"end": 9643,
"labels": [
"STA"
],
"start": 9551,
"text": "The provision reads as under : \"23A. Relief for respondent in divorce and other proceedings."
}
},
{
"from_name": null,
"id": "de7b8bef7e264b5b91b2455a54811d5a",
"to_name": null,
"type": null,
"value": {
"end": 10110,
"labels": [
"STA"
],
"start": 9643,
"text": "In any proceedings for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner's adultery, cruelty or desertion, but also make a counterclaim for any relief under this Act on the ground, and if the petitioner's adultery, cruelty or desertion is proved the Court may give to the respondent any relief if he or she had presented a petition seeking such relief on that ground.\"\n "
}
},
{
"from_name": null,
"id": "78f8768a0b514153aa0dfe07e37b10ca",
"to_name": null,
"type": null,
"value": {
"end": 10278,
"labels": [
"ANALYSIS"
],
"start": 10110,
"text": "On a fair reading of the aforesaid provision it is graphically clear that a special provision of this nature provides for counterclaim in respect of a divorce petition."
}
},
{
"from_name": null,
"id": "d01f76373d474239b9ba9e0f27bdbdc2",
"to_name": null,
"type": null,
"value": {
"end": 10546,
"labels": [
"ANALYSIS"
],
"start": 10278,
"text": "\n Thus, provision of Order 8 Rule 6A of the Code shall not be applicable, in view of the provisions enshrined under Section 23A of the Act. \"\n 12. This Court respectfully agrees with the reasonings given by the Madhya Pradesh High Court in the aforesaid judgment."
}
},
{
"from_name": null,
"id": "972dc093940a4fcfb1a9a3cdd4e96163",
"to_name": null,
"type": null,
"value": {
"end": 11009,
"labels": [
"RATIO"
],
"start": 10546,
"text": "\n 13. Insofar as the question as to whether the petitioner could claim reliefs under the Act of 2005 before the Family Court by raising a counterclaim, the learned Counsel appearing for the petitioner is justified in relying on Section 26 of the Act of 2005, wherein it is made clear that in a legal proceeding initiated before the Family Court, any relief available under Sections 18, 19, 20, 21 and 22 of the Act of 2005, can be claimed by an aggrieved person."
}
},
{
"from_name": null,
"id": "ac53bfd13e294abd93a5240c1584ed61",
"to_name": null,
"type": null,
"value": {
"end": 11290,
"labels": [
"RATIO"
],
"start": 11010,
"text": "Therefore, there is no substance in the contention raised on behalf of the respondent that the petitioner could have claimed reliefs under the provisions of the Act of 2005, only before the Criminal Courts and not before the Family Court where divorce petition is already pending."
}
},
{
"from_name": null,
"id": "a10f30facba74747bab229856fdb0193",
"to_name": null,
"type": null,
"value": {
"end": 11353,
"labels": [
"RPC"
],
"start": 11290,
"text": "\n 14. In view of the above, the Writ Petition is allowed."
}
},
{
"from_name": null,
"id": "38b8f35790dc40a1bb46940aaf51e9f8",
"to_name": null,
"type": null,
"value": {
"end": 11523,
"labels": [
"RPC"
],
"start": 11354,
"text": "The impugned order passed by the Family Court is quashed and set aside and the application filed on behalf of the petitioner is allowed in terms of prayers made therein."
}
},
{
"from_name": null,
"id": "e5a78733135843b5bb30e1de9fbf7804",
"to_name": null,
"type": null,
"value": {
"end": 11572,
"labels": [
"RPC"
],
"start": 11523,
"text": "\n 15. Rule is made absolute in above terms."
}
},
{
"from_name": null,
"id": "1af35946be6a4409833f261f88dbb2eb",
"to_name": null,
"type": null,
"value": {
"end": 11588,
"labels": [
"NONE"
],
"start": 11572,
"text": "\n JUDGE Deshmukh"
}
}
]
}
] | 4,129 | {
"text": " IN THE HIGH COURT OF JUDICATURE AT BOMBAY :\n NAGPUR BENCH : NAGPUR.\n\n Writ Petition No.5768 of 2016\n\nRuchi w/o Bhanupratapsingh Gour, .... Petitioner.\nAged about 32 years, Occ.Household,\nr/o.C/o.Arunkumar Kiledar, Sadar Bazar,\nBaitul (MP) 460 001.\n\n Versus\n\nBhanupratapsingh Gour s/o Sureshsingh Gour, .... Respondent.\nAged about 37 years, Occ. Business,\nR/o. B/2B, Corporation Colony,\nNorth Ambazari Road, Nagpur 440 033.\n\nMrs. Jyoti Dharmadhikari, Counsel for petitioner.\nMr. Sudhir T. Dhurway, Counsel for respondent.\n\n Coram : Manish Pitale, J.\n Dated : 29th January, 2019.\n\nORLA JUDGMENT\n Rule. Rule returnable forthwith by consent of learned Counsel appearing for the parties.\n 2. By this Writ Petition, the petitioner has challenged order dated 27072016, passed by the Family Court, Nagpur, whereby an application (Exhibit44) filed on behalf of the petitioner for permission to file counterclaim and for claiming reliefs under the provisions of the Protection of Women from Domestic Violence Act, 2005 (for short, 'Act of 2005'), was rejected.\n 3. The petitioner and respondent were married on 20042007 at Baitul. On 13052014, the respondent (husband) filed a petition for grant of divorce against the petitioner (wife) before the Family Court. During the pendency of the said petition, on 27012015, the respondent filed an application for restraining the petitioner from doing any unlawful act and from entering the house of the respondent. On 11012016, the respondent filed reply to the said application and she also filed written statement to the petition for divorce filed by the respondent. The said application filed on behalf of the respondent was directed to be decided along with the main petition for divorce filed by the respondent.\n 4. According to the petitioner, during the pendency of the said petition and the application filed by the respondent, on 01042016, she was illegally prevented from entering the matrimonial house and that gave rise to cause of action for her to claim Restitution of Conjugal Rights and to claim certain reliefs under the Act of 2005.\n 5. Accordingly, on 14062016, the petitioner filed an application for permission to file counterclaim for restitution of conjugal rights and for reliefs under the provisions of the Act of 2005, claiming that she had been thrown out of the matrimonial house from 01042016 onwards. This application was opposed by the respondent.\n 6. By the impugned order dated 27072016, the Family Court has rejected the application filed by the petitioner on the ground that under Order VIII Rule 6A of the Code of Civil Procedure, 1908 (CPC), the petitioner ought to have raised her counterclaim either along with the written statement or within the period of limitation prescribed for raising her defence in response to the petition of divorce filed by the respondent. It was found by the Family Court that since the written statement was already filed by the petitioner and the limitation for filing counterclaim under Order VIII Rule 6A of the CPC had expired, she could not raise any claim towards Restitution of Conjugal Rights as sought by her. As regards the relief sought to be claimed by the petitioner in the pending proceeding, it was observed by the Family Court that under Section 26 of the Act of 2005, the petitioner could do so. But, since the Family Court found that the right to raise a counterclaim by the petitioner was barred by limitation, the entire application was rejected.\n 7. Mrs. Jyoti Dharmadhikari, learned Counsel appearing for the petitioner, submitted that the impugned order passed by the Family Court was unsustainable because, on application of Section 23A of the Hindu Marriage Act, 1955 (for short, 'Act of 1955') read with Section 21 thereof, it was evident that the limitation prescribed under Order VIII Rule 6A of the CPC for raising counterclaim would not apply in the present proceedings before the Family Court initiated by the respondent under the provisions of the Act of 1955. It was submitted that Section 21 of the Act of 1955, clearly states that subject to other provisions of the Act of 1955, all proceedings under the said Act would be regulated as far as may be by the CPC. It was submitted that since Section 23A of the Act of 1955, specifically provided for right to raise a counterclaim and no limitation was prescribed for the same, the Family Court could not have rejected the application filed on behalf of the petitioner. Reliance was placed on judgment of the Madhya Pradesh High Court in the case of Sameeran Roy vs Smt. Leena Roy, reported at AIR 2001 MP 192.\n 8. On the other hand Mr. Sudhir Dhurway, learned Counsel appearing for the respondent, submitted that the Family Court was justified in rejecting the application of the petitioner because the counterclaim, if any, ought to have been raised along with written statement or within the limitation as prescribed under Order VIII Rule 6A of the CPC. It was sought to be argued that the reliefs claimed by the petitioner under the provisions of the Act of 2005, could not have been entertained by the Family Court and that such reliefs ought to have been claimed before the Criminal Courts. On this basis, it was submitted that the Writ Petition deserves to be dismissed.\n 9. Heard Counsel for the parties and perused the record. The only question that arises for consideration in this Writ Petition is, as to whether the Family Court was justified in relying upon Order VIII Rule 6A of the CPC, to hold that the petitioner was not entitled to raise a counterclaim after having filed the written statement and upon expiry of period of limitation prescribed under Order VIII Rule 6A of the CPC. The findings rendered by the Family Court can be upset only if it is found that the CPC would be applicable to the right of the petitioner to submit a counterclaim in the proceedings for divorce filed by the respondent before the Family Court. In this regard the following provisions of the Act of 1955 are relevant: \"21. Application of Act 5 of 1908. Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908.\"\n \"23A. Relief for respondent in divorce and other proceedings.In any proceedings for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner's adultery, cruelty or desertion, but also make a counterclaim for any relief under this Act on the ground, and if the petitioner's adultery, cruelty or desertion is proved the Court may give to the respondent any relief if he or she had presented a petition seeking such relief on that ground.\"\n 10. A perusal of the above quoted Section 23A of the Act of 1955, that any proceedings for divorce initiated by a party, the respondent would be entitled to raise a counterclaim and it would have to be treated as if the respondent had filed a petition seeking such relief. There is no period of limitation or any other rider mentioned in the said Section 23A of the Act of 1955, as provided under Order VIII Rule 6A of the CPC.\n Section 21 of the Act of 1955, quoted above, shows that the CPC would be applicable to the proceedings initiated under the said Act subject to other provisions contained therein. A conjoint reading of the aforesaid Section 21 and Section 23A of the Act of 1955 shows that the respondent in a proceeding initiated under the Act of 1955, would have a right to raise a counterclaim without being subjected to the specific fetters contained in Order VIII Rule 6A of the CPC . This is because, to the extent of applicability of Section 23A of the Act of 1955, the provisions of Order VIII Rule 6A of the CPC, would not be applicable. This clearly shows that the Family Court erred while passing the impugned order and holding that the application for raising counterclaim filed on behalf of the petitioner could not be entertained.\n 11. In the judgment in the case of Sameeran Roy vs Smt.\n Leena Roy (supra) relied upon by the learned Counsel appearing for the petitioner, in a similar situation, Madhya Pradesh High Court has held as follows : \"8. At this juncture, I may profitably refer to Section 21 of the Act. It reads as under : \"21. Application of Act 5 of 1908. Subject to the other provisions contained in this Act and to such rules as the High Court may make in this behalf, all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908.\"\n The aforesaid provision makes it luminously clear that the proceeding under the Act shall be regulated as far as may be the Code of Civil Procedure, 1908. Thus, this section clearly indicates that to an application under Section 13 of the Act the Code of Civil Procedure does not automatically apply. The applicability of Code of Civil Procedure has been hedged by two conditions, namely, subject to other provisions of the Act and subject to the Rules framed by the High Court. That apart, the terms \"as far as may be\"\n have also to be given its due prominence. Thus, it is apparent that if any provision is in existence under the Act it would oust the application of the provisions of the Code of Civil Procedure. In this context, Section 23A of the Act assumes significance. The provision reads as under : \"23A. Relief for respondent in divorce and other proceedings.In any proceedings for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner's adultery, cruelty or desertion, but also make a counterclaim for any relief under this Act on the ground, and if the petitioner's adultery, cruelty or desertion is proved the Court may give to the respondent any relief if he or she had presented a petition seeking such relief on that ground.\"\n On a fair reading of the aforesaid provision it is graphically clear that a special provision of this nature provides for counterclaim in respect of a divorce petition.\n Thus, provision of Order 8 Rule 6A of the Code shall not be applicable, in view of the provisions enshrined under Section 23A of the Act. \"\n 12. This Court respectfully agrees with the reasonings given by the Madhya Pradesh High Court in the aforesaid judgment.\n 13. Insofar as the question as to whether the petitioner could claim reliefs under the Act of 2005 before the Family Court by raising a counterclaim, the learned Counsel appearing for the petitioner is justified in relying on Section 26 of the Act of 2005, wherein it is made clear that in a legal proceeding initiated before the Family Court, any relief available under Sections 18, 19, 20, 21 and 22 of the Act of 2005, can be claimed by an aggrieved person. Therefore, there is no substance in the contention raised on behalf of the respondent that the petitioner could have claimed reliefs under the provisions of the Act of 2005, only before the Criminal Courts and not before the Family Court where divorce petition is already pending.\n 14. In view of the above, the Writ Petition is allowed. The impugned order passed by the Family Court is quashed and set aside and the application filed on behalf of the petitioner is allowed in terms of prayers made therein.\n 15. Rule is made absolute in above terms.\n JUDGE Deshmukh "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "b12e6f3328ab40a18131a233e20b5efb",
"to_name": null,
"type": null,
"value": {
"end": 302,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nBANWAR LAL\n\nVs.\n\nRESPONDENT:\nSTATE OF RAJASTHAN\n\nDATE OF JUDGMENT27/09/1984\n\nBENCH:\nCHANDRACHUD, Y.V. ((CJ)\nBENCH:\nCHANDRACHUD, Y.V. ((CJ)\nDESAI, D.A.\nTHAKKAR, M.P. (J)\n\nCITATION: 1985 SCR (1) 859\n 1985 AIR 336 1984 SCALE (2)787\n 1984 SCC Supl. 538\n\nACT:\n "
}
},
{
"from_name": null,
"id": "5ac4a6b2ff0044659b2aa16266a9643f",
"to_name": null,
"type": null,
"value": {
"end": 522,
"labels": [
"PREAMBLE"
],
"start": 302,
"text": "The Supreme Court (Enlargement of Criminal Appellate\n\nJurisdiction) Act 1970 Section Z (a)-Duty of Supreme Court-\nAppreciation of evidence-Evidence of Independent witness\ncorroborated by his identifying the accused in an"
}
},
{
"from_name": null,
"id": "0df54b2426d34612b5ec199ac7262294",
"to_name": null,
"type": null,
"value": {
"end": 642,
"labels": [
"PREAMBLE"
],
"start": 522,
"text": "\nidentification parade and recovery of the blood stained\nbaniyan worn by the accused and the blood stained knife,\nvalue."
}
},
{
"from_name": null,
"id": "03f4c9036c2f41dc99558ac84e0f75fb",
"to_name": null,
"type": null,
"value": {
"end": 892,
"labels": [
"PREAMBLE"
],
"start": 642,
"text": "\n\nHEADNOTE:\n The appellant along with Kanahiya Lal, Ram Niwas and\n\nBadri Lal was charged under Section 302 read with Section 34\nIndian Penal Code and tried for the offence of murder of one\nGyanchand by the Sessions Judge, Bhilwara, Rajasthan."
}
},
{
"from_name": null,
"id": "5d6a4be192e84bb0a1d1cf1e356db27a",
"to_name": null,
"type": null,
"value": {
"end": 998,
"labels": [
"PREAMBLE"
],
"start": 893,
"text": "The\nlearned Judge convicted and sentenced Kanahiya Lal alone to\nlife imprisonment and acquitted the rest."
}
},
{
"from_name": null,
"id": "11529cdefd0948089e7e8dbf83511765",
"to_name": null,
"type": null,
"value": {
"end": 1206,
"labels": [
"PREAMBLE"
],
"start": 999,
"text": "In appeal, the\nHigh Court of Rajasthan, while confirming the conviction of\nKanahiya Lal as also the acquittal of two out of the three\npersons, convicted and sentenced the appellant also to life\nimprisonment."
}
},
{
"from_name": null,
"id": "d32028cf5c974c468b5f3c93731fe947",
"to_name": null,
"type": null,
"value": {
"end": 1305,
"labels": [
"PREAMBLE"
],
"start": 1207,
"text": "Hence the appeal under the Supreme Court\nEnlargement of Criminal Appellate Jurisdiction Act, 1970."
}
},
{
"from_name": null,
"id": "80bbcc18189947c2a90db639194c6f8d",
"to_name": null,
"type": null,
"value": {
"end": 1367,
"labels": [
"PREAMBLE"
],
"start": 1305,
"text": "\n\n Dismissing the appeal, the Court,\n^\n\n HELD:"
}
},
{
"from_name": null,
"id": "ccee1447ff254f5fa3c65e0eddba195d",
"to_name": null,
"type": null,
"value": {
"end": 1713,
"labels": [
"PREAMBLE"
],
"start": 1368,
"text": "Since the High Court set aside an order of\nacquittal and sentenced the appellant to life imprisonment\nit is necessary for the Supreme Court to consider whether\ntwo views of the evidence are reasonably possible and\nwhether, the High Court was justified in setting aside the\norder of acquittal passed by the trial Court in favour of\nthe appellant."
}
},
{
"from_name": null,
"id": "3e048181d0e54499ae6130cfe21db15b",
"to_name": null,
"type": null,
"value": {
"end": 1961,
"labels": [
"PREAMBLE"
],
"start": 1714,
"text": "Approaching the case and assessing the\nevidence from that point of view, it is clear, that the\nconviction of the appellant in view of the evidence of Bodu\nLal as corroborated by the discovery of the blood stained\nbaniyan and knife is unassailable."
}
},
{
"from_name": null,
"id": "38395721b2384e5bb1584da72033dc1e",
"to_name": null,
"type": null,
"value": {
"end": 2151,
"labels": [
"PREAMBLE"
],
"start": 1962,
"text": "He is an independent and\nthe most important witness in whose cycle rickshaw the\nappellant and the co-accused Kanhiya Lal travelled from the\nhotel of Shankar Maharaj to the scene of offence."
}
},
{
"from_name": null,
"id": "9fd5f3a7d68c47a3962f07cc8a1b2961",
"to_name": null,
"type": null,
"value": {
"end": 2396,
"labels": [
"PREAMBLE"
],
"start": 2152,
"text": "Bodu Lal\nidentified the appellant in the identification parade and\nhis evidence as to the colour of baniyan worn by the\nappellant at the time of the incident tallied with that of\nthe one stained with human blood and recovered from the\n\naccused."
}
},
{
"from_name": null,
"id": "e0e5024bd4a54158ba0f040cd92729fe",
"to_name": null,
"type": null,
"value": {
"end": 2481,
"labels": [
"PREAMBLE"
],
"start": 2397,
"text": "A knife stained with human blood also recovered\nfrom his person confirmed his guilt."
}
},
{
"from_name": null,
"id": "f023cc7a3dfd460eb84d0765c00bd943",
"to_name": null,
"type": null,
"value": {
"end": 2499,
"labels": [
"PREAMBLE"
],
"start": 2482,
"text": "[860E-F, 861-B-C]"
}
},
{
"from_name": null,
"id": "1feb96879f414c83ad4d1db09287f4c0",
"to_name": null,
"type": null,
"value": {
"end": 2509,
"labels": [
"PREAMBLE"
],
"start": 2499,
"text": "\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "690ff77044c6423d8f38f411ec1ab3f4",
"to_name": null,
"type": null,
"value": {
"end": 2551,
"labels": [
"NONE"
],
"start": 2509,
"text": "\n CRIMINAL APPELLATE JURISDICTION:"
}
},
{
"from_name": null,
"id": "3df2d3a01a92466cbe00972eeeb1d966",
"to_name": null,
"type": null,
"value": {
"end": 2571,
"labels": [
"NONE"
],
"start": 2552,
"text": "Criminal Appeal No."
}
},
{
"from_name": null,
"id": "1d7bb1d98123431090d29436100c25f6",
"to_name": null,
"type": null,
"value": {
"end": 2585,
"labels": [
"NONE"
],
"start": 2571,
"text": "\n 224 of 1974."
}
},
{
"from_name": null,
"id": "8995f475cac34cfcbaeb0738f19b93f7",
"to_name": null,
"type": null,
"value": {
"end": 2699,
"labels": [
"NONE"
],
"start": 2595,
"text": "From the Judgment and Order Dated 8.1.73 of the Rajasthan High Court in Criminal Appeal No. 776 of 1970."
}
},
{
"from_name": null,
"id": "59eac19402be4aea9b957abbdbf32809",
"to_name": null,
"type": null,
"value": {
"end": 2756,
"labels": [
"NONE"
],
"start": 2699,
"text": "\n Naunit Lal & Kailash Vasdev. for the appellant."
}
},
{
"from_name": null,
"id": "3d84585655ee467db8abccc8343630ad",
"to_name": null,
"type": null,
"value": {
"end": 2797,
"labels": [
"NONE"
],
"start": 2756,
"text": "\n B.D. Sharma for the respondent."
}
},
{
"from_name": null,
"id": "4985ac024d2341cf9ee3436f0a600279",
"to_name": null,
"type": null,
"value": {
"end": 2867,
"labels": [
"NONE"
],
"start": 2807,
"text": "The Judgment of the Court was delivered by CHANDRACHUD, C.J."
}
},
{
"from_name": null,
"id": "1595cc7180f54a9a9f99bd2515f46c64",
"to_name": null,
"type": null,
"value": {
"end": 2990,
"labels": [
"FAC"
],
"start": 2868,
"text": "Four persons were tried by the learned Sessions Judge, Bhilwara, under section 302 read with section 34 of the Penal Code."
}
},
{
"from_name": null,
"id": "256cd98dbce9481890a5e8abfacd08ab",
"to_name": null,
"type": null,
"value": {
"end": 3102,
"labels": [
"FAC"
],
"start": 2991,
"text": "The learned Judge acquitted three out of the four accused and convicted only one of them, namely, Kanahiya Lal."
}
},
{
"from_name": null,
"id": "0b3b830e4ed24bc38802f4b999580374",
"to_name": null,
"type": null,
"value": {
"end": 3268,
"labels": [
"RLC"
],
"start": 3103,
"text": "The High Court of Rajasthan confirmed the conviction of Kanahiya Lal, as also the acquittal of two out of the three persons who were acquitted by the Sessions Judge."
}
},
{
"from_name": null,
"id": "b8f7af8cdf8e45d8b522c2e5c2cd9128",
"to_name": null,
"type": null,
"value": {
"end": 3448,
"labels": [
"RLC"
],
"start": 3269,
"text": "The High Court, however, set aside the acquittal of the appellant, convicted him under section 302 read with section 34 of the Penal Code and sentenced him to life imprisonment.\n "
}
},
{
"from_name": null,
"id": "d32c4cf6db3348f8bf43348d1d3ee312",
"to_name": null,
"type": null,
"value": {
"end": 3780,
"labels": [
"ISSUE"
],
"start": 3448,
"text": "Since the High Court has set aside an order of acquittal and has sentenced the appellant to life imprisonment, it is necessary to consider whether two views of the evidence are reasonably possible and whether, the High Court was justified in setting aside the order of acquittal passed by the trial Court in favour of the appellant."
}
},
{
"from_name": null,
"id": "e8f15d6a33354069b92dd8ca57802411",
"to_name": null,
"type": null,
"value": {
"end": 3951,
"labels": [
"ANALYSIS"
],
"start": 3781,
"text": "Having approached the case and assessed the evidence from that point of view, we are of the opinion that it is impossible to agree with the view taken by the trial court."
}
},
{
"from_name": null,
"id": "cc0c45f8960241c1bf434b3dcd0bd5d6",
"to_name": null,
"type": null,
"value": {
"end": 4147,
"labels": [
"ANALYSIS"
],
"start": 3952,
"text": "The High Court has specifically dealt with reasons given by the trial court in support of the order of acquittal and has demonstrated in a good measure as to why those reasons cannot be accepted."
}
},
{
"from_name": null,
"id": "5d20af38b1fc415e872dbeb0bad4e013",
"to_name": null,
"type": null,
"value": {
"end": 4203,
"labels": [
"ANALYSIS"
],
"start": 4148,
"text": "We concur in the High Court's appreciation of evidence."
}
},
{
"from_name": null,
"id": "76df6c0251d64994a49ad6f1f19d97b5",
"to_name": null,
"type": null,
"value": {
"end": 4361,
"labels": [
"ANALYSIS"
],
"start": 4205,
"text": "The incident out of which the prosecution arose happened at about 8 p.m. On September 29, 1968 at Bhilwara Rajasthan, leading to the death of one Gyanchand."
}
},
{
"from_name": null,
"id": "645a9f44a02142d0a833855b33cbb576",
"to_name": null,
"type": null,
"value": {
"end": 4504,
"labels": [
"ANALYSIS"
],
"start": 4362,
"text": "The motive for the offence is alleged to be that Gyanchand's brother, Nemi Chand, owed money to accused Nos. 3 and 4, Ram Niwas and Badri Lal."
}
},
{
"from_name": null,
"id": "4d33312645d543cca4333b4ef9a76016",
"to_name": null,
"type": null,
"value": {
"end": 4644,
"labels": [
"ANALYSIS"
],
"start": 4505,
"text": "Nemi Chand was evading to pay the debt which created bitterness between the two brothers on one hand and accused Nos. 3 and 4 on the other."
}
},
{
"from_name": null,
"id": "94bce3f8f2f24c4eb722d89fd98be332",
"to_name": null,
"type": null,
"value": {
"end": 4755,
"labels": [
"ANALYSIS"
],
"start": 4645,
"text": "The latter, it is alleged, procured the help of the appellant and of Kanahiya Lal in doing Gyanchand to death."
}
},
{
"from_name": null,
"id": "d481857bc87b40bb96af69df8aceb693",
"to_name": null,
"type": null,
"value": {
"end": 4896,
"labels": [
"ANALYSIS"
],
"start": 4755,
"text": "\n The prosecution examined a few witnesses in support of its case but it is unnecessary to refer to the evidence of each one of them."
}
},
{
"from_name": null,
"id": "210d154dd286433a9b15ea11a3c38751",
"to_name": null,
"type": null,
"value": {
"end": 4957,
"labels": [
"ANALYSIS"
],
"start": 4897,
"text": "The most important witness in the case is Bodu Lal (P.W. 2)."
}
},
{
"from_name": null,
"id": "f0363fc16038429aa3c08500a17ed418",
"to_name": null,
"type": null,
"value": {
"end": 5126,
"labels": [
"ANALYSIS"
],
"start": 4958,
"text": "He is an independent witness, in whose cycle rickshaw the appellant and the co-accused Kanahiya Lal travelled from the hotel of Shankar Maharaj to the scene of offence."
}
},
{
"from_name": null,
"id": "c5b6de4c704c4f929fa5cb6b52794ac2",
"to_name": null,
"type": null,
"value": {
"end": 5190,
"labels": [
"ANALYSIS"
],
"start": 5127,
"text": "Bodu Lal identified the appellant in the identification parade."
}
},
{
"from_name": null,
"id": "0281316c5522457798b3fec3db86f2f4",
"to_name": null,
"type": null,
"value": {
"end": 5289,
"labels": [
"ANALYSIS"
],
"start": 5191,
"text": "According to his evidence, the appellant was wearing a yellow baniyan at the time of the incident."
}
},
{
"from_name": null,
"id": "fea6ceb06f6043ab99875e91641135b7",
"to_name": null,
"type": null,
"value": {
"end": 5322,
"labels": [
"ANALYSIS"
],
"start": 5290,
"text": "When the appellant was arrested."
}
},
{
"from_name": null,
"id": "19438154e88f42f495219cdc8f01a0cf",
"to_name": null,
"type": null,
"value": {
"end": 5400,
"labels": [
"ANALYSIS"
],
"start": 5323,
"text": "a yellow baniyan was found on his person and it was stained with human blood."
}
},
{
"from_name": null,
"id": "6e015a6798354af7bb16640b11e2e1da",
"to_name": null,
"type": null,
"value": {
"end": 5469,
"labels": [
"ANALYSIS"
],
"start": 5400,
"text": "\nA knife stained with human blood was also recovered from his person."
}
},
{
"from_name": null,
"id": "f539748cf357409ead8d197baed60453",
"to_name": null,
"type": null,
"value": {
"end": 5623,
"labels": [
"RATIO"
],
"start": 5469,
"text": "\n The High Court has convicted the appellant relying on the evidence of Bodu Lal, as corroborated by the discovery of the blood stained baniyan and knife."
}
},
{
"from_name": null,
"id": "8f230e12ca5a46a892b10c9e5b13ba6f",
"to_name": null,
"type": null,
"value": {
"end": 5663,
"labels": [
"RATIO"
],
"start": 5624,
"text": "This evidence seems to us unassailable."
}
},
{
"from_name": null,
"id": "a2920870ae55420aa1e881541861db1d",
"to_name": null,
"type": null,
"value": {
"end": 5743,
"labels": [
"RPC"
],
"start": 5664,
"text": "Accordingly, we dismiss this appeal and confirm the judgment of the High Court."
}
},
{
"from_name": null,
"id": "3f11483478a7467395d364af0af4df75",
"to_name": null,
"type": null,
"value": {
"end": 5749,
"labels": [
"NONE"
],
"start": 5743,
"text": "\n S.R."
}
},
{
"from_name": null,
"id": "7454d9e6e7ec42e397f8fc1a50cd8289",
"to_name": null,
"type": null,
"value": {
"end": 5768,
"labels": [
"RPC"
],
"start": 5749,
"text": " Appeal dismissed."
}
}
]
}
] | 4,204 | {
"text": "PETITIONER:\nBANWAR LAL\n\nVs.\n\nRESPONDENT:\nSTATE OF RAJASTHAN\n\nDATE OF JUDGMENT27/09/1984\n\nBENCH:\nCHANDRACHUD, Y.V. ((CJ)\nBENCH:\nCHANDRACHUD, Y.V. ((CJ)\nDESAI, D.A.\nTHAKKAR, M.P. (J)\n\nCITATION: 1985 SCR (1) 859\n 1985 AIR 336 1984 SCALE (2)787\n 1984 SCC Supl. 538\n\nACT:\n The Supreme Court (Enlargement of Criminal Appellate\n\nJurisdiction) Act 1970 Section Z (a)-Duty of Supreme Court-\nAppreciation of evidence-Evidence of Independent witness\ncorroborated by his identifying the accused in an\nidentification parade and recovery of the blood stained\nbaniyan worn by the accused and the blood stained knife,\nvalue.\n\nHEADNOTE:\n The appellant along with Kanahiya Lal, Ram Niwas and\n\nBadri Lal was charged under Section 302 read with Section 34\nIndian Penal Code and tried for the offence of murder of one\nGyanchand by the Sessions Judge, Bhilwara, Rajasthan. The\nlearned Judge convicted and sentenced Kanahiya Lal alone to\nlife imprisonment and acquitted the rest. In appeal, the\nHigh Court of Rajasthan, while confirming the conviction of\nKanahiya Lal as also the acquittal of two out of the three\npersons, convicted and sentenced the appellant also to life\nimprisonment. Hence the appeal under the Supreme Court\nEnlargement of Criminal Appellate Jurisdiction Act, 1970.\n\n Dismissing the appeal, the Court,\n^\n\n HELD: Since the High Court set aside an order of\nacquittal and sentenced the appellant to life imprisonment\nit is necessary for the Supreme Court to consider whether\ntwo views of the evidence are reasonably possible and\nwhether, the High Court was justified in setting aside the\norder of acquittal passed by the trial Court in favour of\nthe appellant. Approaching the case and assessing the\nevidence from that point of view, it is clear, that the\nconviction of the appellant in view of the evidence of Bodu\nLal as corroborated by the discovery of the blood stained\nbaniyan and knife is unassailable. He is an independent and\nthe most important witness in whose cycle rickshaw the\nappellant and the co-accused Kanhiya Lal travelled from the\nhotel of Shankar Maharaj to the scene of offence. Bodu Lal\nidentified the appellant in the identification parade and\nhis evidence as to the colour of baniyan worn by the\nappellant at the time of the incident tallied with that of\nthe one stained with human blood and recovered from the\n\naccused. A knife stained with human blood also recovered\nfrom his person confirmed his guilt. [860E-F, 861-B-C]\nJUDGMENT:\n CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.\n 224 of 1974.\n From the Judgment and Order Dated 8.1.73 of the Rajasthan High Court in Criminal Appeal No. 776 of 1970.\n Naunit Lal & Kailash Vasdev. for the appellant.\n B.D. Sharma for the respondent.\n The Judgment of the Court was delivered by CHANDRACHUD, C.J. Four persons were tried by the learned Sessions Judge, Bhilwara, under section 302 read with section 34 of the Penal Code. The learned Judge acquitted three out of the four accused and convicted only one of them, namely, Kanahiya Lal. The High Court of Rajasthan confirmed the conviction of Kanahiya Lal, as also the acquittal of two out of the three persons who were acquitted by the Sessions Judge. The High Court, however, set aside the acquittal of the appellant, convicted him under section 302 read with section 34 of the Penal Code and sentenced him to life imprisonment.\n Since the High Court has set aside an order of acquittal and has sentenced the appellant to life imprisonment, it is necessary to consider whether two views of the evidence are reasonably possible and whether, the High Court was justified in setting aside the order of acquittal passed by the trial Court in favour of the appellant. Having approached the case and assessed the evidence from that point of view, we are of the opinion that it is impossible to agree with the view taken by the trial court. The High Court has specifically dealt with reasons given by the trial court in support of the order of acquittal and has demonstrated in a good measure as to why those reasons cannot be accepted. We concur in the High Court's appreciation of evidence.\n The incident out of which the prosecution arose happened at about 8 p.m. On September 29, 1968 at Bhilwara Rajasthan, leading to the death of one Gyanchand. The motive for the offence is alleged to be that Gyanchand's brother, Nemi Chand, owed money to accused Nos. 3 and 4, Ram Niwas and Badri Lal. Nemi Chand was evading to pay the debt which created bitterness between the two brothers on one hand and accused Nos. 3 and 4 on the other. The latter, it is alleged, procured the help of the appellant and of Kanahiya Lal in doing Gyanchand to death.\n The prosecution examined a few witnesses in support of its case but it is unnecessary to refer to the evidence of each one of them. The most important witness in the case is Bodu Lal (P.W. 2). He is an independent witness, in whose cycle rickshaw the appellant and the co-accused Kanahiya Lal travelled from the hotel of Shankar Maharaj to the scene of offence. Bodu Lal identified the appellant in the identification parade. According to his evidence, the appellant was wearing a yellow baniyan at the time of the incident. When the appellant was arrested. a yellow baniyan was found on his person and it was stained with human blood.\nA knife stained with human blood was also recovered from his person.\n The High Court has convicted the appellant relying on the evidence of Bodu Lal, as corroborated by the discovery of the blood stained baniyan and knife. This evidence seems to us unassailable. Accordingly, we dismiss this appeal and confirm the judgment of the High Court.\n S.R. Appeal dismissed.\n "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "1574046297254e92b4c65d6b6acd0176",
"to_name": null,
"type": null,
"value": {
"end": 41,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nDHIAN SINGH\n\nVs.\n\nRESPONDENT:"
}
},
{
"from_name": null,
"id": "ff5c1bdc8f8d4a69b05846894432c8de",
"to_name": null,
"type": null,
"value": {
"end": 69,
"labels": [
"PREAMBLE"
],
"start": 41,
"text": "\nMUNICIPAL BOARD, SAHARANPUR"
}
},
{
"from_name": null,
"id": "e42ddffa50524ebf98f994dc30ba4b5c",
"to_name": null,
"type": null,
"value": {
"end": 119,
"labels": [
"PREAMBLE"
],
"start": 69,
"text": "\n\nDATE OF JUDGMENT:\n31/07/1969\n\nBENCH:\nHEGDE, K.S."
}
},
{
"from_name": null,
"id": "990246e7c3b240d8994dca5fd83e7647",
"to_name": null,
"type": null,
"value": {
"end": 635,
"labels": [
"PREAMBLE"
],
"start": 119,
"text": "\nBENCH:\nHEGDE, K.S.\nSIKRI, S.M.\nMITTER, G.K.\n\nCITATION: 1970 SCR (1) 736\n 1970 AIR 318\n 1969 SCC (2) 371\n\nACT:\n Prevention of Food Adulteration Act (37 of 1954), s.\n\n20--Scope of-- Complaint signed by Food Inspector but\nMunicipal Board shown as complainant--Appeal by Municipal\nBoard under s. 417(3) Code of Criminal Procedure (Act 5 of\n1898)--Maintainability not questioned in High Court--If\nquestion can be raised in the Supreme Court--Public Analyst,\nreport of--When can form basis of conviction."
}
},
{
"from_name": null,
"id": "02ce6b57340641a3a961fa0c9e62b7d6",
"to_name": null,
"type": null,
"value": {
"end": 868,
"labels": [
"PREAMBLE"
],
"start": 635,
"text": "\n\nHEADNOTE:\n On a report of the Public Analyst that the coloured\n\nsweets sold by the appellant were adulterated a complaint\nwas filed before the Magistrate under s. 7, read with s. 16\nof the Prevention of Food Adulteration Act."
}
},
{
"from_name": null,
"id": "85bf9790bf334c62969a1bd3fb00e21d",
"to_name": null,
"type": null,
"value": {
"end": 909,
"labels": [
"PREAMBLE"
],
"start": 869,
"text": "The trial court\nacquitted the appellant."
}
},
{
"from_name": null,
"id": "62ec35435eb842f6a812886ff935e575",
"to_name": null,
"type": null,
"value": {
"end": 1027,
"labels": [
"PREAMBLE"
],
"start": 910,
"text": "In appeal by the Municipal Board\nunder s. 417(3), Code of Criminal Procedure, the High Court\nconvicted the appellant."
}
},
{
"from_name": null,
"id": "4a18c90869474995a19e6f8138f7ad4b",
"to_name": null,
"type": null,
"value": {
"end": 1332,
"labels": [
"PREAMBLE"
],
"start": 1028,
"text": "The appellant did not raise any\nobjection as to the maintainability of the complaint or of\nthe appeal, either in the trial court or in the High Court\nbefore the appeal was disposed of, on the ground that the\nMunicipal Board was shown as the complainant and the\ncomplaint was signed by its Food Inspector."
}
},
{
"from_name": null,
"id": "479f5e8a8c0a41418bf6a3e38daffcbf",
"to_name": null,
"type": null,
"value": {
"end": 1907,
"labels": [
"PREAMBLE"
],
"start": 1333,
"text": "In appeal to\nthis Court, it was contended that: (i) the appeal filed by\nthe Municipal Board in the High Court was not maintainable\nin law as the complaint had been instituted by the Food\nInspector and not by the Municipal Board; (ii) a permission\nunder s. 20 of the Act was a condition precedent for validly\ninstituting a complaint and the fulfilment of that condition\nhad to be satisfactorily proved before the Court could\nexercise jurisdiction to try the case; and (iii) the\nappellant could not have been convicted on the strength of\nthe certificate of the Public Analyst."
}
},
{
"from_name": null,
"id": "6bcc2be66a1e4f54a2057e3b0c1c0b97",
"to_name": null,
"type": null,
"value": {
"end": 2107,
"labels": [
"PREAMBLE"
],
"start": 1916,
"text": "HELD: Dismissing the appeal,\n (i) Under s. 20 of the Prevention of Food Adulteration\nAct, it was competent for the Municipal Board to authorise\nthe Food Inspector to file the complaint."
}
},
{
"from_name": null,
"id": "a3c23e52b5b94ecc8f80af1910bf3581",
"to_name": null,
"type": null,
"value": {
"end": 2263,
"labels": [
"PREAMBLE"
],
"start": 2108,
"text": "If the complaint\nhad been filed by the Food Inspector on the authority of\nthe Board the complaint must be held to have been instituted\nby the Board itself."
}
},
{
"from_name": null,
"id": "5e45982076154c4e8dac603b278ac674",
"to_name": null,
"type": null,
"value": {
"end": 2344,
"labels": [
"PREAMBLE"
],
"start": 2264,
"text": "The question whether the Food\nInspector was so authorised is a question of fact."
}
},
{
"from_name": null,
"id": "0c3e1f65b33a4ee88345198f6105e718",
"to_name": null,
"type": null,
"value": {
"end": 2555,
"labels": [
"PREAMBLE"
],
"start": 2345,
"text": "This was\n\nnever put into issue and both the courts below and the\nparties before them proceeded on the basis that the\nMunicipal Board was the complainant and the Food Inspector\nfiled the complaint on its behalf."
}
},
{
"from_name": null,
"id": "fbb39e64950b491ca41fa21e2ef014c5",
"to_name": null,
"type": null,
"value": {
"end": 2701,
"labels": [
"PREAMBLE"
],
"start": 2556,
"text": "The appellant could not,\ntherefore, be permitted to take up the contention for the\nfirst time after the appeal was disposed of in the High\nCourt."
}
},
{
"from_name": null,
"id": "dcee3ae7c00e432f9663f647ad2ada56",
"to_name": null,
"type": null,
"value": {
"end": 2810,
"labels": [
"PREAMBLE"
],
"start": 2702,
"text": "[741 A-C]\n\n K.C. Aggarwal v. Delhi Administration, Cr. A. No. 100 of\n1966, dt. 27-5-1969, referred to."
}
},
{
"from_name": null,
"id": "6cf51b8beeee416d96910856f0e53849",
"to_name": null,
"type": null,
"value": {
"end": 2956,
"labels": [
"PREAMBLE"
],
"start": 2810,
"text": "\n\n (ii) There is no analogy between the section and those\nprovisions requiring sanction for the institution of certain\ncriminal proceedings."
}
},
{
"from_name": null,
"id": "13dbd2a5a48f491399ea32c7d171ac93",
"to_name": null,
"type": null,
"value": {
"end": 3180,
"labels": [
"PREAMBLE"
],
"start": 2957,
"text": "Under the section, no question of\napplying one's mind to the facts of the case before the\ninstitution of complaint arises as the authority under the\nsection can be conferred long before a particular offence\nhas taken place."
}
},
{
"from_name": null,
"id": "e83b73b7e1fe44cea61cb8b9017980bd",
"to_name": null,
"type": null,
"value": {
"end": 3272,
"labels": [
"PREAMBLE"
],
"start": 3181,
"text": "It is a conferment of an authority to\ninstitute a particular case or even a class of cases."
}
},
{
"from_name": null,
"id": "e27be3b05d9a4a12beca14120c270cca",
"to_name": null,
"type": null,
"value": {
"end": 3412,
"labels": [
"PREAMBLE"
],
"start": 3273,
"text": "[741\nG]\n Gokal Chand Dwarkadas v. The King, 75 I.A. 30 and Madan\nMohan Singh v. State of U.P.A.I.R. 1954 S.C. 736, held\ninapplicable."
}
},
{
"from_name": null,
"id": "346a618384d7417da0d8bbbc857bcdcc",
"to_name": null,
"type": null,
"value": {
"end": 3556,
"labels": [
"PREAMBLE"
],
"start": 3412,
"text": "\n\n (iii) It is not necessary that the report of the Public\nAnalyst should contain the mode or particulars of analysis\nor the test applied."
}
},
{
"from_name": null,
"id": "91cdc853ab9e4855898d7579d021582c",
"to_name": null,
"type": null,
"value": {
"end": 3701,
"labels": [
"PREAMBLE"
],
"start": 3557,
"text": "But it should contain the result of\nanalysis, namely, data from which it can be inferred whether\nthe article of food was of was not adulterated."
}
},
{
"from_name": null,
"id": "20aa3f58589645698c81937afe93d892",
"to_name": null,
"type": null,
"value": {
"end": 3722,
"labels": [
"PREAMBLE"
],
"start": 3702,
"text": "In the\npresent case."
}
},
{
"from_name": null,
"id": "65cdd82a661b4392a875bcfbfd4bde50",
"to_name": null,
"type": null,
"value": {
"end": 3823,
"labels": [
"PREAMBLE"
],
"start": 3723,
"text": "the report of analyst did contain the data on\nthe basis of which the analyst came to his conclusion."
}
},
{
"from_name": null,
"id": "91552880e6834dd19924eb5c40534efc",
"to_name": null,
"type": null,
"value": {
"end": 3844,
"labels": [
"PREAMBLE"
],
"start": 3824,
"text": "[742\nC-E]\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "8178b12410c74d1cbbfec74488f31534",
"to_name": null,
"type": null,
"value": {
"end": 3917,
"labels": [
"NONE"
],
"start": 3844,
"text": "\n CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 122 of 1967."
}
},
{
"from_name": null,
"id": "ca4313f68c4048abb44ad10399636f8e",
"to_name": null,
"type": null,
"value": {
"end": 4062,
"labels": [
"NONE"
],
"start": 3917,
"text": "\n Appeal by special leave from the judgment and order dated April 18, 1966 of the Allahabad High Court in Criminal Appeal No. 1642 of 1964."
}
},
{
"from_name": null,
"id": "8058e904d04f419d913351de03275d0b",
"to_name": null,
"type": null,
"value": {
"end": 4140,
"labels": [
"NONE"
],
"start": 4062,
"text": "\n R.K. Garg, S.C.Agarwal, Sumitra Chakravarty and Uma Dutt, for the appellant."
}
},
{
"from_name": null,
"id": "6f4af833e76d4882821335ce94be521e",
"to_name": null,
"type": null,
"value": {
"end": 4174,
"labels": [
"NONE"
],
"start": 4140,
"text": "\n O.P. Rana, for respondent No. 2."
}
},
{
"from_name": null,
"id": "12baf0977cd64ec294204f7b640a9ad5",
"to_name": null,
"type": null,
"value": {
"end": 4233,
"labels": [
"NONE"
],
"start": 4174,
"text": "\n The Judgment of the Court was delivered by Hegde J."
}
},
{
"from_name": null,
"id": "a7f6696c5e5a42448d6ea6cd1a59cc1b",
"to_name": null,
"type": null,
"value": {
"end": 4598,
"labels": [
"FAC"
],
"start": 4234,
"text": "Two contentions advanced in this appeal by special leave are (1) that the appeal filed by the Municipal Board, Saharanpur before the High Court of Allahabad under s. 417(3) of the Criminal Procedure Code was not maintainable in law and (2) the accused could not have been convicted on the strength of the certificate of the Public Analyst annexed to the complaint."
}
},
{
"from_name": null,
"id": "ca80b3881ff04bed9b0027decdd76625",
"to_name": null,
"type": null,
"value": {
"end": 4646,
"labels": [
"RLC"
],
"start": 4599,
"text": "The High Court rejected both these contentions."
}
},
{
"from_name": null,
"id": "445b2a3b1d37457dbf73c1d91cb35183",
"to_name": null,
"type": null,
"value": {
"end": 4802,
"labels": [
"FAC"
],
"start": 4646,
"text": "\n The material facts relating to this appeal are these: The accused in this case is proprietor of Khalsa Tea Stall situated in Court Road, Saharanpur."
}
},
{
"from_name": null,
"id": "6987a3f72eeb4621be6dcde8ed6554df",
"to_name": null,
"type": null,
"value": {
"end": 4854,
"labels": [
"FAC"
],
"start": 4803,
"text": "Among other things, he was selling coloured sweets."
}
},
{
"from_name": null,
"id": "68579de91ccc44d0890115a4bd2cb843",
"to_name": null,
"type": null,
"value": {
"end": 5154,
"labels": [
"FAC"
],
"start": 4855,
"text": "On suspicion that the sweets sold by him were adulterated, the Food Inspector, Municipal Board, Saharanpur purchased from the accused for examination some coloured sweets under a Yaddasht on May 31, 1963 and sent a portion if the same to the Public Analyst of the Government of U.P. for examination."
}
},
{
"from_name": null,
"id": "9ef2f161ea2c4ff18bf0dbc54c46340a",
"to_name": null,
"type": null,
"value": {
"end": 5212,
"labels": [
"FAC"
],
"start": 5154,
"text": "\nThe Public Analyst submitted his report on June 24, 1963."
}
},
{
"from_name": null,
"id": "34c442731f50460cabfe978fba5e470f",
"to_name": null,
"type": null,
"value": {
"end": 5755,
"labels": [
"FAC"
],
"start": 5212,
"text": "\nIt reads: \"See Rule 7 ( 3 ) REPORT BY THE PUBLIC ANALYST Report No. 11652.\n I hereby certify that I, Dr. R.S.\n Srivastava, Public Analyst for Uttar Pradesh, duly appointed under the provisions of the Prevention of Food Adulteration Act, 1954, received on the 4th day of June 1963 from theFood Inspector c/o Medical Officer of Health, Municipal Board, Saharanpur, a sample of coloured sweet (Patisa) prepared in Vanaspati No. 264 for analysis, properly sealed and fastened and that I found the seal intact and unbroken."
}
},
{
"from_name": null,
"id": "e9495820314e47778e824c9a1dbdf03b",
"to_name": null,
"type": null,
"value": {
"end": 6006,
"labels": [
"FAC"
],
"start": 5755,
"text": "\n I further certify that I have caused to be analysed the aforementioned sample, and declare the result of the analysis to be as follows: Test for the presence of coal-tar dye :--Positive.\n Coal-tar dye identified :-- Metanil yellow."
}
},
{
"from_name": null,
"id": "5d943c20bbd743af8fc61e056f27ebe1",
"to_name": null,
"type": null,
"value": {
"end": 6029,
"labels": [
"FAC"
],
"start": 6007,
"text": "(colour Index No. 138)"
}
},
{
"from_name": null,
"id": "4c9bab30057c41b4bf31b92de8ec5926",
"to_name": null,
"type": null,
"value": {
"end": 6109,
"labels": [
"FAC"
],
"start": 6030,
"text": "ANALYTICAL DATA IN RESPECT OF FAT OR OIL USED IN THE PREPARATION OF THE SAMPLE."
}
},
{
"from_name": null,
"id": "e3e5f84324f94d13a63363988f6bc1b1",
"to_name": null,
"type": null,
"value": {
"end": 6165,
"labels": [
"FAC"
],
"start": 6109,
"text": "\n1. Butyro-refractometer reading at 40 dgree C :-- 50.5."
}
},
{
"from_name": null,
"id": "9335b89639a647abb3234c0c56abef99",
"to_name": null,
"type": null,
"value": {
"end": 6197,
"labels": [
"FAC"
],
"start": 6165,
"text": "\n2. Melting point :-- 33.80C.\n3."
}
},
{
"from_name": null,
"id": "cbf87ce7c7ae48a09ee0822b7a8f9065",
"to_name": null,
"type": null,
"value": {
"end": 6252,
"labels": [
"FAC"
],
"start": 6198,
"text": "Baudouin's test for the presence of Til oil :Positive."
}
},
{
"from_name": null,
"id": "6e94f64e62784070bfb472f68ee4da7b",
"to_name": null,
"type": null,
"value": {
"end": 6543,
"labels": [
"FAC"
],
"start": 6253,
"text": "4. Tintometer reading on Lovibond Scale 4.0 Red Units plus 0.1 yellow unit coloured with a coal-tar dye namely, Metanil Yellow (Colour Index No. 138) which is not one of the coal- tar dyes permitted for use in foodstuffs under rule No. 28 of the Prevention of Food Adulteration Rules, 1955."
}
},
{
"from_name": null,
"id": "c60b0f682f6c42cfab92a4715715643e",
"to_name": null,
"type": null,
"value": {
"end": 7017,
"labels": [
"FAC"
],
"start": 6543,
"text": "\n No chance had taken place in the constitutents of the sample which would have interfered with analysis.\nSigned this 24th day of June 1963.\nThe sample belongs to :-- S. DHIAN SINGH S/O JIWAN SINGH R.S. Srivastava M.Sc., LL.B. Ph.D. (Lond.) P.R.L.C.\n Public Analyst to Govt. of U.P.\nSendor's address: Public Analyst, Uttar Pradesh, Lucknow The Food Inspector, c/o. Medical Officer of Health, Municipal Board, Saharanpur.\" "
}
},
{
"from_name": null,
"id": "d53e15cbe77349fda4b43ca38f76b434",
"to_name": null,
"type": null,
"value": {
"end": 7193,
"labels": [
"FAC"
],
"start": 7017,
"text": "On the basis of that certificate, a complaint was filed in the court of City Magistrate, Saharanpur under s. 7 read with s. 16 of the Prevention of Food Adulteration Act, 1954."
}
},
{
"from_name": null,
"id": "945240adfec14cd191e5f5ce2d2b6d2d",
"to_name": null,
"type": null,
"value": {
"end": 7304,
"labels": [
"FAC"
],
"start": 7193,
"text": "\nIt is purported to have been filed by the Municipal Board, Saharanpur but it was signed by its Food Inspector."
}
},
{
"from_name": null,
"id": "225498b9139249dda5dda621ccb4e59f",
"to_name": null,
"type": null,
"value": {
"end": 7336,
"labels": [
"FAC"
],
"start": 7305,
"text": "The accused pleaded not guilty."
}
},
{
"from_name": null,
"id": "8a991395813a4fbc9c7e5452b57443a5",
"to_name": null,
"type": null,
"value": {
"end": 7409,
"labels": [
"FAC"
],
"start": 7337,
"text": "Various contentions were taken by the accused in support of his defence."
}
},
{
"from_name": null,
"id": "dc61de6d81ab4d41af7f1d3030b49305",
"to_name": null,
"type": null,
"value": {
"end": 7694,
"labels": [
"RLC"
],
"start": 7410,
"text": "The trial court acquitted him taking the view that as the report of the analyst did not contain any data, no conviction could be rounded on its basis and as the Yaddasht relating to the sale had not been attested as required by law, the seizure in question must be held to be invalid."
}
},
{
"from_name": null,
"id": "b76d011749c14ea180a7e7ddbe6672cf",
"to_name": null,
"type": null,
"value": {
"end": 7816,
"labels": [
"FAC"
],
"start": 7695,
"text": "As against that decision, the Municipal Board of Saharanpur went up in appeal to the High Court under s. 417(3), Cr. P.C."
}
},
{
"from_name": null,
"id": "a71b78c70533471aa0fdd43e61a98797",
"to_name": null,
"type": null,
"value": {
"end": 7933,
"labels": [
"RLC"
],
"start": 7817,
"text": "the High Court allowed the appeal disagreeing with the trial court on both the questions of law referred to earlier."
}
},
{
"from_name": null,
"id": "3f73e041dfe345a983aa0ee1c49f6e0d",
"to_name": null,
"type": null,
"value": {
"end": 8064,
"labels": [
"RLC"
],
"start": 7934,
"text": "It came to the conclusion that the analyst had given the necessary data hence his report afforded sufficient basis for conviction."
}
},
{
"from_name": null,
"id": "f82f73475e074fe098882b015320f10c",
"to_name": null,
"type": null,
"value": {
"end": 8204,
"labels": [
"RLC"
],
"start": 8065,
"text": "It further opined that the fact that the Yaddasht had not been attested by the witnesses of the locality, did not vitiate the seizure made."
}
},
{
"from_name": null,
"id": "b5910d0ea978478b808555fe2e5c03f9",
"to_name": null,
"type": null,
"value": {
"end": 8298,
"labels": [
"FAC"
],
"start": 8205,
"text": "At the hearing of the appeal, no objection about the maintainability of the appeal was taken."
}
},
{
"from_name": null,
"id": "b5d39773764c4ae99401469b0d61ed5c",
"to_name": null,
"type": null,
"value": {
"end": 8361,
"labels": [
"FAC"
],
"start": 8299,
"text": "The judgment of the High Court was rendered on April 18, 1966."
}
},
{
"from_name": null,
"id": "27f8b9b23bdb49d6ad2f8a0da0ece612",
"to_name": null,
"type": null,
"value": {
"end": 8570,
"labels": [
"RLC"
],
"start": 8362,
"text": "The High Court convicted the appellant and sentenced him to undergo rigorous imprisonment for two months. and to pay a fine of Rs. 100/-, in default to undergo further imprisonment for a period of one, month."
}
},
{
"from_name": null,
"id": "7ca3b7b5a66145df966d32ede7adaaa8",
"to_name": null,
"type": null,
"value": {
"end": 8674,
"labels": [
"FAC"
],
"start": 8571,
"text": "On April 28, 1966, the accused field an application for certificate under Art. 134 of the Constitution."
}
},
{
"from_name": null,
"id": "b344cc3bc8c44405add6615228b9b688",
"to_name": null,
"type": null,
"value": {
"end": 9106,
"labels": [
"FAC"
],
"start": 8675,
"text": "On May 4, 1966, when the application filed under Art. 134 of the Constitution for certificate was still pending, the accused moved the High Court under s. 561 (A), Cr. P.C. for reviewing its judgment dated April 18, 1966 principally on the ground that the appeal filed by the Municipal Board was not maintainable under s. 417(3), Cr.\nP.C. as the complaint had been instituted by the' Food Inspector and no.t by the Municipal Board."
}
},
{
"from_name": null,
"id": "f9ee25b6b87f463d8e11286e997cb468",
"to_name": null,
"type": null,
"value": {
"end": 9312,
"labels": [
"RLC"
],
"start": 9107,
"text": "The application under s. 561(A) was dismissed by the High Court as per its order of March 16, 1967 repelling the contention of the accused that the complaint had not been instituted by the Municipal Board."
}
},
{
"from_name": null,
"id": "f083fad3329c45e4ad18ed2693ae6cbd",
"to_name": null,
"type": null,
"value": {
"end": 9395,
"labels": [
"RLC"
],
"start": 9313,
"text": "It further came to the conclusion that it had no power to review its own judgment."
}
},
{
"from_name": null,
"id": "7d5a75fd7fdc460b9d9958621801d39a",
"to_name": null,
"type": null,
"value": {
"end": 9512,
"labels": [
"RLC"
],
"start": 9396,
"text": "The certificate prayed for under Art. 134 of the Constitution was also refused by a separate order of the same date."
}
},
{
"from_name": null,
"id": "8c7775d35a464c1f88f7761de2b380ac",
"to_name": null,
"type": null,
"value": {
"end": 9578,
"labels": [
"FAC"
],
"start": 9513,
"text": "Thereafter this appeal was brought after obtaining special leave."
}
},
{
"from_name": null,
"id": "ed7a32601c0f4cba80fa8bddbd050d69",
"to_name": null,
"type": null,
"value": {
"end": 9867,
"labels": [
"ARG_PETITIONER"
],
"start": 9578,
"text": "\n Mr. Garg, learned Counsel for the appellant strenuously contended that the appeal filed by the Municipal Board of Saharanpur before the High Court under s. 417(3), Cr. P.C.\nwas not maintainable as the complaint from which that appeal had arisen had been instituted by the Food Inspector."
}
},
{
"from_name": null,
"id": "965ae07b69fd42229bfdbf30cb9d64bf",
"to_name": null,
"type": null,
"value": {
"end": 10100,
"labels": [
"STA"
],
"start": 9868,
"text": "Section 417(3) of the Criminal Procedure Code provides that if an order of acquittalis passed in any case instituted upon complaint, the High Court may grant to the complainant special leave to appeal against the order of acquittal."
}
},
{
"from_name": null,
"id": "80cf83ae7b404a38b5c365e992a8824d",
"to_name": null,
"type": null,
"value": {
"end": 10229,
"labels": [
"ANALYSIS"
],
"start": 10101,
"text": "It is clear from that section that special leave under that provision can only be granted to the complainant and to no one else."
}
},
{
"from_name": null,
"id": "8aa7e9aad866482f80faf1ab6d45ea87",
"to_name": null,
"type": null,
"value": {
"end": 10320,
"labels": [
"ANALYSIS"
],
"start": 10230,
"text": "It may be noted that in this case no appeal against acquittal had been filed by the State."
}
},
{
"from_name": null,
"id": "54145ff13a85488faefaf3673d42ce08",
"to_name": null,
"type": null,
"value": {
"end": 10456,
"labels": [
"ISSUE"
],
"start": 10321,
"text": "Hence the essential question for consideration is whether the complainant before the Magistrate was the Municipal Board of Saharanpur ?"
}
},
{
"from_name": null,
"id": "ccd8c71d5f804ec2b3423daacaefddfb",
"to_name": null,
"type": null,
"value": {
"end": 10584,
"labels": [
"ANALYSIS"
],
"start": 10457,
"text": "The complainant shown in the complaint is the Municipal Board of Saharanpur but the complaint was signed by the Food Inspector."
}
},
{
"from_name": null,
"id": "8c0f118dcec34564b1e3b5ca3412ee2a",
"to_name": null,
"type": null,
"value": {
"end": 10977,
"labels": [
"STA"
],
"start": 10585,
"text": "Section 20 of the Prevention of Food Adulteration Act, 1954 prescribes that no prosecution for an offence under that Act should be instituted except by, or with the written consent of, the Central Government or the State Government or a local authority or a person authorised in this behalf, by general or special order, by the Central Government or the State Government or a local authority."
}
},
{
"from_name": null,
"id": "58b9d0ce473046eab202ab9a05c31336",
"to_name": null,
"type": null,
"value": {
"end": 11044,
"labels": [
"ANALYSIS"
],
"start": 10977,
"text": "\nThere is no dispute that the Municipal Board is a local authority."
}
},
{
"from_name": null,
"id": "b61e20cffe9c46b6a31f52e42c75887a",
"to_name": null,
"type": null,
"value": {
"end": 11088,
"labels": [
"ANALYSIS"
],
"start": 11045,
"text": "Hence it was competent to file a complaint."
}
},
{
"from_name": null,
"id": "fba871ebd3094a27afee2fb4df1acc7c",
"to_name": null,
"type": null,
"value": {
"end": 11230,
"labels": [
"ANALYSIS"
],
"start": 11088,
"text": "It was also competent for that board to authorise someone else to file complaints under the Prevention of Food Adulteration Act on its behalf."
}
},
{
"from_name": null,
"id": "7e82a41298d149aea049b3be0fd88d79",
"to_name": null,
"type": null,
"value": {
"end": 11313,
"labels": [
"ANALYSIS"
],
"start": 11231,
"text": "As seen earlier, the complaint purports to have been filed by the Municipal Board."
}
},
{
"from_name": null,
"id": "c21877894f64406a8c7c075534f221a5",
"to_name": null,
"type": null,
"value": {
"end": 11402,
"labels": [
"ANALYSIS"
],
"start": 11314,
"text": "That Board could have authorised its Food Inspector to file the complaint on its behalf."
}
},
{
"from_name": null,
"id": "ffab6c2ba33b4b2e8c0776594dfcab2f",
"to_name": null,
"type": null,
"value": {
"end": 11598,
"labels": [
"ANALYSIS"
],
"start": 11403,
"text": "Neither in the trial court, nor in the High Court at the stage of hearing of the appeal, any objection was taken by the accused as to the maintainability either of the complaint or of the appeal."
}
},
{
"from_name": null,
"id": "137d0c1bcd754c1794e338ea9ba5830d",
"to_name": null,
"type": null,
"value": {
"end": 11784,
"labels": [
"ANALYSIS"
],
"start": 11599,
"text": "Both those courts and the parties before it proceeded on the basis that the Municipal Board, Saharanpur was the complainant and its Food Inspector had filed the complaint on its behalf."
}
},
{
"from_name": null,
"id": "cd94844315dd466c8d26ecf578300252",
"to_name": null,
"type": null,
"value": {
"end": 11940,
"labels": [
"ANALYSIS"
],
"start": 11785,
"text": "It is only after the disposal of the appeal, the accused for the first time took up the contention that the Municipal Board was not the real complainant.\n "
}
},
{
"from_name": null,
"id": "ec62d745d48d4221acf1a6b8d88522da",
"to_name": null,
"type": null,
"value": {
"end": 12003,
"labels": [
"ANALYSIS"
],
"start": 11940,
"text": "It is true that the complaint was signed by the Food Inspector."
}
},
{
"from_name": null,
"id": "8c45d99d0fe54b7a9734408278d40a70",
"to_name": null,
"type": null,
"value": {
"end": 12100,
"labels": [
"ANALYSIS"
],
"start": 12004,
"text": "As seen earlier it was competent for the Municipal Board to authorise him to file the Complaint."
}
},
{
"from_name": null,
"id": "1f68b5c01275478ca92e7119fef2d2c3",
"to_name": null,
"type": null,
"value": {
"end": 12210,
"labels": [
"ANALYSIS"
],
"start": 12100,
"text": "\nThe question whether he was authorised by the Municipal Board to file the complaint was never put into issue."
}
},
{
"from_name": null,
"id": "0fc1f06eb5004a00b3f32599440cfd2b",
"to_name": null,
"type": null,
"value": {
"end": 12311,
"labels": [
"ANALYSIS"
],
"start": 12211,
"text": "Both the parties to the complaint proceeded on the basis that it was a validly instituted complaint."
}
},
{
"from_name": null,
"id": "1bcd041dddce4c5e86b6d210fceb9339",
"to_name": null,
"type": null,
"value": {
"end": 12427,
"labels": [
"ANALYSIS"
],
"start": 12312,
"text": "If the Municipal Board had not authorised him to file the complaint then the complaint itself was not maintainable."
}
},
{
"from_name": null,
"id": "8af6a5ab4d874028915b2ecb01c22726",
"to_name": null,
"type": null,
"value": {
"end": 12512,
"labels": [
"ANALYSIS"
],
"start": 12428,
"text": "If that is so, no question of the invalidity of the appeal arises for consideration."
}
},
{
"from_name": null,
"id": "0a446f28606a40059a7d7fafe049ab71",
"to_name": null,
"type": null,
"value": {
"end": 12581,
"labels": [
"ANALYSIS"
],
"start": 12513,
"text": "It was never the case of the accused that the complaint was invalid."
}
},
{
"from_name": null,
"id": "42a17155ab1247a0af20fd475b0774c1",
"to_name": null,
"type": null,
"value": {
"end": 12871,
"labels": [
"PRE_RELIED"
],
"start": 12582,
"text": "In K.C. Aggarwal v. Delhi Administration(1), this Court has held that a complaint filed by one of the officers of a local authority', at the instance of that authority is in law a complaint institut- (1) Criminal Appeal No. 100 of 1966 decided on 27th May, 1969;ed by that local authority."
}
},
{
"from_name": null,
"id": "cf6c31d1f65c463ab906e415e353e92f",
"to_name": null,
"type": null,
"value": {
"end": 13087,
"labels": [
"ANALYSIS"
],
"start": 12872,
"text": "Therefore if the Complaint with which we are concerned in this case had been filed by the Food Inspector on the authority of local board, the complaint must be held to have been instituted by the local board itself."
}
},
{
"from_name": null,
"id": "5a1f4afae351415d922af72310c2e5b2",
"to_name": null,
"type": null,
"value": {
"end": 13215,
"labels": [
"ANALYSIS"
],
"start": 13088,
"text": "The question whether the Food Inspector had authority to file the complaint on behalf of the local board is a question of fact."
}
},
{
"from_name": null,
"id": "c805627690c04f4998f0ff6d62d69118",
"to_name": null,
"type": null,
"value": {
"end": 13280,
"labels": [
"ANALYSIS"
],
"start": 13216,
"text": "Official acts must be deemed to have been done according to law."
}
},
{
"from_name": null,
"id": "b751bf08d14849ce8249617a36e49a79",
"to_name": null,
"type": null,
"value": {
"end": 13421,
"labels": [
"ANALYSIS"
],
"start": 13281,
"text": "If the accused had challenged the authority of the Food Inspector to file the complaint, the trial court would have gone into that question."
}
},
{
"from_name": null,
"id": "1ced1e9cbe494ab9baad28850fc75900",
"to_name": null,
"type": null,
"value": {
"end": 13533,
"labels": [
"ANALYSIS"
],
"start": 13422,
"text": "The accused cannot be permitted to take up that contention for the first time after the disposal of the appeal."
}
},
{
"from_name": null,
"id": "3110e2512e934485b71e95fec8e47001",
"to_name": null,
"type": null,
"value": {
"end": 13707,
"labels": [
"PRE_RELIED"
],
"start": 13534,
"text": "This Court refused to entertain for the first time an objection as regards the validity of a sanction granted in Mangaldas Raghavji and Anr. v. State of Maharashtra and Anr."
}
},
{
"from_name": null,
"id": "3ac03fcc009c443386a25e5301806ed3",
"to_name": null,
"type": null,
"value": {
"end": 13953,
"labels": [
"ANALYSIS"
],
"start": 13708,
"text": "(1) Mr. Garg, learned Counsel for the accused urged that a permission under s. 20 of the Prevention of Food Adulteration Act, 1954 to file a complaint is a condition precedent for validly instituting a complaint under the provisions of that Act."
}
},
{
"from_name": null,
"id": "15653accfb4d4a3a9f5c90af1a5edc91",
"to_name": null,
"type": null,
"value": {
"end": 14079,
"labels": [
"ANALYSIS"
],
"start": 13954,
"text": "The fulfilment of that condition must be satisfactorily proved by the complainant before a court can entertain the complaint."
}
},
{
"from_name": null,
"id": "cfe4f4d2617348519a88ccd35faffc7d",
"to_name": null,
"type": null,
"value": {
"end": 14154,
"labels": [
"ANALYSIS"
],
"start": 14080,
"text": "Without such a proof, the court will have no jurisdiction to try the case."
}
},
{
"from_name": null,
"id": "48385952c1e6499795edd2968a22d90d",
"to_name": null,
"type": null,
"value": {
"end": 14358,
"labels": [
"PRE_NOT_RELIED"
],
"start": 14155,
"text": "In support of that contention of his he sought to take assistance from the decision of the Judicial Committee in Gokulchand Dwarkadas Morarka v. The King(2) and Madan Mohan Singh v. The State of U.P.(3)."
}
},
{
"from_name": null,
"id": "f9215025fab24f538f64954500dc6193",
"to_name": null,
"type": null,
"value": {
"end": 14490,
"labels": [
"PRE_NOT_RELIED"
],
"start": 14359,
"text": "Both those decisions deal with the question of the validity of sanctions given for the institution of certain criminal proceedings."
}
},
{
"from_name": null,
"id": "9ed8ab2fefd440999f668bed5ffbfbf3",
"to_name": null,
"type": null,
"value": {
"end": 14688,
"labels": [
"PRE_NOT_RELIED"
],
"start": 14491,
"text": "The provisions under which sanction was sought in those cases required the sanctioning authority to apply its mind and find out whether there was any justification for instituting the prosecutions."
}
},
{
"from_name": null,
"id": "ca6ffd8887774239ad9348c10e4f97f7",
"to_name": null,
"type": null,
"value": {
"end": 15017,
"labels": [
"PRE_NOT_RELIED"
],
"start": 14689,
"text": "The Judicial Committee as well as this Court has laid down that in such cases, the court must be satisfied either from the order of sanction or from the other evidence that all the relevant facts had been placed before the sanctioning authority and that authority had granted the sanction after applying its mind to those facts."
}
},
{
"from_name": null,
"id": "b4734cb8a8d74c8cbdf9c867cdaec404",
"to_name": null,
"type": null,
"value": {
"end": 15088,
"labels": [
"ANALYSIS"
],
"start": 15017,
"text": "\nThe ratio of those decisions has no bearing on the facts of this case."
}
},
{
"from_name": null,
"id": "84fa1e2fd723465b93507a408b9c7bb0",
"to_name": null,
"type": null,
"value": {
"end": 15378,
"labels": [
"STA"
],
"start": 15089,
"text": "Under s. 20 of the Prevention of Food Adulteration Act, 1954, no question of applying one's mind to the facts of the case before the institution of the complaint arises as the authority to be conferred under that provision can be conferred long before a particular offence has taken place."
}
},
{
"from_name": null,
"id": "baac8f655bb441e3a824adfa8418a3e1",
"to_name": null,
"type": null,
"value": {
"end": 15470,
"labels": [
"ANALYSIS"
],
"start": 15379,
"text": "It is a conferment of an authority to institute a particular case or even a class of cases."
}
},
{
"from_name": null,
"id": "fde7bb589d6f4a89a397dbefb8c5cedd",
"to_name": null,
"type": null,
"value": {
"end": 15627,
"labels": [
"ANALYSIS"
],
"start": 15471,
"text": "That -section merely prescribes that persons or authorities designated in that section are alone competent to file complaints under the statute in question."
}
},
{
"from_name": null,
"id": "87f1506fc08c4d88ac1ffd9e37e0b852",
"to_name": null,
"type": null,
"value": {
"end": 15700,
"labels": [
"NONE"
],
"start": 15629,
"text": "(1) [1965] 2 S.C.R. 894. (2) 75 I.A.p. 30.\n (3) A.I.R. 1954 S.C. 736.\n "
}
},
{
"from_name": null,
"id": "8beb2790ad0745e3b27f7a4774ff42af",
"to_name": null,
"type": null,
"value": {
"end": 15863,
"labels": [
"RATIO"
],
"start": 15700,
"text": "For the reasons mentioned above, we are unable to accept the contention of the accused that the Municipal Board of Saharanpur was not competent to file the appeal."
}
},
{
"from_name": null,
"id": "a4163f6ce93042fd960c1a78aeec9495",
"to_name": null,
"type": null,
"value": {
"end": 16151,
"labels": [
"ANALYSIS"
],
"start": 15863,
"text": "\n The only other question canvassed before us is that the report of the analyst could not have afforded a valid basis for rounding the conviction as the data on the basis of which the analyst had reached his conclusion is not found in that report or otherwise made available to the court."
}
},
{
"from_name": null,
"id": "4530951988e6453c80904bd10069510b",
"to_name": null,
"type": null,
"value": {
"end": 16201,
"labels": [
"RATIO"
],
"start": 16152,
"text": "We are unable to accept this contention 'as well."
}
},
{
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"text": "It is not correct to. say that the report does not contain the data on the basis of which the analyst came to his conclusion."
}
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{
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"text": "The relevant data is given in the report."
}
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],
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"text": "A report somewhat similar to the one before us was held by this Court to contain sufficient data in Mangaldas's(1) case referred to earlier."
}
},
{
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"text": "The correct view of the law on the subject is as stated in the decision of the Allahabad High Court in Nagar Mahapalika of Kanpur v. Sri Ram(2) wherein it is observed: \"that the report of the public analyst under s. 13 of the Prevention of Food Adulteration Act, 1954 need not contain the mode or particulars of analysis nor the test applied but should contain the result of analysis namely, data from which it can be inferred whether the article of food was or was not adulterated as defined in s. 2 (1 ) of the Act.\"\n "
}
},
{
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"to_name": null,
"type": null,
"value": {
"end": 17088,
"labels": [
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],
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"text": "In the result the appeal fails and the same is dismissed."
}
},
{
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"text": "The appellant is on bail."
}
},
{
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"text": "He should surrender to his bail and serve the sentence imposed on him."
}
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{
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"text": "\n Y.P."
}
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"text": " Appeal dismissed."
}
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"text": "\n (1) [1965] 2 S.C.R. 894. (2) [1963] All. L.J. 765.\n "
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}
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] | 4,079 | {
"text": "PETITIONER:\nDHIAN SINGH\n\nVs.\n\nRESPONDENT:\nMUNICIPAL BOARD, SAHARANPUR\n\nDATE OF JUDGMENT:\n31/07/1969\n\nBENCH:\nHEGDE, K.S.\nBENCH:\nHEGDE, K.S.\nSIKRI, S.M.\nMITTER, G.K.\n\nCITATION: 1970 SCR (1) 736\n 1970 AIR 318\n 1969 SCC (2) 371\n\nACT:\n Prevention of Food Adulteration Act (37 of 1954), s.\n\n20--Scope of-- Complaint signed by Food Inspector but\nMunicipal Board shown as complainant--Appeal by Municipal\nBoard under s. 417(3) Code of Criminal Procedure (Act 5 of\n1898)--Maintainability not questioned in High Court--If\nquestion can be raised in the Supreme Court--Public Analyst,\nreport of--When can form basis of conviction.\n\nHEADNOTE:\n On a report of the Public Analyst that the coloured\n\nsweets sold by the appellant were adulterated a complaint\nwas filed before the Magistrate under s. 7, read with s. 16\nof the Prevention of Food Adulteration Act. The trial court\nacquitted the appellant. In appeal by the Municipal Board\nunder s. 417(3), Code of Criminal Procedure, the High Court\nconvicted the appellant. The appellant did not raise any\nobjection as to the maintainability of the complaint or of\nthe appeal, either in the trial court or in the High Court\nbefore the appeal was disposed of, on the ground that the\nMunicipal Board was shown as the complainant and the\ncomplaint was signed by its Food Inspector. In appeal to\nthis Court, it was contended that: (i) the appeal filed by\nthe Municipal Board in the High Court was not maintainable\nin law as the complaint had been instituted by the Food\nInspector and not by the Municipal Board; (ii) a permission\nunder s. 20 of the Act was a condition precedent for validly\ninstituting a complaint and the fulfilment of that condition\nhad to be satisfactorily proved before the Court could\nexercise jurisdiction to try the case; and (iii) the\nappellant could not have been convicted on the strength of\nthe certificate of the Public Analyst.\n\n HELD: Dismissing the appeal,\n (i) Under s. 20 of the Prevention of Food Adulteration\nAct, it was competent for the Municipal Board to authorise\nthe Food Inspector to file the complaint. If the complaint\nhad been filed by the Food Inspector on the authority of\nthe Board the complaint must be held to have been instituted\nby the Board itself. The question whether the Food\nInspector was so authorised is a question of fact. This was\n\nnever put into issue and both the courts below and the\nparties before them proceeded on the basis that the\nMunicipal Board was the complainant and the Food Inspector\nfiled the complaint on its behalf. The appellant could not,\ntherefore, be permitted to take up the contention for the\nfirst time after the appeal was disposed of in the High\nCourt. [741 A-C]\n\n K.C. Aggarwal v. Delhi Administration, Cr. A. No. 100 of\n1966, dt. 27-5-1969, referred to.\n\n (ii) There is no analogy between the section and those\nprovisions requiring sanction for the institution of certain\ncriminal proceedings. Under the section, no question of\napplying one's mind to the facts of the case before the\ninstitution of complaint arises as the authority under the\nsection can be conferred long before a particular offence\nhas taken place. It is a conferment of an authority to\ninstitute a particular case or even a class of cases. [741\nG]\n Gokal Chand Dwarkadas v. The King, 75 I.A. 30 and Madan\nMohan Singh v. State of U.P.A.I.R. 1954 S.C. 736, held\ninapplicable.\n\n (iii) It is not necessary that the report of the Public\nAnalyst should contain the mode or particulars of analysis\nor the test applied. But it should contain the result of\nanalysis, namely, data from which it can be inferred whether\nthe article of food was of was not adulterated. In the\npresent case. the report of analyst did contain the data on\nthe basis of which the analyst came to his conclusion. [742\nC-E]\n\nJUDGMENT:\n CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 122 of 1967.\n Appeal by special leave from the judgment and order dated April 18, 1966 of the Allahabad High Court in Criminal Appeal No. 1642 of 1964.\n R.K. Garg, S.C.Agarwal, Sumitra Chakravarty and Uma Dutt, for the appellant.\n O.P. Rana, for respondent No. 2.\n The Judgment of the Court was delivered by Hegde J. Two contentions advanced in this appeal by special leave are (1) that the appeal filed by the Municipal Board, Saharanpur before the High Court of Allahabad under s. 417(3) of the Criminal Procedure Code was not maintainable in law and (2) the accused could not have been convicted on the strength of the certificate of the Public Analyst annexed to the complaint. The High Court rejected both these contentions.\n The material facts relating to this appeal are these: The accused in this case is proprietor of Khalsa Tea Stall situated in Court Road, Saharanpur. Among other things, he was selling coloured sweets. On suspicion that the sweets sold by him were adulterated, the Food Inspector, Municipal Board, Saharanpur purchased from the accused for examination some coloured sweets under a Yaddasht on May 31, 1963 and sent a portion if the same to the Public Analyst of the Government of U.P. for examination.\nThe Public Analyst submitted his report on June 24, 1963.\nIt reads: \"See Rule 7 ( 3 ) REPORT BY THE PUBLIC ANALYST Report No. 11652.\n I hereby certify that I, Dr. R.S.\n Srivastava, Public Analyst for Uttar Pradesh, duly appointed under the provisions of the Prevention of Food Adulteration Act, 1954, received on the 4th day of June 1963 from theFood Inspector c/o Medical Officer of Health, Municipal Board, Saharanpur, a sample of coloured sweet (Patisa) prepared in Vanaspati No. 264 for analysis, properly sealed and fastened and that I found the seal intact and unbroken.\n I further certify that I have caused to be analysed the aforementioned sample, and declare the result of the analysis to be as follows: Test for the presence of coal-tar dye :--Positive.\n Coal-tar dye identified :-- Metanil yellow. (colour Index No. 138) ANALYTICAL DATA IN RESPECT OF FAT OR OIL USED IN THE PREPARATION OF THE SAMPLE.\n1. Butyro-refractometer reading at 40 dgree C :-- 50.5.\n2. Melting point :-- 33.80C.\n3. Baudouin's test for the presence of Til oil :Positive.\n4. Tintometer reading on Lovibond Scale 4.0 Red Units plus 0.1 yellow unit coloured with a coal-tar dye namely, Metanil Yellow (Colour Index No. 138) which is not one of the coal- tar dyes permitted for use in foodstuffs under rule No. 28 of the Prevention of Food Adulteration Rules, 1955.\n No chance had taken place in the constitutents of the sample which would have interfered with analysis.\nSigned this 24th day of June 1963.\nThe sample belongs to :-- S. DHIAN SINGH S/O JIWAN SINGH R.S. Srivastava M.Sc., LL.B. Ph.D. (Lond.) P.R.L.C.\n Public Analyst to Govt. of U.P.\nSendor's address: Public Analyst, Uttar Pradesh, Lucknow The Food Inspector, c/o. Medical Officer of Health, Municipal Board, Saharanpur.\" On the basis of that certificate, a complaint was filed in the court of City Magistrate, Saharanpur under s. 7 read with s. 16 of the Prevention of Food Adulteration Act, 1954.\nIt is purported to have been filed by the Municipal Board, Saharanpur but it was signed by its Food Inspector. The accused pleaded not guilty. Various contentions were taken by the accused in support of his defence. The trial court acquitted him taking the view that as the report of the analyst did not contain any data, no conviction could be rounded on its basis and as the Yaddasht relating to the sale had not been attested as required by law, the seizure in question must be held to be invalid. As against that decision, the Municipal Board of Saharanpur went up in appeal to the High Court under s. 417(3), Cr. P.C. the High Court allowed the appeal disagreeing with the trial court on both the questions of law referred to earlier. It came to the conclusion that the analyst had given the necessary data hence his report afforded sufficient basis for conviction. It further opined that the fact that the Yaddasht had not been attested by the witnesses of the locality, did not vitiate the seizure made. At the hearing of the appeal, no objection about the maintainability of the appeal was taken. The judgment of the High Court was rendered on April 18, 1966. The High Court convicted the appellant and sentenced him to undergo rigorous imprisonment for two months. and to pay a fine of Rs. 100/-, in default to undergo further imprisonment for a period of one, month. On April 28, 1966, the accused field an application for certificate under Art. 134 of the Constitution. On May 4, 1966, when the application filed under Art. 134 of the Constitution for certificate was still pending, the accused moved the High Court under s. 561 (A), Cr. P.C. for reviewing its judgment dated April 18, 1966 principally on the ground that the appeal filed by the Municipal Board was not maintainable under s. 417(3), Cr.\nP.C. as the complaint had been instituted by the' Food Inspector and no.t by the Municipal Board. The application under s. 561(A) was dismissed by the High Court as per its order of March 16, 1967 repelling the contention of the accused that the complaint had not been instituted by the Municipal Board. It further came to the conclusion that it had no power to review its own judgment. The certificate prayed for under Art. 134 of the Constitution was also refused by a separate order of the same date. Thereafter this appeal was brought after obtaining special leave.\n Mr. Garg, learned Counsel for the appellant strenuously contended that the appeal filed by the Municipal Board of Saharanpur before the High Court under s. 417(3), Cr. P.C.\nwas not maintainable as the complaint from which that appeal had arisen had been instituted by the Food Inspector.\nSection 417(3) of the Criminal Procedure Code provides that if an order of acquittalis passed in any case instituted upon complaint, the High Court may grant to the complainant special leave to appeal against the order of acquittal. It is clear from that section that special leave under that provision can only be granted to the complainant and to no one else. It may be noted that in this case no appeal against acquittal had been filed by the State. Hence the essential question for consideration is whether the complainant before the Magistrate was the Municipal Board of Saharanpur ? The complainant shown in the complaint is the Municipal Board of Saharanpur but the complaint was signed by the Food Inspector. Section 20 of the Prevention of Food Adulteration Act, 1954 prescribes that no prosecution for an offence under that Act should be instituted except by, or with the written consent of, the Central Government or the State Government or a local authority or a person authorised in this behalf, by general or special order, by the Central Government or the State Government or a local authority.\nThere is no dispute that the Municipal Board is a local authority. Hence it was competent to file a complaint.It was also competent for that board to authorise someone else to file complaints under the Prevention of Food Adulteration Act on its behalf. As seen earlier, the complaint purports to have been filed by the Municipal Board. That Board could have authorised its Food Inspector to file the complaint on its behalf. Neither in the trial court, nor in the High Court at the stage of hearing of the appeal, any objection was taken by the accused as to the maintainability either of the complaint or of the appeal. Both those courts and the parties before it proceeded on the basis that the Municipal Board, Saharanpur was the complainant and its Food Inspector had filed the complaint on its behalf. It is only after the disposal of the appeal, the accused for the first time took up the contention that the Municipal Board was not the real complainant.\n It is true that the complaint was signed by the Food Inspector. As seen earlier it was competent for the Municipal Board to authorise him to file the Complaint.\nThe question whether he was authorised by the Municipal Board to file the complaint was never put into issue. Both the parties to the complaint proceeded on the basis that it was a validly instituted complaint. If the Municipal Board had not authorised him to file the complaint then the complaint itself was not maintainable. If that is so, no question of the invalidity of the appeal arises for consideration. It was never the case of the accused that the complaint was invalid. In K.C. Aggarwal v. Delhi Administration(1), this Court has held that a complaint filed by one of the officers of a local authority', at the instance of that authority is in law a complaint institut- (1) Criminal Appeal No. 100 of 1966 decided on 27th May, 1969;ed by that local authority. Therefore if the Complaint with which we are concerned in this case had been filed by the Food Inspector on the authority of local board, the complaint must be held to have been instituted by the local board itself. The question whether the Food Inspector had authority to file the complaint on behalf of the local board is a question of fact. Official acts must be deemed to have been done according to law. If the accused had challenged the authority of the Food Inspector to file the complaint, the trial court would have gone into that question. The accused cannot be permitted to take up that contention for the first time after the disposal of the appeal. This Court refused to entertain for the first time an objection as regards the validity of a sanction granted in Mangaldas Raghavji and Anr. v. State of Maharashtra and Anr. (1) Mr. Garg, learned Counsel for the accused urged that a permission under s. 20 of the Prevention of Food Adulteration Act, 1954 to file a complaint is a condition precedent for validly instituting a complaint under the provisions of that Act. The fulfilment of that condition must be satisfactorily proved by the complainant before a court can entertain the complaint. Without such a proof, the court will have no jurisdiction to try the case. In support of that contention of his he sought to take assistance from the decision of the Judicial Committee in Gokulchand Dwarkadas Morarka v. The King(2) and Madan Mohan Singh v. The State of U.P.(3). Both those decisions deal with the question of the validity of sanctions given for the institution of certain criminal proceedings. The provisions under which sanction was sought in those cases required the sanctioning authority to apply its mind and find out whether there was any justification for instituting the prosecutions. The Judicial Committee as well as this Court has laid down that in such cases, the court must be satisfied either from the order of sanction or from the other evidence that all the relevant facts had been placed before the sanctioning authority and that authority had granted the sanction after applying its mind to those facts.\nThe ratio of those decisions has no bearing on the facts of this case. Under s. 20 of the Prevention of Food Adulteration Act, 1954, no question of applying one's mind to the facts of the case before the institution of the complaint arises as the authority to be conferred under that provision can be conferred long before a particular offence has taken place. It is a conferment of an authority to institute a particular case or even a class of cases. That -section merely prescribes that persons or authorities designated in that section are alone competent to file complaints under the statute in question.\n (1) [1965] 2 S.C.R. 894. (2) 75 I.A.p. 30.\n (3) A.I.R. 1954 S.C. 736.\n For the reasons mentioned above, we are unable to accept the contention of the accused that the Municipal Board of Saharanpur was not competent to file the appeal.\n The only other question canvassed before us is that the report of the analyst could not have afforded a valid basis for rounding the conviction as the data on the basis of which the analyst had reached his conclusion is not found in that report or otherwise made available to the court. We are unable to accept this contention 'as well. It is not correct to. say that the report does not contain the data on the basis of which the analyst came to his conclusion. The relevant data is given in the report. A report somewhat similar to the one before us was held by this Court to contain sufficient data in Mangaldas's(1) case referred to earlier. The correct view of the law on the subject is as stated in the decision of the Allahabad High Court in Nagar Mahapalika of Kanpur v. Sri Ram(2) wherein it is observed: \"that the report of the public analyst under s. 13 of the Prevention of Food Adulteration Act, 1954 need not contain the mode or particulars of analysis nor the test applied but should contain the result of analysis namely, data from which it can be inferred whether the article of food was or was not adulterated as defined in s. 2 (1 ) of the Act.\"\n In the result the appeal fails and the same is dismissed. The appellant is on bail. He should surrender to his bail and serve the sentence imposed on him.\n Y.P. Appeal dismissed.\n (1) [1965] 2 S.C.R. 894. (2) [1963] All. L.J. 765.\n "
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"text": "\n 3. Search and seizure operations were carried out under Section 132 of the Act on Mr. Buta Singh, the father of Mr. Arvinder Singh, and Group."
}
},
{
"from_name": "label",
"id": "b8cd5fa700aa4334834525cf0bc4459e",
"to_name": "text",
"type": "labels",
"value": {
"end": 2730,
"labels": [
"FAC"
],
"start": 2593,
"text": "Notice was issued under Section 158BD of the Act requiring ETPL as well as Mr.\nArvinder Singh to file their respective returns of income."
}
},
{
"from_name": "label",
"id": "39124e9149d44ce89cf160209fb99a7e",
"to_name": "text",
"type": "labels",
"value": {
"end": 2797,
"labels": [
"FAC"
],
"start": 2731,
"text": "Another similar notice was issued under Section 142(1) of the Act."
}
},
{
"from_name": "label",
"id": "1ba898a738a247b89659d28e024d78d6",
"to_name": "text",
"type": "labels",
"value": {
"end": 2917,
"labels": [
"FAC"
],
"start": 2798,
"text": "After the Assessees filed their written submissions, fresh notices were issued to them under Section 143(2) of the Act."
}
},
{
"from_name": "label",
"id": "96df84a4deed4aac819d4d499a01407e",
"to_name": "text",
"type": "labels",
"value": {
"end": 3149,
"labels": [
"FAC"
],
"start": 2919,
"text": "4. As far as Mr. Arvinder Singh was concerned, the Assessing Officer („AO‟) completed the assessment under Section 158BC read with Section 113 of the Act on 28th November 1997 and computed the undisclosed income as Rs.1,33,08,737."
}
},
{
"from_name": "label",
"id": "c8c16a3f10984f5493a0edd2746a449c",
"to_name": "text",
"type": "labels",
"value": {
"end": 3231,
"labels": [
"FAC"
],
"start": 3150,
"text": "Aggrieved by the above order, Mr. Arvinder Singh filed an appeal before the ITAT."
}
},
{
"from_name": "label",
"id": "f3f98bc362cc476482e08fb1a03c6cc0",
"to_name": "text",
"type": "labels",
"value": {
"end": 3523,
"labels": [
"FAC"
],
"start": 3232,
"text": "By the impugned order dated 5th April 2007, the ITAT held that no valid opportunity was granted to the Assessee before making the impugned order of assessment and further that the requisite satisfaction was not recorded by the AO before initiating proceedings under Section 158BD of the Act."
}
},
{
"from_name": "label",
"id": "f747e1a7bf0c47b9954df21a5ab66614",
"to_name": "text",
"type": "labels",
"value": {
"end": 3576,
"labels": [
"FAC"
],
"start": 3524,
"text": "The ITAT, therefore, declined to examine the merits."
}
},
{
"from_name": "label",
"id": "bbf8cca57f9c49a9842c87eaf9120604",
"to_name": "text",
"type": "labels",
"value": {
"end": 3751,
"labels": [
"FAC"
],
"start": 3578,
"text": "5. As far as ETPL was concerned, by assessment order dated 30th September 1998 the AO completed the assessment and computed the total income of the Assessee as Rs.34,95,760."
}
},
{
"from_name": "label",
"id": "454bf4ee36e84e658cd8dc91f84293d8",
"to_name": "text",
"type": "labels",
"value": {
"end": 3794,
"labels": [
"FAC"
],
"start": 3752,
"text": "ETPL also filed an appeal before the ITAT."
}
},
{
"from_name": "label",
"id": "3db95c2ca62349b1b163cbc22ce5329a",
"to_name": "text",
"type": "labels",
"value": {
"end": 4099,
"labels": [
"FAC"
],
"start": 3794,
"text": "\nBy the same impugned order dated 5th April 2007, the appeal filed by the ETPL was allowed by the ITAT by setting aside the impugned assessment order on the ground of failure to provide an opportunity to the Assessee and to record satisfaction before initiating proceedings under Section 158BD of the Act."
}
},
{
"from_name": "label",
"id": "ea07640c0437446a8ef600253de51874",
"to_name": "text",
"type": "labels",
"value": {
"end": 4158,
"labels": [
"FAC"
],
"start": 4101,
"text": "6. The present two appeals were filed on different dates."
}
},
{
"from_name": "label",
"id": "464e83ea12784dd180785bc0cba642bc",
"to_name": "text",
"type": "labels",
"value": {
"end": 4319,
"labels": [
"FAC"
],
"start": 4159,
"text": "While ITA No.\n453/2012 appears to have been filed in the first instance on 18 th December 2010, ITA No. 464/2012 appears to have been filed on 14th August 2012."
}
},
{
"from_name": "label",
"id": "5c85136c73804ecc8c9e8f2c15171340",
"to_name": "text",
"type": "labels",
"value": {
"end": 4522,
"labels": [
"FAC"
],
"start": 4319,
"text": "\n 7. Initially in the application CM No. 13614/2010 seeking condonation of delay in filing ITA NO. 453/2012 (CIT v. Arvinder Singh) it was claimed that there was only 22 days' delay in filing the appeal."
}
},
{
"from_name": "label",
"id": "515d29b8c8334e70afe0654b4abba4ae",
"to_name": "text",
"type": "labels",
"value": {
"end": 4743,
"labels": [
"FAC"
],
"start": 4523,
"text": "It was stated in the said application that initially no appeal was preferred against the impugned order dated 5th April 2007 of the ITAT as at that stage “it was considered more appropriate to reframe the assessment.” 8."
}
},
{
"from_name": "label",
"id": "a4a67d24633646938ef0d13c0e595ed8",
"to_name": "text",
"type": "labels",
"value": {
"end": 4878,
"labels": [
"FAC"
],
"start": 4744,
"text": "CM No. 13616/2012 came to be filed in ITA No. 453/2012 seeking to explain the extraordinary delay of 429 days in re-filing the appeal."
}
},
{
"from_name": "label",
"id": "4bef16eabb854020942d7a4f03992215",
"to_name": "text",
"type": "labels",
"value": {
"end": 5047,
"labels": [
"FAC"
],
"start": 4879,
"text": "In this application it is claimed that a copy of the impugned order dated 5th April 2007 of the ITAT was received in the office of the Appellant only on 29th July 2010."
}
},
{
"from_name": "label",
"id": "fe14b82569654765acd805215efa7ef6",
"to_name": "text",
"type": "labels",
"value": {
"end": 5153,
"labels": [
"FAC"
],
"start": 5048,
"text": "The appeal was required to be filed on or before 28 th November 2010 but was filed on 18th December 2010."
}
},
{
"from_name": "label",
"id": "fd03b158635748d8ba22f5292a9778f8",
"to_name": "text",
"type": "labels",
"value": {
"end": 5223,
"labels": [
"FAC"
],
"start": 5154,
"text": "Consequently, it was asserted that there was only a delay of 22 days."
}
},
{
"from_name": "label",
"id": "e08c641522f940c58662e1eecb0ab444",
"to_name": "text",
"type": "labels",
"value": {
"end": 5485,
"labels": [
"FAC"
],
"start": 5224,
"text": "As far as the delay in re-filing was concerned, it was explained that on account of the resignation of the Standing Counsel of the Income Tax Department who had filed the matter in December 2010, the defects pointed out by the Registry could not be attended to."
}
},
{
"from_name": "label",
"id": "c52410284e4b46ceadf262b2162a6631",
"to_name": "text",
"type": "labels",
"value": {
"end": 5739,
"labels": [
"FAC"
],
"start": 5486,
"text": "It was only when the appeal of ETPL against the subsequent order of the ITAT dated 16th December 2009 was filed, it was noticed that ITA No. 453/2012 was unattended and it was only thereafter that the objections were removed and the appeal was re-filed."
}
},
{
"from_name": "label",
"id": "40830cbfdd274a2e8589ee883dc10fb0",
"to_name": "text",
"type": "labels",
"value": {
"end": 5871,
"labels": [
"FAC"
],
"start": 5741,
"text": "9. The explanation offered for the delay in filing ITA No. 464/2012, in which ETPL was the Respondent, requires to now be noticed."
}
},
{
"from_name": "label",
"id": "b20c3071fe5e44c4aaa8d8c2f2020604",
"to_name": "text",
"type": "labels",
"value": {
"end": 6162,
"labels": [
"FAC"
],
"start": 5872,
"text": "The explanation offered in CM No. 14085/2012 (in ITA No. 464/2012) is that pursuant to the order dated 5th April 2007 of the ITAT setting aside the assessment order, the AO issued a fresh notice under Section 143(2) of the Act and thereafter framed a fresh assessment on 31st December 2008."
}
},
{
"from_name": "label",
"id": "43bd9850570c4064908f597361d07850",
"to_name": "text",
"type": "labels",
"value": {
"end": 6229,
"labels": [
"FAC"
],
"start": 6162,
"text": "\nAgainst this assessment order, appeals were filed before the ITAT."
}
},
{
"from_name": "label",
"id": "9be8a6e227744b11af512c04eba3ba3f",
"to_name": "text",
"type": "labels",
"value": {
"end": 6473,
"labels": [
"FAC"
],
"start": 6230,
"text": "By order dated 16th October 2009, the ITAT quashed the assessment on the ground that when in the first round the ITAT had set aside the assessment by its order dated 5th April 2007, no directions had been given to the AO to pass a fresh order."
}
},
{
"from_name": "label",
"id": "58c73cace5f04472bc4c34ede9bf2880",
"to_name": "text",
"type": "labels",
"value": {
"end": 6596,
"labels": [
"FAC"
],
"start": 6474,
"text": "The Revenue appealed against the said order dated 16th October 2009 of the ITAT to this Court by way of ITA No. 2018/2010."
}
},
{
"from_name": "label",
"id": "769f9a8fbf3e456bb5ca9731160cb762",
"to_name": "text",
"type": "labels",
"value": {
"end": 6780,
"labels": [
"FAC"
],
"start": 6597,
"text": "It is stated that when ITA No. 2018/2010 was listed before the Court some time in 2010, the Revenue sought leave to file an appeal against the ITAT's first order dated 5th April 2007."
}
},
{
"from_name": "label",
"id": "81187fa7ff2b4c1783f94a86fed28f82",
"to_name": "text",
"type": "labels",
"value": {
"end": 6975,
"labels": [
"FAC"
],
"start": 6781,
"text": "Thereafter, the Standing counsel for the Revenue immediately wrote to the Department informing it of the necessity to file an appeal against the impugned order dated 5 th April 2007 of the ITAT."
}
},
{
"from_name": "label",
"id": "7d3d687c3f1c4b2ea489794eb8761f94",
"to_name": "text",
"type": "labels",
"value": {
"end": 7047,
"labels": [
"FAC"
],
"start": 6976,
"text": "No dates are mentioned in relation to any of the aforementioned events."
}
},
{
"from_name": "label",
"id": "f04a9ec669fc4446977ee033673246aa",
"to_name": "text",
"type": "labels",
"value": {
"end": 7207,
"labels": [
"FAC"
],
"start": 7048,
"text": "It is simply stated that the said documents were then made available to the Standing counsel on 10th August 2012 and thereafter the present appeal was drafted."
}
},
{
"from_name": "label",
"id": "5ee7a484614b412f9437b92b678118e3",
"to_name": "text",
"type": "labels",
"value": {
"end": 7274,
"labels": [
"FAC"
],
"start": 7208,
"text": "The appeal was filed on 14th August 2012 with a delay of 626 days."
}
},
{
"from_name": "label",
"id": "b3839dc2021f42be81bdddfee2ac36b3",
"to_name": "text",
"type": "labels",
"value": {
"end": 7443,
"labels": [
"FAC"
],
"start": 7274,
"text": "\n 10. In CM No. 14085/2012 it is also stated that the impugned order of the ITAT dated 5th April 2007 was received in the office of the Appellant only on 29th July 2010."
}
},
{
"from_name": "label",
"id": "b99af0e5f38f45aabe08a7b5f0956f86",
"to_name": "text",
"type": "labels",
"value": {
"end": 7774,
"labels": [
"FAC"
],
"start": 7443,
"text": "\n 11. The Court notices that the above assertion, both in CM No. 13616/2012 came to be filed in ITA No. 453/2012 and in CM No. 14085/2012 in ITA No. 464 of 2012 that the order of the ITAT dated 5th April 2007 was received only on 29th July 2010, i.e. after three years and seven months, does not appear to be correct or convincing."
}
},
{
"from_name": "label",
"id": "31d9b130188e4880acc7fc976ea16139",
"to_name": "text",
"type": "labels",
"value": {
"end": 7794,
"labels": [
"FAC"
],
"start": 7775,
"text": "The reason is this."
}
},
{
"from_name": "label",
"id": "f390bb592eed43a8b30b51f4d23a8097",
"to_name": "text",
"type": "labels",
"value": {
"end": 8022,
"labels": [
"ANALYSIS"
],
"start": 7794,
"text": "\n 12. The Court had by an order dated 31st July 2014 granted the Appellant time to file an additional affidavit explaining “sufficient cause and reasons for the delay in filing the appeal against the order dated 5th April 2007.”"
}
},
{
"from_name": "label",
"id": "90b90c908c8e433ab66098c5281edd7a",
"to_name": "text",
"type": "labels",
"value": {
"end": 8381,
"labels": [
"ANALYSIS"
],
"start": 8023,
"text": "In the same order the Court observed “it is the duty of the Appellant to bring on record true and correct facts and justify why and for what reason no appeal was initially preferred against the order dated 5th April 2007; whether the order was accepted by the Revenue at that stage; why the decision was accepted and fresh block assessment order was passed.”"
}
},
{
"from_name": "label",
"id": "7bfdf0b2be714b3396c896b092db4f3a",
"to_name": "text",
"type": "labels",
"value": {
"end": 8463,
"labels": [
"ANALYSIS"
],
"start": 8382,
"text": "Opportunity was also given to the Respondent to file reply to the said affidavit."
}
},
{
"from_name": "label",
"id": "d591d7b2ab3a490088f370617f61b212",
"to_name": "text",
"type": "labels",
"value": {
"end": 8564,
"labels": [
"FAC"
],
"start": 8463,
"text": "\n 13. Pursuant to the above order the Appellant filed an additional affidavit on 22nd September 2014."
}
},
{
"from_name": "label",
"id": "987075e413434c24a9e5df8a60768c50",
"to_name": "text",
"type": "labels",
"value": {
"end": 9013,
"labels": [
"ANALYSIS"
],
"start": 8565,
"text": "Interestingly, in this additional affidavit (which is actually a submission supported by an affidavit) it is stated inter alia that when ITA No. 2018/2010 (being the appeal of the Revenue against the ITAT's order dated 16th October 2009) was listed for hearing on 28th January 2011 an order was passed by the Court noting the contention of the counsel for the Revenue that there was no impediment for the AO to have passed a fresh assessment order."
}
},
{
"from_name": "label",
"id": "45ac09fb0c884f69baa942aebb1b116b",
"to_name": "text",
"type": "labels",
"value": {
"end": 9066,
"labels": [
"FAC"
],
"start": 9014,
"text": "On that basis, notice was issued in the said appeal."
}
},
{
"from_name": "label",
"id": "f3f326d3b8464e6687692abe351163d2",
"to_name": "text",
"type": "labels",
"value": {
"end": 9131,
"labels": [
"ANALYSIS"
],
"start": 9067,
"text": "It was stated in the additional affidavit in para 12 as under: \""
}
},
{
"from_name": "label",
"id": "333b410a014d460d9f733c3571ee19e1",
"to_name": "text",
"type": "labels",
"value": {
"end": 9480,
"labels": [
"ANALYSIS"
],
"start": 9131,
"text": "12.During the course of proceedings in the aforementioned case, it was pointed out by the Counsel for the Revenue to the Department on 28.01.2011,that the Department is under a mistaken belief that ITAT vide order dated 05.04.2007 has remanded the matter to the AO to reframe the assessment after allowing opportunity of being heard to the Assessee."
}
},
{
"from_name": "label",
"id": "5c7a8ba93b48425a83ec2d7d99de2e2a",
"to_name": "text",
"type": "labels",
"value": {
"end": 9751,
"labels": [
"ANALYSIS"
],
"start": 9480,
"text": "\n This mistaken belief was particularly for the reason that it was the contention of the Assessee before the ITAT that Assessing officer while passing AO violated the principles of natural justice by not providing an opportunity of being heard to the Assessee."
}
},
{
"from_name": "label",
"id": "2699f46d9ea047ab8a468d150cc339d9",
"to_name": "text",
"type": "labels",
"value": {
"end": 9850,
"labels": [
"ANALYSIS"
],
"start": 9752,
"text": "The said mistaken belief is also reflected in the CSR recorded by the Department dated 08.02.2010."
}
},
{
"from_name": "label",
"id": "dedb66b9e54c4f7b980ab1c0da28f4c7",
"to_name": "text",
"type": "labels",
"value": {
"end": 9925,
"labels": [
"ANALYSIS"
],
"start": 9851,
"text": "Copy of the CSR dated 08.02.2010 is attached herewith as ANNEXURE C.\"\n 14."
}
},
{
"from_name": "label",
"id": "299d919fb2384bdca20be18cc3a4c9a1",
"to_name": "text",
"type": "labels",
"value": {
"end": 10195,
"labels": [
"ANALYSIS"
],
"start": 9926,
"text": "It was further stated in para 13 that “on the basis of the aforementioned advise of the Counsel for the Revenue, the case file along with complete record was handed over to the counsel on 10.08.2012 and appeal before the Hon'ble High Court was filed On 14.08.2012.” 15."
}
},
{
"from_name": "label",
"id": "8f4cb430700f4f26bbbdfc1c90562f06",
"to_name": "text",
"type": "labels",
"value": {
"end": 10577,
"labels": [
"ANALYSIS"
],
"start": 10196,
"text": "Nowhere in the additional affidavit is any explanation offered for the extraordinary delay between 28th January 2011, when counsel for the Revenue is supposed to have advised the Department that an appeal should be filed against the impugned order dated 5th April 2007, and 10th August 2012, when papers were actually entrusted to counsel for the Revenue for filing such an appeal."
}
},
{
"from_name": "label",
"id": "11f4e6ea60b247acae1d2dc727453ca1",
"to_name": "text",
"type": "labels",
"value": {
"end": 10670,
"labels": [
"ANALYSIS"
],
"start": 10578,
"text": "In other words, for a delay of one year and seven months there is no explanation whatsoever."
}
},
{
"from_name": "label",
"id": "e30bf922146f4dfa9e36acc7cf1510f3",
"to_name": "text",
"type": "labels",
"value": {
"end": 10841,
"labels": [
"ANALYSIS"
],
"start": 10670,
"text": "\n 16. Thereafter in para 14 it is stated that “in the present case the certified copy of the AO dated 5th April 2007 was received by Department/Revenue on 26th June 2007.”"
}
},
{
"from_name": "label",
"id": "c339ebe07d3c4807b8c895fcee39b017",
"to_name": "text",
"type": "labels",
"value": {
"end": 11000,
"labels": [
"ANALYSIS"
],
"start": 10842,
"text": "Clearly, therefore, the earlier submissions made to the effect that the impugned order dated 5th April 2007 was received only on 29th July 2010 was incorrect."
}
},
{
"from_name": "label",
"id": "a9ab4e98b0ce459099c2543dce4d0891",
"to_name": "text",
"type": "labels",
"value": {
"end": 11172,
"labels": [
"ANALYSIS"
],
"start": 11001,
"text": "Even otherwise it seems extremely unlikely that it would take the Department over three years and three months to receive a copy of an order of the ITAT in the Department."
}
},
{
"from_name": "label",
"id": "63c086347678489a9b954f5fcb8e2ce7",
"to_name": "text",
"type": "labels",
"value": {
"end": 11395,
"labels": [
"ANALYSIS"
],
"start": 11173,
"text": "The very fact that a fresh notice was issued by the AO under Section 143(2) of the Act way back on 1st October 2008 obviously meant that a copy of the order dated 5th April 2007 of the ITAT was received prior to that date."
}
},
{
"from_name": "label",
"id": "3dff8b75798745439dccdd27808bcd94",
"to_name": "text",
"type": "labels",
"value": {
"end": 11647,
"labels": [
"ANALYSIS"
],
"start": 11396,
"text": "Therefore, for the purposes of these appeals the Court will proceed on the basis of the statement made by the Revenue itself in para 14 of the additional affidavit that it had received a copy of the order dated 5th April 2007 on 26th July 2007 itself."
}
},
{
"from_name": "label",
"id": "70c90ba0282b493ab5be94713f9229a6",
"to_name": "text",
"type": "labels",
"value": {
"end": 11859,
"labels": [
"ANALYSIS"
],
"start": 11647,
"text": "\n 17. Consequently, for computing the delay in filing the present appeals, the limitation should be reckoned from 26th June 2007, as rightly pointed out by the Respondent in its reply to the additional affidavit."
}
},
{
"from_name": "label",
"id": "04b9f11f1c464ae8a34c227955676e1b",
"to_name": "text",
"type": "labels",
"value": {
"end": 11970,
"labels": [
"ANALYSIS"
],
"start": 11860,
"text": "The Revenue has a limitation period of 120 days i.e. 4 months to file an appeal under Section 260A of the Act."
}
},
{
"from_name": "label",
"id": "fce9ec0ab1b34170a58a3349caeff517",
"to_name": "text",
"type": "labels",
"value": {
"end": 12041,
"labels": [
"ANALYSIS"
],
"start": 11971,
"text": "Therefore, the last date for filing the appeals was 26th October 2007."
}
},
{
"from_name": "label",
"id": "de933e5ac2e84fa18682f321901e9b40",
"to_name": "text",
"type": "labels",
"value": {
"end": 12219,
"labels": [
"ANALYSIS"
],
"start": 12042,
"text": "Keeping that view if the actual dates for filing of the two appeals are taken into consideration then the actual delay works out to far more than what is claimed by the Revenue."
}
},
{
"from_name": "label",
"id": "c5a132d610b3454f89f0b726505b6249",
"to_name": "text",
"type": "labels",
"value": {
"end": 12379,
"labels": [
"ANALYSIS"
],
"start": 12220,
"text": "As far as ITA No. 453 of 2012 is concerned, the date of filing was 18th December 2010 and the delay works out to 3 years, 5 months and 22 days, i.e. 1271 days."
}
},
{
"from_name": "label",
"id": "ca4429e140814bada15f7201bf6f5c88",
"to_name": "text",
"type": "labels",
"value": {
"end": 12543,
"labels": [
"ANALYSIS"
],
"start": 12380,
"text": "As far as ITA No. 464 of 2012 is concerned, the actual date of filing was 14th August 2012 and the delay works out to 5 years, 1 month and 19 days, i.e. 1876 days."
}
},
{
"from_name": "label",
"id": "80185e65e39b49f9a6de5758774a4dbf",
"to_name": "text",
"type": "labels",
"value": {
"end": 12759,
"labels": [
"ANALYSIS"
],
"start": 12543,
"text": "\n 18. That the Revenue itself is confused about the exact days of delay is apparent from the additional affidavit filed by it in ITA No. 464/2012 where it has computed the delay in filing the said appeal as 565 days."
}
},
{
"from_name": "label",
"id": "3e308ce6a4fc46b880f00c5fb4ddf2cf",
"to_name": "text",
"type": "labels",
"value": {
"end": 13009,
"labels": [
"ANALYSIS"
],
"start": 12759,
"text": "\n 19. The purpose of the Court passing the order dated 31 st July 2014 requiring a proper affidavit to be filed by the Revenue was to give it one more opportunity of giving a satisfactory explanation for the extraordinary delay in filing the appeals."
}
},
{
"from_name": "label",
"id": "9618a63f5655483b87e0e09e416e6a26",
"to_name": "text",
"type": "labels",
"value": {
"end": 13156,
"labels": [
"ANALYSIS"
],
"start": 13010,
"text": "Unfortunately, even by way of the additional affidavit dated 14th September 2014, the Revenue has been unable to offer any convincing explanation."
}
},
{
"from_name": "label",
"id": "d78296c6eceb493081b0159a98c493d6",
"to_name": "text",
"type": "labels",
"value": {
"end": 13446,
"labels": [
"ARG_PETITIONER"
],
"start": 13156,
"text": "\n 20. It was urged by Mr. Rohit Madan, learned Senior Standing counsel for the Revenue, that it was only on account of confusion in the Department on whether the impugned order dated 5th April 2007 of the ITAT could be challenged that there was an extraordinary delay in filing the appeals."
}
},
{
"from_name": "label",
"id": "469a621232ef4ea190f35597fca9cc78",
"to_name": "text",
"type": "labels",
"value": {
"end": 13687,
"labels": [
"ANALYSIS"
],
"start": 13447,
"text": "As already noticed from the additional affidavit filed by the Revenue on 22 nd September 2014, the Department was informed by counsel way back on 28 th January 2011 that it ought to file appeal against the ITAT's order dated 5th April 2007."
}
},
{
"from_name": "label",
"id": "b7b4c9e7d38d4dfeb3b96afa0612c6dc",
"to_name": "text",
"type": "labels",
"value": {
"end": 13837,
"labels": [
"ANALYSIS"
],
"start": 13688,
"text": "Therefore after 28th January 2011, the Department could not claim to be still under any confusion as to the course of action it was expected to take."
}
},
{
"from_name": "label",
"id": "a1a87f2542404b89922ca4199d799d36",
"to_name": "text",
"type": "labels",
"value": {
"end": 13959,
"labels": [
"ANALYSIS"
],
"start": 13838,
"text": "It is plain that it did not take any urgent action as far as filing ITA No. 464/2012 was concerned till 14th August 2012."
}
},
{
"from_name": "label",
"id": "eb4ab9d69b8d4745b88309a3b824c8f4",
"to_name": "text",
"type": "labels",
"value": {
"end": 14179,
"labels": [
"ANALYSIS"
],
"start": 13959,
"text": "\n 21. As far as ITA No. 453/2012 is concerned although it was directed against the same impugned order dated 5th April 2007 of the ITAT, there appears to have been no confusion on the necessity for filing such an appeal."
}
},
{
"from_name": "label",
"id": "31cd5f51086e4d53984218cd2e74efff",
"to_name": "text",
"type": "labels",
"value": {
"end": 14262,
"labels": [
"ANALYSIS"
],
"start": 14179,
"text": "\nThe reason given in CM No. 13614/2012 for the delay is again totally unconvincing."
}
},
{
"from_name": "label",
"id": "2ed7cc88c4d1483990fa799877fa91e0",
"to_name": "text",
"type": "labels",
"value": {
"end": 14385,
"labels": [
"ANALYSIS"
],
"start": 14263,
"text": "The appeal appears to have been prompted by the ITAT quashing the reassessment order by the order dated 16th October 2009."
}
},
{
"from_name": "label",
"id": "e13a34cbf02241cfba1fe7fe7a0bc297",
"to_name": "text",
"type": "labels",
"value": {
"end": 14558,
"labels": [
"ANALYSIS"
],
"start": 14385,
"text": "\nNevertheless, even if one takes the said order of the ITAT as the trigger, the appeal was filed only on 18th December 2010 i.e. more than an year and two months thereafter."
}
},
{
"from_name": "label",
"id": "b0447311c4ec41cebc9fb905b9c3d8dc",
"to_name": "text",
"type": "labels",
"value": {
"end": 14617,
"labels": [
"ANALYSIS"
],
"start": 14559,
"text": "Therefore even that delay is not satisfactorily explained."
}
},
{
"from_name": "label",
"id": "28464fba8b1e46ada0adde3c1700ecdf",
"to_name": "text",
"type": "labels",
"value": {
"end": 15089,
"labels": [
"PRE_RELIED"
],
"start": 14617,
"text": "\n 22. In Postmaster General v. Living Media India Ltd. (2012) 3 SCC 563, the Supreme Court has deprecated the casual attitude of government departments in taking steps to file appeals within reasonable time in the following words: \"26. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the person in-charge has filed any explanation for not applying the certified copy within the prescribed period."
}
},
{
"from_name": "label",
"id": "6f9a67345eac4f4a93643e455aa20bf8",
"to_name": "text",
"type": "labels",
"value": {
"end": 15354,
"labels": [
"ANALYSIS"
],
"start": 15090,
"text": "The other dates mentioned in the affidavit which we have already extracted, clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned."
}
},
{
"from_name": "label",
"id": "de34bb608af74e7c93a006119999ce2c",
"to_name": "text",
"type": "labels",
"value": {
"end": 15649,
"labels": [
"ANALYSIS"
],
"start": 15355,
"text": "Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps."
}
},
{
"from_name": "label",
"id": "8a2b8500b5a74496930322de5343251f",
"to_name": "text",
"type": "labels",
"value": {
"end": 15887,
"labels": [
"ANALYSIS"
],
"start": 15649,
"text": "\n 27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court."
}
},
{
"from_name": "label",
"id": "234e9c235a2d4a08adb12c53fe5b3f85",
"to_name": "text",
"type": "labels",
"value": {
"end": 16042,
"labels": [
"ANALYSIS"
],
"start": 15888,
"text": "They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings."
}
},
{
"from_name": "label",
"id": "8cf4331afd824d179dd2816fde8107f2",
"to_name": "text",
"type": "labels",
"value": {
"end": 16248,
"labels": [
"ANALYSIS"
],
"start": 16043,
"text": "In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us."
}
},
{
"from_name": "label",
"id": "1f957b03d9fd4195a06e74a9f2be9527",
"to_name": "text",
"type": "labels",
"value": {
"end": 16603,
"labels": [
"ANALYSIS"
],
"start": 16248,
"text": "\n 28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions."
}
},
{
"from_name": "label",
"id": "eb39ac646a864731969510e454fcc5f5",
"to_name": "text",
"type": "labels",
"value": {
"end": 16791,
"labels": [
"ANALYSIS"
],
"start": 16604,
"text": "The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available."
}
},
{
"from_name": "label",
"id": "bf6e19808b474153806cf8cbc847557f",
"to_name": "text",
"type": "labels",
"value": {
"end": 16867,
"labels": [
"ANALYSIS"
],
"start": 16792,
"text": "The law of limitation undoubtedly binds everybody including the Government."
}
},
{
"from_name": "label",
"id": "5140b546a19e4755bd06454865124341",
"to_name": "text",
"type": "labels",
"value": {
"end": 17256,
"labels": [
"ANALYSIS"
],
"start": 16867,
"text": "\n 29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process."
}
},
{
"from_name": "label",
"id": "29bfc8e13136423387ac5fcb96b8c849",
"to_name": "text",
"type": "labels",
"value": {
"end": 17386,
"labels": [
"ANALYSIS"
],
"start": 17257,
"text": "The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment."
}
},
{
"from_name": "label",
"id": "5d671e9c4372408fb217ecceb5b661ad",
"to_name": "text",
"type": "labels",
"value": {
"end": 17628,
"labels": [
"RATIO"
],
"start": 17386,
"text": "\n Condonation of delay is an exception and should not be used as an anticipated benefit for government departments.\n The law shelters everyone under the same light and should not be swirled for the benefit of a few.\n 30."
}
},
{
"from_name": "label",
"id": "c80a4fdd5a9b4108a0cb9c6e786cc78a",
"to_name": "text",
"type": "labels",
"value": {
"end": 17911,
"labels": [
"RATIO"
],
"start": 17629,
"text": "Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.\n "
}
},
{
"from_name": "label",
"id": "6bb3b29032bd45e1bd069db1a9280eef",
"to_name": "text",
"type": "labels",
"value": {
"end": 17991,
"labels": [
"PRE_RELIED"
],
"start": 17911,
"text": "Accordingly, the appeals are liable to be dismissed on the ground of delay.” 23."
}
},
{
"from_name": "label",
"id": "7db65f3a04e143fabdfca91fcdbabeba",
"to_name": "text",
"type": "labels",
"value": {
"end": 18249,
"labels": [
"PRE_RELIED"
],
"start": 17992,
"text": "In State of Uttar Pradesh v. Amar Nath Yadav (2014) 2 SCC 422 while reiterating the above decision, the Supreme Court declined to condone the delay of 481 days in the State filing a special leave petition against the judgment of the High Court of Allahabad."
}
},
{
"from_name": "label",
"id": "28f81f13a02b43ce89841f7dba10f38b",
"to_name": "text",
"type": "labels",
"value": {
"end": 18449,
"labels": [
"RATIO"
],
"start": 18251,
"text": "24. Consequently, the Court is not satisfied with the reasons offered for the extraordinary delay of 1271 days in filing ITA No. 453 of 2012 and the delay of 1876 days in filing ITA No. 464 of 2012."
}
},
{
"from_name": "label",
"id": "cbaf561794c143db8a25b1d34b70ff7a",
"to_name": "text",
"type": "labels",
"value": {
"end": 18557,
"labels": [
"RPC"
],
"start": 18450,
"text": "Accordingly CM Nos.\n13614/2010 in ITA No. 453/2012 and CM No. 14085/2012 in ITA No.\n464/2012 are dismissed."
}
},
{
"from_name": "label",
"id": "cd41b2a920114720abd172bcf6f80104",
"to_name": "text",
"type": "labels",
"value": {
"end": 18663,
"labels": [
"RATIO"
],
"start": 18557,
"text": "\n 25. The reasons for the delay of 426 days in re-filing ITA No. 453 of 2012 are also wholly unconvincing."
}
},
{
"from_name": "label",
"id": "23df5e67486a4623a8752ca061b0dfdc",
"to_name": "text",
"type": "labels",
"value": {
"end": 18732,
"labels": [
"RPC"
],
"start": 18664,
"text": "CM No. 13616/2012 in ITA No. 453/2012 is also, therefore, dismissed."
}
},
{
"from_name": "label",
"id": "bc556e0c662841f0ac01ec2d719a83e4",
"to_name": "text",
"type": "labels",
"value": {
"end": 18853,
"labels": [
"RPC"
],
"start": 18732,
"text": "\n 26. With the dismissal of the aforementioned applications, the appeals ITA Nos. 453 and 464 of 2012 are also dismissed."
}
},
{
"from_name": "label",
"id": "0e50355f91b647d0906eaf97e0b6d0b9",
"to_name": "text",
"type": "labels",
"value": {
"end": 18906,
"labels": [
"NONE"
],
"start": 18853,
"text": "\n S. MURALIDHAR, J VIBHU BAKHRU, J AUGUST 24, 2015 dn"
}
}
]
}
] | 1,752 | {
"text": "$~\n* IN THE HIGH COURT OF DELHI AT NEW DELHI\n16.\n+ ITA 453/2012\n\n CIT ..... Appellant\n Through: Mr. Rohit Madan, Senior Standing\n counsel with Mr. Zoheb Hossain and Mr. Akash\n Vajpai, Advocates.\n\n versus\n\n ARVINDER SINGH ..... Respondent\n Through: Mr. Manoj V. George and Ms. Shilpa M.\n George, Advocates.\n\n AND\n\n17.\n+ ITA 464/2012\n\n CIT ..... Appellant\n Through: Mr. Rohit Madan, Senior Standing\n counsel with Mr. Zoheb Hossain and Mr. Akash\n Vajpai, Advocates.\n\n versus\n\n ELEGANT TRAVELS PVT LTD. ..... Respondent\n Through: Mr. Manoj V. George and Ms. Shilpa M.\n George, Advocates.\n\n CORAM:\n HON’BLE DR. JUSTICE S. MURALIDHAR\n HON'BLE MR. JUSTICE VIBHU BAKHRU\n\n ORDER\n% 24.08.2015 CM No. 13614/2010 (for condonation of delay in filing the appeal) & CM No. 13616/2012 (for condonation of delay in re-filing the appeal) in ITA No. 453/2012 CM No. 14085/2012 (for condonation of delay in filing the appeal) in ITA No. 464/2012 1. These are three applications seeking condonation of the delay in filing and re-filing two appeals filed by the Revenue under Section 260A of the Income Tax Act, 1961 („Act‟) challenging the common impugned order dated 5th April 2007 passed by the Income Tax Appellate Tribunal („ITAT‟) in I.T(SS).A.No.352/Del/1997 and I.T(SS).A.No.104/Del/1997 relating to the block period 1st April 1986 to 6th November 1996.\n 2. The background facts are that Elegant Travels Private Limited („ETPL‟) was incorporated on 17th January 1987. It had three Directors of which one was Mr. Arvinder Singh, the Respondent in ITA No. 453/2012. It is stated that ETPL is engaged in the business of travel agents, tour operators and ticketing etc. and had the agency of Indian Airlines and Vayudoot. The ticketing business is stated to have been closed in 1990 consequent upon a change in the policy.\n 3. Search and seizure operations were carried out under Section 132 of the Act on Mr. Buta Singh, the father of Mr. Arvinder Singh, and Group. Notice was issued under Section 158BD of the Act requiring ETPL as well as Mr.\nArvinder Singh to file their respective returns of income. Another similar notice was issued under Section 142(1) of the Act. After the Assessees filed their written submissions, fresh notices were issued to them under Section 143(2) of the Act.\n 4. As far as Mr. Arvinder Singh was concerned, the Assessing Officer („AO‟) completed the assessment under Section 158BC read with Section 113 of the Act on 28th November 1997 and computed the undisclosed income as Rs.1,33,08,737. Aggrieved by the above order, Mr. Arvinder Singh filed an appeal before the ITAT. By the impugned order dated 5th April 2007, the ITAT held that no valid opportunity was granted to the Assessee before making the impugned order of assessment and further that the requisite satisfaction was not recorded by the AO before initiating proceedings under Section 158BD of the Act. The ITAT, therefore, declined to examine the merits.\n 5. As far as ETPL was concerned, by assessment order dated 30th September 1998 the AO completed the assessment and computed the total income of the Assessee as Rs.34,95,760. ETPL also filed an appeal before the ITAT.\nBy the same impugned order dated 5th April 2007, the appeal filed by the ETPL was allowed by the ITAT by setting aside the impugned assessment order on the ground of failure to provide an opportunity to the Assessee and to record satisfaction before initiating proceedings under Section 158BD of the Act.\n 6. The present two appeals were filed on different dates. While ITA No.\n453/2012 appears to have been filed in the first instance on 18 th December 2010, ITA No. 464/2012 appears to have been filed on 14th August 2012.\n 7. Initially in the application CM No. 13614/2010 seeking condonation of delay in filing ITA NO. 453/2012 (CIT v. Arvinder Singh) it was claimed that there was only 22 days' delay in filing the appeal. It was stated in the said application that initially no appeal was preferred against the impugned order dated 5th April 2007 of the ITAT as at that stage “it was considered more appropriate to reframe the assessment.” 8. CM No. 13616/2012 came to be filed in ITA No. 453/2012 seeking to explain the extraordinary delay of 429 days in re-filing the appeal. In this application it is claimed that a copy of the impugned order dated 5th April 2007 of the ITAT was received in the office of the Appellant only on 29th July 2010. The appeal was required to be filed on or before 28 th November 2010 but was filed on 18th December 2010. Consequently, it was asserted that there was only a delay of 22 days. As far as the delay in re-filing was concerned, it was explained that on account of the resignation of the Standing Counsel of the Income Tax Department who had filed the matter in December 2010, the defects pointed out by the Registry could not be attended to. It was only when the appeal of ETPL against the subsequent order of the ITAT dated 16th December 2009 was filed, it was noticed that ITA No. 453/2012 was unattended and it was only thereafter that the objections were removed and the appeal was re-filed.\n 9. The explanation offered for the delay in filing ITA No. 464/2012, in which ETPL was the Respondent, requires to now be noticed. The explanation offered in CM No. 14085/2012 (in ITA No. 464/2012) is that pursuant to the order dated 5th April 2007 of the ITAT setting aside the assessment order, the AO issued a fresh notice under Section 143(2) of the Act and thereafter framed a fresh assessment on 31st December 2008.\nAgainst this assessment order, appeals were filed before the ITAT. By order dated 16th October 2009, the ITAT quashed the assessment on the ground that when in the first round the ITAT had set aside the assessment by its order dated 5th April 2007, no directions had been given to the AO to pass a fresh order. The Revenue appealed against the said order dated 16th October 2009 of the ITAT to this Court by way of ITA No. 2018/2010. It is stated that when ITA No. 2018/2010 was listed before the Court some time in 2010, the Revenue sought leave to file an appeal against the ITAT's first order dated 5th April 2007. Thereafter, the Standing counsel for the Revenue immediately wrote to the Department informing it of the necessity to file an appeal against the impugned order dated 5 th April 2007 of the ITAT. No dates are mentioned in relation to any of the aforementioned events. It is simply stated that the said documents were then made available to the Standing counsel on 10th August 2012 and thereafter the present appeal was drafted. The appeal was filed on 14th August 2012 with a delay of 626 days.\n 10. In CM No. 14085/2012 it is also stated that the impugned order of the ITAT dated 5th April 2007 was received in the office of the Appellant only on 29th July 2010.\n 11. The Court notices that the above assertion, both in CM No. 13616/2012 came to be filed in ITA No. 453/2012 and in CM No. 14085/2012 in ITA No. 464 of 2012 that the order of the ITAT dated 5th April 2007 was received only on 29th July 2010, i.e. after three years and seven months, does not appear to be correct or convincing. The reason is this.\n 12. The Court had by an order dated 31st July 2014 granted the Appellant time to file an additional affidavit explaining “sufficient cause and reasons for the delay in filing the appeal against the order dated 5th April 2007.” In the same order the Court observed “it is the duty of the Appellant to bring on record true and correct facts and justify why and for what reason no appeal was initially preferred against the order dated 5th April 2007; whether the order was accepted by the Revenue at that stage; why the decision was accepted and fresh block assessment order was passed.” Opportunity was also given to the Respondent to file reply to the said affidavit.\n 13. Pursuant to the above order the Appellant filed an additional affidavit on 22nd September 2014. Interestingly, in this additional affidavit (which is actually a submission supported by an affidavit) it is stated inter alia that when ITA No. 2018/2010 (being the appeal of the Revenue against the ITAT's order dated 16th October 2009) was listed for hearing on 28th January 2011 an order was passed by the Court noting the contention of the counsel for the Revenue that there was no impediment for the AO to have passed a fresh assessment order. On that basis, notice was issued in the said appeal. It was stated in the additional affidavit in para 12 as under: \"12.During the course of proceedings in the aforementioned case, it was pointed out by the Counsel for the Revenue to the Department on 28.01.2011,that the Department is under a mistaken belief that ITAT vide order dated 05.04.2007 has remanded the matter to the AO to reframe the assessment after allowing opportunity of being heard to the Assessee.\n This mistaken belief was particularly for the reason that it was the contention of the Assessee before the ITAT that Assessing officer while passing AO violated the principles of natural justice by not providing an opportunity of being heard to the Assessee. The said mistaken belief is also reflected in the CSR recorded by the Department dated 08.02.2010. Copy of the CSR dated 08.02.2010 is attached herewith as ANNEXURE C.\"\n 14. It was further stated in para 13 that “on the basis of the aforementioned advise of the Counsel for the Revenue, the case file along with complete record was handed over to the counsel on 10.08.2012 and appeal before the Hon'ble High Court was filed On 14.08.2012.” 15. Nowhere in the additional affidavit is any explanation offered for the extraordinary delay between 28th January 2011, when counsel for the Revenue is supposed to have advised the Department that an appeal should be filed against the impugned order dated 5th April 2007, and 10th August 2012, when papers were actually entrusted to counsel for the Revenue for filing such an appeal. In other words, for a delay of one year and seven months there is no explanation whatsoever.\n 16. Thereafter in para 14 it is stated that “in the present case the certified copy of the AO dated 5th April 2007 was received by Department/Revenue on 26th June 2007.” Clearly, therefore, the earlier submissions made to the effect that the impugned order dated 5th April 2007 was received only on 29th July 2010 was incorrect. Even otherwise it seems extremely unlikely that it would take the Department over three years and three months to receive a copy of an order of the ITAT in the Department. The very fact that a fresh notice was issued by the AO under Section 143(2) of the Act way back on 1st October 2008 obviously meant that a copy of the order dated 5th April 2007 of the ITAT was received prior to that date. Therefore, for the purposes of these appeals the Court will proceed on the basis of the statement made by the Revenue itself in para 14 of the additional affidavit that it had received a copy of the order dated 5th April 2007 on 26th July 2007 itself.\n 17. Consequently, for computing the delay in filing the present appeals, the limitation should be reckoned from 26th June 2007, as rightly pointed out by the Respondent in its reply to the additional affidavit. The Revenue has a limitation period of 120 days i.e. 4 months to file an appeal under Section 260A of the Act. Therefore, the last date for filing the appeals was 26th October 2007. Keeping that view if the actual dates for filing of the two appeals are taken into consideration then the actual delay works out to far more than what is claimed by the Revenue. As far as ITA No. 453 of 2012 is concerned, the date of filing was 18th December 2010 and the delay works out to 3 years, 5 months and 22 days, i.e. 1271 days. As far as ITA No. 464 of 2012 is concerned, the actual date of filing was 14th August 2012 and the delay works out to 5 years, 1 month and 19 days, i.e. 1876 days.\n 18. That the Revenue itself is confused about the exact days of delay is apparent from the additional affidavit filed by it in ITA No. 464/2012 where it has computed the delay in filing the said appeal as 565 days.\n 19. The purpose of the Court passing the order dated 31 st July 2014 requiring a proper affidavit to be filed by the Revenue was to give it one more opportunity of giving a satisfactory explanation for the extraordinary delay in filing the appeals. Unfortunately, even by way of the additional affidavit dated 14th September 2014, the Revenue has been unable to offer any convincing explanation.\n 20. It was urged by Mr. Rohit Madan, learned Senior Standing counsel for the Revenue, that it was only on account of confusion in the Department on whether the impugned order dated 5th April 2007 of the ITAT could be challenged that there was an extraordinary delay in filing the appeals. As already noticed from the additional affidavit filed by the Revenue on 22 nd September 2014, the Department was informed by counsel way back on 28 th January 2011 that it ought to file appeal against the ITAT's order dated 5th April 2007. Therefore after 28th January 2011, the Department could not claim to be still under any confusion as to the course of action it was expected to take. It is plain that it did not take any urgent action as far as filing ITA No. 464/2012 was concerned till 14th August 2012.\n 21. As far as ITA No. 453/2012 is concerned although it was directed against the same impugned order dated 5th April 2007 of the ITAT, there appears to have been no confusion on the necessity for filing such an appeal.\nThe reason given in CM No. 13614/2012 for the delay is again totally unconvincing. The appeal appears to have been prompted by the ITAT quashing the reassessment order by the order dated 16th October 2009.\nNevertheless, even if one takes the said order of the ITAT as the trigger, the appeal was filed only on 18th December 2010 i.e. more than an year and two months thereafter. Therefore even that delay is not satisfactorily explained.\n 22. In Postmaster General v. Living Media India Ltd. (2012) 3 SCC 563, the Supreme Court has deprecated the casual attitude of government departments in taking steps to file appeals within reasonable time in the following words: \"26. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the person in-charge has filed any explanation for not applying the certified copy within the prescribed period. The other dates mentioned in the affidavit which we have already extracted, clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned. Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps.\n 27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.\n 28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.\n 29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment.\n Condonation of delay is an exception and should not be used as an anticipated benefit for government departments.\n The law shelters everyone under the same light and should not be swirled for the benefit of a few.\n 30. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.\n Accordingly, the appeals are liable to be dismissed on the ground of delay.” 23. In State of Uttar Pradesh v. Amar Nath Yadav (2014) 2 SCC 422 while reiterating the above decision, the Supreme Court declined to condone the delay of 481 days in the State filing a special leave petition against the judgment of the High Court of Allahabad.\n 24. Consequently, the Court is not satisfied with the reasons offered for the extraordinary delay of 1271 days in filing ITA No. 453 of 2012 and the delay of 1876 days in filing ITA No. 464 of 2012. Accordingly CM Nos.\n13614/2010 in ITA No. 453/2012 and CM No. 14085/2012 in ITA No.\n464/2012 are dismissed.\n 25. The reasons for the delay of 426 days in re-filing ITA No. 453 of 2012 are also wholly unconvincing. CM No. 13616/2012 in ITA No. 453/2012 is also, therefore, dismissed.\n 26. With the dismissal of the aforementioned applications, the appeals ITA Nos. 453 and 464 of 2012 are also dismissed.\n S. MURALIDHAR, J VIBHU BAKHRU, J AUGUST 24, 2015 dn "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "42d5727810204db4bd4795c7358b4bca",
"to_name": null,
"type": null,
"value": {
"end": 145,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nCOMMISSIONER OF INCOME-TAX, CALCUTTA\n\nVs.\n\nRESPONDENT:\nSHAILA BEHARI LAL SINGHA\n\nDATE OF JUDGMENT:\n21/08/1969\n\nBENCH:\nSHAH, J.C. (CJ)"
}
},
{
"from_name": null,
"id": "9673a5079ef64659b29a0c05e04e1e32",
"to_name": null,
"type": null,
"value": {
"end": 430,
"labels": [
"PREAMBLE"
],
"start": 145,
"text": "\nBENCH:\nSHAH, J.C. (CJ)\nRAMASWAMI, V.\nGROVER, A.N.\n\nCITATION: 1970 SCR (2) 32\n 1970 AIR 1702\n 1970 SCC (2) 478\n\nACT:\nPractice & Procedure-High Court disposing of reference under\nIncome-tax Act-Manner of disposal.\n\nHEADNOTE:\nThe assessee was a share-holder of a company."
}
},
{
"from_name": null,
"id": "e2182524a0654b3194b5a8b494c7ae8a",
"to_name": null,
"type": null,
"value": {
"end": 1167,
"labels": [
"PREAMBLE"
],
"start": 431,
"text": "The Income-\ntax Appellate Tribunal referred three questions to the High\nCourt namely, (i) whether the amount distributed to the\nassessee out of the amount attributable to land acquisition\ncompensation received by the company was, in the hands of\nthe assessee, receipt of 'dividend' within the meaning of s.\n2(6A) of the Income-tax Act, 1922; (ii) whether the amount\ndistributed to the assessee out of the amount attributable\nto salamis realised by the company for grant of long-term\nleases was a receipt in the hands of the assessee taxable as\nincome from 'other sources'; and (iii) whether the amount\nreferred to in question (ii) was not, in the hands of the\nassessee, a receipt of 'dividend' within the meaning of s.\n2(6A) of the Act."
}
},
{
"from_name": null,
"id": "35f97e389ad84db59c038774246d6cbc",
"to_name": null,
"type": null,
"value": {
"end": 1430,
"labels": [
"PREAMBLE"
],
"start": 1168,
"text": "The High Court, following its earlier\njudgment, answered the questions in the negative and\nobserved that it was agreed between the parties that the\nanswers were subject to the final decision in appeals\nagainst that earlier judgment, pending in the Supreme Court."
}
},
{
"from_name": null,
"id": "68b4f1f20977409e886aa7decd001742",
"to_name": null,
"type": null,
"value": {
"end": 1543,
"labels": [
"PREAMBLE"
],
"start": 1430,
"text": "\nIn appeal to this Court,\n\n HELD: The High Court erred in the manner in which it\ndisposed of the reference."
}
},
{
"from_name": null,
"id": "15ffcd6e69e44e2d93838dfe6d0915fe",
"to_name": null,
"type": null,
"value": {
"end": 1794,
"labels": [
"PREAMBLE"
],
"start": 1543,
"text": "\n\n (1) Even where there was consent of the parties the High\nCourt had to record its answers to the questions referred\nand give its reasons; and such answers would be final and\ncould not be modified by a judgment of this Court in some\nother case."
}
},
{
"from_name": null,
"id": "e2e462bb9b024602bed6c4365656e851",
"to_name": null,
"type": null,
"value": {
"end": 1918,
"labels": [
"PREAMBLE"
],
"start": 1795,
"text": "[34 G--H]\n\n (2) The High Court had to decide on the facts of each\ncase whether any amount of salami was capital gain."
}
},
{
"from_name": null,
"id": "ef7ec902d2284491b13ff33519e685d5",
"to_name": null,
"type": null,
"value": {
"end": 2190,
"labels": [
"PREAMBLE"
],
"start": 1919,
"text": "[35 A]\n\n (3) The High Court had to decide on the facts of each\ncase whether any part of the compensation received for\ncompulsory acquisition of land was capital gain, because,\nthe interest which is statutorily payable on compensation is\nincome and not capital gain."
}
},
{
"from_name": null,
"id": "3bb2526c3486469782a43cfc4e07da0f",
"to_name": null,
"type": null,
"value": {
"end": 2308,
"labels": [
"PREAMBLE"
],
"start": 2191,
"text": "[35 B]\n\n Shamlal Narula v.C.I.T. Punjab, Jammu and Kashmir, H.P.\nand Patiala 53 I.T.R. 151 (S.C.), referred to."
}
},
{
"from_name": null,
"id": "7e4aa270fa2b48dd84437086020a2c9a",
"to_name": null,
"type": null,
"value": {
"end": 2485,
"labels": [
"PREAMBLE"
],
"start": 2317,
"text": "(4) Further, the question whether the receipt from\ncapital gains was income liable to tax from 'other sources'\n(not being dividend) under s. 12 of the Act, was not the\n"
}
},
{
"from_name": null,
"id": "61790bfb3703406c842b5f5b82f4759c",
"to_name": null,
"type": null,
"value": {
"end": 2565,
"labels": [
"PREAMBLE"
],
"start": 2485,
"text": "subject-matter of the appeal pending in this Court against\nthe earlier judgment."
}
},
{
"from_name": null,
"id": "7f0ab2c65d4341e582a839c5f1ba17e6",
"to_name": null,
"type": null,
"value": {
"end": 2572,
"labels": [
"PREAMBLE"
],
"start": 2566,
"text": "[35 E-"
}
},
{
"from_name": null,
"id": "300059e1cff14c0da370bf7f6bb8a5ba",
"to_name": null,
"type": null,
"value": {
"end": 2585,
"labels": [
"PREAMBLE"
],
"start": 2572,
"text": "F]\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "32cae97c550248a7b05ee8a682e8ee12",
"to_name": null,
"type": null,
"value": {
"end": 2658,
"labels": [
"NONE"
],
"start": 2585,
"text": "\n CIVIL APPELLATE JURISDICTION: Civil Appeals No.s. 2276 10 2278 of 1968."
}
},
{
"from_name": null,
"id": "f6a588c03b65426c80c85df3aae08d8f",
"to_name": null,
"type": null,
"value": {
"end": 2803,
"labels": [
"NONE"
],
"start": 2660,
"text": "Appeal by special leave from the judgment and order dated February 23, 1968 of the Calcutta High Court in Income-tax Reference No. 158 of 1964."
}
},
{
"from_name": null,
"id": "99fedef5f8074b85ab497fd3f11ca2ca",
"to_name": null,
"type": null,
"value": {
"end": 3010,
"labels": [
"NONE"
],
"start": 2803,
"text": "\n Jagdish Swarup, Solicitor-General, T.A. Ramachandran, R.N. Sachthey and B.D. Sharma, for the appellant (in all the appeals).\n P. Burman, R. Ghose and Sukumar Ghose, for the respondent (in all the appeals)."
}
},
{
"from_name": null,
"id": "68029976d4cb4349aebeb78340ad27b9",
"to_name": null,
"type": null,
"value": {
"end": 3083,
"labels": [
"NONE"
],
"start": 3010,
"text": "\n The Judgment of the Court was delivered by Shah, Ag. C.J. Shaila Behari"
}
},
{
"from_name": null,
"id": "1a042398f64044cea77e2e46ebd80c5e",
"to_name": null,
"type": null,
"value": {
"end": 3166,
"labels": [
"FAC"
],
"start": 3083,
"text": " Lal Singha hereinafter called 'the assessee'--is a shareholder of a company styled"
}
},
{
"from_name": null,
"id": "bb69d864e2fb471594c9e0032e2c30d5",
"to_name": null,
"type": null,
"value": {
"end": 3202,
"labels": [
"FAC"
],
"start": 3167,
"text": "the Ukhara Estates Zamindaries Ltd."
}
},
{
"from_name": null,
"id": "9825802e948a41459a7bd17e92e0cff6",
"to_name": null,
"type": null,
"value": {
"end": 3595,
"labels": [
"FAC"
],
"start": 3203,
"text": "The following table sets out the amounts of dividend received by the assessee from the Company and the years in respect of which they were received :-- Year of Year of declaration Amount of assessment of dividend dividend 1951-52 1357 B.S. Rs. 37,125/- 1952-53 1358 B.S. Rs. 29,250/- 1953-54 1359 B.S. Rs. 28,125/-"
}
},
{
"from_name": null,
"id": "e25dee6cc6274dcaaddcfeb14c1fb30e",
"to_name": null,
"type": null,
"value": {
"end": 4099,
"labels": [
"FAC"
],
"start": 3596,
"text": "The assessee claimed that out of the amounts set out in the table only Rs. 8,669/- for the year 1357 B.S., Rs. 20,469/- for the year 1358 B.S., and Rs. 21,822/- for the year 1359 B.S. were taxable as dividend, and the remaining amounts were not taxable, since they were declared out of capital gains of the Company which comprised salami or premia received by it as consideration for grant of long-term mining and other leases and as compensation for compulsory acquisition of lands for public purposes."
}
},
{
"from_name": null,
"id": "99a16f981f1949d6881e987933dbde38",
"to_name": null,
"type": null,
"value": {
"end": 4287,
"labels": [
"FAC"
],
"start": 4100,
"text": "The Income-tax Officer brought the entire amount to tax declared as dividend for each of the three years in question and grossed up the amounts under s. 16(2) of the Income-tax Act, 1922."
}
},
{
"from_name": null,
"id": "e1cc6f11be1c4ce298408aab390a4ab4",
"to_name": null,
"type": null,
"value": {
"end": 4546,
"labels": [
"FAC"
],
"start": 4287,
"text": "\n In appeal, the Appellate Assistant Commissioner held that the entire amount for each year was income in the hands of the assessee, but only a part of it being dividend, within the meaning of s. 2(6A) of the Income-tax Act, 1922, was liable to be grossed up."
}
},
{
"from_name": null,
"id": "3f03842694f34a858ff3fef00e4bc3bc",
"to_name": null,
"type": null,
"value": {
"end": 4799,
"labels": [
"RLC"
],
"start": 4547,
"text": "In second appeal, the Appellate Tribunal held that part of the amount distributed which was attributable to salami received by the Company for the grant of longterm leases was not taxable as dividend, but as income of the assessee from \"other sources\"."
}
},
{
"from_name": null,
"id": "49bd6defc9a149058aa7e645383ae3d1",
"to_name": null,
"type": null,
"value": {
"end": 5657,
"labels": [
"FAC"
],
"start": 4799,
"text": "\n The Tribunal then referred under s. 66(1) of the Indian Income-tax Act, 1922, three questions to the High Court of Calcutta the first two questions were referred at the instance of the assessee, and the third question at the instance of the Commissioner :-- \"(1) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the distribution to the assessee of the amount attributable to land acquisition compensation received by the Ukhara Estate Zamindaries (P) Ltd., after the 31st March, 1948, was in the hands of the assessee, receipt of dividend within the meaning of s. 2(6A) of the Indian Income-tax Act, 1922?\n (2) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the receipt by the assessee of the amount attributable to salamis realized by the Ukhara Estate."
}
},
{
"from_name": null,
"id": "ae2376b7fb7f4f85a82108a71614d92c",
"to_name": null,
"type": null,
"value": {
"end": 6225,
"labels": [
"FAC"
],
"start": 5658,
"text": "Zamindaries (P) Ltd. for grant of long-term leases after the 31st March, 1948, was a receipt of income in the hands of the assessee and taxable as the income of the assessee from other sources ?\n (3) Whether, on the facts and in the circumstances of the case, the distribution to the assessee of the amount attributable to, salamis realised by the Ukhara Estate Zamindaries (P) Ltd. for grant of long- term leases after the 31st March, 1948, was not in the hands of the assessee receipt of dividend within the meaning of s. 2(6A) of the Indian Income-tax ACt, 1922 ?\""
}
},
{
"from_name": null,
"id": "9d5918974f3446eab7ab8ca92bd3d9b6",
"to_name": null,
"type": null,
"value": {
"end": 6386,
"labels": [
"RLC"
],
"start": 6225,
"text": "\nThe High Court recorded answers on all the questions in the negative, following their earlier judgments in Income-tax References Nos. 131 of 1961 and 3 of 1964."
}
},
{
"from_name": null,
"id": "6fc3d4d2c83e498a82ed0f052a4a0762",
"to_name": null,
"type": null,
"value": {
"end": 6670,
"labels": [
"RLC"
],
"start": 6387,
"text": "The High Court however observed that it was agreed between the parties that the answers in the negative on all the questions were subject to the final decision in appeals filed against the orders made in Income-tax References Nos. 131 of 1961 and 3 of 1964 and pending in this Court."
}
},
{
"from_name": null,
"id": "5555801497ba48f19f09f083de1aff1e",
"to_name": null,
"type": null,
"value": {
"end": 6816,
"labels": [
"ANALYSIS"
],
"start": 6670,
"text": "\n In our judgment, even with the consent of the parties, the learned Judges could not dispose of the reference in the manner they have done."
}
},
{
"from_name": null,
"id": "89c71c8c68f8408295247b2970f002f8",
"to_name": null,
"type": null,
"value": {
"end": 6962,
"labels": [
"ANALYSIS"
],
"start": 6817,
"text": "They had to record their answers and their reasons in support of the answers: those answers were, insofar as the High Court was concerned, final."
}
},
{
"from_name": null,
"id": "c1cbc1681981428ba822f3363dba1df3",
"to_name": null,
"type": null,
"value": {
"end": 7056,
"labels": [
"ANALYSIS"
],
"start": 6963,
"text": "They could not stand modified by reason of any judgment in other cases decided by this Court."
}
},
{
"from_name": null,
"id": "9f45002d124243f1856b64a84cbacb75",
"to_name": null,
"type": null,
"value": {
"end": 7183,
"labels": [
"ANALYSIS"
],
"start": 7057,
"text": "Apart from the technical defect that the High Court has not recorded final answers, the order is subject to another infirmity."
}
},
{
"from_name": null,
"id": "86e7ffab1dae491eb92f0a14321e7661",
"to_name": null,
"type": null,
"value": {
"end": 7387,
"labels": [
"ANALYSIS"
],
"start": 7184,
"text": "The High Court had to decide on the facts of each casewhether any amount of salami was capital gain, and whether any part of the compensation received for compulsory acquisition of land was capital gain."
}
},
{
"from_name": null,
"id": "b425ac3429a44ec098da312668b721c8",
"to_name": null,
"type": null,
"value": {
"end": 7794,
"labels": [
"PRE_RELIED"
],
"start": 7388,
"text": "Prima facie, receipt of compensation for land compulsorily acquired which forms part of the fixed assets of a Company is of a capital nature: Senairam Doongarmall v. Commissioner of Income-tax, Assam(1), but interest which is statutorily payable on compensation is income and is not capital gain: Dr. Shamlal Narula v. Commissioner of Income-tax, Punjab, Jammu and Kashmir, Himachal Pradesh and Patiala(2)."
}
},
{
"from_name": null,
"id": "62059cad008447118f06a4b56a59f998",
"to_name": null,
"type": null,
"value": {
"end": 7913,
"labels": [
"ANALYSIS"
],
"start": 7795,
"text": "The assumption made that the entire amount of compensation is deemed to be capital gain cannot therefore be sustained."
}
},
{
"from_name": null,
"id": "c8e755a5b26647b6ae82c0ff0e19c028",
"to_name": null,
"type": null,
"value": {
"end": 8235,
"labels": [
"ANALYSIS"
],
"start": 7913,
"text": "\n It is also, necessary to observe that in Appeals Nos.\n737 to 739 of 1968 and 13 of 1968 and 1621 of 1968 which arose out of Reference No. 131 of 1961 and other references, decided by this Court on July 25, 1969, the only question of law raised was whether distribution of dividend out of capital gains was taxable."
}
},
{
"from_name": null,
"id": "bb1621fce2e5421db1165b19aa2b89be",
"to_name": null,
"type": null,
"value": {
"end": 8337,
"labels": [
"ANALYSIS"
],
"start": 8236,
"text": "The scope of enquiry in this group of cases, in view of the form of the questions, is more extensive."
}
},
{
"from_name": null,
"id": "cc56337168ad4516b628e2bf51ec6aa7",
"to_name": null,
"type": null,
"value": {
"end": 8818,
"labels": [
"ANALYSIS"
],
"start": 8338,
"text": "In appeals Nos. 737 to 739 of 1968 we held that, having regard to the Explanation to s. 2(6A) capital gains arising after 31st day of March, 1948 (and before the 1st day of April, 1956) were not part of accumulated profits, and if dividend be distributed to the shareholders of the Company out of those capital gains, to' the extent of the distribution out of the capital gains the dividend must be deemed exempt from liability to tax under s. 12 as dividend income liable to tax."
}
},
{
"from_name": null,
"id": "73c5483673d647a29b4a67e7343bba9e",
"to_name": null,
"type": null,
"value": {
"end": 9046,
"labels": [
"RATIO"
],
"start": 8819,
"text": "In that case we could not consider whether the receipt from the capital gains was still income liable to tax from \"other sources\" (not being dividend) under s. 12 of the Indian Income-tax Act, for no such question was referred."
}
},
{
"from_name": null,
"id": "afc7a9a5f2ee4aa78d3ed5eea84eec47",
"to_name": null,
"type": null,
"value": {
"end": 9106,
"labels": [
"RATIO"
],
"start": 9047,
"text": "But that question has been expressly referred in this case."
}
},
{
"from_name": null,
"id": "912d8cb6fd3544aea8be167dc1403ff9",
"to_name": null,
"type": null,
"value": {
"end": 9239,
"labels": [
"RPC"
],
"start": 9108,
"text": "The order passed by the High Court is therefore set aside and the case is remanded to the High Court for disposal according to law."
}
},
{
"from_name": null,
"id": "9c5f79854de74eaeaa1b6eae6689bbee",
"to_name": null,
"type": null,
"value": {
"end": 9289,
"labels": [
"RPC"
],
"start": 9240,
"text": "There will be no order as to costs in this Court."
}
},
{
"from_name": null,
"id": "7d7508a784c94d62845243d6b1dd5dd5",
"to_name": null,
"type": null,
"value": {
"end": 9346,
"labels": [
"RPC"
],
"start": 9290,
"text": "Costs in the High Court will be costs in the references."
}
},
{
"from_name": null,
"id": "8b70944ae85644e6b979d3eebb642788",
"to_name": null,
"type": null,
"value": {
"end": 9354,
"labels": [
"RPC"
],
"start": 9346,
"text": "\n V.P.S."
}
},
{
"from_name": null,
"id": "3cfe01c51c474c53a0dbb5a1b5b13fc4",
"to_name": null,
"type": null,
"value": {
"end": 9452,
"labels": [
"NONE"
],
"start": 9355,
"text": " Appeal allowed and case remanded- (1) 42 I.T.R. 392.\n (2) 53 I.T.R. 151 (S.C.)"
}
}
]
}
] | 4,156 | {
"text": "PETITIONER:\nCOMMISSIONER OF INCOME-TAX, CALCUTTA\n\nVs.\n\nRESPONDENT:\nSHAILA BEHARI LAL SINGHA\n\nDATE OF JUDGMENT:\n21/08/1969\n\nBENCH:\nSHAH, J.C. (CJ)\nBENCH:\nSHAH, J.C. (CJ)\nRAMASWAMI, V.\nGROVER, A.N.\n\nCITATION: 1970 SCR (2) 32\n 1970 AIR 1702\n 1970 SCC (2) 478\n\nACT:\nPractice & Procedure-High Court disposing of reference under\nIncome-tax Act-Manner of disposal.\n\nHEADNOTE:\nThe assessee was a share-holder of a company. The Income-\ntax Appellate Tribunal referred three questions to the High\nCourt namely, (i) whether the amount distributed to the\nassessee out of the amount attributable to land acquisition\ncompensation received by the company was, in the hands of\nthe assessee, receipt of 'dividend' within the meaning of s.\n2(6A) of the Income-tax Act, 1922; (ii) whether the amount\ndistributed to the assessee out of the amount attributable\nto salamis realised by the company for grant of long-term\nleases was a receipt in the hands of the assessee taxable as\nincome from 'other sources'; and (iii) whether the amount\nreferred to in question (ii) was not, in the hands of the\nassessee, a receipt of 'dividend' within the meaning of s.\n2(6A) of the Act. The High Court, following its earlier\njudgment, answered the questions in the negative and\nobserved that it was agreed between the parties that the\nanswers were subject to the final decision in appeals\nagainst that earlier judgment, pending in the Supreme Court.\nIn appeal to this Court,\n\n HELD: The High Court erred in the manner in which it\ndisposed of the reference.\n\n (1) Even where there was consent of the parties the High\nCourt had to record its answers to the questions referred\nand give its reasons; and such answers would be final and\ncould not be modified by a judgment of this Court in some\nother case. [34 G--H]\n\n (2) The High Court had to decide on the facts of each\ncase whether any amount of salami was capital gain. [35 A]\n\n (3) The High Court had to decide on the facts of each\ncase whether any part of the compensation received for\ncompulsory acquisition of land was capital gain, because,\nthe interest which is statutorily payable on compensation is\nincome and not capital gain. [35 B]\n\n Shamlal Narula v.C.I.T. Punjab, Jammu and Kashmir, H.P.\nand Patiala 53 I.T.R. 151 (S.C.), referred to.\n\n (4) Further, the question whether the receipt from\ncapital gains was income liable to tax from 'other sources'\n(not being dividend) under s. 12 of the Act, was not the\nsubject-matter of the appeal pending in this Court against\nthe earlier judgment. [35 E-F]\n\nJUDGMENT:\n CIVIL APPELLATE JURISDICTION: Civil Appeals No.s. 2276 10 2278 of 1968.\n Appeal by special leave from the judgment and order dated February 23, 1968 of the Calcutta High Court in Income-tax Reference No. 158 of 1964.\n Jagdish Swarup, Solicitor-General, T.A. Ramachandran, R.N. Sachthey and B.D. Sharma, for the appellant (in all the appeals).\n P. Burman, R. Ghose and Sukumar Ghose, for the respondent (in all the appeals).\n The Judgment of the Court was delivered by Shah, Ag. C.J. Shaila Behari Lal Singha hereinafter called 'the assessee'--is a shareholder of a company styled the Ukhara Estates Zamindaries Ltd. The following table sets out the amounts of dividend received by the assessee from the Company and the years in respect of which they were received :-- Year of Year of declaration Amount of assessment of dividend dividend 1951-52 1357 B.S. Rs. 37,125/- 1952-53 1358 B.S. Rs. 29,250/- 1953-54 1359 B.S. Rs. 28,125/- The assessee claimed that out of the amounts set out in the table only Rs. 8,669/- for the year 1357 B.S., Rs. 20,469/- for the year 1358 B.S., and Rs. 21,822/- for the year 1359 B.S. were taxable as dividend, and the remaining amounts were not taxable, since they were declared out of capital gains of the Company which comprised salami or premia received by it as consideration for grant of long-term mining and other leases and as compensation for compulsory acquisition of lands for public purposes. The Income-tax Officer brought the entire amount to tax declared as dividend for each of the three years in question and grossed up the amounts under s. 16(2) of the Income-tax Act, 1922.\n In appeal, the Appellate Assistant Commissioner held that the entire amount for each year was income in the hands of the assessee, but only a part of it being dividend, within the meaning of s. 2(6A) of the Income-tax Act, 1922, was liable to be grossed up. In second appeal, the Appellate Tribunal held that part of the amount distributed which was attributable to salami received by the Company for the grant of longterm leases was not taxable as dividend, but as income of the assessee from \"other sources\".\n The Tribunal then referred under s. 66(1) of the Indian Income-tax Act, 1922, three questions to the High Court of Calcutta the first two questions were referred at the instance of the assessee, and the third question at the instance of the Commissioner :-- \"(1) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the distribution to the assessee of the amount attributable to land acquisition compensation received by the Ukhara Estate Zamindaries (P) Ltd., after the 31st March, 1948, was in the hands of the assessee, receipt of dividend within the meaning of s. 2(6A) of the Indian Income-tax Act, 1922?\n (2) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the receipt by the assessee of the amount attributable to salamis realized by the Ukhara Estate. Zamindaries (P) Ltd. for grant of long-term leases after the 31st March, 1948, was a receipt of income in the hands of the assessee and taxable as the income of the assessee from other sources ?\n (3) Whether, on the facts and in the circumstances of the case, the distribution to the assessee of the amount attributable to, salamis realised by the Ukhara Estate Zamindaries (P) Ltd. for grant of long- term leases after the 31st March, 1948, was not in the hands of the assessee receipt of dividend within the meaning of s. 2(6A) of the Indian Income-tax ACt, 1922 ?\"\nThe High Court recorded answers on all the questions in the negative, following their earlier judgments in Income-tax References Nos. 131 of 1961 and 3 of 1964. The High Court however observed that it was agreed between the parties that the answers in the negative on all the questions were subject to the final decision in appeals filed against the orders made in Income-tax References Nos. 131 of 1961 and 3 of 1964 and pending in this Court.\n In our judgment, even with the consent of the parties, the learned Judges could not dispose of the reference in the manner they have done. They had to record their answers and their reasons in support of the answers: those answers were, insofar as the High Court was concerned, final. They could not stand modified by reason of any judgment in other cases decided by this Court. Apart from the technical defect that the High Court has not recorded final answers, the order is subject to another infirmity. The High Court had to decide on the facts of each casewhether any amount of salami was capital gain, and whether any part of the compensation received for compulsory acquisition of land was capital gain. Prima facie, receipt of compensation for land compulsorily acquired which forms part of the fixed assets of a Company is of a capital nature: Senairam Doongarmall v. Commissioner of Income-tax, Assam(1), but interest which is statutorily payable on compensation is income and is not capital gain: Dr. Shamlal Narula v. Commissioner of Income-tax, Punjab, Jammu and Kashmir, Himachal Pradesh and Patiala(2). The assumption made that the entire amount of compensation is deemed to be capital gain cannot therefore be sustained.\n It is also, necessary to observe that in Appeals Nos.\n737 to 739 of 1968 and 13 of 1968 and 1621 of 1968 which arose out of Reference No. 131 of 1961 and other references, decided by this Court on July 25, 1969, the only question of law raised was whether distribution of dividend out of capital gains was taxable. The scope of enquiry in this group of cases, in view of the form of the questions, is more extensive. In appeals Nos. 737 to 739 of 1968 we held that, having regard to the Explanation to s. 2(6A) capital gains arising after 31st day of March, 1948 (and before the 1st day of April, 1956) were not part of accumulated profits, and if dividend be distributed to the shareholders of the Company out of those capital gains, to' the extent of the distribution out of the capital gains the dividend must be deemed exempt from liability to tax under s. 12 as dividend income liable to tax. In that case we could not consider whether the receipt from the capital gains was still income liable to tax from \"other sources\" (not being dividend) under s. 12 of the Indian Income-tax Act, for no such question was referred. But that question has been expressly referred in this case.\n The order passed by the High Court is therefore set aside and the case is remanded to the High Court for disposal according to law. There will be no order as to costs in this Court. Costs in the High Court will be costs in the references.\n V.P.S. Appeal allowed and case remanded- (1) 42 I.T.R. 392.\n (2) 53 I.T.R. 151 (S.C.) "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "344c7345f37c49e69665bd89f5dec5ac",
"to_name": null,
"type": null,
"value": {
"end": 133,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nSALES TAX OFFICER, SPECIAL CIRCLE, ERNAKULAM & ANR.\n\nVs.\n\nRESPONDENT:\nTATA OIL MILLS CO. LTD.\n\nDATE OF JUDGMENT29/07/1975"
}
},
{
"from_name": null,
"id": "367708b707224098adf28c24367297a5",
"to_name": null,
"type": null,
"value": {
"end": 637,
"labels": [
"PREAMBLE"
],
"start": 133,
"text": "\n\nBENCH:\nKHANNA, HANS RAJ\nBENCH:\nKHANNA, HANS RAJ\nBEG, M. HAMEEDULLAH\nGUPTA, A.C.\n\nCITATION: 1976 SCR (1) 152\n 1975 AIR 1991\n 1975 SCC (2) 304\n\nACT:\n Kerala Genera Sales Tax Act (15 of 1963) s. 22(3) and\n\nKerala General Sales Tax Rules, 1963, 9(1) Constitution of\nIndia 1950, VII Schedule, List II, Entry 54-Section\nproviding for payment to Govt. of tax wrongly collected-if\nultra vires.\n\nHEADNOTE:\n According to r. 9(1) of the Kerala General Sales-tax\n\nRules framed under."
}
},
{
"from_name": null,
"id": "5e647f65d9b245759ba935b75a160f25",
"to_name": null,
"type": null,
"value": {
"end": 881,
"labels": [
"PREAMBLE"
],
"start": 638,
"text": "the Kerala General Sales-tax Act, 1963,\nin determining the taxable turnover of a dealer the excise\nduty, if any, paid by the dealer to the Government of Kerala\nor to the Central Government in respect of the goods sold by\nhim shall be deducted."
}
},
{
"from_name": null,
"id": "91ecf9db1b794d6ab511121a2baacae9",
"to_name": null,
"type": null,
"value": {
"end": 917,
"labels": [
"PREAMBLE"
],
"start": 882,
"text": "Section ,22(3) of the Act provides\n"
}
},
{
"from_name": null,
"id": "30a3440f42d341a9928b2fd8cfa6ded4",
"to_name": null,
"type": null,
"value": {
"end": 1088,
"labels": [
"PREAMBLE"
],
"start": 917,
"text": "that if any dealer or person collects tax on transactions\nnot liable to tax under the Act or in excess of the tax\nleviable under the Act such dealer or person shall pay to"
}
},
{
"from_name": null,
"id": "5f30f53a699045bb9dd8c723fb238bc0",
"to_name": null,
"type": null,
"value": {
"end": 1103,
"labels": [
"PREAMBLE"
],
"start": 1088,
"text": "\nthe Government"
}
},
{
"from_name": null,
"id": "6f53f5ca8ff545c7a48463162d6c6d1b",
"to_name": null,
"type": null,
"value": {
"end": 1225,
"labels": [
"PREAMBLE"
],
"start": 1103,
"text": ". in addition to the tax payable, the amount\nso collected unless it was refunded to the person from whom\nit was collected."
}
},
{
"from_name": null,
"id": "5f8301cbcda8467dbde80732007e3207",
"to_name": null,
"type": null,
"value": {
"end": 1370,
"labels": [
"PREAMBLE"
],
"start": 1225,
"text": "\n\n The respondent deducted the sum paid by it as excise\nduty from its total turnover for the purpose of determining\nthe taxable turnover."
}
},
{
"from_name": null,
"id": "ef2352888a124adc9d9efcc0590d4e3c",
"to_name": null,
"type": null,
"value": {
"end": 1419,
"labels": [
"PREAMBLE"
],
"start": 1371,
"text": "The respondent, however, when it sold\nthe goods."
}
},
{
"from_name": null,
"id": "074afe356da3410686edfcc7b1af5c43",
"to_name": null,
"type": null,
"value": {
"end": 1565,
"labels": [
"PREAMBLE"
],
"start": 1420,
"text": "had collected, sales-tax from the purchasers on\nthe invoice prices without deducting therefrom the excise\nduty paid in respect of the said goods."
}
},
{
"from_name": null,
"id": "0d787e9bd1b84c8085356cde15ecd411",
"to_name": null,
"type": null,
"value": {
"end": 1684,
"labels": [
"PREAMBLE"
],
"start": 1566,
"text": "This resulted in the\nrespondent realising a sum in excess of the sales-tax\npayable in respect of the goods sold by it."
}
},
{
"from_name": null,
"id": "b9de4ff7f66a4074af6a6bd67ebfd0a5",
"to_name": null,
"type": null,
"value": {
"end": 1795,
"labels": [
"PREAMBLE"
],
"start": 1685,
"text": "The Sales-tax\nofficer held that the respondent was liable to pay that\namount to the Government under s. 22(3)."
}
},
{
"from_name": null,
"id": "8c5c2387759a44f49785f3b90b6bf7a0",
"to_name": null,
"type": null,
"value": {
"end": 2041,
"labels": [
"PREAMBLE"
],
"start": 1796,
"text": "The writ petition\nfiled by the respondent was allowed by the High Court on the\nground that s. 22(3) was not covered by Entry 54 of the\nState List in the VII Schedule to the Constitution, and\nhence, beyond the competence of the Slate Legislature."
}
},
{
"from_name": null,
"id": "3913b4350c3643d1baed2c75436be683",
"to_name": null,
"type": null,
"value": {
"end": 2088,
"labels": [
"PREAMBLE"
],
"start": 2041,
"text": "\n\n Dismissing the appeal to this Court."
}
},
{
"from_name": null,
"id": "c100941fbfd0425aa00f57c8db4b720c",
"to_name": null,
"type": null,
"value": {
"end": 2244,
"labels": [
"PREAMBLE"
],
"start": 2088,
"text": "\n^\n\n HELD: (1) Entry 54 empowers the State Legislatures to\nmake laws, except in certain cases, in respect of taxes on\nthe sale or purchase of goods."
}
},
{
"from_name": null,
"id": "a4f50127202747bc8291f97d8d541e6d",
"to_name": null,
"type": null,
"value": {
"end": 2313,
"labels": [
"PREAMBLE"
],
"start": 2245,
"text": "As long as the law relates to\ntaxes on the sale or purchase of goods"
}
},
{
"from_name": null,
"id": "6aca2dfc8a3642c79e2152e425501e44",
"to_name": null,
"type": null,
"value": {
"end": 2364,
"labels": [
"PREAMBLE"
],
"start": 2313,
"text": ", it would be within\ntheir- legislative competence."
}
},
{
"from_name": null,
"id": "675e1bb26dcc49f7b51c3778ef80ae6b",
"to_name": null,
"type": null,
"value": {
"end": 2403,
"labels": [
"PREAMBLE"
],
"start": 2365,
"text": "But, it would not be\n\npermissible for."
}
},
{
"from_name": null,
"id": "eac72bd975a54a06a6f1c91d5f34fbdb",
"to_name": null,
"type": null,
"value": {
"end": 2667,
"labels": [
"PREAMBLE"
],
"start": 2404,
"text": "the State legislature to enact a law under\nEntry 54 for recovery by the State of an amount which could\nnot be recovered as sales-tax or purchase-tax in accordance\nwith the law on the subject and which was wrongly realised\nby a dealer as sales-tax or purchase-tax."
}
},
{
"from_name": null,
"id": "c37ebd8cf7f94851830af0154d4dfd66",
"to_name": null,
"type": null,
"value": {
"end": 2846,
"labels": [
"PREAMBLE"
],
"start": 2668,
"text": "Such a l.. would\nnot be a law relating to tax of the sale or purchase of\ngoods but would be one in respect of an amount wrongly\nrealised by a dealer as sales-tax or purchase-tax."
}
},
{
"from_name": null,
"id": "c109fa85767c4769b4f0a8e9f19a71ac",
"to_name": null,
"type": null,
"value": {
"end": 2855,
"labels": [
"PREAMBLE"
],
"start": 2847,
"text": "[1 55A-C"
}
},
{
"from_name": null,
"id": "286c62fd2baf48728f432d38c9e2106d",
"to_name": null,
"type": null,
"value": {
"end": 2987,
"labels": [
"PREAMBLE"
],
"start": 2855,
"text": "]\n\n (2) The ambit of ancillary or incidental power would\nnot go to the extent of permitting the Legislature to\nprovide that."
}
},
{
"from_name": null,
"id": "e968bc692ef54bfb87cfbdd14dce9fd7",
"to_name": null,
"type": null,
"value": {
"end": 3128,
"labels": [
"PREAMBLE"
],
"start": 2988,
"text": "though the amount collected, may be wrongly,\nbe way of tax,, was not tax, it shall still be paid over to\nthe Government as if it were a tax."
}
},
{
"from_name": null,
"id": "a1162d3a3e044e5baddf5285bf4b9c99",
"to_name": null,
"type": null,
"value": {
"end": 3304,
"labels": [
"PREAMBLE"
],
"start": 3129,
"text": "[156D-E]\n\n (3) The fact that the amount realised is in excess of\nthe tax leviable and not as amount which was not at all\npayable as tax, would not make any difference."
}
},
{
"from_name": null,
"id": "a20f6e538f28416884caca6c40a70195",
"to_name": null,
"type": null,
"value": {
"end": 3366,
"labels": [
"PREAMBLE"
],
"start": 3305,
"text": "Any amount\nrealised by a dealer in excess of the tax leviable"
}
},
{
"from_name": null,
"id": "cac8db36e02a490a957c3776528c7f17",
"to_name": null,
"type": null,
"value": {
"end": 3512,
"labels": [
"PREAMBLE"
],
"start": 3366,
"text": ", stands,\nfor the purpose of determining the legislative competence\nunder Entry 54, on the same footing as an amount not due as\ntax under the Act."
}
},
{
"from_name": null,
"id": "9d1a307c341e46cd84a4f774efb67649",
"to_name": null,
"type": null,
"value": {
"end": 3586,
"labels": [
"PREAMBLE"
],
"start": 3513,
"text": "Tax, according to s. 2(xxiv) of the Act,\nmeans tax payable under the Act."
}
},
{
"from_name": null,
"id": "f1962e06c58a4868a89d47a3ab8a4e58",
"to_name": null,
"type": null,
"value": {
"end": 3710,
"labels": [
"PREAMBLE"
],
"start": 3587,
"text": "This necessarily means that\neverything outside it, collected by the dealer. would be an\nexaction not authorised by the Act."
}
},
{
"from_name": null,
"id": "eb75bdcdafdb482a9eaa7ce30cc80dda",
"to_name": null,
"type": null,
"value": {
"end": 4205,
"labels": [
"PREAMBLE"
],
"start": 3711,
"text": "The amount which was\nrealised by the respondent in excess of what was due as tax\ncannot be held to be tax, because, such excess amount was\nnot tax payable under the Act. If the State Legislature\ncannot make a law under Entry 54 directing payment to the\nState of any amount collected as tax on transactions not\nliable to lax under the Act, it would likewise be\nincompetent to make a law directing payment to the State of\nan amount realised by a dealer in excess of the tax payable\nunder the Act."
}
},
{
"from_name": null,
"id": "d17ffd3c0879409baa362f843e60d3d6",
"to_name": null,
"type": null,
"value": {
"end": 4282,
"labels": [
"PREAMBLE"
],
"start": 4206,
"text": "[157G-158C]\n R. Abdul Quader & co. v. Sales Tax Officer , Hyderabad\n"
}
},
{
"from_name": null,
"id": "ebb0437be5404fc1b8ce5269b6541f08",
"to_name": null,
"type": null,
"value": {
"end": 4342,
"labels": [
"PREAMBLE"
],
"start": 4282,
"text": "[1964] SCR 867 and Ashoka Marketing Ltd. v. State of Bihar &"
}
},
{
"from_name": null,
"id": "44f43993f4b940b0839e6ff80ea484d3",
"to_name": null,
"type": null,
"value": {
"end": 4372,
"labels": [
"PREAMBLE"
],
"start": 4343,
"text": "Anr. [1970] SCR 455 followed."
}
},
{
"from_name": null,
"id": "1e82c4dc9d7c44c69c18b904b4bb6dd5",
"to_name": null,
"type": null,
"value": {
"end": 4383,
"labels": [
"PREAMBLE"
],
"start": 4374,
"text": "JUDGMENT:"
}
},
{
"from_name": null,
"id": "c7a5308acd654841a7fca991fdd88a65",
"to_name": null,
"type": null,
"value": {
"end": 4399,
"labels": [
"NONE"
],
"start": 4383,
"text": "\n CIVIL."
}
},
{
"from_name": null,
"id": "ce94959760e24287ad1a6491fc4ea4a3",
"to_name": null,
"type": null,
"value": {
"end": 4461,
"labels": [
"NONE"
],
"start": 4400,
"text": "APPELLATE JURISDICTION: Civil Appeal Nos. 1988- 1989 of 1970."
}
},
{
"from_name": null,
"id": "6da84b13dc42475e953e2c67e01b423d",
"to_name": null,
"type": null,
"value": {
"end": 4584,
"labels": [
"NONE"
],
"start": 4471,
"text": "From the Judgment and order dated the 29th day of October, 1968 of the Kerala High Court in W.P. No. 156 of 1967."
}
},
{
"from_name": null,
"id": "c63fba1592b6451f9fc8361d805b1289",
"to_name": null,
"type": null,
"value": {
"end": 4826,
"labels": [
"NONE"
],
"start": 4584,
"text": "\n V. A. Seiyed Muhamad and K. M. K. Nair, for the appellant (In C.A.No. 1988/70.\n K. M. K. Nair, for the appellant (In C.A. No. 1989/70) G. B. Pai, A. G. Meneses, for the respondent.\n The Judgment of the Court was delivered by KHANNA,"
}
},
{
"from_name": null,
"id": "38dae26bf1b34a8a859f17394e9ffe9f",
"to_name": null,
"type": null,
"value": {
"end": 5366,
"labels": [
"RLC"
],
"start": 4827,
"text": "J.-This judgment would dispose of civil appeals No. 1989 and 1989 of 1970, Filed on certificate against the judgment of the Kerala High Court, whereby that court held that it was beyond the competence of the State Legislature to enact law contained in sub section (3) of section 22 of the Kerala General Sales Tax Act, 1963 (Act 15 of 1963) (hereinafter referred to as the Act) in so far as it related to payment of an amount collected as tax on transactions not liable to tax under the Act or in excess of the tax leviable under the. Act."
}
},
{
"from_name": null,
"id": "86b3d4a591754c72919f604828f7b45d",
"to_name": null,
"type": null,
"value": {
"end": 5439,
"labels": [
"FAC"
],
"start": 5366,
"text": "\n We may now set out the facts giving rise to one of the appeals."
}
},
{
"from_name": null,
"id": "4f2039a7df474764850529b612b2122d",
"to_name": null,
"type": null,
"value": {
"end": 5537,
"labels": [
"FAC"
],
"start": 5440,
"text": "Both the learned counsel are agreed that the decision in that would also govern the other appeal."
}
},
{
"from_name": null,
"id": "1e049d80878c48c186debdf4cc9346fd",
"to_name": null,
"type": null,
"value": {
"end": 5627,
"labels": [
"FAC"
],
"start": 5537,
"text": "\n Under section 5 of the Act, tax is payable by a dealer on his tax able turnover."
}
},
{
"from_name": null,
"id": "f36f3837b05643baa2cc5adde7f3e798",
"to_name": null,
"type": null,
"value": {
"end": 5877,
"labels": [
"FAC"
],
"start": 5628,
"text": "\"Taxable turnover`' is defined in section 2(xxv) of the Act as the turnover on which a dealer is liable to pay tax as determined after making such deductions from his total turnover and in such manner as may be prescribed by the rules under the Act."
}
},
{
"from_name": null,
"id": "30b881f4115942cc91e0980cd78ee3af",
"to_name": null,
"type": null,
"value": {
"end": 6034,
"labels": [
"FAC"
],
"start": 5878,
"text": "It does not, however, include the turnover of purchase or sale in the course of inter-State trade or commerce or in the course of export or import of goods."
}
},
{
"from_name": null,
"id": "922f941be892482db62659bd24e4931a",
"to_name": null,
"type": null,
"value": {
"end": 6172,
"labels": [
"FAC"
],
"start": 6035,
"text": "The Kerala General Sales Tax Rules have been framed be the State Government in exercise of the powers conferred by section 57 of the Act."
}
},
{
"from_name": null,
"id": "71ceb25db25e4d39be06a30843c27a67",
"to_name": null,
"type": null,
"value": {
"end": 6475,
"labels": [
"FAC"
],
"start": 6173,
"text": "According to clause (i) of rule 9 of the sail rules. in determining the taxable turnover the following amount shall be deducted from the total turnover of the dealer: \"the excise duty, if any paid by the dealer to the Government of Kerala or the Central Government in respect of the goods sold by him\"."
}
},
{
"from_name": null,
"id": "6563cbe7a5fd43c1b6b7015870535987",
"to_name": null,
"type": null,
"value": {
"end": 6621,
"labels": [
"FAC"
],
"start": 6476,
"text": "It may be stated that clause (i) was omitted subsequently but we are concerned with the period when that clause was an integral part of the rule."
}
},
{
"from_name": null,
"id": "2a7e2eb9f1734a9794fa9b3113f5e18f",
"to_name": null,
"type": null,
"value": {
"end": 6735,
"labels": [
"FAC"
],
"start": 6621,
"text": "\n The respondent is an incorporated company engaged in the manufacture and sale of soaps, toilets and other goods."
}
},
{
"from_name": null,
"id": "49bef46e041446789f20d781bbf2464d",
"to_name": null,
"type": null,
"value": {
"end": 6943,
"labels": [
"FAC"
],
"start": 6736,
"text": "The respondent's accounts disclosed that it had collected from the persons to whom it sold goods a sum of Rs.\n30,591.71 as sales tax in excess of the tax which the respondent was liable to pay under the Act."
}
},
{
"from_name": null,
"id": "41e3a179326d4e58ae348b203a7b5968",
"to_name": null,
"type": null,
"value": {
"end": 7108,
"labels": [
"FAC"
],
"start": 6944,
"text": "The respondent, it would appear, paid Rs. 6,62,958 as excise duty and deducted the same from its total turnover for the purpose of determining the taxable turnover."
}
},
{
"from_name": null,
"id": "895f494494d240f9b637197e179d9a18",
"to_name": null,
"type": null,
"value": {
"end": 7304,
"labels": [
"FAC"
],
"start": 7109,
"text": "When, however, the respondent company sold thegoods it collected sales tax from the purchasers on the invoice price without deducting there from the excise duty paid in respect of the said goods."
}
},
{
"from_name": null,
"id": "75883d07c462457d8f8f2a2574d9e13e",
"to_name": null,
"type": null,
"value": {
"end": 7439,
"labels": [
"FAC"
],
"start": 7305,
"text": "This resulted in the respondent company realising Rs. 30,591.71 in excess of the sales tax payable in respect of the goods sold by it:"
}
},
{
"from_name": null,
"id": "3babffe582fb468c822fc45fa62b589c",
"to_name": null,
"type": null,
"value": {
"end": 7592,
"labels": [
"FAC"
],
"start": 7440,
"text": "The sales tax officer held that the respondent was liable to pay the aforesaid amount of Rs. 30,591.71 to the Government under section 22(3) of the Act."
}
},
{
"from_name": null,
"id": "cd67aef8042f40468890713f833429b4",
"to_name": null,
"type": null,
"value": {
"end": 7952,
"labels": [
"FAC"
],
"start": 7593,
"text": "The respondent then filed writ petition in the Kerala High Court to challenge its liability to pay the aforesaid amount on the ground that the provisions of section 22 in so far as they imposed a liability on a dealer to pay over to the Government any amount collected by him as sales tax, even though that amount was not payable as tax, was unconstitutional."
}
},
{
"from_name": null,
"id": "1e81921d0f6349399ee7dc86389ace78",
"to_name": null,
"type": null,
"value": {
"end": 8025,
"labels": [
"RLC"
],
"start": 7953,
"text": "The learned single Judge dismissed the petition filed by the respondent."
}
},
{
"from_name": null,
"id": "736a3e3a17c14189b09ba1f82f05c4e7",
"to_name": null,
"type": null,
"value": {
"end": 8192,
"labels": [
"RLC"
],
"start": 8026,
"text": "On appeal, however, the Division Bench held, as already mentioned earlier, that the impugned provision was beyond the legislative competence of the State Legislature."
}
},
{
"from_name": null,
"id": "709a2f1a0b1e423c863b5618862839b2",
"to_name": null,
"type": null,
"value": {
"end": 8723,
"labels": [
"STA"
],
"start": 8192,
"text": "\n Sub-section (3) of section 22 of the Act reads as under: \"(3) If any dealer or person collects tax on transactions not liable to tax under this Act or in excess of the tax leviable to under this Act, such dealer or person shall, unless it is established to the satisfaction of the assessing authority that the tax so collected has been refunded to the person who had originally paid tax, pay over to the Government, in addition to the tax payable the amount so collected within such time and in such manner as may be prescribed.\""
}
},
{
"from_name": null,
"id": "b10011c444984428984dcc8339549cf6",
"to_name": null,
"type": null,
"value": {
"end": 8792,
"labels": [
"ANALYSIS"
],
"start": 8723,
"text": "\nThe learned Judges of the High Court in holding the above provision."
}
},
{
"from_name": null,
"id": "07ed11f79f9c40a8875b99a0b3ec46e8",
"to_name": null,
"type": null,
"value": {
"end": 9161,
"labels": [
"ANALYSIS"
],
"start": 8793,
"text": "in so far as it related to payment of an amount collected as tax on transactions not liable to tax under the Act or in excess of the tax leviable under the Act to he beyond the legislative competence of the State Legislature, referred to entry 54 of the State List in the Seventh Schedule to the Constitution upon which reliance had been placed on behalf of the State."
}
},
{
"from_name": null,
"id": "e04fe8abb92e4b17bd0b37d87e4a1ae9",
"to_name": null,
"type": null,
"value": {
"end": 9326,
"labels": [
"RLC"
],
"start": 9162,
"text": "It was held that the State Legislature was incompetent to enact the impugned provisions contained in sub-section (3) of section 22 of the Act under the above entry."
}
},
{
"from_name": null,
"id": "f318e3816bff438aaee46ccdbda6c9de",
"to_name": null,
"type": null,
"value": {
"end": 9462,
"labels": [
"FAC"
],
"start": 9326,
"text": "\n In appeal before us Dr. Seiyed Muhammad on behalf of the appellants has assailed the judgment of the Division Bench of the High Court."
}
},
{
"from_name": null,
"id": "9aa4a90b2f90408fb3ae0195ca299181",
"to_name": null,
"type": null,
"value": {
"end": 9571,
"labels": [
"ARG_RESPONDENT"
],
"start": 9463,
"text": "As against that, Mr. Pai on behalf of the respondent has canvassed for the correctness of the said judgment."
}
},
{
"from_name": null,
"id": "103021922ced4a8da2ea8db7f92fc119",
"to_name": null,
"type": null,
"value": {
"end": 9673,
"labels": [
"ANALYSIS"
],
"start": 9572,
"text": "After hearing the learned counsel, we are of the opinion that there is no merit in these two appeals."
}
},
{
"from_name": null,
"id": "cc2a1370def943aebad05df5f8a388ca",
"to_name": null,
"type": null,
"value": {
"end": 9914,
"labels": [
"STA"
],
"start": 9673,
"text": "\n A State Legislature is competent to make a law under entry 54 of List II in Seventh Schedule to the Constitution in respect of \"taxes on the sale or purchase of goods other than newspapers subject to the provisions of entry 92A of List I\"."
}
},
{
"from_name": null,
"id": "7d642ffb4889404f932066e54c0cef56",
"to_name": null,
"type": null,
"value": {
"end": 10306,
"labels": [
"ANALYSIS"
],
"start": 9915,
"text": "Entry 92A of List I relates to taxes on the sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter-State trade or commerce, and we are not concerned with this entry.\n Entry 54 enpowers State Legislatures to make law, except i certain cases with which we are not concerned, in respect of taxes on the sale or purchase of goods."
}
},
{
"from_name": null,
"id": "f2f5fa9796dd404f9d7036059133c402",
"to_name": null,
"type": null,
"value": {
"end": 10456,
"labels": [
"ANALYSIS"
],
"start": 10307,
"text": "As long as the law relates to taxes on the sale or purchase of goods, it would be within the competence of the State Legislature to enact such a law."
}
},
{
"from_name": null,
"id": "afd7e237373e4553a7e8a29533fbb407",
"to_name": null,
"type": null,
"value": {
"end": 10761,
"labels": [
"ANALYSIS"
],
"start": 10457,
"text": "It would not, however, b permissible for the State Legislature to enact a law under entry 54 for recovery by the State of an amount which could not be recovered as sales tax or purchase tax in accordance with the law on the subject and which was wrongly realised by a dealer as sales tax or purchase tax."
}
},
{
"from_name": null,
"id": "236351222ea34589b74c1b76ad7b9499",
"to_name": null,
"type": null,
"value": {
"end": 10948,
"labels": [
"ANALYSIS"
],
"start": 10762,
"text": "Such a law plainly would not be a law relating to tax on the sale or purchase of goods but would be one in respect of an amount wrongly realised by a dealer as sales tax or purchase tax."
}
},
{
"from_name": null,
"id": "09371a7be7fe4fa089f91cd52f424dde",
"to_name": null,
"type": null,
"value": {
"end": 11253,
"labels": [
"ANALYSIS"
],
"start": 10949,
"text": "It looks perhaps odd that a dealer should recover in the course of business transactions certain sums of money as sales tax or purchase tax payable to the State and that he should subsequently decline to pay it to the State on the ground that the same amount is not exigible as sales tax or purchase tax."
}
},
{
"from_name": null,
"id": "e77ce15e4d594bdfaede606aa2feadce",
"to_name": null,
"type": null,
"value": {
"end": 11577,
"labels": [
"ANALYSIS"
],
"start": 11254,
"text": "Whatever might be the propriety of such a course, the question with which we are concerned is whether the State Legislature is competent to enact a law under entry 54 for recovery by the State of an amount, which though not exigibie under the State law as sales tax or purchase tax was wrongly realised as such by a dealer."
}
},
{
"from_name": null,
"id": "105a2542c3944bf9a90f5c1c4d3b1ae6",
"to_name": null,
"type": null,
"value": {
"end": 11634,
"labels": [
"ANALYSIS"
],
"start": 11578,
"text": "The answer to such a question has to be in the negative."
}
},
{
"from_name": null,
"id": "e224bd99e0ae46c58dee14bf6d2c0a3b",
"to_name": null,
"type": null,
"value": {
"end": 11720,
"labels": [
"ANALYSIS"
],
"start": 11635,
"text": "The matter indeed is not res integra and is concluded by two decisions of this Court."
}
},
{
"from_name": null,
"id": "bb3e66dded8b479bb0e6d8523f16ea05",
"to_name": null,
"type": null,
"value": {
"end": 12459,
"labels": [
"PRE_RELIED"
],
"start": 11720,
"text": "\n A Constitution Bench of this Court examined in the case of R. Abdul Quader & Co. v. Sales Tax officer, Hyderabad(1) the validity of section l l (2) of the Hyderabad Sales Tax Act, 1950 which reads as under: \"(2) Notwithstanding anything to the contrary contained in any order of an officer or tribunal or judgment, decree or order of a Court, every person who has collected or collects on or before 1st May, 1950, any amount by way of tax otherwise than in accordance with the provisions of this Act shall pay over to the Government within such time and in such manner as may be prescribed the amount so collected lay him, and in default of such payment the said amount shall be recovered from him as if it were arrears of land revenue.\""
}
},
{
"from_name": null,
"id": "ac9d19b92cd243939ed0b8e1184ba731",
"to_name": null,
"type": null,
"value": {
"end": 12583,
"labels": [
"PRE_RELIED"
],
"start": 12459,
"text": "\nThe appellant in that case collected sales tax from the purchasers of betel leaves in connection with the sales made by it."
}
},
{
"from_name": null,
"id": "dc34b14c1a474a7cac8c2ae01ae3c0dc",
"to_name": null,
"type": null,
"value": {
"end": 12658,
"labels": [
"PRE_RELIED"
],
"start": 12584,
"text": "The appellant however, did not pay the amount collected to the government."
}
},
{
"from_name": null,
"id": "ca53541835d04c96818128f52181be38",
"to_name": null,
"type": null,
"value": {
"end": 12733,
"labels": [
"PRE_RELIED"
],
"start": 12659,
"text": "The Government directed the appellant to pay the amount to the Government."
}
},
{
"from_name": null,
"id": "a9f9f0bd51534132bd5cf543041f97e0",
"to_name": null,
"type": null,
"value": {
"end": 12840,
"labels": [
"PRE_RELIED"
],
"start": 12734,
"text": "The appellant thereupon filed a writ petition in the High Court questioning the validity of section 11(2)."
}
},
{
"from_name": null,
"id": "6c9d24a406a94bc1ae7c0f9449de19d3",
"to_name": null,
"type": null,
"value": {
"end": 13361,
"labels": [
"PRE_RELIED"
],
"start": 12841,
"text": "The main contention of the appellant before the High Court was that section 11(2) which authorised the Government to recover a tax collected without the authority of law was beyond the competence of the State Legislature because a tax collected without the authority of law would not be a tax levied under the law and it would therefore not be open to the State to collect (1) [1964] 6 S.C.R. 867.under the authority of a law enacted under entry 54 of List II of the Seventh Schedule to the Constitution any such amount."
}
},
{
"from_name": null,
"id": "d513662dcfaf487294d3275a7346248e",
"to_name": null,
"type": null,
"value": {
"end": 13414,
"labels": [
"PRE_RELIED"
],
"start": 13362,
"text": "The High Court upheld the validity of section 11(2)."
}
},
{
"from_name": null,
"id": "ceb9dfb088014b35bf2263b12cc6849f",
"to_name": null,
"type": null,
"value": {
"end": 13794,
"labels": [
"PRE_RELIED"
],
"start": 13414,
"text": "\nOn appeal to this Court it was observed by the Constitution Bench as under: \"The first question therefore that falls for consideration is whether it was open to the State legislature under its powers under entry 54 of List II to make a provision to the effect that money collected by way of tax, even though it is not due as a tax under the Act, shall be made over to Government."
}
},
{
"from_name": null,
"id": "0641c8c9891a4a09b7a6acecc02ad79e",
"to_name": null,
"type": null,
"value": {
"end": 13895,
"labels": [
"PRE_RELIED"
],
"start": 13795,
"text": "Now it is clear that the sums so collected by way of tax arc not in fact tax exigible under the Act."
}
},
{
"from_name": null,
"id": "fdce71b7681c4cbabb206dc926e25472",
"to_name": null,
"type": null,
"value": {
"end": 14103,
"labels": [
"PRE_RELIED"
],
"start": 13896,
"text": "So it cannot be said that the State legislature was directly legislating for the imposition of sales or purchase tax under entry 54 of List II when it made such a provision, for on the face of the provision."
}
},
{
"from_name": null,
"id": "ff2b06edb5d444e2927e891441b4371f",
"to_name": null,
"type": null,
"value": {
"end": 14187,
"labels": [
"PRE_RELIED"
],
"start": 14104,
"text": "the amount, though collected by way of tax, was not exigible as tax under the law.\""
}
},
{
"from_name": null,
"id": "569f5b5b4854428e921ae810d6ed7c7c",
"to_name": null,
"type": null,
"value": {
"end": 14479,
"labels": [
"ANALYSIS"
],
"start": 14187,
"text": "\nAn attempt was made on behalf of the State in that case to sustain the validity of section 11(2) of the Hyderabad Act on the ground that the Legislature had enacted that law as part of the incidental and ancillary power to make provision for the levy and collection of sales or purchase tax."
}
},
{
"from_name": null,
"id": "a5e49d15a68d481db5d0840ac6c46aab",
"to_name": null,
"type": null,
"value": {
"end": 14735,
"labels": [
"ANALYSIS"
],
"start": 14480,
"text": "This contention was repelled and it was observed that the ambit of ancillary or incidental power did not go to the extent of permitting the legislature to provide that though the amount collected-may be wrongly-by way of tax is not exigible under the law."
}
},
{
"from_name": null,
"id": "59d8839437184a6facdddc86cf287ee7",
"to_name": null,
"type": null,
"value": {
"end": 14840,
"labels": [
"ANALYSIS"
],
"start": 14736,
"text": "as made under the relevant taxing entry, it shall still be paid over to Government, as if it were a tax."
}
},
{
"from_name": null,
"id": "ee63b2362bcc42c3870a372efdc0ee05",
"to_name": null,
"type": null,
"value": {
"end": 14994,
"labels": [
"ANALYSIS"
],
"start": 14840,
"text": "\n The question again arose in this Court before a Bench consisting of six Judges in the case of Ashoka Marketing Ltd. v. State of Bihar & Anr.(1)."
}
},
{
"from_name": null,
"id": "3a36fa732b884764a01087618eed7aa6",
"to_name": null,
"type": null,
"value": {
"end": 15213,
"labels": [
"ANALYSIS"
],
"start": 14995,
"text": "In that case in determining the appellant's turnover for assessment to sales tax for the year 1956-57, the Superintendent of Sales Tax included an amount representing Railway freight in the appellant's sales of cement."
}
},
{
"from_name": null,
"id": "cf58dff2147145308afed79a7c36c316",
"to_name": null,
"type": null,
"value": {
"end": 15322,
"labels": [
"ANALYSIS"
],
"start": 15214,
"text": "The appellate authority set aside the orders directing the inclusion of the Railway freight in the turnover."
}
},
{
"from_name": null,
"id": "84ef201693174d908a1cf8680ee7bec9",
"to_name": null,
"type": null,
"value": {
"end": 15635,
"labels": [
"ANALYSIS"
],
"start": 15323,
"text": "After the introduction of section 20-A of the Bihar Sales Tax Act the Assistant Commissioner issued a notice under section 20-A(3) of the Act requiring the appellant to show cause why an amount representing sales tax on the Railway freight which became refundable under the orders of assessment be not forfeited."
}
},
{
"from_name": null,
"id": "90cb1d1725b44c1fb893c0928bafe104",
"to_name": null,
"type": null,
"value": {
"end": 15848,
"labels": [
"ANALYSIS"
],
"start": 15636,
"text": "The appellant's contention that section 20-A was ultra vires the State Legislature was rejected by the Assistant Commissioner as well as by the High Court in a writ petition under article 226 of the Constitution."
}
},
{
"from_name": null,
"id": "14dc8799494a4a9b828223f2cca2a010",
"to_name": null,
"type": null,
"value": {
"end": 15880,
"labels": [
"ANALYSIS"
],
"start": 15849,
"text": "On appeal filed by the assessee"
}
},
{
"from_name": null,
"id": "2cc90a922e484109821ae8d47e547447",
"to_name": null,
"type": null,
"value": {
"end": 15987,
"labels": [
"ANALYSIS"
],
"start": 15881,
"text": "this Court held that sub-sections (3), (4) and (5) of section 20-A were ultra vires the State legislature."
}
},
{
"from_name": null,
"id": "4a01ba630749425ea4df3f3a7b4fb971",
"to_name": null,
"type": null,
"value": {
"end": 16082,
"labels": [
"ANALYSIS"
],
"start": 15988,
"text": "As a corollary thereto, sub-sections (6) and (7) of that section were also held to be invalid."
}
},
{
"from_name": null,
"id": "21c22cd6aa1842169c195b028fd0bead",
"to_name": null,
"type": null,
"value": {
"end": 17551,
"labels": [
"ANALYSIS"
],
"start": 16083,
"text": "Subsection (3) of section 20-A of the Bihar Sales Tax Act read as under: \"(3)(a) Notwithstanding anything to the contrary contained in any law or contract or any judgment, decree or order of (1) [1970] 1 S. C. R. 455.\n any Tribunal, Court or authority, if the prescribed authority has reason to believe that any dealer has or had, at any time, whether before or after the commencement of this Act, collected any such amount, in a case in which or to an extent to which the said dealer was or is not liable to pay such amount, it shall serve on such dealer a notice in the prescribed manner requiring him on a date and at a time and place to be specified therein neither to attend in person or through authorised representative to show cause why he should not deposit into the Government treasury the amount so collected by him.\n (b) On the day specified in the notice under clause (a) or as soon thereafter as may be, the prescribed authority may. after giving the dealer or his authorised representative a reason able opportunity of being heard and examining such accounts and other evidence as may be produced by or on behalf of the dealer and making such further enquiry as it may deem necessary, order that the dealer shall deposit forthwith into the Government treasury, the amount found to have been so collected by the dealer and not refunded prior to the receipt of the, notice aforesaid to the person from whom it had been collected.\""
}
},
{
"from_name": null,
"id": "0d75b2e50be04ababe76b750996f7de8",
"to_name": null,
"type": null,
"value": {
"end": 17817,
"labels": [
"ANALYSIS"
],
"start": 17553,
"text": "In holding sub-section (3) and other impugned provisions of section 20-A to be beyond the legislative competence of the State Legislature, this Court in the case of Ashoka Marketing Ltd. (supra) relied upon the decision of this Court in Abdul Qadar's case (supra)."
}
},
{
"from_name": null,
"id": "a6c8c4810d18486d9f895ea8addc9c61",
"to_name": null,
"type": null,
"value": {
"end": 18068,
"labels": [
"ANALYSIS"
],
"start": 17817,
"text": "\n Dr. Muhammad has, however, tried to distinguish the above two cases on the ground that the present case relates to an amount realised in excess of the tax leviable under the Act and not to an amount which was not payable at all as tax under the Act."
}
},
{
"from_name": null,
"id": "f2b9c1d303414725a21ddc184a5b9628",
"to_name": null,
"type": null,
"value": {
"end": 18221,
"labels": [
"ANALYSIS"
],
"start": 18069,
"text": "This fact, in our opinion, would not prevent the applicability of the principle laid down in the cases of Abdul Qadar and Ashoka Marketing Ltd. (supra)."
}
},
{
"from_name": null,
"id": "c8f96b1adac047679c717ba831838727",
"to_name": null,
"type": null,
"value": {
"end": 18442,
"labels": [
"ANALYSIS"
],
"start": 18222,
"text": "Any amount realised by a dealer in excess of the tax leviable under the Act stands, for the purpose of determining the legislative competence under entry 54, on the same footing as an amount not due as tax under the Act."
}
},
{
"from_name": null,
"id": "e430660961cd4f048d27291bf81241f1",
"to_name": null,
"type": null,
"value": {
"end": 18545,
"labels": [
"ANALYSIS"
],
"start": 18443,
"text": "Dr. Muhammad's argument involves inventing a category of a \"deemed tax\"\nwhich is not there in the Act."
}
},
{
"from_name": null,
"id": "1300cd557fbe46b0bc321051c57ea622",
"to_name": null,
"type": null,
"value": {
"end": 18602,
"labels": [
"ANALYSIS"
],
"start": 18546,
"text": "The provisions of the Act contain a definition of \"tax\"."
}
},
{
"from_name": null,
"id": "809cd825f4164593b40d21159f49643a",
"to_name": null,
"type": null,
"value": {
"end": 18725,
"labels": [
"ANALYSIS"
],
"start": 18603,
"text": "This necessarily means that every thing outside it collected by the dealer would be an exaction not authorised by the Act."
}
},
{
"from_name": null,
"id": "635f10575a99449aaa4c1fdc28950b34",
"to_name": null,
"type": null,
"value": {
"end": 18810,
"labels": [
"ANALYSIS"
],
"start": 18726,
"text": "\"Tax\", according to section 2(xxiv) of the Act, means the tax payable under the Act."
}
},
{
"from_name": null,
"id": "19ce36cb36d94c39be13be12c73b5a7b",
"to_name": null,
"type": null,
"value": {
"end": 18980,
"labels": [
"RATIO"
],
"start": 18811,
"text": "The amount which was realised by the respondent in excess of what was due as tax cannotbe held to be \"tax\", because such excess amount was not tax payable under the Act."
}
},
{
"from_name": null,
"id": "8d536c8d2e964b2eb159f2314b746a5f",
"to_name": null,
"type": null,
"value": {
"end": 19364,
"labels": [
"RATIO"
],
"start": 18981,
"text": "If the State Legislature cannot make a law under entry 54 of List II of the Seventh Schedule to the Constitution directing the payment to the State of any amount collected as tax on transactions not liable to tax under the Act, it would likewise be incompetent to make a law directing payment to the State of an amount realised be a dealer in excess of the tax payable under the Act."
}
},
{
"from_name": null,
"id": "02ba0dbbafcf4669be195155935ac6d6",
"to_name": null,
"type": null,
"value": {
"end": 19591,
"labels": [
"RATIO"
],
"start": 19365,
"text": "The amount realised in excess of the tax leviable under the Act would not stand for this purpose on a footing different from that of the amount realised as tax, even though the same could not be recovered as tax under the Act."
}
},
{
"from_name": null,
"id": "8a9d5dc3f9044abe982c27cadcc4bd57",
"to_name": null,
"type": null,
"value": {
"end": 19649,
"labels": [
"RPC"
],
"start": 19591,
"text": "\n We would, therefore, dismiss the two appeals with costs."
}
},
{
"from_name": null,
"id": "bd46534324df4a63acb0956084c41a4c",
"to_name": null,
"type": null,
"value": {
"end": 19666,
"labels": [
"RPC"
],
"start": 19650,
"text": "One hearing fee."
}
},
{
"from_name": null,
"id": "4120114c11ae44488d1994bd9fd2d8bf",
"to_name": null,
"type": null,
"value": {
"end": 19674,
"labels": [
"RPC"
],
"start": 19666,
"text": "\n V.P.S."
}
},
{
"from_name": null,
"id": "54680b46cbe648caa07effa2f1d0e5b8",
"to_name": null,
"type": null,
"value": {
"end": 19711,
"labels": [
"RPC"
],
"start": 19675,
"text": " Appeals dismissed."
}
}
]
}
] | 4,173 | {
"text": "PETITIONER:\nSALES TAX OFFICER, SPECIAL CIRCLE, ERNAKULAM & ANR.\n\nVs.\n\nRESPONDENT:\nTATA OIL MILLS CO. LTD.\n\nDATE OF JUDGMENT29/07/1975\n\nBENCH:\nKHANNA, HANS RAJ\nBENCH:\nKHANNA, HANS RAJ\nBEG, M. HAMEEDULLAH\nGUPTA, A.C.\n\nCITATION: 1976 SCR (1) 152\n 1975 AIR 1991\n 1975 SCC (2) 304\n\nACT:\n Kerala Genera Sales Tax Act (15 of 1963) s. 22(3) and\n\nKerala General Sales Tax Rules, 1963, 9(1) Constitution of\nIndia 1950, VII Schedule, List II, Entry 54-Section\nproviding for payment to Govt. of tax wrongly collected-if\nultra vires.\n\nHEADNOTE:\n According to r. 9(1) of the Kerala General Sales-tax\n\nRules framed under. the Kerala General Sales-tax Act, 1963,\nin determining the taxable turnover of a dealer the excise\nduty, if any, paid by the dealer to the Government of Kerala\nor to the Central Government in respect of the goods sold by\nhim shall be deducted. Section ,22(3) of the Act provides\nthat if any dealer or person collects tax on transactions\nnot liable to tax under the Act or in excess of the tax\nleviable under the Act such dealer or person shall pay to\nthe Government. in addition to the tax payable, the amount\nso collected unless it was refunded to the person from whom\nit was collected.\n\n The respondent deducted the sum paid by it as excise\nduty from its total turnover for the purpose of determining\nthe taxable turnover. The respondent, however, when it sold\nthe goods. had collected, sales-tax from the purchasers on\nthe invoice prices without deducting therefrom the excise\nduty paid in respect of the said goods. This resulted in the\nrespondent realising a sum in excess of the sales-tax\npayable in respect of the goods sold by it. The Sales-tax\nofficer held that the respondent was liable to pay that\namount to the Government under s. 22(3). The writ petition\nfiled by the respondent was allowed by the High Court on the\nground that s. 22(3) was not covered by Entry 54 of the\nState List in the VII Schedule to the Constitution, and\nhence, beyond the competence of the Slate Legislature.\n\n Dismissing the appeal to this Court.\n^\n\n HELD: (1) Entry 54 empowers the State Legislatures to\nmake laws, except in certain cases, in respect of taxes on\nthe sale or purchase of goods. As long as the law relates to\ntaxes on the sale or purchase of goods, it would be within\ntheir- legislative competence. But, it would not be\n\npermissible for. the State legislature to enact a law under\nEntry 54 for recovery by the State of an amount which could\nnot be recovered as sales-tax or purchase-tax in accordance\nwith the law on the subject and which was wrongly realised\nby a dealer as sales-tax or purchase-tax. Such a l.. would\nnot be a law relating to tax of the sale or purchase of\ngoods but would be one in respect of an amount wrongly\nrealised by a dealer as sales-tax or purchase-tax. [1 55A-C]\n\n (2) The ambit of ancillary or incidental power would\nnot go to the extent of permitting the Legislature to\nprovide that. though the amount collected, may be wrongly,\nbe way of tax,, was not tax, it shall still be paid over to\nthe Government as if it were a tax. [156D-E]\n\n (3) The fact that the amount realised is in excess of\nthe tax leviable and not as amount which was not at all\npayable as tax, would not make any difference. Any amount\nrealised by a dealer in excess of the tax leviable, stands,\nfor the purpose of determining the legislative competence\nunder Entry 54, on the same footing as an amount not due as\ntax under the Act. Tax, according to s. 2(xxiv) of the Act,\nmeans tax payable under the Act. This necessarily means that\neverything outside it, collected by the dealer. would be an\nexaction not authorised by the Act. The amount which was\nrealised by the respondent in excess of what was due as tax\ncannot be held to be tax, because, such excess amount was\nnot tax payable under the Act. If the State Legislature\ncannot make a law under Entry 54 directing payment to the\nState of any amount collected as tax on transactions not\nliable to lax under the Act, it would likewise be\nincompetent to make a law directing payment to the State of\nan amount realised by a dealer in excess of the tax payable\nunder the Act. [157G-158C]\n R. Abdul Quader & co. v. Sales Tax Officer , Hyderabad\n[1964] SCR 867 and Ashoka Marketing Ltd. v. State of Bihar &\nAnr. [1970] SCR 455 followed.\n\nJUDGMENT:\n CIVIL. APPELLATE JURISDICTION: Civil Appeal Nos. 1988- 1989 of 1970.\n From the Judgment and order dated the 29th day of October, 1968 of the Kerala High Court in W.P. No. 156 of 1967.\n V. A. Seiyed Muhamad and K. M. K. Nair, for the appellant (In C.A.No. 1988/70.\n K. M. K. Nair, for the appellant (In C.A. No. 1989/70) G. B. Pai, A. G. Meneses, for the respondent.\n The Judgment of the Court was delivered by KHANNA, J.-This judgment would dispose of civil appeals No. 1989 and 1989 of 1970, Filed on certificate against the judgment of the Kerala High Court, whereby that court held that it was beyond the competence of the State Legislature to enact law contained in sub section (3) of section 22 of the Kerala General Sales Tax Act, 1963 (Act 15 of 1963) (hereinafter referred to as the Act) in so far as it related to payment of an amount collected as tax on transactions not liable to tax under the Act or in excess of the tax leviable under the. Act.\n We may now set out the facts giving rise to one of the appeals. Both the learned counsel are agreed that the decision in that would also govern the other appeal.\n Under section 5 of the Act, tax is payable by a dealer on his tax able turnover. \"Taxable turnover`' is defined in section 2(xxv) of the Act as the turnover on which a dealer is liable to pay tax as determined after making such deductions from his total turnover and in such manner as may be prescribed by the rules under the Act. It does not, however, include the turnover of purchase or sale in the course of inter-State trade or commerce or in the course of export or import of goods. The Kerala General Sales Tax Rules have been framed be the State Government in exercise of the powers conferred by section 57 of the Act. According to clause (i) of rule 9 of the sail rules. in determining the taxable turnover the following amount shall be deducted from the total turnover of the dealer: \"the excise duty, if any paid by the dealer to the Government of Kerala or the Central Government in respect of the goods sold by him\". It may be stated that clause (i) was omitted subsequently but we are concerned with the period when that clause was an integral part of the rule.\n The respondent is an incorporated company engaged in the manufacture and sale of soaps, toilets and other goods.\nThe respondent's accounts disclosed that it had collected from the persons to whom it sold goods a sum of Rs.\n30,591.71 as sales tax in excess of the tax which the respondent was liable to pay under the Act. The respondent, it would appear, paid Rs. 6,62,958 as excise duty and deducted the same from its total turnover for the purpose of determining the taxable turnover. When, however, the respondent company sold thegoods it collected sales tax from the purchasers on the invoice price without deducting there from the excise duty paid in respect of the said goods. This resulted in the respondent company realising Rs. 30,591.71 in excess of the sales tax payable in respect of the goods sold by it: The sales tax officer held that the respondent was liable to pay the aforesaid amount of Rs. 30,591.71 to the Government under section 22(3) of the Act. The respondent then filed writ petition in the Kerala High Court to challenge its liability to pay the aforesaid amount on the ground that the provisions of section 22 in so far as they imposed a liability on a dealer to pay over to the Government any amount collected by him as sales tax, even though that amount was not payable as tax, was unconstitutional. The learned single Judge dismissed the petition filed by the respondent. On appeal, however, the Division Bench held, as already mentioned earlier, that the impugned provision was beyond the legislative competence of the State Legislature.\n Sub-section (3) of section 22 of the Act reads as under: \"(3) If any dealer or person collects tax on transactions not liable to tax under this Act or in excess of the tax leviable to under this Act, such dealer or person shall, unless it is established to the satisfaction of the assessing authority that the tax so collected has been refunded to the person who had originally paid tax, pay over to the Government, in addition to the tax payable the amount so collected within such time and in such manner as may be prescribed.\"\nThe learned Judges of the High Court in holding the above provision. in so far as it related to payment of an amount collected as tax on transactions not liable to tax under the Act or in excess of the tax leviable under the Act to he beyond the legislative competence of the State Legislature, referred to entry 54 of the State List in the Seventh Schedule to the Constitution upon which reliance had been placed on behalf of the State. It was held that the State Legislature was incompetent to enact the impugned provisions contained in sub-section (3) of section 22 of the Act under the above entry.\n In appeal before us Dr. Seiyed Muhammad on behalf of the appellants has assailed the judgment of the Division Bench of the High Court. As against that, Mr. Pai on behalf of the respondent has canvassed for the correctness of the said judgment. After hearing the learned counsel, we are of the opinion that there is no merit in these two appeals.\n A State Legislature is competent to make a law under entry 54 of List II in Seventh Schedule to the Constitution in respect of \"taxes on the sale or purchase of goods other than newspapers subject to the provisions of entry 92A of List I\". Entry 92A of List I relates to taxes on the sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter-State trade or commerce, and we are not concerned with this entry.\n Entry 54 enpowers State Legislatures to make law, except i certain cases with which we are not concerned, in respect of taxes on the sale or purchase of goods. As long as the law relates to taxes on the sale or purchase of goods, it would be within the competence of the State Legislature to enact such a law. It would not, however, b permissible for the State Legislature to enact a law under entry 54 for recovery by the State of an amount which could not be recovered as sales tax or purchase tax in accordance with the law on the subject and which was wrongly realised by a dealer as sales tax or purchase tax. Such a law plainly would not be a law relating to tax on the sale or purchase of goods but would be one in respect of an amount wrongly realised by a dealer as sales tax or purchase tax. It looks perhaps odd that a dealer should recover in the course of business transactions certain sums of money as sales tax or purchase tax payable to the State and that he should subsequently decline to pay it to the State on the ground that the same amount is not exigible as sales tax or purchase tax. Whatever might be the propriety of such a course, the question with which we are concerned is whether the State Legislature is competent to enact a law under entry 54 for recovery by the State of an amount, which though not exigibie under the State law as sales tax or purchase tax was wrongly realised as such by a dealer. The answer to such a question has to be in the negative. The matter indeed is not res integra and is concluded by two decisions of this Court.\n A Constitution Bench of this Court examined in the case of R. Abdul Quader & Co. v. Sales Tax officer, Hyderabad(1) the validity of section l l (2) of the Hyderabad Sales Tax Act, 1950 which reads as under: \"(2) Notwithstanding anything to the contrary contained in any order of an officer or tribunal or judgment, decree or order of a Court, every person who has collected or collects on or before 1st May, 1950, any amount by way of tax otherwise than in accordance with the provisions of this Act shall pay over to the Government within such time and in such manner as may be prescribed the amount so collected lay him, and in default of such payment the said amount shall be recovered from him as if it were arrears of land revenue.\"\nThe appellant in that case collected sales tax from the purchasers of betel leaves in connection with the sales made by it. The appellant however, did not pay the amount collected to the government. The Government directed the appellant to pay the amount to the Government. The appellant thereupon filed a writ petition in the High Court questioning the validity of section 11(2). The main contention of the appellant before the High Court was that section 11(2) which authorised the Government to recover a tax collected without the authority of law was beyond the competence of the State Legislature because a tax collected without the authority of law would not be a tax levied under the law and it would therefore not be open to the State to collect (1) [1964] 6 S.C.R. 867.under the authority of a law enacted under entry 54 of List II of the Seventh Schedule to the Constitution any such amount. The High Court upheld the validity of section 11(2).\nOn appeal to this Court it was observed by the Constitution Bench as under: \"The first question therefore that falls for consideration is whether it was open to the State legislature under its powers under entry 54 of List II to make a provision to the effect that money collected by way of tax, even though it is not due as a tax under the Act, shall be made over to Government. Now it is clear that the sums so collected by way of tax arc not in fact tax exigible under the Act. So it cannot be said that the State legislature was directly legislating for the imposition of sales or purchase tax under entry 54 of List II when it made such a provision, for on the face of the provision. the amount, though collected by way of tax, was not exigible as tax under the law.\"\nAn attempt was made on behalf of the State in that case to sustain the validity of section 11(2) of the Hyderabad Act on the ground that the Legislature had enacted that law as part of the incidental and ancillary power to make provision for the levy and collection of sales or purchase tax. This contention was repelled and it was observed that the ambit of ancillary or incidental power did not go to the extent of permitting the legislature to provide that though the amount collected-may be wrongly-by way of tax is not exigible under the law. as made under the relevant taxing entry, it shall still be paid over to Government, as if it were a tax.\n The question again arose in this Court before a Bench consisting of six Judges in the case of Ashoka Marketing Ltd. v. State of Bihar & Anr.(1). In that case in determining the appellant's turnover for assessment to sales tax for the year 1956-57, the Superintendent of Sales Tax included an amount representing Railway freight in the appellant's sales of cement. The appellate authority set aside the orders directing the inclusion of the Railway freight in the turnover. After the introduction of section 20-A of the Bihar Sales Tax Act the Assistant Commissioner issued a notice under section 20-A(3) of the Act requiring the appellant to show cause why an amount representing sales tax on the Railway freight which became refundable under the orders of assessment be not forfeited. The appellant's contention that section 20-A was ultra vires the State Legislature was rejected by the Assistant Commissioner as well as by the High Court in a writ petition under article 226 of the Constitution. On appeal filed by the assessee this Court held that sub-sections (3), (4) and (5) of section 20-A were ultra vires the State legislature. As a corollary thereto, sub-sections (6) and (7) of that section were also held to be invalid. Subsection (3) of section 20-A of the Bihar Sales Tax Act read as under: \"(3)(a) Notwithstanding anything to the contrary contained in any law or contract or any judgment, decree or order of (1) [1970] 1 S. C. R. 455.\n any Tribunal, Court or authority, if the prescribed authority has reason to believe that any dealer has or had, at any time, whether before or after the commencement of this Act, collected any such amount, in a case in which or to an extent to which the said dealer was or is not liable to pay such amount, it shall serve on such dealer a notice in the prescribed manner requiring him on a date and at a time and place to be specified therein neither to attend in person or through authorised representative to show cause why he should not deposit into the Government treasury the amount so collected by him.\n (b) On the day specified in the notice under clause (a) or as soon thereafter as may be, the prescribed authority may. after giving the dealer or his authorised representative a reason able opportunity of being heard and examining such accounts and other evidence as may be produced by or on behalf of the dealer and making such further enquiry as it may deem necessary, order that the dealer shall deposit forthwith into the Government treasury, the amount found to have been so collected by the dealer and not refunded prior to the receipt of the, notice aforesaid to the person from whom it had been collected.\"\n In holding sub-section (3) and other impugned provisions of section 20-A to be beyond the legislative competence of the State Legislature, this Court in the case of Ashoka Marketing Ltd. (supra) relied upon the decision of this Court in Abdul Qadar's case (supra).\n Dr. Muhammad has, however, tried to distinguish the above two cases on the ground that the present case relates to an amount realised in excess of the tax leviable under the Act and not to an amount which was not payable at all as tax under the Act. This fact, in our opinion, would not prevent the applicability of the principle laid down in the cases of Abdul Qadar and Ashoka Marketing Ltd. (supra). Any amount realised by a dealer in excess of the tax leviable under the Act stands, for the purpose of determining the legislative competence under entry 54, on the same footing as an amount not due as tax under the Act. Dr. Muhammad's argument involves inventing a category of a \"deemed tax\"\nwhich is not there in the Act. The provisions of the Act contain a definition of \"tax\". This necessarily means that every thing outside it collected by the dealer would be an exaction not authorised by the Act. \"Tax\", according to section 2(xxiv) of the Act, means the tax payable under the Act. The amount which was realised by the respondent in excess of what was due as tax cannotbe held to be \"tax\", because such excess amount was not tax payable under the Act. If the State Legislature cannot make a law under entry 54 of List II of the Seventh Schedule to the Constitution directing the payment to the State of any amount collected as tax on transactions not liable to tax under the Act, it would likewise be incompetent to make a law directing payment to the State of an amount realised be a dealer in excess of the tax payable under the Act. The amount realised in excess of the tax leviable under the Act would not stand for this purpose on a footing different from that of the amount realised as tax, even though the same could not be recovered as tax under the Act.\n We would, therefore, dismiss the two appeals with costs. One hearing fee.\n V.P.S. Appeals dismissed.\n "
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"to_name": "text",
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"value": {
"end": 765,
"labels": [
"NONE"
],
"start": 742,
"text": " : (Per P.R.Borkar, J.)"
}
},
{
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"id": "2eed6c8e750c4081a32c3181bab14aae",
"to_name": "text",
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"value": {
"end": 1076,
"labels": [
"RLC"
],
"start": 765,
"text": " 1. The appellant is convicted by the learned Sessions Judge, Beed, on 5.1.2006 in Sessions Case No.\n 7 of 2005, for committing murder of his wife Manjubai and thus committing offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life by his judgment and order."
}
},
{
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"id": "bc9850b456954afbb71770f061027446",
"to_name": "text",
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"value": {
"end": 1146,
"labels": [
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],
"start": 1076,
"text": "\n 2. Briefly stated, deceased Manjubai was wife of present appellant."
}
},
{
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"id": "16a6579ab5d0445e8e139d39c7d27005",
"to_name": "text",
"type": "labels",
"value": {
"end": 1205,
"labels": [
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],
"start": 1147,
"text": "They married 15-16 years before the incident on 2.10.2004."
}
},
{
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"id": "1f0dafc1f99448869db6ec8a26dfae0a",
"to_name": "text",
"type": "labels",
"value": {
"end": 1253,
"labels": [
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],
"start": 1206,
"text": "They were blessed with two sons and a daughter."
}
},
{
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"id": "bbf7629f0ec345a1a320cdaa5a500656",
"to_name": "text",
"type": "labels",
"value": {
"end": 1326,
"labels": [
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],
"start": 1254,
"text": "Still the appellant was suspecting character of Manjubai and harass her."
}
},
{
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"id": "9e735ea217754a2ab26e9c431951c698",
"to_name": "text",
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"value": {
"end": 1447,
"labels": [
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],
"start": 1327,
"text": "As a result, Manjubai used to leave the house and go to the house of her sister Tarabai (pw3) or to her brother's house."
}
},
{
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"id": "de0c08808b1c4618b0da45876c4fafa1",
"to_name": "text",
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"value": {
"end": 1523,
"labels": [
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],
"start": 1447,
"text": "\nAccused used to go and bring her back and again they used to live together."
}
},
{
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"id": "b6c4487beb40416093b77562cd9d4972",
"to_name": "text",
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"value": {
"end": 1549,
"labels": [
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],
"start": 1524,
"text": "This happened many times."
}
},
{
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"id": "288dfd123e9d486bacc18a0e2976998a",
"to_name": "text",
"type": "labels",
"value": {
"end": 1782,
"labels": [
"FAC"
],
"start": 1549,
"text": "\n 3. Fifteen days before 2.10.2004 Manjubai had come to the house of Tarabai (pw3) after she was beaten by accused-appellant due to suspicion on her character and was living with Tarabai (pw3) at Hingni, Taluka Ashti, District Beed."
}
},
{
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"id": "ecb11b4560894f33ab54e27a293a727f",
"to_name": "text",
"type": "labels",
"value": {
"end": 1863,
"labels": [
"FAC"
],
"start": 1783,
"text": "The appellant is resident of village Diksal, Taluka Karjat, District Ahmednagar."
}
},
{
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"id": "3020c6fe524341668ca31fa83b8de727",
"to_name": "text",
"type": "labels",
"value": {
"end": 1919,
"labels": [
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],
"start": 1864,
"text": "On 1.10.2004 the appellant went to bring back his wife."
}
},
{
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"id": "2bbf6b6a80f9418d97dd0dbf60e85afd",
"to_name": "text",
"type": "labels",
"value": {
"end": 1989,
"labels": [
"FAC"
],
"start": 1919,
"text": "\n Tarabai (pw3) and deceased Manjubai had gone in the land of Tarabai."
}
},
{
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"id": "c937011b1aa94ecd8d23b9baa83e15da",
"to_name": "text",
"type": "labels",
"value": {
"end": 2022,
"labels": [
"FAC"
],
"start": 1990,
"text": "They returned at about 6.00 p.m."
}
},
{
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"id": "03d1021dde564ba995826b01a68f62b8",
"to_name": "text",
"type": "labels",
"value": {
"end": 2176,
"labels": [
"FAC"
],
"start": 2023,
"text": "On that day, the husband of Tarabai (pw3) Popat Pawal had gone to the brother of Tarabai for some reason and he had not returned back due to heavy rains."
}
},
{
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"id": "bd2680d1fd4d418bad5e5cc2209587c7",
"to_name": "text",
"type": "labels",
"value": {
"end": 2244,
"labels": [
"FAC"
],
"start": 2177,
"text": "Bapu (pw6) son of Tarabai was at the house when the appellant came."
}
},
{
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"id": "4fcb65b75e2647f58be7682d28d9b42a",
"to_name": "text",
"type": "labels",
"value": {
"end": 2392,
"labels": [
"FAC"
],
"start": 2244,
"text": "\n Tarabai (pw3), Bapu (pw6), the appellant and deceased Manjubai took dinner and Manjubai and Tarabai went to sleep in a room described as \"Malwad\"."
}
},
{
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"id": "2ee4afc5251046d694265033d99e9bc3",
"to_name": "text",
"type": "labels",
"value": {
"end": 2439,
"labels": [
"FAC"
],
"start": 2393,
"text": "Tarabai (pw3) and Bapu (pw6) slept in kitchen."
}
},
{
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"id": "716da67da32f4254b4c20741ab47d806",
"to_name": "text",
"type": "labels",
"value": {
"end": 2538,
"labels": [
"FAC"
],
"start": 2440,
"text": "At about 4.00 a.m.\n there was sound of opening door and Tarabai (pw3) saw the appellant going out."
}
},
{
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"id": "21cfcf720f11413283bfe958fe7f1f0f",
"to_name": "text",
"type": "labels",
"value": {
"end": 2620,
"labels": [
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],
"start": 2539,
"text": "She thought that he might be going for answering nature's call and went to sleep."
}
},
{
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"id": "cb71ac535264434b83bdb0d714c18fbc",
"to_name": "text",
"type": "labels",
"value": {
"end": 2686,
"labels": [
"FAC"
],
"start": 2621,
"text": "At 6.00 a.m. Tarabai (pw3) got up and was doing her daily chores."
}
},
{
"from_name": "label",
"id": "24320f776fdb46498664b2051c9b9521",
"to_name": "text",
"type": "labels",
"value": {
"end": 2775,
"labels": [
"FAC"
],
"start": 2687,
"text": "Tarabai (pw3) asked Bapu (pw6) to wake up Manjubai and the appellant, but he did not go."
}
},
{
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"id": "0a283e2aa090440987bb73817f2d447f",
"to_name": "text",
"type": "labels",
"value": {
"end": 2915,
"labels": [
"FAC"
],
"start": 2776,
"text": "At about 6.30 a.m. Tarabai (pw3) went to knock the door of \"Malwad\", but the door got opened and she saw Manjubai lying in a pool of blood."
}
},
{
"from_name": "label",
"id": "2709da1066f04b9b811b83a3ee990f1c",
"to_name": "text",
"type": "labels",
"value": {
"end": 2934,
"labels": [
"FAC"
],
"start": 2916,
"text": "Manjubai was dead."
}
},
{
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"id": "744f50b4816c42a982a088a7c2247465",
"to_name": "text",
"type": "labels",
"value": {
"end": 2967,
"labels": [
"FAC"
],
"start": 2935,
"text": "An iron pestle was lying nearby."
}
},
{
"from_name": "label",
"id": "5ff0e418457e4179b7d04ae6eb9c1237",
"to_name": "text",
"type": "labels",
"value": {
"end": 2996,
"labels": [
"FAC"
],
"start": 2968,
"text": "The appellant was not there."
}
},
{
"from_name": "label",
"id": "d4dd10d63ed84b0ca358da452ac5b6ea",
"to_name": "text",
"type": "labels",
"value": {
"end": 3029,
"labels": [
"FAC"
],
"start": 2996,
"text": "\nSo, Tarabai (pw3) raised shouts."
}
},
{
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"id": "40a8780dfe794d4e9d4b74da97791b5d",
"to_name": "text",
"type": "labels",
"value": {
"end": 3090,
"labels": [
"FAC"
],
"start": 3030,
"text": "Bapu (pw6), neighbour, Ambadas Gavane (pw5) and others came."
}
},
{
"from_name": "label",
"id": "59d86d2f6eba41e087bfa61bf404a517",
"to_name": "text",
"type": "labels",
"value": {
"end": 3181,
"labels": [
"FAC"
],
"start": 3091,
"text": "The matter was informed to Pandurang Zambare (pw8) who was police patil of village Hingni."
}
},
{
"from_name": "label",
"id": "80f10841019e447b9c96bd1c58f308fd",
"to_name": "text",
"type": "labels",
"value": {
"end": 3239,
"labels": [
"FAC"
],
"start": 3182,
"text": "Pandurang (pw8) went and informed the incident to police."
}
},
{
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"id": "dbf4620a2afe415ba8ecd46ad65b8aac",
"to_name": "text",
"type": "labels",
"value": {
"end": 3413,
"labels": [
"FAC"
],
"start": 3240,
"text": "Head constable Madhukar Shinde (pw9) came, drew inquest and spot panchanama, sent dead body for autopsy, recorded complaint of Tarabai (pw3) and then registered the offence."
}
},
{
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"id": "b5150e8e5a384ba6923827c0052114d8",
"to_name": "text",
"type": "labels",
"value": {
"end": 3510,
"labels": [
"FAC"
],
"start": 3414,
"text": "Further investigation was carried by Balasaheb Salve (pw11) and Krishna Bandapatte (pw12).\n 4. "
}
},
{
"from_name": "label",
"id": "60317005c7b24d7e95b0c259d51689c0",
"to_name": "text",
"type": "labels",
"value": {
"end": 3603,
"labels": [
"FAC"
],
"start": 3510,
"text": "The accused was absconding since the happening of the incident and police were searching him."
}
},
{
"from_name": "label",
"id": "22644ec109174913ab171d63dcca64b2",
"to_name": "text",
"type": "labels",
"value": {
"end": 3718,
"labels": [
"FAC"
],
"start": 3604,
"text": "Police learnt that the appellant had hired a bicycle from Santosh Tandale (pw10) and had not returned the bicycle."
}
},
{
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"id": "a932f70f8f744acf97aff139011cfd48",
"to_name": "text",
"type": "labels",
"value": {
"end": 3847,
"labels": [
"FAC"
],
"start": 3718,
"text": "\n Police later on got information that the appellant was working at a Dhaba (restaurant) at Wanjare Fata on Beed-Ahmednagar road."
}
},
{
"from_name": "label",
"id": "ab616320e56144358ed98c261345b200",
"to_name": "text",
"type": "labels",
"value": {
"end": 3928,
"labels": [
"FAC"
],
"start": 3848,
"text": "The restaurant was run in the name of \"Khandeshwari Dhaba\" by Ashok Yeole (pw7)."
}
},
{
"from_name": "label",
"id": "92838ad8b81643598d4a1264fe6d8d6c",
"to_name": "text",
"type": "labels",
"value": {
"end": 4027,
"labels": [
"FAC"
],
"start": 3929,
"text": "So the police went and inquired with Ashok Yeole (pw7) and showed him photograph of the appellant."
}
},
{
"from_name": "label",
"id": "3b8902cf568d4d4aad4e1fa5ac1d83ce",
"to_name": "text",
"type": "labels",
"value": {
"end": 4129,
"labels": [
"FAC"
],
"start": 4028,
"text": "The persons working there identified the photograph as another waiter working under name Ramesh Raut."
}
},
{
"from_name": "label",
"id": "95c6af48b9c646aeb35857832452d9a8",
"to_name": "text",
"type": "labels",
"value": {
"end": 4162,
"labels": [
"FAC"
],
"start": 4130,
"text": "The appellant was then arrested."
}
},
{
"from_name": "label",
"id": "e82fee0fe5b14b648f35f9904e069949",
"to_name": "text",
"type": "labels",
"value": {
"end": 4310,
"labels": [
"FAC"
],
"start": 4163,
"text": "Thereafter the appellant produced his clothes which were worn by him at the time of the incident and a bicycle which was attached under panchanama."
}
},
{
"from_name": "label",
"id": "5b89e868c88848989d174b8b2d7fe81f",
"to_name": "text",
"type": "labels",
"value": {
"end": 4435,
"labels": [
"FAC"
],
"start": 4311,
"text": "The Chemical Analyser found human blood stains on the pant of the appellant which was washed several times in the mean time."
}
},
{
"from_name": "label",
"id": "b203665f31674e0fbda916acc7d46e00",
"to_name": "text",
"type": "labels",
"value": {
"end": 4494,
"labels": [
"FAC"
],
"start": 4436,
"text": "The appellant was absconding from 2.10.2004 to 15.11.2004."
}
},
{
"from_name": "label",
"id": "61e6605072d5404ba1a1eca6fb7cfcc1",
"to_name": "text",
"type": "labels",
"value": {
"end": 4554,
"labels": [
"FAC"
],
"start": 4495,
"text": "Finally the police filed chargesheet against the appellant."
}
},
{
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"id": "11ab54c40f93481ebda27b9aa7d15b49",
"to_name": "text",
"type": "labels",
"value": {
"end": 4634,
"labels": [
"FAC"
],
"start": 4554,
"text": "\n 5. The prosecution examined Tarabai (pw3) at Exh.26 and Bapu (pw6) at Exh.31."
}
},
{
"from_name": "label",
"id": "b7f00b1f56ec4859a8edc98d6ea420c8",
"to_name": "text",
"type": "labels",
"value": {
"end": 4790,
"labels": [
"FAC"
],
"start": 4635,
"text": "Both of them supported the prosecution case and stated that the accused used to suspect character of Manjubai and used to illtreat, beat and drive her out."
}
},
{
"from_name": "label",
"id": "4ee63463599d429988b034da5a40538f",
"to_name": "text",
"type": "labels",
"value": {
"end": 4852,
"labels": [
"FAC"
],
"start": 4791,
"text": "Manjubai had come to them before 15 days before the incident."
}
},
{
"from_name": "label",
"id": "4db678d6ecc3418c981f98969159db5d",
"to_name": "text",
"type": "labels",
"value": {
"end": 4914,
"labels": [
"FAC"
],
"start": 4853,
"text": "The accused came on earlier day and they had dinner at night."
}
},
{
"from_name": "label",
"id": "f6daee90fcfc4caca65dcea13bdeec72",
"to_name": "text",
"type": "labels",
"value": {
"end": 4995,
"labels": [
"FAC"
],
"start": 4915,
"text": "Thereafter Manjubai and the appellant went to sleep in the room called \"Malwad\"."
}
},
{
"from_name": "label",
"id": "cc3007294df745fe94e0c2f85d3a283d",
"to_name": "text",
"type": "labels",
"value": {
"end": 5156,
"labels": [
"FAC"
],
"start": 4996,
"text": "According to Tarabai (pw3) at 4.00 a.m. she saw appellant opening the door of the house, but she thought that he might be going out for answering nature's call."
}
},
{
"from_name": "label",
"id": "6daf8dcb20f141a4946f77a452a0c657",
"to_name": "text",
"type": "labels",
"value": {
"end": 5309,
"labels": [
"FAC"
],
"start": 5157,
"text": "Both witnesses also stated that at about 6.30 a.m. Tarabai opened the door, saw Manjubai lying dead and Tarabai shouted and Bapu (pw6) also came there.\n"
}
},
{
"from_name": "label",
"id": "c32947fa827247798472002cef003c2a",
"to_name": "text",
"type": "labels",
"value": {
"end": 5361,
"labels": [
"FAC"
],
"start": 5309,
"text": "They saw Manjubai was lying dead in a pool of blood."
}
},
{
"from_name": "label",
"id": "6b5eb023100b41058e610b768b162785",
"to_name": "text",
"type": "labels",
"value": {
"end": 5396,
"labels": [
"FAC"
],
"start": 5361,
"text": "\nThereafter neighbours were called."
}
},
{
"from_name": "label",
"id": "613c8482196c46d0b4eee2faccb4671f",
"to_name": "text",
"type": "labels",
"value": {
"end": 5421,
"labels": [
"FAC"
],
"start": 5397,
"text": "The accused was missing."
}
},
{
"from_name": "label",
"id": "fe761fe98ef3421ca5e9f560fcd7c6ff",
"to_name": "text",
"type": "labels",
"value": {
"end": 5576,
"labels": [
"FAC"
],
"start": 5421,
"text": "\n 6. The said evidence of inmates of the house is further corroborated by neighbour Ambadas Gavane (pw5) who stated that he was knowing deceased Manjubai."
}
},
{
"from_name": "label",
"id": "a1d8936e1c42447896aa52caa64dfec0",
"to_name": "text",
"type": "labels",
"value": {
"end": 5662,
"labels": [
"FAC"
],
"start": 5577,
"text": "She had come to reside with her sister Tarabai (pw3) 8-10 days prior to the incident."
}
},
{
"from_name": "label",
"id": "d56a963a63da41de886d70b04984d6f6",
"to_name": "text",
"type": "labels",
"value": {
"end": 5759,
"labels": [
"FAC"
],
"start": 5663,
"text": "He had also seen the appellant at village Hingni on the previous day of incident in the evening."
}
},
{
"from_name": "label",
"id": "5fbcbd327b80411ca9317307e3052805",
"to_name": "text",
"type": "labels",
"value": {
"end": 5948,
"labels": [
"FAC"
],
"start": 5760,
"text": "At about 6.30 p.m. the brother-in-law of Tarabai, by name Krishna, came to him at 6.30 a.m. and told him that the appellant had killed his wife Manjubai and he wanted to make a phone call."
}
},
{
"from_name": "label",
"id": "5619b077318443f2a7cc64410eb0cdf0",
"to_name": "text",
"type": "labels",
"value": {
"end": 6061,
"labels": [
"FAC"
],
"start": 5948,
"text": "\n 7. This evidence is further supported by the police patil Pandurang Zambare (pw8) who is examined at Exh.33.\n "
}
},
{
"from_name": "label",
"id": "9ef6cf90cd314421b12d4d0aba62e819",
"to_name": "text",
"type": "labels",
"value": {
"end": 6115,
"labels": [
"FAC"
],
"start": 6061,
"text": "He stated that he was residing in his field at Hingni."
}
},
{
"from_name": "label",
"id": "864f86b2007c4b0aaf863606f0e93f8b",
"to_name": "text",
"type": "labels",
"value": {
"end": 6164,
"labels": [
"FAC"
],
"start": 6117,
"text": "At about 9.00 a.m. he came to village locality."
}
},
{
"from_name": "label",
"id": "88a5a94307d542a6b493e6b304e456bb",
"to_name": "text",
"type": "labels",
"value": {
"end": 6236,
"labels": [
"FAC"
],
"start": 6165,
"text": "People had gathered at the house of Popat Pawal the husband of Tarabai."
}
},
{
"from_name": "label",
"id": "7a08d4e3df2f4e24b560767df88a3b39",
"to_name": "text",
"type": "labels",
"value": {
"end": 6350,
"labels": [
"FAC"
],
"start": 6237,
"text": "On inquiry he came to know that sister of Tarabai was dead inside the house and so he went and saw the dead body."
}
},
{
"from_name": "label",
"id": "b7e947408d504204ae1f286874a43d25",
"to_name": "text",
"type": "labels",
"value": {
"end": 6403,
"labels": [
"FAC"
],
"start": 6351,
"text": "There were injuries on the forehead of the deceased."
}
},
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"id": "2d1b9720bbb24d89bb5bfcdce36205dd",
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"end": 6529,
"labels": [
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],
"start": 6404,
"text": "So he went to Ashti police station and lodged report Exh.34 which was treated as accidental death report and inquiry was "
}
},
{
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"value": {
"end": 6582,
"labels": [
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],
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"text": "taken over by Head Constable Madhukar Shinde (pw9) 8."
}
},
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"labels": [
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],
"start": 6584,
"text": "Madhukar Shinde (pw9) stated at Exh.35 that he went to the place of the incident, drew inquest panchanama and spot panchanama and also recorded statement of Tarabai (pw3) which was treated as complaint.\n 9. The evidence of Madhukar Shinde (pw8) is further corroborated by panch Laxman Zambare (pw1) examined at Exh.20."
}
},
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"labels": [
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],
"start": 6904,
"text": "He proved the spot panchanama."
}
},
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"value": {
"end": 7041,
"labels": [
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],
"start": 6935,
"text": "The inquest panchanama Exh.18 is admitted by the accused under Section 294 of the Criminal Procedure Code."
}
},
{
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"value": {
"end": 7088,
"labels": [
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],
"start": 7042,
"text": "It is abundantly clear that it was a homicide."
}
},
{
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"value": {
"end": 7237,
"labels": [
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],
"start": 7090,
"text": "10. Dr. Kalkute (pw4) performed the postmortem on the dead body on same day and he found following external injuries on the person of the deceased."
}
},
{
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"id": "d1910acb4a4c4fb6afc1897ab79b0afd",
"to_name": "text",
"type": "labels",
"value": {
"end": 7555,
"labels": [
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],
"start": 7237,
"text": "\n \"(I) Clean lacerated wound on left eyebrow laterally, size 2 x 1 x 1/2 C.M.\n (II) Clean lacerated wound on scalp, posteriorly, just behind left ear, size 5 x 1 x 1/2 C.M.\n (III) Clean lacerated wound on left parietal region on scalp, size 2 x 1 x 1/2 C.M.\n (IV) C.L.W. on left pinna posteriorly, 2 x 1/2 x 1/2 C.M.\n "
}
},
{
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"id": "36f1efb4bdfa49ccad436cd0934eaa35",
"to_name": "text",
"type": "labels",
"value": {
"end": 7608,
"labels": [
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],
"start": 7555,
"text": "(V) C.L.W. in front of left pinna 1 x 1/2 x 1/2 C.M."
}
},
{
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"id": "3d0ae663e3684988a782799c926f2646",
"to_name": "text",
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"value": {
"end": 7668,
"labels": [
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],
"start": 7608,
"text": "\n (VI) Fracture of mandible on chin and just below left ear."
}
},
{
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"id": "71ead7d85ecb4c378e2993fc8c3039b8",
"to_name": "text",
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"value": {
"end": 7747,
"labels": [
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],
"start": 7669,
"text": "\"\n . On internal examination the doctor found following injuries."
}
},
{
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"id": "0da6875c885d461bb89ae89cd54425d4",
"to_name": "text",
"type": "labels",
"value": {
"end": 8000,
"labels": [
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],
"start": 7749,
"text": "\"(I) Head injury blood clot blackish red in colour, in frontal area lateral to left eye, size 2 x 2 x 1/2 C.M.\n (II) Blood clot just behind left ear posteriorly, 5 x 1 x 1/2 C.M.\n (III) Blood clot just below left parietal region, 2 x 1 x 1/2 C.M. \"\n ."
}
},
{
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"id": "8cd6023a868844f6809da2a7da01d277",
"to_name": "text",
"type": "labels",
"value": {
"end": 8227,
"labels": [
"FAC"
],
"start": 8001,
"text": " According to the doctor, the external injuries mentioned at Sr. Nos. I to III correspond to the internal injuries noted and the cause of death was intracranial haemorrhage due to head injury associated with mandible fracture."
}
},
{
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"id": "89393e6cd1694a5d8baed39ec83c8046",
"to_name": "text",
"type": "labels",
"value": {
"end": 8341,
"labels": [
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],
"start": 8229,
"text": "11. All the witnesses have stated about the iron pestle stained with blood lying near the dead body of Manjubai."
}
},
{
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"id": "747488d906e345bc95d7d9346dd724bf",
"to_name": "text",
"type": "labels",
"value": {
"end": 8472,
"labels": [
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],
"start": 8342,
"text": "So all above said evidence clearly showed that Manjubai and the appellant had slept together in the room called \"Malwad\" at night."
}
},
{
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"id": "b6bb7d1f52104c98b6a81d446e316ade",
"to_name": "text",
"type": "labels",
"value": {
"end": 8576,
"labels": [
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],
"start": 8473,
"text": "Since early morning of the incident the appellant was missing and Manjubai was found dead in the house."
}
},
{
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"id": "e6534f1f9905409584114f297fd08ab5",
"to_name": "text",
"type": "labels",
"value": {
"end": 8721,
"labels": [
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],
"start": 8577,
"text": "It is argued before us that though Tarabai (pw3) and Bapu (pw6) had slept in the kitchen which was nearby, they did not hear any sound or shout."
}
},
{
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"id": "ccdc237f98be444fa90fcfdbeda745db",
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"value": {
"end": 8951,
"labels": [
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],
"start": 8722,
"text": "If a person fast asleep is given blow with heavy iron article like pestle on head, there are no chances of raising any voice by such person and, therefore, if nobody had heard any sound or shouts of Manjubai, it is not unnatural."
}
},
{
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"id": "84f7eea6be9b476abbfad3686b330d21",
"to_name": "text",
"type": "labels",
"value": {
"end": 9110,
"labels": [
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],
"start": 8951,
"text": "\n 12. The learned advocate also drew our attention to cross-examination of Bapu (pw6) and argued that Bapu has not informed police patil or police immediately."
}
},
{
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"id": "59fb540c28574daaa02a532ce425094e",
"to_name": "text",
"type": "labels",
"value": {
"end": 9166,
"labels": [
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],
"start": 9111,
"text": "The conduct of the appellant is also worth considering."
}
},
{
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"id": "1dcdb98e5b0b4c43baf589d2cf346594",
"to_name": "text",
"type": "labels",
"value": {
"end": 9266,
"labels": [
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],
"start": 9167,
"text": "The appellant was not seen since prior to 6.30 a.m. till he was arrested after one and half months."
}
},
{
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"id": "ea5f24130703465aa1edc06265d29ca4",
"to_name": "text",
"type": "labels",
"value": {
"end": 9370,
"labels": [
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],
"start": 9267,
"text": "Police Sub-Inspector Salve (pw11) has stated that he took over investigation on 2.10.2004 at 10.00 p.m."
}
},
{
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"id": "0a26742b90e14e919b48ae14b3c762a5",
"to_name": "text",
"type": "labels",
"value": {
"end": 9441,
"labels": [
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],
"start": 9371,
"text": "The offence was registered under Section 302 of the Indian Penal Code."
}
},
{
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"id": "40c1723dc6804ff5a8de7366ddc67940",
"to_name": "text",
"type": "labels",
"value": {
"end": 9537,
"labels": [
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],
"start": 9442,
"text": "Since it was late at night, he went through the papers, but did not go to the scene of offence."
}
},
{
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"id": "4535577d500f4f948dd3b3fda31ac62f",
"to_name": "text",
"type": "labels",
"value": {
"end": 9586,
"labels": [
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],
"start": 9538,
"text": "Already inquest and spot panchanamas were drawn."
}
},
{
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"id": "2af11592015b4051a1361b1639ae2247",
"to_name": "text",
"type": "labels",
"value": {
"end": 9614,
"labels": [
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],
"start": 9587,
"text": "The accused was absconding."
}
},
{
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"id": "2a9a9547387249388f789bc9093fb72a",
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"type": "labels",
"value": {
"end": 9684,
"labels": [
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],
"start": 9615,
"text": "He tried to search and trace out the accused, but could not find him."
}
},
{
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"id": "fe64a8cbb2f844d2b85d707c4929f752",
"to_name": "text",
"type": "labels",
"value": {
"end": 9749,
"labels": [
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],
"start": 9685,
"text": "He also went to Hingni and recorded the statements of witnesses."
}
},
{
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"id": "6becaf260ded41729baf218d4057036f",
"to_name": "text",
"type": "labels",
"value": {
"end": 9801,
"labels": [
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],
"start": 9750,
"text": "He went to village Diksal to trace out the accused."
}
},
{
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"id": "e64f6f22622e4532af716b8ae79eea25",
"to_name": "text",
"type": "labels",
"value": {
"end": 9867,
"labels": [
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],
"start": 9802,
"text": "Head Constable Shinde (pw9) was sent for tracing out the accused."
}
},
{
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"id": "ee310cfe209c4569b4f8b50a01fb08ae",
"to_name": "text",
"type": "labels",
"value": {
"end": 9952,
"labels": [
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],
"start": 9868,
"text": "It transpired that the accused had hired one bicycle from a cycle mart at Mirajgaon."
}
},
{
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"id": "860143e9b1d74d0597442b9e26e478c2",
"to_name": "text",
"type": "labels",
"value": {
"end": 10180,
"labels": [
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],
"start": 9953,
"text": "So Police Sub-Inspector Salve went and met the shop keeper who is Santosh Tandale (pw10) and told him not to disclose anybody about his arrival at the shop, but to inform him if the appellant returned for returning the bicycle."
}
},
{
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"id": "84ca0698714347aba1870134da9de090",
"to_name": "text",
"type": "labels",
"value": {
"end": 10319,
"labels": [
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],
"start": 10181,
"text": "He continued the search of the appellant at places like Jamkhed, Mirajgaon, Diksal, Khadkat and other villages, but accused was not found."
}
},
{
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"id": "02ef73866b3f4a319caa3558562608d6",
"to_name": "text",
"type": "labels",
"value": {
"end": 10459,
"labels": [
"FAC"
],
"start": 10320,
"text": "He sent articles like, sari of the deceased, her petticoat, simple earth, blood mixed earth, blood stained pestle to the Chemical Analyser."
}
},
{
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"id": "a342b7ab4a7f42329e4099e3e50b524b",
"to_name": "text",
"type": "labels",
"value": {
"end": 10527,
"labels": [
"FAC"
],
"start": 10459,
"text": "\nHe produced the report of the Chemical Analyser at Exhs.\n43 and 44."
}
},
{
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"id": "fdd394ca814a44ed883b965ddcb6e84f",
"to_name": "text",
"type": "labels",
"value": {
"end": 10639,
"labels": [
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],
"start": 10528,
"text": "Thereafter he was asked to hand over the investigation to the Police Inspector Bandapatte (Pw12) on 25.10.2004."
}
},
{
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"id": "dfe4495d8e9c425ba3a3befb86a4bcea",
"to_name": "text",
"type": "labels",
"value": {
"end": 10738,
"labels": [
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],
"start": 10639,
"text": "\n 13. Police Inspector Bandapatte (pw12) stated that he also recorded statements of some witnesses."
}
},
{
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"id": "b620856553954fd69ab4dd7c2cf4e74b",
"to_name": "text",
"type": "labels",
"value": {
"end": 10926,
"labels": [
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],
"start": 10739,
"text": "Then he learnt that one person having bicycle with him and belonging to village Mirajgaon had come to Khandeshwari Dhaba situated at Manewadi shivar in Patoda Taluka near Nagar-Beed road."
}
},
{
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"id": "69a31d6b6062460bb4e21835b2dec9f3",
"to_name": "text",
"type": "labels",
"value": {
"end": 11111,
"labels": [
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],
"start": 10927,
"text": "The photograph of the appellant was available with them and, therefore, they went to the said Dhaba (restaurant) and inquired with the owner regarding the appellant - Navnath Waghmare."
}
},
{
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"id": "e494880ee6cf40f9966684071c82fd57",
"to_name": "text",
"type": "labels",
"value": {
"end": 11278,
"labels": [
"FAC"
],
"start": 11112,
"text": "On seeing the photograph the workers working in the said Dhaba said that one Ramesh Raut just looking like the person in the photograph was working in the said Dhaba."
}
},
{
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"id": "2f21ec92893e426288666821b473d221",
"to_name": "text",
"type": "labels",
"value": {
"end": 11343,
"labels": [
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],
"start": 11279,
"text": "The appellant was found sitting in the nearby agricultural land."
}
},
{
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"id": "51316cc580ef458bb16540d5e42b8fa3",
"to_name": "text",
"type": "labels",
"value": {
"end": 11381,
"labels": [
"FAC"
],
"start": 11344,
"text": "He was arrested and Exh.47 was drawn."
}
},
{
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"id": "34e0832cf1db41198d56efb2171d616c",
"to_name": "text",
"type": "labels",
"value": {
"end": 11523,
"labels": [
"FAC"
],
"start": 11382,
"text": "Thereafter the appellant showed willingness on 18.11.2004, while in the police custody, to produce the bicycle and his blood stained clothes."
}
},
{
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"id": "3127acb34a934cd8b111c32e4344cd3f",
"to_name": "text",
"type": "labels",
"value": {
"end": 11560,
"labels": [
"FAC"
],
"start": 11524,
"text": "Accordingly memorandum was prepared."
}
},
{
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"id": "64532cf5bbec4251965702b7f7a1da72",
"to_name": "text",
"type": "labels",
"value": {
"end": 11713,
"labels": [
"FAC"
],
"start": 11560,
"text": "\nThereafter the appellant again took police and panchas to Khandeshwari Dhaba and produced one pant and shirt from a drawer of pan shop nearby the Dhaba."
}
},
{
"from_name": "label",
"id": "ba6da70a148c4a33a833101e4dda92b4",
"to_name": "text",
"type": "labels",
"value": {
"end": 11782,
"labels": [
"FAC"
],
"start": 11714,
"text": "He also produced bicycle which was attached under panchanama Exh.25."
}
},
{
"from_name": "label",
"id": "2bf1520288ba4876953d22a1ec1640a2",
"to_name": "text",
"type": "labels",
"value": {
"end": 11875,
"labels": [
"FAC"
],
"start": 11783,
"text": "The said evidence is supported by the panch on discovery panchanama - Rajendra Tawale (pw2)."
}
},
{
"from_name": "label",
"id": "cee7a4c24652464b89c65edbc4d8ae88",
"to_name": "text",
"type": "labels",
"value": {
"end": 12044,
"labels": [
"FAC"
],
"start": 11876,
"text": "The clothes of the accused were also sent to the Chemical Analysis and the report of the Chemical Analyser detected the traces of human blood on the pocket of the pant."
}
},
{
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"id": "863bd3fb12dc4af384883196ecc2563a",
"to_name": "text",
"type": "labels",
"value": {
"end": 12210,
"labels": [
"FAC"
],
"start": 12044,
"text": "\n 14. The police also recorded the statement of the owner of the cycle mart - Santosh Tandale (pw10) who proved that the appellant had taken on hire the said bicycle."
}
},
{
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"id": "7ab1c3e285e54f29be10c236795b1d6b",
"to_name": "text",
"type": "labels",
"value": {
"end": 12363,
"labels": [
"ANALYSIS"
],
"start": 12210,
"text": "\n 15. Thus, in this case the circumstances proved clearly indicate that the appellant had slept with deceased Manjubai in the same room on fateful night."
}
},
{
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"id": "da66658e508841d4b1f143edd0affd72",
"to_name": "text",
"type": "labels",
"value": {
"end": 12476,
"labels": [
"ANALYSIS"
],
"start": 12363,
"text": "\nThe appellant left the house just before Tarabai (pw3) woke up at about 6.00 a.m. and thereafter he was missing."
}
},
{
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"id": "d6c69d1a767c47a6b30a3517c07eab69",
"to_name": "text",
"type": "labels",
"value": {
"end": 12585,
"labels": [
"ANALYSIS"
],
"start": 12477,
"text": "Tarabai (pw3) when went to woke up the appellant and Manjubai, saw Manjubai lying dead in the pool of blood."
}
},
{
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"id": "8bea6de706854e1ba175d62fb16abde1",
"to_name": "text",
"type": "labels",
"value": {
"end": 12651,
"labels": [
"ANALYSIS"
],
"start": 12586,
"text": "The iron pestle used for making powder of chilly was lying there."
}
},
{
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"id": "b237e6d1f1f44b5fbdf1236a91e5e790",
"to_name": "text",
"type": "labels",
"value": {
"end": 12678,
"labels": [
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],
"start": 12652,
"text": "It was stained with blood."
}
},
{
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"id": "227878cc09a34094b27a4c9ba11f24e1",
"to_name": "text",
"type": "labels",
"value": {
"end": 12790,
"labels": [
"ANALYSIS"
],
"start": 12678,
"text": "\n 16. The evidence of the doctor shows that the injuries were possibly caused by the iron pestle - article no.2."
}
},
{
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"id": "603ef12185d041da89c43364673d76e0",
"to_name": "text",
"type": "labels",
"value": {
"end": 12867,
"labels": [
"ANALYSIS"
],
"start": 12791,
"text": "The accused was working in Khandeshwari Dhaba under pseudonym 'Ramesh Raut'."
}
},
{
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"id": "581b71cc959e49a983bfaf2e0a607cd7",
"to_name": "text",
"type": "labels",
"value": {
"end": 12949,
"labels": [
"ANALYSIS"
],
"start": 12868,
"text": "He did not attend funeral of his wife and was absconding for one and half months."
}
},
{
"from_name": "label",
"id": "4dbda32a620042edb6e6cc79ece0fbc3",
"to_name": "text",
"type": "labels",
"value": {
"end": 13026,
"labels": [
"ANALYSIS"
],
"start": 12950,
"text": "There was also motive in as much as there was suspicion about the character."
}
},
{
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"id": "e23427e24c0d45669d71c427e9af3117",
"to_name": "text",
"type": "labels",
"value": {
"end": 13057,
"labels": [
"ANALYSIS"
],
"start": 13027,
"text": "He had quarrels with the wife."
}
},
{
"from_name": "label",
"id": "323e552b8cbd4049a92bbcd1a0c35780",
"to_name": "text",
"type": "labels",
"value": {
"end": 13119,
"labels": [
"ANALYSIS"
],
"start": 13058,
"text": "So in our opinion the chain of the circumstances is complete."
}
},
{
"from_name": "label",
"id": "4a037a31560049beb6452b1cd8a96fb1",
"to_name": "text",
"type": "labels",
"value": {
"end": 13163,
"labels": [
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],
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"text": "\n 17. The learned advocate cited some cases."
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"text": "The first is Kantilal alias K.L.Gordhandas Soni vs State of Gujarat (AIR 2003 SC 684)."
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"text": "In that case it was held, the circumstances that the accused was seen at the house of deceased on fateful day, he had given gold ornaments to gold smith for melting and he had sold gold ingots to a Jeweller were not established."
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"text": "The neighbour who had deposed to have seen the accused-appellant in the house on fateful day was not found trustworthy."
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"text": "He could not state how he could identify the accused-appellant though there was no light and his statement was recorded after 39 days."
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"text": "\n 18. The second case cited is State of U.P. vs Arun Kumar Gupta (AIR 2003 SC 801)."
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"text": "The blood stained articles recovered were not sent for examination."
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}
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"text": "the case of Joseph s/o Kooveli Poulo vs State of Kerala (2000) 5 SCC 197, deceased, an employee of a school was taken away from the school by the accused-appellant under a false pretext."
}
},
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"text": "She was last seen alive in the company of the appellant and the jewels worn by her at the time of her leaving the school with appellant were seized on the basis of information given by the appellant."
}
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"text": "The appellant instead of explaining those incriminating circumstances had taken a defence of total denial of everything when those circumstances were brought to his notice by the Court."
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"text": "\nSuch denial was held to be providing missing link connecting the appellant with the crime."
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"text": "20. In the present case also the appellant has come with a case of total denial."
}
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"text": "He does not explain what had happened in the room in which he was sleeping with his wife Manjubai, why he left the house without telling anyone before 6.00 a.m. and under what circumstances Manjubai had sustained injuries."
}
},
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"start": 15497,
"text": "\n 21. It may be noted that Dr.Kalkute (pw4) in his statement has stated that the death must have been caused about 6 to 7 hours after the last meal and it has come in the evidence of Tarabai (pw3) that she herself, Manjubai, the appellant and Bapu (pw6) all had dinner at 8.30 p.m. or so."
}
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"labels": [
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"text": "So the death must have occurred somewhere at 3.00 to 4.00 a.m. when the appellant alone was in the company of the deceased."
}
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"text": "In the facts and the circumstances of the case, we find no merit in the appeal and the same deserves to be dismissed."
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"text": "\n 22. In the result, the appeal is dismissed."
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"text": "\n (P.R.BORKAR, J.) (NARESH H.PATIL, J.) dbm/cra155.06"
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"text": " IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n BENCH AT AURANGABAD\n\n CRIMINAL APPEAL NO. 155 OF 2006\n\nNavnath s/o Dattatraya Waghmare, ...Appellant\nage 28 years, occ. labour,\nr/o Diksal, Taluka Karjat,\nDistrict Ahmednagar\n\n Versus\n\nThe State of Maharashtra, ...Respondent\nthrough Police Station Officer,\nPolice Station, Ashti,\nTaluka Ashti, District Beed.\n\n .....\nMr.C.V.Thombre, advocate for the appellant\nMrs.R.D.Reddy, A.P.P. for the respondent\n\n .....\n\n CORAM : NARESH H.PATIL\n AND\n P.R.BORKAR, JJ.\n\n DATED : 14.1.2008\n\nORAL JUDGMENT : (Per P.R.Borkar, J.) 1. The appellant is convicted by the learned Sessions Judge, Beed, on 5.1.2006 in Sessions Case No.\n 7 of 2005, for committing murder of his wife Manjubai and thus committing offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life by his judgment and order.\n 2. Briefly stated, deceased Manjubai was wife of present appellant. They married 15-16 years before the incident on 2.10.2004. They were blessed with two sons and a daughter. Still the appellant was suspecting character of Manjubai and harass her. As a result, Manjubai used to leave the house and go to the house of her sister Tarabai (pw3) or to her brother's house.\nAccused used to go and bring her back and again they used to live together. This happened many times.\n 3. Fifteen days before 2.10.2004 Manjubai had come to the house of Tarabai (pw3) after she was beaten by accused-appellant due to suspicion on her character and was living with Tarabai (pw3) at Hingni, Taluka Ashti, District Beed. The appellant is resident of village Diksal, Taluka Karjat, District Ahmednagar. On 1.10.2004 the appellant went to bring back his wife.\n Tarabai (pw3) and deceased Manjubai had gone in the land of Tarabai. They returned at about 6.00 p.m. On that day, the husband of Tarabai (pw3) Popat Pawal had gone to the brother of Tarabai for some reason and he had not returned back due to heavy rains. Bapu (pw6) son of Tarabai was at the house when the appellant came.\n Tarabai (pw3), Bapu (pw6), the appellant and deceased Manjubai took dinner and Manjubai and Tarabai went to sleep in a room described as \"Malwad\". Tarabai (pw3) and Bapu (pw6) slept in kitchen. At about 4.00 a.m.\n there was sound of opening door and Tarabai (pw3) saw the appellant going out. She thought that he might be going for answering nature's call and went to sleep. At 6.00 a.m. Tarabai (pw3) got up and was doing her daily chores. Tarabai (pw3) asked Bapu (pw6) to wake up Manjubai and the appellant, but he did not go. At about 6.30 a.m. Tarabai (pw3) went to knock the door of \"Malwad\", but the door got opened and she saw Manjubai lying in a pool of blood. Manjubai was dead. An iron pestle was lying nearby. The appellant was not there.\nSo, Tarabai (pw3) raised shouts. Bapu (pw6), neighbour, Ambadas Gavane (pw5) and others came. The matter was informed to Pandurang Zambare (pw8) who was police patil of village Hingni. Pandurang (pw8) went and informed the incident to police. Head constable Madhukar Shinde (pw9) came, drew inquest and spot panchanama, sent dead body for autopsy, recorded complaint of Tarabai (pw3) and then registered the offence. Further investigation was carried by Balasaheb Salve (pw11) and Krishna Bandapatte (pw12).\n 4. The accused was absconding since the happening of the incident and police were searching him. Police learnt that the appellant had hired a bicycle from Santosh Tandale (pw10) and had not returned the bicycle.\n Police later on got information that the appellant was working at a Dhaba (restaurant) at Wanjare Fata on Beed-Ahmednagar road. The restaurant was run in the name of \"Khandeshwari Dhaba\" by Ashok Yeole (pw7). So the police went and inquired with Ashok Yeole (pw7) and showed him photograph of the appellant. The persons working there identified the photograph as another waiter working under name Ramesh Raut. The appellant was then arrested. Thereafter the appellant produced his clothes which were worn by him at the time of the incident and a bicycle which was attached under panchanama. The Chemical Analyser found human blood stains on the pant of the appellant which was washed several times in the mean time. The appellant was absconding from 2.10.2004 to 15.11.2004. Finally the police filed chargesheet against the appellant.\n 5. The prosecution examined Tarabai (pw3) at Exh.26 and Bapu (pw6) at Exh.31. Both of them supported the prosecution case and stated that the accused used to suspect character of Manjubai and used to illtreat, beat and drive her out. Manjubai had come to them before 15 days before the incident. The accused came on earlier day and they had dinner at night. Thereafter Manjubai and the appellant went to sleep in the room called \"Malwad\". According to Tarabai (pw3) at 4.00 a.m. she saw appellant opening the door of the house, but she thought that he might be going out for answering nature's call. Both witnesses also stated that at about 6.30 a.m. Tarabai opened the door, saw Manjubai lying dead and Tarabai shouted and Bapu (pw6) also came there.\nThey saw Manjubai was lying dead in a pool of blood.\nThereafter neighbours were called. The accused was missing.\n 6. The said evidence of inmates of the house is further corroborated by neighbour Ambadas Gavane (pw5) who stated that he was knowing deceased Manjubai. She had come to reside with her sister Tarabai (pw3) 8-10 days prior to the incident. He had also seen the appellant at village Hingni on the previous day of incident in the evening. At about 6.30 p.m. the brother-in-law of Tarabai, by name Krishna, came to him at 6.30 a.m. and told him that the appellant had killed his wife Manjubai and he wanted to make a phone call.\n 7. This evidence is further supported by the police patil Pandurang Zambare (pw8) who is examined at Exh.33.\n He stated that he was residing in his field at Hingni.\n At about 9.00 a.m. he came to village locality. People had gathered at the house of Popat Pawal the husband of Tarabai. On inquiry he came to know that sister of Tarabai was dead inside the house and so he went and saw the dead body. There were injuries on the forehead of the deceased. So he went to Ashti police station and lodged report Exh.34 which was treated as accidental death report and inquiry was taken over by Head Constable Madhukar Shinde (pw9) 8. Madhukar Shinde (pw9) stated at Exh.35 that he went to the place of the incident, drew inquest panchanama and spot panchanama and also recorded statement of Tarabai (pw3) which was treated as complaint.\n 9. The evidence of Madhukar Shinde (pw8) is further corroborated by panch Laxman Zambare (pw1) examined at Exh.20. He proved the spot panchanama. The inquest panchanama Exh.18 is admitted by the accused under Section 294 of the Criminal Procedure Code. It is abundantly clear that it was a homicide.\n 10. Dr. Kalkute (pw4) performed the postmortem on the dead body on same day and he found following external injuries on the person of the deceased.\n \"(I) Clean lacerated wound on left eyebrow laterally, size 2 x 1 x 1/2 C.M.\n (II) Clean lacerated wound on scalp, posteriorly, just behind left ear, size 5 x 1 x 1/2 C.M.\n (III) Clean lacerated wound on left parietal region on scalp, size 2 x 1 x 1/2 C.M.\n (IV) C.L.W. on left pinna posteriorly, 2 x 1/2 x 1/2 C.M.\n (V) C.L.W. in front of left pinna 1 x 1/2 x 1/2 C.M.\n (VI) Fracture of mandible on chin and just below left ear. \"\n . On internal examination the doctor found following injuries.\n \"(I) Head injury blood clot blackish red in colour, in frontal area lateral to left eye, size 2 x 2 x 1/2 C.M.\n (II) Blood clot just behind left ear posteriorly, 5 x 1 x 1/2 C.M.\n (III) Blood clot just below left parietal region, 2 x 1 x 1/2 C.M. \"\n . According to the doctor, the external injuries mentioned at Sr. Nos. I to III correspond to the internal injuries noted and the cause of death was intracranial haemorrhage due to head injury associated with mandible fracture.\n 11. All the witnesses have stated about the iron pestle stained with blood lying near the dead body of Manjubai. So all above said evidence clearly showed that Manjubai and the appellant had slept together in the room called \"Malwad\" at night. Since early morning of the incident the appellant was missing and Manjubai was found dead in the house. It is argued before us that though Tarabai (pw3) and Bapu (pw6) had slept in the kitchen which was nearby, they did not hear any sound or shout. If a person fast asleep is given blow with heavy iron article like pestle on head, there are no chances of raising any voice by such person and, therefore, if nobody had heard any sound or shouts of Manjubai, it is not unnatural.\n 12. The learned advocate also drew our attention to cross-examination of Bapu (pw6) and argued that Bapu has not informed police patil or police immediately. The conduct of the appellant is also worth considering. The appellant was not seen since prior to 6.30 a.m. till he was arrested after one and half months. Police Sub-Inspector Salve (pw11) has stated that he took over investigation on 2.10.2004 at 10.00 p.m. The offence was registered under Section 302 of the Indian Penal Code. Since it was late at night, he went through the papers, but did not go to the scene of offence. Already inquest and spot panchanamas were drawn. The accused was absconding. He tried to search and trace out the accused, but could not find him. He also went to Hingni and recorded the statements of witnesses. He went to village Diksal to trace out the accused. Head Constable Shinde (pw9) was sent for tracing out the accused. It transpired that the accused had hired one bicycle from a cycle mart at Mirajgaon. So Police Sub-Inspector Salve went and met the shop keeper who is Santosh Tandale (pw10) and told him not to disclose anybody about his arrival at the shop, but to inform him if the appellant returned for returning the bicycle. He continued the search of the appellant at places like Jamkhed, Mirajgaon, Diksal, Khadkat and other villages, but accused was not found. He sent articles like, sari of the deceased, her petticoat, simple earth, blood mixed earth, blood stained pestle to the Chemical Analyser.\nHe produced the report of the Chemical Analyser at Exhs.\n43 and 44. Thereafter he was asked to hand over the investigation to the Police Inspector Bandapatte (Pw12) on 25.10.2004.\n 13. Police Inspector Bandapatte (pw12) stated that he also recorded statements of some witnesses. Then he learnt that one person having bicycle with him and belonging to village Mirajgaon had come to Khandeshwari Dhaba situated at Manewadi shivar in Patoda Taluka near Nagar-Beed road. The photograph of the appellant was available with them and, therefore, they went to the said Dhaba (restaurant) and inquired with the owner regarding the appellant - Navnath Waghmare. On seeing the photograph the workers working in the said Dhaba said that one Ramesh Raut just looking like the person in the photograph was working in the said Dhaba. The appellant was found sitting in the nearby agricultural land. He was arrested and Exh.47 was drawn. Thereafter the appellant showed willingness on 18.11.2004, while in the police custody, to produce the bicycle and his blood stained clothes. Accordingly memorandum was prepared.\nThereafter the appellant again took police and panchas to Khandeshwari Dhaba and produced one pant and shirt from a drawer of pan shop nearby the Dhaba. He also produced bicycle which was attached under panchanama Exh.25. The said evidence is supported by the panch on discovery panchanama - Rajendra Tawale (pw2). The clothes of the accused were also sent to the Chemical Analysis and the report of the Chemical Analyser detected the traces of human blood on the pocket of the pant.\n 14. The police also recorded the statement of the owner of the cycle mart - Santosh Tandale (pw10) who proved that the appellant had taken on hire the said bicycle.\n 15. Thus, in this case the circumstances proved clearly indicate that the appellant had slept with deceased Manjubai in the same room on fateful night.\nThe appellant left the house just before Tarabai (pw3) woke up at about 6.00 a.m. and thereafter he was missing. Tarabai (pw3) when went to woke up the appellant and Manjubai, saw Manjubai lying dead in the pool of blood. The iron pestle used for making powder of chilly was lying there. It was stained with blood.\n 16. The evidence of the doctor shows that the injuries were possibly caused by the iron pestle - article no.2. The accused was working in Khandeshwari Dhaba under pseudonym 'Ramesh Raut'. He did not attend funeral of his wife and was absconding for one and half months. There was also motive in as much as there was suspicion about the character. He had quarrels with the wife. So in our opinion the chain of the circumstances is complete.\n 17. The learned advocate cited some cases. The first is Kantilal alias K.L.Gordhandas Soni vs State of Gujarat (AIR 2003 SC 684). In that case it was held, the circumstances that the accused was seen at the house of deceased on fateful day, he had given gold ornaments to gold smith for melting and he had sold gold ingots to a Jeweller were not established. The neighbour who had deposed to have seen the accused-appellant in the house on fateful day was not found trustworthy. He could not state how he could identify the accused-appellant though there was no light and his statement was recorded after 39 days. So that was the decision on the facts of the said case.\n 18. The second case cited is State of U.P. vs Arun Kumar Gupta (AIR 2003 SC 801). In that case the witnesses who had seen accused and deceased entering house of accused, disclosed that fact at the time of his examination. It was found that the venue of offence was most unsuitable for offence. The blood stained articles recovered were not sent for examination. The evidence was not found reliable. Though it is alleged that injuries were caused inside the house, the body of the deceased was found in a well. There was no trail of blood from house to well where dead body was found.\nTherefore it was held in the facts of the said case that evidence was not sufficient to base conviction on the basis of circumstantial evidence.\n 19. ln the case of Joseph s/o Kooveli Poulo vs State of Kerala (2000) 5 SCC 197, deceased, an employee of a school was taken away from the school by the accused-appellant under a false pretext. She was last seen alive in the company of the appellant and the jewels worn by her at the time of her leaving the school with appellant were seized on the basis of information given by the appellant. The appellant instead of explaining those incriminating circumstances had taken a defence of total denial of everything when those circumstances were brought to his notice by the Court.\nSuch denial was held to be providing missing link connecting the appellant with the crime.\n 20. In the present case also the appellant has come with a case of total denial. He does not explain what had happened in the room in which he was sleeping with his wife Manjubai, why he left the house without telling anyone before 6.00 a.m. and under what circumstances Manjubai had sustained injuries.\n 21. It may be noted that Dr.Kalkute (pw4) in his statement has stated that the death must have been caused about 6 to 7 hours after the last meal and it has come in the evidence of Tarabai (pw3) that she herself, Manjubai, the appellant and Bapu (pw6) all had dinner at 8.30 p.m. or so. So the death must have occurred somewhere at 3.00 to 4.00 a.m. when the appellant alone was in the company of the deceased. In the facts and the circumstances of the case, we find no merit in the appeal and the same deserves to be dismissed.\n 22. In the result, the appeal is dismissed.\n (P.R.BORKAR, J.) (NARESH H.PATIL, J.) dbm/cra155.06 "
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"text": "Addl. District Judge, Mysuru.\n\n "
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"text": "R.A NO.349/2013\n\nAppellant /s 1"
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"text": "Tulasi"
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"start": 427,
"text": "Bai, Aged about 68 years"
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"start": 451,
"text": ", w/o\n late Srinivasa Rao"
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"text": "\n\n 2 Vinayaka"
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"text": ", Aged about 48 years, S/o late"
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"text": "\n Srinivasa Rao.\n\n 3 Satish,"
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"text": "Aged about 46 years"
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"text": ", S/o late"
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"start": 722,
"text": "\n Srinivasa Rao\n\n 4 Kishore, Aged about 32 years, S/o late"
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"start": 852,
"text": "\n Srinivasa Rao\n Appellants 1 to 4 are residing at Door\n No.616, 4th cross Road, (Near\n Mahadeshwara Temple) Pipeline road,\n Srinagar, Bangalore-560 050.\n\n 5 Roopa, Aged about 35 years, W/o\n Manjunath Rao, Residing at Door\n No.2070, 17thds West cross, Ashoka\n Road, Lashkar mohalla, Mysuru-560 001.\n\n 6 Vijayalakshmi, Aged about 33 years,\n W/"
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"text": "o Narayana Rao, Residing at Door"
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"end": 1722,
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"start": 1643,
"text": "\n No.16, Keerthi Apartments, Pallavaram,"
}
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"end": 1854,
"labels": [
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],
"start": 1722,
"text": "\n Chennai-560 001.\n\n Sri M.L.S. Adv.,\n\n\n "
}
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{
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"end": 1895,
"labels": [
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"start": 1854,
"text": "V/s\n 1 K.Pushkar Rao "
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"end": 1905,
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"text": "Since dead"
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"end": 1917,
"labels": [
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"text": "by his L.Rs"
}
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"end": 1966,
"labels": [
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],
"start": 1917,
"text": "\n\n 1.a) Kalavathi Bai,"
}
},
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"end": 1987,
"labels": [
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"start": 1967,
"text": "Aged about 60 years,"
}
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"end": 2195,
"labels": [
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"start": 1987,
"text": "\n W/o Late Pushkar Rao\n 1.b)Sanju Bai, Aged about 40 years W/o\n Chandrakanth Rao\n\n 1.c)Bharathi Bai,"
}
},
{
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"text": "Aged about 38 years\n "
}
},
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"value": {
"end": 2288,
"labels": [
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],
"start": 2244,
"text": "W/o Ganesh Rao,\n "
}
},
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"value": {
"end": 2300,
"labels": [
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"text": "L.Respondent"
}
},
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"text": "1.(a) to"
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"start": 2310,
"text": "1.(c) all are\n residing at No.3055, Near Siddappaji\n Temple, Ontipalya Bore, Hunsur Taluk,\n Mysuru District.\n\n 2 Srinivasa Rao, Aged abo.ut 47 years,\n S/o Late Subba Rao, Residing at\n D.No.2957, Dawood Khan Street,\n Lashkar Mohalla, Mysuru-570 001.\n\n R-1, R-1(a) to ("
}
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"end": 3103,
"labels": [
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],
"start": 2790,
"text": "c) Sri P.D.M.,\n Adv., R-2 dismissed.\n\nDate and nature of decree of The Judgment and Decree passed in\nappeal against O.S.No.406/2009 on the file of II Addl.\n Senior Civil Judge and CJM, Mysore\nDate of institution of the dated 26.09.2013."
}
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"end": 3190,
"labels": [
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],
"start": 3103,
"text": "\nappeal\n 30-11-2013\n\nDate of Judgment"
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"value": {
"end": 3222,
"labels": [
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"start": 3191,
"text": " 26-10-2015"
}
},
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"type": "labels",
"value": {
"end": 3330,
"labels": [
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],
"start": 3223,
"text": "Period of Judgment\n Year/s Month/s Day/s\n 2"
}
},
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"id": "19f963f4423f46ae81e5c989b2c7476c",
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"end": 3447,
"labels": [
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],
"start": 3330,
"text": "\n 1 04\n\n (C.CHANDRASEKHAR),\n "
}
},
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"id": "c5d9978ae84e4a2e9e7f9f4995a3351a",
"to_name": "text",
"type": "labels",
"value": {
"end": 3455,
"labels": [
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],
"start": 3447,
"text": "VII ADDL"
}
},
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"id": "41641b0054e64e778203ad9c27cc83f8",
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"type": "labels",
"value": {
"end": 3479,
"labels": [
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],
"start": 3456,
"text": "DISTRICT JUDGE, MYSURU."
}
},
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"to_name": "text",
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"value": {
"end": 3487,
"labels": [
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],
"start": 3481,
"text": ":: J U"
}
},
{
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"id": "f4d365e907e04751a8cc50f534a28fb8",
"to_name": "text",
"type": "labels",
"value": {
"end": 3495,
"labels": [
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],
"start": 3488,
"text": "D G M E"
}
},
{
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"id": "7fc61f6a8bf9413a96eb124dc7415311",
"to_name": "text",
"type": "labels",
"value": {
"end": 3502,
"labels": [
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],
"start": 3496,
"text": "N T ::"
}
},
{
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"id": "c9f08f9ecb08416ba5b35568ea460c1c",
"to_name": "text",
"type": "labels",
"value": {
"end": 3754,
"labels": [
"FAC"
],
"start": 3503,
"text": "The appellants have filed this appeal under Or.41 Rule 27 of CPC praying to set aside the judgment and decree passed in O.S. No.406/2009 dated 26.09.2013 on the file of II Addl.\nSenior Civil Judge and CJM, Mysuru and dismiss the suit of the plaintiff."
}
},
{
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"id": "7cac11d9ca9d4826943454ad4e2cd86d",
"to_name": "text",
"type": "labels",
"value": {
"end": 3855,
"labels": [
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],
"start": 3756,
"text": "2. The appellants were the defendants and respondent No.1 was the plaintiff before the lower court."
}
},
{
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"id": "03c6b3099f594c308feaac372f931bb4",
"to_name": "text",
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"value": {
"end": 4057,
"labels": [
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],
"start": 3856,
"text": "2nd respondent was the 9th defendant before the court below and as such for the sake of convenience, parties would be addressed in the course of this judgment as per their ranks before the lower court."
}
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"value": {
"end": 4077,
"labels": [
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],
"start": 4059,
"text": "Facts in brief: 3."
}
},
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"value": {
"end": 4244,
"labels": [
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],
"start": 4078,
"text": "The plaintiff had filed a suit against the defendants seeking half share and separate possession in the suit schedule property reserving right to claim mesne profits."
}
},
{
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"id": "c8623870c8e744b5b94de549ea544f85",
"to_name": "text",
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"value": {
"end": 4367,
"labels": [
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],
"start": 4245,
"text": "1st defendant is the wife of late Sreenivasa Rao, the brother of the plaintiff while defendants 2 to 8 are their children."
}
},
{
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"id": "b59bcab6b828442c9c964328ac45be91",
"to_name": "text",
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"value": {
"end": 4528,
"labels": [
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],
"start": 4368,
"text": "Earlier the suit schedule property belonged to one Valliambi and her children who had sold the same in favour of plaintiff and his elder brother Sreenivasa Rao."
}
},
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"id": "71fb7bbf0af74b7babd66a74ba752191",
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"value": {
"end": 4701,
"labels": [
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],
"start": 4529,
"text": "As they were minors at that point of time, their grandmother Gunabiamma represented them as guardian and acquired the suit schedule property under the registered sale deed."
}
},
{
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"id": "5712d8b029cf4adbb13f1129e7a32085",
"to_name": "text",
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"value": {
"end": 4772,
"labels": [
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],
"start": 4702,
"text": "The plaintiff and his brother continued to enjoy the property jointly."
}
},
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"to_name": "text",
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"value": {
"end": 4987,
"labels": [
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],
"start": 4773,
"text": "To the extent of his half undivided share, the plaintiff created a mortgage of the plaint schedule property in the name and favour of defendant No.9 and the said mortgage is yet to be redeemed for paucity of funds."
}
},
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"end": 5223,
"labels": [
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],
"start": 4988,
"text": "Until 2001, the plaintiff did not think in terms of claiming his half share by way of partition, however after the death of his elder brother Srenivasa Rao, he had called upon the defendants to effect partition and separate possession."
}
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"to_name": "text",
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"value": {
"end": 5255,
"labels": [
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],
"start": 5224,
"text": "However, they had pleaded time."
}
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"end": 5465,
"labels": [
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],
"start": 5256,
"text": "The defendants had failed to effect partition and during 2009 the 2nd defendant did not respond positively when questioned about the prudence of the defendants in trying to postpone the partition indefinitely."
}
},
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"end": 5601,
"labels": [
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],
"start": 5466,
"text": "Since the plaintiff was entitled for his legitimate half share in the suit schedule property he sued the defendants claiming his share."
}
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"value": {
"end": 5814,
"labels": [
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],
"start": 5603,
"text": "4. The 4th defendant for himself and on behalf of other defendants had filed written statement stating that the suit was bad for non joinder of parties as all the heirs of Gunabiyamma are not arrayed as parties."
}
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"end": 5979,
"labels": [
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],
"start": 5815,
"text": "It is their case that Gunabiyamma had purchased the suit schedule property and other properties situated in Lashkar mohalla and they were her Streedhana properties."
}
},
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"end": 6199,
"labels": [
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],
"start": 5980,
"text": "After her death the plaintiff, his elder brother Sreenivasa Rao and other heirs succeeded to the above properties and without impleading all the heirs of Gunabiyamma the suit is bad for non-joinder of necessary parties."
}
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"end": 6396,
"labels": [
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],
"start": 6200,
"text": "It was alleged that the plaintiff at the age of 8-10 years had run away from the house and his whereabouts were not known and presuming that he is dead, the defendants had performed his obsequies."
}
},
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"id": "2bed3ec392be46d98549d2e652aaa851",
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"end": 6537,
"labels": [
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],
"start": 6397,
"text": "Late Sreenivasa Rao was looking after Gunabiyamma and out of love and affection she has bequeathed the suit schedule property in his favour."
}
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"id": "60817892a17c47bdad967ef4fef1fa33",
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"end": 6792,
"labels": [
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],
"start": 6538,
"text": "In fact, during 1960-61 plaintiff returned home and expressed his financial difficulties and at that time Sreenivasa Rao had shown sympathy and provided accommodation in a portion of the suit schedule property and made plaintiff to settle down in Mysuru."
}
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"end": 7025,
"labels": [
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],
"start": 6792,
"text": "\nThereafter, Sreenivasa Rao saw that a corporation site was allotted in the name of plaintiff in Hunsur during the year 1983- 84 as a consolation since Sreenivasa Rao got the suit schedule property from Gunabiyamma by way of bequest."
}
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"to_name": "text",
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"value": {
"end": 7169,
"labels": [
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],
"start": 7026,
"text": "Plaintiff is a disgruntled person and at the instance of one Vijayakumar he has filed the suit in order to harass and grab the entire property."
}
},
{
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"id": "1a04ef32ca794aaf9c4501052538c3e9",
"to_name": "text",
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"value": {
"end": 7373,
"labels": [
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],
"start": 7170,
"text": "The defendant denies that Gunabiyamma had purchased the suit schedule property under the registered sale deed dated 18.12.1940 and not under registered sale deed dated 17.12.1945 as stated in the plaint."
}
},
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"id": "635a416d772e41a8be86f876e3db951a",
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"value": {
"end": 7482,
"labels": [
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],
"start": 7374,
"text": "After the bequest was made in favour of Sreenivasa Rao, the property documents were transferred in his name."
}
},
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"id": "e09a121a99c2409d8d11475245696257",
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"value": {
"end": 7578,
"labels": [
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],
"start": 7483,
"text": "He was paying tax to the corporation and after his death defendants are paying necessary taxes."
}
},
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],
"start": 7578,
"text": "\nPlaintiff is not having any manner of right, title much less half share in the suit schedule property and hence the suit deserves to be dismissed."
}
},
{
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"id": "588cba8b19ef4120bacd914e1266dbc1",
"to_name": "text",
"type": "labels",
"value": {
"end": 7891,
"labels": [
"FAC"
],
"start": 7726,
"text": "The claim made by the plaintiff that he had asked the defendants for partition and allotting his half share doesn't arise in view of the bequest made by Gunabiyamma."
}
},
{
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"id": "4daf885aa92647c48f133c11a74b6c3b",
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"value": {
"end": 8058,
"labels": [
"FAC"
],
"start": 7891,
"text": "\nThere is no cause of action to the suit and alleged that the plaintiff had filed a vexatious suit in order to harass them and hence it was prayed to dismiss the suit."
}
},
{
"from_name": "label",
"id": "9adcd22397614406adc89510a3fd1459",
"to_name": "text",
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"value": {
"end": 8415,
"labels": [
"FAC"
],
"start": 8058,
"text": "\n 5. Plaintiff had thereafter filed a rejoinder to the written statement filed by the defendants stating that plea taken about non-impleading the heirs of Gunabiyamma is not tenable as he had sought partition in the joint property of the plaintiff but not for joint family property of himself and Sreenivasa Rao and not joint family property of Gunabiyamma."
}
},
{
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"id": "f4dc9980de4f466cb6f354c4ca7042f0",
"to_name": "text",
"type": "labels",
"value": {
"end": 8638,
"labels": [
"FAC"
],
"start": 8415,
"text": "\nThe claim made by defendants that suit schedule property was purchased by Gunabiyamma under registered sale deed dated 18.12.1940 is only an imaginary statement and further misconceived that it was her Streedhana property."
}
},
{
"from_name": "label",
"id": "b71686aa170b4cae804a74fd4ebe51ae",
"to_name": "text",
"type": "labels",
"value": {
"end": 8861,
"labels": [
"FAC"
],
"start": 8639,
"text": "It is denied by the plaintiff that the bequest was made by Gunabiyamma in favour of Sreenivasa Rao and as such the defendants are put to strict proof to produce the alleged bequest or furnish the date of the said document."
}
},
{
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"id": "d99aa4f7a7cb4664bd052840e9fb6c5b",
"to_name": "text",
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"value": {
"end": 8977,
"labels": [
"ISSUE"
],
"start": 8863,
"text": "6. On the basis of the above pleadings of the parties, the trial court has framed the following:- :I S S U E S: 1."
}
},
{
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"id": "a61bc937bb2d4a20b9ceae5c2a74ffe3",
"to_name": "text",
"type": "labels",
"value": {
"end": 9222,
"labels": [
"ISSUE"
],
"start": 8978,
"text": "Whether the plaintiff proves that the suit schedule property at a given point of time belonged to Smt.Vallambi and her children and they have sold the same in favour of plaintiff and his brother as per the Registered sale deed dated 17.12.1945?"
}
},
{
"from_name": "label",
"id": "98696ced29684da7a8332bfd4529e127",
"to_name": "text",
"type": "labels",
"value": {
"end": 9357,
"labels": [
"ISSUE"
],
"start": 9224,
"text": "2. Whether the plaintiff proves that he and his brother are joint owners in joint possession and enjoyment of suit schedule property?"
}
},
{
"from_name": "label",
"id": "d42742fb899f4828af65e11ee131e36a",
"to_name": "text",
"type": "labels",
"value": {
"end": 9572,
"labels": [
"ISSUE"
],
"start": 9359,
"text": "3. Whether the defendants prove that the suit is not properly valued and court fee paid is not sufficient?\n 4. Whether the plaintiff is entitle for share over the suit schedule property?\n 5. What order or decree?"
}
},
{
"from_name": "label",
"id": "c88adbe8129e41fdbaa37135df0c1961",
"to_name": "text",
"type": "labels",
"value": {
"end": 9594,
"labels": [
"ISSUE"
],
"start": 9572,
"text": "\n Additional Issue: 1."
}
},
{
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"id": "0dd26b871fa64544aa7688223f828637",
"to_name": "text",
"type": "labels",
"value": {
"end": 9682,
"labels": [
"ISSUE"
],
"start": 9595,
"text": "Whether the Defendants prove that the suit is bad for non-joinder of necessary parties?"
}
},
{
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"id": "65ca0ea50f5a420b9d6593185b006c85",
"to_name": "text",
"type": "labels",
"value": {
"end": 9826,
"labels": [
"ANALYSIS"
],
"start": 9684,
"text": "7. In order to prove the case, plaintiff's attorney holder was examined as PW-1 and through him 7 documents came to be marked as Exs.P1 to P7."
}
},
{
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"id": "1b72f2a684f54852a0b88fa482e0e43c",
"to_name": "text",
"type": "labels",
"value": {
"end": 9950,
"labels": [
"ANALYSIS"
],
"start": 9827,
"text": "Defendants, except for filing written statement, did not adduce any evidence or produce documents in support of their case."
}
},
{
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"id": "e373eda87a4b44d48728bb746479b5ff",
"to_name": "text",
"type": "labels",
"value": {
"end": 10159,
"labels": [
"RLC"
],
"start": 9950,
"text": "\n 8. After perusing the evidence adduced by the plaintiff and looking in to the documents placed before court, the learned trial judge has answered issues 1, 2 and 4 in the affirmative and issue No.3 and Addl."
}
},
{
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"id": "6cda04387c714655bdfe60e447634f1e",
"to_name": "text",
"type": "labels",
"value": {
"end": 10186,
"labels": [
"RLC"
],
"start": 10160,
"text": "Issue No.1 in the negative"
}
},
{
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"id": "dc8bd04d73c9419aa4d481733011419b",
"to_name": "text",
"type": "labels",
"value": {
"end": 10225,
"labels": [
"RLC"
],
"start": 10187,
"text": "and decreed the suit of the plaintiff."
}
},
{
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"id": "ec0b2d78f8cf4148b0f147d08574e4c1",
"to_name": "text",
"type": "labels",
"value": {
"end": 10665,
"labels": [
"ANALYSIS"
],
"start": 10225,
"text": "\n 9. Aggrieved by the impugned judgment and decree Appellants/defendants have come before this court urging the following grounds ; a) The trial court ought to have focused its attention on the pleading that the plaintiff has relied upon the document dated 17.12.1945 and claimed his right to seek partition but the oral evidence adduced is contrary to his pleadings, wherein it is admitted that the property was purchased in the year 1959."
}
},
{
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"id": "d32840c0303e4e71bf6f0b3482af5cea",
"to_name": "text",
"type": "labels",
"value": {
"end": 10858,
"labels": [
"ANALYSIS"
],
"start": 10666,
"text": "The variance of pleading, the oral evidence and the documentary proof Ex.P2 do not tally and as such the trial court ought not to have relied on Ex.P2 to hold that the said document is proved."
}
},
{
"from_name": "label",
"id": "fec719de19dc45b8bd59fbe1dee600cc",
"to_name": "text",
"type": "labels",
"value": {
"end": 11020,
"labels": [
"ANALYSIS"
],
"start": 10858,
"text": "\n b) The plaintiff had not produced the legible document or certified copy of the sale deed and as such the trial court ought to have rejected Ex.P2 as illegible."
}
},
{
"from_name": "label",
"id": "754c879a66414836a8fad472fd334bfa",
"to_name": "text",
"type": "labels",
"value": {
"end": 11246,
"labels": [
"ANALYSIS"
],
"start": 11020,
"text": "\n c) The trial court ought to have rejected the evidence of PW-1 who is the power of attorney holder of plaintiff and had no personal knowledge of Ex.P2 document, as he was not at all born as on the date of the said sale deed."
}
},
{
"from_name": "label",
"id": "d0dfa38033b949c483ddffd94fc9c8c8",
"to_name": "text",
"type": "labels",
"value": {
"end": 11393,
"labels": [
"ANALYSIS"
],
"start": 11246,
"text": "\n The evidence of power of attorney is no evidence in the eye of law and hence the trial court should not have relied upon the evidence of PW-1."
}
},
{
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"id": "b7be243f62f344f587533c9df2dcef00",
"to_name": "text",
"type": "labels",
"value": {
"end": 11747,
"labels": [
"ANALYSIS"
],
"start": 11393,
"text": "\n d) The trial court failed to notice the fact that the suit schedule property earlier belong to Valambi and her children and from her Gunabiyamma grandmother of plaintiff and Late Sreenivasa Rao had purchased the same is not at all established, hence the finding of the trial court on issue No.1 is perverse, illegal and unsustainable in the eye of law."
}
},
{
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"id": "ed873ccc67b64cc9a95112959ab9a1f7",
"to_name": "text",
"type": "labels",
"value": {
"end": 11834,
"labels": [
"ANALYSIS"
],
"start": 11747,
"text": "\n e) The trial court was also not correct in holding that Ex.P2 is an ancient document."
}
},
{
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"id": "29826ddafaa24e47beb5ecdb4b7cbcdf",
"to_name": "text",
"type": "labels",
"value": {
"end": 11951,
"labels": [
"ANALYSIS"
],
"start": 11835,
"text": "Since PW-1 had no personal knowledge of the said document presumption U/s. 90 of the Evidence Act was not available."
}
},
{
"from_name": "label",
"id": "a8f081da2de8441f801700a4730952c2",
"to_name": "text",
"type": "labels",
"value": {
"end": 12111,
"labels": [
"ANALYSIS"
],
"start": 11951,
"text": "\n f) The trial court ought to have held that the plaintiff had relinquished his right on the suit property since onus lie on him to seek the right of partition."
}
},
{
"from_name": "label",
"id": "06547ff75e6a4a5aa2c1be03c89f90cb",
"to_name": "text",
"type": "labels",
"value": {
"end": 12404,
"labels": [
"ANALYSIS"
],
"start": 12112,
"text": "PW-1 has admitted that late Sreenivasa Rao purchased the property at Hunsur in the name of plaintiff and also had put up construction and as such the trial court ought to have presumed that the plaintiff had given up his right in the suit schedule property and should have dismissed the suit."
}
},
{
"from_name": "label",
"id": "90cf8bca07d546b49eca2dc40e58ecef",
"to_name": "text",
"type": "labels",
"value": {
"end": 12501,
"labels": [
"ANALYSIS"
],
"start": 12404,
"text": "\n g) The trial court had held that Gunabiyamma acted as guardian of plaintiff and Sreenivasa Rao."
}
},
{
"from_name": "label",
"id": "65dbcf8b756945d7af227bd1c95fa5aa",
"to_name": "text",
"type": "labels",
"value": {
"end": 12715,
"labels": [
"ANALYSIS"
],
"start": 12502,
"text": "The parents of plaintiff and Sreenivasa Raod were alive at that point of time and as such the trial court should have held that Gunabiyamma grandmother could not have acted as guardian when the parents were alive."
}
},
{
"from_name": "label",
"id": "27453e3e6f5745e7a34d97df3ca14801",
"to_name": "text",
"type": "labels",
"value": {
"end": 12912,
"labels": [
"ANALYSIS"
],
"start": 12715,
"text": "\n h) The trial court had also erroneously came to the conclusion that the plaintiff was in possession of the suit schedule property ignoring the presumption under law that possession follows title."
}
},
{
"from_name": "label",
"id": "93430547e4ba4e1e9d27541589d17d5b",
"to_name": "text",
"type": "labels",
"value": {
"end": 13006,
"labels": [
"ANALYSIS"
],
"start": 12913,
"text": "The plaintiff had not established that he was not in joint possession along with the parents."
}
},
{
"from_name": "label",
"id": "31715d1e5dec45fea2b30b8468def362",
"to_name": "text",
"type": "labels",
"value": {
"end": 13227,
"labels": [
"ANALYSIS"
],
"start": 13006,
"text": "\n i) The trial court ought to have held that the plaintiff was not in actual possession of the suit schedule property and further should not have held that it was the joint family property of plaintiff and Sreenivasa Rao."
}
},
{
"from_name": "label",
"id": "122be24656834a4cb038dc9eef854af0",
"to_name": "text",
"type": "labels",
"value": {
"end": 13537,
"labels": [
"ANALYSIS"
],
"start": 13228,
"text": "The evidence on record and admissions made by PW-1 is clear that the appellants and late Sreenivasa Rao had paid taxes to the corporation which was clear that the plaintiff was excluded from joint enjoyment of the property and hence decreeing the suit of the plaintiff for partition is not sustainable in law."
}
},
{
"from_name": "label",
"id": "4b7f318835b24f309bdd891871db2fd9",
"to_name": "text",
"type": "labels",
"value": {
"end": 13629,
"labels": [
"ANALYSIS"
],
"start": 13537,
"text": "\n j) Lastly prayed to set aside the impugned judgment and dismiss the suit of the plaintiff."
}
},
{
"from_name": "label",
"id": "59e4501457c447a99d61d167c7857581",
"to_name": "text",
"type": "labels",
"value": {
"end": 13900,
"labels": [
"ISSUE"
],
"start": 13631,
"text": "10. By virtue of the above facts and circumstances the points that would arise for my consideration are:- (1) Whether the impugned judgment and decree of the lower court is opposed to law, facts and circumstances of the case and interference of this court is necessary?"
}
},
{
"from_name": "label",
"id": "8a56065c28db4b018b2867afdf5ba8ad",
"to_name": "text",
"type": "labels",
"value": {
"end": 13917,
"labels": [
"ISSUE"
],
"start": 13900,
"text": "\n (2) What Order?"
}
},
{
"from_name": "label",
"id": "82bf0aaa400b401e81d714437d8538f5",
"to_name": "text",
"type": "labels",
"value": {
"end": 14015,
"labels": [
"NONE"
],
"start": 13917,
"text": "\n 11. I have heard the arguments addressed by the counsels of both parties and perused the record."
}
},
{
"from_name": "label",
"id": "cc00ffe1624f43c780066b1f82bd9ae5",
"to_name": "text",
"type": "labels",
"value": {
"end": 14099,
"labels": [
"ANALYSIS"
],
"start": 14015,
"text": "\n 12. My findings on the above points are as under:- Point No.1 :- In the Negative."
}
},
{
"from_name": "label",
"id": "48f9decd6a2a48d489af6b5bbb06ae41",
"to_name": "text",
"type": "labels",
"value": {
"end": 14173,
"labels": [
"ANALYSIS"
],
"start": 14099,
"text": "\nPoint No.2 :- As per final order for the following;.\n R E A S O N S NOTE:"
}
},
{
"from_name": "label",
"id": "b86abb37b9b64db0a2c1a3c209541379",
"to_name": "text",
"type": "labels",
"value": {
"end": 14266,
"labels": [
"ANALYSIS"
],
"start": 14174,
"text": "Initially, except filing the written statement, the defendants had not adduced any evidence."
}
},
{
"from_name": "label",
"id": "d7e6b2b17f19427d9ea99b7e4f9adb43",
"to_name": "text",
"type": "labels",
"value": {
"end": 14379,
"labels": [
"ANALYSIS"
],
"start": 14267,
"text": "The Attorney holder of the plaintiff was examined as PW-1 and seven documents came to be marked as Exs.P1 to P7."
}
},
{
"from_name": "label",
"id": "17ae88a1a2fb40c29e95818cdf8eaeb0",
"to_name": "text",
"type": "labels",
"value": {
"end": 14506,
"labels": [
"ANALYSIS"
],
"start": 14380,
"text": "Thereafter, the Trial judge heard the arguments of plaintiff and disposed the matter by pronouncing the judgment on 19.3.2011."
}
},
{
"from_name": "label",
"id": "76d3d443b92542518ab74c428370af8d",
"to_name": "text",
"type": "labels",
"value": {
"end": 14800,
"labels": [
"ANALYSIS"
],
"start": 14506,
"text": "\nThereafter, defendants filed Miscellaneous petition No.142/2011 before the lower court stating that opportunity was not given to them to present their case and the learned trial judge allowed the said petition by order dated 31.10.2011 by setting aside the judgment passed by him on 19.3.2011."
}
},
{
"from_name": "label",
"id": "78b86271854948fa80abc99e20dd7094",
"to_name": "text",
"type": "labels",
"value": {
"end": 15015,
"labels": [
"ANALYSIS"
],
"start": 14800,
"text": "\n Despite setting aside the earlier judgment and restoring the suit to its original file in order to give an opportunity to the defendants to adduce their evidence and present their case, defendants failed to do so."
}
},
{
"from_name": "label",
"id": "ba34e2ae5d6f462390fbc83e0db0f6fe",
"to_name": "text",
"type": "labels",
"value": {
"end": 15033,
"labels": [
"ANALYSIS"
],
"start": 15015,
"text": "\n POINT NO.1:- 13."
}
},
{
"from_name": "label",
"id": "fcea9e6ed521449b97b45e1862c8a479",
"to_name": "text",
"type": "labels",
"value": {
"end": 15513,
"labels": [
"ANALYSIS"
],
"start": 15034,
"text": "It was the case of the plaintiff that his grand-mother Gunabiyamma had purchased the suit schedule property on behalf of herself and his brother late Sreenivasa Rao under a registered sale deed and after her demise both herself and her brother had succeeded to the said property as joint owners and since he was having rights in respect of the half share in the said property, he had filed the suit praying the court to effect partition and separate possession of his half share."
}
},
{
"from_name": "label",
"id": "12ead9ca1d9848c8b329b16d3afbf374",
"to_name": "text",
"type": "labels",
"value": {
"end": 15588,
"labels": [
"ANALYSIS"
],
"start": 15514,
"text": "The defendants had taken omnibus plea and had denied the plaintiff's case."
}
},
{
"from_name": "label",
"id": "bcc6c285fea242479dab2391ae263bbb",
"to_name": "text",
"type": "labels",
"value": {
"end": 15804,
"labels": [
"ANALYSIS"
],
"start": 15589,
"text": "It was their specific case that the suit schedule property was not amenable for partition as late Sreenivasa Rao had become the exclusive owner of the property by virtue of the bequest made in favour of Gunabiyamma."
}
},
{
"from_name": "label",
"id": "d1a693fd39e44226b29c97bd797eac4e",
"to_name": "text",
"type": "labels",
"value": {
"end": 15946,
"labels": [
"ANALYSIS"
],
"start": 15805,
"text": "It is pertinent to note that the pleas that were taken by the defendants in their written statement were not proved by adducing any evidence."
}
},
{
"from_name": "label",
"id": "3442557af6e94c5e81c673fbe3b6207a",
"to_name": "text",
"type": "labels",
"value": {
"end": 16011,
"labels": [
"ANALYSIS"
],
"start": 15946,
"text": "\n The date of bequest was not mentioned in the written statement."
}
},
{
"from_name": "label",
"id": "68f93676153f4ed49b392a64034c2961",
"to_name": "text",
"type": "labels",
"value": {
"end": 16298,
"labels": [
"ANALYSIS"
],
"start": 16012,
"text": "It appears from the rejoinder filed by the plaintiff to the written statement of the defendants, that notice was issued under Or.12 Rule.8 of CPC calling upon them to furnish copy of the bequest or at least the date of the bequest but the said notice was not complied by the defendants."
}
},
{
"from_name": "label",
"id": "c06a74534d6745c9934508a6c7cc6151",
"to_name": "text",
"type": "labels",
"value": {
"end": 16404,
"labels": [
"ANALYSIS"
],
"start": 16299,
"text": "Opportunity was given, not once but twice, to the defendants to adduce evidence but they had not done so."
}
},
{
"from_name": "label",
"id": "c759eb229175478c8ea1c5bae6efc76f",
"to_name": "text",
"type": "labels",
"value": {
"end": 16660,
"labels": [
"ANALYSIS"
],
"start": 16405,
"text": "The learned counsel for the defendants/appellants had submitted that the trial court did not frame any issues casting burden on the defendants calling upon them to adduce evidence or to produce the bequest/will and as such no evidence was adduced by them."
}
},
{
"from_name": "label",
"id": "77977592d8f146e2806d5dd861eb88e2",
"to_name": "text",
"type": "labels",
"value": {
"end": 16813,
"labels": [
"ANALYSIS"
],
"start": 16661,
"text": "Similarly, a plea was taken in the written statement that the suit schedule property and other properties were the Streedhana properties of Gunabiyamma."
}
},
{
"from_name": "label",
"id": "c2326b5c112c44eba648f2658ee24882",
"to_name": "text",
"type": "labels",
"value": {
"end": 17077,
"labels": [
"ANALYSIS"
],
"start": 16814,
"text": "On this point also no evidence was adduced and similar arguments as above was put forth that since the trial court did not frame proper issues casting burden on defendants and hence no fault can be found on the defendants for omission occurred to adduce evidence."
}
},
{
"from_name": "label",
"id": "1a623a8d173d49ac93a36a20cbb9f75b",
"to_name": "text",
"type": "labels",
"value": {
"end": 17216,
"labels": [
"ANALYSIS"
],
"start": 17079,
"text": "14. The lower court, after receiving written statement, had framed issues 1 to 5 and subsequently one additional issue came to be framed."
}
},
{
"from_name": "label",
"id": "576eebf9e3f94684b2b6414f8cde26b0",
"to_name": "text",
"type": "labels",
"value": {
"end": 17357,
"labels": [
"ANALYSIS"
],
"start": 17217,
"text": "On perusal of the same it is seen that except issue No.3 and additional issue, all other issues were framed casting burden on the plaintiff."
}
},
{
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"end": 17513,
"labels": [
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"start": 17358,
"text": "No issues were framed casting burden on the defendants calling upon them to prove that the suit schedule property was a Streedhana property of Gunabiyamma."
}
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"labels": [
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"start": 17514,
"text": "Further no issue was also framed casting burden on the defendants to prove that Gunabiyamma had made a bequest in favour of late Sreenivasa Rao in respect of the suit schedule property."
}
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"end": 17968,
"labels": [
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"start": 17700,
"text": "No doubt, proper issues were not framed by the court below, yet in the impugned judgment all those points are covered by the learned trial judge and since no evidence came to be adduced by the defendants, he had accepted the case of the plaintiff and decreed the suit."
}
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"end": 18116,
"labels": [
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"start": 17969,
"text": "The fact that the lower court had not framed proper issues also, in my opinion, depended upon the conduct of the defendants before the lower court."
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{
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"labels": [
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"start": 18117,
"text": "As observed above they did not contest the suit initially and as such an exparte judgment came to be pronounced on 19.3.2011."
}
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{
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"id": "d05d2741cc90466388442c0b4045920a",
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"end": 18520,
"labels": [
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],
"start": 18243,
"text": "Subsequently, though they showed interest in contesting the suit by filing Misc. petition and filed written statement, they again failed to adduce evidence and as such the trial court appears to have not shown much interest or attention towards re-casting or re-framing issues."
}
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"labels": [
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"start": 18521,
"text": "It is also pertinent to note at this stage that the Officer who had framed issues and the Officer who pronounced the impugned judgment are different and perhaps taking note of the reluctance and omission on the part of the defendants in adducing any evidence, the impugned judgment came to be passed after considering the material on record."
}
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"end": 19113,
"labels": [
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],
"start": 18863,
"text": "The defendants, who had not showed any interest before the trial court to adduce any evidence, are estopped from submitting arguments that they had not adduced any evidence before the trial court as there were no issues framed casting burden on them."
}
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{
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"id": "e161c31c00e94279a83d8d3603edf986",
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"value": {
"end": 19217,
"labels": [
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],
"start": 19113,
"text": "\n 15. The Attorney holder of the plaintiff namely Vijayakumar had given evidence before the lower court."
}
},
{
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"id": "5db44eaefdd54d45a3433fdadb14257f",
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"end": 19437,
"labels": [
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],
"start": 19218,
"text": "The learned counsel appearing for the appellants had submitted that evidence of Attorney holder ought not to have been considered by the lower court as he had no locus standi to give evidence on behalf of the plaintiff."
}
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{
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"id": "264abc56e08a4cd28126f1bc0cc96112",
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"value": {
"end": 19649,
"labels": [
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],
"start": 19438,
"text": "Even in the grounds of appeal it is alleged that PW-1/Attorney holder had no personal knowledge of Ex.P2 document as he was not born as on that date and his evidence is un-trustworthy to prove Ex.P2 transaction."
}
},
{
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"id": "b5e7dfb454e746189835c93099cf423a",
"to_name": "text",
"type": "labels",
"value": {
"end": 19784,
"labels": [
"ARG_PETITIONER"
],
"start": 19650,
"text": "On perusal of the material on record, it is seen that the plaintiff was aged about 65 years when he had given Ex.P1 power of attorney."
}
},
{
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"id": "5c4a447d9fbe425280cbf6d96976d23c",
"to_name": "text",
"type": "labels",
"value": {
"end": 19954,
"labels": [
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],
"start": 19785,
"text": "The learned trial judge after verifying the reasons/ grounds, had allowed the application and permitted this Attorney holder to give evidence on behalf of the plaintiff."
}
},
{
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"id": "b5d89e75a4404e1d8e73fcd6f06c8728",
"to_name": "text",
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"value": {
"end": 20062,
"labels": [
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],
"start": 19955,
"text": "Or.3 Rule.2 of CPC expressly provides that party to the suit can give evidence through his Attorney holder."
}
},
{
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"id": "1ae493e001c44fdeaff157ecf27d8930",
"to_name": "text",
"type": "labels",
"value": {
"end": 20320,
"labels": [
"ARG_PETITIONER"
],
"start": 20063,
"text": "Our Hon'ble High court in the case of Gangavva v/s Arjunsa reported in (2001) 3 KCCR page 1549 has held that the provisions of Or.3 Rule 2 CPC deals with the legal position of validity and competence of the acts of the power of attorney in conducting cases."
}
},
{
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"id": "3395abb97dc24224bd9f7415bcb05f3d",
"to_name": "text",
"type": "labels",
"value": {
"end": 20474,
"labels": [
"ARG_PETITIONER"
],
"start": 20321,
"text": "It is further observed that a party to a suit can give evidence through power of attorney and as such the evidence would be a valid substituted evidence."
}
},
{
"from_name": "label",
"id": "2a46e92449214544a01add420004e9fc",
"to_name": "text",
"type": "labels",
"value": {
"end": 20975,
"labels": [
"ARG_PETITIONER"
],
"start": 20475,
"text": "In yet another case, Kaju Devi and Another v/s H.S.Rudrappa @ Rudy and others, ILR-2005 Kar 4370, the GPA holder of the plaintiff was examined and he had spoken to the necessary and relevant material facts of the case which are in his personal knowledge while acting as an agent of the plaintiff and it was held that the same was permissible under the provisions of Power of Attorneys Act as well as Or.3 Rule.2 CPC R/W Sec.120 of the Evidence Act and also U/s 181 and 182 of the Indian Contract Act."
}
},
{
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"id": "7537b98c89274e0a84defe5d9ccc3bbf",
"to_name": "text",
"type": "labels",
"value": {
"end": 21317,
"labels": [
"ARG_PETITIONER"
],
"start": 20976,
"text": "It was not the case of the defendants in that case that PW-1, who acted as agent of the plaintiff, was not given authority to power of attorney to adduce evidence as a witness and it was therefore held that the contention raised by the defendants that the evidence of P.A holder should not have accepted by the lower court was not justified."
}
},
{
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"id": "8a6aabdc55fb45f09837b518fabf2651",
"to_name": "text",
"type": "labels",
"value": {
"end": 21423,
"labels": [
"ARG_PETITIONER"
],
"start": 21318,
"text": "The ratio laid down in the above cases squarely applies to the facts and circumstances of this case also."
}
},
{
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"id": "f5b3e7e955b54357b5efcc99c172bbec",
"to_name": "text",
"type": "labels",
"value": {
"end": 21525,
"labels": [
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],
"start": 21424,
"text": "Admittedly the plaintiff had given power of attorney to Vijayakumar to adduce evidence on his behalf."
}
},
{
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"id": "6bd585f726474f5ea93ea91b618e24f7",
"to_name": "text",
"type": "labels",
"value": {
"end": 21575,
"labels": [
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],
"start": 21526,
"text": "The power of attorney came to be marked as Ex.P1."
}
},
{
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"id": "7e3db2bba98b4b42ac59a774b15e333e",
"to_name": "text",
"type": "labels",
"value": {
"end": 21747,
"labels": [
"ARG_PETITIONER"
],
"start": 21576,
"text": "The said power of attorney holder has given evidence in respect of the material facts which are to his personal knowledge by acting as an agent on behalf of the plaintiff."
}
},
{
"from_name": "label",
"id": "d1d81cefeaba42048e5e08794e67c456",
"to_name": "text",
"type": "labels",
"value": {
"end": 21911,
"labels": [
"ARG_PETITIONER"
],
"start": 21748,
"text": "Hence, the contention raised by the appellants that the evidence of P.A holder is not valid and trial court ought to have not accepted his evidence holds no water."
}
},
{
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"id": "2ac2f7d8488143e9b293d3d455d6447d",
"to_name": "text",
"type": "labels",
"value": {
"end": 22280,
"labels": [
"ARG_PETITIONER"
],
"start": 21912,
"text": "Since Or.3 Rule.2 of CPC empowers a party to the suit to give evidence through power of attorney holder and the trial court after giving an opportunity to the plaintiff to give evidence through his Attorney holder has rightly considered his evidence, the arguments put forth by the counsel for appellants to reject the evidence of the Attorney holder is not justified."
}
},
{
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"id": "d45fa85fab294fadb7080f7a958e8dd1",
"to_name": "text",
"type": "labels",
"value": {
"end": 22598,
"labels": [
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],
"start": 22280,
"text": "\n 16. As aforesaid the defendants did not adduce any evidence before the trial court in respect of the plea taken in their written statement that the suit schedule property was a Streedhana property of Gunabiyamma and they had also failed to prove that she had bequeathed the property in favour of late Sreenivasa Rao."
}
},
{
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"id": "f6d753fb174e4d32b97e9d92e98f8b28",
"to_name": "text",
"type": "labels",
"value": {
"end": 22797,
"labels": [
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],
"start": 22599,
"text": "The counsel for the appellant pointed out that the plaintiff before the trial court had pleaded that he derives title under document dated 17.12.1945 but however the said document was not on record."
}
},
{
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"id": "97c2e421fdeb48cd8490275add61af99",
"to_name": "text",
"type": "labels",
"value": {
"end": 23081,
"labels": [
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],
"start": 22798,
"text": "He would further address arguments that whatever document that was placed before court was dated 18.12.1940 and hence there was variance in pleadings and evidence given and as such the lower court should not have considered the case of the plaintiff and must have dismissed the suit."
}
},
{
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"id": "5a8393df0bcf476aa4d61f84f0360d1f",
"to_name": "text",
"type": "labels",
"value": {
"end": 23341,
"labels": [
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],
"start": 23082,
"text": "It is a fact that it was pleaded in the plaint that Gunabiyamma for and on behalf of the plaintiff and his brother late Sreenivasa Rao had purchased the suit schedule property under the registered sale deed dated 17.12.1945 from Smt.Valiambi and her children."
}
},
{
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"id": "59fecaece50342809032ee95a0eca508",
"to_name": "text",
"type": "labels",
"value": {
"end": 23374,
"labels": [
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],
"start": 23342,
"text": "Ex.P2 is the original sale deed."
}
},
{
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"id": "56bc94432d544df8b10340cf035330d4",
"to_name": "text",
"type": "labels",
"value": {
"end": 23438,
"labels": [
"ARG_RESPONDENT"
],
"start": 23375,
"text": "A typed copy of the said sale deed is also available on record."
}
},
{
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"id": "46614f905c1242c9bda54d50abb9c335",
"to_name": "text",
"type": "labels",
"value": {
"end": 23631,
"labels": [
"ARG_RESPONDENT"
],
"start": 23438,
"text": "\nEx.P2 is the sale deed which was executed by Smt.Valiambi and her children in favour of the plaintiff and Sreenivasa Rao who was represented by Gunabiyamma as they were minors as on that date."
}
},
{
"from_name": "label",
"id": "2550c4e65a6e4023a8a98ce3aa527ed1",
"to_name": "text",
"type": "labels",
"value": {
"end": 23712,
"labels": [
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],
"start": 23632,
"text": "It is seen that the sale deed is dated 18.12.1940 and not 17.12.1945 as pleaded."
}
},
{
"from_name": "label",
"id": "6e98ef92cc284c17bec96d300e8d4878",
"to_name": "text",
"type": "labels",
"value": {
"end": 23861,
"labels": [
"ARG_RESPONDENT"
],
"start": 23713,
"text": "Merely because the plaintiff had mentioned a wrong date of the sale deed in the plaint his entire case can not be thrown out for that reason itself."
}
},
{
"from_name": "label",
"id": "87e14bf733d84f6ab9b2a5b1d395c232",
"to_name": "text",
"type": "labels",
"value": {
"end": 24136,
"labels": [
"ARG_RESPONDENT"
],
"start": 23862,
"text": "It was submitted on behalf of the counsel for respondents that whatever may be the date of the document, the title flowed from Ex.P2 sale deed and merely because the plaintiff might have quoted a wrong date of the sale deed, it would not be a ground to disbelieve this case."
}
},
{
"from_name": "label",
"id": "655c4f0233414399aa2fefa7079f876e",
"to_name": "text",
"type": "labels",
"value": {
"end": 24259,
"labels": [
"ARG_RESPONDENT"
],
"start": 24137,
"text": "The recitals of Ex.P2 are clear that Gunabiyamma represented plaintiff and her brother Sreenivasa Rao who were the minors."
}
},
{
"from_name": "label",
"id": "f289d6b6bab94d0eb64b0b8542283338",
"to_name": "text",
"type": "labels",
"value": {
"end": 24683,
"labels": [
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],
"start": 24260,
"text": "Since this appears to be the title document under which the plaintiff claims his half share in the suit schedule property, the fact that a wrong date was mentioned in the pleadings would at best be a technical error which doesn't go to the root of the case and as rightly pointed out by the counsel for respondent, on that ground itself the plaintiff's case could not have been thrown out or disbelieved by the court below."
}
},
{
"from_name": "label",
"id": "7628d98fee6f4dc59aa22c61b9172b98",
"to_name": "text",
"type": "labels",
"value": {
"end": 24820,
"labels": [
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],
"start": 24684,
"text": "As such the arguments addressed before this court that, there was variance between the oral and documentary evidence cannot be accepted."
}
},
{
"from_name": "label",
"id": "bfeb69b82bf14ae887bcc8bcb8875358",
"to_name": "text",
"type": "labels",
"value": {
"end": 25129,
"labels": [
"ARG_RESPONDENT"
],
"start": 24821,
"text": "At this stage, it is pertinent to note that, as Gunabiyamma represented plaintiff and his brother in purchasing the suit schedule property, it was not her Streedhana property and after her death and upon attainment of majority the plaintiff and Sreenivasa Rao succeeded to the suit property as joint owners.\n"
}
},
{
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"id": "954771f9f76f45bb85bda1a6c8ed53d4",
"to_name": "text",
"type": "labels",
"value": {
"end": 25279,
"labels": [
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],
"start": 25129,
"text": "Merely because the plaintiff was not available in Mysuru for certain time, is not a ground to presume that he was not in joint possession as co-owner."
}
},
{
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"id": "4e1751222cac410882d3755516cfdd6c",
"to_name": "text",
"type": "labels",
"value": {
"end": 25441,
"labels": [
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],
"start": 25280,
"text": "Further merely because Sreenivasa Rao and the appellants have paid taxes to the Corporation doesn't mean that the plaintiff was ousted from the joint possession."
}
},
{
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"id": "86d2d01db7314aeebe61c12d422d7efb",
"to_name": "text",
"type": "labels",
"value": {
"end": 25713,
"labels": [
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],
"start": 25441,
"text": "\nHe was always deemed to have been in constructive joint possession of the suit schedule property along with his brother and after his death, along with the appellants and hence he had valid right to enforce partition and seek his half share in the suit schedule property."
}
},
{
"from_name": "label",
"id": "f9f900058add4fefaf0ba208adcaefde",
"to_name": "text",
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"value": {
"end": 26017,
"labels": [
"RATIO"
],
"start": 25713,
"text": "\n 17. The appellants have taken up a plea that the trial court had erred in drawing the presumption on Ex.P2 that it is an ancient document merely because there was no contrary evidence produced by them and as PW-1 had no personal knowledge, such presumption U/s 90 of the Evidence Act was not available."
}
},
{
"from_name": "label",
"id": "f496d997e0fd456c837b92067d3629ce",
"to_name": "text",
"type": "labels",
"value": {
"end": 26289,
"labels": [
"RATIO"
],
"start": 26018,
"text": "The learned counsel for the appellant had also submitted his arguments that the attesting witnesses of Ex.P2 were not examined and as such execution of Ex.P2 was not proved and as such the finding given by the lower court that Ex.P2 was a genuine document is not correct."
}
},
{
"from_name": "label",
"id": "65e92a74c5c8450e9041e1838c2bdde9",
"to_name": "text",
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"value": {
"end": 26447,
"labels": [
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],
"start": 26290,
"text": "He also submitted that at the best by virtue of the said transaction only the execution of the document can be presumed but not the contents of the document."
}
},
{
"from_name": "label",
"id": "575c722b06f04169a583985ce1012e84",
"to_name": "text",
"type": "labels",
"value": {
"end": 26985,
"labels": [
"RATIO"
],
"start": 26448,
"text": "Sec. 90 of the Evidence Act reads as follows : \" Where any document, purporting or proved to be thirty years old, is produced from and custody which the court in the particular case considers proper, the court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested \"\n "
}
},
{
"from_name": "label",
"id": "cddb1934b9b544208336b25624aaade7",
"to_name": "text",
"type": "labels",
"value": {
"end": 27362,
"labels": [
"RATIO"
],
"start": 26985,
"text": "This provision authorizes the court that when any document which is 30 years old is produced before it from proper custody, then it may presume that the hand writing of any particular person, is in that person's hand writing and in the case of documents executed or attested that it was duly executed and attested by the persons by whom it purports to be executed and attested."
}
},
{
"from_name": "label",
"id": "fae3c9e54a474bee8c9302ca2ccec613",
"to_name": "text",
"type": "labels",
"value": {
"end": 27501,
"labels": [
"RATIO"
],
"start": 27363,
"text": "By virtue of the said presumption there was no necessity for the plaintiff to have called upon the attesting witnesses of Ex.P2 sale deed."
}
},
{
"from_name": "label",
"id": "cb1e066235b046acaea223a1751933e6",
"to_name": "text",
"type": "labels",
"value": {
"end": 27624,
"labels": [
"RATIO"
],
"start": 27502,
"text": "Moreover, it is not mandatory in law for the person producing a sale deed before court to examine the attesting witnesses."
}
},
{
"from_name": "label",
"id": "fe044f8d5f7d4a849c7a38f64131698d",
"to_name": "text",
"type": "labels",
"value": {
"end": 28008,
"labels": [
"RATIO"
],
"start": 27625,
"text": "When the recitals in Ex.P2 are clear that Gunabiyamma in the capacity of the plaintiff and her brother Sreenivasa Rao, had purchased the suit schedule property and the persons who executed the said sale deed have not disputed execution of the sale deed, I am of the opinion that the lower court had rightly drawn presumption available U/s 90 of the Evidence Act and gave its finding."
}
},
{
"from_name": "label",
"id": "0d6459206ca84169ad48bf53ef9d3089",
"to_name": "text",
"type": "labels",
"value": {
"end": 28226,
"labels": [
"RATIO"
],
"start": 28009,
"text": "The defendants/appellants having failed to lead/adduce any evidence before the lower court though sufficient opportunity was given, have made desperate attempt by filing this appeal to set aside the impugned judgment."
}
},
{
"from_name": "label",
"id": "ef946d54f3cc4647ada1ee04c4ca2eab",
"to_name": "text",
"type": "labels",
"value": {
"end": 28476,
"labels": [
"RATIO"
],
"start": 28227,
"text": "The lower court had considered all the material before it and also the pleas taken by the defendants had rightly decreed the suit of the plaintiff by holding that he is the joint owner of the suit schedule property and entitled for half share in it."
}
},
{
"from_name": "label",
"id": "bfb4bf7e6c7247aaad52b9fe9cb26230",
"to_name": "text",
"type": "labels",
"value": {
"end": 28623,
"labels": [
"RATIO"
],
"start": 28477,
"text": "Appellants have failed to point out that the finding given and the decree passed by the lower court has resulted in prejudice or hardship to them."
}
},
{
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"id": "8a6314196b244d7a93609e87e49fdb0f",
"to_name": "text",
"type": "labels",
"value": {
"end": 28932,
"labels": [
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],
"start": 28624,
"text": "On perusal of the entire material on record and the reasons assigned by the learned trial judge in the impugned judgment in reaching the conclusion, I find that the decree so passed is not perverse, illegal or opposed to law and hence I am of the opinion that the interference of this court is not necessary."
}
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"end": 28994,
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],
"start": 28933,
"text": "Accordingly I answer point for consideration in the Negative."
}
},
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"end": 29011,
"labels": [
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],
"start": 28994,
"text": "\n POINT NO.2: 18."
}
},
{
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"end": 29133,
"labels": [
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],
"start": 29012,
"text": "By virtue of the above discussion, reasons stated and finding given to point No.1, the following is made; :: O R D E R ::"
}
},
{
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"id": "de26f2b87d1f4237a67150c44f51050d",
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"type": "labels",
"value": {
"end": 29213,
"labels": [
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],
"start": 29134,
"text": "Regular Appeal filed by the appellants under Or.41 Rule.27 of CPC is dismissed."
}
},
{
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"id": "e60b3d8769ba463f9102d523dfb2346b",
"to_name": "text",
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"end": 29227,
"labels": [
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],
"start": 29215,
"text": "Consequently"
}
},
{
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"id": "99c1f9b94be044549872b84362cfbd9e",
"to_name": "text",
"type": "labels",
"value": {
"end": 29274,
"labels": [
"RPC"
],
"start": 29228,
"text": "the judgment and decree passed by the II Addl."
}
},
{
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"id": "a2b28d560b824f6a94ea76f13ed2e29c",
"to_name": "text",
"type": "labels",
"value": {
"end": 29280,
"labels": [
"RPC"
],
"start": 29274,
"text": "Senior"
}
},
{
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"id": "2a4e126606844b909acc06ea37fd53cf",
"to_name": "text",
"type": "labels",
"value": {
"end": 29300,
"labels": [
"RPC"
],
"start": 29281,
"text": "Civil Judge,"
}
},
{
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"id": "e06a0d1d58f14a8a96f1f2f0f86ed78d",
"to_name": "text",
"type": "labels",
"value": {
"end": 29335,
"labels": [
"RPC"
],
"start": 29302,
"text": "Mysuru in O.S.No.406/2009"
}
},
{
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"id": "24a93914c5d64cb9b1a637e672b7329e",
"to_name": "text",
"type": "labels",
"value": {
"end": 29396,
"labels": [
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],
"start": 29336,
"text": " dated 26th September 2013 is hereby confirmed."
}
},
{
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"id": "3017af9b576047e091a029e3511420b4",
"to_name": "text",
"type": "labels",
"value": {
"end": 29419,
"labels": [
"RPC"
],
"start": 29396,
"text": "\n No order as to costs."
}
},
{
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"id": "14b9ac143e734da8a6d3a8b3dd42c5dc",
"to_name": "text",
"type": "labels",
"value": {
"end": 29506,
"labels": [
"RPC"
],
"start": 29419,
"text": "\n Office is directed to send back L.C.R to the trial court along with copy of judgment."
}
},
{
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"id": "4b4f6f16d78442bc9e9056d284e925df",
"to_name": "text",
"type": "labels",
"value": {
"end": 29642,
"labels": [
"RPC"
],
"start": 29506,
"text": "\n (Dictated to the Judgment writer, transcript corrected and then pronounced by in the Open Court on this the 26th day of October 2015)."
}
},
{
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"id": "a4944640241a4440aa0ab3022d931d6c",
"to_name": "text",
"type": "labels",
"value": {
"end": 29696,
"labels": [
"NONE"
],
"start": 29642,
"text": "\n (C.CHANDRASEKHAR), VII Addl. District Judge, Mysuru."
}
},
{
"from_name": "label",
"id": "5f8bbd8b6a634388a7005b390edee095",
"to_name": "text",
"type": "labels",
"value": {
"end": 29713,
"labels": [
"NONE"
],
"start": 29696,
"text": "\n :: O R D E R ::"
}
},
{
"from_name": "label",
"id": "690a05e7b8124bc9ab6b69c0140e6013",
"to_name": "text",
"type": "labels",
"value": {
"end": 29793,
"labels": [
"NONE"
],
"start": 29714,
"text": "Regular Appeal filed by the appellants under Or.41 Rule.27 of CPC is dismissed."
}
},
{
"from_name": "label",
"id": "3783e8642fce4133873b809821d2092f",
"to_name": "text",
"type": "labels",
"value": {
"end": 29807,
"labels": [
"NONE"
],
"start": 29795,
"text": "Consequently"
}
},
{
"from_name": "label",
"id": "cf4b02e2db76408bb179f515af27a5e5",
"to_name": "text",
"type": "labels",
"value": {
"end": 29854,
"labels": [
"NONE"
],
"start": 29808,
"text": "the judgment and decree passed by the II Addl."
}
},
{
"from_name": "label",
"id": "44c2417984dd4a989ce705aa486ab599",
"to_name": "text",
"type": "labels",
"value": {
"end": 29884,
"labels": [
"NONE"
],
"start": 29854,
"text": "Senior Civil Judge, Mysuru"
}
},
{
"from_name": "label",
"id": "0e62d1c6d13c43e685f3351c489661e5",
"to_name": "text",
"type": "labels",
"value": {
"end": 29964,
"labels": [
"NONE"
],
"start": 29891,
"text": "in O.S.No.406/2009 dated 26th September 2013 is hereby confirmed."
}
},
{
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"id": "1e70a4dd92d04b1a943fa35efe453874",
"to_name": "text",
"type": "labels",
"value": {
"end": 29987,
"labels": [
"NONE"
],
"start": 29964,
"text": "\n No order as to costs."
}
},
{
"from_name": "label",
"id": "15478a828ae34102b780bfa290cac3a8",
"to_name": "text",
"type": "labels",
"value": {
"end": 30074,
"labels": [
"NONE"
],
"start": 29987,
"text": "\n Office is directed to send back L.C.R to the trial court along with copy of judgment."
}
},
{
"from_name": "label",
"id": "079a87c6660e4e1683b052e7fb02cd29",
"to_name": "text",
"type": "labels",
"value": {
"end": 30127,
"labels": [
"NONE"
],
"start": 30074,
"text": "\n (C.CHANDRASEKHAR), VII Addl. District Judge, Mysuru"
}
}
]
}
] | 1,786 | {
"text": "Government of Karnataka\nForm No.9(Civil) Title Sheet for\nJudgments in Appeals (R.P.93)\n\nIN THE COURT OF THE VII ADDL. DISTRICT JUDGE,\n MYSURU\n\n Dated this the 26th day of October 2015\n\n PRESENT : SRI C. CHANDRASEKHAR, LL.M.,\n VII Addl. District Judge, Mysuru.\n\n R.A NO.349/2013\n\nAppellant /s 1 Tulasi Bai, Aged about 68 years, w/o\n late Srinivasa Rao\n\n 2 Vinayaka, Aged about 48 years, S/o late\n Srinivasa Rao.\n\n 3 Satish, Aged about 46 years, S/o late\n Srinivasa Rao\n\n 4 Kishore, Aged about 32 years, S/o late\n Srinivasa Rao\n Appellants 1 to 4 are residing at Door\n No.616, 4th cross Road, (Near\n Mahadeshwara Temple) Pipeline road,\n Srinagar, Bangalore-560 050.\n\n 5 Roopa, Aged about 35 years, W/o\n Manjunath Rao, Residing at Door\n No.2070, 17thds West cross, Ashoka\n Road, Lashkar mohalla, Mysuru-560 001.\n\n 6 Vijayalakshmi, Aged about 33 years,\n W/o Narayana Rao, Residing at Door\n No.16, Keerthi Apartments, Pallavaram,\n Chennai-560 001.\n\n Sri M.L.S. Adv.,\n\n\n V/s\n 1 K.Pushkar Rao Since dead by his L.Rs\n\n 1.a) Kalavathi Bai, Aged about 60 years,\n W/o Late Pushkar Rao\n 1.b)Sanju Bai, Aged about 40 years W/o\n Chandrakanth Rao\n\n 1.c)Bharathi Bai, Aged about 38 years\n W/o Ganesh Rao,\n L.Respondent 1.(a) to 1.(c) all are\n residing at No.3055, Near Siddappaji\n Temple, Ontipalya Bore, Hunsur Taluk,\n Mysuru District.\n\n 2 Srinivasa Rao, Aged abo.ut 47 years,\n S/o Late Subba Rao, Residing at\n D.No.2957, Dawood Khan Street,\n Lashkar Mohalla, Mysuru-570 001.\n\n R-1, R-1(a) to (c) Sri P.D.M.,\n Adv., R-2 dismissed.\n\nDate and nature of decree of The Judgment and Decree passed in\nappeal against O.S.No.406/2009 on the file of II Addl.\n Senior Civil Judge and CJM, Mysore\nDate of institution of the dated 26.09.2013.\nappeal\n 30-11-2013\n\nDate of Judgment 26-10-2015\nPeriod of Judgment\n Year/s Month/s Day/s\n 2\n 1 04\n\n (C.CHANDRASEKHAR),\n VII ADDL DISTRICT JUDGE, MYSURU.\n\n:: J U D G M E N T :: The appellants have filed this appeal under Or.41 Rule 27 of CPC praying to set aside the judgment and decree passed in O.S. No.406/2009 dated 26.09.2013 on the file of II Addl.\nSenior Civil Judge and CJM, Mysuru and dismiss the suit of the plaintiff.\n 2. The appellants were the defendants and respondent No.1 was the plaintiff before the lower court. 2nd respondent was the 9th defendant before the court below and as such for the sake of convenience, parties would be addressed in the course of this judgment as per their ranks before the lower court.\n Facts in brief: 3. The plaintiff had filed a suit against the defendants seeking half share and separate possession in the suit schedule property reserving right to claim mesne profits. 1st defendant is the wife of late Sreenivasa Rao, the brother of the plaintiff while defendants 2 to 8 are their children. Earlier the suit schedule property belonged to one Valliambi and her children who had sold the same in favour of plaintiff and his elder brother Sreenivasa Rao. As they were minors at that point of time, their grandmother Gunabiamma represented them as guardian and acquired the suit schedule property under the registered sale deed. The plaintiff and his brother continued to enjoy the property jointly. To the extent of his half undivided share, the plaintiff created a mortgage of the plaint schedule property in the name and favour of defendant No.9 and the said mortgage is yet to be redeemed for paucity of funds. Until 2001, the plaintiff did not think in terms of claiming his half share by way of partition, however after the death of his elder brother Srenivasa Rao, he had called upon the defendants to effect partition and separate possession. However, they had pleaded time. The defendants had failed to effect partition and during 2009 the 2nd defendant did not respond positively when questioned about the prudence of the defendants in trying to postpone the partition indefinitely. Since the plaintiff was entitled for his legitimate half share in the suit schedule property he sued the defendants claiming his share.\n 4. The 4th defendant for himself and on behalf of other defendants had filed written statement stating that the suit was bad for non joinder of parties as all the heirs of Gunabiyamma are not arrayed as parties. It is their case that Gunabiyamma had purchased the suit schedule property and other properties situated in Lashkar mohalla and they were her Streedhana properties. After her death the plaintiff, his elder brother Sreenivasa Rao and other heirs succeeded to the above properties and without impleading all the heirs of Gunabiyamma the suit is bad for non-joinder of necessary parties. It was alleged that the plaintiff at the age of 8-10 years had run away from the house and his whereabouts were not known and presuming that he is dead, the defendants had performed his obsequies. Late Sreenivasa Rao was looking after Gunabiyamma and out of love and affection she has bequeathed the suit schedule property in his favour. In fact, during 1960-61 plaintiff returned home and expressed his financial difficulties and at that time Sreenivasa Rao had shown sympathy and provided accommodation in a portion of the suit schedule property and made plaintiff to settle down in Mysuru.\nThereafter, Sreenivasa Rao saw that a corporation site was allotted in the name of plaintiff in Hunsur during the year 1983- 84 as a consolation since Sreenivasa Rao got the suit schedule property from Gunabiyamma by way of bequest. Plaintiff is a disgruntled person and at the instance of one Vijayakumar he has filed the suit in order to harass and grab the entire property. The defendant denies that Gunabiyamma had purchased the suit schedule property under the registered sale deed dated 18.12.1940 and not under registered sale deed dated 17.12.1945 as stated in the plaint. After the bequest was made in favour of Sreenivasa Rao, the property documents were transferred in his name. He was paying tax to the corporation and after his death defendants are paying necessary taxes.\nPlaintiff is not having any manner of right, title much less half share in the suit schedule property and hence the suit deserves to be dismissed. The claim made by the plaintiff that he had asked the defendants for partition and allotting his half share doesn't arise in view of the bequest made by Gunabiyamma.\nThere is no cause of action to the suit and alleged that the plaintiff had filed a vexatious suit in order to harass them and hence it was prayed to dismiss the suit.\n 5. Plaintiff had thereafter filed a rejoinder to the written statement filed by the defendants stating that plea taken about non-impleading the heirs of Gunabiyamma is not tenable as he had sought partition in the joint property of the plaintiff but not for joint family property of himself and Sreenivasa Rao and not joint family property of Gunabiyamma.\nThe claim made by defendants that suit schedule property was purchased by Gunabiyamma under registered sale deed dated 18.12.1940 is only an imaginary statement and further misconceived that it was her Streedhana property. It is denied by the plaintiff that the bequest was made by Gunabiyamma in favour of Sreenivasa Rao and as such the defendants are put to strict proof to produce the alleged bequest or furnish the date of the said document.\n 6. On the basis of the above pleadings of the parties, the trial court has framed the following:- :I S S U E S: 1. Whether the plaintiff proves that the suit schedule property at a given point of time belonged to Smt.Vallambi and her children and they have sold the same in favour of plaintiff and his brother as per the Registered sale deed dated 17.12.1945?\n 2. Whether the plaintiff proves that he and his brother are joint owners in joint possession and enjoyment of suit schedule property?\n 3. Whether the defendants prove that the suit is not properly valued and court fee paid is not sufficient?\n 4. Whether the plaintiff is entitle for share over the suit schedule property?\n 5. What order or decree?\n Additional Issue: 1. Whether the Defendants prove that the suit is bad for non-joinder of necessary parties?\n 7. In order to prove the case, plaintiff's attorney holder was examined as PW-1 and through him 7 documents came to be marked as Exs.P1 to P7. Defendants, except for filing written statement, did not adduce any evidence or produce documents in support of their case.\n 8. After perusing the evidence adduced by the plaintiff and looking in to the documents placed before court, the learned trial judge has answered issues 1, 2 and 4 in the affirmative and issue No.3 and Addl. Issue No.1 in the negative and decreed the suit of the plaintiff.\n 9. Aggrieved by the impugned judgment and decree Appellants/defendants have come before this court urging the following grounds ; a) The trial court ought to have focused its attention on the pleading that the plaintiff has relied upon the document dated 17.12.1945 and claimed his right to seek partition but the oral evidence adduced is contrary to his pleadings, wherein it is admitted that the property was purchased in the year 1959. The variance of pleading, the oral evidence and the documentary proof Ex.P2 do not tally and as such the trial court ought not to have relied on Ex.P2 to hold that the said document is proved.\n b) The plaintiff had not produced the legible document or certified copy of the sale deed and as such the trial court ought to have rejected Ex.P2 as illegible.\n c) The trial court ought to have rejected the evidence of PW-1 who is the power of attorney holder of plaintiff and had no personal knowledge of Ex.P2 document, as he was not at all born as on the date of the said sale deed.\n The evidence of power of attorney is no evidence in the eye of law and hence the trial court should not have relied upon the evidence of PW-1.\n d) The trial court failed to notice the fact that the suit schedule property earlier belong to Valambi and her children and from her Gunabiyamma grandmother of plaintiff and Late Sreenivasa Rao had purchased the same is not at all established, hence the finding of the trial court on issue No.1 is perverse, illegal and unsustainable in the eye of law.\n e) The trial court was also not correct in holding that Ex.P2 is an ancient document. Since PW-1 had no personal knowledge of the said document presumption U/s. 90 of the Evidence Act was not available.\n f) The trial court ought to have held that the plaintiff had relinquished his right on the suit property since onus lie on him to seek the right of partition. PW-1 has admitted that late Sreenivasa Rao purchased the property at Hunsur in the name of plaintiff and also had put up construction and as such the trial court ought to have presumed that the plaintiff had given up his right in the suit schedule property and should have dismissed the suit.\n g) The trial court had held that Gunabiyamma acted as guardian of plaintiff and Sreenivasa Rao. The parents of plaintiff and Sreenivasa Raod were alive at that point of time and as such the trial court should have held that Gunabiyamma grandmother could not have acted as guardian when the parents were alive.\n h) The trial court had also erroneously came to the conclusion that the plaintiff was in possession of the suit schedule property ignoring the presumption under law that possession follows title. The plaintiff had not established that he was not in joint possession along with the parents.\n i) The trial court ought to have held that the plaintiff was not in actual possession of the suit schedule property and further should not have held that it was the joint family property of plaintiff and Sreenivasa Rao. The evidence on record and admissions made by PW-1 is clear that the appellants and late Sreenivasa Rao had paid taxes to the corporation which was clear that the plaintiff was excluded from joint enjoyment of the property and hence decreeing the suit of the plaintiff for partition is not sustainable in law.\n j) Lastly prayed to set aside the impugned judgment and dismiss the suit of the plaintiff.\n 10. By virtue of the above facts and circumstances the points that would arise for my consideration are:- (1) Whether the impugned judgment and decree of the lower court is opposed to law, facts and circumstances of the case and interference of this court is necessary?\n (2) What Order?\n 11. I have heard the arguments addressed by the counsels of both parties and perused the record.\n 12. My findings on the above points are as under:- Point No.1 :- In the Negative.\nPoint No.2 :- As per final order for the following;.\n R E A S O N S NOTE: Initially, except filing the written statement, the defendants had not adduced any evidence. The Attorney holder of the plaintiff was examined as PW-1 and seven documents came to be marked as Exs.P1 to P7. Thereafter, the Trial judge heard the arguments of plaintiff and disposed the matter by pronouncing the judgment on 19.3.2011.\nThereafter, defendants filed Miscellaneous petition No.142/2011 before the lower court stating that opportunity was not given to them to present their case and the learned trial judge allowed the said petition by order dated 31.10.2011 by setting aside the judgment passed by him on 19.3.2011.\n Despite setting aside the earlier judgment and restoring the suit to its original file in order to give an opportunity to the defendants to adduce their evidence and present their case, defendants failed to do so.\n POINT NO.1:- 13. It was the case of the plaintiff that his grand-mother Gunabiyamma had purchased the suit schedule property on behalf of herself and his brother late Sreenivasa Rao under a registered sale deed and after her demise both herself and her brother had succeeded to the said property as joint owners and since he was having rights in respect of the half share in the said property, he had filed the suit praying the court to effect partition and separate possession of his half share. The defendants had taken omnibus plea and had denied the plaintiff's case. It was their specific case that the suit schedule property was not amenable for partition as late Sreenivasa Rao had become the exclusive owner of the property by virtue of the bequest made in favour of Gunabiyamma. It is pertinent to note that the pleas that were taken by the defendants in their written statement were not proved by adducing any evidence.\n The date of bequest was not mentioned in the written statement. It appears from the rejoinder filed by the plaintiff to the written statement of the defendants, that notice was issued under Or.12 Rule.8 of CPC calling upon them to furnish copy of the bequest or at least the date of the bequest but the said notice was not complied by the defendants. Opportunity was given, not once but twice, to the defendants to adduce evidence but they had not done so. The learned counsel for the defendants/appellants had submitted that the trial court did not frame any issues casting burden on the defendants calling upon them to adduce evidence or to produce the bequest/will and as such no evidence was adduced by them. Similarly, a plea was taken in the written statement that the suit schedule property and other properties were the Streedhana properties of Gunabiyamma. On this point also no evidence was adduced and similar arguments as above was put forth that since the trial court did not frame proper issues casting burden on defendants and hence no fault can be found on the defendants for omission occurred to adduce evidence.\n 14. The lower court, after receiving written statement, had framed issues 1 to 5 and subsequently one additional issue came to be framed. On perusal of the same it is seen that except issue No.3 and additional issue, all other issues were framed casting burden on the plaintiff. No issues were framed casting burden on the defendants calling upon them to prove that the suit schedule property was a Streedhana property of Gunabiyamma. Further no issue was also framed casting burden on the defendants to prove that Gunabiyamma had made a bequest in favour of late Sreenivasa Rao in respect of the suit schedule property. No doubt, proper issues were not framed by the court below, yet in the impugned judgment all those points are covered by the learned trial judge and since no evidence came to be adduced by the defendants, he had accepted the case of the plaintiff and decreed the suit. The fact that the lower court had not framed proper issues also, in my opinion, depended upon the conduct of the defendants before the lower court. As observed above they did not contest the suit initially and as such an exparte judgment came to be pronounced on 19.3.2011. Subsequently, though they showed interest in contesting the suit by filing Misc. petition and filed written statement, they again failed to adduce evidence and as such the trial court appears to have not shown much interest or attention towards re-casting or re-framing issues. It is also pertinent to note at this stage that the Officer who had framed issues and the Officer who pronounced the impugned judgment are different and perhaps taking note of the reluctance and omission on the part of the defendants in adducing any evidence, the impugned judgment came to be passed after considering the material on record. The defendants, who had not showed any interest before the trial court to adduce any evidence, are estopped from submitting arguments that they had not adduced any evidence before the trial court as there were no issues framed casting burden on them.\n 15. The Attorney holder of the plaintiff namely Vijayakumar had given evidence before the lower court. The learned counsel appearing for the appellants had submitted that evidence of Attorney holder ought not to have been considered by the lower court as he had no locus standi to give evidence on behalf of the plaintiff. Even in the grounds of appeal it is alleged that PW-1/Attorney holder had no personal knowledge of Ex.P2 document as he was not born as on that date and his evidence is un-trustworthy to prove Ex.P2 transaction. On perusal of the material on record, it is seen that the plaintiff was aged about 65 years when he had given Ex.P1 power of attorney. The learned trial judge after verifying the reasons/ grounds, had allowed the application and permitted this Attorney holder to give evidence on behalf of the plaintiff. Or.3 Rule.2 of CPC expressly provides that party to the suit can give evidence through his Attorney holder. Our Hon'ble High court in the case of Gangavva v/s Arjunsa reported in (2001) 3 KCCR page 1549 has held that the provisions of Or.3 Rule 2 CPC deals with the legal position of validity and competence of the acts of the power of attorney in conducting cases. It is further observed that a party to a suit can give evidence through power of attorney and as such the evidence would be a valid substituted evidence. In yet another case, Kaju Devi and Another v/s H.S.Rudrappa @ Rudy and others, ILR-2005 Kar 4370, the GPA holder of the plaintiff was examined and he had spoken to the necessary and relevant material facts of the case which are in his personal knowledge while acting as an agent of the plaintiff and it was held that the same was permissible under the provisions of Power of Attorneys Act as well as Or.3 Rule.2 CPC R/W Sec.120 of the Evidence Act and also U/s 181 and 182 of the Indian Contract Act. It was not the case of the defendants in that case that PW-1, who acted as agent of the plaintiff, was not given authority to power of attorney to adduce evidence as a witness and it was therefore held that the contention raised by the defendants that the evidence of P.A holder should not have accepted by the lower court was not justified. The ratio laid down in the above cases squarely applies to the facts and circumstances of this case also. Admittedly the plaintiff had given power of attorney to Vijayakumar to adduce evidence on his behalf. The power of attorney came to be marked as Ex.P1. The said power of attorney holder has given evidence in respect of the material facts which are to his personal knowledge by acting as an agent on behalf of the plaintiff. Hence, the contention raised by the appellants that the evidence of P.A holder is not valid and trial court ought to have not accepted his evidence holds no water. Since Or.3 Rule.2 of CPC empowers a party to the suit to give evidence through power of attorney holder and the trial court after giving an opportunity to the plaintiff to give evidence through his Attorney holder has rightly considered his evidence, the arguments put forth by the counsel for appellants to reject the evidence of the Attorney holder is not justified.\n 16. As aforesaid the defendants did not adduce any evidence before the trial court in respect of the plea taken in their written statement that the suit schedule property was a Streedhana property of Gunabiyamma and they had also failed to prove that she had bequeathed the property in favour of late Sreenivasa Rao. The counsel for the appellant pointed out that the plaintiff before the trial court had pleaded that he derives title under document dated 17.12.1945 but however the said document was not on record. He would further address arguments that whatever document that was placed before court was dated 18.12.1940 and hence there was variance in pleadings and evidence given and as such the lower court should not have considered the case of the plaintiff and must have dismissed the suit. It is a fact that it was pleaded in the plaint that Gunabiyamma for and on behalf of the plaintiff and his brother late Sreenivasa Rao had purchased the suit schedule property under the registered sale deed dated 17.12.1945 from Smt.Valiambi and her children. Ex.P2 is the original sale deed. A typed copy of the said sale deed is also available on record.\nEx.P2 is the sale deed which was executed by Smt.Valiambi and her children in favour of the plaintiff and Sreenivasa Rao who was represented by Gunabiyamma as they were minors as on that date. It is seen that the sale deed is dated 18.12.1940 and not 17.12.1945 as pleaded. Merely because the plaintiff had mentioned a wrong date of the sale deed in the plaint his entire case can not be thrown out for that reason itself. It was submitted on behalf of the counsel for respondents that whatever may be the date of the document, the title flowed from Ex.P2 sale deed and merely because the plaintiff might have quoted a wrong date of the sale deed, it would not be a ground to disbelieve this case. The recitals of Ex.P2 are clear that Gunabiyamma represented plaintiff and her brother Sreenivasa Rao who were the minors. Since this appears to be the title document under which the plaintiff claims his half share in the suit schedule property, the fact that a wrong date was mentioned in the pleadings would at best be a technical error which doesn't go to the root of the case and as rightly pointed out by the counsel for respondent, on that ground itself the plaintiff's case could not have been thrown out or disbelieved by the court below. As such the arguments addressed before this court that, there was variance between the oral and documentary evidence cannot be accepted. At this stage, it is pertinent to note that, as Gunabiyamma represented plaintiff and his brother in purchasing the suit schedule property, it was not her Streedhana property and after her death and upon attainment of majority the plaintiff and Sreenivasa Rao succeeded to the suit property as joint owners.\nMerely because the plaintiff was not available in Mysuru for certain time, is not a ground to presume that he was not in joint possession as co-owner. Further merely because Sreenivasa Rao and the appellants have paid taxes to the Corporation doesn't mean that the plaintiff was ousted from the joint possession.\nHe was always deemed to have been in constructive joint possession of the suit schedule property along with his brother and after his death, along with the appellants and hence he had valid right to enforce partition and seek his half share in the suit schedule property.\n 17. The appellants have taken up a plea that the trial court had erred in drawing the presumption on Ex.P2 that it is an ancient document merely because there was no contrary evidence produced by them and as PW-1 had no personal knowledge, such presumption U/s 90 of the Evidence Act was not available. The learned counsel for the appellant had also submitted his arguments that the attesting witnesses of Ex.P2 were not examined and as such execution of Ex.P2 was not proved and as such the finding given by the lower court that Ex.P2 was a genuine document is not correct. He also submitted that at the best by virtue of the said transaction only the execution of the document can be presumed but not the contents of the document. Sec. 90 of the Evidence Act reads as follows : \" Where any document, purporting or proved to be thirty years old, is produced from and custody which the court in the particular case considers proper, the court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested \"\n This provision authorizes the court that when any document which is 30 years old is produced before it from proper custody, then it may presume that the hand writing of any particular person, is in that person's hand writing and in the case of documents executed or attested that it was duly executed and attested by the persons by whom it purports to be executed and attested. By virtue of the said presumption there was no necessity for the plaintiff to have called upon the attesting witnesses of Ex.P2 sale deed. Moreover, it is not mandatory in law for the person producing a sale deed before court to examine the attesting witnesses. When the recitals in Ex.P2 are clear that Gunabiyamma in the capacity of the plaintiff and her brother Sreenivasa Rao, had purchased the suit schedule property and the persons who executed the said sale deed have not disputed execution of the sale deed, I am of the opinion that the lower court had rightly drawn presumption available U/s 90 of the Evidence Act and gave its finding. The defendants/appellants having failed to lead/adduce any evidence before the lower court though sufficient opportunity was given, have made desperate attempt by filing this appeal to set aside the impugned judgment. The lower court had considered all the material before it and also the pleas taken by the defendants had rightly decreed the suit of the plaintiff by holding that he is the joint owner of the suit schedule property and entitled for half share in it. Appellants have failed to point out that the finding given and the decree passed by the lower court has resulted in prejudice or hardship to them. On perusal of the entire material on record and the reasons assigned by the learned trial judge in the impugned judgment in reaching the conclusion, I find that the decree so passed is not perverse, illegal or opposed to law and hence I am of the opinion that the interference of this court is not necessary. Accordingly I answer point for consideration in the Negative.\n POINT NO.2: 18. By virtue of the above discussion, reasons stated and finding given to point No.1, the following is made; :: O R D E R :: Regular Appeal filed by the appellants under Or.41 Rule.27 of CPC is dismissed.\n Consequently the judgment and decree passed by the II Addl.Senior Civil Judge, Mysuru in O.S.No.406/2009 dated 26th September 2013 is hereby confirmed.\n No order as to costs.\n Office is directed to send back L.C.R to the trial court along with copy of judgment.\n (Dictated to the Judgment writer, transcript corrected and then pronounced by in the Open Court on this the 26th day of October 2015).\n (C.CHANDRASEKHAR), VII Addl. District Judge, Mysuru.\n :: O R D E R :: Regular Appeal filed by the appellants under Or.41 Rule.27 of CPC is dismissed.\n Consequently the judgment and decree passed by the II Addl.Senior Civil Judge, Mysuru in O.S.No.406/2009 dated 26th September 2013 is hereby confirmed.\n No order as to costs.\n Office is directed to send back L.C.R to the trial court along with copy of judgment.\n (C.CHANDRASEKHAR), VII Addl. District Judge, Mysuru "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "c0e51a8deace440a8c0a61bbeba93d52",
"to_name": null,
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"value": {
"end": 123,
"labels": [
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],
"start": 0,
"text": " 1"
}
},
{
"from_name": null,
"id": "7228481208c44c63b90e979b2dfbf1b1",
"to_name": null,
"type": null,
"value": {
"end": 183,
"labels": [
"PREAMBLE"
],
"start": 169,
"text": "Reportable\n\n "
}
},
{
"from_name": null,
"id": "e182266d24ca440bb7ab82ff4afb28ba",
"to_name": null,
"type": null,
"value": {
"end": 540,
"labels": [
"PREAMBLE"
],
"start": 183,
"text": "IN THE SUPREME COURT OF INDIA\nCRIMINAL APPELLATE JURISDICTION\n\n CRIMINAL APPEAL NO.1837 OF 2019\n(Arising out of Special Leave Petition (Crl.) No.6106 of 2019)\n\nSTATION HOUSE OFFICER, CBI/ACB/BANGALORE ...Appellant\n\n VERSUS\n\nB.A. SRINIVASAN AND ANR. ...Respondents\n\n J U D G M E N T"
}
},
{
"from_name": null,
"id": "e357e8aacd604582827e5a6ec37701dd",
"to_name": null,
"type": null,
"value": {
"end": 562,
"labels": [
"NONE"
],
"start": 540,
"text": "\n Uday Umesh Lalit, J."
}
},
{
"from_name": null,
"id": "8584a87e205642868c4620ed3d38e27b",
"to_name": null,
"type": null,
"value": {
"end": 580,
"labels": [
"FAC"
],
"start": 562,
"text": "\n1. Leave granted."
}
},
{
"from_name": null,
"id": "017c2e8ec5f64249b27b53ce41edab90",
"to_name": null,
"type": null,
"value": {
"end": 1089,
"labels": [
"FAC"
],
"start": 582,
"text": "2. This Appeal challenges the judgment and order dated 08.08.2018 passed by the High Court1 allowing Criminal Revision Petition No.834 of 2015 preferred by the Respondent No. 1; and thereby discharging the Respondent No.1 of the offences punishable under Sections 419, 420, 467, 468, 471 read with Section 120B of the Indian Penal Code, 1860 (`IPC', for 1 The High Court of Karnataka at Bangalore 2 short) and Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (`the Act', for short).\n 3."
}
},
{
"from_name": null,
"id": "41e1d915c13741448efa4341295edb56",
"to_name": null,
"type": null,
"value": {
"end": 1175,
"labels": [
"FAC"
],
"start": 1090,
"text": "The Respondent No. 1 retired on 31.10.2012 as Assistant General Manager, Vijaya Bank."
}
},
{
"from_name": null,
"id": "516b5d4f2f734687befbef2d6542439a",
"to_name": null,
"type": null,
"value": {
"end": 1395,
"labels": [
"FAC"
],
"start": 1176,
"text": "On 28.10.2013, FIR being RC 12(A)/2013 was registered pursuant to complaint given by the General Manager, Vijaya Bank, Head Office, Bangalore against the Respondent No.1 in respect of the offences mentioned hereinabove."
}
},
{
"from_name": null,
"id": "d8eb83d15e0b47aa81b5ae8c80cc262c",
"to_name": null,
"type": null,
"value": {
"end": 1542,
"labels": [
"FAC"
],
"start": 1396,
"text": "After completion of investigation, charge-sheet was filed on 31.10.2014 against the Respondent No.1 and other accused in respect of said offences."
}
},
{
"from_name": null,
"id": "9413b6f7d5f64fd888515186014cc6bb",
"to_name": null,
"type": null,
"value": {
"end": 1989,
"labels": [
"FAC"
],
"start": 1543,
"text": "It was alleged inter alia :- \"3. That Shri B.A. Srinivasan (A-1) while working as Assistant General Manager (AGM) and Branch Head, Vijaya Bank, Mayo Hall Branch, Bangalore during the period from 11.01.2010 to 20.10.2012 entered into a criminal conspiracy with Shri B.Lakshman (A-3), Smt. Shanta Gowda (A-4) and Shri S.V. Isloor (A-5) to cheat and defraud Vijaya Bank, Mayohall Branch, Bangalore and to extend undue financial accommodation to M/s."
}
},
{
"from_name": null,
"id": "ed259d8926224905aa804b870385752b",
"to_name": null,
"type": null,
"value": {
"end": 2293,
"labels": [
"FAC"
],
"start": 1990,
"text": "Nikhara Electronics and Allied Technics (A-2) on the basis of fake and fabricated documents and in furtherance of the said criminal conspiracy, Shri B.A. Srinivasan (A-1) sanctioned and disbursed Rs.200 lakhs of Term Loan and Rs.100 lakhs of Cash Credit Hypothecation (Working Capital) in favour of M/s."
}
},
{
"from_name": null,
"id": "e26b6daef25146bb85254412fe677c38",
"to_name": null,
"type": null,
"value": {
"end": 2301,
"labels": [
"FAC"
],
"start": 2294,
"text": "Nikhara"
}
},
{
"from_name": null,
"id": "b46a1baf88f84caf9b608324cd55066c",
"to_name": null,
"type": null,
"value": {
"end": 2313,
"labels": [
"FAC"
],
"start": 2302,
"text": "Electronics"
}
},
{
"from_name": null,
"id": "3c0913953c0b43ecb0267ea07264a203",
"to_name": null,
"type": null,
"value": {
"end": 2339,
"labels": [
"FAC"
],
"start": 2314,
"text": "and Allied Technics (A-2)"
}
},
{
"from_name": null,
"id": "ebc412c1cbc5463c9bfde358e3890bab",
"to_name": null,
"type": null,
"value": {
"end": 2617,
"labels": [
"FAC"
],
"start": 2340,
"text": "without proper due diligence and in gross violation of all extant rules and regulations of Vijaya Bank, and hence, facilitated A-3 and A-4 to divert the loan-funds against the terms and conditions, thereby causing wrongful loss to Vijaya Bank and corresponding gains to others."
}
},
{
"from_name": null,
"id": "48c9904c91484b399b840288de503269",
"to_name": null,
"type": null,
"value": {
"end": 2635,
"labels": [
"NONE"
],
"start": 2619,
"text": "3 ...... ...\n 8."
}
},
{
"from_name": null,
"id": "45f0fa8a22c04c419a4ee0a67c688a3d",
"to_name": null,
"type": null,
"value": {
"end": 3258,
"labels": [
"FAC"
],
"start": 2636,
"text": "That Shri B. Lakshnian (A-3) and his wife Smt.\n Shanta Gowda (A-4) fraudulently created an agreement dated 10.06.2011 on the photocopy of e- stamp paper having franking No.57724 dated 08.06.2011 and submitted a copy of the same to Vijaya Bank to support their dishonest claim of taking over M/s. Nikhara Electronics & Allied Technics, proprietary concern by making a payment of Rs.1.00 Crore as goodwill to Shri Venkataramana Bhat (A-6).\n Shri B.A. Srinivasan (A-1) dishonestly accepted the photocopy of the agreement intentionally omitting to ascertain its genuineness or authenticity."
}
},
{
"from_name": null,
"id": "c3093ac4c9b7439a8e6d209e16a617f8",
"to_name": null,
"type": null,
"value": {
"end": 3500,
"labels": [
"FAC"
],
"start": 3259,
"text": "It is revealed that the above agreement was fraudulently created on the photocopy of e-stamp paper franked vide 57724 dated 08.06.2011 and the original stamp paper remained blank was seized from the office premises of Shri S.V. Isloor (A-5)."
}
},
{
"from_name": null,
"id": "249249563caa43678c561cf097bda107",
"to_name": null,
"type": null,
"value": {
"end": 3727,
"labels": [
"FAC"
],
"start": 3501,
"text": "It is thus established the fraudulent intentions of all the accused persons to create forged documents as and when required and to misrepresent that the proprietary unit was taken over by A-3 and A-4 from A-6.\n ...... ...\n 16."
}
},
{
"from_name": null,
"id": "b5952f61190c43a1b3b926ef389207f1",
"to_name": null,
"type": null,
"value": {
"end": 4108,
"labels": [
"FAC"
],
"start": 3728,
"text": "That Shri B.A. Srinivasan (A-1) in furtherance of criminal conspiracy with the other accused dishonestly, by abusing his official position as AGM & Branch Head of Vijaya Bank, Mayohall Branch fraudulently considered the loan application, processed loan proposals in gross violation of the rules and regulations of Vijaya Bank in this regard in order to favour the accused persons."
}
},
{
"from_name": null,
"id": "f440ecbe8d104f0796d9d8c555f0959f",
"to_name": null,
"type": null,
"value": {
"end": 4364,
"labels": [
"FAC"
],
"start": 4109,
"text": "He intentionally accepted the inflated financial statements submitted by A-3 and A-4 even though they were not audited and considered them for working out the credit assessment of the borrower firm i.e., M/s. Nikhara Electronics and Allied Technics (A-2)."
}
},
{
"from_name": null,
"id": "f3ec18a3e48f4617a1420b756e65da70",
"to_name": null,
"type": null,
"value": {
"end": 4516,
"labels": [
"FAC"
],
"start": 4365,
"text": "He purposely did not exercise due diligence to analyse the financial statements submitted by the borrower firm which contained several inconsistencies."
}
},
{
"from_name": null,
"id": "eb3bf32647224c10b0dbc4c5db4cde87",
"to_name": null,
"type": null,
"value": {
"end": 4763,
"labels": [
"FAC"
],
"start": 4517,
"text": "He also did not conduct the mandatory pre-sanction verification at the 4 address of the borrower firm to ascertain whether any business activities such as manufacturing of electric equipment etc., were going on as claimed in the loan application."
}
},
{
"from_name": null,
"id": "215b0f67e1eb4ec59dfef123b486434f",
"to_name": null,
"type": null,
"value": {
"end": 5042,
"labels": [
"FAC"
],
"start": 4764,
"text": "The criminal acts of Shri B.A. Srinivasan (A-1) facilitated the accused private persons to misrepresent the existence of M/s. Nikhara Electronics and Allied Technics (A-2), which actually existed only on the forged partnership deed dated 10.06.2011, created by A-3 and A-4.\n 17."
}
},
{
"from_name": null,
"id": "fbaf28ede75347108308009fb493a685",
"to_name": null,
"type": null,
"value": {
"end": 5235,
"labels": [
"FAC"
],
"start": 5043,
"text": "That Shri B.A. Srinivasan (A-1) prepared the Credit Process Note himself and obtained the signatures of Shri Jyoti Prakash Shetty, the then Asst.\n Manager in the column of appraising official."
}
},
{
"from_name": null,
"id": "bf30ed441c374e5491580cd10c2f1582",
"to_name": null,
"type": null,
"value": {
"end": 5374,
"labels": [
"FAC"
],
"start": 5236,
"text": "Shri Nabeel Ahmed, the then Probationary Manager was also made to put his initials in the process note, merely as a token of his training."
}
},
{
"from_name": null,
"id": "3d73b877b8874dd19f8c00ffe06af4f8",
"to_name": null,
"type": null,
"value": {
"end": 5777,
"labels": [
"FAC"
],
"start": 5375,
"text": "It is revealed that A- 1 prepared the proposals for an aggregate amount of Rs.300 lakh (term loan of Rs.200 lakhs and cash credit of Rs.100 lakhs) as against the request for Rs.350 lakhs (term Loan of Rs.200 lakhs; working capital of Rs.130 lakhs and Bank Guarantee of Rs.20 lakhs) without there being any clarification/justification for such reduction in the requirements of the applicant."
}
},
{
"from_name": null,
"id": "9756b8577d9d4a4b8e74a6a3a5060251",
"to_name": null,
"type": null,
"value": {
"end": 6122,
"labels": [
"FAC"
],
"start": 5779,
"text": "18. That Shri B. Lakshman (A-3) fraudulently submitted a forged Letter No. REFREF: SP: QT: 155: 2011 dated 10.08.2011 purportedly signed as JAK, Partners, M/s. V-Tech Engineering Enterprises along with Quotations/Proforma Invoices for an aggregate amount of Rs.2,69,60,496/- which were purportedly issued by M/s.V-Tech Engineering Enterprises."
}
},
{
"from_name": null,
"id": "8001c9c397df4ef7806bad70f19c0984",
"to_name": null,
"type": null,
"value": {
"end": 6130,
"labels": [
"FAC"
],
"start": 6122,
"text": "\n ......"
}
},
{
"from_name": null,
"id": "fe75ffae9934468ab80670970a742168",
"to_name": null,
"type": null,
"value": {
"end": 6139,
"labels": [
"FAC"
],
"start": 6131,
"text": "...\n 33."
}
},
{
"from_name": null,
"id": "b5846fe451d5425e90e20a5af0e1e4a4",
"to_name": null,
"type": null,
"value": {
"end": 6283,
"labels": [
"FAC"
],
"start": 6140,
"text": "That Shri B.A. Srinivasan (A-1) was also fully aware that property offered as collateral security was in occupation of third parties (tenants)."
}
},
{
"from_name": null,
"id": "c98b44977927478a9f85d2b50ec3f3f2",
"to_name": null,
"type": null,
"value": {
"end": 6465,
"labels": [
"FAC"
],
"start": 6284,
"text": "However, A-1 dishonestly and fraudulently chose to ignore this important fact, in spite of his field inspection and also the observations made by the valuer in his Valuation Report."
}
},
{
"from_name": null,
"id": "e363faac37c34edbb5961d96b48b2244",
"to_name": null,
"type": null,
"value": {
"end": 6730,
"labels": [
"FAC"
],
"start": 6466,
"text": "Concurrent Auditor of the Bank also pointed out this fact in her report adding that the tenants in 5 occupation of collateral security would adversely affect the interests of the bank, in the event of necessity, to enforce sale of the property to recover its dues."
}
},
{
"from_name": null,
"id": "f92f233646914d1cac903942a28a1aec",
"to_name": null,
"type": null,
"value": {
"end": 6904,
"labels": [
"FAC"
],
"start": 6731,
"text": "It is also revealed that tenants were paying rents to Shri Nagesh s/o late Krishnappa, who sold the property to Shri Nilakanth Sanikop, from whom A-3 purchased the property."
}
},
{
"from_name": null,
"id": "110774bd05a442fc9692cc9b36f3cea7",
"to_name": null,
"type": null,
"value": {
"end": 7108,
"labels": [
"FAC"
],
"start": 6905,
"text": "A-1 intentionally omitted to make any endeavour to ascertain the nature of rights of the tenants, despite the fact that in future it would affect the enforceability of the mortgaged property by the bank."
}
},
{
"from_name": null,
"id": "e1e8b3129c3a46bf87100ee5276523cc",
"to_name": null,
"type": null,
"value": {
"end": 7351,
"labels": [
"FAC"
],
"start": 7108,
"text": "\n 34. That Shri B.A. Srinivasan (A-1) also violated the extant rules of the bank by not obtaining the Legal Audit Report, on the mortgaged property, prior to processing and sanctioning of loans to M/s. Nikhara Electronics and Allied Tekchnics."
}
},
{
"from_name": null,
"id": "2566b3503ced45f5970d8dcb4b14b082",
"to_name": null,
"type": null,
"value": {
"end": 7504,
"labels": [
"FAC"
],
"start": 7352,
"text": "Shri B.A.\n Srinivasan (A-1) obtained this report only on 19.04.2012, more than six months after the loan was sanctioned and disbursed."
}
},
{
"from_name": null,
"id": "34cfec13bd8549b2b9d9338b6dc27338",
"to_name": null,
"type": null,
"value": {
"end": 8592,
"labels": [
"FAC"
],
"start": 7504,
"text": "\n 35. By the above said acts, Shri B.A. Srinivasan (A- 1), the then AGM, Vijaya Bank, Mayo Hall Branch, Bangalore; M/s. Nikhara Electronics and Allied Technics (A-2); Shri B. Lakshman @ Lakshman Reddy (A-3); Smt. Shanta Gowda (A-4); Shri S.V.Isloor (A-5) and Shri Venkataramana Bhat (A-6) committed the offences of cheating and personating as proprietor, M/s. V-Tech Engineering Enterprises, committed forgery of documents such as Quotations, Cash/Credit Bills, vouchers etc. for the purpose of cheating, using the forged documents as genuine in pursuance of the criminal conspiracy among themselves, thereby causing wrongful loss to the bank and corresponding gains to themselves and others.\n Investigation also establishes that Shri B.A.\n Srinivasan (A-1) committed the offence of criminal misconduct by gross abuse of his official position as the then AGM of Vijaya Bank, Mayo Hall Branch, Bangalore, and caused accrual of pecuniary advantage to the accused private persons, attracting the penal provisions of the Prevention of Corruption Act, 1988."
}
},
{
"from_name": null,
"id": "23bb6c1c57e943549e699f67cf40f24c",
"to_name": null,
"type": null,
"value": {
"end": 8977,
"labels": [
"FAC"
],
"start": 8612,
"text": "That, the above acts of Shri B.A. Srinivasan (A-1), 6 M/s. Nikhara Electronics and Allied Technics (A-2), Shri B. Lakshman (A-3), Smt. Shanta Gowda (A-4), Shri Shripad Vishwanath Isloor (A-5) and Shri Venkataramana Bhat (A-6) constitute offences punishable u/s 120-B r/w 420, 419, 468 & 471 IPC and 13(2) r/2 13(1)(d) of the Prevention of Corruption Act, 1988.\n 36."
}
},
{
"from_name": null,
"id": "9343c2058c0b4c119b3de3aa575df7ab",
"to_name": null,
"type": null,
"value": {
"end": 9139,
"labels": [
"FAC"
],
"start": 8978,
"text": "That Shri B.A. Srinivasan (A-1) is retired from the services of Vijaya Bank on 31.10.2012; hence sanction for prosecution u/s 19 of the PC Act, is not required.\""
}
},
{
"from_name": null,
"id": "c23e9e7dc0084ca6b4298f9a6138d51a",
"to_name": null,
"type": null,
"value": {
"end": 9362,
"labels": [
"FAC"
],
"start": 9139,
"text": "\n 4. After the cognizance was taken by the concerned court, an application was moved by the Respondent No.1 seeking discharge in terms of Sections 227 and 239 of the Code of Criminal Procedure, 1973 (`the Code', for short)."
}
},
{
"from_name": null,
"id": "a6d5036d392b412d8264fd823752d19a",
"to_name": null,
"type": null,
"value": {
"end": 9523,
"labels": [
"FAC"
],
"start": 9363,
"text": "This application was rejected by the Additional City Civil and Sessions Judge and Principal Special Judge for CBI cases, Bangalore, vide order dated 13.04.2015."
}
},
{
"from_name": null,
"id": "a456b852941f4236baa09b322018a283",
"to_name": null,
"type": null,
"value": {
"end": 10040,
"labels": [
"FAC"
],
"start": 9524,
"text": "It was observed:- \"...As can be seen from the charge sheet and statement of witnesses, accused No.1 has deliberately violated the rules and regulations and bank norms of the bank while processing the loan application of accused No.2 firm and thereby he had entered into criminal conspiracy with accused Nos.3 to 6 and accepted the fabricated and forged vouchers, invoices inflated financial statements in order to facilitate accused Nos.3 and 4 to avail the term loan of Rs. Two Crores cash credit and Rs. One Crore."
}
},
{
"from_name": null,
"id": "d42902d6ad9e4f3fa94ff8dd4302465a",
"to_name": null,
"type": null,
"value": {
"end": 10173,
"labels": [
"FAC"
],
"start": 10041,
"text": "The said term loan and cash credit of Rs.Three Crores were misutilised for the purpose other than for which the loan was sanctioned."
}
},
{
"from_name": null,
"id": "8c8e66b056ff48d388a0526f3a9635a7",
"to_name": null,
"type": null,
"value": {
"end": 10306,
"labels": [
"FAC"
],
"start": 10174,
"text": "Thus, all materials clearly go to show that there was dishonest intention on the part of the accused No.1 from the inception itself."
}
},
{
"from_name": null,
"id": "4fdb9badac6d469e8f008d5a74ba762c",
"to_name": null,
"type": null,
"value": {
"end": 10623,
"labels": [
"FAC"
],
"start": 10307,
"text": "The said circumstances and materials collected by the 7 Investigating Officer clearly reveal that accused No.1 had entered into criminal conspiracy with accused Nos. 3 to 6 and he had accepted the forged, fabricated invoices and inflated financial statement knowingly fully well that they were forged. ...\n ........."
}
},
{
"from_name": null,
"id": "4a98f918532a4556bbd2e10af6c13975",
"to_name": null,
"type": null,
"value": {
"end": 10747,
"labels": [
"ANALYSIS"
],
"start": 10625,
"text": "Though accused No.1 was public servant, it is alleged that he has retired from the service from Vijaya Bank on 31.10.2013."
}
},
{
"from_name": null,
"id": "09d7dfae59d84d498508a7ad646680c9",
"to_name": null,
"type": null,
"value": {
"end": 10845,
"labels": [
"ANALYSIS"
],
"start": 10748,
"text": "Therefore, sanction as required u/s 19 of PC Act, 1988 to prosecute accused No.1 is not required."
}
},
{
"from_name": null,
"id": "a7f97d1ccf2641ad8d37f38dd4156690",
"to_name": null,
"type": null,
"value": {
"end": 11131,
"labels": [
"ANALYSIS"
],
"start": 10846,
"text": "The discharge application filed by accused No.1 is devoid of merits and on the contrary, there are sufficient materials against accused No.1 for framing charge for the offences punishable u/s 120B, 420, 471 IPC and u/s. 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988....\"\n 5."
}
},
{
"from_name": null,
"id": "787228d414104cdf864809af36fba071",
"to_name": null,
"type": null,
"value": {
"end": 11309,
"labels": [
"ANALYSIS"
],
"start": 11132,
"text": "The Respondent No.1, being aggrieved, preferred Criminal Revision Petition No. 834 of 2015 in the High Court, which was allowed by the judgment and order presently under appeal."
}
},
{
"from_name": null,
"id": "4c44dce449674fcb8f6de1eb86a269ca",
"to_name": null,
"type": null,
"value": {
"end": 11473,
"labels": [
"RLC"
],
"start": 11310,
"text": "The High Court, thus set aside the order dated 13.04.2015 as regards the Respondent No.1 and discharged him of the offences with which he was sought to be charged."
}
},
{
"from_name": null,
"id": "845df0ae3c7948748d228b2aee4d3209",
"to_name": null,
"type": null,
"value": {
"end": 11635,
"labels": [
"RLC"
],
"start": 11473,
"text": "\n 6. While dealing with the submission that the allegations against the Respondent No.1 could, at best, be administrative lapses, the High Court observed:- \"10..."
}
},
{
"from_name": null,
"id": "c6d11a2169b54da6b5284903c4ec366a",
"to_name": null,
"type": null,
"value": {
"end": 11750,
"labels": [
"RLC"
],
"start": 11636,
"text": "...These aspects of administrative lapses, it is to be stated, cannot be considered at the time of framing charge."
}
},
{
"from_name": null,
"id": "68a0de31784e454986eb179d8754ec5e",
"to_name": null,
"type": null,
"value": {
"end": 11930,
"labels": [
"RLC"
],
"start": 11751,
"text": "Unless the witnesses are subjected to cross-examination, no finding can be given whether the omission in following the procedure amounts to administrative lapse or was deliberate."
}
},
{
"from_name": null,
"id": "115a27cfb6dc4caea59d8d1a9faf98e8",
"to_name": null,
"type": null,
"value": {
"end": 12015,
"labels": [
"RLC"
],
"start": 11931,
"text": "Therefore, this 8 point of argument cannot be a ground for discharging accused No.1."
}
},
{
"from_name": null,
"id": "248f193ef34442cbab5bdb2cf74dd3f6",
"to_name": null,
"type": null,
"value": {
"end": 12348,
"labels": [
"RLC"
],
"start": 12016,
"text": "Therefore, given a conclusion, it can be opined that the materials on record are sufficient to frame a charge against accused no.1, the findings of the Special Court in this regard do not indicate non- application of mind or, any infirmity or illegality in coming to an opinion that accused no.1 cannot be discharged on this ground."
}
},
{
"from_name": null,
"id": "86e27bd399224b7ab182a1a9a77a3888",
"to_name": null,
"type": null,
"value": {
"end": 12384,
"labels": [
"RLC"
],
"start": 12349,
"text": "This finding needs to be sustained."
}
},
{
"from_name": null,
"id": "f819fdcc02634b8e9a3f34cc8a8e2d48",
"to_name": null,
"type": null,
"value": {
"end": 12450,
"labels": [
"RLC"
],
"start": 12386,
"text": "On the issue of sanction, the High Court, however, stated:- \"11."
}
},
{
"from_name": null,
"id": "5433b515a8cd429aad793058d40ff59e",
"to_name": null,
"type": null,
"value": {
"end": 12515,
"labels": [
"RLC"
],
"start": 12451,
"text": "However, another finding regarding sanction cannot be sustained."
}
},
{
"from_name": null,
"id": "842f7e9eb66644ffaa6e8c2c082f41f0",
"to_name": null,
"type": null,
"value": {
"end": 12641,
"labels": [
"RLC"
],
"start": 12516,
"text": "The special court has held that the sanction is not necessary as accused no.1 has retired by the time charge-sheet was filed."
}
},
{
"from_name": null,
"id": "f38c7086fc0741158226370bfa7ddd0e",
"to_name": null,
"type": null,
"value": {
"end": 12749,
"labels": [
"RLC"
],
"start": 12642,
"text": "But the argument of petitioner's counsel is that sanction in accordance with Section 197 CrPC is necessary."
}
},
{
"from_name": null,
"id": "a346a9f517654e0da4754fa8fa363133",
"to_name": null,
"type": null,
"value": {
"end": 12941,
"labels": [
"RLC"
],
"start": 12769,
"text": "Before adverting to this point, I think it necessary to opine that the offences triable by Special Judge related to time when an accused was in service as a public servant."
}
},
{
"from_name": null,
"id": "f25f6ef98bc7402f9ca52d873a9b813c",
"to_name": null,
"type": null,
"value": {
"end": 13089,
"labels": [
"RLC"
],
"start": 12942,
"text": "Sanction under Section 19 of Prevention of Corruption Act is necessary to see that a public servant is not entangled in a frivolous and false case."
}
},
{
"from_name": null,
"id": "aa8daa5197754eec9e8b1b9e1fb72a4e",
"to_name": null,
"type": null,
"value": {
"end": 13177,
"labels": [
"RLC"
],
"start": 13090,
"text": "Sanction insulates a public servant from a false or vexatious or frivolous prosecution."
}
},
{
"from_name": null,
"id": "053ac65b5a0e49c3967f2f4fbae31c92",
"to_name": null,
"type": null,
"value": {
"end": 13295,
"labels": [
"RLC"
],
"start": 13178,
"text": "Therefore, a protection available to a public servant while in service should also be available after his retirement."
}
},
{
"from_name": null,
"id": "46595c617240462cad26c79087e647b1",
"to_name": null,
"type": null,
"value": {
"end": 13431,
"labels": [
"RLC"
],
"start": 13315,
"text": "It cannot be forgotten that even after retirement, he is prosecuted for offences under prevention of Corruption Act."
}
},
{
"from_name": null,
"id": "142e990529394b46a8adc7fd943c44ad",
"to_name": null,
"type": null,
"value": {
"end": 13597,
"labels": [
"RLC"
],
"start": 13432,
"text": "Indeed, the retirement removes one from the garb of a public servant; but justice requires that same protection should be available even after one's retirement. ...\""
}
},
{
"from_name": null,
"id": "0fc0142c6bed47bb87e07723d0d2fc0d",
"to_name": null,
"type": null,
"value": {
"end": 13617,
"labels": [
"RLC"
],
"start": 13597,
"text": "\n (underlined by us)"
}
},
{
"from_name": null,
"id": "c94b752dce334c2eb04705d99f7f4022",
"to_name": null,
"type": null,
"value": {
"end": 14162,
"labels": [
"RLC"
],
"start": 13618,
"text": "Thereafter, while dealing with submissions based on the decisions of this Court in Kalicharan Mahapatra vs. State of Orissa2, R.\n 2 AIR 1998 SC 2595 9 Balakrishna Pillai vs. State of Kerala3, State of Punjab vs. Labh Singh4 and N.K. Ganguly vs. CBI, New Delhi5, the matter was considered as under:- \"The learned standing counsel for CBI submitted insofar as offences under Indian Penal Code are concerned, they cannot be said to have been committed in discharge of official duty; sanction therefore is not necessary even under Section 197 CrPC."
}
},
{
"from_name": null,
"id": "e82c98edfdb54f27a5b9043e1b6d4f95",
"to_name": null,
"type": null,
"value": {
"end": 14414,
"labels": [
"RLC"
],
"start": 14163,
"text": "If the allegations levelled against the first accused are seen, and particularly with reference to conspiracy, it is to be stated at the stage of framing charge, it is difficult to discern whether offences can be connected to official capacity or not."
}
},
{
"from_name": null,
"id": "82c08b00a1834e5a82aaa51c74aa25aa",
"to_name": null,
"type": null,
"value": {
"end": 14450,
"labels": [
"RLC"
],
"start": 14415,
"text": "Thorough trial requires to be held."
}
},
{
"from_name": null,
"id": "cb5dad04728f4f3ba73e92fd672f8711",
"to_name": null,
"type": null,
"value": {
"end": 14658,
"labels": [
"RLC"
],
"start": 14451,
"text": "If facts in N.K. Ganguly (supra) are seen, there also the accused were sought to be prosecuted for the offences under Prevention of Corruption Act in addition to some of the offences under Indian Penal Code."
}
},
{
"from_name": null,
"id": "99579240dc854e2286e7f755cae3987a",
"to_name": null,
"type": null,
"value": {
"end": 14779,
"labels": [
"RLC"
],
"start": 14659,
"text": "Thus seen, the first accused should get the benefit of discharge for absence of sanction under Section 197 of CrPC. ...\""
}
},
{
"from_name": null,
"id": "cf20f2d1c7a9491c8fbea0e00660a367",
"to_name": null,
"type": null,
"value": {
"end": 14889,
"labels": [
"FAC"
],
"start": 14779,
"text": "\n Thus, it was concluded that the material on record was sufficient to frame a charge against Respondent No.1."
}
},
{
"from_name": null,
"id": "5e88113a533d4be5bab2584068e799b8",
"to_name": null,
"type": null,
"value": {
"end": 15001,
"labels": [
"FAC"
],
"start": 14890,
"text": "The benefit of discharge was however granted on the issue of absence of sanction under Section 197 of the Code."
}
},
{
"from_name": null,
"id": "e0f401a792254425975fd234578d22ce",
"to_name": null,
"type": null,
"value": {
"end": 15274,
"labels": [
"ANALYSIS"
],
"start": 15001,
"text": "\n 7. In this appeal challenging the view taken by the High Court, we heard Mrs. Sonia Mathur, learned Senior Advocate, in support of the 3 (1996) 1 SCC 478 4 (2014) 16 SCC 807 5 (2016) 2 SCC 143 10 appeal and Mrs. V. Mohana, learned Senior Advocate for the Respondent No.1."
}
},
{
"from_name": null,
"id": "8f8f62d41fd6498f8d4ca620020e4699",
"to_name": null,
"type": null,
"value": {
"end": 15550,
"labels": [
"ARG_PETITIONER"
],
"start": 15274,
"text": "\n 8. Mrs. Sonia Mathur, learned Senior Advocate, submitted that the protection under Section 19 of the Act is available to a public servant only till he is in the employment and no sanction is necessary after the public servant has demitted office or has retired from service."
}
},
{
"from_name": null,
"id": "e282e5943cf049968b41298549daf427",
"to_name": null,
"type": null,
"value": {
"end": 15971,
"labels": [
"ARG_PETITIONER"
],
"start": 15551,
"text": "As regards sanction under Section 197 of the Code, it was submitted that for an action to come within the purview of Section 197 of the Code, it must be integrally connected with the official duties or functions of a public servant and that if the office was merely used as a cloak to indulge in activities which result in unlawful gain to the beneficiaries, the protection under said Section 197 would not be available."
}
},
{
"from_name": null,
"id": "1676562d68584fc7930606e9a6123725",
"to_name": null,
"type": null,
"value": {
"end": 16155,
"labels": [
"ARG_PETITIONER"
],
"start": 15971,
"text": "\n It was also submitted that the decision of this Court in N.K.\n Ganguly vs. Central Bureau of Investigation, New Delhi5 was in the context of the peculiar facts involved therein."
}
},
{
"from_name": null,
"id": "f1537711cad94c1093e216922334e978",
"to_name": null,
"type": null,
"value": {
"end": 16598,
"labels": [
"ARG_RESPONDENT"
],
"start": 16155,
"text": "\n On the other hand, Mrs. V. Mohana, learned Senior Advocate, submitted that the Respondent No. 1 retired in the year 2012; that the allegations levelled against him would, at best, amount to administrative lapses on his part and there was certainly no criminal intent so as to attract 11 the charges under the relevant sections; and that this Court may not in its jurisdiction under Article 136(1) of the Constitution interfere in the matter."
}
},
{
"from_name": null,
"id": "cb8cd73defae44c3abbdc207c3dbada6",
"to_name": null,
"type": null,
"value": {
"end": 16931,
"labels": [
"PRE_RELIED"
],
"start": 16598,
"text": "\n 9. In S.A. Venkataraman vs. The State6 while dealing with the requirement of sanction under the pari materia provisions of the Prevention of Corruption Act, 1947, it was laid down that the protection under the concerned provisions would not be available to a public servant after he had demitted his office or retired from service."
}
},
{
"from_name": null,
"id": "0b351ba8f8c6426e9538317603f21707",
"to_name": null,
"type": null,
"value": {
"end": 17284,
"labels": [
"PRE_RELIED"
],
"start": 16932,
"text": "It was stated:- \"... ...if an offence under s. 161 of the Indian Penal Code was committed by a public servant, but, at the time a court was asked to take cognizance of the offence, that person had ceased to be a public servant one of the two requirements to make s. 6 of the Act applicable would be lacking and a previous sanction would be unnecessary."
}
},
{
"from_name": null,
"id": "d7e8778a52e84298866810f0121d3ff4",
"to_name": null,
"type": null,
"value": {
"end": 17387,
"labels": [
"PRE_RELIED"
],
"start": 17285,
"text": "The words in s. 6(1) of the Act are clear enough and they must be given effect to.\n "
}
},
{
"from_name": null,
"id": "f70e443407994262bd262d3587be00c0",
"to_name": null,
"type": null,
"value": {
"end": 17753,
"labels": [
"PRE_RELIED"
],
"start": 17387,
"text": "There is nothing in the words used in s. 6(1) to even remotely suggest that previous sanction was necessary before a court could take cognizance of the offences mentioned therein in the case of a person who had ceased to be a public servant at the time the court was asked to take cognizance, although he had been such a person at the time the offence was committed."
}
},
{
"from_name": null,
"id": "dd67231a453e4ab1b095dbbecddd652d",
"to_name": null,
"type": null,
"value": {
"end": 17762,
"labels": [
"PRE_RELIED"
],
"start": 17754,
"text": "... ...\""
}
},
{
"from_name": null,
"id": "bb10110445c1411590e60a4931199fec",
"to_name": null,
"type": null,
"value": {
"end": 17829,
"labels": [
"ANALYSIS"
],
"start": 17764,
"text": "The law so declared by this Court has consistently been followed."
}
},
{
"from_name": null,
"id": "0cbb6f9ca4d94a05a6c0938acd127883",
"to_name": null,
"type": null,
"value": {
"end": 17973,
"labels": [
"PRE_RELIED"
],
"start": 17829,
"text": "\n For example, in Labh Singh4 it was observed:- \"9. In the present case the public servants in question had retired on 13-12-1999 and 30-4-2000."
}
},
{
"from_name": null,
"id": "170412170c6745508f0c1fa8f857289d",
"to_name": null,
"type": null,
"value": {
"end": 18118,
"labels": [
"PRE_RELIED"
],
"start": 17974,
"text": "The sanction to prosecute them was rejected subsequent to 6 [1958] SCR 1037 12 their retirement i.e. first on 13-9-2000 and later on 24- 9-2003."
}
},
{
"from_name": null,
"id": "9828317a435d4c04bcdc0e45f44672ac",
"to_name": null,
"type": null,
"value": {
"end": 18250,
"labels": [
"PRE_RELIED"
],
"start": 18119,
"text": "The public servants having retired from service there was no occasion to consider grant of sanction under Section 19 of the PC Act."
}
},
{
"from_name": null,
"id": "f29be0b9ef8c435b9cb857f8a07aaef2",
"to_name": null,
"type": null,
"value": {
"end": 18464,
"labels": [
"PRE_RELIED"
],
"start": 18251,
"text": "The law on the point is quite clear that sanction to prosecute the public servant for the offences under the PC Act is not required if the public servant had already retired on the date of cognizance by the court."
}
},
{
"from_name": null,
"id": "58cce83e4f02477e9eccaf22fcd2dc39",
"to_name": null,
"type": null,
"value": {
"end": 18818,
"labels": [
"PRE_RELIED"
],
"start": 18465,
"text": "In S.A.\n Venkataraman v. State6 while construing Section 6(1) of the Prevention of Corruption Act, 1947 which provision is in pari materia with Section 19(1) of the PC Act, this Court held that no sanction was necessary in the case of a person who had ceased to be the public servant at the time the court was asked to take cognizance."
}
},
{
"from_name": null,
"id": "06ebb0596922489e80f41b4e43b7f274",
"to_name": null,
"type": null,
"value": {
"end": 19087,
"labels": [
"PRE_RELIED"
],
"start": 18819,
"text": "The view taken in S.A.\n Venkataraman6 was adopted by this Court in C.R.\n Bansi v. State of Maharashtra7 and in Kalicharan Mahapatra v. State of Orissa2 and by the Constitution Bench of this Court in K. Veeraswami v. Union of India8."
}
},
{
"from_name": null,
"id": "9b4fe9df565d4eb2902583e2d6a52bc2",
"to_name": null,
"type": null,
"value": {
"end": 19236,
"labels": [
"PRE_RELIED"
],
"start": 19088,
"text": "The High Court was not therefore justified in setting aside the order passed by the Special Judge insofar as charge under the PC Act was concerned.\""
}
},
{
"from_name": null,
"id": "422d93f9402e41c2aabbf9edca4b7d7e",
"to_name": null,
"type": null,
"value": {
"end": 19453,
"labels": [
"ANALYSIS"
],
"start": 19238,
"text": "10. Consequently, there was no occasion or reason to entertain any application seeking discharge in respect of offences punishable under the Act, on the ground of absence of any sanction under Section 19 of the Act."
}
},
{
"from_name": null,
"id": "6166b1815b84465daf9034699cc71216",
"to_name": null,
"type": null,
"value": {
"end": 19622,
"labels": [
"ANALYSIS"
],
"start": 19453,
"text": "\n The High Court was also not justified in observing `that the protection available to a public servant while in service, should also be available after his retirement'."
}
},
{
"from_name": null,
"id": "4ceb83b69c034801a4c45f4c70ed6940",
"to_name": null,
"type": null,
"value": {
"end": 19773,
"labels": [
"ANALYSIS"
],
"start": 19623,
"text": "That statement is completely inconsistent with the law laid down by this Court in connection with requirement of sanction under Section 19 of the Act."
}
},
{
"from_name": null,
"id": "be8da38bf4f1413ebc302ca3c0776e53",
"to_name": null,
"type": null,
"value": {
"end": 19818,
"labels": [
"ANALYSIS"
],
"start": 19773,
"text": "\n 7 (1970) 3 SCC 537 8 (1991) 3 SCC 655 13 11"
}
},
{
"from_name": null,
"id": "9ee1f6730118483faa06873294a97d73",
"to_name": null,
"type": null,
"value": {
"end": 20182,
"labels": [
"STA"
],
"start": 19818,
"text": ". Again, it has consistently been laid down that the protection under Section 197 of the Code is available to the public servants when an offence is said to have been committed `while acting or purporting to act in discharge of their official duty', but where the acts are performed using the office as a mere cloak for unlawful gains, such acts are not protected."
}
},
{
"from_name": null,
"id": "9d1ff60b776e452aa2b79889dd0d5be7",
"to_name": null,
"type": null,
"value": {
"end": 20363,
"labels": [
"PRE_RELIED"
],
"start": 20184,
"text": "The statements of law in some of the earlier decisions were culled out by this Court in Inspector of Police and another vs. Battenapatla Venkata Ratnam and another9 as under:- \"7."
}
},
{
"from_name": null,
"id": "1589b2c24b0245b99cf21f707933b11e",
"to_name": null,
"type": null,
"value": {
"end": 20479,
"labels": [
"PRE_RELIED"
],
"start": 20364,
"text": "No doubt, while the respondents indulged in the alleged criminal conduct, they had been working as public servants."
}
},
{
"from_name": null,
"id": "b15b21cbfeb1476b879a90ce4b9eac80",
"to_name": null,
"type": null,
"value": {
"end": 20699,
"labels": [
"PRE_RELIED"
],
"start": 20499,
"text": "The question is not whether they were in service or on duty or not but whether the alleged offences have been committed by them \"while acting or purporting to act in discharge of their official duty\"."
}
},
{
"from_name": null,
"id": "48e2d2721b4e45ae82e1125e2c0f33b4",
"to_name": null,
"type": null,
"value": {
"end": 20737,
"labels": [
"ANALYSIS"
],
"start": 20700,
"text": "That question is no more res integra."
}
},
{
"from_name": null,
"id": "4791ba55cb854aae95d3b6c93c58df77",
"to_name": null,
"type": null,
"value": {
"end": 20830,
"labels": [
"PRE_RELIED"
],
"start": 20738,
"text": "In Shambhoo Nath Misra v. State of U.P.10, at para 5, this Court held that: (SCC p. 328) \"5."
}
},
{
"from_name": null,
"id": "dd908132951040e887776b6399e2f44c",
"to_name": null,
"type": null,
"value": {
"end": 21043,
"labels": [
"PRE_RELIED"
],
"start": 20831,
"text": "The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund, etc. can he be said to have acted in discharge of his official duties."
}
},
{
"from_name": null,
"id": "77878b74f5274b6e80075be2f7680246",
"to_name": null,
"type": null,
"value": {
"end": 21228,
"labels": [
"PRE_RELIED"
],
"start": 21044,
"text": "It is not the official duty of the public servant to fabricate the false records and misappropriate the public funds, etc. in furtherance of or in the discharge of his official duties."
}
},
{
"from_name": null,
"id": "59b173bdbe9948fab974ada1db6ab6ea",
"to_name": null,
"type": null,
"value": {
"end": 21331,
"labels": [
"PRE_RELIED"
],
"start": 21229,
"text": "The official capacity only enables him to fabricate the record or misappropriate the public fund, etc."
}
},
{
"from_name": null,
"id": "aa3a4f76259a461c8797543365136f20",
"to_name": null,
"type": null,
"value": {
"end": 21550,
"labels": [
"PRE_RELIED"
],
"start": 21332,
"text": "It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of the 9 (2015)13 SCC 87 10 (1997) 5 SCC 326 14 same transaction, as was believed by the learned Judge."
}
},
{
"from_name": null,
"id": "b1ff35a29be847a89c9168ee088ed185",
"to_name": null,
"type": null,
"value": {
"end": 21748,
"labels": [
"PRE_RELIED"
],
"start": 21551,
"text": "Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial court on the question of sanction is clearly illegal and cannot be sustained.\"\n 8."
}
},
{
"from_name": null,
"id": "a3f618da6e4346668c19073ee6cc591d",
"to_name": null,
"type": null,
"value": {
"end": 21847,
"labels": [
"PRE_RELIED"
],
"start": 21749,
"text": "In Parkash Singh Badal v. State of Punjab11, at para 20 this Court held that: (SCC pp. 22-23) \"20."
}
},
{
"from_name": null,
"id": "77687b47f52641ffa6eeb69b99e62403",
"to_name": null,
"type": null,
"value": {
"end": 21983,
"labels": [
"PRE_RELIED"
],
"start": 21848,
"text": "The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government."
}
},
{
"from_name": null,
"id": "bc87aee4eb83448cb9450d62e96e861b",
"to_name": null,
"type": null,
"value": {
"end": 22097,
"labels": [
"PRE_RELIED"
],
"start": 21983,
"text": "\n The purpose for which they are performed protects these acts from criminal prosecution."
}
},
{
"from_name": null,
"id": "f06b74b8cade4f989ac179c0cc3c1278",
"to_name": null,
"type": null,
"value": {
"end": 22155,
"labels": [
"PRE_RELIED"
],
"start": 22097,
"text": "\n However, there is an exception."
}
},
{
"from_name": null,
"id": "35ae7bbe096b4526a6b485b336d324a9",
"to_name": null,
"type": null,
"value": {
"end": 22369,
"labels": [
"PRE_RELIED"
],
"start": 22156,
"text": "Where a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity.\""
}
},
{
"from_name": null,
"id": "c261f18e5cc54d3f8f8fc83c72dfb500",
"to_name": null,
"type": null,
"value": {
"end": 22469,
"labels": [
"PRE_RELIED"
],
"start": 22369,
"text": "\n and thereafter, at para 38, it was further held that: (Parkash Singh Badal case11, SCC p. 32) \"38."
}
},
{
"from_name": null,
"id": "3ca6dcfe11f9469abd489e2313dfeaed",
"to_name": null,
"type": null,
"value": {
"end": 22658,
"labels": [
"ANALYSIS"
],
"start": 22470,
"text": "The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein."
}
},
{
"from_name": null,
"id": "62c3213861cf43c899eb59b8c282c25b",
"to_name": null,
"type": null,
"value": {
"end": 22739,
"labels": [
"ANALYSIS"
],
"start": 22684,
"text": "This question may arise at any stage of the proceeding."
}
},
{
"from_name": null,
"id": "23cc9d8bcb0e49608b73457b5fda4828",
"to_name": null,
"type": null,
"value": {
"end": 22841,
"labels": [
"ANALYSIS"
],
"start": 22740,
"text": "The question whether sanction is necessary or not may have to be determined from stage to stage.\"\n 9."
}
},
{
"from_name": null,
"id": "8ee755c5e98843749b08b668e6fc3d97",
"to_name": null,
"type": null,
"value": {
"end": 23752,
"labels": [
"PRE_RELIED"
],
"start": 22842,
"text": "In a recent decision in Rajib Ranjan v. R. Vijaykumar12 at para 18, this Court has taken the view that: (SCC p. 521) \"18. ... even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, 11 (2007) 1 SCC 1 12 (2015) 1 SCC 513 15 such misdemeanour on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted.\"\n (emphasis already supplied) 12. It has also been observed by this Court that, at times, the issue whether the alleged act is intricately connected with the discharge of official functions and whether the matter would come within the expression `while acting or purporting to act in discharge of their official duty', would get crystalized only after evidence is led and the issue of sanction can be agitated at a later stage as well."
}
},
{
"from_name": null,
"id": "074622ff564e4684b72c6fc52d49c4b9",
"to_name": null,
"type": null,
"value": {
"end": 23866,
"labels": [
"PRE_RELIED"
],
"start": 23753,
"text": "In P.K. Pradhan vs. State of Sikkim represented by the Central Bureau of Investigation13, this Court stated:- \"15"
}
},
{
"from_name": null,
"id": "14f521c8249c4ec3bf1c135266ee9a62",
"to_name": null,
"type": null,
"value": {
"end": 24132,
"labels": [
"PRE_RELIED"
],
"start": 23866,
"text": ". Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty."
}
},
{
"from_name": null,
"id": "8be660de5a434e1c8dbcea130eba8703",
"to_name": null,
"type": null,
"value": {
"end": 24232,
"labels": [
"PRE_RELIED"
],
"start": 24133,
"text": "An official act can be performed in the discharge of official duty as well as in dereliction of it."
}
},
{
"from_name": null,
"id": "387ef2c56b5f4dfb90e245ad4573104d",
"to_name": null,
"type": null,
"value": {
"end": 24614,
"labels": [
"PRE_RELIED"
],
"start": 24233,
"text": "For invoking protection under Section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required."
}
},
{
"from_name": null,
"id": "103259f254174f74aad6c64d4c88fe8b",
"to_name": null,
"type": null,
"value": {
"end": 24816,
"labels": [
"PRE_RELIED"
],
"start": 24615,
"text": "If the case as put forward by the prosecution fails or the defence 13 (2001) 6 SCC 704 16 establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped."
}
},
{
"from_name": null,
"id": "edd40cf056ca4137a42653d617b6ea9d",
"to_name": null,
"type": null,
"value": {
"end": 25065,
"labels": [
"PRE_RELIED"
],
"start": 24817,
"text": "It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; maybe immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well."
}
},
{
"from_name": null,
"id": "d11534584c774127abce38a991eb483e",
"to_name": null,
"type": null,
"value": {
"end": 25267,
"labels": [
"PRE_RELIED"
],
"start": 25066,
"text": "But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty."
}
},
{
"from_name": null,
"id": "6058d6879334413ca94c990ec979788c",
"to_name": null,
"type": null,
"value": {
"end": 25555,
"labels": [
"PRE_RELIED"
],
"start": 25268,
"text": "In order to come to the conclusion whether claim of the accused that the act that he did was in course of the performance of his duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it."
}
},
{
"from_name": null,
"id": "98e7d741ab07458f9bc7f21e2e69a105",
"to_name": null,
"type": null,
"value": {
"end": 25713,
"labels": [
"PRE_RELIED"
],
"start": 25556,
"text": "In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial.\""
}
},
{
"from_name": null,
"id": "10161ad85cc2402c864f798df8fbc3f8",
"to_name": null,
"type": null,
"value": {
"end": 25737,
"labels": [
"NONE"
],
"start": 25713,
"text": "\n (underlined by us) 13."
}
},
{
"from_name": null,
"id": "a122d236132e4453a41da9d7c8e21d4d",
"to_name": null,
"type": null,
"value": {
"end": 25958,
"labels": [
"PRE_RELIED"
],
"start": 25738,
"text": "The offences involved in the case of N.K. Ganguly5 were under Section 120-B IPC read with Sections 13(1)(d) and 13(2) of the Act i.e.\n relating to conspiracy to commit offences punishable under the provisions of the Act."
}
},
{
"from_name": null,
"id": "8d98227f6027463abe34dcddb05c80c2",
"to_name": null,
"type": null,
"value": {
"end": 26359,
"labels": [
"PRE_RELIED"
],
"start": 25959,
"text": "Secondly, the conclusion was drawn in the context of the facts available therein which is evident from the following: - \"35. From a perusal of the case law referred to supra, it becomes clear that for the purpose of obtaining previous sanction from the appropriate Government under Section 197 CrPC, it is imperative that the alleged offence is committed in discharge of official duty by the accused."
}
},
{
"from_name": null,
"id": "154ae95e011e4e57a0c697170e207450",
"to_name": null,
"type": null,
"value": {
"end": 26689,
"labels": [
"PRE_RELIED"
],
"start": 26360,
"text": "It is also important for the Court to examine the allegations contained in the final report against the appellants, to decide whether previous sanction is required to be obtained by the 17 respondent from the appropriate Government before taking cognizance of the alleged offence by the learned Special Judge against the accused."
}
},
{
"from_name": null,
"id": "3dbb2717e52b4a16adf394b02fb722fe",
"to_name": null,
"type": null,
"value": {
"end": 27200,
"labels": [
"ANALYSIS"
],
"start": 26690,
"text": "In the instant case, since the allegations made against the appellants in the final report filed by the respondent that the alleged offences were committed by them in discharge of their official duty, therefore, it was essential for the learned Special Judge to correctly decide as to whether the previous sanction from the Central Government under Section 197 CrPC was required to be taken by the respondent, before taking cognizance and passing an order issuing summons to the appellants for their presence.\""
}
},
{
"from_name": null,
"id": "05cc12cd41b54e5d962b3b07479aa8d6",
"to_name": null,
"type": null,
"value": {
"end": 27224,
"labels": [
"NONE"
],
"start": 27200,
"text": "\n (underlined by us) 14."
}
},
{
"from_name": null,
"id": "714ef74305384e67bc4896366b356799",
"to_name": null,
"type": null,
"value": {
"end": 27305,
"labels": [
"ANALYSIS"
],
"start": 27225,
"text": "We now turn to the cases relied upon by Mrs. V. Mohana, learned Senior Advocate."
}
},
{
"from_name": null,
"id": "0e9ced14ca214af8a0e1e2dfc470d90d",
"to_name": null,
"type": null,
"value": {
"end": 27391,
"labels": [
"PRE_NOT_RELIED"
],
"start": 27306,
"text": "In Rishipal Singh vs. State of Uttar Pradesh and another14 this Court observed:- \"13."
}
},
{
"from_name": null,
"id": "c06e5a89430d405eb99eeb70f20b311b",
"to_name": null,
"type": null,
"value": {
"end": 27642,
"labels": [
"PRE_NOT_RELIED"
],
"start": 27392,
"text": "What emerges from the above judgments is that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made in the complaint prima facie establish the case."
}
},
{
"from_name": null,
"id": "6604887e1a6d44c186ee82656b8cdf25",
"to_name": null,
"type": null,
"value": {
"end": 28005,
"labels": [
"PRE_NOT_RELIED"
],
"start": 27643,
"text": "The courts have to see whether the continuation of the complaint amounts to abuse of process of law and whether continuation of the criminal proceeding results in miscarriage of justice or when the court comes to a conclusion that quashing these proceedings would otherwise serve the ends of justice, then the court can exercise the power under Section 482 CrPC."
}
},
{
"from_name": null,
"id": "b149c240b81b407db1bb60e102a827b6",
"to_name": null,
"type": null,
"value": {
"end": 28494,
"labels": [
"PRE_NOT_RELIED"
],
"start": 28006,
"text": "While exercising the power under the provision, the courts have to only look at the uncontroverted allegation in the complaint whether prima facie discloses an offence or not, but it should not convert itself to that of a trial court and dwell into the disputed questions of fact.\"\n 14 (2014) 7 SCC 215 18 This decision thus dealt with the parameters which ought to be considered while entertaining an application under Section 482 of the Code and is not a decision directly on the point."
}
},
{
"from_name": null,
"id": "e84136bf91fe4e96a58067feba588531",
"to_name": null,
"type": null,
"value": {
"end": 28962,
"labels": [
"PRE_NOT_RELIED"
],
"start": 28495,
"text": "The decision in Anil Kumar Bose vs. State of Bihar15 pertained to a case which had arisen after a full fledged trial, where, as regards offence punishable under Section 420/34 IPC, it was observed that the essential ingredient being mens rea, mere failure on part of the concerned employees to perform their duties or to observe the rules/procedure may be administrative lapses but could not be said to be enough to attract the penal provisions under Section 420 IPC."
}
},
{
"from_name": null,
"id": "646a3a8a8d9e4eceb5ac20abe69fd702",
"to_name": null,
"type": null,
"value": {
"end": 29133,
"labels": [
"PRE_NOT_RELIED"
],
"start": 28963,
"text": "The matter was considered after the facts had crystalized in the form of evidence before the court and as such, this decision is of no relevance for the present purposes."
}
},
{
"from_name": null,
"id": "4f47120c678f4f6f82f84726c8aa75f3",
"to_name": null,
"type": null,
"value": {
"end": 29345,
"labels": [
"RATIO"
],
"start": 29133,
"text": "\n 15. Having considered the matter in entirety, in our view, the High Court clearly erred in allowing Criminal Revision Petition and accepting the challenge raised by the Respondent No.1 on the issue of sanction."
}
},
{
"from_name": null,
"id": "dd2c35b56f154f3e895a592f79c33647",
"to_name": null,
"type": null,
"value": {
"end": 29576,
"labels": [
"RPC"
],
"start": 29345,
"text": "\n We, thus, allow this Appeal, set aside the view taken by the High Court, restore the order passed by the Trial Court and dismiss the application seeking discharge preferred by the Respondent No.1.\n 15 (1974) 4 SCC 616 19 16."
}
},
{
"from_name": null,
"id": "d79a26bb9a214f2ca054f210c4a1995c",
"to_name": null,
"type": null,
"value": {
"end": 29836,
"labels": [
"RATIO"
],
"start": 29577,
"text": "It is made clear that we have adverted to the facts and the allegations only for the purpose of considering the basic issue pertaining to issue of sanction and we shall not be taken to have expressed any view on merits which shall be considered independently."
}
},
{
"from_name": null,
"id": "b9624e4b986644b59859079b67591312",
"to_name": null,
"type": null,
"value": {
"end": 29944,
"labels": [
"RPC"
],
"start": 29837,
"text": "It has been stated by the learned counsel that the matter is listed before the Special Court on 11.12.2019."
}
},
{
"from_name": null,
"id": "d7c8b419e4c446f5a1b51e8db0246f67",
"to_name": null,
"type": null,
"value": {
"end": 30085,
"labels": [
"RPC"
],
"start": 29945,
"text": "The Respondent No.1 shall appear before the Special Court on that day and the matter shall, thereafter, be proceeded in accordance with law."
}
},
{
"from_name": null,
"id": "cfc6af7883d04a619fda6edc80fc0c47",
"to_name": null,
"type": null,
"value": {
"end": 30140,
"labels": [
"RPC"
],
"start": 30092,
"text": "17. This Appeal is allowed in aforestated terms."
}
},
{
"from_name": null,
"id": "e584778330fd4e7b8d0a3f888fd4277d",
"to_name": null,
"type": null,
"value": {
"end": 30244,
"labels": [
"NONE"
],
"start": 30142,
"text": "...........................J.\n "
}
},
{
"from_name": null,
"id": "8a1b2608fe6c44898d3f8eb7842cdf7a",
"to_name": null,
"type": null,
"value": {
"end": 30262,
"labels": [
"NONE"
],
"start": 30244,
"text": "[Uday Umesh Lalit]"
}
},
{
"from_name": null,
"id": "5640b48563b24e2a811f75e837a04373",
"to_name": null,
"type": null,
"value": {
"end": 30322,
"labels": [
"NONE"
],
"start": 30263,
"text": "...........................J.\n "
}
},
{
"from_name": null,
"id": "cdd8b13d82ad4d82a37d0f191b928d9b",
"to_name": null,
"type": null,
"value": {
"end": 30336,
"labels": [
"NONE"
],
"start": 30322,
"text": "[Indu Malhotra"
}
},
{
"from_name": null,
"id": "e3ecc3a710554400825ae68059ce791d",
"to_name": null,
"type": null,
"value": {
"end": 30396,
"labels": [
"NONE"
],
"start": 30336,
"text": "] ...........................J.\n "
}
},
{
"from_name": null,
"id": "0f9dda93ed6f428b9c4308f1fb405ace",
"to_name": null,
"type": null,
"value": {
"end": 30411,
"labels": [
"NONE"
],
"start": 30396,
"text": "[Krishna Murari"
}
},
{
"from_name": null,
"id": "945ade2032f64693b4ce3f34aa0f94c2",
"to_name": null,
"type": null,
"value": {
"end": 30442,
"labels": [
"NONE"
],
"start": 30411,
"text": "] New Delhi; December 05, 2019."
}
}
]
}
] | 4,247 | {
"text": " 1\n\n Reportable\n\n IN THE SUPREME COURT OF INDIA\nCRIMINAL APPELLATE JURISDICTION\n\n CRIMINAL APPEAL NO.1837 OF 2019\n(Arising out of Special Leave Petition (Crl.) No.6106 of 2019)\n\nSTATION HOUSE OFFICER, CBI/ACB/BANGALORE ...Appellant\n\n VERSUS\n\nB.A. SRINIVASAN AND ANR. ...Respondents\n\n J U D G M E N T\n Uday Umesh Lalit, J.\n1. Leave granted.\n 2. This Appeal challenges the judgment and order dated 08.08.2018 passed by the High Court1 allowing Criminal Revision Petition No.834 of 2015 preferred by the Respondent No. 1; and thereby discharging the Respondent No.1 of the offences punishable under Sections 419, 420, 467, 468, 471 read with Section 120B of the Indian Penal Code, 1860 (`IPC', for 1 The High Court of Karnataka at Bangalore 2 short) and Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (`the Act', for short).\n 3. The Respondent No. 1 retired on 31.10.2012 as Assistant General Manager, Vijaya Bank. On 28.10.2013, FIR being RC 12(A)/2013 was registered pursuant to complaint given by the General Manager, Vijaya Bank, Head Office, Bangalore against the Respondent No.1 in respect of the offences mentioned hereinabove. After completion of investigation, charge-sheet was filed on 31.10.2014 against the Respondent No.1 and other accused in respect of said offences. It was alleged inter alia :- \"3. That Shri B.A. Srinivasan (A-1) while working as Assistant General Manager (AGM) and Branch Head, Vijaya Bank, Mayo Hall Branch, Bangalore during the period from 11.01.2010 to 20.10.2012 entered into a criminal conspiracy with Shri B.Lakshman (A-3), Smt. Shanta Gowda (A-4) and Shri S.V. Isloor (A-5) to cheat and defraud Vijaya Bank, Mayohall Branch, Bangalore and to extend undue financial accommodation to M/s. Nikhara Electronics and Allied Technics (A-2) on the basis of fake and fabricated documents and in furtherance of the said criminal conspiracy, Shri B.A. Srinivasan (A-1) sanctioned and disbursed Rs.200 lakhs of Term Loan and Rs.100 lakhs of Cash Credit Hypothecation (Working Capital) in favour of M/s. Nikhara Electronics and Allied Technics (A-2) without proper due diligence and in gross violation of all extant rules and regulations of Vijaya Bank, and hence, facilitated A-3 and A-4 to divert the loan-funds against the terms and conditions, thereby causing wrongful loss to Vijaya Bank and corresponding gains to others.\n 3 ...... ...\n 8. That Shri B. Lakshnian (A-3) and his wife Smt.\n Shanta Gowda (A-4) fraudulently created an agreement dated 10.06.2011 on the photocopy of e- stamp paper having franking No.57724 dated 08.06.2011 and submitted a copy of the same to Vijaya Bank to support their dishonest claim of taking over M/s. Nikhara Electronics & Allied Technics, proprietary concern by making a payment of Rs.1.00 Crore as goodwill to Shri Venkataramana Bhat (A-6).\n Shri B.A. Srinivasan (A-1) dishonestly accepted the photocopy of the agreement intentionally omitting to ascertain its genuineness or authenticity. It is revealed that the above agreement was fraudulently created on the photocopy of e-stamp paper franked vide 57724 dated 08.06.2011 and the original stamp paper remained blank was seized from the office premises of Shri S.V. Isloor (A-5). It is thus established the fraudulent intentions of all the accused persons to create forged documents as and when required and to misrepresent that the proprietary unit was taken over by A-3 and A-4 from A-6.\n ...... ...\n 16. That Shri B.A. Srinivasan (A-1) in furtherance of criminal conspiracy with the other accused dishonestly, by abusing his official position as AGM & Branch Head of Vijaya Bank, Mayohall Branch fraudulently considered the loan application, processed loan proposals in gross violation of the rules and regulations of Vijaya Bank in this regard in order to favour the accused persons. He intentionally accepted the inflated financial statements submitted by A-3 and A-4 even though they were not audited and considered them for working out the credit assessment of the borrower firm i.e., M/s. Nikhara Electronics and Allied Technics (A-2). He purposely did not exercise due diligence to analyse the financial statements submitted by the borrower firm which contained several inconsistencies. He also did not conduct the mandatory pre-sanction verification at the 4 address of the borrower firm to ascertain whether any business activities such as manufacturing of electric equipment etc., were going on as claimed in the loan application. The criminal acts of Shri B.A. Srinivasan (A-1) facilitated the accused private persons to misrepresent the existence of M/s. Nikhara Electronics and Allied Technics (A-2), which actually existed only on the forged partnership deed dated 10.06.2011, created by A-3 and A-4.\n 17. That Shri B.A. Srinivasan (A-1) prepared the Credit Process Note himself and obtained the signatures of Shri Jyoti Prakash Shetty, the then Asst.\n Manager in the column of appraising official. Shri Nabeel Ahmed, the then Probationary Manager was also made to put his initials in the process note, merely as a token of his training. It is revealed that A- 1 prepared the proposals for an aggregate amount of Rs.300 lakh (term loan of Rs.200 lakhs and cash credit of Rs.100 lakhs) as against the request for Rs.350 lakhs (term Loan of Rs.200 lakhs; working capital of Rs.130 lakhs and Bank Guarantee of Rs.20 lakhs) without there being any clarification/justification for such reduction in the requirements of the applicant.\n 18. That Shri B. Lakshman (A-3) fraudulently submitted a forged Letter No. REFREF: SP: QT: 155: 2011 dated 10.08.2011 purportedly signed as JAK, Partners, M/s. V-Tech Engineering Enterprises along with Quotations/Proforma Invoices for an aggregate amount of Rs.2,69,60,496/- which were purportedly issued by M/s.V-Tech Engineering Enterprises.\n ...... ...\n 33. That Shri B.A. Srinivasan (A-1) was also fully aware that property offered as collateral security was in occupation of third parties (tenants). However, A-1 dishonestly and fraudulently chose to ignore this important fact, in spite of his field inspection and also the observations made by the valuer in his Valuation Report. Concurrent Auditor of the Bank also pointed out this fact in her report adding that the tenants in 5 occupation of collateral security would adversely affect the interests of the bank, in the event of necessity, to enforce sale of the property to recover its dues. It is also revealed that tenants were paying rents to Shri Nagesh s/o late Krishnappa, who sold the property to Shri Nilakanth Sanikop, from whom A-3 purchased the property. A-1 intentionally omitted to make any endeavour to ascertain the nature of rights of the tenants, despite the fact that in future it would affect the enforceability of the mortgaged property by the bank.\n 34. That Shri B.A. Srinivasan (A-1) also violated the extant rules of the bank by not obtaining the Legal Audit Report, on the mortgaged property, prior to processing and sanctioning of loans to M/s. Nikhara Electronics and Allied Tekchnics. Shri B.A.\n Srinivasan (A-1) obtained this report only on 19.04.2012, more than six months after the loan was sanctioned and disbursed.\n 35. By the above said acts, Shri B.A. Srinivasan (A- 1), the then AGM, Vijaya Bank, Mayo Hall Branch, Bangalore; M/s. Nikhara Electronics and Allied Technics (A-2); Shri B. Lakshman @ Lakshman Reddy (A-3); Smt. Shanta Gowda (A-4); Shri S.V.Isloor (A-5) and Shri Venkataramana Bhat (A-6) committed the offences of cheating and personating as proprietor, M/s. V-Tech Engineering Enterprises, committed forgery of documents such as Quotations, Cash/Credit Bills, vouchers etc. for the purpose of cheating, using the forged documents as genuine in pursuance of the criminal conspiracy among themselves, thereby causing wrongful loss to the bank and corresponding gains to themselves and others.\n Investigation also establishes that Shri B.A.\n Srinivasan (A-1) committed the offence of criminal misconduct by gross abuse of his official position as the then AGM of Vijaya Bank, Mayo Hall Branch, Bangalore, and caused accrual of pecuniary advantage to the accused private persons, attracting the penal provisions of the Prevention of Corruption Act, 1988.\n That, the above acts of Shri B.A. Srinivasan (A-1), 6 M/s. Nikhara Electronics and Allied Technics (A-2), Shri B. Lakshman (A-3), Smt. Shanta Gowda (A-4), Shri Shripad Vishwanath Isloor (A-5) and Shri Venkataramana Bhat (A-6) constitute offences punishable u/s 120-B r/w 420, 419, 468 & 471 IPC and 13(2) r/2 13(1)(d) of the Prevention of Corruption Act, 1988.\n 36. That Shri B.A. Srinivasan (A-1) is retired from the services of Vijaya Bank on 31.10.2012; hence sanction for prosecution u/s 19 of the PC Act, is not required.\"\n 4. After the cognizance was taken by the concerned court, an application was moved by the Respondent No.1 seeking discharge in terms of Sections 227 and 239 of the Code of Criminal Procedure, 1973 (`the Code', for short). This application was rejected by the Additional City Civil and Sessions Judge and Principal Special Judge for CBI cases, Bangalore, vide order dated 13.04.2015. It was observed:- \"...As can be seen from the charge sheet and statement of witnesses, accused No.1 has deliberately violated the rules and regulations and bank norms of the bank while processing the loan application of accused No.2 firm and thereby he had entered into criminal conspiracy with accused Nos.3 to 6 and accepted the fabricated and forged vouchers, invoices inflated financial statements in order to facilitate accused Nos.3 and 4 to avail the term loan of Rs. Two Crores cash credit and Rs. One Crore. The said term loan and cash credit of Rs.Three Crores were misutilised for the purpose other than for which the loan was sanctioned. Thus, all materials clearly go to show that there was dishonest intention on the part of the accused No.1 from the inception itself. The said circumstances and materials collected by the 7 Investigating Officer clearly reveal that accused No.1 had entered into criminal conspiracy with accused Nos. 3 to 6 and he had accepted the forged, fabricated invoices and inflated financial statement knowingly fully well that they were forged. ...\n .........\n Though accused No.1 was public servant, it is alleged that he has retired from the service from Vijaya Bank on 31.10.2013. Therefore, sanction as required u/s 19 of PC Act, 1988 to prosecute accused No.1 is not required. The discharge application filed by accused No.1 is devoid of merits and on the contrary, there are sufficient materials against accused No.1 for framing charge for the offences punishable u/s 120B, 420, 471 IPC and u/s. 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988....\"\n 5. The Respondent No.1, being aggrieved, preferred Criminal Revision Petition No. 834 of 2015 in the High Court, which was allowed by the judgment and order presently under appeal. The High Court, thus set aside the order dated 13.04.2015 as regards the Respondent No.1 and discharged him of the offences with which he was sought to be charged.\n 6. While dealing with the submission that the allegations against the Respondent No.1 could, at best, be administrative lapses, the High Court observed:- \"10... ...These aspects of administrative lapses, it is to be stated, cannot be considered at the time of framing charge. Unless the witnesses are subjected to cross-examination, no finding can be given whether the omission in following the procedure amounts to administrative lapse or was deliberate. Therefore, this 8 point of argument cannot be a ground for discharging accused No.1. Therefore, given a conclusion, it can be opined that the materials on record are sufficient to frame a charge against accused no.1, the findings of the Special Court in this regard do not indicate non- application of mind or, any infirmity or illegality in coming to an opinion that accused no.1 cannot be discharged on this ground. This finding needs to be sustained.\n On the issue of sanction, the High Court, however, stated:- \"11. However, another finding regarding sanction cannot be sustained. The special court has held that the sanction is not necessary as accused no.1 has retired by the time charge-sheet was filed. But the argument of petitioner's counsel is that sanction in accordance with Section 197 CrPC is necessary.\n Before adverting to this point, I think it necessary to opine that the offences triable by Special Judge related to time when an accused was in service as a public servant. Sanction under Section 19 of Prevention of Corruption Act is necessary to see that a public servant is not entangled in a frivolous and false case. Sanction insulates a public servant from a false or vexatious or frivolous prosecution. Therefore, a protection available to a public servant while in service should also be available after his retirement.\n It cannot be forgotten that even after retirement, he is prosecuted for offences under prevention of Corruption Act. Indeed, the retirement removes one from the garb of a public servant; but justice requires that same protection should be available even after one's retirement. ...\"\n (underlined by us) Thereafter, while dealing with submissions based on the decisions of this Court in Kalicharan Mahapatra vs. State of Orissa2, R.\n 2 AIR 1998 SC 2595 9 Balakrishna Pillai vs. State of Kerala3, State of Punjab vs. Labh Singh4 and N.K. Ganguly vs. CBI, New Delhi5, the matter was considered as under:- \"The learned standing counsel for CBI submitted insofar as offences under Indian Penal Code are concerned, they cannot be said to have been committed in discharge of official duty; sanction therefore is not necessary even under Section 197 CrPC. If the allegations levelled against the first accused are seen, and particularly with reference to conspiracy, it is to be stated at the stage of framing charge, it is difficult to discern whether offences can be connected to official capacity or not. Thorough trial requires to be held. If facts in N.K. Ganguly (supra) are seen, there also the accused were sought to be prosecuted for the offences under Prevention of Corruption Act in addition to some of the offences under Indian Penal Code. Thus seen, the first accused should get the benefit of discharge for absence of sanction under Section 197 of CrPC. ...\"\n Thus, it was concluded that the material on record was sufficient to frame a charge against Respondent No.1. The benefit of discharge was however granted on the issue of absence of sanction under Section 197 of the Code.\n 7. In this appeal challenging the view taken by the High Court, we heard Mrs. Sonia Mathur, learned Senior Advocate, in support of the 3 (1996) 1 SCC 478 4 (2014) 16 SCC 807 5 (2016) 2 SCC 143 10 appeal and Mrs. V. Mohana, learned Senior Advocate for the Respondent No.1.\n 8. Mrs. Sonia Mathur, learned Senior Advocate, submitted that the protection under Section 19 of the Act is available to a public servant only till he is in the employment and no sanction is necessary after the public servant has demitted office or has retired from service. As regards sanction under Section 197 of the Code, it was submitted that for an action to come within the purview of Section 197 of the Code, it must be integrally connected with the official duties or functions of a public servant and that if the office was merely used as a cloak to indulge in activities which result in unlawful gain to the beneficiaries, the protection under said Section 197 would not be available.\n It was also submitted that the decision of this Court in N.K.\n Ganguly vs. Central Bureau of Investigation, New Delhi5 was in the context of the peculiar facts involved therein.\n On the other hand, Mrs. V. Mohana, learned Senior Advocate, submitted that the Respondent No. 1 retired in the year 2012; that the allegations levelled against him would, at best, amount to administrative lapses on his part and there was certainly no criminal intent so as to attract 11 the charges under the relevant sections; and that this Court may not in its jurisdiction under Article 136(1) of the Constitution interfere in the matter.\n 9. In S.A. Venkataraman vs. The State6 while dealing with the requirement of sanction under the pari materia provisions of the Prevention of Corruption Act, 1947, it was laid down that the protection under the concerned provisions would not be available to a public servant after he had demitted his office or retired from service. It was stated:- \"... ...if an offence under s. 161 of the Indian Penal Code was committed by a public servant, but, at the time a court was asked to take cognizance of the offence, that person had ceased to be a public servant one of the two requirements to make s. 6 of the Act applicable would be lacking and a previous sanction would be unnecessary. The words in s. 6(1) of the Act are clear enough and they must be given effect to.\n There is nothing in the words used in s. 6(1) to even remotely suggest that previous sanction was necessary before a court could take cognizance of the offences mentioned therein in the case of a person who had ceased to be a public servant at the time the court was asked to take cognizance, although he had been such a person at the time the offence was committed. ... ...\"\n The law so declared by this Court has consistently been followed.\n For example, in Labh Singh4 it was observed:- \"9. In the present case the public servants in question had retired on 13-12-1999 and 30-4-2000. The sanction to prosecute them was rejected subsequent to 6 [1958] SCR 1037 12 their retirement i.e. first on 13-9-2000 and later on 24- 9-2003. The public servants having retired from service there was no occasion to consider grant of sanction under Section 19 of the PC Act. The law on the point is quite clear that sanction to prosecute the public servant for the offences under the PC Act is not required if the public servant had already retired on the date of cognizance by the court. In S.A.\n Venkataraman v. State6 while construing Section 6(1) of the Prevention of Corruption Act, 1947 which provision is in pari materia with Section 19(1) of the PC Act, this Court held that no sanction was necessary in the case of a person who had ceased to be the public servant at the time the court was asked to take cognizance. The view taken in S.A.\n Venkataraman6 was adopted by this Court in C.R.\n Bansi v. State of Maharashtra7 and in Kalicharan Mahapatra v. State of Orissa2 and by the Constitution Bench of this Court in K. Veeraswami v. Union of India8. The High Court was not therefore justified in setting aside the order passed by the Special Judge insofar as charge under the PC Act was concerned.\"\n 10. Consequently, there was no occasion or reason to entertain any application seeking discharge in respect of offences punishable under the Act, on the ground of absence of any sanction under Section 19 of the Act.\n The High Court was also not justified in observing `that the protection available to a public servant while in service, should also be available after his retirement'. That statement is completely inconsistent with the law laid down by this Court in connection with requirement of sanction under Section 19 of the Act.\n 7 (1970) 3 SCC 537 8 (1991) 3 SCC 655 13 11. Again, it has consistently been laid down that the protection under Section 197 of the Code is available to the public servants when an offence is said to have been committed `while acting or purporting to act in discharge of their official duty', but where the acts are performed using the office as a mere cloak for unlawful gains, such acts are not protected.\n The statements of law in some of the earlier decisions were culled out by this Court in Inspector of Police and another vs. Battenapatla Venkata Ratnam and another9 as under:- \"7. No doubt, while the respondents indulged in the alleged criminal conduct, they had been working as public servants.\n The question is not whether they were in service or on duty or not but whether the alleged offences have been committed by them \"while acting or purporting to act in discharge of their official duty\". That question is no more res integra. In Shambhoo Nath Misra v. State of U.P.10, at para 5, this Court held that: (SCC p. 328) \"5. The question is when the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public fund, etc. can he be said to have acted in discharge of his official duties. It is not the official duty of the public servant to fabricate the false records and misappropriate the public funds, etc. in furtherance of or in the discharge of his official duties. The official capacity only enables him to fabricate the record or misappropriate the public fund, etc. It does not mean that it is integrally connected or inseparably interlinked with the crime committed in the course of the 9 (2015)13 SCC 87 10 (1997) 5 SCC 326 14 same transaction, as was believed by the learned Judge. Under these circumstances, we are of the opinion that the view expressed by the High Court as well as by the trial court on the question of sanction is clearly illegal and cannot be sustained.\"\n 8. In Parkash Singh Badal v. State of Punjab11, at para 20 this Court held that: (SCC pp. 22-23) \"20. The principle of immunity protects all acts which the public servant has to perform in the exercise of the functions of the Government.\n The purpose for which they are performed protects these acts from criminal prosecution.\n However, there is an exception. Where a criminal act is performed under the colour of authority but which in reality is for the public servant's own pleasure or benefit then such acts shall not be protected under the doctrine of State immunity.\"\n and thereafter, at para 38, it was further held that: (Parkash Singh Badal case11, SCC p. 32) \"38. The question relating to the need of sanction under Section 197 of the Code is not necessarily to be considered as soon as the complaint is lodged and on the allegations contained therein.\n This question may arise at any stage of the proceeding. The question whether sanction is necessary or not may have to be determined from stage to stage.\"\n 9. In a recent decision in Rajib Ranjan v. R. Vijaykumar12 at para 18, this Court has taken the view that: (SCC p. 521) \"18. ... even while discharging his official duties, if a public servant enters into a criminal conspiracy or indulges in criminal misconduct, 11 (2007) 1 SCC 1 12 (2015) 1 SCC 513 15 such misdemeanour on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted.\"\n (emphasis already supplied) 12. It has also been observed by this Court that, at times, the issue whether the alleged act is intricately connected with the discharge of official functions and whether the matter would come within the expression `while acting or purporting to act in discharge of their official duty', would get crystalized only after evidence is led and the issue of sanction can be agitated at a later stage as well. In P.K. Pradhan vs. State of Sikkim represented by the Central Bureau of Investigation13, this Court stated:- \"15. Thus, from a conspectus of the aforesaid decisions, it will be clear that for claiming protection under Section 197 of the Code, it has to be shown by the accused that there is reasonable connection between the act complained of and the discharge of official duty. An official act can be performed in the discharge of official duty as well as in dereliction of it. For invoking protection under Section 197 of the Code, the acts of the accused complained of must be such that the same cannot be separated from the discharge of official duty, but if there was no reasonable connection between them and the performance of those duties, the official status furnishes only the occasion or opportunity for the acts, then no sanction would be required. If the case as put forward by the prosecution fails or the defence 13 (2001) 6 SCC 704 16 establishes that the act purported to be done is in discharge of duty, the proceedings will have to be dropped. It is well settled that question of sanction under Section 197 of the Code can be raised any time after the cognizance; maybe immediately after cognizance or framing of charge or even at the time of conclusion of trial and after conviction as well. But there may be certain cases where it may not be possible to decide the question effectively without giving opportunity to the defence to establish that what he did was in discharge of official duty. In order to come to the conclusion whether claim of the accused that the act that he did was in course of the performance of his duty was a reasonable one and neither pretended nor fanciful, can be examined during the course of trial by giving opportunity to the defence to establish it. In such an eventuality, the question of sanction should be left open to be decided in the main judgment which may be delivered upon conclusion of the trial.\"\n (underlined by us) 13. The offences involved in the case of N.K. Ganguly5 were under Section 120-B IPC read with Sections 13(1)(d) and 13(2) of the Act i.e.\n relating to conspiracy to commit offences punishable under the provisions of the Act. Secondly, the conclusion was drawn in the context of the facts available therein which is evident from the following: - \"35. From a perusal of the case law referred to supra, it becomes clear that for the purpose of obtaining previous sanction from the appropriate Government under Section 197 CrPC, it is imperative that the alleged offence is committed in discharge of official duty by the accused. It is also important for the Court to examine the allegations contained in the final report against the appellants, to decide whether previous sanction is required to be obtained by the 17 respondent from the appropriate Government before taking cognizance of the alleged offence by the learned Special Judge against the accused. In the instant case, since the allegations made against the appellants in the final report filed by the respondent that the alleged offences were committed by them in discharge of their official duty, therefore, it was essential for the learned Special Judge to correctly decide as to whether the previous sanction from the Central Government under Section 197 CrPC was required to be taken by the respondent, before taking cognizance and passing an order issuing summons to the appellants for their presence.\"\n (underlined by us) 14. We now turn to the cases relied upon by Mrs. V. Mohana, learned Senior Advocate. In Rishipal Singh vs. State of Uttar Pradesh and another14 this Court observed:- \"13. What emerges from the above judgments is that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made in the complaint prima facie establish the case. The courts have to see whether the continuation of the complaint amounts to abuse of process of law and whether continuation of the criminal proceeding results in miscarriage of justice or when the court comes to a conclusion that quashing these proceedings would otherwise serve the ends of justice, then the court can exercise the power under Section 482 CrPC. While exercising the power under the provision, the courts have to only look at the uncontroverted allegation in the complaint whether prima facie discloses an offence or not, but it should not convert itself to that of a trial court and dwell into the disputed questions of fact.\"\n 14 (2014) 7 SCC 215 18 This decision thus dealt with the parameters which ought to be considered while entertaining an application under Section 482 of the Code and is not a decision directly on the point. The decision in Anil Kumar Bose vs. State of Bihar15 pertained to a case which had arisen after a full fledged trial, where, as regards offence punishable under Section 420/34 IPC, it was observed that the essential ingredient being mens rea, mere failure on part of the concerned employees to perform their duties or to observe the rules/procedure may be administrative lapses but could not be said to be enough to attract the penal provisions under Section 420 IPC. The matter was considered after the facts had crystalized in the form of evidence before the court and as such, this decision is of no relevance for the present purposes.\n 15. Having considered the matter in entirety, in our view, the High Court clearly erred in allowing Criminal Revision Petition and accepting the challenge raised by the Respondent No.1 on the issue of sanction.\n We, thus, allow this Appeal, set aside the view taken by the High Court, restore the order passed by the Trial Court and dismiss the application seeking discharge preferred by the Respondent No.1.\n 15 (1974) 4 SCC 616 19 16. It is made clear that we have adverted to the facts and the allegations only for the purpose of considering the basic issue pertaining to issue of sanction and we shall not be taken to have expressed any view on merits which shall be considered independently. It has been stated by the learned counsel that the matter is listed before the Special Court on 11.12.2019. The Respondent No.1 shall appear before the Special Court on that day and the matter shall, thereafter, be proceeded in accordance with law.\n 17. This Appeal is allowed in aforestated terms.\n ...........................J.\n [Uday Umesh Lalit] ...........................J.\n [Indu Malhotra] ...........................J.\n [Krishna Murari] New Delhi; December 05, 2019.\n"
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"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "527bc6313a6642f3b7ac3a4c75c58ee0",
"to_name": null,
"type": null,
"value": {
"end": 53,
"labels": [
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],
"start": 0,
"text": " IN THE COURT OF THE SUB:DIVISIONAL JUDICIAL"
}
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{
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"id": "9c1729e1cc4a47218b1d8fdd2016222f",
"to_name": null,
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"end": 745,
"labels": [
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],
"start": 94,
"text": "MAGISTRATE:\n B O N A I\n\nPresent : Smt. Sucheta Krupalini, B.A.LL.B.(Hons)\n S.D.J.M.,Bonai\n\nDate of Argument : 08.04.2016\nDate of Judgment : 08.04.2016\n\nG.R. Case No. 169/2010\nTrial No. 271/11\n\nS T A T E\n\n -Versus-\nSmt. Janhi Mahanta,aged about 36 years\nW/O. Raji Mahanta, Vill Madhupur, P.S Lahunipada\nDist:Sundargarh\n\n ...Accused\n\nCounsel for the Prosecution : Sri P.S. Mishra, APP, Bonai\n\nCounsel for the Accused : Sri D.K.Sahu & his Associates,\n Advocates ,Bonai\n\nJ U D G M E N T"
}
},
{
"from_name": null,
"id": "b350215d3cc7403a8dc327a3a6928cae",
"to_name": null,
"type": null,
"value": {
"end": 809,
"labels": [
"NONE"
],
"start": 745,
"text": "\n Offence Under Section 47(a) of Bihar & Orissa Excise Act- 1915"
}
},
{
"from_name": null,
"id": "3ed340ec23ac4d56bd745a0903de53cd",
"to_name": null,
"type": null,
"value": {
"end": 930,
"labels": [
"NONE"
],
"start": 810,
"text": "The accused named above stands charged U/S.47 (a) of The Bihar and Orissa Excise Act for possessing unauthorized liquor."
}
},
{
"from_name": null,
"id": "7157ba58ad5944f88108be1962bd75b3",
"to_name": null,
"type": null,
"value": {
"end": 967,
"labels": [
"NONE"
],
"start": 930,
"text": "\n(hereinafter called B&O Excise Act)."
}
},
{
"from_name": null,
"id": "4d24dea22c064b9980262c84c7b447a4",
"to_name": null,
"type": null,
"value": {
"end": 1213,
"labels": [
"FAC"
],
"start": 967,
"text": "\n 2. The Prosecution Case in short is as follows : On dtd. 30.03.2010, S.I. Bindu Basini Biswal of Lahunipada Police Station (hereinafter called the informant ) was performing morning patrolling duty along with police staff near village Madhupur."
}
},
{
"from_name": null,
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"type": null,
"value": {
"end": 1362,
"labels": [
"FAC"
],
"start": 1214,
"text": "The informant got an information from a reliable source that there is illegal preparation and selling of I.D liquor is going on in village Madhupur."
}
},
{
"from_name": null,
"id": "4026b3364ed84a3a83911128f06ccd05",
"to_name": null,
"type": null,
"value": {
"end": 1580,
"labels": [
"FAC"
],
"start": 1363,
"text": "After getting this information the informant had collected two local gentries and immediately rushed to the spot and conducted raid in the house of one Janhi Mohanta, W/O. Raji Mahanta(hereinafter called the accused)."
}
},
{
"from_name": null,
"id": "045b4daa7b38444086c94246498cda60",
"to_name": null,
"type": null,
"value": {
"end": 1734,
"labels": [
"FAC"
],
"start": 1581,
"text": "The informant had recovered 4(four) liters of country made mahua liquor which was kept in a white colour plastic jerrican on the verandah of the accused."
}
},
{
"from_name": null,
"id": "8856dc002010422d93f10018b94e4207",
"to_name": null,
"type": null,
"value": {
"end": 1832,
"labels": [
"FAC"
],
"start": 1735,
"text": "On demand the accused failed to produce any document in her favour of possession of mahua liquor."
}
},
{
"from_name": null,
"id": "6356e164d8c34d6e9755cecd8213e60c",
"to_name": null,
"type": null,
"value": {
"end": 2032,
"labels": [
"FAC"
],
"start": 1833,
"text": "So, the informant had seized four liters of mahua liquor from the possession of accused in presence of witnesses and prepared the seizure list and took the signature of witnesses on the seizure list."
}
},
{
"from_name": null,
"id": "c7f93216aaba4f74bd6c113feb1248d3",
"to_name": null,
"type": null,
"value": {
"end": 2225,
"labels": [
"FAC"
],
"start": 2033,
"text": "The informant had arrested the accused as she has committed an offence U/S. 47(a) of Bihar & Orissa Excise Act after explaining her the grounds of her arrest and intimating her family members."
}
},
{
"from_name": null,
"id": "012063ee39ea4b41871541e708603969",
"to_name": null,
"type": null,
"value": {
"end": 2397,
"labels": [
"FAC"
],
"start": 2226,
"text": "Then the informant had lodged FIR before Lahunipada Police Station which was registered as Lahunipada P.S case No.50 dtd.30.3.2010 U/S. 47(a) of Bihar & Orissa Excise Act."
}
},
{
"from_name": null,
"id": "e549cd826fc0419e8737bd77472ffd8f",
"to_name": null,
"type": null,
"value": {
"end": 2457,
"labels": [
"FAC"
],
"start": 2398,
"text": "Basing upon the written report the law was set into motion."
}
},
{
"from_name": null,
"id": "fbe30b6a510c410abda12169aa6b2801",
"to_name": null,
"type": null,
"value": {
"end": 2672,
"labels": [
"FAC"
],
"start": 2458,
"text": "The I.O had examined the informant and all available witnesses and after completion of investigation had submitted charge sheet against the accused for committing an offence U/S.\n47(a) of Bihar & Orissa Excise Act."
}
},
{
"from_name": null,
"id": "85844e35f9e54fb288af729bb7d70bb9",
"to_name": null,
"type": null,
"value": {
"end": 2690,
"labels": [
"FAC"
],
"start": 2673,
"text": "Hence, this case."
}
},
{
"from_name": null,
"id": "20a87239d92440778420c3f4de3483e1",
"to_name": null,
"type": null,
"value": {
"end": 2769,
"labels": [
"FAC"
],
"start": 2691,
"text": "3. The plea of the accused is one of outright denial and of false implication."
}
},
{
"from_name": null,
"id": "ce688bbe5f5041c095e05ae9b6748e99",
"to_name": null,
"type": null,
"value": {
"end": 3100,
"labels": [
"ISSUE"
],
"start": 2771,
"text": "4. The point for determination of this case are as follows; Whether on dt. 30.03.2010 at morning one white colour plastic jerrican containing 4(four) liters of country made mahua liquor was recovered and seized from the house of the accused and the accused has exclusive and conscious possession over the searched house. ?"
}
},
{
"from_name": null,
"id": "1c2a537954454c2994e360251a4e46a3",
"to_name": null,
"type": null,
"value": {
"end": 3276,
"labels": [
"ANALYSIS"
],
"start": 3100,
"text": "\n 5. To prove its case prosecution has examined all together three witnesses of whom P.W.1 is the informant, P.W.2 is the Investigating Officer, P.W.3 is the seizure witnesses."
}
},
{
"from_name": null,
"id": "1f314de43b9c43908f32d9c07329d029",
"to_name": null,
"type": null,
"value": {
"end": 3418,
"labels": [
"ANALYSIS"
],
"start": 3277,
"text": "Prosecution has declined to examine the rest of the charge sheeted witnesses as their evidence shall not improve the case of the prosecution."
}
},
{
"from_name": null,
"id": "9efbef131b5f41c4810b51d53e45b491",
"to_name": null,
"type": null,
"value": {
"end": 3463,
"labels": [
"ANALYSIS"
],
"start": 3418,
"text": "\nOn the other hand defence has examined none."
}
},
{
"from_name": null,
"id": "de3cf552bda64fedaff4329a1402062f",
"to_name": null,
"type": null,
"value": {
"end": 3718,
"labels": [
"ANALYSIS"
],
"start": 3463,
"text": "\n 6. P.W.1 is the informant had deposed in her evidence that on dtd.30.3.2010 she along with other staffs were conducting patrolling duty at Lahunipada area and on getting information about illegal selling of liquor they proceeded to the village Madhupur."
}
},
{
"from_name": null,
"id": "a3df1a8dc8a444a8a3c7e6f850399a5e",
"to_name": null,
"type": null,
"value": {
"end": 3844,
"labels": [
"ANALYSIS"
],
"start": 3719,
"text": "P.W.1 had further deposed in her evidence that the accused was selling liquor on her verandah and the accused had no licence."
}
},
{
"from_name": null,
"id": "e2d6d448380f4acb89bd185bed5bb926",
"to_name": null,
"type": null,
"value": {
"end": 4039,
"labels": [
"ANALYSIS"
],
"start": 3845,
"text": "P.W.1 had further deposed in her evidence that she had seized a white colour plastic jerrican containing 4(four) liters of I.D liquor from the house of the accused and prepared the seizure list."
}
},
{
"from_name": null,
"id": "8feb79a6a792410cafa9b657f5898ec6",
"to_name": null,
"type": null,
"value": {
"end": 4138,
"labels": [
"ANALYSIS"
],
"start": 4040,
"text": "P.W.1 had admitted the seizure list prepared by her as Ext-1 and Ext-1/1 is her signature thereon."
}
},
{
"from_name": null,
"id": "53cfd0f399fe4049b091692726768ddb",
"to_name": null,
"type": null,
"value": {
"end": 4649,
"labels": [
"ANALYSIS"
],
"start": 4139,
"text": "P.W.1 had further contended in her evidence that she brought the seized article to the police station and lodged FI.R.\nP.W.1 had admitted the FIR lodged by her as Ext-2 and Ext-2/1 is her signature thereon.\n 6.1 P.W.2 is the Investigating Officer had deposed in his evidence that on dtd. 30.03.2010 he was working as S.I at Lahunipada P.S.\nP.W.2 had further deposed in his evidence that on the direction of police he had took the charge of investigation of this case and admitted endorsement of IIC as Ext-2/2."
}
},
{
"from_name": null,
"id": "b9841b1d05da499fa499e7e8356efb97",
"to_name": null,
"type": null,
"value": {
"end": 4829,
"labels": [
"ANALYSIS"
],
"start": 4650,
"text": "P.W.2 had further mentioned in his evidence during the investigation he had visited the spot, examined the witnesses and sent the sample of seized liquid for chemical examination."
}
},
{
"from_name": null,
"id": "b1f1ccaad60d41e9a0af07db1aab14c1",
"to_name": null,
"type": null,
"value": {
"end": 4990,
"labels": [
"ANALYSIS"
],
"start": 4830,
"text": "It is in the evidence of P.W.2 that after completion of investigation he had submitted charge sheet against the accused U/S. 47(a) of Bihar & Orissa Excise Act."
}
},
{
"from_name": null,
"id": "604c1b50be1b4043961a5de5336fe749",
"to_name": null,
"type": null,
"value": {
"end": 5358,
"labels": [
"ANALYSIS"
],
"start": 4990,
"text": "\n 6.2 P.W.3 is the seizure witness had deposed in his evidence that he does not know anything regarding this case and at the instance of I.O he had only put his signature.\n 7. To prove an offence U/s. 47(a) of Bihar & Orissa Excise Act the prosecution must prove the fact that excise articles has been seized from the exclusive and conscious possession of the accused."
}
},
{
"from_name": null,
"id": "badcad892b3f4c7a861d2a2ea9829411",
"to_name": null,
"type": null,
"value": {
"end": 5730,
"labels": [
"ANALYSIS"
],
"start": 5358,
"text": "\n 7.1 P.W.1 is the informant and P.W.2 is the I.O were silent regarding the fact that the searched house belongs to the accused or the accused has exclusive and conscious possession over the searched house. Ext-2 is the FIR which reveals that 4(four) liters of country made liquor in white colour plastic jerrican on the verandah of the house of the accused was recovered."
}
},
{
"from_name": null,
"id": "169b306f2b8c4bb593ab85c8655f71ad",
"to_name": null,
"type": null,
"value": {
"end": 5911,
"labels": [
"ANALYSIS"
],
"start": 5731,
"text": "But P.W.1 had deposed in her evidence that the accused was selling liquor on her verandah and she had seized a white colour plastic jerrican containing 4(four) liter of I.D liquor."
}
},
{
"from_name": null,
"id": "a2a93fe77ca040c18773694b11241b62",
"to_name": null,
"type": null,
"value": {
"end": 6129,
"labels": [
"ANALYSIS"
],
"start": 5911,
"text": "\n 8. P.W.2 had admitted that he had sent the sample and seized liquid for chemical examination but he had not mentioned the name of the person by whom he had sent the sample liquid for chemical examination to D.F.S.L.."
}
},
{
"from_name": null,
"id": "77ea83ca5d8e4b289445ae87fe9746db",
"to_name": null,
"type": null,
"value": {
"end": 6277,
"labels": [
"ANALYSIS"
],
"start": 6130,
"text": "P.W.2 had further deposed in his evidence that he had not mentioned in the record about the specific seal by which he had sealed the sample liquor."
}
},
{
"from_name": null,
"id": "b507027efa3b48dd9ebfcd3f9348fcdd",
"to_name": null,
"type": null,
"value": {
"end": 6402,
"labels": [
"ANALYSIS"
],
"start": 6278,
"text": "The seized article was also not produced in the Court during the trial to lend assurance as to factum of search and seizure."
}
},
{
"from_name": null,
"id": "b935da697085417ca2257bf5323d37ae",
"to_name": null,
"type": null,
"value": {
"end": 6529,
"labels": [
"RATIO"
],
"start": 6402,
"text": "\n 9. It is the cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond all reasonable doubt."
}
},
{
"from_name": null,
"id": "b805aa173118472a98ceca18a18a6218",
"to_name": null,
"type": null,
"value": {
"end": 6583,
"labels": [
"RATIO"
],
"start": 6530,
"text": "But in the case in hand prosecution has failed to do."
}
},
{
"from_name": null,
"id": "d8b1f689db6d402a98ded7ec34333198",
"to_name": null,
"type": null,
"value": {
"end": 6784,
"labels": [
"RATIO"
],
"start": 6584,
"text": "In the absence of cogent, clear, and consistent evidence it can be safely concluded that prosecution has miserably failed to prove its case U/S. 47(a) of Bihar & Orissa Excise Act against the accused."
}
},
{
"from_name": null,
"id": "da1475700b074ae2b47be077a0875723",
"to_name": null,
"type": null,
"value": {
"end": 6995,
"labels": [
"RPC"
],
"start": 6785,
"text": "In the result, I find that the accused is not guilty for committing offence punishable U/S.47 (a) of the Bihar and Orissa Excise Act and is acquitted there from as per the provision of section 248 (1) Cr. P. C."
}
},
{
"from_name": null,
"id": "7c50f64d98d048bfb964f9509c23edad",
"to_name": null,
"type": null,
"value": {
"end": 7038,
"labels": [
"RPC"
],
"start": 6996,
"text": "The bail bond of the accused be cancelled."
}
},
{
"from_name": null,
"id": "1ddb67d671ce448a90ea2ca41eb53a40",
"to_name": null,
"type": null,
"value": {
"end": 7062,
"labels": [
"NONE"
],
"start": 7038,
"text": "\n S.D.J..M.B O N A I 10."
}
},
{
"from_name": null,
"id": "72f1064844794b35b4457c857ad384c0",
"to_name": null,
"type": null,
"value": {
"end": 7195,
"labels": [
"RPC"
],
"start": 7063,
"text": "The seized articles shall be destroyed after expiry of four months of the period of limitation of appeal, if no appeal is preferred."
}
},
{
"from_name": null,
"id": "e7bed77f748d44179a5083f43f979b83",
"to_name": null,
"type": null,
"value": {
"end": 7259,
"labels": [
"RPC"
],
"start": 7196,
"text": "In case of appeal, subject to the order of the Appellate Court."
}
},
{
"from_name": null,
"id": "fc55edffe88445bab49901fe9661d120",
"to_name": null,
"type": null,
"value": {
"end": 7298,
"labels": [
"RPC"
],
"start": 7261,
"text": "Enter this case as \"Mistake of fact\"."
}
},
{
"from_name": null,
"id": "899a07513e3a42c6b83743709220bc62",
"to_name": null,
"type": null,
"value": {
"end": 7330,
"labels": [
"NONE"
],
"start": 7299,
"text": "Status of the accused:-On Bail."
}
},
{
"from_name": null,
"id": "1b90e121b877462c835e3c5b0ecaf6de",
"to_name": null,
"type": null,
"value": {
"end": 7362,
"labels": [
"NONE"
],
"start": 7331,
"text": "Not present today in the Court."
}
},
{
"from_name": null,
"id": "4bb66f927ec74cf4ad54480e11e233ee",
"to_name": null,
"type": null,
"value": {
"end": 7382,
"labels": [
"NONE"
],
"start": 7362,
"text": "\n S.D.J..M.B O N A I"
}
},
{
"from_name": null,
"id": "ee0ef96d17444ac6aa5494dc00f8937f",
"to_name": null,
"type": null,
"value": {
"end": 7526,
"labels": [
"NONE"
],
"start": 7383,
"text": "This judgment is typed, corrected and pronounced by me in open Court today i.e. the 8th April -2016 given under my hand and seal of this Court."
}
},
{
"from_name": null,
"id": "4f503c87b7d444d5af1434f8ca49adf4",
"to_name": null,
"type": null,
"value": {
"end": 7547,
"labels": [
"NONE"
],
"start": 7528,
"text": "S.D.J.M., B O N A I"
}
},
{
"from_name": null,
"id": "77c993b99d5d4032ad42c7eabeac8784",
"to_name": null,
"type": null,
"value": {
"end": 7640,
"labels": [
"NONE"
],
"start": 7548,
"text": "List of P.Ws Examined P.W.1 Bindu Basini Biswal P.W.2 Umakanta Nayak P.W.3 "
}
},
{
"from_name": null,
"id": "90c66b5c0c5c4607ba9f2dea5b2787ff",
"to_name": null,
"type": null,
"value": {
"end": 8020,
"labels": [
"NONE"
],
"start": 7640,
"text": "Anadi Mahanta List of D.Ws Examined N IL List of Exts marked on behalf of Prosecution Ext-1 Signature of P.W.1 on Seizure list Ext-1/1 Signature of P.W.1 Ext-2 F.I.R Ext-2/1 Signature of P.w.1 Ext-2/2 Endorsement of IIC on E xt-2 List of Exts marked on behalf of Defence N I L List of Material Object s N I L S.D.J.M. B O N A I"
}
}
]
}
] | 4,208 | {
"text": " IN THE COURT OF THE SUB:DIVISIONAL JUDICIAL\n MAGISTRATE:\n B O N A I\n\nPresent : Smt. Sucheta Krupalini, B.A.LL.B.(Hons)\n S.D.J.M.,Bonai\n\nDate of Argument : 08.04.2016\nDate of Judgment : 08.04.2016\n\nG.R. Case No. 169/2010\nTrial No. 271/11\n\nS T A T E\n\n -Versus-\nSmt. Janhi Mahanta,aged about 36 years\nW/O. Raji Mahanta, Vill Madhupur, P.S Lahunipada\nDist:Sundargarh\n\n ...Accused\n\nCounsel for the Prosecution : Sri P.S. Mishra, APP, Bonai\n\nCounsel for the Accused : Sri D.K.Sahu & his Associates,\n Advocates ,Bonai\n\nJ U D G M E N T\n Offence Under Section 47(a) of Bihar & Orissa Excise Act- 1915 The accused named above stands charged U/S.47 (a) of The Bihar and Orissa Excise Act for possessing unauthorized liquor.\n(hereinafter called B&O Excise Act).\n 2. The Prosecution Case in short is as follows : On dtd. 30.03.2010, S.I. Bindu Basini Biswal of Lahunipada Police Station (hereinafter called the informant ) was performing morning patrolling duty along with police staff near village Madhupur. The informant got an information from a reliable source that there is illegal preparation and selling of I.D liquor is going on in village Madhupur. After getting this information the informant had collected two local gentries and immediately rushed to the spot and conducted raid in the house of one Janhi Mohanta, W/O. Raji Mahanta(hereinafter called the accused). The informant had recovered 4(four) liters of country made mahua liquor which was kept in a white colour plastic jerrican on the verandah of the accused. On demand the accused failed to produce any document in her favour of possession of mahua liquor. So, the informant had seized four liters of mahua liquor from the possession of accused in presence of witnesses and prepared the seizure list and took the signature of witnesses on the seizure list. The informant had arrested the accused as she has committed an offence U/S. 47(a) of Bihar & Orissa Excise Act after explaining her the grounds of her arrest and intimating her family members. Then the informant had lodged FIR before Lahunipada Police Station which was registered as Lahunipada P.S case No.50 dtd.30.3.2010 U/S. 47(a) of Bihar & Orissa Excise Act. Basing upon the written report the law was set into motion. The I.O had examined the informant and all available witnesses and after completion of investigation had submitted charge sheet against the accused for committing an offence U/S.\n47(a) of Bihar & Orissa Excise Act. Hence, this case.\n3. The plea of the accused is one of outright denial and of false implication.\n 4. The point for determination of this case are as follows; Whether on dt. 30.03.2010 at morning one white colour plastic jerrican containing 4(four) liters of country made mahua liquor was recovered and seized from the house of the accused and the accused has exclusive and conscious possession over the searched house. ?\n 5. To prove its case prosecution has examined all together three witnesses of whom P.W.1 is the informant, P.W.2 is the Investigating Officer, P.W.3 is the seizure witnesses. Prosecution has declined to examine the rest of the charge sheeted witnesses as their evidence shall not improve the case of the prosecution.\nOn the other hand defence has examined none.\n 6. P.W.1 is the informant had deposed in her evidence that on dtd.30.3.2010 she along with other staffs were conducting patrolling duty at Lahunipada area and on getting information about illegal selling of liquor they proceeded to the village Madhupur. P.W.1 had further deposed in her evidence that the accused was selling liquor on her verandah and the accused had no licence. P.W.1 had further deposed in her evidence that she had seized a white colour plastic jerrican containing 4(four) liters of I.D liquor from the house of the accused and prepared the seizure list. P.W.1 had admitted the seizure list prepared by her as Ext-1 and Ext-1/1 is her signature thereon. P.W.1 had further contended in her evidence that she brought the seized article to the police station and lodged FI.R.\nP.W.1 had admitted the FIR lodged by her as Ext-2 and Ext-2/1 is her signature thereon.\n 6.1 P.W.2 is the Investigating Officer had deposed in his evidence that on dtd. 30.03.2010 he was working as S.I at Lahunipada P.S.\nP.W.2 had further deposed in his evidence that on the direction of police he had took the charge of investigation of this case and admitted endorsement of IIC as Ext-2/2. P.W.2 had further mentioned in his evidence during the investigation he had visited the spot, examined the witnesses and sent the sample of seized liquid for chemical examination. It is in the evidence of P.W.2 that after completion of investigation he had submitted charge sheet against the accused U/S. 47(a) of Bihar & Orissa Excise Act.\n 6.2 P.W.3 is the seizure witness had deposed in his evidence that he does not know anything regarding this case and at the instance of I.O he had only put his signature.\n 7. To prove an offence U/s. 47(a) of Bihar & Orissa Excise Act the prosecution must prove the fact that excise articles has been seized from the exclusive and conscious possession of the accused.\n 7.1 P.W.1 is the informant and P.W.2 is the I.O were silent regarding the fact that the searched house belongs to the accused or the accused has exclusive and conscious possession over the searched house. Ext-2 is the FIR which reveals that 4(four) liters of country made liquor in white colour plastic jerrican on the verandah of the house of the accused was recovered. But P.W.1 had deposed in her evidence that the accused was selling liquor on her verandah and she had seized a white colour plastic jerrican containing 4(four) liter of I.D liquor.\n 8. P.W.2 had admitted that he had sent the sample and seized liquid for chemical examination but he had not mentioned the name of the person by whom he had sent the sample liquid for chemical examination to D.F.S.L.. P.W.2 had further deposed in his evidence that he had not mentioned in the record about the specific seal by which he had sealed the sample liquor. The seized article was also not produced in the Court during the trial to lend assurance as to factum of search and seizure.\n 9. It is the cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond all reasonable doubt. But in the case in hand prosecution has failed to do. In the absence of cogent, clear, and consistent evidence it can be safely concluded that prosecution has miserably failed to prove its case U/S. 47(a) of Bihar & Orissa Excise Act against the accused. In the result, I find that the accused is not guilty for committing offence punishable U/S.47 (a) of the Bihar and Orissa Excise Act and is acquitted there from as per the provision of section 248 (1) Cr. P. C. The bail bond of the accused be cancelled.\n S.D.J..M.B O N A I 10. The seized articles shall be destroyed after expiry of four months of the period of limitation of appeal, if no appeal is preferred. In case of appeal, subject to the order of the Appellate Court.\n Enter this case as \"Mistake of fact\".\nStatus of the accused:-On Bail. Not present today in the Court.\n S.D.J..M.B O N A I This judgment is typed, corrected and pronounced by me in open Court today i.e. the 8th April -2016 given under my hand and seal of this Court.\n S.D.J.M., B O N A I List of P.Ws Examined P.W.1 Bindu Basini Biswal P.W.2 Umakanta Nayak P.W.3 Anadi Mahanta List of D.Ws Examined N IL List of Exts marked on behalf of Prosecution Ext-1 Signature of P.W.1 on Seizure list Ext-1/1 Signature of P.W.1 Ext-2 F.I.R Ext-2/1 Signature of P.w.1 Ext-2/2 Endorsement of IIC on E xt-2 List of Exts marked on behalf of Defence N I L List of Material Object s N I L S.D.J.M. B O N A I "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "d52529dbfdbc4cd09850c5660a04441e",
"to_name": null,
"type": null,
"value": {
"end": 120,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "IN THE HIGH COURT OF KARNATAKA AT BANGALORE\n\n DATED THIS THE 20TH DAY OF JUNE 2012\n\n BEFORE"
}
},
{
"from_name": null,
"id": "48b433fde4144949ae253266fab9af4c",
"to_name": null,
"type": null,
"value": {
"end": 208,
"labels": [
"PREAMBLE"
],
"start": 120,
"text": "\n\n THE HON'BLE MR.JUSTICE B.S.PATIL\n\n W.P.Nos.19139-174/2012 (T-RES)\n\n"
}
},
{
"from_name": null,
"id": "9db8b7c9937f4a1d88e1cdd26bcb9681",
"to_name": null,
"type": null,
"value": {
"end": 222,
"labels": [
"PREAMBLE"
],
"start": 208,
"text": "BETWEEN:\n\nM/s."
}
},
{
"from_name": null,
"id": "fc8eefd0ad604ec5b8c802e271893058",
"to_name": null,
"type": null,
"value": {
"end": 248,
"labels": [
"PREAMBLE"
],
"start": 223,
"text": "Transglobal Power Limited"
}
},
{
"from_name": null,
"id": "4bee62c8a60a409981702112aed7fbf6",
"to_name": null,
"type": null,
"value": {
"end": 635,
"labels": [
"PREAMBLE"
],
"start": 268,
"text": "... PETITIONER\nNo.364/365, 9th Main, J.P.Nagar,\n4th Phase, Dollars Colony,\nBangalore 560 078.\nRepresented by its\nManaging Director\nSri. Manjunath Dasappa,\nS/o. Sri. Dasappa,\nAged about 44 years.\n\n(By Smt. Vani. H. Adv.)\n\nAND:\n\n1. The Joint Commissioner of Commercial Taxes\n VAT Division-1, Vanijya Therige Karyalaya-1,\n Gandhi Nagar,\n Bangalore 560009.\n\n2."
}
},
{
"from_name": null,
"id": "6ad52045fc584c59b673ac071a552b21",
"to_name": null,
"type": null,
"value": {
"end": 691,
"labels": [
"PREAMBLE"
],
"start": 636,
"text": "The State of Karnataka ... RESPONDENTS"
}
},
{
"from_name": null,
"id": "77ec13f83f194bd09fba6c64ab867962",
"to_name": null,
"type": null,
"value": {
"end": 778,
"labels": [
"PREAMBLE"
],
"start": 691,
"text": "\n Ministry of Finance,\n Represented by its Finance Secretary,\n Vidhana Soudha,"
}
},
{
"from_name": null,
"id": "83775fcf8fe94b2287d7e07ad93b06f9",
"to_name": null,
"type": null,
"value": {
"end": 799,
"labels": [
"PREAMBLE"
],
"start": 778,
"text": "\n Ambedkar Veedhi,"
}
},
{
"from_name": null,
"id": "bea44d0b8117400dbcdbb0053b0e5654",
"to_name": null,
"type": null,
"value": {
"end": 814,
"labels": [
"PREAMBLE"
],
"start": 799,
"text": "\n Bangalore."
}
},
{
"from_name": null,
"id": "07ad6c4730f649e5be9dc6d96df028f3",
"to_name": null,
"type": null,
"value": {
"end": 846,
"labels": [
"PREAMBLE"
],
"start": 816,
"text": "(By Sri. T.K.Vedamurthy, HCGP)"
}
},
{
"from_name": null,
"id": "9edca23207dd47a0bcd80f479d985ff8",
"to_name": null,
"type": null,
"value": {
"end": 1277,
"labels": [
"PREAMBLE"
],
"start": 846,
"text": "\n\n These writ petitions are filed under Articles 226 of the\nConstitution of India, praying to issue a writ of certiorari or a\nwrit in the nature of certiorari quashing the order bearing\n\nNo.JCCT.DVO-1/SMR/CR-8/2011-12-T No.1686/11-12 dated\n28.03.2012 vide Annexure-B.\n\n These petitions coming on for preliminary hearing-B\ngroup this day, the Court made the following:\n\n ORDER"
}
},
{
"from_name": null,
"id": "b2b14660a5f24d6e894767b4ad030e56",
"to_name": null,
"type": null,
"value": {
"end": 1366,
"labels": [
"NONE"
],
"start": 1278,
"text": "1. Learned High Court Government Pleader is directed to take notice for the respondents."
}
},
{
"from_name": null,
"id": "11e2ec74c9cb4d81b9da6219999dcc6e",
"to_name": null,
"type": null,
"value": {
"end": 1417,
"labels": [
"NONE"
],
"start": 1368,
"text": "2. Heard the learned counsel for the parties.\n 3."
}
},
{
"from_name": null,
"id": "5a31cedbe47740bd8acd60ae2a836dd2",
"to_name": null,
"type": null,
"value": {
"end": 1723,
"labels": [
"FAC"
],
"start": 1418,
"text": "The challenge in these writ petitions is to the order dated 28.03.2012 passed by the 1st respondent-Joint Commissioner of Commercial Taxes, VAT Division-1, Bangalore, under Section 63-A of the Karnataka Value Added Tax Act, 2003 (for short `the Act') read with Section 9(2) of Central Sales Tax Act, 1956."
}
},
{
"from_name": null,
"id": "1921c217df924e6fa3b66e1bdf81a9b3",
"to_name": null,
"type": null,
"value": {
"end": 1990,
"labels": [
"FAC"
],
"start": 1723,
"text": "\n 4. The only ground on which the challenge made to the impugned order is sought to be sustained by the petitioner is with regard to the lack of territorial jurisdiction in the Joint Commissioner of Commercial Taxes, VAT Division-1, Bangalore to deal with the matter."
}
},
{
"from_name": null,
"id": "8987ec20a56744b1bf6835504a2ace6b",
"to_name": null,
"type": null,
"value": {
"end": 2430,
"labels": [
"ARG_PETITIONER"
],
"start": 1990,
"text": "\n 5. Learned counsel for the petitioner placing reliance on the order passed by the Commissioner for Commercial Taxes, Bangalore on 19.09.2011 produced at Annexure-E and the Annexures enclosed to it submits that the place where the petitioner carried on his business fell within the jurisdiction of Joint Commissioner for Commercial Taxes (Administration), Division-3, Bangalore and not within the jurisdiction of the 1st respondent herein."
}
},
{
"from_name": null,
"id": "c75c5c28d0a241c6a20697fc22107443",
"to_name": null,
"type": null,
"value": {
"end": 2873,
"labels": [
"ANALYSIS"
],
"start": 2430,
"text": "\n 6. As is apparent from the order dated 19.09.2011 and the allocation of work made pursuant thereon which is clear from the chart appended to the order, the present place of business of the petitioner falls within the territorial jurisdiction of the Joint Commissioner for Commercial Taxes(Administration), Division-3, Bangalroe and not within the territorial jurisdiction of the Joint Commissioner of Commercial Taxes, Division-1, Bangalore."
}
},
{
"from_name": null,
"id": "e487a01ddfe54671ac5d1bfb6c30bd0e",
"to_name": null,
"type": null,
"value": {
"end": 3313,
"labels": [
"ANALYSIS"
],
"start": 2874,
"text": "However, it is rightly contended by the learned High Court Government Pleader that the notice issued under Section 63-A of the Act to the petitioner on 04.07.2011 was addressed to the place of business of the petitioner at No.343, I Floor, Narayana Pillai Street, Commercial Street, Bangalore-560001 and the same has been received by the petitioner at the same address on 06.07.2011, as is apparent from the endorsement made on the notice."
}
},
{
"from_name": null,
"id": "22143c3f16a4417b8762069d68039972",
"to_name": null,
"type": null,
"value": {
"end": 3440,
"labels": [
"ANALYSIS"
],
"start": 3314,
"text": "Copy of the same is part of the record that is produced for perusal of the Court by the learned High Court Government Pleader."
}
},
{
"from_name": null,
"id": "d1ca245962de418691e6779970f92aaf",
"to_name": null,
"type": null,
"value": {
"end": 3870,
"labels": [
"ANALYSIS"
],
"start": 3441,
"text": "It is thus clear that at the time when the notice was served on the petitioner, without raising any objection with regard to the address, the notice has been received at the same address and subsequently even when the reply to the notice was submitted on 12.12.2011 the petitioner has not raised any objection with regard to the territorial jurisdiction of the 1st respondent to exercise his power and jurisdiction in the matter."
}
},
{
"from_name": null,
"id": "c352d35d03504b1d8aabd198f0053f5e",
"to_name": null,
"type": null,
"value": {
"end": 3947,
"labels": [
"ANALYSIS"
],
"start": 3871,
"text": "It is in this background the 1st respondent has proceeded to pass the order."
}
},
{
"from_name": null,
"id": "116a6a27ac46495088b88ce95103cb95",
"to_name": null,
"type": null,
"value": {
"end": 4123,
"labels": [
"ANALYSIS"
],
"start": 3948,
"text": "For the first time, the petitioner intends to raise the question on territorial jurisdiction by filing these writ petitions challenging the order passed by the 1st respondent."
}
},
{
"from_name": null,
"id": "b1ab3b9a59574e3bb080a3f944dbfc1b",
"to_name": null,
"type": null,
"value": {
"end": 4452,
"labels": [
"STA"
],
"start": 4123,
"text": "\n 7. Section 67 of the Act states that \"no objection as to the territorial or pecuniary jurisdiction of any prescribed authority shall be entertained or allowed by any Court, Tribunal or Authority in an appeal or revision, unless such objection was taken before the prescribed authority at the earliest possible opportunity\".\n 8."
}
},
{
"from_name": null,
"id": "367191cd42014ad087d451cef2db8953",
"to_name": null,
"type": null,
"value": {
"end": 4613,
"labels": [
"ANALYSIS"
],
"start": 4453,
"text": "Therefore, there is a clear bar enacted under Section 67 of the Act for the petitioner to raise objection to the territorial jurisdiction of the 1st respondent."
}
},
{
"from_name": null,
"id": "013bdbb229e64568820a15c670a50b15",
"to_name": null,
"type": null,
"value": {
"end": 4855,
"labels": [
"ARG_PETITIONER"
],
"start": 4614,
"text": "Learned counsel for the petitioner submits that the bar under Section 67 is for the Appellant or Revisional Court and not for this Court in writ jurisdiction and therefore the petitioner is entitled to raise this ground in the writ petition."
}
},
{
"from_name": null,
"id": "1f545e98b51b441d9eba7672a6c328cc",
"to_name": null,
"type": null,
"value": {
"end": 4891,
"labels": [
"ANALYSIS"
],
"start": 4856,
"text": "This contention cannot be accepted."
}
},
{
"from_name": null,
"id": "9633890f63c2461f8dea60a38bab81f5",
"to_name": null,
"type": null,
"value": {
"end": 5087,
"labels": [
"ANALYSIS"
],
"start": 4891,
"text": "\n 9. This Court, in its writ jurisdiction comes to the aid of the petitioner when there is an apparent illegality committed and when there is error of jurisdiction resulting in failure of justice."
}
},
{
"from_name": null,
"id": "a7bd8ac4a7ca4d859f2fe817ee64d852",
"to_name": null,
"type": null,
"value": {
"end": 5331,
"labels": [
"ANALYSIS"
],
"start": 5087,
"text": "\nIn the instant case, the legislative intent is very clear that when an assessee does not raise any objection to the territorial jurisdiction and allows the authority to pass an order, then such an objection cannot be raised by it subsequently."
}
},
{
"from_name": null,
"id": "eaa6511899704ccb8d29a8c69095fb3b",
"to_name": null,
"type": null,
"value": {
"end": 5519,
"labels": [
"PRE_NOT_RELIED"
],
"start": 5331,
"text": "\n 10. Reliance is placed by the learned counsel for the petitioner on the judgment of the Apex Court in the case of DEEPAK AGRO FOODS vs. STATE OF RAJASTHAN AND OTHERS - (2008) 16 VST 454."
}
},
{
"from_name": null,
"id": "4571179c884e41299acf57c26391d775",
"to_name": null,
"type": null,
"value": {
"end": 5709,
"labels": [
"ANALYSIS"
],
"start": 5520,
"text": "On perusal of the ratio laid down in the judgment and the facts involved therein the same does not in any manner help the petitioner to sustain the contention urged in these writ petitions."
}
},
{
"from_name": null,
"id": "7a54a14dd21848639cc65ce09351569b",
"to_name": null,
"type": null,
"value": {
"end": 5792,
"labels": [
"ANALYSIS"
],
"start": 5710,
"text": "Neither the facts nor the law laid down therein is applicable to the instant case."
}
},
{
"from_name": null,
"id": "44621f4d84e84ad0b88fe1ab115eb215",
"to_name": null,
"type": null,
"value": {
"end": 6065,
"labels": [
"ANALYSIS"
],
"start": 5793,
"text": "In fact, as is clear from the observations made in the said order \"all irregular or erroneous or even illegal orders cannot be held to be null and void, as there is a fine distinction between orders which are null and void and orders which are irregular, wrong or illegal."
}
},
{
"from_name": null,
"id": "34918092080044e3a1a01d171abc4f8d",
"to_name": null,
"type": null,
"value": {
"end": 6118,
"labels": [
"ANALYSIS"
],
"start": 6066,
"text": "This is not a case of inherent lack of jurisdiction."
}
},
{
"from_name": null,
"id": "7f489ad535ef4d8884a0ebb97544b19e",
"to_name": null,
"type": null,
"value": {
"end": 6351,
"labels": [
"ANALYSIS"
],
"start": 6119,
"text": "If that is so, then the legislature would not have enacted Section 67 making it clear that lack of territorial jurisdiction cannot be raised by an assessee having suffered an order without raising the objection at the initial stage."
}
},
{
"from_name": null,
"id": "48bd7822d2304f7da61743206d23ccd3",
"to_name": null,
"type": null,
"value": {
"end": 6587,
"labels": [
"PRE_NOT_RELIED"
],
"start": 6351,
"text": "\n 11. Similarly, the judgment of the Division Bench of Kerala High Court in the case of T.P.FINIMOLE vs. ASSISTANT COMMISSIONER (AA), COMMERCIAL TAXES AND ANOTHER (2009) 24 VST 385 is also not apposite to the facts of the present case."
}
},
{
"from_name": null,
"id": "1d31826f25dc4d839568fc190f4340da",
"to_name": null,
"type": null,
"value": {
"end": 6676,
"labels": [
"PRE_NOT_RELIED"
],
"start": 6588,
"text": "The law laid down therein has no application to the question raised in the instant case."
}
},
{
"from_name": null,
"id": "e9645e75b5d24774baba132e93035fe7",
"to_name": null,
"type": null,
"value": {
"end": 6974,
"labels": [
"ARG_PETITIONER"
],
"start": 6676,
"text": "\n 12. It is further contended by the learned counsel for the petitioner that in the reply submitted the petitioner it has furnished the changed address at J.P.Nagar and therefore the 1st respondent ought to have taken care to notice that he lacked territorial jurisdiction to proceed in the matter."
}
},
{
"from_name": null,
"id": "fd386e7c62fe48bbb27c31d4c89646d8",
"to_name": null,
"type": null,
"value": {
"end": 7078,
"labels": [
"RATIO"
],
"start": 6975,
"text": "This contention cannot be accepted in the light of the provision contained under Section 67 of the Act."
}
},
{
"from_name": null,
"id": "9eae9345551e4f8abf31cb0cb6034fd3",
"to_name": null,
"type": null,
"value": {
"end": 7142,
"labels": [
"RATIO"
],
"start": 7079,
"text": "It was for the petitioner to raise an objection in that regard."
}
},
{
"from_name": null,
"id": "4adc3c5500c64655a9ebe08d501f57d5",
"to_name": null,
"type": null,
"value": {
"end": 7490,
"labels": [
"RATIO"
],
"start": 7143,
"text": "Having not raised such an objection and in the wake of the fact that at the time when the proceedings were initiated and when the notice was served, the petitioner was residing in the address at Commercial Street which fell within the jurisdiction of the 1st respondent, the contention of the learned counsel for the petitioner cannot be accepted."
}
},
{
"from_name": null,
"id": "9817e77f20034bf589f8b74d3ee7714c",
"to_name": null,
"type": null,
"value": {
"end": 7733,
"labels": [
"ANALYSIS"
],
"start": 7491,
"text": "In my considered view, the petitioner cannot nullify the effect of the legislative intent expression in Section 67 by invoking the writ jurisdiction, in the absence of any material to show that the same has resulted in miscarriage of justice."
}
},
{
"from_name": null,
"id": "fdb8e5c5871547e3a0c63ea533675fc3",
"to_name": null,
"type": null,
"value": {
"end": 7775,
"labels": [
"RPC"
],
"start": 7734,
"text": "Writ petitions are accordingly dismissed."
}
},
{
"from_name": null,
"id": "5143956a91dd4d56aba11dedbe7fef9b",
"to_name": null,
"type": null,
"value": {
"end": 7874,
"labels": [
"RPC"
],
"start": 7775,
"text": "\n Learned High Court Government Pleader is permitted to file memo of appearance within three weeks."
}
},
{
"from_name": null,
"id": "28822aa5ad2b45a7bb0a92214c02a267",
"to_name": null,
"type": null,
"value": {
"end": 7889,
"labels": [
"NONE"
],
"start": 7874,
"text": "\n Sd/- JUDGE VP"
}
}
]
}
] | 4,118 | {
"text": "IN THE HIGH COURT OF KARNATAKA AT BANGALORE\n\n DATED THIS THE 20TH DAY OF JUNE 2012\n\n BEFORE\n\n THE HON'BLE MR.JUSTICE B.S.PATIL\n\n W.P.Nos.19139-174/2012 (T-RES)\n\nBETWEEN:\n\nM/s. Transglobal Power Limited ... PETITIONER\nNo.364/365, 9th Main, J.P.Nagar,\n4th Phase, Dollars Colony,\nBangalore 560 078.\nRepresented by its\nManaging Director\nSri. Manjunath Dasappa,\nS/o. Sri. Dasappa,\nAged about 44 years.\n\n(By Smt. Vani. H. Adv.)\n\nAND:\n\n1. The Joint Commissioner of Commercial Taxes\n VAT Division-1, Vanijya Therige Karyalaya-1,\n Gandhi Nagar,\n Bangalore 560009.\n\n2. The State of Karnataka ... RESPONDENTS\n Ministry of Finance,\n Represented by its Finance Secretary,\n Vidhana Soudha,\n Ambedkar Veedhi,\n Bangalore.\n\n(By Sri. T.K.Vedamurthy, HCGP)\n\n These writ petitions are filed under Articles 226 of the\nConstitution of India, praying to issue a writ of certiorari or a\nwrit in the nature of certiorari quashing the order bearing\n\nNo.JCCT.DVO-1/SMR/CR-8/2011-12-T No.1686/11-12 dated\n28.03.2012 vide Annexure-B.\n\n These petitions coming on for preliminary hearing-B\ngroup this day, the Court made the following:\n\n ORDER\n1. Learned High Court Government Pleader is directed to take notice for the respondents.\n 2. Heard the learned counsel for the parties.\n 3. The challenge in these writ petitions is to the order dated 28.03.2012 passed by the 1st respondent-Joint Commissioner of Commercial Taxes, VAT Division-1, Bangalore, under Section 63-A of the Karnataka Value Added Tax Act, 2003 (for short `the Act') read with Section 9(2) of Central Sales Tax Act, 1956.\n 4. The only ground on which the challenge made to the impugned order is sought to be sustained by the petitioner is with regard to the lack of territorial jurisdiction in the Joint Commissioner of Commercial Taxes, VAT Division-1, Bangalore to deal with the matter.\n 5. Learned counsel for the petitioner placing reliance on the order passed by the Commissioner for Commercial Taxes, Bangalore on 19.09.2011 produced at Annexure-E and the Annexures enclosed to it submits that the place where the petitioner carried on his business fell within the jurisdiction of Joint Commissioner for Commercial Taxes (Administration), Division-3, Bangalore and not within the jurisdiction of the 1st respondent herein.\n 6. As is apparent from the order dated 19.09.2011 and the allocation of work made pursuant thereon which is clear from the chart appended to the order, the present place of business of the petitioner falls within the territorial jurisdiction of the Joint Commissioner for Commercial Taxes(Administration), Division-3, Bangalroe and not within the territorial jurisdiction of the Joint Commissioner of Commercial Taxes, Division-1, Bangalore. However, it is rightly contended by the learned High Court Government Pleader that the notice issued under Section 63-A of the Act to the petitioner on 04.07.2011 was addressed to the place of business of the petitioner at No.343, I Floor, Narayana Pillai Street, Commercial Street, Bangalore-560001 and the same has been received by the petitioner at the same address on 06.07.2011, as is apparent from the endorsement made on the notice. Copy of the same is part of the record that is produced for perusal of the Court by the learned High Court Government Pleader. It is thus clear that at the time when the notice was served on the petitioner, without raising any objection with regard to the address, the notice has been received at the same address and subsequently even when the reply to the notice was submitted on 12.12.2011 the petitioner has not raised any objection with regard to the territorial jurisdiction of the 1st respondent to exercise his power and jurisdiction in the matter. It is in this background the 1st respondent has proceeded to pass the order. For the first time, the petitioner intends to raise the question on territorial jurisdiction by filing these writ petitions challenging the order passed by the 1st respondent.\n 7. Section 67 of the Act states that \"no objection as to the territorial or pecuniary jurisdiction of any prescribed authority shall be entertained or allowed by any Court, Tribunal or Authority in an appeal or revision, unless such objection was taken before the prescribed authority at the earliest possible opportunity\".\n 8. Therefore, there is a clear bar enacted under Section 67 of the Act for the petitioner to raise objection to the territorial jurisdiction of the 1st respondent. Learned counsel for the petitioner submits that the bar under Section 67 is for the Appellant or Revisional Court and not for this Court in writ jurisdiction and therefore the petitioner is entitled to raise this ground in the writ petition. This contention cannot be accepted.\n 9. This Court, in its writ jurisdiction comes to the aid of the petitioner when there is an apparent illegality committed and when there is error of jurisdiction resulting in failure of justice.\nIn the instant case, the legislative intent is very clear that when an assessee does not raise any objection to the territorial jurisdiction and allows the authority to pass an order, then such an objection cannot be raised by it subsequently.\n 10. Reliance is placed by the learned counsel for the petitioner on the judgment of the Apex Court in the case of DEEPAK AGRO FOODS vs. STATE OF RAJASTHAN AND OTHERS - (2008) 16 VST 454. On perusal of the ratio laid down in the judgment and the facts involved therein the same does not in any manner help the petitioner to sustain the contention urged in these writ petitions. Neither the facts nor the law laid down therein is applicable to the instant case. In fact, as is clear from the observations made in the said order \"all irregular or erroneous or even illegal orders cannot be held to be null and void, as there is a fine distinction between orders which are null and void and orders which are irregular, wrong or illegal. This is not a case of inherent lack of jurisdiction. If that is so, then the legislature would not have enacted Section 67 making it clear that lack of territorial jurisdiction cannot be raised by an assessee having suffered an order without raising the objection at the initial stage.\n 11. Similarly, the judgment of the Division Bench of Kerala High Court in the case of T.P.FINIMOLE vs. ASSISTANT COMMISSIONER (AA), COMMERCIAL TAXES AND ANOTHER (2009) 24 VST 385 is also not apposite to the facts of the present case. The law laid down therein has no application to the question raised in the instant case.\n 12. It is further contended by the learned counsel for the petitioner that in the reply submitted the petitioner it has furnished the changed address at J.P.Nagar and therefore the 1st respondent ought to have taken care to notice that he lacked territorial jurisdiction to proceed in the matter. This contention cannot be accepted in the light of the provision contained under Section 67 of the Act. It was for the petitioner to raise an objection in that regard. Having not raised such an objection and in the wake of the fact that at the time when the proceedings were initiated and when the notice was served, the petitioner was residing in the address at Commercial Street which fell within the jurisdiction of the 1st respondent, the contention of the learned counsel for the petitioner cannot be accepted. In my considered view, the petitioner cannot nullify the effect of the legislative intent expression in Section 67 by invoking the writ jurisdiction, in the absence of any material to show that the same has resulted in miscarriage of justice. Writ petitions are accordingly dismissed.\n Learned High Court Government Pleader is permitted to file memo of appearance within three weeks.\n Sd/- JUDGE VP "
} |
{
"group": "Criminal"
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{
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{
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"id": "440f5af8f9f74573aa84aee90f4090d0",
"to_name": "text",
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"value": {
"end": 557,
"labels": [
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"start": 0,
"text": "PETITIONER:\nPRABHUDAYAL AND OTHERS\n\nVs.\n\nRESPONDENT:\nSTATE OF MAHARASHTRA\n\nDATE OF JUDGMENT14/05/1993\n\nBENCH:\nYOGESHWAR DAYAL (J)\nBENCH:\nYOGESHWAR DAYAL (J)\nKULDIP SINGH (J)\n\nCITATION: 1993 SCR (3) 878\n 1993 AIR 2164 JT 1993 (4) 475\n 1993 SCC (3) 573\n 1993 SCALE (2)941\n\nACT:\n%\nIndian Penal Code 1860-Ss. 302, 498A, 201 read with 34 and\nS. 306 read with 34-Burning of young married woman-Whether\ndeath by burning or strangulation-Whether suicide or\nhomicide-Held, facts indicate homicide, and death by\nstrangulation preceding burning."
}
},
{
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"id": "5ed3a6863ab4466e97dd56368def773e",
"to_name": "text",
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"value": {
"end": 749,
"labels": [
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],
"start": 557,
"text": "\nCircumstantial Evidence-Held, cumulative effect or\ncircumstances negatives innocence of father-in-Law and\nhusband--Mother-in-law and Sister-in-law may not have\nparticipated, hence, acquitted."
}
},
{
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"id": "aab2173012954089af77dbcbcfd9de39",
"to_name": "text",
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"value": {
"end": 814,
"labels": [
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],
"start": 751,
"text": "HEADNOTE:\nSangita was married to accused 2 on 28th April, 1984."
}
},
{
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"id": "bc9cb240ebd94d17b918f81c19c3644a",
"to_name": "text",
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"value": {
"end": 899,
"labels": [
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],
"start": 815,
"text": "In\nthe intervening night of 14115 September 1984, the accused\nfound Sangita burning."
}
},
{
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"id": "1e1ffb298cc947bd8381833473c60eb0",
"to_name": "text",
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"value": {
"end": 1000,
"labels": [
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"start": 900,
"text": "Sangita's body suffered 100% burns\nand the smell of kerosene was noticed even in the spot\npanchnama."
}
},
{
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"id": "64b2088e70914da6b1bfa2961933a20a",
"to_name": "text",
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"value": {
"end": 1147,
"labels": [
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],
"start": 1001,
"text": "There had been problems relating to dowry, and\nshe had complained of ill-treatment and of being beaten\nbecause of failure to pay the dowry amount."
}
},
{
"from_name": "label",
"id": "2409417d4d2946ca9af4864aa55dffb6",
"to_name": "text",
"type": "labels",
"value": {
"end": 1261,
"labels": [
"PREAMBLE"
],
"start": 1147,
"text": "\nThe trial judge acquitted accused 1-4 - her father-in-law,\nhusband, mother-in-law and sister-in-law respectively."
}
},
{
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"id": "8972e38402a645ddb0c6a132e7ae21bc",
"to_name": "text",
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"value": {
"end": 1465,
"labels": [
"PREAMBLE"
],
"start": 1261,
"text": "\nThe High Court examined the evidence a fresh, while\ncastigating the trial judge for having gone merely on the\nstatement of the Public Prosecutor that only a case under\nSs. 306, 498-A and 34 was made out."
}
},
{
"from_name": "label",
"id": "128a3e53fcef4f19924a39d685e8e61d",
"to_name": "text",
"type": "labels",
"value": {
"end": 1605,
"labels": [
"PREAMBLE"
],
"start": 1466,
"text": "The High Court\nConvicted the accused under S.302 r/w 34, S.201 r/w 34 and\n498-A r/w 34.\nPartly dismissing the appeal, this Court..\nHELD: 1."
}
},
{
"from_name": "label",
"id": "ce5e6dc7e42b4e0ebc4f47201206b66a",
"to_name": "text",
"type": "labels",
"value": {
"end": 1653,
"labels": [
"PREAMBLE"
],
"start": 1606,
"text": "It was a case of murder and not suicidal death."
}
},
{
"from_name": "label",
"id": "3f97420754a84224bfcc40f6987e8771",
"to_name": "text",
"type": "labels",
"value": {
"end": 1740,
"labels": [
"PREAMBLE"
],
"start": 1653,
"text": "\nIt is not possible that there were no 'cries' from the\ndeceased while she was burning."
}
},
{
"from_name": "label",
"id": "07e4b463be6041cb936ac6d2f5deca18",
"to_name": "text",
"type": "labels",
"value": {
"end": 1788,
"labels": [
"PREAMBLE"
],
"start": 1741,
"text": "This is not possible even\nin a case of suicide."
}
},
{
"from_name": "label",
"id": "46df792782124bcc8e4d5d0fe014e711",
"to_name": "text",
"type": "labels",
"value": {
"end": 1895,
"labels": [
"PREAMBLE"
],
"start": 1788,
"text": "\nSome of the symptoms of internal and external injuries are\ncommon in\n879\ncase (if strangulation and burns."
}
},
{
"from_name": "label",
"id": "ec98f7591399468e911bbdb1bb24e8a8",
"to_name": "text",
"type": "labels",
"value": {
"end": 1979,
"labels": [
"PREAMBLE"
],
"start": 1896,
"text": "But some symptoms that\noccur in the case of strangulation, and not in case of\nburns"
}
},
{
"from_name": "label",
"id": "dd29c2dee8e54901b5adb626792ca579",
"to_name": "text",
"type": "labels",
"value": {
"end": 2006,
"labels": [
"PREAMBLE"
],
"start": 1979,
"text": ", are present in this case."
}
},
{
"from_name": "label",
"id": "22141dcb050c478088d56c45467e2fd0",
"to_name": "text",
"type": "labels",
"value": {
"end": 2112,
"labels": [
"PREAMBLE"
],
"start": 2006,
"text": "\nDr. K.S. Narayan Reddy, The Essentials of Forensic Medicine\nand Toxicology 6th edn. p. 55, relied on.\n\n2."
}
},
{
"from_name": "label",
"id": "2801b9d1f2944832a45110847fa8d4db",
"to_name": "text",
"type": "labels",
"value": {
"end": 2176,
"labels": [
"PREAMBLE"
],
"start": 2113,
"text": "The prosecution rests its case only on circumstantial\nevidence."
}
},
{
"from_name": "label",
"id": "2966a2bbde1a4d779b76a1c203d6c6f9",
"to_name": "text",
"type": "labels",
"value": {
"end": 2631,
"labels": [
"PREAMBLE"
],
"start": 2177,
"text": "Therefore, it is necessary to examine the\nimpelling circumstances attending the case and examine\nwhether the cumulative effect of those circumstances\nnegatives the innocence of the appellant-,; and serves a\ndefinite pointer towards their guilt and unerringly leads to\nthe conclusion that with all human probability the offence\nwas committed by the appellants and none else.\nState of U.P. v. Dr. Ravindra prakash Mittal, JT(1992) 2 SC\n114 at 121. applied."
}
},
{
"from_name": "label",
"id": "cab45f7daa5e4b38b9cafe7202270e12",
"to_name": "text",
"type": "labels",
"value": {
"end": 2673,
"labels": [
"PREAMBLE"
],
"start": 2631,
"text": "\nTaylor, Medical jurisprudence, relied on."
}
},
{
"from_name": "label",
"id": "fb22445992ef4a04a8b363b758590bf7",
"to_name": "text",
"type": "labels",
"value": {
"end": 2829,
"labels": [
"PREAMBLE"
],
"start": 2673,
"text": "\nOn an appreciation of the circumstances which arc\nestablished as being closely linked to one another, the\ncomplicity of appellants 1 and 2 is not in doubt."
}
},
{
"from_name": "label",
"id": "c6b2d5315bd7452e8894e886480efe23",
"to_name": "text",
"type": "labels",
"value": {
"end": 2926,
"labels": [
"PREAMBLE"
],
"start": 2830,
"text": "But it is\nnot necessary that appellants 3 and 4 also participated in\nthe murder of the deceased."
}
},
{
"from_name": "label",
"id": "d32ed3ac59ba459280ac5725e14fb264",
"to_name": "text",
"type": "labels",
"value": {
"end": 2989,
"labels": [
"PREAMBLE"
],
"start": 2927,
"text": "They are given the benefit of\ndoubt and accordingly acquitted."
}
},
{
"from_name": "label",
"id": "f626bcbc301e453c8107e59ca4821ec8",
"to_name": "text",
"type": "labels",
"value": {
"end": 3000,
"labels": [
"PREAMBLE"
],
"start": 2989,
"text": "\n\nJUDGMENT:"
}
},
{
"from_name": "label",
"id": "34dbefc68c3a4c229f9ef14bbb74ac3a",
"to_name": "text",
"type": "labels",
"value": {
"end": 3032,
"labels": [
"NONE"
],
"start": 3000,
"text": "CRIMINAL APPELLATE JURISDICTION:"
}
},
{
"from_name": "label",
"id": "231721fe504543c499281b5bca491130",
"to_name": "text",
"type": "labels",
"value": {
"end": 3065,
"labels": [
"NONE"
],
"start": 3033,
"text": "Criminal Appeal No. 738 of 1992."
}
},
{
"from_name": "label",
"id": "89e067453672421aa8898909a268f9e3",
"to_name": "text",
"type": "labels",
"value": {
"end": 3164,
"labels": [
"NONE"
],
"start": 3065,
"text": "\n From the Judgment and Order dated 16.11.1992 of the Bombay High Court in Crl. A. No. 148 of 1989."
}
},
{
"from_name": "label",
"id": "1f6ae8d2f8914e969cbfb6f4c56ba2d9",
"to_name": "text",
"type": "labels",
"value": {
"end": 3230,
"labels": [
"NONE"
],
"start": 3164,
"text": "\nA.N. Mulla, Ms. Shefali Khanna and J.M. Khanna for the Appellant."
}
},
{
"from_name": "label",
"id": "5faccb16b962477986391a05994f926f",
"to_name": "text",
"type": "labels",
"value": {
"end": 3292,
"labels": [
"NONE"
],
"start": 3230,
"text": "\nS.B. Bhasme, S.M. Jadhav and A.S. Bhasme for the Respondents."
}
},
{
"from_name": "label",
"id": "52ab67c14c974ddeb2772047f87dce5d",
"to_name": "text",
"type": "labels",
"value": {
"end": 3355,
"labels": [
"NONE"
],
"start": 3292,
"text": "\nThe Judgment of the Court was delivered by YOGESHWAR DAYAL, J."
}
},
{
"from_name": "label",
"id": "f791daea84934e638c3c4c17b87d9b1c",
"to_name": "text",
"type": "labels",
"value": {
"end": 3473,
"labels": [
"FAC"
],
"start": 3355,
"text": "This is an appeal by the four accused persons against the judgment of the Bombay High Court dated 16th November. 1992."
}
},
{
"from_name": "label",
"id": "5d27cc688fe544b8a04ede2d17cb6f45",
"to_name": "text",
"type": "labels",
"value": {
"end": 3873,
"labels": [
"FAC"
],
"start": 3474,
"text": "Appellant No. 1 who was accused No. 1 was tried for the offence of having 880 committed the murder of his daughter-in-law Sangita, wife of appellant No. 2 who was accused No.2, during the night between 14th September, 1984 and 15th September, 1984 at the residential house of the appellants at Murtizapur with common intention and also for having treated her with cruelty on account of dowry amount."
}
},
{
"from_name": "label",
"id": "f15410d0ba2f43508123589da518f422",
"to_name": "text",
"type": "labels",
"value": {
"end": 4035,
"labels": [
"FAC"
],
"start": 3874,
"text": "In the alternative the appellants were also charged for the offence of having abetted the deceased Sangita in commission of suicide by subjecting her to cruelty."
}
},
{
"from_name": "label",
"id": "2ed12af1f3bb420abd247d1f97b2328d",
"to_name": "text",
"type": "labels",
"value": {
"end": 4163,
"labels": [
"FAC"
],
"start": 4036,
"text": "Appellant no.3, who was accused No.3, is the wife of accused No.1 and appellant No.4, who was accused No. 4. is their daughter."
}
},
{
"from_name": "label",
"id": "e6875faf458540c380c83dfbb1867d92",
"to_name": "text",
"type": "labels",
"value": {
"end": 4225,
"labels": [
"FAC"
],
"start": 4164,
"text": "Appellants 1 to 4 are hereinafter called accused Nos. 1 to 4."
}
},
{
"from_name": "label",
"id": "ea140080136245c1b32e2dd84f994d21",
"to_name": "text",
"type": "labels",
"value": {
"end": 4406,
"labels": [
"FAC"
],
"start": 4225,
"text": "\nThe story of the prosecution was as follows:- The accused run a printing press at their residence.\nMarriage of accused No. 2 was settled with the 5th daughter of Madan lal (PW. 8)."
}
},
{
"from_name": "label",
"id": "e1f7004dfec842f3b276a9df06fae33a",
"to_name": "text",
"type": "labels",
"value": {
"end": 4456,
"labels": [
"FAC"
],
"start": 4407,
"text": "Few days prior to the settlement of the marriage."
}
},
{
"from_name": "label",
"id": "499cb517218143da85a8efb867eccf17",
"to_name": "text",
"type": "labels",
"value": {
"end": 4503,
"labels": [
"FAC"
],
"start": 4457,
"text": "marriage of her elder sister was also settled."
}
},
{
"from_name": "label",
"id": "7f05bc2bd3ba47c0803937899eefd53a",
"to_name": "text",
"type": "labels",
"value": {
"end": 4618,
"labels": [
"FAC"
],
"start": 4503,
"text": "\nAs such marriages of both the daughters i.e. Sangita and Hemlata were celebrated at Paratwada on 28th April, 1994."
}
},
{
"from_name": "label",
"id": "5c8f6971fd67450b9bf85ff6bfe41715",
"to_name": "text",
"type": "labels",
"value": {
"end": 4759,
"labels": [
"FAC"
],
"start": 4618,
"text": "\nTalk over the marriage had taken place about a month prior to the marriage and the same was finalised after about 2 or 3 days of such talks."
}
},
{
"from_name": "label",
"id": "9ebdd74ec399447da0384a3263c36e42",
"to_name": "text",
"type": "labels",
"value": {
"end": 4939,
"labels": [
"FAC"
],
"start": 4760,
"text": "At the time of finalisation, accused No. 1 demanded Rs. 20,000 by way of hard cash as dowry, besides other articles, add he himself had given such demands in writing vide Ext. 73."
}
},
{
"from_name": "label",
"id": "70a8f3bdf552497eae6a5b783446b9fb",
"to_name": "text",
"type": "labels",
"value": {
"end": 5039,
"labels": [
"FAC"
],
"start": 4940,
"text": "Though agreed, Madan Lal, father of the deceased could not give Rs. 20,000 at the time of marriage."
}
},
{
"from_name": "label",
"id": "cbcbdbf34ceb44e0a3a1aed16451c06b",
"to_name": "text",
"type": "labels",
"value": {
"end": 5152,
"labels": [
"FAC"
],
"start": 5040,
"text": "He also could not give the gold agreed, though he assured to comply with the demands later on getting the crops."
}
},
{
"from_name": "label",
"id": "f5c2741c566f42ec9641d1a770e50d72",
"to_name": "text",
"type": "labels",
"value": {
"end": 5261,
"labels": [
"FAC"
],
"start": 5153,
"text": "After the marriage, on account of the month of Shrawan, and as per custom, Sangita resided with her parents."
}
},
{
"from_name": "label",
"id": "a484daee11424a7880c6d72e10da5159",
"to_name": "text",
"type": "labels",
"value": {
"end": 5344,
"labels": [
"FAC"
],
"start": 5262,
"text": "It was during her stay after the marriage that she was found disturbed and sullen."
}
},
{
"from_name": "label",
"id": "597bc6e5879c457ab7b1316a782edc87",
"to_name": "text",
"type": "labels",
"value": {
"end": 5649,
"labels": [
"FAC"
],
"start": 5345,
"text": "Though she herself did not give out the reason therefore, but on insistence by the father to know the reason she told him that accused No. 1 had an evil eve on her and that other members of the family used to beat and ill treat her because of the failure on the part of Madan Lai to pay the dowry amount."
}
},
{
"from_name": "label",
"id": "a4b81a8161a14ea7bc0c24174f536508",
"to_name": "text",
"type": "labels",
"value": {
"end": 5772,
"labels": [
"FAC"
],
"start": 5650,
"text": "Though Madan lal assured that he would come down to Murtizapur and pursued the accused, but he could not visit Murtizapur."
}
},
{
"from_name": "label",
"id": "52671e475ea0426f89df10ab8ac4065a",
"to_name": "text",
"type": "labels",
"value": {
"end": 5922,
"labels": [
"FAC"
],
"start": 5773,
"text": "After the month of Shrawan, Sangita returned to Murtizapur but not communication was made about her safe return by the accused persons to her father."
}
},
{
"from_name": "label",
"id": "23f5e401a12843a792e2af33a02e824a",
"to_name": "text",
"type": "labels",
"value": {
"end": 6078,
"labels": [
"FAC"
],
"start": 5923,
"text": "The accused persons had a telephone connection and Madan Lal (PW.8), two three days prior to the date of the incident contacted accused No. 1 on telephone."
}
},
{
"from_name": "label",
"id": "976087772d3d484da6698ddd815e9dc4",
"to_name": "text",
"type": "labels",
"value": {
"end": 6123,
"labels": [
"FAC"
],
"start": 6079,
"text": "Accused No. 1 talked angrily with Madan Lal."
}
},
{
"from_name": "label",
"id": "52a6b51ede2b4545901d2d9d768eda7a",
"to_name": "text",
"type": "labels",
"value": {
"end": 6192,
"labels": [
"FAC"
],
"start": 6123,
"text": "\nMadan Lal then requested accused No. 1 to call Sangita on telephone."
}
},
{
"from_name": "label",
"id": "23d82b2e1caf46c69ad2c3aeb086b86c",
"to_name": "text",
"type": "labels",
"value": {
"end": 6434,
"labels": [
"FAC"
],
"start": 6193,
"text": "Sangita came on phone and in answer to his query she broke down and Stated weeping and told Madan lal as to why he did not send Ganesh Chaturthi Neg','Neg' means a customary offer that the father of the bride has to pay on an auspicious day."
}
},
{
"from_name": "label",
"id": "7537285194144c1ebcf7b004d07313fc",
"to_name": "text",
"type": "labels",
"value": {
"end": 6491,
"labels": [
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],
"start": 6435,
"text": "It varies according to financial capacity of the father."
}
},
{
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"value": {
"end": 6597,
"labels": [
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"start": 6492,
"text": "He told 881 Sangita that he had committed it mistake and assured that he would be sending it immediately."
}
},
{
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"end": 6676,
"labels": [
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"start": 6598,
"text": "On the next day lie had got drawn a draft of Rs. 101/- on State Bank of India."
}
},
{
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"end": 6705,
"labels": [
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"start": 6677,
"text": "Ext.\n74-A is the said draft."
}
},
{
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"value": {
"end": 6855,
"labels": [
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],
"start": 6706,
"text": "It was thereafter when Madan Lai was on a visit to Amravati that Madan Lal received a message about Sangita having got burnt on 15th September, 1984."
}
},
{
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"id": "7bd832586ea54f629ca01e853792848f",
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"value": {
"end": 6991,
"labels": [
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],
"start": 6855,
"text": "\nDuring the night between 14th and 15th September. 1984 at about midnight the accused found Sangita not in her bed and smell of burning."
}
},
{
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"id": "fc2ee27cc18e411a836534218637f6d8",
"to_name": "text",
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"value": {
"end": 7071,
"labels": [
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],
"start": 6992,
"text": "They found that in the rear side open space Sangita was burning and lying down."
}
},
{
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"value": {
"end": 7178,
"labels": [
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],
"start": 7072,
"text": "According to the defence the doors were closed from inside and there was no access to the said open space."
}
},
{
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"id": "32516455d36d4c8589fd1548ec9ec14e",
"to_name": "text",
"type": "labels",
"value": {
"end": 7296,
"labels": [
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],
"start": 7179,
"text": "Accused No. 1 informed the police about the occurrence that he had seen through the window opening on the )pen space."
}
},
{
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"id": "1fc1ea8bf77a412d862e69d6d0d0cef3",
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"value": {
"end": 7510,
"labels": [
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],
"start": 7297,
"text": "Accused No. 1 at about 3.45 a.m. on 15th September, 1994 submitted it report (Ext.82) to the police wherein he had stated that about 2.\n10 a.m. in the night Sangita was found to be burnt and died in the bath-room."
}
},
{
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"id": "3258431a0c0b437da37042b23c38c620",
"to_name": "text",
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"value": {
"end": 7525,
"labels": [
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],
"start": 7511,
"text": "PW.9. Mundheh."
}
},
{
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"id": "31ac7e0b81044426b937035f3391051f",
"to_name": "text",
"type": "labels",
"value": {
"end": 7622,
"labels": [
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],
"start": 7526,
"text": "the investigating Officer gave instructions to the accused persons not to disturb the situation."
}
},
{
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"id": "933e4c486fb24e3bbf4f9672e98597eb",
"to_name": "text",
"type": "labels",
"value": {
"end": 7695,
"labels": [
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],
"start": 7623,
"text": "Initially on the report of the accused, accidental death was registered."
}
},
{
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"id": "64bdb4659eee420bb72d40a00a0c8a99",
"to_name": "text",
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"value": {
"end": 7801,
"labels": [
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],
"start": 7696,
"text": "PW9 when reached the spot on 15th September. 1984 at about 10.00 a.m. he made spot Panchnama vide ext.63."
}
},
{
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"id": "970961f8f33144898b8fbaebbf2481bc",
"to_name": "text",
"type": "labels",
"value": {
"end": 7827,
"labels": [
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],
"start": 7802,
"text": "He also found a postcard."
}
},
{
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"id": "6ebd4eb701af44edb3d7e0d5921271f7",
"to_name": "text",
"type": "labels",
"value": {
"end": 7879,
"labels": [
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],
"start": 7828,
"text": "half burnt, (Ext. 62) by the side of the dead body."
}
},
{
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"id": "fa4093af25b647d2bd5e916a055db9af",
"to_name": "text",
"type": "labels",
"value": {
"end": 7926,
"labels": [
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],
"start": 7880,
"text": "He thereafter drew inquest panchnama (Ext.64)."
}
},
{
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"id": "c8cfb016d884456d9c7689c263074e06",
"to_name": "text",
"type": "labels",
"value": {
"end": 7959,
"labels": [
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],
"start": 7927,
"text": "PW. 1 Bhanudas acted as a panch."
}
},
{
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"id": "7dd725d8e4644072883c8e052aa5e7bf",
"to_name": "text",
"type": "labels",
"value": {
"end": 8151,
"labels": [
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],
"start": 7959,
"text": "\nPW.9 having convinced that it was a case of murder, lodged it report on behalf of the State registering the offence punishable under Section 302 read with Section 34 of the Indian Penal Code."
}
},
{
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"id": "aae2c6a9dc6944b0bb3818edad7fdd5f",
"to_name": "text",
"type": "labels",
"value": {
"end": 8238,
"labels": [
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],
"start": 8152,
"text": "Dr. Lande, PW.3, on 15th September, 1994 at about 5.00 p.m. conducted the post-mortem."
}
},
{
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"id": "6249ccc4cf2a427aac1f30c511c78adb",
"to_name": "text",
"type": "labels",
"value": {
"end": 8321,
"labels": [
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],
"start": 8239,
"text": "The Additional Sessions Judge on the basis of the material filed with the challan."
}
},
{
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"id": "dfd8ea1623964d76a2d2c1a97de9c280",
"to_name": "text",
"type": "labels",
"value": {
"end": 8494,
"labels": [
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],
"start": 8322,
"text": "on 30th September, 1994 trained a charge under Sections 302.499-A and 201 read with Section 34 of the Indian Penal code and thereafter recorded the evidence of PWs. 1 to 9."
}
},
{
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"id": "682d8c55de7444cab36f531aecf90719",
"to_name": "text",
"type": "labels",
"value": {
"end": 8677,
"labels": [
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],
"start": 8495,
"text": "Thereafter by an order dated 22nd August, 1988 the trial court framed an additional charge for the offence punishable under Section 306 read with Section 34 of the Indian Penal Code."
}
},
{
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"id": "de556b61c7244156a596856f673b9f07",
"to_name": "text",
"type": "labels",
"value": {
"end": 8799,
"labels": [
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],
"start": 8678,
"text": "The accused persons challenged the framing of the additional charge before the High Court but the challenge was defeated."
}
},
{
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"id": "376b11138ca24c4fa323b11d264342b4",
"to_name": "text",
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"value": {
"end": 8843,
"labels": [
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],
"start": 8800,
"text": "The accused persons were accordantly tried."
}
},
{
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"id": "f0beb11327cd4df582bab0dd5b47b0c6",
"to_name": "text",
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"value": {
"end": 8889,
"labels": [
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],
"start": 8844,
"text": "Their defence through out was a total denial."
}
},
{
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"id": "1001a0c81a744044845c2aa885d9da9e",
"to_name": "text",
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"value": {
"end": 9064,
"labels": [
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],
"start": 8889,
"text": "\n It appears that during arguments the Prosecutor did not think it proper to press for the diffence punishable under Section 302 read with Section 34 of the Indian penal Code."
}
},
{
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"id": "ee128d4353434147bdda07e0519c9ae9",
"to_name": "text",
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"value": {
"end": 9220,
"labels": [
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],
"start": 9064,
"text": "\nAccording to the Prosecutor the only case made out was for the offences punishable under Sections 306, 498-A read with Section 34 of the Indian Penal Code."
}
},
{
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"id": "caa245aafbd14bbcb2d7d551f394cde5",
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"value": {
"end": 9413,
"labels": [
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],
"start": 9221,
"text": "The trial court endorsed the view of the Public Prosecutor and did not 882 discuss the relevant evidence it all on the charge of Section 302 and recorded a finding of acquittal in that behalf."
}
},
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"id": "83339bb15aba49759a2c36fc67be4d8a",
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"value": {
"end": 9479,
"labels": [
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],
"start": 9414,
"text": "He also held that the charge of Section 201 also did not survive."
}
},
{
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"id": "97bf5f851c744eb0b0d5a5974e1c9206",
"to_name": "text",
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"value": {
"end": 9687,
"labels": [
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],
"start": 9480,
"text": "The learned trial Judge also held that the prosecution hits not been able it) prove that the accused persons with their common intention treated Sangita with cruelty or thereby abetted her to commit suicide."
}
},
{
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"id": "39660749fa7c401687bff7485d1c6800",
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"value": {
"end": 9827,
"labels": [
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],
"start": 9688,
"text": "He accordingly acquired all the accused persons for the offence punishable under Section 306 read with Section 34 of the Indian Penal Code."
}
},
{
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"id": "9db0e22594e84144ac142200e18fb444",
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"value": {
"end": 10056,
"labels": [
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],
"start": 9827,
"text": "\nThe State filed all appeal against their order of acquittal and the High Court on appeal castigated the trial judge for having gone merely oil the statement of the public Prosecutor without applying his own mind on the evidence."
}
},
{
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"id": "d3f455e0557943b8abbd33e4c4b35211",
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"value": {
"end": 10101,
"labels": [
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],
"start": 10056,
"text": "\nThe High Court examined the evidence afresh."
}
},
{
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"id": "b449f5a2efdd4ec8a9bedb9ed409f281",
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"value": {
"end": 10382,
"labels": [
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],
"start": 10102,
"text": "The High Court posed a question is to whether the nature of death of Sangita was suicidal or homicidal and ultimately gave a finding that it was a case of homicidal death and found all the accused guilty under Section 302 read With Section 34 and Section 201 read with Section 34."
}
},
{
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"value": {
"end": 10459,
"labels": [
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],
"start": 10383,
"text": "The accused were also find guilty under Sections 498-A read with Section 34."
}
},
{
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"id": "b6e29b0de78f461c9b5ec6cde5e7af68",
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"end": 10597,
"labels": [
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],
"start": 10460,
"text": "For the offence under Section 302 read with Section 34 all of them were sentenced to rigorous imprisonment `for life and different fines."
}
},
{
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"id": "e0496080e8aa40aead4a913dd3937ef5",
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"value": {
"end": 10771,
"labels": [
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],
"start": 10598,
"text": "For the offence under Section 201 read with Section 34 all the accused persons were sentenced to rigorous imprisonment for three years and each of them was fined Rs.1,000/-."
}
},
{
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"id": "75de67cd8752498390384653f229a511",
"to_name": "text",
"type": "labels",
"value": {
"end": 10913,
"labels": [
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],
"start": 10772,
"text": "For the offence under Section 498-A read with Section 34 all of them were sentenced to one year rigorous imprisonment and a fine of Rs.2,000."
}
},
{
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"id": "02d85da2609c4c638889943c586dcac2",
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"value": {
"end": 11205,
"labels": [
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],
"start": 10913,
"text": "\nLearned counsel for the defence, however, submitted before the High Court that the charge under Section 302 read with Section 34 did not survive tit view of the concession made by the Prosecutor and also in view of the framing of the additional charge under Section 306 read with Section 34."
}
},
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"value": {
"end": 11321,
"labels": [
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],
"start": 11205,
"text": "\nIt was also submitted that the framing of the additional charge negated the theory of murder in pith and substance."
}
},
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"id": "6e770b68ce2747358081a58337ea7e33",
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"end": 11459,
"labels": [
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],
"start": 11321,
"text": "\nThe High Court, however negatived this submission and on consideration of the evidence convicted all the accused persons as stated above."
}
},
{
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"id": "5f4e97c9a29c45498f6b384e473d52f2",
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"value": {
"end": 11566,
"labels": [
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],
"start": 11459,
"text": "\nBody of Sangita suffered 100% burn injuries and smell of kerosene was even noticed in the spot panchanama."
}
},
{
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"id": "384c1e0b40e94806959bc8ca33b5342c",
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"type": "labels",
"value": {
"end": 11652,
"labels": [
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],
"start": 11567,
"text": "The description 1005 burn does not really fully 883 convey the condition of the body."
}
},
{
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"id": "0954f5ec74f84aff84516fca8a41d753",
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"value": {
"end": 11782,
"labels": [
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],
"start": 11653,
"text": "Asper the inquest report the dead body was lying on its back in the open court-yard at the back side of the house of the accused."
}
},
{
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"id": "272da831569e4a58891003588da87215",
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"type": "labels",
"value": {
"end": 11817,
"labels": [
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],
"start": 11783,
"text": "Both the legs were partly stiffen."
}
},
{
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"id": "d04ef69a1e464e858b3d25e708322719",
"to_name": "text",
"type": "labels",
"value": {
"end": 11868,
"labels": [
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],
"start": 11818,
"text": "Both the hands were partly bent and lying at side."
}
},
{
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"id": "337f417d6cd8403ca4c2d7e0d1f7ce96",
"to_name": "text",
"type": "labels",
"value": {
"end": 11946,
"labels": [
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],
"start": 11869,
"text": "Hairs on the head burnt and-even fleshy portion is also burnt at some places."
}
},
{
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"id": "89a402680e6d4a3da39e03d317b5e593",
"to_name": "text",
"type": "labels",
"value": {
"end": 11993,
"labels": [
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],
"start": 11947,
"text": "There was slight hair at some portion of head."
}
},
{
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"id": "a8b7d7836bdd4425bebba05d7cf63339",
"to_name": "text",
"type": "labels",
"value": {
"end": 12048,
"labels": [
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],
"start": 11994,
"text": "Complete body was burnt and skin on it also peeled up."
}
},
{
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"id": "ab7644b9415044d1af0fabd6991a4630",
"to_name": "text",
"type": "labels",
"value": {
"end": 12079,
"labels": [
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],
"start": 12049,
"text": "Face had became red and black."
}
},
{
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"id": "a66d3531300c47a099c135329d13d527",
"to_name": "text",
"type": "labels",
"value": {
"end": 12107,
"labels": [
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],
"start": 12080,
"text": "Eyes were closed and burnt."
}
},
{
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"id": "8cc85dcfb5f04ba0bc7b18362cfafeec",
"to_name": "text",
"type": "labels",
"value": {
"end": 12168,
"labels": [
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],
"start": 12108,
"text": "Nose was burnt and blood was cozing from the nose and mouth."
}
},
{
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"id": "bf6d310ba1fa4badb0faf8cfdde601dd",
"to_name": "text",
"type": "labels",
"value": {
"end": 12204,
"labels": [
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],
"start": 12169,
"text": "Tongue was slightly protruding out."
}
},
{
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"id": "85963545139242f88cc3a2dc9da40d4b",
"to_name": "text",
"type": "labels",
"value": {
"end": 12281,
"labels": [
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],
"start": 12205,
"text": "Brassier of the left side was totally burnt and right side was partly burnt."
}
},
{
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"id": "b86b01491cf44f6e9e709d9f6ad25119",
"to_name": "text",
"type": "labels",
"value": {
"end": 12324,
"labels": [
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],
"start": 12282,
"text": "Ash of burnt cloth was visible on stomach."
}
},
{
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"id": "d2d6dd06bee14c51bdb426d0aab44c36",
"to_name": "text",
"type": "labels",
"value": {
"end": 12391,
"labels": [
"FAC"
],
"start": 12325,
"text": "A partly burnt small piece of the border of saree was lying there."
}
},
{
"from_name": "label",
"id": "84d8a4e5e44d45c4b2937bbd8cd5b54a",
"to_name": "text",
"type": "labels",
"value": {
"end": 12471,
"labels": [
"FAC"
],
"start": 12392,
"text": "Some pieces of saree, burnt and sticking each other, were lying on the stomach."
}
},
{
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"id": "47fa1c0bd9c3422a9f9cfd8da8076dee",
"to_name": "text",
"type": "labels",
"value": {
"end": 12539,
"labels": [
"FAC"
],
"start": 12472,
"text": "Skin on palm of both hands was peeled up and was appearing reddish."
}
},
{
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"id": "7d4fc8f4f172440c896b3b4574d42749",
"to_name": "text",
"type": "labels",
"value": {
"end": 12590,
"labels": [
"FAC"
],
"start": 12540,
"text": "Skin on the complete body was burnt and peeled up."
}
},
{
"from_name": "label",
"id": "4ea4403be8714b5c8db589d0c058c433",
"to_name": "text",
"type": "labels",
"value": {
"end": 12684,
"labels": [
"FAC"
],
"start": 12591,
"text": "On observing the body by turning its upside down, the complete body was burnt from back side."
}
},
{
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"id": "8cb2345ecb4e4f249f002f56d6d743b0",
"to_name": "text",
"type": "labels",
"value": {
"end": 12936,
"labels": [
"FAC"
],
"start": 12685,
"text": "On observing the private parts of the deceased through Pancha No.3 it was stated that private parts were burnt and there was no injury and to ascertain the actual cause of death, the dead body was sent to the Civil Surgeon, Murtizapur for post-mortem."
}
},
{
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"id": "c1f5afa01f6b470fa2334878a757ab1b",
"to_name": "text",
"type": "labels",
"value": {
"end": 13040,
"labels": [
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],
"start": 12937,
"text": "According to Dr.\nLande, who conducted the postmortem, on opening of trachea black particles were found."
}
},
{
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"id": "00ad303b82a441989d4cb20fca3013c2",
"to_name": "text",
"type": "labels",
"value": {
"end": 13125,
"labels": [
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],
"start": 13041,
"text": "He recorded that probable cause of death was 100% burn with bum shock with asphysix."
}
},
{
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"labels": [
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"start": 13125,
"text": "\nOn the basis of medical evidence the High Court again felt the necessity to ascertain whether the act of pouring kerosene oil was voluntarily by the victim or the act of a third person."
}
},
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"labels": [
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"start": 13312,
"text": "The High Court felt that the trial court has not even discussed the medical evidence or the inquest report and hastily reached the conclusion that it was a case of suicidal death."
}
},
{
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"id": "d93c0ee915f842d8bcf4fa8deb96ac92",
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"labels": [
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"text": "According to the High Court the entire approach of the trial court was thoroughly unsatisfactory and grossly erroneous."
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"labels": [
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],
"start": 13612,
"text": "After going through the evidence the High Court gave the following findings:-- That the deceased could not control her emotional out-burst even during the presence of her father -in-law while talking on telephone."
}
},
{
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"id": "8068f177bc4946c8a869478381afa46e",
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"value": {
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"labels": [
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],
"start": 13826,
"text": "The deceased was a young girl of 20 years."
}
},
{
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"id": "3fee66862a56422eb6367b8c1f0522d7",
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"value": {
"end": 13956,
"labels": [
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],
"start": 13869,
"text": "A determination to suffer extreme pain in silence could not be a matter of speculation."
}
},
{
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"id": "301952bfd99c40f298f5a0803c583c95",
"to_name": "text",
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"value": {
"end": 14034,
"labels": [
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],
"start": 13957,
"text": "\"In third degree injuries, as per Dr. Lande, the victim suffers extreme pain."
}
},
{
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"id": "273cd9fe3d7d480790be475707612f8e",
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"value": {
"end": 14109,
"labels": [
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],
"start": 14035,
"text": "Such injuries will make the person to give out cries and shouts for help.\""
}
},
{
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"value": {
"end": 14186,
"labels": [
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],
"start": 14109,
"text": "\nThe shouting and crying of the deceased was not only obvious but inevitable."
}
},
{
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"id": "56b99906d6034fdfbd5c2d5cc4ecce9f",
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"end": 14276,
"labels": [
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],
"start": 14187,
"text": "Undisputedly, none had heard the cries or shouts of the deceased while she was in flames."
}
},
{
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"id": "2f3e39e1cb3f4b82ac3bc448ee9fe518",
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"value": {
"end": 14352,
"labels": [
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],
"start": 14277,
"text": "This circumstance alone does not support the probability of suicidal death."
}
},
{
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"id": "5ae410e93f88465bafa9d4bde61083a9",
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"value": {
"end": 14462,
"labels": [
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],
"start": 14353,
"text": "884 The trial court has wrongly read the contents of letter Ext.\n62 and its interpretation is highly illegal."
}
},
{
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"id": "bade3aa2bfaf437b81c630ecdd075845",
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"value": {
"end": 14595,
"labels": [
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],
"start": 14462,
"text": "\nUndisputedly Sangita returned from Paratwada after \"Shrawani Mass\" just a week before the incident, probably by 7th September, 1984."
}
},
{
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"id": "834f2c41c9a94142bc7eed9595ba2e21",
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"value": {
"end": 14681,
"labels": [
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],
"start": 14596,
"text": "She was subjected' to insinuation and accused used to refer her as \"awara\", \"loafer\"."
}
},
{
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"id": "a75709b003f24a1f9b6ab341debc4d5d",
"to_name": "text",
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"value": {
"end": 14692,
"labels": [
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],
"start": 14682,
"text": "\"badmash\","
}
},
{
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"id": "4d3c780f87b045779d25eb87ad843a89",
"to_name": "text",
"type": "labels",
"value": {
"end": 14790,
"labels": [
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],
"start": 14693,
"text": "She wanted to convey this to her father through post card (Ext.62) which seemingly not delivered."
}
},
{
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"id": "d09b62c18f8244df8e36ed8a6c569efc",
"to_name": "text",
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"value": {
"end": 14855,
"labels": [
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],
"start": 14791,
"text": "By this letter she requested her father not to visit Murtizapur."
}
},
{
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"id": "ba46bd3a7e5d46d3a58da7cd6fc70c43",
"to_name": "text",
"type": "labels",
"value": {
"end": 14951,
"labels": [
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],
"start": 14856,
"text": "This letter never reached post off-ice and the message could not be passed to Madan Lai, PW. 8."
}
},
{
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"id": "f212d309a29c4b2aaa12b021238a2439",
"to_name": "text",
"type": "labels",
"value": {
"end": 15047,
"labels": [
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],
"start": 14952,
"text": "Before accomplishing her design to convey this message, she could not bring an end to her life."
}
},
{
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"id": "97d1f92e2729451f8384fcf0a157f32c",
"to_name": "text",
"type": "labels",
"value": {
"end": 15131,
"labels": [
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],
"start": 15048,
"text": "Sangita could not simply think of committing suicide while in possession of Ext.62."
}
},
{
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"id": "9b98b8cb409f4a628ab83b84d999a49f",
"to_name": "text",
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"value": {
"end": 15301,
"labels": [
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],
"start": 15131,
"text": "\nSangita at the time of incident, as per the post mortem report. was having, a pregnancy of 3-4 months and this is also not in tune with the act of commission of suicide."
}
},
{
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"id": "74c1a1984046422c8c3ce671b7466434",
"to_name": "text",
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"value": {
"end": 15409,
"labels": [
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],
"start": 15301,
"text": "\nThe Sessions Judge omitted to discuss the complete evidence of Dr. Lande and the post mortem report Ext.50."
}
},
{
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"id": "ac2781cfaf3347b5a4a17e37c014411a",
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"value": {
"end": 15492,
"labels": [
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],
"start": 15410,
"text": "As per post mortem report the eye-ball and tongue of the deceased were protruding."
}
},
{
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"id": "650fc57c436d485491ed92e52a8813ac",
"to_name": "text",
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"value": {
"end": 15547,
"labels": [
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],
"start": 15493,
"text": "Dozing of the blood was found from the nose and mouth."
}
},
{
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"id": "ec575354f42942ce989e5d5de56ce90b",
"to_name": "text",
"type": "labels",
"value": {
"end": 15614,
"labels": [
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],
"start": 15548,
"text": "In case of death due to burning such injuries cannot be sustained."
}
},
{
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"id": "ab3c261efac64de69c92a56dfdacffff",
"to_name": "text",
"type": "labels",
"value": {
"end": 15664,
"labels": [
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],
"start": 15614,
"text": "\nSangita was assaulted before she was set on fire."
}
},
{
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"id": "b0dd76570144420ca94abada18ab6a54",
"to_name": "text",
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"value": {
"end": 15773,
"labels": [
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],
"start": 15665,
"text": "There might be a definite attempt to cause death by strangulation before pouring kerosene oil on her person."
}
},
{
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"id": "8435789474d548448429a54c47691b47",
"to_name": "text",
"type": "labels",
"value": {
"end": 15923,
"labels": [
"FAC"
],
"start": 15774,
"text": "Relying of the evidence of PW.1, Shivraj, a neighbour who heard a shriek of' woman as a result of strangulation coming from the house of the accused."
}
},
{
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"id": "73b0c18eb2154db09b29df8256622bd2",
"to_name": "text",
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"value": {
"end": 16046,
"labels": [
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],
"start": 15924,
"text": "Taking into account tile medical evidence read with the testimony of PW.1, Shivraj, Sangita met with tile homicidal death."
}
},
{
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"id": "23894299441242b397cb92bf3eb84872",
"to_name": "text",
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"value": {
"end": 16113,
"labels": [
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],
"start": 16046,
"text": "\nA ball of cloth half burnt was also found by the side of the body."
}
},
{
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"id": "a593071c721c455cb842f2a0c800b072",
"to_name": "text",
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"value": {
"end": 16226,
"labels": [
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],
"start": 16114,
"text": "The ball was used for gagging her mouth as a precautionary measure to handicap her from raising cries or shouts."
}
},
{
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"id": "bf33fedd80364715bb6e268c0ebb85bf",
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"value": {
"end": 16357,
"labels": [
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],
"start": 16227,
"text": "PW.5, Bhanudas, had also noticed dragging marks in the court-yard and the deceased after assault was dragged and kept at the spot."
}
},
{
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"id": "6ac78f2776424135990f078436068f25",
"to_name": "text",
"type": "labels",
"value": {
"end": 16408,
"labels": [
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],
"start": 16357,
"text": "\nWhile in flames Sangita did not make any movement."
}
},
{
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"id": "d71fb24fca814a2cb4352b4620df1cdd",
"to_name": "text",
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"value": {
"end": 16439,
"labels": [
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],
"start": 16409,
"text": "She was completely motionless."
}
},
{
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"id": "d51eb68fd4f84148994b37f931c5d82d",
"to_name": "text",
"type": "labels",
"value": {
"end": 16521,
"labels": [
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],
"start": 16440,
"text": "The latching of doors of the compound was not accepted as an act of the deceased."
}
},
{
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"id": "abaee975e99a4ae6881ba263612c6047",
"to_name": "text",
"type": "labels",
"value": {
"end": 16676,
"labels": [
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],
"start": 16522,
"text": "Latching of doors and pouring of kerosene after assault was a farcical venture skilfully and conveniently made to bring colour of suicide to the incident."
}
},
{
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"id": "6a8e49cc1f1c44a68183234f9d914249",
"to_name": "text",
"type": "labels",
"value": {
"end": 16776,
"labels": [
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],
"start": 16676,
"text": "\n885 The High Court then posed the question as to who is responsible for homicidal death of Sangita."
}
},
{
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"id": "d01f724f976e4d36aa4e6961f49b74ef",
"to_name": "text",
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"value": {
"end": 16855,
"labels": [
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],
"start": 16777,
"text": "It was held that it could not be an act of an individual It was joint venture."
}
},
{
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"id": "7443f385ba2343e3b078a97953128872",
"to_name": "text",
"type": "labels",
"value": {
"end": 16884,
"labels": [
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],
"start": 16856,
"text": "There is no direct evidence."
}
},
{
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"id": "245e38f88d7a4fcfb80cfecb3444d6b0",
"to_name": "text",
"type": "labels",
"value": {
"end": 17017,
"labels": [
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],
"start": 16885,
"text": "Undisputedly the payment of Rs.20,000/- was not made nor the tither items mentioned in Ext. 73 were given till the date of incident."
}
},
{
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"id": "fd355e074e7c4e728eb0dc6271b30c48",
"to_name": "text",
"type": "labels",
"value": {
"end": 17221,
"labels": [
"FAC"
],
"start": 17017,
"text": "\nOn her second visit, the deceased had disclosed to her father, Madan Lal. that the members of in-laws' family had beaten and ill-treated her for the reason of non-fulfillment of dowry and other articles."
}
},
{
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"id": "e1db41eb2fb24ed08b200506409529d9",
"to_name": "text",
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"value": {
"end": 17377,
"labels": [
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],
"start": 17222,
"text": "A reading of the letter indicates that the accused persons had very serious grievance against Sangita and her parents for non fulfillment of dowry demands."
}
},
{
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"id": "2e92676d7e7c4eed868f2ddfc459efa9",
"to_name": "text",
"type": "labels",
"value": {
"end": 17552,
"labels": [
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],
"start": 17378,
"text": "Recovery of handkerchief at the instance of accused No. 1 in pursuance of a disclosure statement and the seizure thereof vide Ext.69 from a drawer of the table of the office."
}
},
{
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"id": "c1c8a347e48e4adca55049244681e637",
"to_name": "text",
"type": "labels",
"value": {
"end": 17597,
"labels": [
"FAC"
],
"start": 17553,
"text": "The handkerchief was smelling, kerosene oil."
}
},
{
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"id": "07983f43f8dd4ded87738d23f913b5ce",
"to_name": "text",
"type": "labels",
"value": {
"end": 17697,
"labels": [
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],
"start": 17598,
"text": "It was concealed at a place which was not normally or ordinarily used for keeping the handkerchief."
}
},
{
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"id": "ce93921c7ce04020bf21d0a1dd5c2186",
"to_name": "text",
"type": "labels",
"value": {
"end": 17753,
"labels": [
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],
"start": 17697,
"text": "\nThis handkerchief was used at the time of the incident."
}
},
{
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"id": "3bff4bb8f068404ea1ee8f27e0b34eb3",
"to_name": "text",
"type": "labels",
"value": {
"end": 17863,
"labels": [
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],
"start": 17753,
"text": "\nNone of the accused persons made any attempt to reach the spot even though they noticed the death of Sangita."
}
},
{
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"id": "b1db424e790946ab938ad03c7bc16947",
"to_name": "text",
"type": "labels",
"value": {
"end": 17905,
"labels": [
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],
"start": 17864,
"text": "They merely allowed the body to be burnt."
}
},
{
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"id": "4d45371de6674dd38901d38288de008b",
"to_name": "text",
"type": "labels",
"value": {
"end": 18049,
"labels": [
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],
"start": 17906,
"text": "Accused persons had quoted exact time of death in Ext.82 which means that they were mentally alert and conscious of the happening in the house."
}
},
{
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"id": "54c1d61358b64fbd82cf83a0db2751a3",
"to_name": "text",
"type": "labels",
"value": {
"end": 18148,
"labels": [
"FAC"
],
"start": 18049,
"text": "\nThe refusal to disclose the death of Sangita to the chowkidar of the locality, PW.2, Rahadursingh."
}
},
{
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"id": "00b96ea821044acda2f203b466fa2be8",
"to_name": "text",
"type": "labels",
"value": {
"end": 18277,
"labels": [
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],
"start": 18149,
"text": "The meeting with chowkidar Bahadursingh was falsely denied in the statement under Section 313 of the Code of Criminal Procedure."
}
},
{
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"id": "094a5c79dec94a97838b081354a02182",
"to_name": "text",
"type": "labels",
"value": {
"end": 18345,
"labels": [
"FAC"
],
"start": 18277,
"text": "\nHomicidal death occurred by Sangita while she was in their custody."
}
},
{
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"id": "406c110d131a4ea1929ee885cf8883ac",
"to_name": "text",
"type": "labels",
"value": {
"end": 18421,
"labels": [
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],
"start": 18346,
"text": "The incident with its gravity and extent cannot in any manner go unnoticed."
}
},
{
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"id": "e4e5631f084046d59048a819a75d31eb",
"to_name": "text",
"type": "labels",
"value": {
"end": 18497,
"labels": [
"FAC"
],
"start": 18422,
"text": "As such the accused persons were duty bound to offer plausible explanation."
}
},
{
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"id": "d68018ef80ae497f936c064b2c9d95c4",
"to_name": "text",
"type": "labels",
"value": {
"end": 18525,
"labels": [
"FAC"
],
"start": 18498,
"text": "Their action was concerted."
}
},
{
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"id": "d3d4c892ceae447ba478907731110899",
"to_name": "text",
"type": "labels",
"value": {
"end": 18543,
"labels": [
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],
"start": 18526,
"text": "well thought out."
}
},
{
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"id": "6f6bdbf89179458ea9de3a609cb9d27a",
"to_name": "text",
"type": "labels",
"value": {
"end": 18557,
"labels": [
"FAC"
],
"start": 18544,
"text": "well planned."
}
},
{
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"id": "1ef7e9a53fd14d849acd19be1833f95a",
"to_name": "text",
"type": "labels",
"value": {
"end": 18706,
"labels": [
"FAC"
],
"start": 18557,
"text": "\nWith the aforesaid findings all the accused persons were found guilty by the High Court and the appellants have come up in appeal before this Court."
}
},
{
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"id": "e59166f24f9046d88f1535b349aa266f",
"to_name": "text",
"type": "labels",
"value": {
"end": 18842,
"labels": [
"FAC"
],
"start": 18706,
"text": "\nThis court on application of appellant Nos. 3 and 4 i.e.\nanother-in-law and sister-in-law of the deceased, admitted them to be on hail."
}
},
{
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"id": "ad48d7f25e5c4042bbc1c981c9e3b7c3",
"to_name": "text",
"type": "labels",
"value": {
"end": 19002,
"labels": [
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],
"start": 18842,
"text": "\nApart from the inferences noticed by the High Court there are certain other features in the post mortem report Ext. 15 which may also be noticed at this state."
}
},
{
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"id": "0ae763966a2148788cd3068a98ce9bef",
"to_name": "text",
"type": "labels",
"value": {
"end": 19142,
"labels": [
"ANALYSIS"
],
"start": 19003,
"text": "It is stated in paragraph 13 of the post mortem report that the whole (if skin of face 886 was burnt and Covered at places with black soot."
}
},
{
"from_name": "label",
"id": "7cebb18561cd46a69ab8182bde401694",
"to_name": "text",
"type": "labels",
"value": {
"end": 19205,
"labels": [
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],
"start": 19143,
"text": "Eye ball slightly protruding Tongue was protruding from mouth."
}
},
{
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"id": "f4157e8340b648dea767b9dce06864ec",
"to_name": "text",
"type": "labels",
"value": {
"end": 19250,
"labels": [
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],
"start": 19206,
"text": "Blood stained discharge from nose and mouth."
}
},
{
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"id": "f40a7b81ace34ca09677ccb02a4ce927",
"to_name": "text",
"type": "labels",
"value": {
"end": 19341,
"labels": [
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],
"start": 19251,
"text": "In paragraph 17 it is noticed heirs of the scalp, eye lashes, both ears, eyes, whole neck."
}
},
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"text": "whole chest."
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"labels": [
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"text": "whole abdomen suffer from burns."
}
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"text": "\nButtock and pubic hairs also burnt."
}
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"text": "Black soot was present over burnt area of face, chest, abdomen."
}
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"start": 19488,
"text": "In paragraph 19 it is stated Brain & Meninges congested."
}
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{
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"id": "c9553f7d6ca24b5bb4486a71c225d62d",
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"start": 19545,
"text": "In paragraph 20 it is stated Larynx."
}
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"end": 19632,
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"start": 19581,
"text": "Trachea and Bronchi-congested, on opening, troches."
}
},
{
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],
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"text": "black particles seen inside human."
}
},
{
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"id": "96c15eb220ce44509c86ec1be406d98a",
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"value": {
"end": 19699,
"labels": [
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],
"start": 19668,
"text": "Right lung left lung-congested."
}
},
{
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"id": "e49b710d12f24522b76114bfb49f2ef8",
"to_name": "text",
"type": "labels",
"value": {
"end": 19761,
"labels": [
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],
"start": 19700,
"text": "Right ventricle of the heart was full whereas left was empty."
}
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"id": "6985a6186df14c56a07f42924b39a5a5",
"to_name": "text",
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"end": 19824,
"labels": [
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],
"start": 19762,
"text": "In paragraph 21 it is stated liver and gall bladder-congested."
}
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{
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"id": "c5caf73545c2473081218584ae88a0b8",
"to_name": "text",
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"value": {
"end": 19862,
"labels": [
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],
"start": 19825,
"text": "pancreas and suprarenals - congested."
}
},
{
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"id": "da2b9707eb3b49069682d8a7ee23219b",
"to_name": "text",
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"value": {
"end": 19982,
"labels": [
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],
"start": 19863,
"text": "spleen - congested, kidneys - congested and bladder - empty, i.e. parenchymatous organs show intense venous congestion."
}
},
{
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"id": "40ae7f5be89147f9ac2994f15392d62c",
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"value": {
"end": 20199,
"labels": [
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"start": 19982,
"text": "\nDr. K.S. Narayan Reddy, M.D. D.C.P., M.I.A.F.M., F.I.M.S.A.,F.A.F.Sc., Professor of Forensic Medicine, Osmania Medical College Hyderabad in his well known treatise THE ESSENTIALS OL FFORENSIC MEDICINE AND TOXICOLOGY."
}
},
{
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"id": "fa62d61451584d8ba194f6c729242456",
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"value": {
"end": 20312,
"labels": [
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],
"start": 20200,
"text": "Sixth Education at page 255 gives descriptions of internal as well as external symptoms of manual strangulation."
}
},
{
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"value": {
"end": 20362,
"labels": [
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],
"start": 20313,
"text": "At page 255 while dealing with signs of asphyxia."
}
},
{
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"to_name": "text",
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"value": {
"end": 20548,
"labels": [
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],
"start": 20363,
"text": "the learned author observes : \"The face may be livid, blotchy and swollen, the eyes wide open, bulging and suffused, the pupils dialated, the tongue swollen, dark-cloured and protruded."
}
},
{
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"id": "66fbf048a6d0478ba141bbb5939e0aef",
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"value": {
"end": 20654,
"labels": [
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],
"start": 20549,
"text": "Petechial hemorrhages are common into the skin of the eyelids, face, forehead, behind the cars and scalp."
}
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"end": 20757,
"labels": [
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],
"start": 20655,
"text": "Bloody froth may escape front the mouth and nostrils and there may he bleeding from the nose and cars."
}
},
{
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"id": "78719581aeac4f7fba8d838f5620c03e",
"to_name": "text",
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"value": {
"end": 20789,
"labels": [
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"start": 20758,
"text": "The hands are usually clenched."
}
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"end": 20889,
"labels": [
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],
"start": 20790,
"text": "The genital organs may be congested and there may be discharge of urine, faeces and seminal fluid.\""
}
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"labels": [
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],
"start": 20890,
"text": "While internal injuries described little later included as under \"The larynx. trachea and bronchi are congested and contain frothy."
}
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"labels": [
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"text": "often blood stained mucus."
}
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"end": 21186,
"labels": [
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"text": "\n The lungs are markedly congested and show ecchymoses and larger subaerial hemorrhages.\n "
}
},
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"id": "64268719943841dcb96e3fa3ac41d470",
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"value": {
"end": 21221,
"labels": [
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],
"start": 21186,
"text": "Dark fluid blood exudes on section."
}
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{
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"id": "d193070ccd06472ebef70efb2f904883",
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"value": {
"end": 21331,
"labels": [
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],
"start": 21222,
"text": "Silvery- looking spots under the pleural surface due to rupture of the air cells which disappear on pricking."
}
},
{
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"id": "760d07964b1c46f7819a4c8848336c80",
"to_name": "text",
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"value": {
"end": 21364,
"labels": [
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"text": "are seen in more than 505 cases."
}
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"end": 21521,
"labels": [
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],
"start": 21364,
"text": "\n The parenchymatous organs show intense venous congestion and in young persons ecchymoses are usually seen on the heart and kidneys."
}
},
{
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"id": "cb0b986422c541389b0aad2a21c709a6",
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"value": {
"end": 21577,
"labels": [
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],
"start": 21522,
"text": "The brain is contested and shows petechial hemorrhages."
}
},
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"id": "2781abcbdacf47578ceafe198e6dcbd9",
"to_name": "text",
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"value": {
"end": 21653,
"labels": [
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],
"start": 21578,
"text": "The right side of the heart is full of dark fluid blood and the left empty."
}
},
{
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"id": "cf45242f67f448568cc76f4451f7cee1",
"to_name": "text",
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"value": {
"end": 21873,
"labels": [
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],
"start": 21653,
"text": "\n Both the cavities are full if the heart stopped during diastole.\"\nWhereas in burn injuries the learned author at pages 237-238 observes.\"the 887 brain is usually shrunken, firm and yellow to light brown due to cooking."
}
},
{
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"id": "7ae3ad73f57245ce9d9175f14f0a8151",
"to_name": "text",
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"value": {
"end": 21903,
"labels": [
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],
"start": 21874,
"text": "The dura matter is leathery.\""
}
},
{
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"id": "8d084b96126d4d80905549258e69d47e",
"to_name": "text",
"type": "labels",
"value": {
"end": 21943,
"labels": [
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],
"start": 21904,
"text": "(dura matter is meninges of the brain)."
}
},
{
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"id": "1b1bc178eea046c7821a542e3d41f756",
"to_name": "text",
"type": "labels",
"value": {
"end": 21987,
"labels": [
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],
"start": 21944,
"text": "If the death has occoured from suffocation."
}
},
{
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"id": "79c9457e9eb14df7aa7cb624a3a3c8d8",
"to_name": "text",
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"value": {
"end": 22085,
"labels": [
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],
"start": 21988,
"text": "aspirated blackish coal particles are seen in the nose, mouth and whole of the respiratory track."
}
},
{
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"id": "4fd405ba321c4961ba2e15887260766b",
"to_name": "text",
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"value": {
"end": 22162,
"labels": [
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],
"start": 22086,
"text": "Their presence is proof that the victim was alive %,.hen tile fire occurred."
}
},
{
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"id": "5b0b81c414f04f40a0abfe47ee6544ac",
"to_name": "text",
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"value": {
"end": 22201,
"labels": [
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],
"start": 22163,
"text": "The pleurae are contested or inflamed."
}
},
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"id": "f10124779361479bb5c44c9e41ff6360",
"to_name": "text",
"type": "labels",
"value": {
"end": 22234,
"labels": [
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],
"start": 22202,
"text": "The lungs are usually congested."
}
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{
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"id": "fe87e6cf408d41e18dd780b2c154b21d",
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"value": {
"end": 22274,
"labels": [
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],
"start": 22235,
"text": "may be strunken and rarely anemic......"
}
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"value": {
"end": 22324,
"labels": [
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],
"start": 22275,
"text": "Visceral congestion is marked in many cases......"
}
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"value": {
"end": 22372,
"labels": [
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],
"start": 22325,
"text": "The heart is usually filled with clotted blood."
}
},
{
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"id": "ef1a7d99a1e0423f851646bbcdad9461",
"to_name": "text",
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"value": {
"end": 22440,
"labels": [
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],
"start": 22372,
"text": "\n'The adarme;s (glands above kidneys) may he enlarged and congested."
}
},
{
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"id": "71cd8912913a4a73a31acc3439fea861",
"to_name": "text",
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"value": {
"end": 22600,
"labels": [
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],
"start": 22440,
"text": "\nSome of these symptoms or internal and external injuries are common in case of strangulation and burn like face is swollen and distorted, the tongue protruded."
}
},
{
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"id": "112518537b634009aaae9d6716343a21",
"to_name": "text",
"type": "labels",
"value": {
"end": 22678,
"labels": [
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],
"start": 22601,
"text": "the lungs are usually congested visceral congestions is marked in many cases."
}
},
{
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"id": "e31a768292c045beab90747a9fb79234",
"to_name": "text",
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"value": {
"end": 22798,
"labels": [
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],
"start": 22678,
"text": "\nWhat is to he noticed in the present case is that there are hardly \"any cries\" as per the defence also by the deceased."
}
},
{
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"id": "0957eb0299ee46c79d4c3b9fa2cb0d6d",
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"labels": [
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"start": 22798,
"text": "\nThis is not possible even in case of suicide."
}
},
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"id": "c1d8aa27a72b4257b9f2541d3d719f52",
"to_name": "text",
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"value": {
"end": 22939,
"labels": [
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],
"start": 22845,
"text": "Even if the burns ,ire inflicted with suicidal intent tile victim is bound to cry out of pain."
}
},
{
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"id": "a326718602a4485898d9a4d47ad73630",
"to_name": "text",
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"value": {
"end": 23118,
"labels": [
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],
"start": 22940,
"text": "Admittedly there was no cries and, therefore, it was not a Case of suicidal burn but the deceased was put in a condition where she could not cry and yet get burnt by third party."
}
},
{
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"id": "28d8ed26d1154429b16d647bbd02f3e1",
"to_name": "text",
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"value": {
"end": 23271,
"labels": [
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],
"start": 23118,
"text": "\nAs is clear from the aforesaid commentary of Dr. K.S.\nNarayan Reddy that if it was a case of merely burns the blood of the heart would have got clotted."
}
},
{
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"id": "d6662886b36944a4a34c6d9230c72fb9",
"to_name": "text",
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"value": {
"end": 23342,
"labels": [
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],
"start": 23272,
"text": "Even the postmortem report does not say that asphvsix was due to burn."
}
},
{
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"id": "5e31c1d733c24ea9964b88e13d37ee62",
"to_name": "text",
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"value": {
"end": 23423,
"labels": [
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],
"start": 23343,
"text": "Coupled with all the internal injuries which occur in the case of strangulation."
}
},
{
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"id": "3e491fad68214e82b44b7937c773a6a3",
"to_name": "text",
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"value": {
"end": 23449,
"labels": [
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],
"start": 23424,
"text": "are present in this case."
}
},
{
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"id": "ab2ae894cf2840b78059699441918b94",
"to_name": "text",
"type": "labels",
"value": {
"end": 23640,
"labels": [
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],
"start": 23449,
"text": "\nAs pointed out by the High Court there is no direct evidence to connect the appellants with the offence of murder and the prosecution entirely rests its case only on circumstantial evidence."
}
},
{
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"id": "cd3561d03eb447a7a3ad22f49faab05f",
"to_name": "text",
"type": "labels",
"value": {
"end": 23796,
"labels": [
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],
"start": 23641,
"text": "There is a series of decisions of this Court propounding the cardinal principles to be followed in cases in which the evidence is of circumstantial nature."
}
},
{
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"id": "bf3c081a96c34911a2be57d23435e554",
"to_name": "text",
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"value": {
"end": 24090,
"labels": [
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],
"start": 23797,
"text": "It is not necessary to repapitulate all those decisions except stating the essential ingredients as noticed by Pandian, J.\nin the case reported as The State of Uttar Pradesh v. Dr.\nRavindra Prakesh J. in the case 2 SC 114 at 121, to prove quilt of an accused person by circumstantial evidence."
}
},
{
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"id": "3e0b975c20494d93bed757e8b15fd5bd",
"to_name": "text",
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"value": {
"end": 24483,
"labels": [
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],
"start": 24091,
"text": "They are:- (1) The circumstance from which tile conclusion is drawn should be fully proved; (2) the circumstances should he conclusive in nature; 888 (3)all the facts so established should he consistent only with the hypothesis of guilt and inconsistent with innocence: (4)the circumstances should. to a moral certainty, exclude the possibility of guilt of any person other than the accused.\""
}
},
{
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"id": "ac1e5994c4644cc6ac3dd570e5849ebe",
"to_name": "text",
"type": "labels",
"value": {
"end": 24840,
"labels": [
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],
"start": 24483,
"text": "\nNow let us examine the impelling circunistances attending the case and examine whether tile cumulative effect of those circumstances negatives tile innocence of tile appellants and serves a definite pointer towards their guilt and unerringly leads to the conclusion that with all human probability the offence was committed by the appellants and none else."
}
},
{
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"id": "1d7e9ec2d5134ed3897d814386e42bc8",
"to_name": "text",
"type": "labels",
"value": {
"end": 24927,
"labels": [
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],
"start": 24840,
"text": "\nThere is no doubt that when the incident occurred there was no outsider its the house."
}
},
{
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"id": "8252c541157a463d8c62953583d464b7",
"to_name": "text",
"type": "labels",
"value": {
"end": 25188,
"labels": [
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],
"start": 24928,
"text": "The circumstances which ire establislied its having closely linked up with one another may be noticed 1) The motive for the occurrence.\n 2) The place where the tragic incident occurred was in possession and occupation of the appellants."
}
},
{
"from_name": "label",
"id": "81d8870985f248ec8527da18d172a864",
"to_name": "text",
"type": "labels",
"value": {
"end": 25351,
"labels": [
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],
"start": 25188,
"text": "\n 3) The occurrence had happened in the wee hours when body else would have had ingress at the place where the incident allegedly occurred."
}
},
{
"from_name": "label",
"id": "97bcdd091a2245a98eb9462331465258",
"to_name": "text",
"type": "labels",
"value": {
"end": 25416,
"labels": [
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],
"start": 25351,
"text": "\n 4) The appellants admit their presence."
}
},
{
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"id": "48fa53b398a642ae961ae1dbf3016859",
"to_name": "text",
"type": "labels",
"value": {
"end": 25554,
"labels": [
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],
"start": 25416,
"text": "\n The positive features, which occurred, had it been it pure case of burning, there would he evidence of vomiting."
}
},
{
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"id": "ab559158735c4bf0baae4d145d339c75",
"to_name": "text",
"type": "labels",
"value": {
"end": 25659,
"labels": [
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],
"start": 25554,
"text": "\n 6) The positive opinion of the doctor that the death was due to asphysix as well apart from 100% burns."
}
},
{
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"end": 25721,
"labels": [
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],
"start": 25659,
"text": "\n 7) The deceased was carrying fetus of 3-4 months 8)"
}
},
{
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"end": 25859,
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"start": 25722,
"text": "The extensive use of kerosene as seen from the burn shows that the deceased was practically 889 drenched as sort of a bath with kerosene."
}
},
{
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"id": "0a748ce95e9f4aeb8515224dd84d3be1",
"to_name": "text",
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"end": 25958,
"labels": [
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],
"start": 25861,
"text": "9) Total absence of any shout or cries except one which was heard by way o f strangulation by PW."
}
},
{
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"id": "f4238cebc3634a9abd33ad7a7e7f569f",
"to_name": "text",
"type": "labels",
"value": {
"end": 25965,
"labels": [
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],
"start": 25959,
"text": "1.\n 10"
}
},
{
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"to_name": "text",
"type": "labels",
"value": {
"end": 26004,
"labels": [
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],
"start": 25965,
"text": ") Blood in heart was not found clotted."
}
},
{
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"id": "f98ad242081f4dd4a72b17d491e48009",
"to_name": "text",
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"value": {
"end": 26253,
"labels": [
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],
"start": 26004,
"text": "\n Right ventricle heart was full of blood but left ventricle wits empty.\n 11) Besides total burning of neck was to destroy evidence of attempted strangulation.\n 12) In burn brain is usually shrunken and firm whereas in strangulation it is congested."
}
},
{
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"id": "e08d4754cd9c47c0a2316d8b977c0ad4",
"to_name": "text",
"type": "labels",
"value": {
"end": 26367,
"labels": [
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],
"start": 26253,
"text": "\n As noticed by Pandian, J. in the aforesaid decision, opinion of Taylor in Medical Jurisprudence is quoted below."
}
},
{
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"id": "994402e593534f1f971638e9df9be735",
"to_name": "text",
"type": "labels",
"value": {
"end": 26629,
"labels": [
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],
"start": 26368,
"text": "It reads thus: \"Not uncommonly the victim who inhales smoke also vomits and inhales some vomit, presumably due to bouts of coughing, and plugs of regur- gitated stomach contents mixed with soot may be found in the smaller bronchi, in the depths of the lungs.\"\n "
}
},
{
"from_name": "label",
"id": "b38c8dc8949743f4a4c529fd76f7ee1c",
"to_name": "text",
"type": "labels",
"value": {
"end": 26767,
"labels": [
"ANALYSIS"
],
"start": 26629,
"text": "By the time a person could take a bath of kerosene she is likely to get fainted and would not be in a position thereafter to burn herself."
}
},
{
"from_name": "label",
"id": "422526c63f094485988744659035b5d3",
"to_name": "text",
"type": "labels",
"value": {
"end": 26891,
"labels": [
"ANALYSIS"
],
"start": 26768,
"text": "A total burning, of the face and the neck shows that even at portions where she was not wearing any clothes were not burnt."
}
},
{
"from_name": "label",
"id": "bc2f1c093d2e4c2ca67fe1c36f321777",
"to_name": "text",
"type": "labels",
"value": {
"end": 26971,
"labels": [
"ANALYSIS"
],
"start": 26892,
"text": "It could only be possible if she had poured kerosene on her head and face also."
}
},
{
"from_name": "label",
"id": "31274411417d44ac8c849240a32870cd",
"to_name": "text",
"type": "labels",
"value": {
"end": 27100,
"labels": [
"ANALYSIS"
],
"start": 26971,
"text": "\n It is not understood as to how the unposted post card found near the dead body was not burnt when the whole body had got burnt."
}
},
{
"from_name": "label",
"id": "0aeb48a955a146efbe12c1caa6b82953",
"to_name": "text",
"type": "labels",
"value": {
"end": 27206,
"labels": [
"RATIO"
],
"start": 27101,
"text": "It in fact indicates that the planting of the post card was to show that it was a case of suicidal death."
}
},
{
"from_name": "label",
"id": "9d112448a9da442eb179908badeb96a4",
"to_name": "text",
"type": "labels",
"value": {
"end": 27417,
"labels": [
"RATIO"
],
"start": 27206,
"text": "\n In passes all human probabilities that the appellants have satisfied themselves by watching through the window the burning of daughter-in-law without any due and cry or without and serious attempt to save her."
}
},
{
"from_name": "label",
"id": "f2c13400d110463888d90ec32ad5f668",
"to_name": "text",
"type": "labels",
"value": {
"end": 27493,
"labels": [
"RATIO"
],
"start": 27417,
"text": "\n We are thus satisfied that it was a case of murder and not suicidal death."
}
},
{
"from_name": "label",
"id": "62576f5c7ba54402a475ae6ac15faab9",
"to_name": "text",
"type": "labels",
"value": {
"end": 27576,
"labels": [
"RATIO"
],
"start": 27494,
"text": "So far as the accomplicity of appellants 1 and 2 are concerned, there is no doubt."
}
},
{
"from_name": "label",
"id": "d659e47c6c6943c0bf2069be1d218b34",
"to_name": "text",
"type": "labels",
"value": {
"end": 27733,
"labels": [
"RATIO"
],
"start": 27577,
"text": "But 890 it is not necessary if appellant Nos. 3-4 i.e. mother-in-law and sister-in-law of the deceased have also participated in the murder of the deceased."
}
},
{
"from_name": "label",
"id": "71b807b9e0be4d328b00c3eee1a035df",
"to_name": "text",
"type": "labels",
"value": {
"end": 27910,
"labels": [
"RPC"
],
"start": 27733,
"text": "\n For the aforesaid reasons we dismiss the appeal on behalf of appellant. Nos. 1 and 2 but give benefit of doubt to appellant Nos. 3 and 4 and accept the appeal on their behalf."
}
},
{
"from_name": "label",
"id": "85a02cd81d7642fc9b8acb72c22df262",
"to_name": "text",
"type": "labels",
"value": {
"end": 27942,
"labels": [
"RPC"
],
"start": 27911,
"text": "They are accordingly acquitted."
}
},
{
"from_name": "label",
"id": "6cffd079905f49fca9e05f18cd837f8f",
"to_name": "text",
"type": "labels",
"value": {
"end": 28010,
"labels": [
"RPC"
],
"start": 27943,
"text": "The convictions and sentences of appellant Nos. 1 and 2 are upheld."
}
},
{
"from_name": "label",
"id": "284c4d65f1eb4cbcad6581ef8fc384c6",
"to_name": "text",
"type": "labels",
"value": {
"end": 28017,
"labels": [
"RPC"
],
"start": 28010,
"text": "\n U. R."
}
},
{
"from_name": "label",
"id": "84a0591ddca941ca849593e01435f598",
"to_name": "text",
"type": "labels",
"value": {
"end": 28067,
"labels": [
"RPC"
],
"start": 28018,
"text": " Appeal dismissed."
}
}
]
}
] | 1,762 | {
"text": "PETITIONER:\nPRABHUDAYAL AND OTHERS\n\nVs.\n\nRESPONDENT:\nSTATE OF MAHARASHTRA\n\nDATE OF JUDGMENT14/05/1993\n\nBENCH:\nYOGESHWAR DAYAL (J)\nBENCH:\nYOGESHWAR DAYAL (J)\nKULDIP SINGH (J)\n\nCITATION: 1993 SCR (3) 878\n 1993 AIR 2164 JT 1993 (4) 475\n 1993 SCC (3) 573\n 1993 SCALE (2)941\n\nACT:\n%\nIndian Penal Code 1860-Ss. 302, 498A, 201 read with 34 and\nS. 306 read with 34-Burning of young married woman-Whether\ndeath by burning or strangulation-Whether suicide or\nhomicide-Held, facts indicate homicide, and death by\nstrangulation preceding burning.\nCircumstantial Evidence-Held, cumulative effect or\ncircumstances negatives innocence of father-in-Law and\nhusband--Mother-in-law and Sister-in-law may not have\nparticipated, hence, acquitted.\n\nHEADNOTE:\nSangita was married to accused 2 on 28th April, 1984. In\nthe intervening night of 14115 September 1984, the accused\nfound Sangita burning. Sangita's body suffered 100% burns\nand the smell of kerosene was noticed even in the spot\npanchnama. There had been problems relating to dowry, and\nshe had complained of ill-treatment and of being beaten\nbecause of failure to pay the dowry amount.\nThe trial judge acquitted accused 1-4 - her father-in-law,\nhusband, mother-in-law and sister-in-law respectively.\nThe High Court examined the evidence a fresh, while\ncastigating the trial judge for having gone merely on the\nstatement of the Public Prosecutor that only a case under\nSs. 306, 498-A and 34 was made out. The High Court\nConvicted the accused under S.302 r/w 34, S.201 r/w 34 and\n498-A r/w 34.\nPartly dismissing the appeal, this Court..\nHELD: 1. It was a case of murder and not suicidal death.\nIt is not possible that there were no 'cries' from the\ndeceased while she was burning. This is not possible even\nin a case of suicide.\nSome of the symptoms of internal and external injuries are\ncommon in\n879\ncase (if strangulation and burns. But some symptoms that\noccur in the case of strangulation, and not in case of\nburns, are present in this case.\nDr. K.S. Narayan Reddy, The Essentials of Forensic Medicine\nand Toxicology 6th edn. p. 55, relied on.\n\n2. The prosecution rests its case only on circumstantial\nevidence. Therefore, it is necessary to examine the\nimpelling circumstances attending the case and examine\nwhether the cumulative effect of those circumstances\nnegatives the innocence of the appellant-,; and serves a\ndefinite pointer towards their guilt and unerringly leads to\nthe conclusion that with all human probability the offence\nwas committed by the appellants and none else.\nState of U.P. v. Dr. Ravindra prakash Mittal, JT(1992) 2 SC\n114 at 121. applied.\nTaylor, Medical jurisprudence, relied on.\nOn an appreciation of the circumstances which arc\nestablished as being closely linked to one another, the\ncomplicity of appellants 1 and 2 is not in doubt. But it is\nnot necessary that appellants 3 and 4 also participated in\nthe murder of the deceased. They are given the benefit of\ndoubt and accordingly acquitted.\n\nJUDGMENT:CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 738 of 1992.\n From the Judgment and Order dated 16.11.1992 of the Bombay High Court in Crl. A. No. 148 of 1989.\nA.N. Mulla, Ms. Shefali Khanna and J.M. Khanna for the Appellant.\nS.B. Bhasme, S.M. Jadhav and A.S. Bhasme for the Respondents.\nThe Judgment of the Court was delivered by YOGESHWAR DAYAL, J.This is an appeal by the four accused persons against the judgment of the Bombay High Court dated 16th November. 1992. Appellant No. 1 who was accused No. 1 was tried for the offence of having 880 committed the murder of his daughter-in-law Sangita, wife of appellant No. 2 who was accused No.2, during the night between 14th September, 1984 and 15th September, 1984 at the residential house of the appellants at Murtizapur with common intention and also for having treated her with cruelty on account of dowry amount. In the alternative the appellants were also charged for the offence of having abetted the deceased Sangita in commission of suicide by subjecting her to cruelty. Appellant no.3, who was accused No.3, is the wife of accused No.1 and appellant No.4, who was accused No. 4. is their daughter. Appellants 1 to 4 are hereinafter called accused Nos. 1 to 4.\nThe story of the prosecution was as follows:- The accused run a printing press at their residence.\nMarriage of accused No. 2 was settled with the 5th daughter of Madan lal (PW. 8). Few days prior to the settlement of the marriage. marriage of her elder sister was also settled.\nAs such marriages of both the daughters i.e. Sangita and Hemlata were celebrated at Paratwada on 28th April, 1994.\nTalk over the marriage had taken place about a month prior to the marriage and the same was finalised after about 2 or 3 days of such talks. At the time of finalisation, accused No. 1 demanded Rs. 20,000 by way of hard cash as dowry, besides other articles, add he himself had given such demands in writing vide Ext. 73. Though agreed, Madan Lal, father of the deceased could not give Rs. 20,000 at the time of marriage. He also could not give the gold agreed, though he assured to comply with the demands later on getting the crops. After the marriage, on account of the month of Shrawan, and as per custom, Sangita resided with her parents. It was during her stay after the marriage that she was found disturbed and sullen. Though she herself did not give out the reason therefore, but on insistence by the father to know the reason she told him that accused No. 1 had an evil eve on her and that other members of the family used to beat and ill treat her because of the failure on the part of Madan Lai to pay the dowry amount. Though Madan lal assured that he would come down to Murtizapur and pursued the accused, but he could not visit Murtizapur. After the month of Shrawan, Sangita returned to Murtizapur but not communication was made about her safe return by the accused persons to her father. The accused persons had a telephone connection and Madan Lal (PW.8), two three days prior to the date of the incident contacted accused No. 1 on telephone. Accused No. 1 talked angrily with Madan Lal.\nMadan Lal then requested accused No. 1 to call Sangita on telephone. Sangita came on phone and in answer to his query she broke down and Stated weeping and told Madan lal as to why he did not send Ganesh Chaturthi Neg','Neg' means a customary offer that the father of the bride has to pay on an auspicious day. It varies according to financial capacity of the father. He told 881 Sangita that he had committed it mistake and assured that he would be sending it immediately. On the next day lie had got drawn a draft of Rs. 101/- on State Bank of India. Ext.\n74-A is the said draft. It was thereafter when Madan Lai was on a visit to Amravati that Madan Lal received a message about Sangita having got burnt on 15th September, 1984.\nDuring the night between 14th and 15th September. 1984 at about midnight the accused found Sangita not in her bed and smell of burning. They found that in the rear side open space Sangita was burning and lying down. According to the defence the doors were closed from inside and there was no access to the said open space. Accused No. 1 informed the police about the occurrence that he had seen through the window opening on the )pen space. Accused No. 1 at about 3.45 a.m. on 15th September, 1994 submitted it report (Ext.82) to the police wherein he had stated that about 2.\n10 a.m. in the night Sangita was found to be burnt and died in the bath-room. PW.9. Mundheh. the investigating Officer gave instructions to the accused persons not to disturb the situation. Initially on the report of the accused, accidental death was registered. PW9 when reached the spot on 15th September. 1984 at about 10.00 a.m. he made spot Panchnama vide ext.63. He also found a postcard. half burnt, (Ext. 62) by the side of the dead body. He thereafter drew inquest panchnama (Ext.64). PW. 1 Bhanudas acted as a panch.\nPW.9 having convinced that it was a case of murder, lodged it report on behalf of the State registering the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. Dr. Lande, PW.3, on 15th September, 1994 at about 5.00 p.m. conducted the post-mortem.\nThe Additional Sessions Judge on the basis of the material filed with the challan. on 30th September, 1994 trained a charge under Sections 302.499-A and 201 read with Section 34 of the Indian Penal code and thereafter recorded the evidence of PWs. 1 to 9. Thereafter by an order dated 22nd August, 1988 the trial court framed an additional charge for the offence punishable under Section 306 read with Section 34 of the Indian Penal Code. The accused persons challenged the framing of the additional charge before the High Court but the challenge was defeated. The accused persons were accordantly tried. Their defence through out was a total denial.\n It appears that during arguments the Prosecutor did not think it proper to press for the diffence punishable under Section 302 read with Section 34 of the Indian penal Code.\nAccording to the Prosecutor the only case made out was for the offences punishable under Sections 306, 498-A read with Section 34 of the Indian Penal Code. The trial court endorsed the view of the Public Prosecutor and did not 882 discuss the relevant evidence it all on the charge of Section 302 and recorded a finding of acquittal in that behalf. He also held that the charge of Section 201 also did not survive.\nThe learned trial Judge also held that the prosecution hits not been able it) prove that the accused persons with their common intention treated Sangita with cruelty or thereby abetted her to commit suicide. He accordingly acquired all the accused persons for the offence punishable under Section 306 read with Section 34 of the Indian Penal Code.\nThe State filed all appeal against their order of acquittal and the High Court on appeal castigated the trial judge for having gone merely oil the statement of the public Prosecutor without applying his own mind on the evidence.\nThe High Court examined the evidence afresh.\nThe High Court posed a question is to whether the nature of death of Sangita was suicidal or homicidal and ultimately gave a finding that it was a case of homicidal death and found all the accused guilty under Section 302 read With Section 34 and Section 201 read with Section 34. The accused were also find guilty under Sections 498-A read with Section 34. For the offence under Section 302 read with Section 34 all of them were sentenced to rigorous imprisonment `for life and different fines. For the offence under Section 201 read with Section 34 all the accused persons were sentenced to rigorous imprisonment for three years and each of them was fined Rs.1,000/-. For the offence under Section 498-A read with Section 34 all of them were sentenced to one year rigorous imprisonment and a fine of Rs.2,000.\nLearned counsel for the defence, however, submitted before the High Court that the charge under Section 302 read with Section 34 did not survive tit view of the concession made by the Prosecutor and also in view of the framing of the additional charge under Section 306 read with Section 34.\nIt was also submitted that the framing of the additional charge negated the theory of murder in pith and substance.\nThe High Court, however negatived this submission and on consideration of the evidence convicted all the accused persons as stated above.\nBody of Sangita suffered 100% burn injuries and smell of kerosene was even noticed in the spot panchanama. The description 1005 burn does not really fully 883 convey the condition of the body. Asper the inquest report the dead body was lying on its back in the open court-yard at the back side of the house of the accused. Both the legs were partly stiffen. Both the hands were partly bent and lying at side. Hairs on the head burnt and-even fleshy portion is also burnt at some places. There was slight hair at some portion of head. Complete body was burnt and skin on it also peeled up. Face had became red and black. Eyes were closed and burnt. Nose was burnt and blood was cozing from the nose and mouth. Tongue was slightly protruding out.\nBrassier of the left side was totally burnt and right side was partly burnt. Ash of burnt cloth was visible on stomach. A partly burnt small piece of the border of saree was lying there. Some pieces of saree, burnt and sticking each other, were lying on the stomach. Skin on palm of both hands was peeled up and was appearing reddish. Skin on the complete body was burnt and peeled up. On observing the body by turning its upside down, the complete body was burnt from back side. On observing the private parts of the deceased through Pancha No.3 it was stated that private parts were burnt and there was no injury and to ascertain the actual cause of death, the dead body was sent to the Civil Surgeon, Murtizapur for post-mortem. According to Dr.\nLande, who conducted the postmortem, on opening of trachea black particles were found. He recorded that probable cause of death was 100% burn with bum shock with asphysix.\nOn the basis of medical evidence the High Court again felt the necessity to ascertain whether the act of pouring kerosene oil was voluntarily by the victim or the act of a third person. The High Court felt that the trial court has not even discussed the medical evidence or the inquest report and hastily reached the conclusion that it was a case of suicidal death. According to the High Court the entire approach of the trial court was thoroughly unsatisfactory and grossly erroneous. After going through the evidence the High Court gave the following findings:-- That the deceased could not control her emotional out-burst even during the presence of her father -in-law while talking on telephone. The deceased was a young girl of 20 years. A determination to suffer extreme pain in silence could not be a matter of speculation. \"In third degree injuries, as per Dr. Lande, the victim suffers extreme pain. Such injuries will make the person to give out cries and shouts for help.\"\nThe shouting and crying of the deceased was not only obvious but inevitable. Undisputedly, none had heard the cries or shouts of the deceased while she was in flames. This circumstance alone does not support the probability of suicidal death.\n884 The trial court has wrongly read the contents of letter Ext.\n62 and its interpretation is highly illegal.\nUndisputedly Sangita returned from Paratwada after \"Shrawani Mass\" just a week before the incident, probably by 7th September, 1984. She was subjected' to insinuation and accused used to refer her as \"awara\", \"loafer\". \"badmash\", She wanted to convey this to her father through post card (Ext.62) which seemingly not delivered. By this letter she requested her father not to visit Murtizapur. This letter never reached post off-ice and the message could not be passed to Madan Lai, PW. 8. Before accomplishing her design to convey this message, she could not bring an end to her life. Sangita could not simply think of committing suicide while in possession of Ext.62.\nSangita at the time of incident, as per the post mortem report. was having, a pregnancy of 3-4 months and this is also not in tune with the act of commission of suicide.\nThe Sessions Judge omitted to discuss the complete evidence of Dr. Lande and the post mortem report Ext.50. As per post mortem report the eye-ball and tongue of the deceased were protruding. Dozing of the blood was found from the nose and mouth. In case of death due to burning such injuries cannot be sustained.\nSangita was assaulted before she was set on fire. There might be a definite attempt to cause death by strangulation before pouring kerosene oil on her person. Relying of the evidence of PW.1, Shivraj, a neighbour who heard a shriek of' woman as a result of strangulation coming from the house of the accused. Taking into account tile medical evidence read with the testimony of PW.1, Shivraj, Sangita met with tile homicidal death.\nA ball of cloth half burnt was also found by the side of the body. The ball was used for gagging her mouth as a precautionary measure to handicap her from raising cries or shouts. PW.5, Bhanudas, had also noticed dragging marks in the court-yard and the deceased after assault was dragged and kept at the spot.\nWhile in flames Sangita did not make any movement. She was completely motionless.\nThe latching of doors of the compound was not accepted as an act of the deceased. Latching of doors and pouring of kerosene after assault was a farcical venture skilfully and conveniently made to bring colour of suicide to the incident.\n885 The High Court then posed the question as to who is responsible for homicidal death of Sangita. It was held that it could not be an act of an individual It was joint venture. There is no direct evidence. Undisputedly the payment of Rs.20,000/- was not made nor the tither items mentioned in Ext. 73 were given till the date of incident.\nOn her second visit, the deceased had disclosed to her father, Madan Lal. that the members of in-laws' family had beaten and ill-treated her for the reason of non-fulfillment of dowry and other articles. A reading of the letter indicates that the accused persons had very serious grievance against Sangita and her parents for non fulfillment of dowry demands.\nRecovery of handkerchief at the instance of accused No. 1 in pursuance of a disclosure statement and the seizure thereof vide Ext.69 from a drawer of the table of the office. The handkerchief was smelling, kerosene oil. It was concealed at a place which was not normally or ordinarily used for keeping the handkerchief.\nThis handkerchief was used at the time of the incident.\nNone of the accused persons made any attempt to reach the spot even though they noticed the death of Sangita. They merely allowed the body to be burnt. Accused persons had quoted exact time of death in Ext.82 which means that they were mentally alert and conscious of the happening in the house.\nThe refusal to disclose the death of Sangita to the chowkidar of the locality, PW.2, Rahadursingh. The meeting with chowkidar Bahadursingh was falsely denied in the statement under Section 313 of the Code of Criminal Procedure.\nHomicidal death occurred by Sangita while she was in their custody. The incident with its gravity and extent cannot in any manner go unnoticed. As such the accused persons were duty bound to offer plausible explanation. Their action was concerted. well thought out. well planned.\nWith the aforesaid findings all the accused persons were found guilty by the High Court and the appellants have come up in appeal before this Court.\nThis court on application of appellant Nos. 3 and 4 i.e.\nanother-in-law and sister-in-law of the deceased, admitted them to be on hail.\nApart from the inferences noticed by the High Court there are certain other features in the post mortem report Ext. 15 which may also be noticed at this state. It is stated in paragraph 13 of the post mortem report that the whole (if skin of face 886 was burnt and Covered at places with black soot. Eye ball slightly protruding Tongue was protruding from mouth. Blood stained discharge from nose and mouth. In paragraph 17 it is noticed heirs of the scalp, eye lashes, both ears, eyes, whole neck. whole chest. whole abdomen suffer from burns.\nButtock and pubic hairs also burnt. Black soot was present over burnt area of face, chest, abdomen. In paragraph 19 it is stated Brain & Meninges congested. In paragraph 20 it is stated Larynx.Trachea and Bronchi-congested, on opening, troches. black particles seen inside human. Right lung left lung-congested. Right ventricle of the heart was full whereas left was empty. In paragraph 21 it is stated liver and gall bladder-congested. pancreas and suprarenals - congested. spleen - congested, kidneys - congested and bladder - empty, i.e. parenchymatous organs show intense venous congestion.\nDr. K.S. Narayan Reddy, M.D. D.C.P., M.I.A.F.M., F.I.M.S.A.,F.A.F.Sc., Professor of Forensic Medicine, Osmania Medical College Hyderabad in his well known treatise THE ESSENTIALS OL FFORENSIC MEDICINE AND TOXICOLOGY. Sixth Education at page 255 gives descriptions of internal as well as external symptoms of manual strangulation. At page 255 while dealing with signs of asphyxia. the learned author observes : \"The face may be livid, blotchy and swollen, the eyes wide open, bulging and suffused, the pupils dialated, the tongue swollen, dark-cloured and protruded. Petechial hemorrhages are common into the skin of the eyelids, face, forehead, behind the cars and scalp. Bloody froth may escape front the mouth and nostrils and there may he bleeding from the nose and cars. The hands are usually clenched. The genital organs may be congested and there may be discharge of urine, faeces and seminal fluid.\" While internal injuries described little later included as under \"The larynx. trachea and bronchi are congested and contain frothy. often blood stained mucus.\n The lungs are markedly congested and show ecchymoses and larger subaerial hemorrhages.\n Dark fluid blood exudes on section. Silvery- looking spots under the pleural surface due to rupture of the air cells which disappear on pricking. are seen in more than 505 cases.\n The parenchymatous organs show intense venous congestion and in young persons ecchymoses are usually seen on the heart and kidneys. The brain is contested and shows petechial hemorrhages. The right side of the heart is full of dark fluid blood and the left empty.\n Both the cavities are full if the heart stopped during diastole.\"\nWhereas in burn injuries the learned author at pages 237-238 observes.\"the 887 brain is usually shrunken, firm and yellow to light brown due to cooking. The dura matter is leathery.\" (dura matter is meninges of the brain). If the death has occoured from suffocation. aspirated blackish coal particles are seen in the nose, mouth and whole of the respiratory track. Their presence is proof that the victim was alive %,.hen tile fire occurred. The pleurae are contested or inflamed. The lungs are usually congested. may be strunken and rarely anemic...... Visceral congestion is marked in many cases...... The heart is usually filled with clotted blood.\n'The adarme;s (glands above kidneys) may he enlarged and congested.\nSome of these symptoms or internal and external injuries are common in case of strangulation and burn like face is swollen and distorted, the tongue protruded. the lungs are usually congested visceral congestions is marked in many cases.\nWhat is to he noticed in the present case is that there are hardly \"any cries\" as per the defence also by the deceased.\nThis is not possible even in case of suicide. Even if the burns ,ire inflicted with suicidal intent tile victim is bound to cry out of pain. Admittedly there was no cries and, therefore, it was not a Case of suicidal burn but the deceased was put in a condition where she could not cry and yet get burnt by third party.\nAs is clear from the aforesaid commentary of Dr. K.S.\nNarayan Reddy that if it was a case of merely burns the blood of the heart would have got clotted. Even the postmortem report does not say that asphvsix was due to burn. Coupled with all the internal injuries which occur in the case of strangulation. are present in this case.\nAs pointed out by the High Court there is no direct evidence to connect the appellants with the offence of murder and the prosecution entirely rests its case only on circumstantial evidence. There is a series of decisions of this Court propounding the cardinal principles to be followed in cases in which the evidence is of circumstantial nature. It is not necessary to repapitulate all those decisions except stating the essential ingredients as noticed by Pandian, J.\nin the case reported as The State of Uttar Pradesh v. Dr.\nRavindra Prakesh J. in the case 2 SC 114 at 121, to prove quilt of an accused person by circumstantial evidence. They are:- (1) The circumstance from which tile conclusion is drawn should be fully proved; (2) the circumstances should he conclusive in nature; 888 (3)all the facts so established should he consistent only with the hypothesis of guilt and inconsistent with innocence: (4)the circumstances should. to a moral certainty, exclude the possibility of guilt of any person other than the accused.\"\nNow let us examine the impelling circunistances attending the case and examine whether tile cumulative effect of those circumstances negatives tile innocence of tile appellants and serves a definite pointer towards their guilt and unerringly leads to the conclusion that with all human probability the offence was committed by the appellants and none else.\nThere is no doubt that when the incident occurred there was no outsider its the house. The circumstances which ire establislied its having closely linked up with one another may be noticed 1) The motive for the occurrence.\n 2) The place where the tragic incident occurred was in possession and occupation of the appellants.\n 3) The occurrence had happened in the wee hours when body else would have had ingress at the place where the incident allegedly occurred.\n 4) The appellants admit their presence.\n The positive features, which occurred, had it been it pure case of burning, there would he evidence of vomiting.\n 6) The positive opinion of the doctor that the death was due to asphysix as well apart from 100% burns.\n 7) The deceased was carrying fetus of 3-4 months 8) The extensive use of kerosene as seen from the burn shows that the deceased was practically 889 drenched as sort of a bath with kerosene.\n 9) Total absence of any shout or cries except one which was heard by way o f strangulation by PW. 1.\n 10) Blood in heart was not found clotted.\n Right ventricle heart was full of blood but left ventricle wits empty.\n 11) Besides total burning of neck was to destroy evidence of attempted strangulation.\n 12) In burn brain is usually shrunken and firm whereas in strangulation it is congested.\n As noticed by Pandian, J. in the aforesaid decision, opinion of Taylor in Medical Jurisprudence is quoted below. It reads thus: \"Not uncommonly the victim who inhales smoke also vomits and inhales some vomit, presumably due to bouts of coughing, and plugs of regur- gitated stomach contents mixed with soot may be found in the smaller bronchi, in the depths of the lungs.\"\n By the time a person could take a bath of kerosene she is likely to get fainted and would not be in a position thereafter to burn herself. A total burning, of the face and the neck shows that even at portions where she was not wearing any clothes were not burnt. It could only be possible if she had poured kerosene on her head and face also.\n It is not understood as to how the unposted post card found near the dead body was not burnt when the whole body had got burnt. It in fact indicates that the planting of the post card was to show that it was a case of suicidal death.\n In passes all human probabilities that the appellants have satisfied themselves by watching through the window the burning of daughter-in-law without any due and cry or without and serious attempt to save her.\n We are thus satisfied that it was a case of murder and not suicidal death. So far as the accomplicity of appellants 1 and 2 are concerned, there is no doubt. But 890 it is not necessary if appellant Nos. 3-4 i.e. mother-in-law and sister-in-law of the deceased have also participated in the murder of the deceased.\n For the aforesaid reasons we dismiss the appeal on behalf of appellant. Nos. 1 and 2 but give benefit of doubt to appellant Nos. 3 and 4 and accept the appeal on their behalf. They are accordingly acquitted. The convictions and sentences of appellant Nos. 1 and 2 are upheld.\n U. R. Appeal dismissed.\n 891 "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "910a08e958a34270a0a3ada0758c95d8",
"to_name": null,
"type": null,
"value": {
"end": 108,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nTHE STATE OF ANDHRA PRADESH\n\nVs.\n\nRESPONDENT:\nNAV SWADESHI OIL MILLS\n\nDATE OF JUDGMENT03/11/1987"
}
},
{
"from_name": null,
"id": "3f0e824198d040279c91c1a8af2eed3d",
"to_name": null,
"type": null,
"value": {
"end": 650,
"labels": [
"PREAMBLE"
],
"start": 110,
"text": "BENCH:\nVENKATARAMIAH, E.S. (J)\nBENCH:\nVENKATARAMIAH, E.S. (J)\nRANGNATHAN, S.\n\nCITATION: 1988 SCR (1) 736\n 1988 AIR 97 JT 1987 (4) 234\n 1987 SCC Supl. 388\n 1987 SCALE (2)920\n\nACT:\n Andhra Pradesh General Sales Tax Act, 1957: ss. 13 &\n\n14(1) & 14(3)/Central Sales Tax Act, 1956: s. 9(2)-\nApplicability of-Returns not filed within the prescribed\nperiod-Assessments made after expiry of four years from\nassessment year-Held, cases fall under s. 14(3) and\nassessment can be made within six years from expiry of"
}
},
{
"from_name": null,
"id": "68b7810337a14718a973cbf877cd72ac",
"to_name": null,
"type": null,
"value": {
"end": 670,
"labels": [
"PREAMBLE"
],
"start": 651,
"text": "the\nassessment year"
}
},
{
"from_name": null,
"id": "d9a7ecdcd028428f904a754b3e1b8ba3",
"to_name": null,
"type": null,
"value": {
"end": 915,
"labels": [
"PREAMBLE"
],
"start": 670,
"text": ".\n\nHEADNOTE:\n%\n\n Sub-section (2) of s. 9 of the Central Sales Tax Act,\n1956 makes the assessment procedure prescribed under the\ngeneral sales tax law of the appropriate State applicable to\nthe assessment to be made under the Central Act."
}
},
{
"from_name": null,
"id": "ed6825fd497b4d488be5330ecb8445ec",
"to_name": null,
"type": null,
"value": {
"end": 1099,
"labels": [
"PREAMBLE"
],
"start": 916,
"text": "Section 13\nof the Andhra Pradesh General Sales Tax Act, 1957 requires\nthe dealer to submit returns in such manner, within such\nperiod and to such authority as may be prescribed. Sub-\n"
}
},
{
"from_name": null,
"id": "3ab321454be046709e4dd3e97a34f9ca",
"to_name": null,
"type": null,
"value": {
"end": 1316,
"labels": [
"PREAMBLE"
],
"start": 1099,
"text": "section (1) of s. 14 permits the assessing authority to\nassess the amount of tax due on the returns submitted under\ns. 13 only within a period of four years from the expiry of\nthe year to which the assessment relates."
}
},
{
"from_name": null,
"id": "5a0038ce826648efa5db6fa14d4b63ef",
"to_name": null,
"type": null,
"value": {
"end": 1663,
"labels": [
"PREAMBLE"
],
"start": 1317,
"text": "Sub-section (3)\npermits the assessing authority to make best judgment\nassessment where a dealer (i) fails to submit return before\nthe date prescribed; (ii) produces the accounts registers\nand other documents after inspection and (iii) submits a\nreturn subsequent to the date of inspection, within a period\nof six years from the expiry of the year"
}
},
{
"from_name": null,
"id": "cff98131616a4a8a9e6786d5e9616f6b",
"to_name": null,
"type": null,
"value": {
"end": 1696,
"labels": [
"PREAMBLE"
],
"start": 1664,
"text": "to which the\nassessment relates."
}
},
{
"from_name": null,
"id": "1cfbe3c79b504c65b1936e7e23cc6372",
"to_name": null,
"type": null,
"value": {
"end": 1886,
"labels": [
"PREAMBLE"
],
"start": 1696,
"text": "\n\n In the main appeal before this Court the assessee-\nrespondent filed its return relating to the quarter ending\n31st March, 1969 on 7th August, 1969 under the Central Sales\nTax Act."
}
},
{
"from_name": null,
"id": "dac4a7667a5948588f7aadad7e5812fe",
"to_name": null,
"type": null,
"value": {
"end": 1938,
"labels": [
"PREAMBLE"
],
"start": 1887,
"text": "The last date prescribed by law was 24th May, 1969."
}
},
{
"from_name": null,
"id": "76bd30d5f08a43c684fb1e88a42e7e50",
"to_name": null,
"type": null,
"value": {
"end": 2100,
"labels": [
"PREAMBLE"
],
"start": 1939,
"text": "The Commercial Tax officer passed the assessment order on\n3rd August, 1973, beyond four years from 31st March, 1969,\nthe last day of the assessment year 1968-69."
}
},
{
"from_name": null,
"id": "a4df7209439748a9b2ec9bd98fca4f8d",
"to_name": null,
"type": null,
"value": {
"end": 2225,
"labels": [
"PREAMBLE"
],
"start": 2101,
"text": "The assessee's\nappeals against that order were dismissed by the Assistant\nCommissioner and the Sales Tax Appellate Tribunal."
}
},
{
"from_name": null,
"id": "8ecd6ec4cff64cca89097d29a6da960f",
"to_name": null,
"type": null,
"value": {
"end": 2378,
"labels": [
"PREAMBLE"
],
"start": 2226,
"text": "The High\nCourt in revision, however, held that the assessment made\nafter four years from the last day of the assessment year\nwas not a valid assessment."
}
},
{
"from_name": null,
"id": "f50ef07edd244c4e88bfdd3ad49c7103",
"to_name": null,
"type": null,
"value": {
"end": 2618,
"labels": [
"PREAMBLE"
],
"start": 2378,
"text": "\n In the connected appeal the respondent who was the\n\nassessee filed the annual return in respect of the\nassessment year 1968-69 under the A provisions of the\nCentral Act on 19th August, 1969 after the expiry of the\nprescribed date."
}
},
{
"from_name": null,
"id": "c9fdc19d96a04f4585a806ab3743234b",
"to_name": null,
"type": null,
"value": {
"end": 2740,
"labels": [
"PREAMBLE"
],
"start": 2619,
"text": "The order of assessment was passed on 2nd\nAugust, 1973 beyond four years from the last day of the\nassessment year 196869."
}
},
{
"from_name": null,
"id": "da688bbd9ca54db6b08ccb197c712f03",
"to_name": null,
"type": null,
"value": {
"end": 2814,
"labels": [
"PREAMBLE"
],
"start": 2741,
"text": "An appeal against that order was\ndismissed by the Assistant Commissioner."
}
},
{
"from_name": null,
"id": "0e7a0c0d74cc4025ad8b3a9cbc64efa7",
"to_name": null,
"type": null,
"value": {
"end": 2980,
"labels": [
"PREAMBLE"
],
"start": 2815,
"text": "The Sales Tax\nAppellate Tribunal, however, allowed the appeal holding that\nthe assessment had been passed beyond four years from the\nlast day of the assessment year."
}
},
{
"from_name": null,
"id": "cfb87676b6e445e88436d1b7f20aac62",
"to_name": null,
"type": null,
"value": {
"end": 3068,
"labels": [
"PREAMBLE"
],
"start": 2981,
"text": "The revision petition\npreferred by the State was dismissed in limine by the High\nCourt."
}
},
{
"from_name": null,
"id": "c20976df346f4b5ebfcb84167e75e91d",
"to_name": null,
"type": null,
"value": {
"end": 3534,
"labels": [
"PREAMBLE"
],
"start": 3068,
"text": "\n\n In the appeals by special leave filed by the State, it\nwas contended for the respondent that since the returns in\nthe cases had been accepted, even though they had filed been\nbeyond the prescribed date, the assessments made thereon\ncould not be considered as best judgment assessments and,\ntherefore, sub-section (3) of s. 14 of the Act under which\nit is permissible to make best judgment assessments would be\ninapplicable.\n\n Allowing the appeals."
}
},
{
"from_name": null,
"id": "43a4669869a546d0bbbc630eb978b8fd",
"to_name": null,
"type": null,
"value": {
"end": 3549,
"labels": [
"PREAMBLE"
],
"start": 3535,
"text": "D\n^\n\n "
}
},
{
"from_name": null,
"id": "c66e4e80c5064579b764cac7f4cad9d7",
"to_name": null,
"type": null,
"value": {
"end": 3944,
"labels": [
"PREAMBLE"
],
"start": 3549,
"text": "HELD: 1.1 on a true construction of sub-s. (1) and sub-\ns. (3) of s. 14 of the Andhra Pradesh General Sales Tax Act,\n1957 it is apparent that where a return is not filed by a\ndealer before the date prescribed in that behalf under the\nAct the assessing authority has jurisdiction to complete the\nassessment within a period of six years from the expiry of\nthe year to which the assessment relates."
}
},
{
"from_name": null,
"id": "c763a90d7453401096f9383f58046b00",
"to_name": null,
"type": null,
"value": {
"end": 3965,
"labels": [
"PREAMBLE"
],
"start": 3945,
"text": "[744C]\n\n 1.2"
}
},
{
"from_name": null,
"id": "57b3eb649cf1474da685c36179c8413e",
"to_name": null,
"type": null,
"value": {
"end": 4088,
"labels": [
"PREAMBLE"
],
"start": 3966,
"text": "The two types of cases which fall under sub-s. (1)\nand sub-s. (3) of s. 14 of the Act respectively are mutually\nexclusive."
}
},
{
"from_name": null,
"id": "bbb2c947d9a448ba8bcf3485f4a1a745",
"to_name": null,
"type": null,
"value": {
"end": 4358,
"labels": [
"PREAMBLE"
],
"start": 4089,
"text": "The return on the basis of which an assessment is\nto be made under s. 14(1) is a return filed within the\nprescribed period and in such a case the assessment has to\nbe completed within a period of four years from the expiry\nof the period to which the assessment relates."
}
},
{
"from_name": null,
"id": "99c255e45fdc415faf11bbc135361fbd",
"to_name": null,
"type": null,
"value": {
"end": 4547,
"labels": [
"PREAMBLE"
],
"start": 4359,
"text": "The Act\nconfers a distinct advantage on such a dealer who is prompt\nin filing his return inasmuch as he acquires immunity\nagainst assessment on the expiry of the said period of four\nyears."
}
},
{
"from_name": null,
"id": "caf67cbc5aa544d7b978fd589c86a3a9",
"to_name": null,
"type": null,
"value": {
"end": 4657,
"labels": [
"PREAMBLE"
],
"start": 4548,
"text": "All cases where the return is submitted beyond the\nprescribed date fall under sub-s. (3) of s. 14 of the Act."
}
},
{
"from_name": null,
"id": "02917e88816b4922aa5654ba3ade55b7",
"to_name": null,
"type": null,
"value": {
"end": 4777,
"labels": [
"PREAMBLE"
],
"start": 4657,
"text": "\nAssessment in such cases may be completed within six years\nfrom the expiry of the year to which the assessment relates."
}
},
{
"from_name": null,
"id": "bd9761c1a2a945719bfb378fac0b1d77",
"to_name": null,
"type": null,
"value": {
"end": 5179,
"labels": [
"PREAMBLE"
],
"start": 4777,
"text": "\nWhen once it is established in a case that a return has not\nbeen filed within the prescribed period such case falls\noutside s. 14(1) of the Act and therefore the period of four\nyears prescribed therein becomes automatically inapplicable.\nIt clearly falls under cl. (i) of sub-s. (3) of s. 14 of the\nAct and assessment can be H\n made in such a case within the expiry of the period of\nsix years."
}
},
{
"from_name": null,
"id": "ff4961e8b62e4bec90390c09e377fa68",
"to_name": null,
"type": null,
"value": {
"end": 5256,
"labels": [
"PREAMBLE"
],
"start": 5180,
"text": "In the instant cases the returns were not filed\nwithin the prescribed dates."
}
},
{
"from_name": null,
"id": "78fb179edcab40569a70ac0c5d0888e0",
"to_name": null,
"type": null,
"value": {
"end": 5334,
"labels": [
"PREAMBLE"
],
"start": 5257,
"text": "The assessments have,\ntherefore, been rightly made within six years from the\n"
}
},
{
"from_name": null,
"id": "4b19f6064b694765a0119321618c17ae",
"to_name": null,
"type": null,
"value": {
"end": 5340,
"labels": [
"PREAMBLE"
],
"start": 5334,
"text": "expiry"
}
},
{
"from_name": null,
"id": "b7790fb10293450584884ceb2f3b11c2",
"to_name": null,
"type": null,
"value": {
"end": 5384,
"labels": [
"PREAMBLE"
],
"start": 5341,
"text": "of the year to which the assessments relate"
}
},
{
"from_name": null,
"id": "20d82a7cfd1b4cd8b0f8f953e73eb282",
"to_name": null,
"type": null,
"value": {
"end": 5567,
"labels": [
"PREAMBLE"
],
"start": 5384,
"text": ". [742G-H;\n743A-B; 744C]\n\n 2. Whether the assessment made is the best judgment or\nnot has no bearing at all on the period within which an\nassessment can be made under the Act."
}
},
{
"from_name": null,
"id": "9cb0b653000f4b4dbc416e8e1f7570b7",
"to_name": null,
"type": null,
"value": {
"end": 5646,
"labels": [
"PREAMBLE"
],
"start": 5568,
"text": "It depends upon the\nother conditions mentioned in sub-s. (1) and (3) of s. 14."
}
},
{
"from_name": null,
"id": "b6fd4db45fec44daa3f05eba8dfcf511",
"to_name": null,
"type": null,
"value": {
"end": 6261,
"labels": [
"PREAMBLE"
],
"start": 5647,
"text": "Best judgment assessment can be made even in a case falling\nunder sub-s. (1), as is evident from the latter part of that\nsub-section which reads: \"but if the return appears to him\n\nto be incorrect or incomplete he shall after giving the\ndealer a reasonable opportunity of proving the correctness\nand completeness of the return submitted by him and making\nsuch inquiry as he deems necessary, to assess to the best of\nhis judgment, the amount of tax due from the dealer.\" Yet\nsuch best judgment assessment has to be completed within a\nperiod of four years from the expiry of the year to which\nthe assessment relates."
}
},
{
"from_name": null,
"id": "2eef594371b24cb685f14fffefe5917a",
"to_name": null,
"type": null,
"value": {
"end": 6418,
"labels": [
"PREAMBLE"
],
"start": 6262,
"text": "Therefore, in the instant case\nmerely because the assessments are not best judgment\nassessments, it cannot be said that sub-s. (3) of s. 14 is\ninapplicable."
}
},
{
"from_name": null,
"id": "e7d0e4ac212c443d9dc5e4dbbb4f1065",
"to_name": null,
"type": null,
"value": {
"end": 6574,
"labels": [
"PREAMBLE"
],
"start": 6419,
"text": "Neither the High Court nor the Tribunal gave\nadequate attention to the words 'before the date prescribed\nin that behalf' in cl. (i) of sub-s. (3) of s. 14."
}
},
{
"from_name": null,
"id": "9e5dec385bbe4abf9d6486bf2d187d19",
"to_name": null,
"type": null,
"value": {
"end": 6692,
"labels": [
"PREAMBLE"
],
"start": 6575,
"text": "They laid\nemphasis only on the words 'fails to submit return' in the\nsaid sub-clause to arrive at a wrong conclusion."
}
},
{
"from_name": null,
"id": "34c0cfe1a9e74c44aaa2d9c91b0cb519",
"to_name": null,
"type": null,
"value": {
"end": 6863,
"labels": [
"PREAMBLE"
],
"start": 6693,
"text": "[743C, H;\n744A-B]\n\n State of Andhra Pradesh v. Pyarelal Malhotra, (13\nS.T.C. 946), and State of Madras v. S.G. Jayaraj Nadar &\nSons, 28 S.T.C. 700, distinguished."
}
},
{
"from_name": null,
"id": "1c84398a32784b66b480b8b41a0950c7",
"to_name": null,
"type": null,
"value": {
"end": 6874,
"labels": [
"PREAMBLE"
],
"start": 6865,
"text": "JUDGMENT:"
}
},
{
"from_name": null,
"id": "cf881825bcef4b93807460ea9e93f2f3",
"to_name": null,
"type": null,
"value": {
"end": 6913,
"labels": [
"NONE"
],
"start": 6874,
"text": "\n CIVIL APPELLATE JURISDICTION:"
}
},
{
"from_name": null,
"id": "84669f0f49804bee9deb7b7f8be06f38",
"to_name": null,
"type": null,
"value": {
"end": 6944,
"labels": [
"NONE"
],
"start": 6914,
"text": "Civil Appeal No. 4448 of 1985."
}
},
{
"from_name": null,
"id": "0dd5be8390694201b59b406640afa655",
"to_name": null,
"type": null,
"value": {
"end": 7070,
"labels": [
"NONE"
],
"start": 6954,
"text": "From the Judgment and order dated 26. 10. 1982 of the Andhra Pradesh High Court in Tax Revision Case No. 23 of 1978."
}
},
{
"from_name": null,
"id": "82d45b854f194eddaad88cb8b5e3c60c",
"to_name": null,
"type": null,
"value": {
"end": 7106,
"labels": [
"NONE"
],
"start": 7070,
"text": "\n WITH Civil Appeal No. 694 of 1986."
}
},
{
"from_name": null,
"id": "4894290116804922b238a735fc6f598a",
"to_name": null,
"type": null,
"value": {
"end": 7230,
"labels": [
"NONE"
],
"start": 7116,
"text": "From the Judgment and order dated 31.7.1985 of the Andhra Pradesh High Court in Tax Revision Case No. 205 of 1985."
}
},
{
"from_name": null,
"id": "019ec16209ea4834a65c7e7e4c625514",
"to_name": null,
"type": null,
"value": {
"end": 7273,
"labels": [
"NONE"
],
"start": 7230,
"text": "\n T.V.S.N. Chari for the Appellant."
}
},
{
"from_name": null,
"id": "f77bd641dcde44c7909c25c9ba7b227e",
"to_name": null,
"type": null,
"value": {
"end": 7318,
"labels": [
"NONE"
],
"start": 7274,
"text": " R. Ramachandran for the Respondents."
}
},
{
"from_name": null,
"id": "ef3fda8c547143529c68ea5acd7a1975",
"to_name": null,
"type": null,
"value": {
"end": 7388,
"labels": [
"NONE"
],
"start": 7328,
"text": "The Judgment of the Court was delivered by VENKATARAMIAH, J."
}
},
{
"from_name": null,
"id": "9f28e76c43f047bea3ba496c652c1b64",
"to_name": null,
"type": null,
"value": {
"end": 7521,
"labels": [
"NONE"
],
"start": 7389,
"text": "The question of law which arises in these two appeals by special leave being a common, they are disposed of by this common judgment."
}
},
{
"from_name": null,
"id": "02fe09926aa643beb9c665c635b721cb",
"to_name": null,
"type": null,
"value": {
"end": 7795,
"labels": [
"ISSUE"
],
"start": 7522,
"text": "The said question relates to the time within which an assessment can be made under the provisions of the Andhra Pradesh General Sales Tax Act, 1957 (hereinafter referred to as 'the Act') where the return is not filed by the dealer within the time prescribed in that behalf."
}
},
{
"from_name": null,
"id": "1611a0199549499da40186abbefadb10",
"to_name": null,
"type": null,
"value": {
"end": 7916,
"labels": [
"FAC"
],
"start": 7805,
"text": "The assessee in Civil Appeal No. 4448 of 1985 is M/s.\nNav Swadeshi oil Mills, Jadcharla, Mahboobnagar district."
}
},
{
"from_name": null,
"id": "be335f73812243cf9e460e4da82bd86a",
"to_name": null,
"type": null,
"value": {
"end": 8201,
"labels": [
"FAC"
],
"start": 7916,
"text": "\nFor assessment year 1968-69 the assessee filed its return relating to the quarter ending 31.3. ,969 on 7.8.1969 before the Commercial Tax Officer of Mahboobnagar under the Central Sales Tax Act, 1956 even though the last date for submission of return prescribed by law was 24.5. 1969."
}
},
{
"from_name": null,
"id": "917ef4c002b0444d98cb15aa128a8146",
"to_name": null,
"type": null,
"value": {
"end": 8365,
"labels": [
"FAC"
],
"start": 8202,
"text": "The return filed by the assessee showing a taxable turnover of Rs.\n18,25,410.72 was accepted and it was called upon to pay sales tax of Rs.45,424.48 under the Act."
}
},
{
"from_name": null,
"id": "3c8339129f69497384bfd69c3b198a39",
"to_name": null,
"type": null,
"value": {
"end": 8497,
"labels": [
"FAC"
],
"start": 8366,
"text": "The assessment order was passed on 3.8.1973 beyond four years from 31.3.1969 which was the last day of the assessment year 1968-69."
}
},
{
"from_name": null,
"id": "674816eb1c414b56bee6592ac132f565",
"to_name": null,
"type": null,
"value": {
"end": 8778,
"labels": [
"FAC"
],
"start": 8498,
"text": "Aggrieved by the assessment order which had been passed beyond the period of four years from the last day of the assessment year the assessee filed an appeal before the Assistant Commissioner (CT) Appeals, Warangal in Appeal No.\n5 75-76 and that appeal was dismissed on 14.9.1976."
}
},
{
"from_name": null,
"id": "8d9d918d05ee4b6daabf8750922161da",
"to_name": null,
"type": null,
"value": {
"end": 8840,
"labels": [
"FAC"
],
"start": 8779,
"text": "Against the order of the Assistant Commissioner (CT) Appeals."
}
},
{
"from_name": null,
"id": "65c908ac55a24ad480981bdddb989c0b",
"to_name": null,
"type": null,
"value": {
"end": 8983,
"labels": [
"FAC"
],
"start": 8841,
"text": "Warangal the assessee filed an appeal before the Sales Tax Appellate Tribunal, Andhra Pradesh at Hyderabad in Tribunal Appeal No. 183 of 1977."
}
},
{
"from_name": null,
"id": "e8fa073ffb6b43ca86e6f2208202b30c",
"to_name": null,
"type": null,
"value": {
"end": 9015,
"labels": [
"FAC"
],
"start": 8984,
"text": "That appeal also was dismissed."
}
},
{
"from_name": null,
"id": "c71b91bc4b9d4774a083d3c113a28664",
"to_name": null,
"type": null,
"value": {
"end": 9142,
"labels": [
"FAC"
],
"start": 9016,
"text": "The assessee thereafter filed a revision petition in Tax Revision Case No. 23 of 1978 before the High Court of Andhra Pradesh."
}
},
{
"from_name": null,
"id": "d7b8282788074b6e975a446439f7b24c",
"to_name": null,
"type": null,
"value": {
"end": 9395,
"labels": [
"RLC"
],
"start": 9143,
"text": "The High Court by its order dated October 26, 1982 set aside the order of the Tribunal and also the assessment on the ground that the assessment which had been passed after four years from the last day of the assessment year was not a valid assessment."
}
},
{
"from_name": null,
"id": "37ec7d33b0d048df9386a127eb286498",
"to_name": null,
"type": null,
"value": {
"end": 9507,
"labels": [
"FAC"
],
"start": 9396,
"text": "Aggrieved by the decision of the High Court the State of Andhra Pradesh has filed this appeal by special leave."
}
},
{
"from_name": null,
"id": "781da1440d934917a61268f8673ca746",
"to_name": null,
"type": null,
"value": {
"end": 9611,
"labels": [
"FAC"
],
"start": 9509,
"text": "The assessee in Civil Appeal No. 694 of 1986 is M s.\nNav Swadeshi oil Mills and Refinery at Jadcharla."
}
},
{
"from_name": null,
"id": "6d24e1d1dcf04025907d36529139f448",
"to_name": null,
"type": null,
"value": {
"end": 9801,
"labels": [
"FAC"
],
"start": 9612,
"text": "In respect of the assessment year 1968-69 the assessee filed an annual return under the provisions of the Central Sales Tax Act, 1956 on 19.8. 1969 after the expiryOf the prescribed period."
}
},
{
"from_name": null,
"id": "44202fe7bab44eba9d71636ca794eb7c",
"to_name": null,
"type": null,
"value": {
"end": 9916,
"labels": [
"FAC"
],
"start": 9802,
"text": "The order of assessment was passed on 2.8.1973 beyond four years from the last day of the assessment year 1968-69."
}
},
{
"from_name": null,
"id": "acadf483b30e4136947ad4c5213f7e26",
"to_name": null,
"type": null,
"value": {
"end": 10212,
"labels": [
"FAC"
],
"start": 9917,
"text": "Aggrieved by the assessment order which had been passed by the assessing authority the assessee filed an appeal before the Assistant Commissioner (CT) Appeals, Warangal on the ground that the asssessment order passed beyond four years from the last day of the assessment year was barred by time."
}
},
{
"from_name": null,
"id": "09df58478b7946b49c1857dcc62748c4",
"to_name": null,
"type": null,
"value": {
"end": 10239,
"labels": [
"FAC"
],
"start": 10213,
"text": "That appeal was dismissed."
}
},
{
"from_name": null,
"id": "97c25cd1c0c74b7489d41d8f3b3bab14",
"to_name": null,
"type": null,
"value": {
"end": 10400,
"labels": [
"FAC"
],
"start": 10240,
"text": "Against the order passed in that appeal the assessee filed an appeal before the Sales Tax Appellate Tribunal, Andhra Pradesh in Tribunal Appeal No. 206 of 1977."
}
},
{
"from_name": null,
"id": "f982ae04b7234829afb68cb08ea1d0dd",
"to_name": null,
"type": null,
"value": {
"end": 10518,
"labels": [
"FAC"
],
"start": 10400,
"text": "\nThe Tribunal allowed the appeal and set aside the assessment holding that the assessment had been passed beyond time."
}
},
{
"from_name": null,
"id": "8e0b6ba07fbd44019afed8e9130adf1f",
"to_name": null,
"type": null,
"value": {
"end": 10700,
"labels": [
"FAC"
],
"start": 10519,
"text": "Aggrieved by the decision of the Tribunal the State of Andhra Pradesh filed a Revision Petition in Tax Revision Case No. 205 of 1985 on the file of the High Court of Andhra Pradesh."
}
},
{
"from_name": null,
"id": "9a86d3f5e4874704929b01c234fc9236",
"to_name": null,
"type": null,
"value": {
"end": 10766,
"labels": [
"FAC"
],
"start": 10701,
"text": "That Revision Petition was dismissed in limine by the High Court."
}
},
{
"from_name": null,
"id": "057e2f049101422fa826bab5eebf1784",
"to_name": null,
"type": null,
"value": {
"end": 10878,
"labels": [
"FAC"
],
"start": 10767,
"text": "Aggrieved by the decision of the High Court the State of Andhra Pradesh has filed this appeal by special leave."
}
},
{
"from_name": null,
"id": "4aa4638d021444888e9169ead36580f5",
"to_name": null,
"type": null,
"value": {
"end": 11171,
"labels": [
"ISSUE"
],
"start": 10878,
"text": "\n The only question which arises for consideration in these appeals is whether the orders of assessment in the above two cases which had admittedly been passed beyond four years from the last day of the assessment year but within the period of six years from that date had been validly passed."
}
},
{
"from_name": null,
"id": "6164a4a9922a4aa78bb44c6da1350385",
"to_name": null,
"type": null,
"value": {
"end": 11376,
"labels": [
"ANALYSIS"
],
"start": 11172,
"text": "By virtue of section 9 of the Central Sales Tax Act, 1956 the procedure prescribed for making an assessment under the Act is applicable to the assessments to be made under the Central Sales Tax Act, 1956."
}
},
{
"from_name": null,
"id": "5b7ea21a8a964f06a576e7f1171b590b",
"to_name": null,
"type": null,
"value": {
"end": 11672,
"labels": [
"STA"
],
"start": 11377,
"text": "Section 13 of the Act prescribes that every dealer who is liable to get himself registered under section 12 or section 12-A as the case may be under the Act shall submit such return or returns relating to his turnover in such manner within such period and to such authority as may be prescribed."
}
},
{
"from_name": null,
"id": "ff08e4f17f944fa0ab4fb6f1bf0a2251",
"to_name": null,
"type": null,
"value": {
"end": 12315,
"labels": [
"STA"
],
"start": 11673,
"text": "The material part of section 14 which is relevant for purposes of these cases reads thus: \"14. Assessment of tax: ( I) If the assessing authority is satisfied that any return submitted under section 13 is correct and complete, he shall assess the amount of tax payable by the dealer on the basis thereof, but if the return appears to him to be incorrect or incomplete he shall, after giving the dealer a reasonable opportunity of proving the correctness and completeness of the return submitted by him and making such inquiry as he deems necessary, assess to the best of his judgment, the amount of tax due from the dealer.\n "
}
},
{
"from_name": null,
"id": "0477f4f8e6004090a9411fd688f3a6e2",
"to_name": null,
"type": null,
"value": {
"end": 12457,
"labels": [
"STA"
],
"start": 12315,
"text": "An assessment under this section shall be made only within a period of four years from the expiry of the year to which the assessment relates."
}
},
{
"from_name": null,
"id": "67d58439fe7a41088b07690246efa49e",
"to_name": null,
"type": null,
"value": {
"end": 12518,
"labels": [
"STA"
],
"start": 12457,
"text": "\n ..................."
}
},
{
"from_name": null,
"id": "4182f95d1d7441a380435a1891af70d7",
"to_name": null,
"type": null,
"value": {
"end": 13222,
"labels": [
"STA"
],
"start": 12518,
"text": "\n (3) Where any dealer liable to tax under this Act- (i) fails to submit return before the date prescribed in that behalf, or (ii) produces the accounts, registered and other documents after inspection, or (iii) submits a return subsequent to the date of inspection, the assessing authority may, at any time within a period of six years from the expiry of the year to which assessment relates, after issuing a notice to the dealer and after such enquiry as he considers necessary, assess to the best of his judgment, the amount of tax due from the dealer on his turnover for that year, and may direct the dealer to pay in addition to the tax so assessed penalty as specified in subsection (8).\"\n "
}
},
{
"from_name": null,
"id": "5cbe1e83e9e54694acf4985e41109b96",
"to_name": null,
"type": null,
"value": {
"end": 13373,
"labels": [
"ANALYSIS"
],
"start": 13222,
"text": "It is necessary to analyse sub-section (1) and sub- section (3) of section 14 of the Act for purposes of determining the issue involved in these cases."
}
},
{
"from_name": null,
"id": "6225424e074a4610a77dfbeeaa404190",
"to_name": null,
"type": null,
"value": {
"end": 13943,
"labels": [
"STA"
],
"start": 13374,
"text": "Sub-section ( ]) of section 14 of the Act provides that if the assessing authority is satisfied that any return submitted under section 13 is correct and complete, he shall assess the amount of tax payable by the dealer on the basis thereof but if the return appears to the assessing authority to be incorrect or incomplete he shall after giving the dealer reasonable opportunity of proving the correctness and completeness of the return submitted and making such inquiry as he deems necessary, assess to the best of his judgment, the amount of tax due from the dealer."
}
},
{
"from_name": null,
"id": "0ccc4bcd160048fd8672356d051bf568",
"to_name": null,
"type": null,
"value": {
"end": 14101,
"labels": [
"ANALYSIS"
],
"start": 13944,
"text": "In both these cases the return contemplated is one which has been filed in accordance with section 13 of the Act within the time prescribed for that purpose."
}
},
{
"from_name": null,
"id": "cb7c10b0fb48455dbf21ecfb1469a850",
"to_name": null,
"type": null,
"value": {
"end": 14274,
"labels": [
"ANALYSIS"
],
"start": 14102,
"text": "Such an assessment under sub- section ( 1) of section 14 of the Act can be made within a period of four years from the expiry of the period to which the assessment relates."
}
},
{
"from_name": null,
"id": "8aa300422b05444bab0fdb40036b9be0",
"to_name": null,
"type": null,
"value": {
"end": 14685,
"labels": [
"STA"
],
"start": 14275,
"text": "Sub-section (3) of section 14 of the Act authorises the assessing authority to make an assessment to the best of his judgment in three cases: (i) where a dealer under the Act fails to submit return before the date prescribed in that behalf, (ii) where a dealer produces the accounts. registers and other documents after inspection and (iii) where a dealer submits a return subsequent to the date of inspection."
}
},
{
"from_name": null,
"id": "52acbc1a16dc4b1daccdf0497e670603",
"to_name": null,
"type": null,
"value": {
"end": 15009,
"labels": [
"ANALYSIS"
],
"start": 14686,
"text": "In these three cases theassessing authority is empowered to make an assessment to the best of '4 his judgment at any time within a period of six years from the expiry of the year to which the assessment relates after issuing a notice to the dealer and after such inquiry which he considers necessary to make the assessment."
}
},
{
"from_name": null,
"id": "c18f1e57d4dc48ed9f39e0de228fcdf5",
"to_name": null,
"type": null,
"value": {
"end": 15397,
"labels": [
"ANALYSIS"
],
"start": 15009,
"text": "\n The crucial question which arises for consideration in these cases is whether in a case where the assessee submits a true and complete return after the prescribed date the assessment should be completed within a period of four years prescribed by sub-section ( 1) of section 14 of the Act or within a period of six years permitted under sub-section (3) of section 14 of the Act."
}
},
{
"from_name": null,
"id": "3619cd6fcc9347eb86781e1f3c28a606",
"to_name": null,
"type": null,
"value": {
"end": 15545,
"labels": [
"ANALYSIS"
],
"start": 15398,
"text": "Sub-section (1) of section 14 of the Act relates to an assessment which may be made on the basis of a return submitted under section 13 of the Act."
}
},
{
"from_name": null,
"id": "678f187bdd2548f4b2d5e76de31b9cc1",
"to_name": null,
"type": null,
"value": {
"end": 15749,
"labels": [
"STA"
],
"start": 15546,
"text": "Section 13 of the Act as stated above provides that every dealer shall submit such return or returns relating to his turnover in such manner within such period and to such authority as may be prescribed."
}
},
{
"from_name": null,
"id": "1b8f8fe09f0946d68f40a7e0fad9bbc3",
"to_name": null,
"type": null,
"value": {
"end": 16045,
"labels": [
"ANALYSIS"
],
"start": 15750,
"text": "The return on the basis of which an assessment is to be made under section 14(1) of the Act is, therefore, a return filed within the prescribed period and in such a case the assessment has to be completed within a period of four years from the expiry of the year to which the assessment relates."
}
},
{
"from_name": null,
"id": "9a96c835c9954edbb6fe98b1ab91eed0",
"to_name": null,
"type": null,
"value": {
"end": 16360,
"labels": [
"ANALYSIS"
],
"start": 16046,
"text": "The return referred to in sub- section ( 1) of section 14 of the Act cannot be a return filed beyond the prescribed date is emphasised by clause (i) of sub-section (3) of section 14 of the Act which refers to a case where a dealer liable to pay tax fails to submit return before the date prescribed in that behalf."
}
},
{
"from_name": null,
"id": "02ad538731a641118ebd06cb93314c66",
"to_name": null,
"type": null,
"value": {
"end": 16480,
"labels": [
"ANALYSIS"
],
"start": 16361,
"text": "All cases where the return is submitted beyond the prescribed date fall under sub-section (3) of section 14 of the Act."
}
},
{
"from_name": null,
"id": "e94858104f03446b8baf8cf4776e8781",
"to_name": null,
"type": null,
"value": {
"end": 16577,
"labels": [
"ANALYSIS"
],
"start": 16480,
"text": "\n The scheme of the Act regarding the period within which assessments can be made is very simple."
}
},
{
"from_name": null,
"id": "dd1c2e06fc6b4a258b733ae264fe5e8a",
"to_name": null,
"type": null,
"value": {
"end": 16927,
"labels": [
"ANALYSIS"
],
"start": 16578,
"text": "Assessments in cases falling under sub-section (1) of section 14 of the Act have to be completed within four years from the expiry of the year to which the assessment relates and assessments in cases falling under sub-section (3) of section 14 of the Act may be completed within six years from the expiry of the year to which the assessment relates."
}
},
{
"from_name": null,
"id": "5413ab89b35b4c319e1df949cc83d3a6",
"to_name": null,
"type": null,
"value": {
"end": 17065,
"labels": [
"ANALYSIS"
],
"start": 16928,
"text": "The two types of cases which fall under sub-section (l) and sub-section (3) of section 14 of the Act respectively are mutually exclusive."
}
},
{
"from_name": null,
"id": "9914406fdd6b41db824ff52976f5c9b6",
"to_name": null,
"type": null,
"value": {
"end": 17308,
"labels": [
"ANALYSIS"
],
"start": 17066,
"text": "When once it is established in case that a return has not been filed within the prescribed period such case falls outside section 14 ( l) of the Act and therefore the period of four years prescribed therein becomes automatically inapplicable."
}
},
{
"from_name": null,
"id": "f94709178bbb425a9e6a39e8da7c094f",
"to_name": null,
"type": null,
"value": {
"end": 17475,
"labels": [
"ANALYSIS"
],
"start": 17309,
"text": "It clearly falls under clause (i) of sub- section (3) of section 14 of the Act and assessment can be made in such a case within the expiry of the period of six years."
}
},
{
"from_name": null,
"id": "53427f27c81d41aa958e69778023912b",
"to_name": null,
"type": null,
"value": {
"end": 17772,
"labels": [
"ANALYSIS"
],
"start": 17476,
"text": "While a dealer who files a return within the prescribedperiod acquires immunity against assessment on the expiry of four years from the last day of the assessment year, a dealer who fails to file a return within the prescribed period has to wait for six years to be over to acquire such immunity."
}
},
{
"from_name": null,
"id": "7ccb159d45a145aa95a5b0a787d15b80",
"to_name": null,
"type": null,
"value": {
"end": 17862,
"labels": [
"ANALYSIS"
],
"start": 17773,
"text": "Thus the Act confers a distinct advantage on a dealer who is prompt in filing his return."
}
},
{
"from_name": null,
"id": "0564b80d33c346b7bf612cda34239833",
"to_name": null,
"type": null,
"value": {
"end": 18243,
"labels": [
"ANALYSIS"
],
"start": 17862,
"text": "\n We are not impressed by the argument that since the returns in the cases before us had been accepted even though they had been filed beyond the prescribed date the assessments made thereon cannot be considered as best judgment assessment and therefore sub-section (3) of section 14 of the Act under which it is permissible to make best judgment assessments would be inapplicable."
}
},
{
"from_name": null,
"id": "2cfcd86584f34da39131ae1ba0504e6d",
"to_name": null,
"type": null,
"value": {
"end": 18610,
"labels": [
"ANALYSIS"
],
"start": 18244,
"text": "The period within which assessments can be made under the Act does not depend upon the answer to the question whether the assessment in question is a best judgment assessment or it is an assessment made treating the return as correct and complete but it depends upon the other conditions mentioned in sub-section ( 1) and in sub-section (3) of section 14 of the Act."
}
},
{
"from_name": null,
"id": "fdf6fa8c141c4c43b512106d70bd1da8",
"to_name": null,
"type": null,
"value": {
"end": 19177,
"labels": [
"STA"
],
"start": 18611,
"text": "We may here point out that even in a case falling under subsection (1) of section 14 of the Act it is possible for the assessing authority to make a best judgment assessment as can be seen from the latter part of the said sub-section which reads: \"but if the return appears to him to be incorrect or incomplete he shall after giving the dealer a reasonable opportunity of proving the correctness and completeness of the return submitted by him and making such inquiry as he deems necessary, assess to the best of his judgment, the amount of tax due from the dealer.\""
}
},
{
"from_name": null,
"id": "e9d184cb68a743868718d407f991723f",
"to_name": null,
"type": null,
"value": {
"end": 19322,
"labels": [
"ANALYSIS"
],
"start": 19178,
"text": "Yet such best judgment assessment has to be completed within a period of four years from the expiry of the year to which the assessment relates."
}
},
{
"from_name": null,
"id": "814c2db314624683ada96970c9ea1380",
"to_name": null,
"type": null,
"value": {
"end": 19599,
"labels": [
"ANALYSIS"
],
"start": 19323,
"text": "Hence it cannot be held that merely because the assessments in question are not best judgment assessments sub-section (3) of section 14 of the Act is inapplicable for best judgment assessments can be made both under sub-section (1) and subsection (3) of section 14 of the Act."
}
},
{
"from_name": null,
"id": "e782428ddf8f4fa0b81bd86a4aacc312",
"to_name": null,
"type": null,
"value": {
"end": 19720,
"labels": [
"ANALYSIS"
],
"start": 19600,
"text": "That the assessment is a best judgment assessment is not, therefore, decisive of the question involved in these appeals."
}
},
{
"from_name": null,
"id": "ce3ddf593e6b4d78ab6c5aaf980b484f",
"to_name": null,
"type": null,
"value": {
"end": 20096,
"labels": [
"PRE_NOT_RELIED"
],
"start": 19720,
"text": "\n The decision of the Andhra Pradesh High Court in the State of Andhra Pradesh v. Pyarelal Malhotra 13 S.T.C. 946 and the decision of this Court in the State of Madras v.\n S.G. Jayaraj Nadar & Sons 28 S.T.C. 700 which dealt with the question as to when a best judgment assessment could be made are not relevant for purposes of deciding the question which has arisen before us."
}
},
{
"from_name": null,
"id": "67fc8aee8bd448fa97b38f06de681c5b",
"to_name": null,
"type": null,
"value": {
"end": 20299,
"labels": [
"ANALYSIS"
],
"start": 20097,
"text": "As we have already pointed out the question whether the assessment made is the best judgment assessment or not has no bearing at all on the period within which an assess- ment can be made under the Act."
}
},
{
"from_name": null,
"id": "510df02feee54bf097425a3f7d1b8a53",
"to_name": null,
"type": null,
"value": {
"end": 20622,
"labels": [
"ANALYSIS"
],
"start": 20300,
"text": "Neither in the judgment of the High Court against which Civil Appeal No. 4448 of 1985 is filed nor in the judgment of the Tribunal out of which Civil Appeal No. 694 of 1986 arises adequate attention is given to the words 'before the date prescribed in that behalf in clause (i) of sub-section (3) of section 14 of the Act."
}
},
{
"from_name": null,
"id": "898887f1f19c4c6790869552c115525c",
"to_name": null,
"type": null,
"value": {
"end": 20796,
"labels": [
"ANALYSIS"
],
"start": 20623,
"text": "The High Court and the Tribunal laid emphasis only on the words \"fails to submit return\" in the said sub-clause and it is on this account they arrived at a wrong conclusion."
}
},
{
"from_name": null,
"id": "9b2af2972fd14aa6ae849c39b510cc91",
"to_name": null,
"type": null,
"value": {
"end": 21167,
"labels": [
"RATIO"
],
"start": 20796,
"text": "\n On a true construction of sub-section (I) and sub- section (3) of section 14 of the Act we are of opinion that where a return is not filed by a dealer before the date prescribed in that behalf under the Act, the assessing authority has got jurisdiction to complete the assessment within a period of six years from the expiry of the year to which the assessment relates."
}
},
{
"from_name": null,
"id": "f7c576c1dc4041258dfafc34fff875ba",
"to_name": null,
"type": null,
"value": {
"end": 21361,
"labels": [
"RATIO"
],
"start": 21168,
"text": "Admittedly, in these cases the returns were not filed within the prescribed date and the assessments have been made within six years from the expiry of the year to which the assessments relate."
}
},
{
"from_name": null,
"id": "810213e633a14cb0ad5a084e1f41a36b",
"to_name": null,
"type": null,
"value": {
"end": 21472,
"labels": [
"RPC"
],
"start": 21362,
"text": "The orders of the High Court against which these appeals have been filed are therefore liable to be set aside."
}
},
{
"from_name": null,
"id": "59cc0be2fd7744b395a82be8581b77a1",
"to_name": null,
"type": null,
"value": {
"end": 21596,
"labels": [
"RPC"
],
"start": 21473,
"text": "In Civil Appeal No.\n 4448 or 1985 the judgment of the High Court is set aside and the judgment of the Tribunal is restored."
}
},
{
"from_name": null,
"id": "79f66423bcb046a49bac119ad73f2f91",
"to_name": null,
"type": null,
"value": {
"end": 21782,
"labels": [
"RPC"
],
"start": 21597,
"text": "In Civil Appeal No. 694 of 1986 the order of the High Court and the judgment of the tribunal are set aside and judgment of the Assistant Commissioner (CT) Appeals, Warangal is restored."
}
},
{
"from_name": null,
"id": "14113bd0145245e7addce28f02369998",
"to_name": null,
"type": null,
"value": {
"end": 21855,
"labels": [
"RPC"
],
"start": 21783,
"text": "The respondent shall pay the costs of the Appellant in both the appeals."
}
},
{
"from_name": null,
"id": "9307e77afadb443db1640359c7758045",
"to_name": null,
"type": null,
"value": {
"end": 21894,
"labels": [
"RPC"
],
"start": 21855,
"text": "\n P.S.S. Appeals allowed."
}
}
]
}
] | 4,070 | {
"text": "PETITIONER:\nTHE STATE OF ANDHRA PRADESH\n\nVs.\n\nRESPONDENT:\nNAV SWADESHI OIL MILLS\n\nDATE OF JUDGMENT03/11/1987\n\nBENCH:\nVENKATARAMIAH, E.S. (J)\nBENCH:\nVENKATARAMIAH, E.S. (J)\nRANGNATHAN, S.\n\nCITATION: 1988 SCR (1) 736\n 1988 AIR 97 JT 1987 (4) 234\n 1987 SCC Supl. 388\n 1987 SCALE (2)920\n\nACT:\n Andhra Pradesh General Sales Tax Act, 1957: ss. 13 &\n\n14(1) & 14(3)/Central Sales Tax Act, 1956: s. 9(2)-\nApplicability of-Returns not filed within the prescribed\nperiod-Assessments made after expiry of four years from\nassessment year-Held, cases fall under s. 14(3) and\nassessment can be made within six years from expiry of the\nassessment year.\n\nHEADNOTE:\n%\n\n Sub-section (2) of s. 9 of the Central Sales Tax Act,\n1956 makes the assessment procedure prescribed under the\ngeneral sales tax law of the appropriate State applicable to\nthe assessment to be made under the Central Act. Section 13\nof the Andhra Pradesh General Sales Tax Act, 1957 requires\nthe dealer to submit returns in such manner, within such\nperiod and to such authority as may be prescribed. Sub-\nsection (1) of s. 14 permits the assessing authority to\nassess the amount of tax due on the returns submitted under\ns. 13 only within a period of four years from the expiry of\nthe year to which the assessment relates. Sub-section (3)\npermits the assessing authority to make best judgment\nassessment where a dealer (i) fails to submit return before\nthe date prescribed; (ii) produces the accounts registers\nand other documents after inspection and (iii) submits a\nreturn subsequent to the date of inspection, within a period\nof six years from the expiry of the year to which the\nassessment relates.\n\n In the main appeal before this Court the assessee-\nrespondent filed its return relating to the quarter ending\n31st March, 1969 on 7th August, 1969 under the Central Sales\nTax Act. The last date prescribed by law was 24th May, 1969.\nThe Commercial Tax officer passed the assessment order on\n3rd August, 1973, beyond four years from 31st March, 1969,\nthe last day of the assessment year 1968-69. The assessee's\nappeals against that order were dismissed by the Assistant\nCommissioner and the Sales Tax Appellate Tribunal. The High\nCourt in revision, however, held that the assessment made\nafter four years from the last day of the assessment year\nwas not a valid assessment.\n In the connected appeal the respondent who was the\n\nassessee filed the annual return in respect of the\nassessment year 1968-69 under the A provisions of the\nCentral Act on 19th August, 1969 after the expiry of the\nprescribed date. The order of assessment was passed on 2nd\nAugust, 1973 beyond four years from the last day of the\nassessment year 196869. An appeal against that order was\ndismissed by the Assistant Commissioner. The Sales Tax\nAppellate Tribunal, however, allowed the appeal holding that\nthe assessment had been passed beyond four years from the\nlast day of the assessment year. The revision petition\npreferred by the State was dismissed in limine by the High\nCourt.\n\n In the appeals by special leave filed by the State, it\nwas contended for the respondent that since the returns in\nthe cases had been accepted, even though they had filed been\nbeyond the prescribed date, the assessments made thereon\ncould not be considered as best judgment assessments and,\ntherefore, sub-section (3) of s. 14 of the Act under which\nit is permissible to make best judgment assessments would be\ninapplicable.\n\n Allowing the appeals. D\n^\n\n HELD: 1.1 on a true construction of sub-s. (1) and sub-\ns. (3) of s. 14 of the Andhra Pradesh General Sales Tax Act,\n1957 it is apparent that where a return is not filed by a\ndealer before the date prescribed in that behalf under the\nAct the assessing authority has jurisdiction to complete the\nassessment within a period of six years from the expiry of\nthe year to which the assessment relates. [744C]\n\n 1.2 The two types of cases which fall under sub-s. (1)\nand sub-s. (3) of s. 14 of the Act respectively are mutually\nexclusive. The return on the basis of which an assessment is\nto be made under s. 14(1) is a return filed within the\nprescribed period and in such a case the assessment has to\nbe completed within a period of four years from the expiry\nof the period to which the assessment relates. The Act\nconfers a distinct advantage on such a dealer who is prompt\nin filing his return inasmuch as he acquires immunity\nagainst assessment on the expiry of the said period of four\nyears. All cases where the return is submitted beyond the\nprescribed date fall under sub-s. (3) of s. 14 of the Act.\nAssessment in such cases may be completed within six years\nfrom the expiry of the year to which the assessment relates.\nWhen once it is established in a case that a return has not\nbeen filed within the prescribed period such case falls\noutside s. 14(1) of the Act and therefore the period of four\nyears prescribed therein becomes automatically inapplicable.\nIt clearly falls under cl. (i) of sub-s. (3) of s. 14 of the\nAct and assessment can be H\n made in such a case within the expiry of the period of\nsix years. In the instant cases the returns were not filed\nwithin the prescribed dates. The assessments have,\ntherefore, been rightly made within six years from the\nexpiry of the year to which the assessments relate. [742G-H;\n743A-B; 744C]\n\n 2. Whether the assessment made is the best judgment or\nnot has no bearing at all on the period within which an\nassessment can be made under the Act. It depends upon the\nother conditions mentioned in sub-s. (1) and (3) of s. 14.\nBest judgment assessment can be made even in a case falling\nunder sub-s. (1), as is evident from the latter part of that\nsub-section which reads: \"but if the return appears to him\n\nto be incorrect or incomplete he shall after giving the\ndealer a reasonable opportunity of proving the correctness\nand completeness of the return submitted by him and making\nsuch inquiry as he deems necessary, to assess to the best of\nhis judgment, the amount of tax due from the dealer.\" Yet\nsuch best judgment assessment has to be completed within a\nperiod of four years from the expiry of the year to which\nthe assessment relates. Therefore, in the instant case\nmerely because the assessments are not best judgment\nassessments, it cannot be said that sub-s. (3) of s. 14 is\ninapplicable. Neither the High Court nor the Tribunal gave\nadequate attention to the words 'before the date prescribed\nin that behalf' in cl. (i) of sub-s. (3) of s. 14. They laid\nemphasis only on the words 'fails to submit return' in the\nsaid sub-clause to arrive at a wrong conclusion. [743C, H;\n744A-B]\n\n State of Andhra Pradesh v. Pyarelal Malhotra, (13\nS.T.C. 946), and State of Madras v. S.G. Jayaraj Nadar &\nSons, 28 S.T.C. 700, distinguished.\n\nJUDGMENT:\n CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4448 of 1985.\n From the Judgment and order dated 26. 10. 1982 of the Andhra Pradesh High Court in Tax Revision Case No. 23 of 1978.\n WITH Civil Appeal No. 694 of 1986.\n From the Judgment and order dated 31.7.1985 of the Andhra Pradesh High Court in Tax Revision Case No. 205 of 1985.\n T.V.S.N. Chari for the Appellant. R. Ramachandran for the Respondents.\n The Judgment of the Court was delivered by VENKATARAMIAH, J. The question of law which arises in these two appeals by special leave being a common, they are disposed of by this common judgment. The said question relates to the time within which an assessment can be made under the provisions of the Andhra Pradesh General Sales Tax Act, 1957 (hereinafter referred to as 'the Act') where the return is not filed by the dealer within the time prescribed in that behalf.\n The assessee in Civil Appeal No. 4448 of 1985 is M/s.\nNav Swadeshi oil Mills, Jadcharla, Mahboobnagar district.\nFor assessment year 1968-69 the assessee filed its return relating to the quarter ending 31.3. ,969 on 7.8.1969 before the Commercial Tax Officer of Mahboobnagar under the Central Sales Tax Act, 1956 even though the last date for submission of return prescribed by law was 24.5. 1969. The return filed by the assessee showing a taxable turnover of Rs.\n18,25,410.72 was accepted and it was called upon to pay sales tax of Rs.45,424.48 under the Act. The assessment order was passed on 3.8.1973 beyond four years from 31.3.1969 which was the last day of the assessment year 1968-69. Aggrieved by the assessment order which had been passed beyond the period of four years from the last day of the assessment year the assessee filed an appeal before the Assistant Commissioner (CT) Appeals, Warangal in Appeal No.\n5 75-76 and that appeal was dismissed on 14.9.1976. Against the order of the Assistant Commissioner (CT) Appeals.\nWarangal the assessee filed an appeal before the Sales Tax Appellate Tribunal, Andhra Pradesh at Hyderabad in Tribunal Appeal No. 183 of 1977. That appeal also was dismissed. The assessee thereafter filed a revision petition in Tax Revision Case No. 23 of 1978 before the High Court of Andhra Pradesh. The High Court by its order dated October 26, 1982 set aside the order of the Tribunal and also the assessment on the ground that the assessment which had been passed after four years from the last day of the assessment year was not a valid assessment. Aggrieved by the decision of the High Court the State of Andhra Pradesh has filed this appeal by special leave.\n The assessee in Civil Appeal No. 694 of 1986 is M s.\nNav Swadeshi oil Mills and Refinery at Jadcharla. In respect of the assessment year 1968-69 the assessee filed an annual return under the provisions of the Central Sales Tax Act, 1956 on 19.8. 1969 after the expiryOf the prescribed period. The order of assessment was passed on 2.8.1973 beyond four years from the last day of the assessment year 1968-69. Aggrieved by the assessment order which had been passed by the assessing authority the assessee filed an appeal before the Assistant Commissioner (CT) Appeals, Warangal on the ground that the asssessment order passed beyond four years from the last day of the assessment year was barred by time. That appeal was dismissed. Against the order passed in that appeal the assessee filed an appeal before the Sales Tax Appellate Tribunal, Andhra Pradesh in Tribunal Appeal No. 206 of 1977.\nThe Tribunal allowed the appeal and set aside the assessment holding that the assessment had been passed beyond time.\nAggrieved by the decision of the Tribunal the State of Andhra Pradesh filed a Revision Petition in Tax Revision Case No. 205 of 1985 on the file of the High Court of Andhra Pradesh. That Revision Petition was dismissed in limine by the High Court. Aggrieved by the decision of the High Court the State of Andhra Pradesh has filed this appeal by special leave.\n The only question which arises for consideration in these appeals is whether the orders of assessment in the above two cases which had admittedly been passed beyond four years from the last day of the assessment year but within the period of six years from that date had been validly passed. By virtue of section 9 of the Central Sales Tax Act, 1956 the procedure prescribed for making an assessment under the Act is applicable to the assessments to be made under the Central Sales Tax Act, 1956. Section 13 of the Act prescribes that every dealer who is liable to get himself registered under section 12 or section 12-A as the case may be under the Act shall submit such return or returns relating to his turnover in such manner within such period and to such authority as may be prescribed. The material part of section 14 which is relevant for purposes of these cases reads thus: \"14. Assessment of tax: ( I) If the assessing authority is satisfied that any return submitted under section 13 is correct and complete, he shall assess the amount of tax payable by the dealer on the basis thereof, but if the return appears to him to be incorrect or incomplete he shall, after giving the dealer a reasonable opportunity of proving the correctness and completeness of the return submitted by him and making such inquiry as he deems necessary, assess to the best of his judgment, the amount of tax due from the dealer.\n An assessment under this section shall be made only within a period of four years from the expiry of the year to which the assessment relates.\n ...................\n (3) Where any dealer liable to tax under this Act- (i) fails to submit return before the date prescribed in that behalf, or (ii) produces the accounts, registered and other documents after inspection, or (iii) submits a return subsequent to the date of inspection, the assessing authority may, at any time within a period of six years from the expiry of the year to which assessment relates, after issuing a notice to the dealer and after such enquiry as he considers necessary, assess to the best of his judgment, the amount of tax due from the dealer on his turnover for that year, and may direct the dealer to pay in addition to the tax so assessed penalty as specified in subsection (8).\"\n It is necessary to analyse sub-section (1) and sub- section (3) of section 14 of the Act for purposes of determining the issue involved in these cases. Sub-section ( ]) of section 14 of the Act provides that if the assessing authority is satisfied that any return submitted under section 13 is correct and complete, he shall assess the amount of tax payable by the dealer on the basis thereof but if the return appears to the assessing authority to be incorrect or incomplete he shall after giving the dealer reasonable opportunity of proving the correctness and completeness of the return submitted and making such inquiry as he deems necessary, assess to the best of his judgment, the amount of tax due from the dealer. In both these cases the return contemplated is one which has been filed in accordance with section 13 of the Act within the time prescribed for that purpose. Such an assessment under sub- section ( 1) of section 14 of the Act can be made within a period of four years from the expiry of the period to which the assessment relates. Sub-section (3) of section 14 of the Act authorises the assessing authority to make an assessment to the best of his judgment in three cases: (i) where a dealer under the Act fails to submit return before the date prescribed in that behalf, (ii) where a dealer produces the accounts. registers and other documents after inspection and (iii) where a dealer submits a return subsequent to the date of inspection. In these three cases theassessing authority is empowered to make an assessment to the best of '4 his judgment at any time within a period of six years from the expiry of the year to which the assessment relates after issuing a notice to the dealer and after such inquiry which he considers necessary to make the assessment.\n The crucial question which arises for consideration in these cases is whether in a case where the assessee submits a true and complete return after the prescribed date the assessment should be completed within a period of four years prescribed by sub-section ( 1) of section 14 of the Act or within a period of six years permitted under sub-section (3) of section 14 of the Act. Sub-section (1) of section 14 of the Act relates to an assessment which may be made on the basis of a return submitted under section 13 of the Act.\nSection 13 of the Act as stated above provides that every dealer shall submit such return or returns relating to his turnover in such manner within such period and to such authority as may be prescribed. The return on the basis of which an assessment is to be made under section 14(1) of the Act is, therefore, a return filed within the prescribed period and in such a case the assessment has to be completed within a period of four years from the expiry of the year to which the assessment relates. The return referred to in sub- section ( 1) of section 14 of the Act cannot be a return filed beyond the prescribed date is emphasised by clause (i) of sub-section (3) of section 14 of the Act which refers to a case where a dealer liable to pay tax fails to submit return before the date prescribed in that behalf. All cases where the return is submitted beyond the prescribed date fall under sub-section (3) of section 14 of the Act.\n The scheme of the Act regarding the period within which assessments can be made is very simple. Assessments in cases falling under sub-section (1) of section 14 of the Act have to be completed within four years from the expiry of the year to which the assessment relates and assessments in cases falling under sub-section (3) of section 14 of the Act may be completed within six years from the expiry of the year to which the assessment relates. The two types of cases which fall under sub-section (l) and sub-section (3) of section 14 of the Act respectively are mutually exclusive.\nWhen once it is established in case that a return has not been filed within the prescribed period such case falls outside section 14 ( l) of the Act and therefore the period of four years prescribed therein becomes automatically inapplicable. It clearly falls under clause (i) of sub- section (3) of section 14 of the Act and assessment can be made in such a case within the expiry of the period of six years. While a dealer who files a return within the prescribedperiod acquires immunity against assessment on the expiry of four years from the last day of the assessment year, a dealer who fails to file a return within the prescribed period has to wait for six years to be over to acquire such immunity. Thus the Act confers a distinct advantage on a dealer who is prompt in filing his return.\n We are not impressed by the argument that since the returns in the cases before us had been accepted even though they had been filed beyond the prescribed date the assessments made thereon cannot be considered as best judgment assessment and therefore sub-section (3) of section 14 of the Act under which it is permissible to make best judgment assessments would be inapplicable. The period within which assessments can be made under the Act does not depend upon the answer to the question whether the assessment in question is a best judgment assessment or it is an assessment made treating the return as correct and complete but it depends upon the other conditions mentioned in sub-section ( 1) and in sub-section (3) of section 14 of the Act. We may here point out that even in a case falling under subsection (1) of section 14 of the Act it is possible for the assessing authority to make a best judgment assessment as can be seen from the latter part of the said sub-section which reads: \"but if the return appears to him to be incorrect or incomplete he shall after giving the dealer a reasonable opportunity of proving the correctness and completeness of the return submitted by him and making such inquiry as he deems necessary, assess to the best of his judgment, the amount of tax due from the dealer.\" Yet such best judgment assessment has to be completed within a period of four years from the expiry of the year to which the assessment relates. Hence it cannot be held that merely because the assessments in question are not best judgment assessments sub-section (3) of section 14 of the Act is inapplicable for best judgment assessments can be made both under sub-section (1) and subsection (3) of section 14 of the Act. That the assessment is a best judgment assessment is not, therefore, decisive of the question involved in these appeals.\n The decision of the Andhra Pradesh High Court in the State of Andhra Pradesh v. Pyarelal Malhotra 13 S.T.C. 946 and the decision of this Court in the State of Madras v.\n S.G. Jayaraj Nadar & Sons 28 S.T.C. 700 which dealt with the question as to when a best judgment assessment could be made are not relevant for purposes of deciding the question which has arisen before us. As we have already pointed out the question whether the assessment made is the best judgment assessment or not has no bearing at all on the period within which an assess- ment can be made under the Act. Neither in the judgment of the High Court against which Civil Appeal No. 4448 of 1985 is filed nor in the judgment of the Tribunal out of which Civil Appeal No. 694 of 1986 arises adequate attention is given to the words 'before the date prescribed in that behalf in clause (i) of sub-section (3) of section 14 of the Act. The High Court and the Tribunal laid emphasis only on the words \"fails to submit return\" in the said sub-clause and it is on this account they arrived at a wrong conclusion.\n On a true construction of sub-section (I) and sub- section (3) of section 14 of the Act we are of opinion that where a return is not filed by a dealer before the date prescribed in that behalf under the Act, the assessing authority has got jurisdiction to complete the assessment within a period of six years from the expiry of the year to which the assessment relates. Admittedly, in these cases the returns were not filed within the prescribed date and the assessments have been made within six years from the expiry of the year to which the assessments relate. The orders of the High Court against which these appeals have been filed are therefore liable to be set aside. In Civil Appeal No.\n 4448 or 1985 the judgment of the High Court is set aside and the judgment of the Tribunal is restored. In Civil Appeal No. 694 of 1986 the order of the High Court and the judgment of the tribunal are set aside and judgment of the Assistant Commissioner (CT) Appeals, Warangal is restored. The respondent shall pay the costs of the Appellant in both the appeals.\n P.S.S. Appeals allowed.\n "
} |
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"text": "IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\n DATED THIS THE 23TH DAY OF OCTOBER 2020\n\n BEFORE"
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"text": "\n\nTHE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO\n\n CRIMINAL PETITION NO.4924/2020"
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],
"start": 197,
"text": "\n\nSRI SUGANDARAJU N.R.\nS/O LATE NARASIMAIAH,\nAGED ABOUT 53 YEARS,\nR/O NARASIMHA KRUPA,\nWARD 19, BEHIND M.G.COLLEGE,\nKUNIGAL TOWN, TUMKUR DISTRICT,\nPIN-572 130, WORKING AT KITTUR RANI\nCHENNAMMA RESIDENTIAL SCHOOL,\nHULIKATTE HOBLI, MAGADI TALUK,\nRAMANAGAR DISTRICT.\n\n .... PETITIONER\n\n(BY SRI KEMPARAJU, ADVOCATE)\n\nAND :\n\nTHE STATE OF KARNATAKA\nBY MAGADI POLICE STATION,\nRAMANAGARA DISTRICT,\nREP. BY ITS\nSTATE PUBLIC PROSECUTOR,\nHIGH COURT COMPELX,\nBENGALURU-560 001.\n\n .... RESPONDENT\n\n(BY SRI DINAKAR MADDUR, HCGP)\n\n\n THIS CRIMINAL PETITION IS FILED U/S 438\nOF CR.P.C. SEEKING TO ENLARGE THE PETITIONER\nON ANTICIPATORY BAIL IN THE EVENT OF HIS\nARREST IN CRIME NO.49/2020 OF RESPONDENT\nMAGADI POLICE STATION, FOR THE OFFENCES\nPUNISHABLE UNDER SECTION 8, 12 OF POCSO\nACT, PENDING ON THE FILE OF I ADDITIONAL\nDISTRICT AND SESSIONS COURT AT RAMANAGAR,\nIN THE INTEREST OF JUSTICE AND EQUITY."
}
},
{
"from_name": null,
"id": "e20adc0060c74ab5a77027777193e185",
"to_name": null,
"type": null,
"value": {
"end": 1328,
"labels": [
"PREAMBLE"
],
"start": 1184,
"text": "\n\nTHIS CRIMINAL PETITION PERTAINING TO\n\nBENGALURU BENCH COMING ON FOR ORDERS AT DHARWAD BENCH THROUGH VIDEO CONFERENCING THIS DAY"
}
},
{
"from_name": null,
"id": "e2f379cac9704c299780e6745d1c5518",
"to_name": null,
"type": null,
"value": {
"end": 1365,
"labels": [
"PREAMBLE"
],
"start": 1328,
"text": ", THE COURT MADE THE FOLLOWING: ORDER"
}
},
{
"from_name": null,
"id": "a83632b2d82b4343ab7dfcc7a7e3fd81",
"to_name": null,
"type": null,
"value": {
"end": 1487,
"labels": [
"FAC"
],
"start": 1366,
"text": "This bail petition is filed under Section 438 of the Code of Criminal Procedure by the accused seeking anticipatory bail."
}
},
{
"from_name": null,
"id": "2787ddcb76e54c8faab948a9a2bbf88d",
"to_name": null,
"type": null,
"value": {
"end": 1530,
"labels": [
"FAC"
],
"start": 1487,
"text": "\n 2. This is a successive bail application."
}
},
{
"from_name": null,
"id": "9840857d054c4d3fa978400f6775b496",
"to_name": null,
"type": null,
"value": {
"end": 1669,
"labels": [
"FAC"
],
"start": 1530,
"text": "\n On the previous occasion, this court had disposed of a criminal petition filed by the petitioner in Crl.P.No.3016/2020 on 10.07.2020."
}
},
{
"from_name": null,
"id": "2d0f11b9346e4445a9bbe6f2b7b73f93",
"to_name": null,
"type": null,
"value": {
"end": 2033,
"labels": [
"FAC"
],
"start": 1669,
"text": "\n 3. The substance of the complaint and the case of the prosecution as stated in paragraph No.8 of the order in Crl.P.No.3016/2020 is as under: \"The substance of the complaint as could be seen is that on 11.03.2020 the informant principal of school lodged information against petitioner after finding a letter put in the suggestion box of the school on 26.02.2020."
}
},
{
"from_name": null,
"id": "654fab6ac54c4a3dad5f05d471e5ecd5",
"to_name": null,
"type": null,
"value": {
"end": 2095,
"labels": [
"FAC"
],
"start": 2034,
"text": "The Deputy Director of Social Welfare Department, Ramanagar"
}
},
{
"from_name": null,
"id": "80bc38d5382d40e4858f6ac202fc92dd",
"to_name": null,
"type": null,
"value": {
"end": 2376,
"labels": [
"FAC"
],
"start": 2096,
"text": "visited the school on 10.03.2020 and interacted with the victim and found when she was studying in 9th Standard the accused was misbehaving with the victim girl and used to kiss her and called her over phone by assuring her of getting a silver chain to her and continued the same."
}
},
{
"from_name": null,
"id": "819af304b1e542f7a511a80fe78a15f2",
"to_name": null,
"type": null,
"value": {
"end": 2531,
"labels": [
"FAC"
],
"start": 2377,
"text": "Even during the month of December despite refusal the accused misbehaved with her by touching her private parts and caused mental agony and physical pain."
}
},
{
"from_name": null,
"id": "3b18c41c629f4cee89a937606bc38cc6",
"to_name": null,
"type": null,
"value": {
"end": 2758,
"labels": [
"FAC"
],
"start": 2532,
"text": "The jurisdictional police on the strength of the complaint registered Crime No.49/2020 for the offence punishable under Sections 8 and 12 of Protection of Children from Sexual Offences Act, 2012 and apprehending arrest."
}
},
{
"from_name": null,
"id": "867c958fabfe45dc8cbea75b6801e00c",
"to_name": null,
"type": null,
"value": {
"end": 2805,
"labels": [
"FAC"
],
"start": 2759,
"text": "Hence, the petitioner seeks anticipatory bail."
}
},
{
"from_name": null,
"id": "9637cbb0e81c4ba0a159c7fa9fab3324",
"to_name": null,
"type": null,
"value": {
"end": 2903,
"labels": [
"FAC"
],
"start": 2806,
"text": "Petitioner claims innocence and would abide by the conditions that may be imposed by this Court.\""
}
},
{
"from_name": null,
"id": "46f1b77fd98747aa9781b304a39cd2f8",
"to_name": null,
"type": null,
"value": {
"end": 3026,
"labels": [
"RLC"
],
"start": 2903,
"text": "\n 4. Paragraph No.14 of the order including the operative portion is necessary to be mentioned here which is as under: \"14."
}
},
{
"from_name": null,
"id": "214d49a31ce94ae2854e683a8b262cd2",
"to_name": null,
"type": null,
"value": {
"end": 3102,
"labels": [
"RLC"
],
"start": 3027,
"text": "In the circumstances question of delay may not assume serious significance."
}
},
{
"from_name": null,
"id": "4411e317db7a4f2eae7d09916df5cf02",
"to_name": null,
"type": null,
"value": {
"end": 3266,
"labels": [
"RLC"
],
"start": 3103,
"text": "Considering the continuity of offence, it has gone reasonably for a lengthier period, I do not find the petitioner is entitled for the relief of anticipatory bail."
}
},
{
"from_name": null,
"id": "c601989fb2d64030a2fb07812765bad5",
"to_name": null,
"type": null,
"value": {
"end": 3325,
"labels": [
"RLC"
],
"start": 3266,
"text": "\n Application is devoid of merits and the same is rejected."
}
},
{
"from_name": null,
"id": "018e538289e14ea0929b5a5c366b65a1",
"to_name": null,
"type": null,
"value": {
"end": 3410,
"labels": [
"RLC"
],
"start": 3325,
"text": "\n Petitioner is directed to surrender before the respondent No.1police in this case.\""
}
},
{
"from_name": null,
"id": "d5558551b3cc41cca043351ff61c2d63",
"to_name": null,
"type": null,
"value": {
"end": 3535,
"labels": [
"ARG_PETITIONER"
],
"start": 3410,
"text": "\n 5. The only ground urged by the learned counsel for the petitioner is that the victim has sought for dismissal of the case."
}
},
{
"from_name": null,
"id": "10cbcf1097744cc896ab2392e5120f83",
"to_name": null,
"type": null,
"value": {
"end": 4024,
"labels": [
"NONE"
],
"start": 3536,
"text": "The statement of the victim recorded under Section 164 of Cr.P.C on 08.07.2020 before the learned II Additional Civil Judge & JMFC Court, Magadi is as under: \"zAq QAi Av PA-164 g CrAiİ ýP :- (E Pgz . ƮP gzPƼv) P Drlggg Q qwgĪ ܼz qɸĮ Pz J vAwP DVz, DrAi & rAi v Ez JAz Rav rz Avg Qzgg qAiįVz.\n Qzgg Pgtz iwAiģ CxirPAq AgĪzjAz KĪ x âv.\n QU it Z : JU Ag?\n Gvg: ðø ouU (Ļ v P̼ Pt ESAiİ vAwP zõz v ..\n qɸ zsU Pgt ouU PgvgVz JAz wgvg."
}
},
{
"from_name": null,
"id": "56bf1bd7979c48838bcc3565f2b5ca41",
"to_name": null,
"type": null,
"value": {
"end": 4031,
"labels": [
"NONE"
],
"start": 4025,
"text": "zj ZgV"
}
},
{
"from_name": null,
"id": "1c76f07012b14f0fab475097a48ed107",
"to_name": null,
"type": null,
"value": {
"end": 4142,
"labels": [
"NONE"
],
"start": 4032,
"text": "Qzgg Q üĪ Por v Aiigzg EzgAi JAz PüV zjAiĪg E JAz Gvjz, v .. ƮP At PorAiģ Qz zj PorAiİ Qzgg gvĥr g Aiig dg Eg."
}
},
{
"from_name": null,
"id": "0f4826ff2aac4068ad8d666962cf8a5e",
"to_name": null,
"type": null,
"value": {
"end": 4209,
"labels": [
"NONE"
],
"start": 4143,
"text": " Qzgg AU vAiģ ev EjPƼ EaѸwg JAz PüV, zjAiĪg M Ez Gvjvã JAz wgvg."
}
},
{
"from_name": null,
"id": "f2077f79b0004900bff3fd823649fe2f",
"to_name": null,
"type": null,
"value": {
"end": 4249,
"labels": [
"NONE"
],
"start": 4220,
"text": "DzjAz Qzgg ýPAiģ PɼVAv zRVz.)"
}
},
{
"from_name": null,
"id": "f79bbcae2d1443ad97ebe10a18d86fdf",
"to_name": null,
"type": null,
"value": {
"end": 4258,
"labels": [
"NONE"
],
"start": 4250,
"text": ": KP Ag?"
}
},
{
"from_name": null,
"id": "755fed351ab54ec5878e926532b363ca",
"to_name": null,
"type": null,
"value": {
"end": 4715,
"labels": [
"NONE"
],
"start": 4260,
"text": "Gvg : Ai .n.g AU PlzV qzPAzݣ ü Agvã.\n : Aiig PgzPAq Azg?\n Gvg: v ev Azã.\n : ýP q U Aiigzg MvAi Cx Dĵ irzgAi?\n Gvg : E.\n : K K Agwg?\n Gvg: 7 vgUwAiİ Qvg gt Zߪ w U jz CAAz .n.\n g gg ߣ ZɣV ivrwzg Dzg 9 vgUwU AzU Avg q K ivqPzg vz gzPq JAz üwzg U M EzU ߣAU PlzV ivqĪz iqwzg.\n CzgAv ɬAz n VzU Pz PĽv AU CsV ivr P l֪z, JAiĪz iqwzg. 10 vgUwU Az Avg Jz eAiiV .n.g gg U Q iqĪz, JzAiģ l֪z, vPƼz, JzqĪz iqwz, J j q JAz ýzg Pq iv .n.g Püwg."
}
},
{
"from_name": null,
"id": "9330ee9039f04861b879c0b3990d5bda",
"to_name": null,
"type": null,
"value": {
"end": 4756,
"labels": [
"NONE"
],
"start": 4716,
"text": "F Zg PƣU sAq U wzU zjAiĪg gjU wĪAv ýzg."
}
},
{
"from_name": null,
"id": "c08a5af00ca5413b95bbab20fea645fa",
"to_name": null,
"type": null,
"value": {
"end": 4905,
"labels": [
"NONE"
],
"start": 4757,
"text": "CzgAv PAAm P gz Qz, Cz rz gg ߣ Pgz Pýz, Ez Zg Cg Aiİ ýzU, Cg ðøjU PAAm Pqt JAz ýzg. CzPV F ýP qwzã.\n : Aii PgtPV ýP Pqwgīj?\n Gvg:"
}
},
{
"from_name": null,
"id": "823ee66c0de14b8ebf7a5480fcb0f612",
"to_name": null,
"type": null,
"value": {
"end": 4916,
"labels": [
"NONE"
],
"start": 4906,
"text": "Pgt eiqPAz"
}
},
{
"from_name": null,
"id": "5f768b8321b34e6cb97d3730b117e9c1",
"to_name": null,
"type": null,
"value": {
"end": 4924,
"labels": [
"NONE"
],
"start": 4917,
"text": "PýPƼvã."
}
},
{
"from_name": null,
"id": "e4cfde89da064a529ad8e875817ffeeb",
"to_name": null,
"type": null,
"value": {
"end": 5050,
"labels": [
"NONE"
],
"start": 4924,
"text": "\n (Pëq-19 U AAzAv i GZ AiiAiz J.N.. grz, CzgAv QAi ýPAiģ ..ƮP Pý AixvV gZ ir, N wVz v Qzgg Aiģ qAiįVz JAz F ƮP zrPjVz)\""
}
},
{
"from_name": null,
"id": "b0bde7dd9d1f41bda6e33cca16788bab",
"to_name": null,
"type": null,
"value": {
"end": 5153,
"labels": [
"ANALYSIS"
],
"start": 5050,
"text": "\n 6. The substance of the statement is that the witness was accommodated with free and fair atmosphere."
}
},
{
"from_name": null,
"id": "e71c2b0195294e14b890b7783b6622fa",
"to_name": null,
"type": null,
"value": {
"end": 5186,
"labels": [
"ANALYSIS"
],
"start": 5154,
"text": "She was ready to give statement."
}
},
{
"from_name": null,
"id": "039da04b326741b4a76c6f4dac500443",
"to_name": null,
"type": null,
"value": {
"end": 5278,
"labels": [
"ANALYSIS"
],
"start": 5187,
"text": "She answers questions which reveal that she was ready to answer based on rational judgment."
}
},
{
"from_name": null,
"id": "69763800046e4b84b1b32d0fe2c0b5d8",
"to_name": null,
"type": null,
"value": {
"end": 5531,
"labels": [
"ANALYSIS"
],
"start": 5279,
"text": "She tells the mischief and unfair advancement by the accused, which included sexual advancement in the bus when they were on a picnic, 2) touching inappropriate places, kissing, he hugging, touching breast, pulling pushing despite her stiff resistance."
}
},
{
"from_name": null,
"id": "1297c34ff50249599b8ea5a9ed397c5b",
"to_name": null,
"type": null,
"value": {
"end": 5640,
"labels": [
"ANALYSIS"
],
"start": 5532,
"text": "Her friends advised her to write complaint and put in the compliant box, she did so, Principal enquired her."
}
},
{
"from_name": null,
"id": "3cdce24a20714f6fb154fc38c5c509b8",
"to_name": null,
"type": null,
"value": {
"end": 5682,
"labels": [
"ANALYSIS"
],
"start": 5641,
"text": "He advised her to lodge Police complaint."
}
},
{
"from_name": null,
"id": "04b88b79f36140c8bef18a38c93d5519",
"to_name": null,
"type": null,
"value": {
"end": 5812,
"labels": [
"ANALYSIS"
],
"start": 5683,
"text": "She was giving statement finally to a question regarding the purpose of statement, she tells that it was for dismissing the case."
}
},
{
"from_name": null,
"id": "ebb004bbe58d4b249b6ca9726b972eea",
"to_name": null,
"type": null,
"value": {
"end": 5908,
"labels": [
"NONE"
],
"start": 5812,
"text": "\n(Necessary precaution were taken for video conference in view of COVID-19 statement read over)."
}
},
{
"from_name": null,
"id": "a43faeecc0b94676a85977a44d570783",
"to_name": null,
"type": null,
"value": {
"end": 5992,
"labels": [
"ARG_RESPONDENT"
],
"start": 5908,
"text": "\n 7. Learned High Court Government Pleader strenuously opposed the bail application."
}
},
{
"from_name": null,
"id": "d5fb9d427f3348778a7757f99b154f19",
"to_name": null,
"type": null,
"value": {
"end": 6291,
"labels": [
"ARG_PETITIONER"
],
"start": 5994,
"text": "8. Learned counsel appearing for the petitioner Sri Kemparaju submits that, considering the intention of the victim girl while answering during recording the statement under Section 164 of Cr.P.C., is to dismiss the case and the successive bail application for anticipatory bail may be considered."
}
},
{
"from_name": null,
"id": "033a5a60d57345db9477980143260e5f",
"to_name": null,
"type": null,
"value": {
"end": 6330,
"labels": [
"ANALYSIS"
],
"start": 6291,
"text": "\n 9. Earlier order is dated 10.07.2020."
}
},
{
"from_name": null,
"id": "a992078e32ef4a0f9159945ef6e48b95",
"to_name": null,
"type": null,
"value": {
"end": 6373,
"labels": [
"ANALYSIS"
],
"start": 6330,
"text": "\nThe date of the incident is on 01.06.2018."
}
},
{
"from_name": null,
"id": "90501172dc4e4c9f9f7eabc54339f031",
"to_name": null,
"type": null,
"value": {
"end": 6509,
"labels": [
"ANALYSIS"
],
"start": 6374,
"text": "The statement recorded under Section 164 of Cr.P.C, which is relied upon by the learned counsel for the petitioner is placed before me."
}
},
{
"from_name": null,
"id": "a9b0e08291304f0997dd69546935d12b",
"to_name": null,
"type": null,
"value": {
"end": 6803,
"labels": [
"ANALYSIS"
],
"start": 6509,
"text": "\nThe substance of the 164 statement is that the complaint against the petitioner is repeated misbehavior and is stated regarding vulgar talk and abusing and advancing against the victim in the bus while the school students had gone for a trip again talking indecently touching the leg, pulling."
}
},
{
"from_name": null,
"id": "37aee1336882461584b9ebc9a3e3fd95",
"to_name": null,
"type": null,
"value": {
"end": 7020,
"labels": [
"ANALYSIS"
],
"start": 6804,
"text": "When the victim entered into 10th standard, started touching, pulling and pushing despite resistance and for the last question when it was asked as to why the statement was given, the victim says to dismiss the case."
}
},
{
"from_name": null,
"id": "5a030b01a7664235a480506cc84ba67a",
"to_name": null,
"type": null,
"value": {
"end": 7192,
"labels": [
"ANALYSIS"
],
"start": 7020,
"text": "\n 10. It is this answer of the victim girl, learned counsel for the petitioner submits as a changed circumstance that entitles the petitioner-accused for anticipatory bail."
}
},
{
"from_name": null,
"id": "6d875876435e4951b79eb1c4b49cb748",
"to_name": null,
"type": null,
"value": {
"end": 7379,
"labels": [
"ANALYSIS"
],
"start": 7193,
"text": "This court takes serious exception to such a kind of submission in the context of circumstances as victim reiterates the abuse, and misbehavior and other indecent acts by the petitioner."
}
},
{
"from_name": null,
"id": "816e9e182ee24c148f44e8fe02fc67f0",
"to_name": null,
"type": null,
"value": {
"end": 7502,
"labels": [
"RATIO"
],
"start": 7379,
"text": "\n 11. The Petitioner aspires for taking unfair advantage of unintentional slip of tongue during the recording of statement."
}
},
{
"from_name": null,
"id": "fee87fb958df46ac89032cb55f513a76",
"to_name": null,
"type": null,
"value": {
"end": 7747,
"labels": [
"RPC"
],
"start": 7502,
"text": "\n 12. This is an application for anticipatory bail and in the circumstance of the case, it can never be a changed circumstance that enables to allow the successive bail application and it is liable to be rejected and accordingly, it is rejected."
}
},
{
"from_name": null,
"id": "aeac72515f4244e2bb3c879ce851f307",
"to_name": null,
"type": null,
"value": {
"end": 7762,
"labels": [
"NONE"
],
"start": 7747,
"text": "\n Sd/- JUDGE EM"
}
}
]
}
] | 4,232 | {
"text": "IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\n DATED THIS THE 23TH DAY OF OCTOBER 2020\n\n BEFORE\n\nTHE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO\n\n CRIMINAL PETITION NO.4924/2020\n\nBETWEEN :\n\nSRI SUGANDARAJU N.R.\nS/O LATE NARASIMAIAH,\nAGED ABOUT 53 YEARS,\nR/O NARASIMHA KRUPA,\nWARD 19, BEHIND M.G.COLLEGE,\nKUNIGAL TOWN, TUMKUR DISTRICT,\nPIN-572 130, WORKING AT KITTUR RANI\nCHENNAMMA RESIDENTIAL SCHOOL,\nHULIKATTE HOBLI, MAGADI TALUK,\nRAMANAGAR DISTRICT.\n\n .... PETITIONER\n\n(BY SRI KEMPARAJU, ADVOCATE)\n\nAND :\n\nTHE STATE OF KARNATAKA\nBY MAGADI POLICE STATION,\nRAMANAGARA DISTRICT,\nREP. BY ITS\nSTATE PUBLIC PROSECUTOR,\nHIGH COURT COMPELX,\nBENGALURU-560 001.\n\n .... RESPONDENT\n\n(BY SRI DINAKAR MADDUR, HCGP)\n\n\n THIS CRIMINAL PETITION IS FILED U/S 438\nOF CR.P.C. SEEKING TO ENLARGE THE PETITIONER\nON ANTICIPATORY BAIL IN THE EVENT OF HIS\nARREST IN CRIME NO.49/2020 OF RESPONDENT\nMAGADI POLICE STATION, FOR THE OFFENCES\nPUNISHABLE UNDER SECTION 8, 12 OF POCSO\nACT, PENDING ON THE FILE OF I ADDITIONAL\nDISTRICT AND SESSIONS COURT AT RAMANAGAR,\nIN THE INTEREST OF JUSTICE AND EQUITY.\n\nTHIS CRIMINAL PETITION PERTAINING TO\n\nBENGALURU BENCH COMING ON FOR ORDERS AT DHARWAD BENCH THROUGH VIDEO CONFERENCING THIS DAY, THE COURT MADE THE FOLLOWING: ORDER This bail petition is filed under Section 438 of the Code of Criminal Procedure by the accused seeking anticipatory bail.\n 2. This is a successive bail application.\n On the previous occasion, this court had disposed of a criminal petition filed by the petitioner in Crl.P.No.3016/2020 on 10.07.2020.\n 3. The substance of the complaint and the case of the prosecution as stated in paragraph No.8 of the order in Crl.P.No.3016/2020 is as under: \"The substance of the complaint as could be seen is that on 11.03.2020 the informant principal of school lodged information against petitioner after finding a letter put in the suggestion box of the school on 26.02.2020. The Deputy Director of Social Welfare Department, Ramanagar visited the school on 10.03.2020 and interacted with the victim and found when she was studying in 9th Standard the accused was misbehaving with the victim girl and used to kiss her and called her over phone by assuring her of getting a silver chain to her and continued the same. Even during the month of December despite refusal the accused misbehaved with her by touching her private parts and caused mental agony and physical pain. The jurisdictional police on the strength of the complaint registered Crime No.49/2020 for the offence punishable under Sections 8 and 12 of Protection of Children from Sexual Offences Act, 2012 and apprehending arrest. Hence, the petitioner seeks anticipatory bail. Petitioner claims innocence and would abide by the conditions that may be imposed by this Court.\"\n 4. Paragraph No.14 of the order including the operative portion is necessary to be mentioned here which is as under: \"14. In the circumstances question of delay may not assume serious significance. Considering the continuity of offence, it has gone reasonably for a lengthier period, I do not find the petitioner is entitled for the relief of anticipatory bail.\n Application is devoid of merits and the same is rejected.\n Petitioner is directed to surrender before the respondent No.1police in this case.\"\n 5. The only ground urged by the learned counsel for the petitioner is that the victim has sought for dismissal of the case. The statement of the victim recorded under Section 164 of Cr.P.C on 08.07.2020 before the learned II Additional Civil Judge & JMFC Court, Magadi is as under: \"zAq QAi Av PA-164 g CrAiİ ýP :- (E Pgz . ƮP gzPƼv) P Drlggg Q qwgĪ ܼz qɸĮ Pz J vAwP DVz, DrAi & rAi v Ez JAz Rav rz Avg Qzgg qAiįVz.\n Qzgg Pgtz iwAiģ CxirPAq AgĪzjAz KĪ x âv.\n QU it Z : JU Ag?\n Gvg: ðø ouU (Ļ v P̼ Pt ESAiİ vAwP zõz v ..\n qɸ zsU Pgt ouU PgvgVz JAz wgvg. zj ZgV Qzgg Q üĪ Por v Aiigzg EzgAi JAz PüV zjAiĪg E JAz Gvjz, v .. ƮP At PorAiģ Qz zj PorAiİ Qzgg gvĥr g Aiig dg Eg. Qzgg AU vAiģ ev EjPƼ EaѸwg JAz PüV, zjAiĪg M Ez Gvjvã JAz wgvg. DzjAz Qzgg ýPAiģ PɼVAv zRVz.) : KP Ag?\n Gvg : Ai .n.g AU PlzV qzPAzݣ ü Agvã.\n : Aiig PgzPAq Azg?\n Gvg: v ev Azã.\n : ýP q U Aiigzg MvAi Cx Dĵ irzgAi?\n Gvg : E.\n : K K Agwg?\n Gvg: 7 vgUwAiİ Qvg gt Zߪ w U jz CAAz .n.\n g gg ߣ ZɣV ivrwzg Dzg 9 vgUwU AzU Avg q K ivqPzg vz gzPq JAz üwzg U M EzU ߣAU PlzV ivqĪz iqwzg.\n CzgAv ɬAz n VzU Pz PĽv AU CsV ivr P l֪z, JAiĪz iqwzg. 10 vgUwU Az Avg Jz eAiiV .n.g gg U Q iqĪz, JzAiģ l֪z, vPƼz, JzqĪz iqwz, J j q JAz ýzg Pq iv .n.g Püwg. F Zg PƣU sAq U wzU zjAiĪg gjU wĪAv ýzg. CzgAv PAAm P gz Qz, Cz rz gg ߣ Pgz Pýz, Ez Zg Cg Aiİ ýzU, Cg ðøjU PAAm Pqt JAz ýzg. CzPV F ýP qwzã.\n : Aii PgtPV ýP Pqwgīj?\n Gvg: Pgt eiqPAz PýPƼvã.\n (Pëq-19 U AAzAv i GZ AiiAiz J.N.. grz, CzgAv QAi ýPAiģ ..ƮP Pý AixvV gZ ir, N wVz v Qzgg Aiģ qAiįVz JAz F ƮP zrPjVz)\"\n 6. The substance of the statement is that the witness was accommodated with free and fair atmosphere. She was ready to give statement. She answers questions which reveal that she was ready to answer based on rational judgment. She tells the mischief and unfair advancement by the accused, which included sexual advancement in the bus when they were on a picnic, 2) touching inappropriate places, kissing, he hugging, touching breast, pulling pushing despite her stiff resistance. Her friends advised her to write complaint and put in the compliant box, she did so, Principal enquired her. He advised her to lodge Police complaint. She was giving statement finally to a question regarding the purpose of statement, she tells that it was for dismissing the case.\n(Necessary precaution were taken for video conference in view of COVID-19 statement read over).\n 7. Learned High Court Government Pleader strenuously opposed the bail application.\n 8. Learned counsel appearing for the petitioner Sri Kemparaju submits that, considering the intention of the victim girl while answering during recording the statement under Section 164 of Cr.P.C., is to dismiss the case and the successive bail application for anticipatory bail may be considered.\n 9. Earlier order is dated 10.07.2020.\nThe date of the incident is on 01.06.2018. The statement recorded under Section 164 of Cr.P.C, which is relied upon by the learned counsel for the petitioner is placed before me.\nThe substance of the 164 statement is that the complaint against the petitioner is repeated misbehavior and is stated regarding vulgar talk and abusing and advancing against the victim in the bus while the school students had gone for a trip again talking indecently touching the leg, pulling. When the victim entered into 10th standard, started touching, pulling and pushing despite resistance and for the last question when it was asked as to why the statement was given, the victim says to dismiss the case.\n 10. It is this answer of the victim girl, learned counsel for the petitioner submits as a changed circumstance that entitles the petitioner-accused for anticipatory bail. This court takes serious exception to such a kind of submission in the context of circumstances as victim reiterates the abuse, and misbehavior and other indecent acts by the petitioner.\n 11. The Petitioner aspires for taking unfair advantage of unintentional slip of tongue during the recording of statement.\n 12. This is an application for anticipatory bail and in the circumstance of the case, it can never be a changed circumstance that enables to allow the successive bail application and it is liable to be rejected and accordingly, it is rejected.\n Sd/- JUDGE EM "
} |
{
"group": "Criminal"
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{
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"start": 0,
"text": "$~4\n* IN THE HIGH COURT OF DELHI AT NEW DELHI\n+ CRL A 1308/2015 & CRL M (B) 8293/2015\n X ..... Appellant\n Through: Mr. Harsh Prabhakar, Advocate\n (DHCLSC) with Mr. Salman Hashmi\n and Mr. Anirudh Tanwar, Advocates.\n\n versus\n\n STATE OF NCT OF DELHI ..... Respondent\n Through: Ms. Kusum Dhalla, APP along with\n Inspector Prashant Yadav, PS Jagat\n Puri\n CORAM:\n JUSTICE S. MURALIDHAR\n JUSTICE I.S. MEHTA\n\n JUDGMENT\n% 20.11.2017"
}
},
{
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"value": {
"end": 900,
"labels": [
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],
"start": 862,
"text": "Dr. S. Muralidhar, J.: Introduction 1."
}
},
{
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"id": "8ad27528f02349a5b8f1a437bbe8b0d7",
"to_name": "text",
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"value": {
"end": 1432,
"labels": [
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],
"start": 901,
"text": "This appeal is directed against the impugned judgment dated 10th August 2015 passed by the learned Additional Sessions Judge („ASJ‟), Karkardooma Courts in Sessions Case No.89/11 convicting the Appellant for the offence under Section 302 Indian Penal Code („IPC‟) for committing the murder of his wife and the order on sentence dated 17th August 2015 whereby he was sentenced to undergo imprisonment for life along with a fine of Rs.10,000/- and in default of payment of fine, to undergo further rigorous imprisonment for one year."
}
},
{
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"end": 1615,
"labels": [
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],
"start": 1434,
"text": "2. This Court has in the judgment that follows, accepted the Appellant's plea of defence of insanity under Section 84 IPC and acquitted him of the offence with which he was charged."
}
},
{
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"id": "549d20b977a74116a9beebb1187c018b",
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"end": 1773,
"labels": [
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],
"start": 1616,
"text": "The Court, therefore, considers appropriate to anonymise the name of the Appellant with 'X' and also refrain from mentioning the names of his family members."
}
},
{
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"value": {
"end": 1805,
"labels": [
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],
"start": 1775,
"text": "The case of the Prosecution 3."
}
},
{
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"value": {
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"labels": [
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],
"start": 1806,
"text": "The case of the prosecution is that on 22nd June 2011, at around 8.55 am, telephonic information was received from the East District Control Room under DD No.9-A regarding the death of a lady near Bharat National School."
}
},
{
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"end": 2151,
"labels": [
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],
"start": 2027,
"text": "The DD was marked to Sub-Inspector („SI‟) Dinesh (PW-15), who proceeded to the spot along with Constable Kunwar Pal (PW-19)."
}
},
{
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"value": {
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"labels": [
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],
"start": 2152,
"text": "Inspector O.P. Jhakar (PW-23) who was the Investigating Officer (IO) also reached the spot."
}
},
{
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"id": "c2648e9dbdc347058d51639ea913f3bf",
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"value": {
"end": 2298,
"labels": [
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],
"start": 2244,
"text": "A PCR van was already present when they reached there."
}
},
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"end": 2366,
"labels": [
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],
"start": 2299,
"text": "There, the Appellant's elder brother (PW-1) met the IO at the spot."
}
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{
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"id": "9bb16f20d1ea41a897eb46e50d4a33d5",
"to_name": "text",
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"value": {
"end": 2454,
"labels": [
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],
"start": 2367,
"text": "With the help of PW-1, the door of the house, which was on the first floor, was opened."
}
},
{
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"id": "9365cd411a4c4e68832af3a6094e1af8",
"to_name": "text",
"type": "labels",
"value": {
"end": 2550,
"labels": [
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],
"start": 2454,
"text": "\nThere they found the body of the deceased, the wife of the Appellant, lying in a pool of blood."
}
},
{
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"id": "3617670b59c7486d8eac24f84144a3e1",
"to_name": "text",
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"value": {
"end": 2603,
"labels": [
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],
"start": 2551,
"text": "A blood-stained tawa was found lying in the kitchen."
}
},
{
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"id": "496b736d644f4386a303ed46773b5fdc",
"to_name": "text",
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"value": {
"end": 2688,
"labels": [
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],
"start": 2604,
"text": "One blood stained knife was lying on the bed and one knife was lying in the kitchen."
}
},
{
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"id": "159cea110df346ef8bde146c92d3aff3",
"to_name": "text",
"type": "labels",
"value": {
"end": 2741,
"labels": [
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],
"start": 2689,
"text": "There was blood spattered in the room and the lobby."
}
},
{
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"id": "b4959bbb997645bcaa4acc9aae193229",
"to_name": "text",
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"value": {
"end": 2813,
"labels": [
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],
"start": 2743,
"text": "4. The Appellant was also present in the room in an injured condition."
}
},
{
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"to_name": "text",
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"value": {
"end": 2866,
"labels": [
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],
"start": 2814,
"text": "He was rushed to the nearby hospital in the PCR van."
}
},
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"to_name": "text",
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"value": {
"end": 2902,
"labels": [
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],
"start": 2867,
"text": "The statement of PW-1 was recorded."
}
},
{
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"to_name": "text",
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"value": {
"end": 3036,
"labels": [
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],
"start": 2903,
"text": "In it he stated that the Appellant, his younger brother, lived in a separate portion of the house on the first and the second floors."
}
},
{
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"value": {
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"labels": [
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],
"start": 3037,
"text": "The deceased used to do stitching work on the ground floor and was helped by her son (PW-2)."
}
},
{
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"id": "9ca1ab2feb71420ea752ecddbcef68f6",
"to_name": "text",
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"value": {
"end": 3211,
"labels": [
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],
"start": 3130,
"text": "PW-1 stated that the Appellant had not been doing any work for the last 15 years."
}
},
{
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"id": "a2e833ecbad04006a126528fd84cc2f0",
"to_name": "text",
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"value": {
"end": 3317,
"labels": [
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],
"start": 3212,
"text": "The Appellant suspected that the deceased was having an illicit relationship in connection with her work."
}
},
{
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"id": "83185c3a21e94b8a9f1a7c5dbd177da4",
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"value": {
"end": 3405,
"labels": [
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],
"start": 3318,
"text": "As a result, there used to be frequent quarrels between the Appellant and the deceased."
}
},
{
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"value": {
"end": 3431,
"labels": [
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],
"start": 3407,
"text": "Evidence at the trial 5."
}
},
{
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"value": {
"end": 3586,
"labels": [
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],
"start": 3432,
"text": "PW-1, in his statement to the police, stated that on the intervening night of 21st/22nd June 2011, the Appellant and the deceased were alone in the house."
}
},
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"value": {
"end": 3685,
"labels": [
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],
"start": 3586,
"text": "\nAt around 3 am, PW-1 awoke upon hearing the noise of a quarrel between the Appellant and his wife."
}
},
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"value": {
"end": 3740,
"labels": [
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],
"start": 3686,
"text": "According to PW-1, the Appellant was abusing his wife."
}
},
{
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"to_name": "text",
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"value": {
"end": 3842,
"labels": [
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],
"start": 3741,
"text": "When PW-1 knocked on the door of the room of his brother and called out to him, he received no reply."
}
},
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"end": 3878,
"labels": [
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],
"start": 3843,
"text": "The noise of quarrel also subsided."
}
},
{
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"to_name": "text",
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"value": {
"end": 3947,
"labels": [
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],
"start": 3878,
"text": "\nPW-1 noticed that the door of the house had been bolted from inside."
}
},
{
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"id": "c1085d8cc4e04bdf99da11afa0ecdc8f",
"to_name": "text",
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"value": {
"end": 4014,
"labels": [
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],
"start": 3948,
"text": "He returned to his quarters thinking that it was a routine affair."
}
},
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"end": 4157,
"labels": [
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],
"start": 4014,
"text": "\n 6. The next morning, at around 8-8.30 am, PW-1 went to the Appellant's house to enquire about the cause of the quarrel of the previous night."
}
},
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"value": {
"end": 4252,
"labels": [
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],
"start": 4158,
"text": "When he called out the Appellant by name, the Appellant came out onto the first floor balcony."
}
},
{
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"id": "c54d5ec24568474ca2ed0be9cd45d7a5",
"to_name": "text",
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"value": {
"end": 4316,
"labels": [
"FAC"
],
"start": 4253,
"text": "PW-1 noticed that the Appellant's clothes were soaked in blood."
}
},
{
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"id": "50ed7b3211d242dc80b25aba320c96b9",
"to_name": "text",
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"value": {
"end": 4449,
"labels": [
"FAC"
],
"start": 4317,
"text": "When PW-1 inquired about his sister-in-law, the Appellant replied that he had killed her in the night and that she was lying inside."
}
},
{
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"id": "c01e131ca02842a2b4a283c7b9301eeb",
"to_name": "text",
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"value": {
"end": 4492,
"labels": [
"FAC"
],
"start": 4450,
"text": "PW-1 asked the Appellant to open the door."
}
},
{
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"id": "13af5c50bb69451eba531d7eba59ada5",
"to_name": "text",
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"value": {
"end": 4571,
"labels": [
"FAC"
],
"start": 4493,
"text": "When he did, PW-1 went inside and found the deceased lying in a pool of blood."
}
},
{
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"id": "341325bd4e7f4e41927a0602c09e39ed",
"to_name": "text",
"type": "labels",
"value": {
"end": 4617,
"labels": [
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],
"start": 4572,
"text": "There was blood spattered all over the house."
}
},
{
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"id": "2b0b976fd1c743e9af93121076c80a04",
"to_name": "text",
"type": "labels",
"value": {
"end": 4712,
"labels": [
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],
"start": 4618,
"text": "PW-1 immediately bolted the door from the outside and called the police from his mobile phone."
}
},
{
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"id": "2cc37d6257e9475ebf09a5667458d350",
"to_name": "text",
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"value": {
"end": 4786,
"labels": [
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],
"start": 4713,
"text": "On the statement of PW-1, FIR No. 297/11 was registered at PS Jagat Puri."
}
},
{
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"end": 4839,
"labels": [
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],
"start": 4786,
"text": "\n 7. Twenty-four prosecution witnesses were examined."
}
},
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"labels": [
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"start": 4840,
"text": "In his statement under Section 313 Code of Criminal Procedure („Cr.PC‟), the Appellant stated that it was a false case; that he had a property dispute with PW-1 who tried to raise a wall in the house; and that he had got him falsely implicated in the case."
}
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"text": "\n 8. The Appellant filed a written statement under Section 313 (5) Cr PC in which in paragraphs 6, 7 and 8, he stated as under: “6. That the accused had been suffering mental disease for last 15 years and still under treatment for the same, even in the judicial custody."
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"text": "The accused above named has been suffering insanity."
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"text": "7. That it is also worth noticing that PW-03 [name withheld] was with the accused as an attendant of the accused when the accused was taking his treatment for mental disease and was administered electric shocks/E-Sitting for 15 days by Dr.\n Dipender Roy, Senior Psychiatric from the Ram Manohar Lohia Hospital and PW-03 is very much aware about the disease of the applicant / accused."
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"text": "8. That the accused has been falsely implicated in the present case even though the police officials have been very much aware that accused in an innocent person.”"
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"text": "9. Thereafter, three defence witnesses were examined."
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"text": "DW-1, the younger brother of the Appellant inter alia stated that the accused was “a patient of depression since childhood but he has been working regularly.”"
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"text": "He spoke about the property dispute between PW-1 and the Appellant."
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"text": "DW-2, an elder sister of the Appellant too stated that, “the accused is a patient of depression”."
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"text": "She also adverted to the fact that PW-1 wanted to grab the ancestral property."
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"text": "DW-3, another elder brother of the Appellant stated again that, “the accused is a patient of depression.”"
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"text": "He too spoke of the property dispute between PW-1 and the Appellant."
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"start": 6617,
"text": "\n Impugned judgment of the trial Court 10."
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"text": "The learned trial Court, by the impugned judgment dated 10th August 2015, found the Appellant guilty of the offence under Section 302 IPC."
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"start": 6799,
"text": "This being the case of circumstantial evidence, the trial Court outlined three circumstances relied upon by the prosecution to bring home the guilt of the accused as under: (i) Motive for murder – accused suspected the character of his wife; (ii) Extra-judicial confession made by the accused."
}
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"text": "\n (iii) Death within the four corners of the house and failure of accused to render any satisfactory explanation."
}
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"start": 7213,
"text": "11. The learned trial Court adverted to the complaint (Ex.PW-2/A) made by the deceased to the police on 19th May 2011, around one month prior to the incident, in which she stated that she apprehended danger to her life from her husband and nephew."
}
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"text": "She withdrew this complaint on 13 th June 2011 after arriving at a compromise with the Appellant (Ex.PW2/B)."
}
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"text": "The learned trial Court observed that from the testimonies of DW1, DW-2 and DW-3, it was evident that the Appellant was of a quarrelsome nature and he suspected the character of the deceased."
}
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"text": "The trial Court consequently concluded that the prosecution had been able to prove the motive for the commission of the offence beyond doubt."
}
},
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"text": "12. As regards the second circumstance concerning the extra-judicial confession made by the Appellant, the trial Court referred to the deposition of PW-1 and noticed that he had not been cross-examined with regard to the extra-judicial confession made by the Appellant before him."
}
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"text": "The trial Court further observed that from the evidence of DW-1 and DW-2 it appeared that there was no pending litigation between the Appellant and PW-1 regarding the property."
}
},
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"id": "4a22707a92184f158ddd6bee92c4b608",
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"text": "The said circumstance of the extra-judicial confession made by the Appellant to PW-1 was, therefore, held to be proved."
}
},
{
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],
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"text": "\n 13. As regards the third circumstance of the death having occurred within the four corners of the room in which the Appellant resided with the deceased, the trial Court observed that although, in his cross-examination, PW-1 accepted that he could not have possibly heard the quarrel between the Appellant and his wife at 3 am and therefore, to that extent, a doubt was created, it did not follow that the entire testimony of PW-1 in all other aspects should be discarded."
}
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],
"start": 8956,
"text": "The trial Court held that the rest of the testimony of PW-1 was trustworthy."
}
},
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"end": 9260,
"labels": [
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],
"start": 9033,
"text": "Invoking Section 106 of the Indian Evidence Act, 1862 („IEA‟), it was held that the Appellant failed to discharge his burden of giving a cogent explanation as to how the crime was committed since it took place inside his house."
}
},
{
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"value": {
"end": 9456,
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],
"start": 9260,
"text": "\n 14. The trial Court then turned to the defence of the Appellant that he was of unsound mind at the time of commission of offence and, therefore, entitled to acquittal in terms of Section 84 IPC."
}
},
{
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"id": "04d12ce436f24c02afe2507980e30af4",
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"value": {
"end": 9774,
"labels": [
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],
"start": 9457,
"text": "The trial Court referred to the admission by PW-1 in his cross-examination that the Appellant had been receiving treatment for his mental ailments from RML Hospital and the Institute of Human Behaviour and Allied Sciences (IHBAS) as also to the fact that in Ex.PW2/A, the deceased had herself adverted to that aspect."
}
},
{
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"id": "1a1f7cf167444fe7b187d1331a3740b1",
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"value": {
"end": 9871,
"labels": [
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],
"start": 9775,
"text": "She had stated therein that the Appellant was under treatment at IHBAS for the last five months."
}
},
{
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"id": "ca3c4d4333d041a9b2403e47c4b9ed8a",
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"value": {
"end": 10082,
"labels": [
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],
"start": 9872,
"text": "However, the Trial Court rejected this plea by observing that the mere fact that the Appellant had been occasionally subject to insane delusions was “per se insufficient to bring his case within the exemption.”"
}
},
{
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"id": "e828db9888ba465d9a5d02ab35ded997",
"to_name": "text",
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"value": {
"end": 10297,
"labels": [
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],
"start": 10083,
"text": "It was held that the Appellant did not produce any medical record of his treatment which may prove that he was suffering from any major mental ailment due to which he was unable to know the implications of his act."
}
},
{
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"id": "df42822b054a411d9f0230adfd4e0d2b",
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"value": {
"end": 10435,
"labels": [
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],
"start": 10298,
"text": "In his statement under Section 313 (5) Cr PC, the Appellant had not stated that he was suffering from any kind of serious mental ailment."
}
},
{
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"id": "a755839b570c464abbd3d654b1c89852",
"to_name": "text",
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"value": {
"end": 10522,
"labels": [
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],
"start": 10436,
"text": "Further, DW-1 and DW-2 had merely stated that the accused was a patient of depression."
}
},
{
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"id": "05fe0e24229545d7805b77dfdcdc8e57",
"to_name": "text",
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"value": {
"end": 10611,
"labels": [
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],
"start": 10522,
"text": "\nDespite this, he had been doing construction work like flooring and interior furnishing."
}
},
{
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"id": "e24ef5aa4f704c34b90959ab370f7464",
"to_name": "text",
"type": "labels",
"value": {
"end": 10705,
"labels": [
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],
"start": 10612,
"text": "For these reasons, it was held that the Appellant could not take advantage of Section 84 IPC."
}
},
{
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"id": "e0b26021387e4df2a73204bc25ff1866",
"to_name": "text",
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"value": {
"end": 10826,
"labels": [
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],
"start": 10706,
"text": "Thereafter, by a separate order dated 17th August 2015, the trial Court sentenced the Appellant as noticed hereinbefore."
}
},
{
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"end": 11065,
"labels": [
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],
"start": 10826,
"text": "\n 15. This Court has heard the submissions of Mr. Harsh Prabhakar, learned counsel appearing for the Appellant, having been nominated by the Delhi High Court Legal Services Committee and Ms. Kusum Dhalla, learned APP for the State.\n Orders"
}
},
{
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"end": 11089,
"labels": [
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"start": 11066,
"text": "passed by this Court 16"
}
},
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"to_name": "text",
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"value": {
"end": 11282,
"labels": [
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],
"start": 11089,
"text": ". At the time of admission of this appeal on 7th December 2015, this Court had directed the jail authorities to furnish a copy of the record of the treatment of the Appellant, if any, at IBHAS."
}
},
{
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"id": "e4805bcc32bf4423bf698b25069c7ba3",
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"text": "17. "
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"value": {
"end": 11691,
"labels": [
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],
"start": 11290,
"text": "When the Appellant was produced before the Court on 4th February 2016, the Superintendent Central Jail No.3 forwarded the medical status report of the Appellant which reads as under: “This is submitted for your kind information that the above said inmate patient (is) suffering from bipolar affective disorder and he has been under regular follow-up from jail S/R Psychiatrist."
}
},
{
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"id": "f5279d53139744ca9f2f563996a8d00f",
"to_name": "text",
"type": "labels",
"value": {
"end": 11762,
"labels": [
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],
"start": 11692,
"text": "At present he complains (about) decreased sleep, low mood and anxiety."
}
},
{
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"id": "762c1e3563144db4b64c8e8f30619eec",
"to_name": "text",
"type": "labels",
"value": {
"end": 11874,
"labels": [
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],
"start": 11763,
"text": "All the prescribed medicines are given to him under supervision daily and he is maintaining well on medication."
}
},
{
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"id": "ce77451c9726462cb34abfe2a74034a2",
"to_name": "text",
"type": "labels",
"value": {
"end": 11940,
"labels": [
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],
"start": 11875,
"text": "At present his general condition is stable and vitals are stable."
}
},
{
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"id": "a692c5b0ab0b426194f152dc78c17736",
"to_name": "text",
"type": "labels",
"value": {
"end": 12078,
"labels": [
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],
"start": 11940,
"text": "” 18. The Court in its order dated 4th February 2016 observed that it expected “a more comprehensive report” and called for it from IHBAS."
}
},
{
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"id": "aa4e4fbdaa0847bfb728a89695154e64",
"to_name": "text",
"type": "labels",
"value": {
"end": 12446,
"labels": [
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],
"start": 12079,
"text": "On 28th April 2016, the counsel for the State filed in the Court a whole bunch of papers which included the papers of the treatment received by the Appellant in October and November, 2010 at IHBAS and the OPD Registration Card of RML Hospital, New Delhi containing the details of the consultations the Appellant with a psychiatrist there way back on 11th August 2007."
}
},
{
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"id": "cc2d6bf98b204cfb9f9e29a5d132a144",
"to_name": "text",
"type": "labels",
"value": {
"end": 12519,
"labels": [
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],
"start": 12447,
"text": "There was also a discharge summary issued by IHBAS on 1st December 2010."
}
},
{
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"id": "84656eba247b43c49f47ec0a1e6720a3",
"to_name": "text",
"type": "labels",
"value": {
"end": 12665,
"labels": [
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],
"start": 12519,
"text": "\n 19. On 8th December 2016, an order was passed by this Court suspending the sentence of the Appellant for one month from the date of his release."
}
},
{
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"id": "df942f471074456d848cb84f8f896c8a",
"to_name": "text",
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"value": {
"end": 12858,
"labels": [
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],
"start": 12666,
"text": "The Court noted in the said order that the nominal roll dated 19th November 2016 showed that the Appellant had up to that date been in continuous incarceration of 4 years, 4 months and 4 days."
}
},
{
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"id": "31902bb362054569944bb531ef4efef7",
"to_name": "text",
"type": "labels",
"value": {
"end": 13187,
"labels": [
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],
"start": 12859,
"text": "The Court also noted that the State had placed on record the copy of the letter dated 20 th November 2016 from Dr. RML Hospital stating that the record which was directed to be produced by the earlier order dated 20th September 2016 was not traceable and further that the record of the patients were maintained only for 3 years."
}
},
{
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"id": "f61cab157fda419c8d8dab9b14745eeb",
"to_name": "text",
"type": "labels",
"value": {
"end": 13337,
"labels": [
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],
"start": 13187,
"text": "\nThe DDU Hospital informed the Court by a letter dated 29th November 2016 that only an OPD slip of the person admitted to that hospital was available."
}
},
{
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"id": "052bfe6ad691489591cd7b730d62cd47",
"to_name": "text",
"type": "labels",
"value": {
"end": 13623,
"labels": [
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],
"start": 13337,
"text": "\nThe Court then directed that it would be in the interest of justice if an effective assessment of the available record were to be undertaken by a competent expert and an opinion obtained as to the mental status of the Appellant as on 22nd June 2011 i.e. when the offence was committed."
}
},
{
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"id": "fd33796dcac14a5cb50ebd3314ddf0fa",
"to_name": "text",
"type": "labels",
"value": {
"end": 13782,
"labels": [
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],
"start": 13624,
"text": "The Registry was asked to forward the complete medical record to the Medical Superintendent, IHBAS for either examination by himself or by a competent expert."
}
},
{
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"id": "d39ff95a339542619326e34876d326af",
"to_name": "text",
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"value": {
"end": 13835,
"labels": [
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],
"start": 13783,
"text": "The report was asked to be submitted within 8 weeks."
}
},
{
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"id": "93e6ed8b795f4045b1188d2fdd4a11cb",
"to_name": "text",
"type": "labels",
"value": {
"end": 13988,
"labels": [
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],
"start": 13835,
"text": "\n 20. By its communication dated 23rd December 2016, IHBAS informed the Court that it would like to conduct an assessment of the patient‟s mental status."
}
},
{
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"id": "785ec0f0d247498eb23cc50340aa91f5",
"to_name": "text",
"type": "labels",
"value": {
"end": 14172,
"labels": [
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],
"start": 13989,
"text": "The jail authorities were directed to produce the Appellant in the Psychiatry OPD at IHBAS to enable the latter to give an opinion in terms of the Court order dated 8th December 2016."
}
},
{
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"id": "fb37438cb76d4082828e0653e40e7bc0",
"to_name": "text",
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"value": {
"end": 14338,
"labels": [
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],
"start": 14174,
"text": "21. To enable the Appellant to be produced before the doctors at IBHAS, the Court, by its order dated 24th May 2017, suspended the sentence for a period of 4 weeks."
}
},
{
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"id": "8f8983c0a03345efa011fcbd1354e990",
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"value": {
"end": 14496,
"labels": [
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],
"start": 14340,
"text": "22. On 17th October 2017, the Court referred to the report dated 9th October 2017 received from IHBAS which stated that the Appellant is fit to stand trial."
}
},
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"text": "As regards the question regarding his mental status on the date of commission of the offence, it stated as under: “3."
}
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"text": "The Medical Board also opined that mental status at the time of offence cannot be commented upon, on the basis of retrospective history and inadequate medical records pertaining to the time of offence.\n It is submitted to the Hon‟ble High Court that patient currently does not need further hospitalization and as per the Medical Board opinion, the patient can be managed on outpatient basis.” 23."
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"text": "The Court then directed the jail superintendent to take custody of the Appellant from IHBAS within 3 days."
}
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"text": "\n Circumstances proved against the Appellant 24."
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"text": "In the present case the evidence of PW-1, who was unable to be shaken in his cross-examination, has proved that (i) the death of the Appellant‟s wide was homicidal and (ii) that the Appellant made an extra judicial confession to PW-1 that the Appellant had killed his wife."
}
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"text": "The Appellant was present next to the dead body in his blood stained clothes."
}
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"text": "The weapons used were also recovered."
}
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"text": "PW-1 was also able to prove that at the time of commission of the offence only the Appellant and the deceased were together in their house which was bolted from the inside."
}
},
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],
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"text": "\n 25. With the above overwhelming evidence pointing to the guilt of the accused for the offence under Section 302 IPC, the arguments of Mr. Harsh Prabhakar, learned counsel for the Appellant, centred on the defence of insanity under Section 84 IPC."
}
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"text": "The law relating to the defence under Section 84 IPC 26."
}
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"text": "The Court would like to preface this discussion with an observation that Section 84 IPC underscores that mens rea is an essential element in a crime."
}
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"text": "\n It contemplates a situation where the person committing the crime may not at the time of such commission of crime, be aware of what he is doing."
}
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"text": "The rationale behind the defence under Section 84 IPC was explained by the Supreme Court in State of Rajasthan v. Shera Ram @ Vishnu Datta (2012) 1 SCC 602 in the following words: \"To commit a criminal offence, mens rea is generally taken to be an essential element of crime."
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"text": "It is said furiosi nulla voluntus est."
}
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"text": "In other words, a person who is suffering from a mental disorder cannot be said to have committed a crime as he does not know what he is doing."
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"text": "\n For committing a crime, the intention and act both are taken to be the constituents of the crime, actus non facit reum nisi mens sit rea."
}
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"text": "Every normal and sane human being is expected to possess some degree of reason to be responsible for his/her conduct and acts unless contrary is proved."
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"text": "But a person of unsound mind or a person suffering from mental disorder cannot be said to possess this basic norm of human behavior.\"\n 27."
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"text": "The expression used in Section 84 IPC is 'unsoundness of mind' and not 'insanity'."
}
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"text": "This appears to be for good reason since the expression 'insanity' apart from being stigmatic does not account for the varying degrees of unsoundness of the mind, all of which may not qualify for the defence under Section 84 IPC."
}
},
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"text": "In Hari Singh Gond v. State of Madhya Pradesh (2008) 16 SCC 109 the Supreme Court observed: \"Section 84 lays down the legal test of responsibility in cases of alleged unsoundness of mind."
}
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"text": "There is no definition of 'unsoundness of mind' in IPC."
}
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"text": "The courts have, however, mainly treated this expression as equivalent to insanity."
}
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"text": "But the term 'insanity' itself has no precise definition."
}
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"text": "It is a term used to describe varying degrees of mental disorder."
}
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"text": "So, every person, who is mentally diseased, is not ipso facto exempted from criminal responsibility."
}
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"text": "A distinction is to be made between legal insanity and medical insanity."
}
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"text": "A court is concerned with legal insanity, and not with medical insanity.\"\n 28."
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"text": "In Surendra Mishra v. State of Jharkhand (2011) 11 SCC 495, it was pointed out that \"every person who is suffering from mental disease is not ipso facto exempted from criminal liability.\""
}
},
{
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"text": "in Shrikant Anandrao Bhosale v. State of Maharashtra (2002) 7 SCC 748, which was a case where the defense under Section 84 IPC on the ground of paranoid schizophrenia was accepted, the Supreme Court explained that \"it is the totality of the circumstances seen in the light of the evidence on record\"\nwhich would prove that the Appellant in that case was suffering from the said condition."
}
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"text": "It was added: \"The unsoundness of mind before and after the incident is a relevant fact.\""
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"text": "Material on record in support of the defence under Section 84 IPC 29."
}
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"text": "Turning to the material on record."
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"text": "At least one month prior to the occurrence, on 11th May 2011, the deceased gave a written complaint to the police (Ex.PW2/A) in which she categorically stated that the Appellant was mentally unstable and was undergoing treatment at RML Hospital and IHBAS for the last 15 years."
}
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"start": 19304,
"text": "She further stated therein that for the last 5 months, the Appellant was receiving treatment at IHBAS at Shahdara; that he was taking injections; that he kept beating people at home and that there existed an imminent threat that he may harm her and any of the family members."
}
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"text": "She also adverted to the Appellant having attempted to commit suicide by consuming poison and threatening that she and her son would be responsible for it."
}
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"text": "\n 30. No doubt, as spoken to by Head Constable Sanjay Sharma (PW-4), who dealt with the matter, the said complaint (Ex.PW-2/A) was closed pursuant to a compromise entered into by the deceased with her accused (Ex.PW2/B) on 13th June 2011."
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"text": "However, the complaint (Ex PW-2/A) is significant inasmuch as it was an acknowledgement by the deceased regarding the chronic mental status of the Appellant in close proximity of the occurrence."
}
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"text": "\n 31. That the Appellant was receiving treatment for his mental illness has also been spoken to by his elder brother (PW-1), who was the key prosecution witness."
}
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"text": "In his cross-examination on behalf of the accused, PW- 1 admitted that, the accused “has been suffering from mental ailment since the last about 12 years."
}
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"text": "It is correct that the accused had undergone treatment from RML Hospital and IHBAS but I do not know whether he was given electronic shock treatment."
}
},
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"text": "It is correct that he was also hospitalized at RML Hospital and IHBAS for mental treatment.” 32."
}
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],
"start": 20732,
"text": "Ms. Kusum Dhalla, the learned APP, referred to the evidence of PW2, the son of the deceased, who in his cross examination denied the suggestion that his father was “having any mental ailment since the last 10-12 years.”"
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"text": "He admitted, “My mother once took my father to IHBAS but I do not know for what ailment.” 33."
}
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"text": "However, the above denial by PW2 cannot really be totally determinative of this issue."
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"text": "Apart from the deceased wife (through her written complaint PW-2/A), the elder brother PW-1, the evidence of the three other siblings of the Appellant, DWs 1 to 3 have also confirmed that he “is a patient of depression since childhood”."
}
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"text": "\n 34. Then we have the written statement of the Appellant himself under Section 313 (5) Cr PC which has been extracted hereinbefore where he stated that he was receiving treatment at IHBAS and RML Hospital for many years."
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"text": "\n 35. It has also come in the evidence of Inspector O.P. Jhakar (PW23) that: “It is correct that I had come to know during my investigation that accused got his mental treatment”."
}
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"text": "Documents relating to the condition of the Appellant 36."
}
},
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"text": "Apart from the above oral evidence, the documents now placed on record before this Court support the plea of the Appellant that he has been receiving treatment for mental illness for several years."
}
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],
"start": 22026,
"text": "The OPD card of RML Hospital signed by Dr. Arvind, Senior Psychiatrist on 11th August 2007 shows that the Appellant had been prescribed medicines for his depression."
}
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"text": "\n 37. The medical record of IHBAS beginning 25th October 2010 shows that he was suffering from „chronic depression‟."
}
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"text": "They also show that he was an in-patient at IHBAS."
}
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{
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],
"start": 22359,
"text": "The noting of 15th November 2010, inter alia, referred to “suicidal ideas” and the Appellant giving suicidal threats."
}
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],
"start": 22477,
"text": "Apart from the above symptoms, the follow-up sheet records, “aggressive and abusive behaviour” and “unmanageable at home”."
}
},
{
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"labels": [
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],
"start": 22600,
"text": "It also states that his is a “known case of bipolar effective disorder”. "
}
},
{
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"labels": [
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],
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"text": "The follow-up sheet of 15th November 2010 records, inter alia, that “yesterday at 3 pm they informed, went to railway track… was brought back by some relative.”"
}
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{
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],
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"text": "The noting of 24th November 2010 records, “need for hospitalization” and “patient unmanageable at home”.\n 38."
}
},
{
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"text": "The follow-up sheet of 24th November 2010 notes, inter alia, “ideas of helplessness, worthlessness, death wishes for the past ten years; unemployed for ten years.”"
}
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"text": "It noted that “there were suicidal attempts”."
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"text": "There is a record of IHBAS showing discharge of the patient on 30th November 2010 “against advice”."
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"text": "\n 39. Although the Trial Court did not have the benefit of the medical records which has now been produced before the Court, there was sufficient material in the form of oral depositions and documents (including Ex.PW2/A) pointing to the Appellant being a chronic patient of mental depression."
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"text": "\n The role of the IO 40."
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"text": "The IO, despite learning of the fact that the Appellant was suffering mental depression for long, did not probe that angle further."
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"text": "In particular, the records of the hospitals where the Appellant received treatment were not collected; the doctors treating him were not spoken to."
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"text": "If the IO had taken note of the contents of the earlier complaint of the deceased (Ex PW-2/A) he could not have failed to notice that the Appellant was a chronic patient of depression."
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"text": "It appears that the failure to do so resulted in relevant material concerning the mental condition of the Appellant at the time of commission of the offence not being brought on record."
}
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"text": "\n 41. In Sidhapal Kamala Yadav v. State of Maharashtra (2009) 1 SCC 124, the Supreme Court quoted from the judgment of the High Court, under appeal before it where, inter alia, while discussing Section 84 IPC, it was held as under: “The onus of providing unsoundness of mind is on the accused.\n "
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"text": "But where during the investigation previous history of insanity is revealed, it is the duty of an honest investigator to subject the accused to a medical examination and place that evidence before the Court and if this is not done, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused."
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"text": "The onus, however, has to be discharged by producing evidence as to the conduct of the accused shortly prior to the offence and his conduct at the time or immediately afterwards, also by evidence of his mental condition and other relevant factors.”"
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"text": "The role of the Court 42."
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"text": "There was an opportunity even during the trial for this angle to be examined."
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"text": "Given that in the testimonies and documents referred to there was sufficient indication of the treatment received by the Appellant in the period immediately preceding the occurrence, the Court had the option of getting the treatment records requisitioned through the IO and calling as court witnesses experts to examine the said treatment records."
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"text": "In fact this is what this court did when the appeal was first heard by it."
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"text": "\n 43. In Radhey Shyam v. State ILR 2010 Supp. (2) Delhi 475, this Court reflected on this aspect by observing as under: “38."
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"text": "It would be virtually impossible to lead direct evidence of what was the exact mental condition of the accused at the time of the commission of the crime."
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"text": "Thus, law permits evidence to be led wherefrom the trier of the facts can form an opinion regarding the mental status of the accused at the time when the crime was committed."
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"text": "Thus, evidence which can be led can be characterized as of inferential insanity....."
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"text": "This evidence, common sense tells us would be the immediately preceding and immediately succeeding conduct of the accused as also the contemporaneous conduct of the accused."
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"text": "\n 39. Thus, with reference to the past medical evidence or the medical history of the accused as the backdrop, the duty of the Court is to evaluate the conduct of the accused before, at the time of and soon after the crime and then return a finding of fact, whether the accused was of such unsound mind that by reason of unsoundness he was incapable of knowing the nature of the act done or incapable of knowing that the act was wrong or contrary to law.” xxx 46."
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"text": "Thus, a fair trial would require that if there is available proof before the Judge that the accused was suffering from a psychiatric or psychological disorder i.e. there was a history of insanity, it is the duty of the Court to require the investigator to subject the accused to a medical examination and place the evidence before the Court as observed in the decision reported as AIR 2009 SC 97 Sidhapal Kamala Yadav vs. State of Maharashtra.” 44."
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"text": "There are certain other circumstances which point to the possibility of the Appellant being driven to commit the crime at a time when he was not in complete control of his senses."
}
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"text": "One is the ghastly manner in which the deceased was put to death."
}
},
{
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"text": "There were 24 injuries on her body caused by the multiple household articles such as an iron tawa and two knives."
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"text": "Yet another factor is that the Appellant chose to remain in the same room with his bloodstained clothes, making no effort to escape or conceal the evidence and rather making an extra-judicial confession to his brother PW-1."
}
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"text": "It was perhaps reflective of his chronic mental state, which continued even during the pendency of this appeal."
}
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"text": "The medical professionals at the Tihar jail confirmed to the Court that the Appellant continues to suffer from „bipolar disorder‟."
}
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{
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"text": "He continues to receive regular psychiatric treatment for the said condition."
}
},
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"text": "\n Medical literature 45."
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"start": 28217,
"text": "Turning to the medical literature specific to bipolar disorder, Modi’s Textbook of Medical Jurisprudence and Toxicology (24th Edition), at page 753 defines „Bipolar Disorder‟ as „Manic Depressive Psychosis‟."
}
},
{
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"text": "It describes the affliction thus: “Bipolar disorder is used for a group of mental illnesses with primary disturbances of affect, from which all other symptoms arise."
}
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"text": "The affect i.e., the mood varies between extreme poles of cheerfulness and sadness."
}
},
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"text": "The illness has a second characteristic of periodicity."
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},
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"text": "The third characteristic is returning to normalcy from attack, without impairment of mental integrity."
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"text": "In practice, one finds that a single attack of a mania or a single attack of depression can occur."
}
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"text": "It occurs in persons predisposed to mood disturbances."
}
},
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"text": "” xxx “The depressives rarely indulge in petty crimes."
}
},
{
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"end": 29092,
"labels": [
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],
"start": 29042,
"text": "A minority may commit altruistic type of homicide."
}
},
{
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"id": "f3865002aeb74f47b739b5facde4419f",
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"text": "Aggressive impulses are normally inhibited by the psychotic condition."
}
},
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"labels": [
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"text": "Hypochondrial delusions are often associated with homicidal impulses."
}
},
{
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"id": "328a7b865b9b434c8c21b9505bfac49a",
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"end": 29346,
"labels": [
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"text": "Hence, near relatives may be killed in order to prevent them from inheriting or developing some serious disease."
}
},
{
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"id": "49be9462c3d1466990aef5bd85eb080f",
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"labels": [
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],
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"text": "The psychotic depressive kills from motive, to his way of thinking, and is inherently good as opposed to the person with paranoid illness, who is motivated by spite and a desire to avenge the imaginary wrong.\n "
}
},
{
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"id": "699a2714aba14d92b959742454f7180f",
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],
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"text": "Homicidal and suicidal tendencies frequently co-exist in depressives, which stems from hopelessness, futility and despair."
}
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"labels": [
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"text": "\n They believe that the killing of loved ones followed by self- destruction is the only practical solution.”"
}
},
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"id": "c9cb836e29354d4c9093202f068d6261",
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"labels": [
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"start": 29793,
"text": "46. In the Cambridge Handbook of Forensic Psychology edited by Jennifer M. Brown and Elizabeth A. Campbell, (4th Printing 2013), it is inter alia observed that bipolar disorder, previously known as manic depression, has a mean onset age of about 30 and is characterized by mood swings that can range from extreme happiness (mania) to extreme sadness (depression) over a period of days or months."
}
},
{
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"id": "f7d1643177214f539e733c504fac3f10",
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"value": {
"end": 30449,
"labels": [
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],
"start": 30189,
"text": "It is further noted that: “In the depressive phase, symptoms include feeling sad and hopeless, lack of energy, difficulty concentrating, loss of interest in everyday activities, difficulty sleeping, feelings of worthlessness and despair, and suicidal thoughts."
}
},
{
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"id": "bcc76bd68b114ca5b1ae97a46a8c502a",
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"value": {
"end": 30846,
"labels": [
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],
"start": 30450,
"text": "In the manic phase, which usually comes after several periods of depression, symptoms may include feeling elated and full of energy, talking very quickly, and feeling self-important with great ideas not known to others, but also being easily distracted, irritated or agitated, not sleeping or eating, and doing things that bring negative consequences, such as over spending and dominating others."
}
},
{
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"id": "01b400941fc34761abbc250d0254c5e0",
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"value": {
"end": 31142,
"labels": [
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],
"start": 30846,
"text": "\n Delusions stemming from these disorders can lead the individuals concerned to become violent, for example if they believe that the lives of their families have become intolerable (depressive phase), or where they believe that no one must stand in the way of their important plans (manic phase)."
}
},
{
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"id": "6ef2da69ab474902a11f83a303ecf6f4",
"to_name": "text",
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"value": {
"end": 31262,
"labels": [
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],
"start": 31143,
"text": "The mental disorder can contribute directly to serious violence, e.g.\n multiple homicide of loved family members."
}
},
{
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"id": "ff23ca20d9034ce49474cd93e9d44ebc",
"to_name": "text",
"type": "labels",
"value": {
"end": 31488,
"labels": [
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],
"start": 31263,
"text": "As with schizophrenia, the precise cause of bipolar disorder is unknown, although it is thought to involve physical, environmental and social factors, with about 10-15% of sufferers nearest relatives also being affected.” 47."
}
},
{
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"id": "2acb9e62b37e469395720461f618ef58",
"to_name": "text",
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"value": {
"end": 31971,
"labels": [
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],
"start": 31489,
"text": "In an article titled Patients with Affective Disorders admitted to Maximum Secure Care (1999-2003) authored by T. White, a Consultant Forensic Psychiatrist based in Perth, Australia (printed in Med.Sci.Law (2005) Vol. 45 No.2 p.142), it is noted that: “The McArthur Violence Risk Assessment Study (Steadman et al., 1998) recently reported that patients with bipolar disorder or major depression were more likely than those with schizophrenia to be violent over the course of a year."
}
},
{
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"id": "187fc9ac75b441b1acd5cff8ac899bda",
"to_name": "text",
"type": "labels",
"value": {
"end": 32205,
"labels": [
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],
"start": 31972,
"text": "Similarly, Swanson et al. (1990) in an early analysis of the National Institute for Mental Health Catchment Area Study, reported an equally strong association for depression, bipolar disorder and schizophrenia with reported violence."
}
},
{
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"id": "5913ff4e109a4e9582fff6859617568d",
"to_name": "text",
"type": "labels",
"value": {
"end": 32449,
"labels": [
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],
"start": 32206,
"text": "In addition, the National Confidential Inquiry into Suicides and Homicides (Appleby, 1999) appeared to demonstrate a stronger relationship between depressive symptoms than positive psychotic symptoms in mentally disordered homicide offenders.”"
}
},
{
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"id": "324ac452cef245eea729674d236aafd5",
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"value": {
"end": 32487,
"labels": [
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],
"start": 32450,
"text": "Reasons that weigh with the Court 48."
}
},
{
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"id": "993414cc48f044cf9e3d6e77e5f797d1",
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"end": 32895,
"labels": [
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],
"start": 32488,
"text": "The Court is of the view that in the present case, the defence of the Appellant with reference to Section 84 IPC ought to have been accepted by the trial Court for the reason that there was sufficient relevant material as regards the treatment being received by the Appellant for chronic bipolar disorder which, if fully examined with the help of experts, might have conclusively established such a defence."
}
},
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"end": 33001,
"labels": [
"ANALYSIS"
],
"start": 32896,
"text": "It is sufficiently clear that the Appellant has been suffering from chronic depression for a long period."
}
},
{
"from_name": "label",
"id": "43c0a4e225794e67869778792fd775ff",
"to_name": "text",
"type": "labels",
"value": {
"end": 33219,
"labels": [
"ANALYSIS"
],
"start": 33001,
"text": "\nThere are records to show that he had been receiving treatment at least from 2007 onwards and continuous treatment at IHBAS for a severe condition for five months in 2010, less than six months prior to the occurrence."
}
},
{
"from_name": "label",
"id": "3890f2dd85b14a6992c024c99149c97b",
"to_name": "text",
"type": "labels",
"value": {
"end": 33283,
"labels": [
"ANALYSIS"
],
"start": 33220,
"text": "He attempted suicide less than a month prior to the occurrence."
}
},
{
"from_name": "label",
"id": "159e4a88697b470683cce5744ba578ba",
"to_name": "text",
"type": "labels",
"value": {
"end": 33449,
"labels": [
"ANALYSIS"
],
"start": 33285,
"text": "49. While one might never know what his precise frame of mind on the fateful day was, it is fairly evident that he was suffering from chronic depression throughout."
}
},
{
"from_name": "label",
"id": "ccdddfe49a3a4592979f5f0a93d7747c",
"to_name": "text",
"type": "labels",
"value": {
"end": 33699,
"labels": [
"ANALYSIS"
],
"start": 33450,
"text": "The failure by the investigating agency, and later by the trial Court, to thoroughly examine the available materials resulted in the Appellant being denied the opportunity to establish his plea of defence of unsoundness of mind under Section 84 IPC."
}
},
{
"from_name": "label",
"id": "95e0434c3b9d44539487830253d128a1",
"to_name": "text",
"type": "labels",
"value": {
"end": 33838,
"labels": [
"ANALYSIS"
],
"start": 33700,
"text": "As explained in Sidhapal Kamala Yadav v. State of Maharashtra (supra), the resultant benefit of doubt created must enure to the Appellant."
}
},
{
"from_name": "label",
"id": "83f137f81879493b873ed1975b429178",
"to_name": "text",
"type": "labels",
"value": {
"end": 34406,
"labels": [
"ANALYSIS"
],
"start": 33838,
"text": "\n 50. While the endeavour of the criminal justice system is to ensure that no crime goes unpunished, and there may be no doubt as to who committed the crime, the requirement of justice is also for the Court, when faced in a rare case with a plea of the accused under Section 84 IPC, to examine and evaluate \"the conduct of the accused before, at the time of and soon after the crime\" and determine whether by reason of unsoundness the accused was \"incapable of knowing the nature of the act done or incapable of knowing that the act was wrong or contrary to law.\"\n 51."
}
},
{
"from_name": "label",
"id": "67d29100c96946f1b6bf18607daecbb1",
"to_name": "text",
"type": "labels",
"value": {
"end": 34639,
"labels": [
"ANALYSIS"
],
"start": 34407,
"text": "For all of the aforementioned reasons, the impugned judgment of the trial Court dated 10th August 2015 convicting the Appellant for the offence under Section 302 and the order on sentence dated 17th August 2015 are hereby set aside."
}
},
{
"from_name": "label",
"id": "f1913f00a86d429295c60b11c92a9d1d",
"to_name": "text",
"type": "labels",
"value": {
"end": 34734,
"labels": [
"ANALYSIS"
],
"start": 34640,
"text": "The Appellant is acquitted of the offence under Section 302 IPC.\n Consequential directions 52."
}
},
{
"from_name": "label",
"id": "93ffcb258ac5496294777d20b15a2b04",
"to_name": "text",
"type": "labels",
"value": {
"end": 35073,
"labels": [
"ANALYSIS"
],
"start": 34735,
"text": "In a case as the present one where the plea of unsoundness of mind of the Appellant at the time of commission of the crime is accepted, the needs of justice would be subserved if following his release the Appellant, given his condition, continues to receive treatment till such time he is in a position to be held responsible for himself."
}
},
{
"from_name": "label",
"id": "df5494501fbc4480b5116985a41ab989",
"to_name": "text",
"type": "labels",
"value": {
"end": 35371,
"labels": [
"ANALYSIS"
],
"start": 35074,
"text": "As noted by this Court in its order dated 4th February 2016, the Medical Status report of the Appellant as forwarded by the Superintendent of Tihar Jail noted that Appellant was as of that date “suffering from bipolar affective disorder” and was under regular follow-up with the jail psychiatrist."
}
},
{
"from_name": "label",
"id": "201526c0df464e18a7a78dca75ab713e",
"to_name": "text",
"type": "labels",
"value": {
"end": 35440,
"labels": [
"ANALYSIS"
],
"start": 35372,
"text": "He continued to complain of “decreased sleep, low mood and anxiety.”"
}
},
{
"from_name": "label",
"id": "a378240d269144a5b2ecc18ce750d432",
"to_name": "text",
"type": "labels",
"value": {
"end": 35636,
"labels": [
"ANALYSIS"
],
"start": 35441,
"text": "In its report dated 9th October 2017, the experts at IHBAS have noted that the Appellant “is diagnosed as suffering from Dysthymia with sever depressive episode with lumber sacral radiculopathy.”"
}
},
{
"from_name": "label",
"id": "35eda619a19842bc927015741e44eade",
"to_name": "text",
"type": "labels",
"value": {
"end": 35795,
"labels": [
"PRE_RELIED"
],
"start": 35637,
"text": "The report notes that he “requires regular treatment but can be managed on outpatient basis.” „Dysthymia‟ is defined as „persistent depressive disorder‟.\n 53."
}
},
{
"from_name": "label",
"id": "8540898f01f9401898eaf43b49af09b5",
"to_name": "text",
"type": "labels",
"value": {
"end": 36105,
"labels": [
"PRE_RELIED"
],
"start": 35796,
"text": "In State of Rajasthan v. Shera Ram @ Vishnu Datta (supra) the Supreme Court affirmed a judgment dated 21st February, 2004 of the Rajasthan High Court acquitting the Respondent therein “primarily on the ground that at the time of incident, he was a person of unsound mind within the meaning of Section 84 IPC.”"
}
},
{
"from_name": "label",
"id": "f20dd082ceb94aec89857de9b9c720c2",
"to_name": "text",
"type": "labels",
"value": {
"end": 36277,
"labels": [
"ANALYSIS"
],
"start": 36106,
"text": "The High Court in that case had directed that the Respondent should continue to receive treatment in an appropriate hospital till he was fully cured of his mental illness."
}
},
{
"from_name": "label",
"id": "df69fc3d78b34659a1c7d70b8896bcb8",
"to_name": "text",
"type": "labels",
"value": {
"end": 36551,
"labels": [
"ANALYSIS"
],
"start": 36278,
"text": "However, in the present case, as is evident from the latest report dated 9th October 2017 of the doctors at IHBAS, although the Appellant is stable and does not require to be hospitalised, he is not „out of the woods‟ and requires regular treatment‟ and periodic follow up."
}
},
{
"from_name": "label",
"id": "5fe621c66981473d826636c99e11d9cd",
"to_name": "text",
"type": "labels",
"value": {
"end": 36595,
"labels": [
"RATIO"
],
"start": 36552,
"text": "The Appellant will need assistance in this."
}
},
{
"from_name": "label",
"id": "5a38cee0d8ea45f7a9cba1d639462d20",
"to_name": "text",
"type": "labels",
"value": {
"end": 36676,
"labels": [
"ANALYSIS"
],
"start": 36596,
"text": "It could be by anyone interested in the welfare and well-being of the Appellant."
}
},
{
"from_name": "label",
"id": "f1aa67d1a39442869c5a88bd50f9f8d2",
"to_name": "text",
"type": "labels",
"value": {
"end": 36863,
"labels": [
"RATIO"
],
"start": 36677,
"text": "Mr.\nHarsh Prabhakar, learned counsel appearing for the Appellant informs the Court that one of the younger siblings of the Appellant has been visiting him in the jail on a regular basis."
}
},
{
"from_name": "label",
"id": "857f6bb2791e4ae2b00e4f0c9d7feb46",
"to_name": "text",
"type": "labels",
"value": {
"end": 37743,
"labels": [
"RPC"
],
"start": 36865,
"text": "54. The Court, accordingly, issues the following directions: (i) The Appellant shall be released forthwith, subject to his complying with the requirements of Section 437A Cr PC.\n (ii) For the above purpose, the matter will be placed before the trial Court on 27th November 2017.\n (iii) Considering the special facts and circumstances of the case as noted hereinbefore, the trial Court will, while ensuring compliance by the Appellant with the requirement of Section 437 A Cr PC, require that the surety provided is of a person (who may or may not be a close relative) who will additionally undertake that the Appellant will go to IHBAS for regular checks and follow up and continue to receive treatment under the close supervision of the mental health professionals there or at some other renowned facility for as long as the said mental health professionals consider necessary."
}
},
{
"from_name": "label",
"id": "f110b20a6d064c1496fc1fa4ec67c6bb",
"to_name": "text",
"type": "labels",
"value": {
"end": 37872,
"labels": [
"RPC"
],
"start": 37743,
"text": "\n (iv) The Delhi State Legal Services Authority (DLSA) will extend assistance to the Appellant in regard to the above directions."
}
},
{
"from_name": "label",
"id": "d229ed31700b47c5868b5ce72958f116",
"to_name": "text",
"type": "labels",
"value": {
"end": 38028,
"labels": [
"RPC"
],
"start": 37873,
"text": "The Secretary DLSA will depute a panel counsel to be present on behalf of the Appellant before the trial Court on 27th November 2017 for the above purpose."
}
},
{
"from_name": "label",
"id": "e3f7fb604a0d4ea6b7b86bd1ff86c553",
"to_name": "text",
"type": "labels",
"value": {
"end": 38075,
"labels": [
"RPC"
],
"start": 38028,
"text": "\n 55. The appeal is allowed in the above terms."
}
},
{
"from_name": "label",
"id": "d28422afd2a543c596233e67cdaa461e",
"to_name": "text",
"type": "labels",
"value": {
"end": 38107,
"labels": [
"RPC"
],
"start": 38076,
"text": "The application is disposed of."
}
},
{
"from_name": "label",
"id": "445a10b6eaed44a7aedf1be41b166d61",
"to_name": "text",
"type": "labels",
"value": {
"end": 38361,
"labels": [
"NONE"
],
"start": 38108,
"text": "The Court records its appreciation of the excellent background research, preparation and able presentation of the case by Mr. Harsh Prabhakar, learned Counsel for the DHCLSC and the fair stand of Ms. Kusum Dhalla, learned APP as an officer of the Court."
}
},
{
"from_name": "label",
"id": "97928d015af748fda4e374fe42336be5",
"to_name": "text",
"type": "labels",
"value": {
"end": 38649,
"labels": [
"NONE"
],
"start": 38361,
"text": "\n 56. A certified copy of this order will be delivered by a Special Messenger of the Registry forthwith for compliance to: (i) the trial Court together with the trial Court record; (ii) the Superintendent, Tihar Jail; (iii) the Secretary, DLSA; and (iv) The Medical Superintendent, IHBAS."
}
},
{
"from_name": "label",
"id": "c0ade9e37ab5429581d5c4a3719002a5",
"to_name": "text",
"type": "labels",
"value": {
"end": 38705,
"labels": [
"NONE"
],
"start": 38649,
"text": "\n S. MURALIDHAR, J.\n I.S. MEHTA, J.\nNOVEMBER 20, 2017 rd"
}
}
]
}
] | 1,713 | {
"text": "$~4\n* IN THE HIGH COURT OF DELHI AT NEW DELHI\n+ CRL A 1308/2015 & CRL M (B) 8293/2015\n X ..... Appellant\n Through: Mr. Harsh Prabhakar, Advocate\n (DHCLSC) with Mr. Salman Hashmi\n and Mr. Anirudh Tanwar, Advocates.\n\n versus\n\n STATE OF NCT OF DELHI ..... Respondent\n Through: Ms. Kusum Dhalla, APP along with\n Inspector Prashant Yadav, PS Jagat\n Puri\n CORAM:\n JUSTICE S. MURALIDHAR\n JUSTICE I.S. MEHTA\n\n JUDGMENT\n% 20.11.2017 Dr. S. Muralidhar, J.: Introduction 1. This appeal is directed against the impugned judgment dated 10th August 2015 passed by the learned Additional Sessions Judge („ASJ‟), Karkardooma Courts in Sessions Case No.89/11 convicting the Appellant for the offence under Section 302 Indian Penal Code („IPC‟) for committing the murder of his wife and the order on sentence dated 17th August 2015 whereby he was sentenced to undergo imprisonment for life along with a fine of Rs.10,000/- and in default of payment of fine, to undergo further rigorous imprisonment for one year.\n 2. This Court has in the judgment that follows, accepted the Appellant's plea of defence of insanity under Section 84 IPC and acquitted him of the offence with which he was charged. The Court, therefore, considers appropriate to anonymise the name of the Appellant with 'X' and also refrain from mentioning the names of his family members.\n The case of the Prosecution 3. The case of the prosecution is that on 22nd June 2011, at around 8.55 am, telephonic information was received from the East District Control Room under DD No.9-A regarding the death of a lady near Bharat National School. The DD was marked to Sub-Inspector („SI‟) Dinesh (PW-15), who proceeded to the spot along with Constable Kunwar Pal (PW-19). Inspector O.P. Jhakar (PW-23) who was the Investigating Officer (IO) also reached the spot. A PCR van was already present when they reached there. There, the Appellant's elder brother (PW-1) met the IO at the spot. With the help of PW-1, the door of the house, which was on the first floor, was opened.\nThere they found the body of the deceased, the wife of the Appellant, lying in a pool of blood. A blood-stained tawa was found lying in the kitchen. One blood stained knife was lying on the bed and one knife was lying in the kitchen. There was blood spattered in the room and the lobby.\n 4. The Appellant was also present in the room in an injured condition. He was rushed to the nearby hospital in the PCR van. The statement of PW-1 was recorded. In it he stated that the Appellant, his younger brother, lived in a separate portion of the house on the first and the second floors. The deceased used to do stitching work on the ground floor and was helped by her son (PW-2). PW-1 stated that the Appellant had not been doing any work for the last 15 years. The Appellant suspected that the deceased was having an illicit relationship in connection with her work. As a result, there used to be frequent quarrels between the Appellant and the deceased.\n Evidence at the trial 5. PW-1, in his statement to the police, stated that on the intervening night of 21st/22nd June 2011, the Appellant and the deceased were alone in the house.\nAt around 3 am, PW-1 awoke upon hearing the noise of a quarrel between the Appellant and his wife. According to PW-1, the Appellant was abusing his wife. When PW-1 knocked on the door of the room of his brother and called out to him, he received no reply. The noise of quarrel also subsided.\nPW-1 noticed that the door of the house had been bolted from inside. He returned to his quarters thinking that it was a routine affair.\n 6. The next morning, at around 8-8.30 am, PW-1 went to the Appellant's house to enquire about the cause of the quarrel of the previous night. When he called out the Appellant by name, the Appellant came out onto the first floor balcony. PW-1 noticed that the Appellant's clothes were soaked in blood. When PW-1 inquired about his sister-in-law, the Appellant replied that he had killed her in the night and that she was lying inside. PW-1 asked the Appellant to open the door. When he did, PW-1 went inside and found the deceased lying in a pool of blood. There was blood spattered all over the house. PW-1 immediately bolted the door from the outside and called the police from his mobile phone. On the statement of PW-1, FIR No. 297/11 was registered at PS Jagat Puri.\n 7. Twenty-four prosecution witnesses were examined. In his statement under Section 313 Code of Criminal Procedure („Cr.PC‟), the Appellant stated that it was a false case; that he had a property dispute with PW-1 who tried to raise a wall in the house; and that he had got him falsely implicated in the case.\n 8. The Appellant filed a written statement under Section 313 (5) Cr PC in which in paragraphs 6, 7 and 8, he stated as under: “6. That the accused had been suffering mental disease for last 15 years and still under treatment for the same, even in the judicial custody. The accused above named has been suffering insanity.\n 7. That it is also worth noticing that PW-03 [name withheld] was with the accused as an attendant of the accused when the accused was taking his treatment for mental disease and was administered electric shocks/E-Sitting for 15 days by Dr.\n Dipender Roy, Senior Psychiatric from the Ram Manohar Lohia Hospital and PW-03 is very much aware about the disease of the applicant / accused.\n 8. That the accused has been falsely implicated in the present case even though the police officials have been very much aware that accused in an innocent person.” 9. Thereafter, three defence witnesses were examined. DW-1, the younger brother of the Appellant inter alia stated that the accused was “a patient of depression since childhood but he has been working regularly.” He spoke about the property dispute between PW-1 and the Appellant. DW-2, an elder sister of the Appellant too stated that, “the accused is a patient of depression”. She also adverted to the fact that PW-1 wanted to grab the ancestral property. DW-3, another elder brother of the Appellant stated again that, “the accused is a patient of depression.” He too spoke of the property dispute between PW-1 and the Appellant.\n Impugned judgment of the trial Court 10. The learned trial Court, by the impugned judgment dated 10th August 2015, found the Appellant guilty of the offence under Section 302 IPC. This being the case of circumstantial evidence, the trial Court outlined three circumstances relied upon by the prosecution to bring home the guilt of the accused as under: (i) Motive for murder – accused suspected the character of his wife; (ii) Extra-judicial confession made by the accused.\n (iii) Death within the four corners of the house and failure of accused to render any satisfactory explanation.\n 11. The learned trial Court adverted to the complaint (Ex.PW-2/A) made by the deceased to the police on 19th May 2011, around one month prior to the incident, in which she stated that she apprehended danger to her life from her husband and nephew. She withdrew this complaint on 13 th June 2011 after arriving at a compromise with the Appellant (Ex.PW2/B). The learned trial Court observed that from the testimonies of DW1, DW-2 and DW-3, it was evident that the Appellant was of a quarrelsome nature and he suspected the character of the deceased. The trial Court consequently concluded that the prosecution had been able to prove the motive for the commission of the offence beyond doubt.\n 12. As regards the second circumstance concerning the extra-judicial confession made by the Appellant, the trial Court referred to the deposition of PW-1 and noticed that he had not been cross-examined with regard to the extra-judicial confession made by the Appellant before him. The trial Court further observed that from the evidence of DW-1 and DW-2 it appeared that there was no pending litigation between the Appellant and PW-1 regarding the property. The said circumstance of the extra-judicial confession made by the Appellant to PW-1 was, therefore, held to be proved.\n 13. As regards the third circumstance of the death having occurred within the four corners of the room in which the Appellant resided with the deceased, the trial Court observed that although, in his cross-examination, PW-1 accepted that he could not have possibly heard the quarrel between the Appellant and his wife at 3 am and therefore, to that extent, a doubt was created, it did not follow that the entire testimony of PW-1 in all other aspects should be discarded. The trial Court held that the rest of the testimony of PW-1 was trustworthy. Invoking Section 106 of the Indian Evidence Act, 1862 („IEA‟), it was held that the Appellant failed to discharge his burden of giving a cogent explanation as to how the crime was committed since it took place inside his house.\n 14. The trial Court then turned to the defence of the Appellant that he was of unsound mind at the time of commission of offence and, therefore, entitled to acquittal in terms of Section 84 IPC. The trial Court referred to the admission by PW-1 in his cross-examination that the Appellant had been receiving treatment for his mental ailments from RML Hospital and the Institute of Human Behaviour and Allied Sciences (IHBAS) as also to the fact that in Ex.PW2/A, the deceased had herself adverted to that aspect. She had stated therein that the Appellant was under treatment at IHBAS for the last five months. However, the Trial Court rejected this plea by observing that the mere fact that the Appellant had been occasionally subject to insane delusions was “per se insufficient to bring his case within the exemption.” It was held that the Appellant did not produce any medical record of his treatment which may prove that he was suffering from any major mental ailment due to which he was unable to know the implications of his act. In his statement under Section 313 (5) Cr PC, the Appellant had not stated that he was suffering from any kind of serious mental ailment. Further, DW-1 and DW-2 had merely stated that the accused was a patient of depression.\nDespite this, he had been doing construction work like flooring and interior furnishing. For these reasons, it was held that the Appellant could not take advantage of Section 84 IPC. Thereafter, by a separate order dated 17th August 2015, the trial Court sentenced the Appellant as noticed hereinbefore.\n 15. This Court has heard the submissions of Mr. Harsh Prabhakar, learned counsel appearing for the Appellant, having been nominated by the Delhi High Court Legal Services Committee and Ms. Kusum Dhalla, learned APP for the State.\n Orders passed by this Court 16. At the time of admission of this appeal on 7th December 2015, this Court had directed the jail authorities to furnish a copy of the record of the treatment of the Appellant, if any, at IBHAS.\n 17. When the Appellant was produced before the Court on 4th February 2016, the Superintendent Central Jail No.3 forwarded the medical status report of the Appellant which reads as under: “This is submitted for your kind information that the above said inmate patient (is) suffering from bipolar affective disorder and he has been under regular follow-up from jail S/R Psychiatrist. At present he complains (about) decreased sleep, low mood and anxiety. All the prescribed medicines are given to him under supervision daily and he is maintaining well on medication. At present his general condition is stable and vitals are stable.” 18. The Court in its order dated 4th February 2016 observed that it expected “a more comprehensive report” and called for it from IHBAS. On 28th April 2016, the counsel for the State filed in the Court a whole bunch of papers which included the papers of the treatment received by the Appellant in October and November, 2010 at IHBAS and the OPD Registration Card of RML Hospital, New Delhi containing the details of the consultations the Appellant with a psychiatrist there way back on 11th August 2007. There was also a discharge summary issued by IHBAS on 1st December 2010.\n 19. On 8th December 2016, an order was passed by this Court suspending the sentence of the Appellant for one month from the date of his release. The Court noted in the said order that the nominal roll dated 19th November 2016 showed that the Appellant had up to that date been in continuous incarceration of 4 years, 4 months and 4 days. The Court also noted that the State had placed on record the copy of the letter dated 20 th November 2016 from Dr. RML Hospital stating that the record which was directed to be produced by the earlier order dated 20th September 2016 was not traceable and further that the record of the patients were maintained only for 3 years.\nThe DDU Hospital informed the Court by a letter dated 29th November 2016 that only an OPD slip of the person admitted to that hospital was available.\nThe Court then directed that it would be in the interest of justice if an effective assessment of the available record were to be undertaken by a competent expert and an opinion obtained as to the mental status of the Appellant as on 22nd June 2011 i.e. when the offence was committed. The Registry was asked to forward the complete medical record to the Medical Superintendent, IHBAS for either examination by himself or by a competent expert. The report was asked to be submitted within 8 weeks.\n 20. By its communication dated 23rd December 2016, IHBAS informed the Court that it would like to conduct an assessment of the patient‟s mental status. The jail authorities were directed to produce the Appellant in the Psychiatry OPD at IHBAS to enable the latter to give an opinion in terms of the Court order dated 8th December 2016.\n 21. To enable the Appellant to be produced before the doctors at IBHAS, the Court, by its order dated 24th May 2017, suspended the sentence for a period of 4 weeks.\n 22. On 17th October 2017, the Court referred to the report dated 9th October 2017 received from IHBAS which stated that the Appellant is fit to stand trial. As regards the question regarding his mental status on the date of commission of the offence, it stated as under: “3. The Medical Board also opined that mental status at the time of offence cannot be commented upon, on the basis of retrospective history and inadequate medical records pertaining to the time of offence.\n It is submitted to the Hon‟ble High Court that patient currently does not need further hospitalization and as per the Medical Board opinion, the patient can be managed on outpatient basis.” 23. The Court then directed the jail superintendent to take custody of the Appellant from IHBAS within 3 days.\n Circumstances proved against the Appellant 24. In the present case the evidence of PW-1, who was unable to be shaken in his cross-examination, has proved that (i) the death of the Appellant‟s wide was homicidal and (ii) that the Appellant made an extra judicial confession to PW-1 that the Appellant had killed his wife. The Appellant was present next to the dead body in his blood stained clothes. The weapons used were also recovered. PW-1 was also able to prove that at the time of commission of the offence only the Appellant and the deceased were together in their house which was bolted from the inside.\n 25. With the above overwhelming evidence pointing to the guilt of the accused for the offence under Section 302 IPC, the arguments of Mr. Harsh Prabhakar, learned counsel for the Appellant, centred on the defence of insanity under Section 84 IPC.\n The law relating to the defence under Section 84 IPC 26. The Court would like to preface this discussion with an observation that Section 84 IPC underscores that mens rea is an essential element in a crime.\n It contemplates a situation where the person committing the crime may not at the time of such commission of crime, be aware of what he is doing. The rationale behind the defence under Section 84 IPC was explained by the Supreme Court in State of Rajasthan v. Shera Ram @ Vishnu Datta (2012) 1 SCC 602 in the following words: \"To commit a criminal offence, mens rea is generally taken to be an essential element of crime. It is said furiosi nulla voluntus est. In other words, a person who is suffering from a mental disorder cannot be said to have committed a crime as he does not know what he is doing.\n For committing a crime, the intention and act both are taken to be the constituents of the crime, actus non facit reum nisi mens sit rea. Every normal and sane human being is expected to possess some degree of reason to be responsible for his/her conduct and acts unless contrary is proved. But a person of unsound mind or a person suffering from mental disorder cannot be said to possess this basic norm of human behavior.\"\n 27. The expression used in Section 84 IPC is 'unsoundness of mind' and not 'insanity'. This appears to be for good reason since the expression 'insanity' apart from being stigmatic does not account for the varying degrees of unsoundness of the mind, all of which may not qualify for the defence under Section 84 IPC. In Hari Singh Gond v. State of Madhya Pradesh (2008) 16 SCC 109 the Supreme Court observed: \"Section 84 lays down the legal test of responsibility in cases of alleged unsoundness of mind. There is no definition of 'unsoundness of mind' in IPC. The courts have, however, mainly treated this expression as equivalent to insanity. But the term 'insanity' itself has no precise definition. It is a term used to describe varying degrees of mental disorder. So, every person, who is mentally diseased, is not ipso facto exempted from criminal responsibility. A distinction is to be made between legal insanity and medical insanity. A court is concerned with legal insanity, and not with medical insanity.\"\n 28. In Surendra Mishra v. State of Jharkhand (2011) 11 SCC 495, it was pointed out that \"every person who is suffering from mental disease is not ipso facto exempted from criminal liability.\" in Shrikant Anandrao Bhosale v. State of Maharashtra (2002) 7 SCC 748, which was a case where the defense under Section 84 IPC on the ground of paranoid schizophrenia was accepted, the Supreme Court explained that \"it is the totality of the circumstances seen in the light of the evidence on record\"\nwhich would prove that the Appellant in that case was suffering from the said condition. It was added: \"The unsoundness of mind before and after the incident is a relevant fact.\"\n Material on record in support of the defence under Section 84 IPC 29. Turning to the material on record. At least one month prior to the occurrence, on 11th May 2011, the deceased gave a written complaint to the police (Ex.PW2/A) in which she categorically stated that the Appellant was mentally unstable and was undergoing treatment at RML Hospital and IHBAS for the last 15 years. She further stated therein that for the last 5 months, the Appellant was receiving treatment at IHBAS at Shahdara; that he was taking injections; that he kept beating people at home and that there existed an imminent threat that he may harm her and any of the family members. She also adverted to the Appellant having attempted to commit suicide by consuming poison and threatening that she and her son would be responsible for it.\n 30. No doubt, as spoken to by Head Constable Sanjay Sharma (PW-4), who dealt with the matter, the said complaint (Ex.PW-2/A) was closed pursuant to a compromise entered into by the deceased with her accused (Ex.PW2/B) on 13th June 2011. However, the complaint (Ex PW-2/A) is significant inasmuch as it was an acknowledgement by the deceased regarding the chronic mental status of the Appellant in close proximity of the occurrence.\n 31. That the Appellant was receiving treatment for his mental illness has also been spoken to by his elder brother (PW-1), who was the key prosecution witness. In his cross-examination on behalf of the accused, PW- 1 admitted that, the accused “has been suffering from mental ailment since the last about 12 years. It is correct that the accused had undergone treatment from RML Hospital and IHBAS but I do not know whether he was given electronic shock treatment. It is correct that he was also hospitalized at RML Hospital and IHBAS for mental treatment.” 32. Ms. Kusum Dhalla, the learned APP, referred to the evidence of PW2, the son of the deceased, who in his cross examination denied the suggestion that his father was “having any mental ailment since the last 10-12 years.” He admitted, “My mother once took my father to IHBAS but I do not know for what ailment.” 33. However, the above denial by PW2 cannot really be totally determinative of this issue. Apart from the deceased wife (through her written complaint PW-2/A), the elder brother PW-1, the evidence of the three other siblings of the Appellant, DWs 1 to 3 have also confirmed that he “is a patient of depression since childhood”.\n 34. Then we have the written statement of the Appellant himself under Section 313 (5) Cr PC which has been extracted hereinbefore where he stated that he was receiving treatment at IHBAS and RML Hospital for many years.\n 35. It has also come in the evidence of Inspector O.P. Jhakar (PW23) that: “It is correct that I had come to know during my investigation that accused got his mental treatment”.\n Documents relating to the condition of the Appellant 36. Apart from the above oral evidence, the documents now placed on record before this Court support the plea of the Appellant that he has been receiving treatment for mental illness for several years. The OPD card of RML Hospital signed by Dr. Arvind, Senior Psychiatrist on 11th August 2007 shows that the Appellant had been prescribed medicines for his depression.\n 37. The medical record of IHBAS beginning 25th October 2010 shows that he was suffering from „chronic depression‟. They also show that he was an in-patient at IHBAS. The noting of 15th November 2010, inter alia, referred to “suicidal ideas” and the Appellant giving suicidal threats. Apart from the above symptoms, the follow-up sheet records, “aggressive and abusive behaviour” and “unmanageable at home”. It also states that his is a “known case of bipolar effective disorder”. The follow-up sheet of 15th November 2010 records, inter alia, that “yesterday at 3 pm they informed, went to railway track… was brought back by some relative.” The noting of 24th November 2010 records, “need for hospitalization” and “patient unmanageable at home”.\n 38. The follow-up sheet of 24th November 2010 notes, inter alia, “ideas of helplessness, worthlessness, death wishes for the past ten years; unemployed for ten years.” It noted that “there were suicidal attempts”. There is a record of IHBAS showing discharge of the patient on 30th November 2010 “against advice”.\n 39. Although the Trial Court did not have the benefit of the medical records which has now been produced before the Court, there was sufficient material in the form of oral depositions and documents (including Ex.PW2/A) pointing to the Appellant being a chronic patient of mental depression.\n The role of the IO 40. The IO, despite learning of the fact that the Appellant was suffering mental depression for long, did not probe that angle further. In particular, the records of the hospitals where the Appellant received treatment were not collected; the doctors treating him were not spoken to. If the IO had taken note of the contents of the earlier complaint of the deceased (Ex PW-2/A) he could not have failed to notice that the Appellant was a chronic patient of depression. It appears that the failure to do so resulted in relevant material concerning the mental condition of the Appellant at the time of commission of the offence not being brought on record.\n 41. In Sidhapal Kamala Yadav v. State of Maharashtra (2009) 1 SCC 124, the Supreme Court quoted from the judgment of the High Court, under appeal before it where, inter alia, while discussing Section 84 IPC, it was held as under: “The onus of providing unsoundness of mind is on the accused.\n But where during the investigation previous history of insanity is revealed, it is the duty of an honest investigator to subject the accused to a medical examination and place that evidence before the Court and if this is not done, it creates a serious infirmity in the prosecution case and the benefit of doubt has to be given to the accused. The onus, however, has to be discharged by producing evidence as to the conduct of the accused shortly prior to the offence and his conduct at the time or immediately afterwards, also by evidence of his mental condition and other relevant factors.” The role of the Court 42. There was an opportunity even during the trial for this angle to be examined. Given that in the testimonies and documents referred to there was sufficient indication of the treatment received by the Appellant in the period immediately preceding the occurrence, the Court had the option of getting the treatment records requisitioned through the IO and calling as court witnesses experts to examine the said treatment records. In fact this is what this court did when the appeal was first heard by it.\n 43. In Radhey Shyam v. State ILR 2010 Supp. (2) Delhi 475, this Court reflected on this aspect by observing as under: “38. It would be virtually impossible to lead direct evidence of what was the exact mental condition of the accused at the time of the commission of the crime. Thus, law permits evidence to be led wherefrom the trier of the facts can form an opinion regarding the mental status of the accused at the time when the crime was committed. Thus, evidence which can be led can be characterized as of inferential insanity..... This evidence, common sense tells us would be the immediately preceding and immediately succeeding conduct of the accused as also the contemporaneous conduct of the accused.\n 39. Thus, with reference to the past medical evidence or the medical history of the accused as the backdrop, the duty of the Court is to evaluate the conduct of the accused before, at the time of and soon after the crime and then return a finding of fact, whether the accused was of such unsound mind that by reason of unsoundness he was incapable of knowing the nature of the act done or incapable of knowing that the act was wrong or contrary to law.” xxx 46. Thus, a fair trial would require that if there is available proof before the Judge that the accused was suffering from a psychiatric or psychological disorder i.e. there was a history of insanity, it is the duty of the Court to require the investigator to subject the accused to a medical examination and place the evidence before the Court as observed in the decision reported as AIR 2009 SC 97 Sidhapal Kamala Yadav vs. State of Maharashtra.” 44. There are certain other circumstances which point to the possibility of the Appellant being driven to commit the crime at a time when he was not in complete control of his senses. One is the ghastly manner in which the deceased was put to death. There were 24 injuries on her body caused by the multiple household articles such as an iron tawa and two knives. Yet another factor is that the Appellant chose to remain in the same room with his bloodstained clothes, making no effort to escape or conceal the evidence and rather making an extra-judicial confession to his brother PW-1. It was perhaps reflective of his chronic mental state, which continued even during the pendency of this appeal. The medical professionals at the Tihar jail confirmed to the Court that the Appellant continues to suffer from „bipolar disorder‟. He continues to receive regular psychiatric treatment for the said condition.\n Medical literature 45. Turning to the medical literature specific to bipolar disorder, Modi’s Textbook of Medical Jurisprudence and Toxicology (24th Edition), at page 753 defines „Bipolar Disorder‟ as „Manic Depressive Psychosis‟. It describes the affliction thus: “Bipolar disorder is used for a group of mental illnesses with primary disturbances of affect, from which all other symptoms arise. The affect i.e., the mood varies between extreme poles of cheerfulness and sadness. The illness has a second characteristic of periodicity. The third characteristic is returning to normalcy from attack, without impairment of mental integrity. In practice, one finds that a single attack of a mania or a single attack of depression can occur. It occurs in persons predisposed to mood disturbances.” xxx “The depressives rarely indulge in petty crimes. A minority may commit altruistic type of homicide. Aggressive impulses are normally inhibited by the psychotic condition. Hypochondrial delusions are often associated with homicidal impulses. Hence, near relatives may be killed in order to prevent them from inheriting or developing some serious disease. The psychotic depressive kills from motive, to his way of thinking, and is inherently good as opposed to the person with paranoid illness, who is motivated by spite and a desire to avenge the imaginary wrong.\n Homicidal and suicidal tendencies frequently co-exist in depressives, which stems from hopelessness, futility and despair.\n They believe that the killing of loved ones followed by self- destruction is the only practical solution.” 46. In the Cambridge Handbook of Forensic Psychology edited by Jennifer M. Brown and Elizabeth A. Campbell, (4th Printing 2013), it is inter alia observed that bipolar disorder, previously known as manic depression, has a mean onset age of about 30 and is characterized by mood swings that can range from extreme happiness (mania) to extreme sadness (depression) over a period of days or months. It is further noted that: “In the depressive phase, symptoms include feeling sad and hopeless, lack of energy, difficulty concentrating, loss of interest in everyday activities, difficulty sleeping, feelings of worthlessness and despair, and suicidal thoughts. In the manic phase, which usually comes after several periods of depression, symptoms may include feeling elated and full of energy, talking very quickly, and feeling self-important with great ideas not known to others, but also being easily distracted, irritated or agitated, not sleeping or eating, and doing things that bring negative consequences, such as over spending and dominating others.\n Delusions stemming from these disorders can lead the individuals concerned to become violent, for example if they believe that the lives of their families have become intolerable (depressive phase), or where they believe that no one must stand in the way of their important plans (manic phase). The mental disorder can contribute directly to serious violence, e.g.\n multiple homicide of loved family members. As with schizophrenia, the precise cause of bipolar disorder is unknown, although it is thought to involve physical, environmental and social factors, with about 10-15% of sufferers nearest relatives also being affected.” 47. In an article titled Patients with Affective Disorders admitted to Maximum Secure Care (1999-2003) authored by T. White, a Consultant Forensic Psychiatrist based in Perth, Australia (printed in Med.Sci.Law (2005) Vol. 45 No.2 p.142), it is noted that: “The McArthur Violence Risk Assessment Study (Steadman et al., 1998) recently reported that patients with bipolar disorder or major depression were more likely than those with schizophrenia to be violent over the course of a year. Similarly, Swanson et al. (1990) in an early analysis of the National Institute for Mental Health Catchment Area Study, reported an equally strong association for depression, bipolar disorder and schizophrenia with reported violence. In addition, the National Confidential Inquiry into Suicides and Homicides (Appleby, 1999) appeared to demonstrate a stronger relationship between depressive symptoms than positive psychotic symptoms in mentally disordered homicide offenders.” Reasons that weigh with the Court 48. The Court is of the view that in the present case, the defence of the Appellant with reference to Section 84 IPC ought to have been accepted by the trial Court for the reason that there was sufficient relevant material as regards the treatment being received by the Appellant for chronic bipolar disorder which, if fully examined with the help of experts, might have conclusively established such a defence. It is sufficiently clear that the Appellant has been suffering from chronic depression for a long period.\nThere are records to show that he had been receiving treatment at least from 2007 onwards and continuous treatment at IHBAS for a severe condition for five months in 2010, less than six months prior to the occurrence. He attempted suicide less than a month prior to the occurrence.\n 49. While one might never know what his precise frame of mind on the fateful day was, it is fairly evident that he was suffering from chronic depression throughout. The failure by the investigating agency, and later by the trial Court, to thoroughly examine the available materials resulted in the Appellant being denied the opportunity to establish his plea of defence of unsoundness of mind under Section 84 IPC. As explained in Sidhapal Kamala Yadav v. State of Maharashtra (supra), the resultant benefit of doubt created must enure to the Appellant.\n 50. While the endeavour of the criminal justice system is to ensure that no crime goes unpunished, and there may be no doubt as to who committed the crime, the requirement of justice is also for the Court, when faced in a rare case with a plea of the accused under Section 84 IPC, to examine and evaluate \"the conduct of the accused before, at the time of and soon after the crime\" and determine whether by reason of unsoundness the accused was \"incapable of knowing the nature of the act done or incapable of knowing that the act was wrong or contrary to law.\"\n 51. For all of the aforementioned reasons, the impugned judgment of the trial Court dated 10th August 2015 convicting the Appellant for the offence under Section 302 and the order on sentence dated 17th August 2015 are hereby set aside. The Appellant is acquitted of the offence under Section 302 IPC.\n Consequential directions 52. In a case as the present one where the plea of unsoundness of mind of the Appellant at the time of commission of the crime is accepted, the needs of justice would be subserved if following his release the Appellant, given his condition, continues to receive treatment till such time he is in a position to be held responsible for himself. As noted by this Court in its order dated 4th February 2016, the Medical Status report of the Appellant as forwarded by the Superintendent of Tihar Jail noted that Appellant was as of that date “suffering from bipolar affective disorder” and was under regular follow-up with the jail psychiatrist. He continued to complain of “decreased sleep, low mood and anxiety.” In its report dated 9th October 2017, the experts at IHBAS have noted that the Appellant “is diagnosed as suffering from Dysthymia with sever depressive episode with lumber sacral radiculopathy.” The report notes that he “requires regular treatment but can be managed on outpatient basis.” „Dysthymia‟ is defined as „persistent depressive disorder‟.\n 53. In State of Rajasthan v. Shera Ram @ Vishnu Datta (supra) the Supreme Court affirmed a judgment dated 21st February, 2004 of the Rajasthan High Court acquitting the Respondent therein “primarily on the ground that at the time of incident, he was a person of unsound mind within the meaning of Section 84 IPC.” The High Court in that case had directed that the Respondent should continue to receive treatment in an appropriate hospital till he was fully cured of his mental illness. However, in the present case, as is evident from the latest report dated 9th October 2017 of the doctors at IHBAS, although the Appellant is stable and does not require to be hospitalised, he is not „out of the woods‟ and requires regular treatment‟ and periodic follow up. The Appellant will need assistance in this. It could be by anyone interested in the welfare and well-being of the Appellant. Mr.\nHarsh Prabhakar, learned counsel appearing for the Appellant informs the Court that one of the younger siblings of the Appellant has been visiting him in the jail on a regular basis.\n 54. The Court, accordingly, issues the following directions: (i) The Appellant shall be released forthwith, subject to his complying with the requirements of Section 437A Cr PC.\n (ii) For the above purpose, the matter will be placed before the trial Court on 27th November 2017.\n (iii) Considering the special facts and circumstances of the case as noted hereinbefore, the trial Court will, while ensuring compliance by the Appellant with the requirement of Section 437 A Cr PC, require that the surety provided is of a person (who may or may not be a close relative) who will additionally undertake that the Appellant will go to IHBAS for regular checks and follow up and continue to receive treatment under the close supervision of the mental health professionals there or at some other renowned facility for as long as the said mental health professionals consider necessary.\n (iv) The Delhi State Legal Services Authority (DLSA) will extend assistance to the Appellant in regard to the above directions. The Secretary DLSA will depute a panel counsel to be present on behalf of the Appellant before the trial Court on 27th November 2017 for the above purpose.\n 55. The appeal is allowed in the above terms. The application is disposed of. The Court records its appreciation of the excellent background research, preparation and able presentation of the case by Mr. Harsh Prabhakar, learned Counsel for the DHCLSC and the fair stand of Ms. Kusum Dhalla, learned APP as an officer of the Court.\n 56. A certified copy of this order will be delivered by a Special Messenger of the Registry forthwith for compliance to: (i) the trial Court together with the trial Court record; (ii) the Superintendent, Tihar Jail; (iii) the Secretary, DLSA; and (iv) The Medical Superintendent, IHBAS.\n S. MURALIDHAR, J.\n I.S. MEHTA, J.\nNOVEMBER 20, 2017 rd "
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"start": 3138,
"text": "The broad perspective is that public justice underlines the entire philosophy contemplated under Section 321 CrPC."
}
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"text": "\nThe action of the Public Prosecutor in applying the mind is not only to expose its just nature but there must also be reasonableness, as the prosecutor has to keep in mind the interest of the society against which the wrong is alleged to have been committed."
}
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"text": "3. After observing as aforesaid, the Division Bench of the High Court dealt with the principles stated in Sheo Nandan Paswan (supra) in detail, addressed to the grievance put forth in the FIR, the charges made against the accused persons and came to hold:- \"In the above case neither an offence under Section 195 nor an offence under Section 506 IPC is made out."
}
},
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"text": "If the material on record upon which the prosecution was based reveals that no purpose would served even if the trial commenced in the right direction, such prosecution could be allowed to withdraw provided no other ulterior motive is pointed out."
}
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"text": "As a matter of fact, in the process of administration of criminal justice it is said; withdrawing from prosecution can also be treated as to sub serve administration of justice."
}
},
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"text": "The decision of the prosecutor not to prosecutre the offenders or not to proceed further with the prosecution already launched, is a decision after thorough examination of material leading to such responsible decision."
}
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"text": "The court has to see whether application is made in good faith in the interest of public policy and justice while doing the exercise it has to see it would lead to manifestation of injustice by granting such consent."
}
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"text": "Once court concludes that the application is properly made and there is independent consideration of the matter by the public prosecutor and he has acted in good faith in exercising discretion vested on him, the court should allow from such withdrawal.\"\n "
}
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{
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"labels": [
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],
"start": 4992,
"text": "And again:- \"Neither complainant nor charge sheet witness has any locus standi in the exercise of discretion of the Public Prosecutor to withdraw from the prosecution."
}
},
{
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"labels": [
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"start": 5160,
"text": "If a citizen who has some concern deeper than that of a busybody, the door of the court will be kept ajar from him."
}
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"start": 5276,
"text": "He cannot be turned away at the gates."
}
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{
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"end": 5392,
"labels": [
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],
"start": 5315,
"text": "If the issue raised by him is justifiable, may still remain to be considered."
}
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"end": 5735,
"labels": [
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],
"start": 5393,
"text": "However if it is merely a question to be gone into and examined in criminal case, registered against accused persons, it is for them and they alone to raise such questions and challenge the proceedings initiated against them at the appropriate time before the proper forum and not for third parties under the grab of public interest litigant."
}
},
{
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"end": 5949,
"labels": [
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],
"start": 5736,
"text": "A person who is acting bonafide and having sufficient interest in the proceedings alone can initiate Public Interest Litigation and that the Court must not allow its process to be abused for oblique consideration."
}
},
{
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"id": "0cfa3e8d226d4edfaa72fcd24d845be4",
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"labels": [
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"start": 5950,
"text": "Criminal law should not be allowed to be used as a weapon of vendetta between private individuals.\""
}
},
{
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"id": "e55165331d084942a253b74b55a1d4e9",
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"end": 6208,
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],
"start": 6051,
"text": "Disposing of the revision petitions, the High Court further proceeded to state:- \"The petitioners are not de facto complainants, they are only third parties."
}
},
{
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"end": 6327,
"labels": [
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],
"start": 6209,
"text": "In both the petitions, petitioners have nothing to do with the complaint, as the complaint is not a private complaint."
}
},
{
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"labels": [
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"start": 6328,
"text": "When de facto ocomplainant is not questioning, how a third party can question and what is their interest in not forthcoming."
}
},
{
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"id": "6f944b5d7d954ae2bc40e2875e53843b",
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"end": 6784,
"labels": [
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"start": 6453,
"text": "From reading of the entire material as stated above, it is crystal clear that there was justification on the part of the court below in permitting the prosecutor to withdraw from the prosecution and so far as the revision petitioners, they are totally strangers to the litigation and have no locus standi to question the same.\"\n 4."
}
},
{
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"end": 6844,
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"text": "Being of this view, the High Court dismissed the petitions."
}
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"end": 7052,
"labels": [
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"start": 6844,
"text": "\n 5. We have heard Mr. Raghneth Basant, learned counsel for the appellant, Mr. C.K. Sasi, learned counsel for the respondent Nos. 1 to 3 and Mr. Radha Shyam Jena, learned counsel for the respondent No. 4.\n 6."
}
},
{
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"end": 7171,
"labels": [
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],
"start": 7053,
"text": "To appreciate the controversy, it is necessary to advert to the order passed by the learned Chief Judicial Magistrate."
}
},
{
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"end": 7414,
"labels": [
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],
"start": 7172,
"text": "He has referred to the application filed by the Deputy Director of Prosecution wherefrom it is manifest that the Government had no objection in withdrawing the case and the decision of the Government has been filed along with the application."
}
},
{
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"end": 7586,
"labels": [
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],
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"text": "The trial court has observed that it has gone through the petition and is satisfied that the grounds stated therein are sufficient for giving consent to withdraw the case."
}
},
{
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"end": 7799,
"labels": [
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],
"start": 7587,
"text": "He has further opined on analyzing materials that there is no possibility of success in the criminal case and, therefore, the withdrawal from prosecution is necessary for the better advancement of public justice."
}
},
{
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"id": "414f6da05c254f25a331d2fe4a5bdcf6",
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"end": 7881,
"labels": [
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],
"start": 7801,
"text": "7. Section 321 of the CrPC reads as follows:- \"321. Withdrawal from prosecution."
}
},
{
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"end": 9427,
"labels": [
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"start": 7882,
"text": "The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal,- (a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences; (b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences: Provided that where such offence- (i) was against any law relating to a matter to which the executive power of the Union extends, or (ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946 ), or (iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or (iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the Prosecutor in charge of the case hag hot been appointed by the Central Government, he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution.\"\n "
}
},
{
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"id": "416daf78907d4797b461e9fb2bfc5dd1",
"to_name": "text",
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"end": 9637,
"labels": [
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],
"start": 9427,
"text": "The said provision confers authority on the Public Prosecutor to withdraw from the prosecution of any person accused of an offence, both when no evidence is taken and even if the entire evidence has been taken."
}
},
{
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"id": "7d61a2e5e477415f875ed7307cd9fd69",
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"value": {
"end": 9760,
"labels": [
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],
"start": 9638,
"text": "The outer limit for exercising the said power is guided by the expression \"at any time before the judgment is pronounced\"."
}
},
{
"from_name": "label",
"id": "777712ab045c468ea9ade6dbd5b1e49b",
"to_name": "text",
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"value": {
"end": 10066,
"labels": [
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],
"start": 9760,
"text": "\n 8. The Constitution Bench in Sheo Nandan Paswan (supra), after referring to Bansi Lal v. Chandan Lal5, Balwant Singh v. State of Bihar6, Subhash Chander v. State (Chandigarh Admn.)7, Rajender Kumar Jain v. State8 and the principles stated in State of Bihar v. Ram Naresh Pandey9, came to hold thus:- \"99."
}
},
{
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"end": 10206,
"labels": [
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],
"start": 10067,
"text": "All the above decisions have followed the reasoning of Ram Naresh Pandey case and the principles settled in that decision were not doubted."
}
},
{
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"id": "3e6460a48a9f4cbfa8e06ed7ed163dd2",
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"end": 10218,
"labels": [
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],
"start": 10206,
"text": "\n 100."
}
},
{
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"value": {
"end": 10300,
"labels": [
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],
"start": 10219,
"text": "It is in the light of these decisions that the case on hand has to be considered."
}
},
{
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"id": "e50de492079d4d40978663b82da405d8",
"to_name": "text",
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"value": {
"end": 10581,
"labels": [
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],
"start": 10301,
"text": "I find that the application for withdrawal by the Public Prosecutor has been made in good faith after careful consideration of the materials placed before him and the order of consent given by the Magistrate was also after due consideration of various details, as indicated above."
}
},
{
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"id": "8ad41c46a2a1400985a40089f2506578",
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"value": {
"end": 10926,
"labels": [
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],
"start": 10582,
"text": "It would be improper for this Court, keeping in view the scheme of Section 321, to embark upon a detailed enquiry into the facts and evidence of the case or to direct retrial for that would be destructive of the object and intent of the section.\"\n 5 (1976) 1 SCC 421 6 (1977) 4 SCC 448 7 (1980) 2 SCC 155 8 (1980) 3 SCC 435 9 AIR 1957 SC 389 9."
}
},
{
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"id": "eedbce7e0bf14a7b8f61f9cf3ba1bda6",
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"value": {
"end": 11176,
"labels": [
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],
"start": 10927,
"text": "In Rahul Agarwal v. Rakesh Jain10, the Court while dealing with the application under Section 321 CrPC, referred to certain decisions where the earlier decision of the Constitution Bench in Sheonandan Paswan (supra) has been referred and held:- \"10."
}
},
{
"from_name": "label",
"id": "5153d0afbdcd451cb1652636f77ba42b",
"to_name": "text",
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"value": {
"end": 11351,
"labels": [
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],
"start": 11177,
"text": "From these decisions as well as other decisions on the same question, the law is very clear that the withdrawal of prosecution can be allowed only in the interest of justice."
}
},
{
"from_name": "label",
"id": "5da4bd075b08408ab877bc0c9c6abff0",
"to_name": "text",
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"value": {
"end": 11614,
"labels": [
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],
"start": 11352,
"text": "Even if the Government directs the Public Prosecutor to withdraw the prosecution and an application is filed to that effect, the court must consider all relevant circumstances and find out whether the withdrawal of prosecution would advance the cause of justice."
}
},
{
"from_name": "label",
"id": "ebbcce00aa074bea930ef3b67caf8d23",
"to_name": "text",
"type": "labels",
"value": {
"end": 11793,
"labels": [
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],
"start": 11615,
"text": "If the case is likely to end in an acquittal and the continuance of the case is only causing severe harassment to the accused, the court may permit withdrawal of the prosecution."
}
},
{
"from_name": "label",
"id": "3a27e6a175674a7098b8dd206b73aea8",
"to_name": "text",
"type": "labels",
"value": {
"end": 12000,
"labels": [
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],
"start": 11794,
"text": "If the withdrawal of prosecution is likely to bury the dispute and bring about harmony between the parties and it would be in the best interest of justice, the court may allow the withdrawal of prosecution."
}
},
{
"from_name": "label",
"id": "6560c9ddf64d4529ab55a4283fce95cb",
"to_name": "text",
"type": "labels",
"value": {
"end": 12312,
"labels": [
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],
"start": 12001,
"text": "The discretion under Section 321 of the Code of Criminal Procedure is to be carefully exercised by the court having due regard to all the relevant facts and shall not be exercised to stifle the prosecution which is being done at the instance of the aggrieved parties or the State for redressing their grievance."
}
},
{
"from_name": "label",
"id": "9b5d4acc30fe4d11b974451c60c8f5c5",
"to_name": "text",
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"value": {
"end": 12443,
"labels": [
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],
"start": 12313,
"text": "Every crime is an offence against the society and if the accused committed an offence, society demands that he should be punished."
}
},
{
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"id": "11f17ebf5c9040ba9f77f68614498e89",
"to_name": "text",
"type": "labels",
"value": {
"end": 12588,
"labels": [
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],
"start": 12443,
"text": "\n Punishing the person who perpetrated the crime is an essential requirement for the maintenance of law and order and peace in the society."
}
},
{
"from_name": "label",
"id": "671a6377a9b042558c892b459e455e98",
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"value": {
"end": 12729,
"labels": [
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],
"start": 12589,
"text": "Therefore, the withdrawal of the prosecution shall be permitted only when valid reasons are made out for the same.\"\n 10 (2005) 2 SCC 377 10."
}
},
{
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"id": "e7a8bf29e9454463ba63242a1f501939",
"to_name": "text",
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"value": {
"end": 12934,
"labels": [
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],
"start": 12730,
"text": "In Bairam Muralidhar v. State of A.P11, while appreciating the said provision, it has been laid down that:- \"18. ... it is the obligation of the Public Prosecutor to state what material he has considered."
}
},
{
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"id": "618b423f7a3542ddb22d302133028c89",
"to_name": "text",
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"value": {
"end": 12965,
"labels": [
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],
"start": 12935,
"text": "It has to be set out in brief."
}
},
{
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"id": "fc4f1ea474014c4fa52e8fc39c8e6832",
"to_name": "text",
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"value": {
"end": 13054,
"labels": [
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],
"start": 12966,
"text": "The court as has been held in Abdul Karim case, is required to give an informed consent."
}
},
{
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"id": "7dca720f780d4e91b386583a137453a7",
"to_name": "text",
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"value": {
"end": 13235,
"labels": [
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],
"start": 13055,
"text": "It is obligatory on the part of the court to satisfy itself that from the material it can reasonably be held that the withdrawal of the prosecution would serve the public interest."
}
},
{
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"id": "9b65d74e14a648938afe9704aef6077d",
"to_name": "text",
"type": "labels",
"value": {
"end": 13299,
"labels": [
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],
"start": 13236,
"text": "It is not within the domain of the court to weigh the material."
}
},
{
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"id": "078fef9e90df46ac80f62a81790ff02a",
"to_name": "text",
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"value": {
"end": 13455,
"labels": [
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],
"start": 13300,
"text": "However, it is necessary on the part of the court to see whether the grant of consent would thwart or stifle the course of law or cause manifest injustice."
}
},
{
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"id": "7b90bc5a1a02442eb59c7b6b4398a28f",
"to_name": "text",
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"value": {
"end": 13654,
"labels": [
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],
"start": 13456,
"text": "A court while giving consent under Section 321 of the Code is required to exercise its judicial discretion, and judicial discretion, as settled in law, is not to be exercised in a mechanical manner."
}
},
{
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"id": "ba5a5503a18f4bd8aad39c274ea66f15",
"to_name": "text",
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"value": {
"end": 13707,
"labels": [
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],
"start": 13655,
"text": "The court cannot give such consent on a mere asking."
}
},
{
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"id": "d023fd8bcb2641d78995c2ee91b218ac",
"to_name": "text",
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"value": {
"end": 13885,
"labels": [
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],
"start": 13708,
"text": "It is expected of the court to consider the material on record to see that the application had been filed in good faith and it is in the interest of public interest and justice."
}
},
{
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"id": "708449e87dd14fa39bdd13ebde37076a",
"to_name": "text",
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"value": {
"end": 13991,
"labels": [
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],
"start": 13886,
"text": "Another aspect the court is obliged to see is whether such withdrawal would advance the cause of justice."
}
},
{
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"id": "11de00f71de244218c0c6116caaf4512",
"to_name": "text",
"type": "labels",
"value": {
"end": 14153,
"labels": [
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],
"start": 13992,
"text": "It requires exercise of careful and concerned discretion because certain crimes are against the State and the society as a collective demands justice to be done."
}
},
{
"from_name": "label",
"id": "df0ac147f43049dc98742eb745dca22a",
"to_name": "text",
"type": "labels",
"value": {
"end": 14212,
"labels": [
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],
"start": 14154,
"text": "That maintains the law and order situation in the society."
}
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}
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"text": "He is required to act in good faith, peruse the materials on record and form an independent opinion that the withdrawal of the case would really subserve the public interest at large."
}
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"text": "He cannot remain oblivious to his lawful obligations under the Code."
}
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"text": "He is required to constantly remember his duty to the court as well as his duty to the collective.\"\n 11 (2014) 10 SCC 380"
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"text": "From the aforesaid authorities, it is clear as crystal that the Public Prosecutor or an Assistant Public Prosecutor, as the case may be, has an important role under the statutory scheme and is expected to act as an independent person."
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"text": "He/she has to apply his/her own mind and consider the effect of withdrawal on the society in the event such permission is granted."
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"text": "11. In V.L.S. Finance Limited v. S.P. Gupta and another12, a two- Judge Bench, after analyzing the law in detail, has ruled :- \"42."
}
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"text": "We have enumerated the principles pertaining to the jurisdiction of the Court while dealing with an application preferred under Section 321 CrPC and also highlighted the role of the Public Prosecutor who is required to act in good faith, peruse the materials on record and form an independent opinion that the withdrawal from the prosecution would really subserve the public interest at large."
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"text": "The authorities referred to hereinabove clearly spell out that the Public Prosecutor is not supposed to act as a post office and he is expected to remember his duty to the Court as well as his duty to the collective.\""
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"text": "\n 12. In the case at hand, as is evincible, the learned Chief Judicial Magistrate has dwelt upon the merits and expressed an opinion that the case is not likely to end in conviction."
}
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"text": "It is clearly manifest that the Public Prosecutor had not applied his mind but had only placed the Government notification on record."
}
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"text": "The High Court has unsuited the petitioners on the ground that they are third parties who are unconnected with the case."
}
},
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"labels": [
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"text": "They had filed revisions and the High Court 12 (2016) 3 SCC 736 has been conferred power to entertain the revisions and rectify the errors which are apparent or totally uncalled for."
}
},
{
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"text": "This is the power of superintendence of the High Court."
}
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],
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"text": "Thus viewed, the petitioners could not have been treated as strangers, for they had brought it to the notice of the High Court and hence, it should have applied its mind with regard to the correctness of the order."
}
},
{
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"text": "It may be said with certitude that the revision petitions filed before the High Court were not frivolous ones."
}
},
{
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"text": "\nThey were of serious nature."
}
},
{
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"labels": [
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],
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"text": "It is a case where the Public Prosecutor had acted like a post office and the learned Chief Judicial Magistrate has passed an order not within the parameters of Section 321 CrPC."
}
},
{
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"labels": [
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],
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"text": "He should have applied the real test stipulated under Section 321 CrPC and the decisions of this Court but that has not been done."
}
},
{
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"labels": [
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],
"start": 17211,
"text": "13. We are compelled to recapitulate that there are frivolous litigations but that does not mean that there are no innocent sufferers who eagerly wait for justice to be done."
}
},
{
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],
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"text": "That apart, certain criminal offences destroy the social fabric."
}
},
{
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"to_name": "text",
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"end": 17607,
"labels": [
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],
"start": 17451,
"text": "Every citizen gets involved in a way to respond to it; and that is why the power is conferred on the Public Prosecutor and the real duty is cast on him/her."
}
},
{
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"labels": [
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],
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"text": "He/she has to act with responsibility."
}
},
{
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"labels": [
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],
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"text": "He/she is not to be totally guided by the instructions of the Government but is required to assist the Court; and the Court is duty bound to see the precedents and pass appropriate orders."
}
},
{
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],
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"text": "14. In the case at hand, as the aforestated exercise has not been done, we are compelled to set aside the order passed by the High Court and that of the learned Chief Judicial Magistrate and remit the matter to the file of the Chief Judicial Magistrate to reconsider the application in accordance with law and we so direct."
}
},
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],
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"text": "15. The appeal is, accordingly, allowed."
}
},
{
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"start": 18203,
"text": "...............................CJI.\n (Dipak Misra) ..................................J.\n (Dr. D.Y. Chandrachud) New Delhi; September 13, 2018"
}
}
]
}
] | 1,729 | {
"text": " REPORTABLE\n\n IN THE SUPREME COURT OF INDIA\n\n CRIMINAL APPELALTE JURISDICTION\n\n CRIMINAL APPEAL NO. 1047 of 2018\n\n(Arising out of S.L.P. (Criminal) No. 10703 of 2013)\n\nAbdul Wahab K. ... Appellant(s)\n\n VERSUS\n\nState of Kerala and Others ... Respondent(s)\n\n J U D G M E N T\n Dipak Misra, CJI The 4th respondent faced a criminal proceeding for offences punishable under Sections 195A and 506 of Indian Penal Code. During the pendency of the criminal case, a petition was filed by the Public Prosecutor to withdraw from the prosecution. The learned Chief Judicial Magistrate vide order dated 04.01.2012 allowed the application and permitted the Public Prosecutor to withdraw from the prosecution.\n2. The said order was assailed by the appellant herein, in Criminal Revision Petition Nos.2020 and 2021 of 2012. It was contended before the High Court that the learned Chief Judicial Magistrate totally ignoring the controversy involved in the case has passed the impugned order and that apart, he has not remained alive to the exercise of jurisdiction under Section 321 of the Code of Criminal Procedure (for short, ,,the CrPC).\nThe Court referred to the decisions in Sheo Nandan Paswan v. State of Bihar1, Peoples Union for Civil Liberties (Delhi) v. Central Bureau of Investigation and others 2 , State of Kerala v. Vijayakumar 3 and Rajender Kumar Jain v. State of Bihar4 and came to hold that the consent to withdraw from the prosecution would jeopardize the public interest and public policy. The Division Bench further opined that a criminal proceeding is not a proceeding for vindication of a private grievance but it is a proceeding initiated for the purpose of punishment to the offender in the interest of the society. The objective being maintenance of stability and orderliness in the society, private interest will not come into picture. The punishment of the offender in the interest of the society is one of the objects behind the penal statute enacted for the larger good of the society. After so holding, the High Court held that the consent of the court is a pivotal factor under Section 321 CrPC. It indicates that the entire process is the result of a complaint and variety of considerations such as gravity of the crime, the effect of withdrawal from prosecution and the public confidence in the entire system. The 1 AIR 1987 SC 877 2 1997 Cr.L.J 3242 3 Crl.R.P. No. 3543 of 2008 4 AIR 1980 SC 1510 public interest and the public policy are dominant features as the objectivity displayed by the prosecution in making such application has serious impact on the society. Though the nature of the offence cannot be a valid ground for rejecting the application for withdrawal from prosecution, yet it is the duty of the court to appreciate all the grounds which prompted the prosecution to seek withdrawal from the case. A holistic approach is required rather than adherence to a particular reason. The application for withdrawal expresses the independent mind of the Public Prosecutor. The broad perspective is that public justice underlines the entire philosophy contemplated under Section 321 CrPC.\nThe action of the Public Prosecutor in applying the mind is not only to expose its just nature but there must also be reasonableness, as the prosecutor has to keep in mind the interest of the society against which the wrong is alleged to have been committed.\n3. After observing as aforesaid, the Division Bench of the High Court dealt with the principles stated in Sheo Nandan Paswan (supra) in detail, addressed to the grievance put forth in the FIR, the charges made against the accused persons and came to hold:- \"In the above case neither an offence under Section 195 nor an offence under Section 506 IPC is made out. If the material on record upon which the prosecution was based reveals that no purpose would served even if the trial commenced in the right direction, such prosecution could be allowed to withdraw provided no other ulterior motive is pointed out. As a matter of fact, in the process of administration of criminal justice it is said; withdrawing from prosecution can also be treated as to sub serve administration of justice. The decision of the prosecutor not to prosecutre the offenders or not to proceed further with the prosecution already launched, is a decision after thorough examination of material leading to such responsible decision. The court has to see whether application is made in good faith in the interest of public policy and justice while doing the exercise it has to see it would lead to manifestation of injustice by granting such consent. Once court concludes that the application is properly made and there is independent consideration of the matter by the public prosecutor and he has acted in good faith in exercising discretion vested on him, the court should allow from such withdrawal.\"\n And again:- \"Neither complainant nor charge sheet witness has any locus standi in the exercise of discretion of the Public Prosecutor to withdraw from the prosecution. If a citizen who has some concern deeper than that of a busybody, the door of the court will be kept ajar from him. He cannot be turned away at the gates. If the issue raised by him is justifiable, may still remain to be considered. However if it is merely a question to be gone into and examined in criminal case, registered against accused persons, it is for them and they alone to raise such questions and challenge the proceedings initiated against them at the appropriate time before the proper forum and not for third parties under the grab of public interest litigant. A person who is acting bonafide and having sufficient interest in the proceedings alone can initiate Public Interest Litigation and that the Court must not allow its process to be abused for oblique consideration. Criminal law should not be allowed to be used as a weapon of vendetta between private individuals.\"\n Disposing of the revision petitions, the High Court further proceeded to state:- \"The petitioners are not de facto complainants, they are only third parties. In both the petitions, petitioners have nothing to do with the complaint, as the complaint is not a private complaint. When de facto ocomplainant is not questioning, how a third party can question and what is their interest in not forthcoming. From reading of the entire material as stated above, it is crystal clear that there was justification on the part of the court below in permitting the prosecutor to withdraw from the prosecution and so far as the revision petitioners, they are totally strangers to the litigation and have no locus standi to question the same.\"\n 4. Being of this view, the High Court dismissed the petitions.\n 5. We have heard Mr. Raghneth Basant, learned counsel for the appellant, Mr. C.K. Sasi, learned counsel for the respondent Nos. 1 to 3 and Mr. Radha Shyam Jena, learned counsel for the respondent No. 4.\n 6. To appreciate the controversy, it is necessary to advert to the order passed by the learned Chief Judicial Magistrate. He has referred to the application filed by the Deputy Director of Prosecution wherefrom it is manifest that the Government had no objection in withdrawing the case and the decision of the Government has been filed along with the application. The trial court has observed that it has gone through the petition and is satisfied that the grounds stated therein are sufficient for giving consent to withdraw the case. He has further opined on analyzing materials that there is no possibility of success in the criminal case and, therefore, the withdrawal from prosecution is necessary for the better advancement of public justice.\n 7. Section 321 of the CrPC reads as follows:- \"321. Withdrawal from prosecution. The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal,- (a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences; (b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences: Provided that where such offence- (i) was against any law relating to a matter to which the executive power of the Union extends, or (ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946 (25 of 1946 ), or (iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or (iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the Prosecutor in charge of the case hag hot been appointed by the Central Government, he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before according consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution.\"\n The said provision confers authority on the Public Prosecutor to withdraw from the prosecution of any person accused of an offence, both when no evidence is taken and even if the entire evidence has been taken. The outer limit for exercising the said power is guided by the expression \"at any time before the judgment is pronounced\".\n 8. The Constitution Bench in Sheo Nandan Paswan (supra), after referring to Bansi Lal v. Chandan Lal5, Balwant Singh v. State of Bihar6, Subhash Chander v. State (Chandigarh Admn.)7, Rajender Kumar Jain v. State8 and the principles stated in State of Bihar v. Ram Naresh Pandey9, came to hold thus:- \"99. All the above decisions have followed the reasoning of Ram Naresh Pandey case and the principles settled in that decision were not doubted.\n 100. It is in the light of these decisions that the case on hand has to be considered. I find that the application for withdrawal by the Public Prosecutor has been made in good faith after careful consideration of the materials placed before him and the order of consent given by the Magistrate was also after due consideration of various details, as indicated above. It would be improper for this Court, keeping in view the scheme of Section 321, to embark upon a detailed enquiry into the facts and evidence of the case or to direct retrial for that would be destructive of the object and intent of the section.\"\n 5 (1976) 1 SCC 421 6 (1977) 4 SCC 448 7 (1980) 2 SCC 155 8 (1980) 3 SCC 435 9 AIR 1957 SC 389 9. In Rahul Agarwal v. Rakesh Jain10, the Court while dealing with the application under Section 321 CrPC, referred to certain decisions where the earlier decision of the Constitution Bench in Sheonandan Paswan (supra) has been referred and held:- \"10. From these decisions as well as other decisions on the same question, the law is very clear that the withdrawal of prosecution can be allowed only in the interest of justice. Even if the Government directs the Public Prosecutor to withdraw the prosecution and an application is filed to that effect, the court must consider all relevant circumstances and find out whether the withdrawal of prosecution would advance the cause of justice. If the case is likely to end in an acquittal and the continuance of the case is only causing severe harassment to the accused, the court may permit withdrawal of the prosecution. If the withdrawal of prosecution is likely to bury the dispute and bring about harmony between the parties and it would be in the best interest of justice, the court may allow the withdrawal of prosecution. The discretion under Section 321 of the Code of Criminal Procedure is to be carefully exercised by the court having due regard to all the relevant facts and shall not be exercised to stifle the prosecution which is being done at the instance of the aggrieved parties or the State for redressing their grievance. Every crime is an offence against the society and if the accused committed an offence, society demands that he should be punished.\n Punishing the person who perpetrated the crime is an essential requirement for the maintenance of law and order and peace in the society. Therefore, the withdrawal of the prosecution shall be permitted only when valid reasons are made out for the same.\"\n 10 (2005) 2 SCC 377 10. In Bairam Muralidhar v. State of A.P11, while appreciating the said provision, it has been laid down that:- \"18. ... it is the obligation of the Public Prosecutor to state what material he has considered. It has to be set out in brief. The court as has been held in Abdul Karim case, is required to give an informed consent. It is obligatory on the part of the court to satisfy itself that from the material it can reasonably be held that the withdrawal of the prosecution would serve the public interest. It is not within the domain of the court to weigh the material. However, it is necessary on the part of the court to see whether the grant of consent would thwart or stifle the course of law or cause manifest injustice. A court while giving consent under Section 321 of the Code is required to exercise its judicial discretion, and judicial discretion, as settled in law, is not to be exercised in a mechanical manner. The court cannot give such consent on a mere asking. It is expected of the court to consider the material on record to see that the application had been filed in good faith and it is in the interest of public interest and justice. Another aspect the court is obliged to see is whether such withdrawal would advance the cause of justice. It requires exercise of careful and concerned discretion because certain crimes are against the State and the society as a collective demands justice to be done. That maintains the law and order situation in the society. The Public Prosecutor cannot act like the post office on behalf of the State Government. He is required to act in good faith, peruse the materials on record and form an independent opinion that the withdrawal of the case would really subserve the public interest at large. An order of the Government on the Public Prosecutor in this regard is not binding. He cannot remain oblivious to his lawful obligations under the Code. He is required to constantly remember his duty to the court as well as his duty to the collective.\"\n 11 (2014) 10 SCC 380 From the aforesaid authorities, it is clear as crystal that the Public Prosecutor or an Assistant Public Prosecutor, as the case may be, has an important role under the statutory scheme and is expected to act as an independent person. He/she has to apply his/her own mind and consider the effect of withdrawal on the society in the event such permission is granted.\n11. In V.L.S. Finance Limited v. S.P. Gupta and another12, a two- Judge Bench, after analyzing the law in detail, has ruled :- \"42. We have enumerated the principles pertaining to the jurisdiction of the Court while dealing with an application preferred under Section 321 CrPC and also highlighted the role of the Public Prosecutor who is required to act in good faith, peruse the materials on record and form an independent opinion that the withdrawal from the prosecution would really subserve the public interest at large. The authorities referred to hereinabove clearly spell out that the Public Prosecutor is not supposed to act as a post office and he is expected to remember his duty to the Court as well as his duty to the collective.\"\n 12. In the case at hand, as is evincible, the learned Chief Judicial Magistrate has dwelt upon the merits and expressed an opinion that the case is not likely to end in conviction. It is clearly manifest that the Public Prosecutor had not applied his mind but had only placed the Government notification on record. The High Court has unsuited the petitioners on the ground that they are third parties who are unconnected with the case. They had filed revisions and the High Court 12 (2016) 3 SCC 736 has been conferred power to entertain the revisions and rectify the errors which are apparent or totally uncalled for. This is the power of superintendence of the High Court. Thus viewed, the petitioners could not have been treated as strangers, for they had brought it to the notice of the High Court and hence, it should have applied its mind with regard to the correctness of the order. It may be said with certitude that the revision petitions filed before the High Court were not frivolous ones.\nThey were of serious nature. It is a case where the Public Prosecutor had acted like a post office and the learned Chief Judicial Magistrate has passed an order not within the parameters of Section 321 CrPC. He should have applied the real test stipulated under Section 321 CrPC and the decisions of this Court but that has not been done.\n13. We are compelled to recapitulate that there are frivolous litigations but that does not mean that there are no innocent sufferers who eagerly wait for justice to be done. That apart, certain criminal offences destroy the social fabric. Every citizen gets involved in a way to respond to it; and that is why the power is conferred on the Public Prosecutor and the real duty is cast on him/her. He/she has to act with responsibility. He/she is not to be totally guided by the instructions of the Government but is required to assist the Court; and the Court is duty bound to see the precedents and pass appropriate orders.\n 14. In the case at hand, as the aforestated exercise has not been done, we are compelled to set aside the order passed by the High Court and that of the learned Chief Judicial Magistrate and remit the matter to the file of the Chief Judicial Magistrate to reconsider the application in accordance with law and we so direct.\n15. The appeal is, accordingly, allowed.\n ...............................CJI.\n (Dipak Misra) ..................................J.\n (Dr. D.Y. Chandrachud) New Delhi; September 13, 2018 "
} |
{
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"text": " NON-REPORTABLE\n IN THE SUPREME COURT OF INDIA\nCRIMINAL APPELLATE JURISDICTION\n\nSPECIAL LEAVE PETITION (CRIMINAL) NO. 3935 OF 2016\n\nSHALU OJHA VERSUS ....."
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}
},
{
"from_name": null,
"id": "9901094238e94f109169ad6ec5fbba51",
"to_name": null,
"type": null,
"value": {
"end": 291,
"labels": [
"PREAMBLE"
],
"start": 250,
"text": " .....RESPONDENT(S)"
}
},
{
"from_name": null,
"id": "d4d99268c6fe4c298307228a4c436877",
"to_name": null,
"type": null,
"value": {
"end": 349,
"labels": [
"NONE"
],
"start": 291,
"text": "\n\n J U D G M E N T\n A.K. SIKRI, J."
}
},
{
"from_name": null,
"id": "47401b527c97423a97f7e6e42fa6cf6a",
"to_name": null,
"type": null,
"value": {
"end": 1709,
"labels": [
"FAC"
],
"start": 365,
"text": "On an earlier occasion, after hearing the petitioner who appeared in person, and the learned counsel for the respondent, we had passed order dated September 4, 2017, thereby disposing of this petition with the following directions: (a) insofar as domestic violence proceedings before the Family Court are concerned, necessary documents shall be filed by both the parties within four weeks from today and evidence led pursuant thereto. The trial court shall endeavour to decide the case finally, within a period of eight months from today, on the basis of evidence and fix the rate of maintenance finally; and (b) Crl.MC. No. 850 of 2015, pending before the High Court, shall be taken up for hearing immediately and the High Court shall endeavour to dispose of the same as expeditiously as possible and determine at what rate interim maintenance is to be given, i.e. whether order dated February 13, 2015 passed by the learned ASJ need any modification or not.\n 2) Thereafter, review petition was filed by the petitioner pointing out that there was apparent error in passing the aforesaid directions inasmuch as matter was remitted to the High Court for presumption that proceedings were pending but the fact is that no such proceedings are pending under the Protection of Women from Domestic Violence Act, 2005 (for short the `DV Act').\n "
}
},
{
"from_name": null,
"id": "11c8292c1c9e4c93b5ee4c0a32f7bee5",
"to_name": null,
"type": null,
"value": {
"end": 1835,
"labels": [
"FAC"
],
"start": 1709,
"text": "Realising this error, the review petition was allowed and the Special Leave Petition was restored which has been heard afresh."
}
},
{
"from_name": null,
"id": "d46a43a90eda484aa122f3bd3893b4e8",
"to_name": null,
"type": null,
"value": {
"end": 2014,
"labels": [
"FAC"
],
"start": 1835,
"text": "\n 3) Notwithstanding the aforesaid factual error which had crept in the order dated September 4, 2017, the other factual details recorded in the said order are a matter of record."
}
},
{
"from_name": null,
"id": "98d4656b4d5c42e1af9c730b4746d797",
"to_name": null,
"type": null,
"value": {
"end": 2308,
"labels": [
"FAC"
],
"start": 2015,
"text": "Therefore, it would be in the fitness of things to reproduce the same: Though this case has a chequered history, only those facts which are very material are taken note of, eschewing other unnecessary details, in order to avoid burdening this judgment with the facts which may not be relevant."
}
},
{
"from_name": null,
"id": "c46db8f7195f45caa83ba537a6aac40f",
"to_name": null,
"type": null,
"value": {
"end": 2350,
"labels": [
"FAC"
],
"start": 2308,
"text": "\n The petitioner is the respondent's wife."
}
},
{
"from_name": null,
"id": "716e9b2f239740c6b9380c6dbad43af7",
"to_name": null,
"type": null,
"value": {
"end": 2467,
"labels": [
"FAC"
],
"start": 2351,
"text": "It is unfortunate that after their marriage on April 20, 2007 in Delhi, they stayed together hardly for four months."
}
},
{
"from_name": null,
"id": "946b00ddbe694766a9cf44d36dac4f87",
"to_name": null,
"type": null,
"value": {
"end": 2546,
"labels": [
"FAC"
],
"start": 2468,
"text": "Thus, for almost ten years they have parted company and are living separately."
}
},
{
"from_name": null,
"id": "9cac6d0148ad4f818588559796bf05ca",
"to_name": null,
"type": null,
"value": {
"end": 2734,
"labels": [
"FAC"
],
"start": 2547,
"text": "It is not necessary to go into the reasons which led to the matrimonial discord as in the present petition this Court is concerned only with the dispute regarding the rate of maintenance."
}
},
{
"from_name": null,
"id": "bf3dbc1c3f954236a3a2d68ee7e65824",
"to_name": null,
"type": null,
"value": {
"end": 2868,
"labels": [
"FAC"
],
"start": 2734,
"text": "\n The petitioner had filed an application sometime in June 2009 claiming maintenance under the provisions of Section 12 of the DV Act."
}
},
{
"from_name": null,
"id": "9fe07a0c07ea4af99293428f8cf880fb",
"to_name": null,
"type": null,
"value": {
"end": 2952,
"labels": [
"FAC"
],
"start": 2869,
"text": "In that application, apart from other reliefs, she has claimed maintenance as well."
}
},
{
"from_name": null,
"id": "ae598e809d8741d084afcae15f697cc8",
"to_name": null,
"type": null,
"value": {
"end": 3178,
"labels": [
"FAC"
],
"start": 2953,
"text": "Order dated July 05, 2012 was passed by the learned Metropolitan Magistrate granting interim maintenance @ Rs.2,50,000/- per month with effect from the date of filing of the complaint as well as compensation of Rs.1,00,000/-."
}
},
{
"from_name": null,
"id": "83943084158c4f858b22cf75b9d70738",
"to_name": null,
"type": null,
"value": {
"end": 3318,
"labels": [
"FAC"
],
"start": 3179,
"text": "Since the respondent did not honour the said order, the petitioner filed the execution petition for recovery of the arrears of maintenance."
}
},
{
"from_name": null,
"id": "cf693fdcaef04609916156b020f1c868",
"to_name": null,
"type": null,
"value": {
"end": 3546,
"labels": [
"FAC"
],
"start": 3319,
"text": "In the meantime, the respondent challenged the order of the Metropolitan Magistrate granting maintenance, by filing appeal under Section 29 of the DV Act, in the Court of Additional Sessions Judge, Delhi (for short, the `ASJ')."
}
},
{
"from_name": null,
"id": "bce28ef809224d81b281a51c1e0a9d5e",
"to_name": null,
"type": null,
"value": {
"end": 3702,
"labels": [
"FAC"
],
"start": 3547,
"text": "In the said appeal, the learned ASJ issued interim directions dated January 10, 2013 for depositing of the entire arrears of maintenance within two months."
}
},
{
"from_name": null,
"id": "27e220736c0544c0b58f36ce777fa313",
"to_name": null,
"type": null,
"value": {
"end": 3805,
"labels": [
"FAC"
],
"start": 3703,
"text": "As this order was not complied with, the appeal filed by the respondent was dismissed on May 07, 2013."
}
},
{
"from_name": null,
"id": "3700ec61fba548f59c2f110eae80f8ca",
"to_name": null,
"type": null,
"value": {
"end": 3885,
"labels": [
"FAC"
],
"start": 3806,
"text": "This order of dismissal was challenged by the respondent before the High Court."
}
},
{
"from_name": null,
"id": "c6e9076b4be746688eb0bba74339c0b9",
"to_name": null,
"type": null,
"value": {
"end": 3998,
"labels": [
"FAC"
],
"start": 3886,
"text": "In those proceedings, order dated July 23, 2013 was passed allowing the appellant herein to file the reply, etc."
}
},
{
"from_name": null,
"id": "d94ac17351504cc1b3e05db15ca2eb83",
"to_name": null,
"type": null,
"value": {
"end": 4131,
"labels": [
"FAC"
],
"start": 3999,
"text": "As no stay was granted, order dated July 23, 2013 was challenged by the respondent in this Court by filing a special leave petition."
}
},
{
"from_name": null,
"id": "02eee5310f25427da31443c83c70c009",
"to_name": null,
"type": null,
"value": {
"end": 4180,
"labels": [
"FAC"
],
"start": 4132,
"text": "This Court, however, did not entertain the same."
}
},
{
"from_name": null,
"id": "ee221ec19ffe40d09c38c7f81954a5e8",
"to_name": null,
"type": null,
"value": {
"end": 4427,
"labels": [
"FAC"
],
"start": 4181,
"text": "At the same time, while disposing of the special leave petition, observations were made to the effect that if the parties apply for mediation, the matter shall be referred to the Delhi High Court Mediation and Conciliation Centre at the earliest."
}
},
{
"from_name": null,
"id": "dde838085000424fa0fe3a9f7d96162e",
"to_name": null,
"type": null,
"value": {
"end": 4606,
"labels": [
"FAC"
],
"start": 4428,
"text": "Keeping in view these observations, the High Court referred the dispute to the Mediation Centre at the Delhi High Court and also stayed the execution proceedings in the meantime."
}
},
{
"from_name": null,
"id": "0148fb449bc54440aefed9ace451ed2e",
"to_name": null,
"type": null,
"value": {
"end": 4636,
"labels": [
"FAC"
],
"start": 4607,
"text": "Mediation proceedings failed."
}
},
{
"from_name": null,
"id": "c1bf16359a1d4eb28c185db11ff9ce63",
"to_name": null,
"type": null,
"value": {
"end": 4878,
"labels": [
"FAC"
],
"start": 4637,
"text": "As a result, the High Court took up the matter on merits and passed orders dated September 10, 2013 directing the respondent to pay Rs.5,00,000/- on or before September 30, 2013 and another sum of Rs.5,00,000/- on or before October 31, 2013."
}
},
{
"from_name": null,
"id": "eb43258b6a514bee80db89c0717d9733",
"to_name": null,
"type": null,
"value": {
"end": 5107,
"labels": [
"FAC"
],
"start": 4879,
"text": "The petitioner filed an application seeking modification of these orders and prayed for the directions to the respondent to pay entire arrears of maintenance as per the order of the Family Court in domestic violence proceedings."
}
},
{
"from_name": null,
"id": "dd6837cef943432f9a9605a7a902b04e",
"to_name": null,
"type": null,
"value": {
"end": 5364,
"labels": [
"FAC"
],
"start": 5108,
"text": "In the said application only notice was issued and since interim stay on the execution proceedings continued, the petitioner filed special leave petition in this Court for vacation of the interim order passed by the High Court in the execution proceedings."
}
},
{
"from_name": null,
"id": "7e71473e36004c5a994f3b8993b1fbec",
"to_name": null,
"type": null,
"value": {
"end": 5517,
"labels": [
"FAC"
],
"start": 5365,
"text": "This special leave petition was converted into appeal on grant of leave, in which judgment was delivered on September 18, 2014 allowing the said appeal."
}
},
{
"from_name": null,
"id": "009b07c3560d423eb143ac2523f51455",
"to_name": null,
"type": null,
"value": {
"end": 5578,
"labels": [
"ISSUE"
],
"start": 5517,
"text": "\n Operative portion of the said judgment reads as under: \"31."
}
},
{
"from_name": null,
"id": "d0acf7df566d4bfaacdf067f916e58ab",
"to_name": null,
"type": null,
"value": {
"end": 6059,
"labels": [
"ISSUE"
],
"start": 5579,
"text": "The issue before the High Court in Crl.MC. No.\n 1975 of 2013 is limited i.e. whether the sessions court could have dismissed the respondent's appeal only on the ground that respondent did not discharge the obligation arising out of the conditional interim order passed by the sessions court. Necessarily the High Court will have to go into the question whether the sessions court has the power to grant interim stay of the execution of the order under appeal before it."
}
},
{
"from_name": null,
"id": "a483dcaab69d459e972409a89b585529",
"to_name": null,
"type": null,
"value": {
"end": 6293,
"labels": [
"ANALYSIS"
],
"start": 6059,
"text": "\n 32. In a matter arising under a legislation meant for protecting the rights of the women, the High Court should have been slow in granting interim orders, interfering with the orders by which maintenance is granted to the appellant."
}
},
{
"from_name": null,
"id": "fa07c1cc7db24cce948680f14796f616",
"to_name": null,
"type": null,
"value": {
"end": 6340,
"labels": [
"ANALYSIS"
],
"start": 6294,
"text": "No doubt, such interim orders are now vacated."
}
},
{
"from_name": null,
"id": "61445e8d70bf4de3b988c02ad08a7904",
"to_name": null,
"type": null,
"value": {
"end": 6452,
"labels": [
"ANALYSIS"
],
"start": 6341,
"text": "In the process the appellant is still awaiting the fruits of maintenance order even after 2 years of the order."
}
},
{
"from_name": null,
"id": "32648c6acf6d4cc2b5b3eddca52cd51a",
"to_name": null,
"type": null,
"value": {
"end": 6620,
"labels": [
"ANALYSIS"
],
"start": 6452,
"text": "\n 33. We find it difficult to accept that in a highly contested matter like this the appellant would have instructed her counsel not to press her claim for maintenance."
}
},
{
"from_name": null,
"id": "9cb8053c503748f4a3b3cf11b210ba0d",
"to_name": null,
"type": null,
"value": {
"end": 6726,
"labels": [
"ANALYSIS"
],
"start": 6621,
"text": "In our view, the High Court ought not to have accepted the statement of the counsel without verification."
}
},
{
"from_name": null,
"id": "5734fa1cf2224247812874f86dd0679a",
"to_name": null,
"type": null,
"value": {
"end": 6764,
"labels": [
"ANALYSIS"
],
"start": 6727,
"text": "The impugned order is set aside.\n 34."
}
},
{
"from_name": null,
"id": "af3bf956fbed4910ab815ff986944f11",
"to_name": null,
"type": null,
"value": {
"end": 6863,
"labels": [
"ANALYSIS"
],
"start": 6765,
"text": "We are of the opinion that the conduct of the respondent is a gross abuse of the judicial process."
}
},
{
"from_name": null,
"id": "e3678c23859e4b8a989cd10ac08fa265",
"to_name": null,
"type": null,
"value": {
"end": 6978,
"labels": [
"ANALYSIS"
],
"start": 6863,
"text": "\n We do not see any reason why the respondent's petition Crl.MC No. 1975 of 2013 should be kept pending."
}
},
{
"from_name": null,
"id": "0f7971e329a942abb7543976d6f42f97",
"to_name": null,
"type": null,
"value": {
"end": 7137,
"labels": [
"ANALYSIS"
],
"start": 6979,
"text": "Whatever be the decision of the High Court, one of the parties will (we are sure) approach this Court again thereby delaying the conclusion of the litigation."
}
},
{
"from_name": null,
"id": "74b4c4205ca54590badadf2ae90c6347",
"to_name": null,
"type": null,
"value": {
"end": 7561,
"labels": [
"ANALYSIS"
],
"start": 7138,
"text": "The interests of justice would be better served if the respondent's appeal before the Sessions Court is heard and disposed of on merits instead of going into the residuary questions of the authority of the appellate Court to grant interim orders or the legality of the decision of the Sessions Court to dismiss the appeal only on the ground of the non- compliance by the respondent with the conditions of the interim order."
}
},
{
"from_name": null,
"id": "cab1db7cd29143fb864d161f27e7658e",
"to_name": null,
"type": null,
"value": {
"end": 7644,
"labels": [
"ANALYSIS"
],
"start": 7562,
"text": "The Criminal Appeal No. 23/2012 stands restored to the file of the Sessions Court."
}
},
{
"from_name": null,
"id": "08c5caba990340c1a2f7fa798ce9ad4d",
"to_name": null,
"type": null,
"value": {
"end": 7762,
"labels": [
"ANALYSIS"
],
"start": 7644,
"text": "\n 35. We also direct that the maintenance order passed by the magistrate be executed forthwith in accordance with law."
}
},
{
"from_name": null,
"id": "f3da7fba1a9847fdb71eafe74d920bc2",
"to_name": null,
"type": null,
"value": {
"end": 7866,
"labels": [
"ANALYSIS"
],
"start": 7763,
"text": "The executing court should complete the process within 8 weeks and report compliance in the High Court."
}
},
{
"from_name": null,
"id": "7e6bc67d1d554ed488f230c528df55cd",
"to_name": null,
"type": null,
"value": {
"end": 8012,
"labels": [
"ANALYSIS"
],
"start": 7867,
"text": "We make it clear that such hearing of the Sessions Court should only be after the execution of the order of maintenance passed by the Magistrate."
}
},
{
"from_name": null,
"id": "26f223ff612d4661996af5d10973cffb",
"to_name": null,
"type": null,
"value": {
"end": 8231,
"labels": [
"ANALYSIS"
],
"start": 8014,
"text": "36. In the event of the respondent's success in the appeal, either in full or part, the Sessions Court can make appropriate orders regarding the payments due to be made by the respondent in the execution proceedings.\""
}
},
{
"from_name": null,
"id": "e98e1c37c2d049e980c3c6029d235d0f",
"to_name": null,
"type": null,
"value": {
"end": 8414,
"labels": [
"ANALYSIS"
],
"start": 8231,
"text": "\n Notwithstanding the aforesaid judgment, as the respondent did not clear the entire arrears of maintenance, he was sent to judicial custody, where he remained till December 22, 2014."
}
},
{
"from_name": null,
"id": "949246cf3d0d42bf9242fe0f1a8a5021",
"to_name": null,
"type": null,
"value": {
"end": 8689,
"labels": [
"ANALYSIS"
],
"start": 8415,
"text": "A miscellaneous application was filed by the respondent in this Court in the afore-mentioned disposed of appeal stating that he was in judicial custody due to his inability to pay the entire maintenance and requested that his matter be heard by the Sessions Court on merits."
}
},
{
"from_name": null,
"id": "c9ed89c5b920482584d7c61bed326f5a",
"to_name": null,
"type": null,
"value": {
"end": 8844,
"labels": [
"ANALYSIS"
],
"start": 8690,
"text": "In this application this Court passed orders dated December 18, 2014 directing the Sessions Court to decide the appeal of the respondent within six weeks."
}
},
{
"from_name": null,
"id": "c5f12293f9ea4939bdb32bcff38a0816",
"to_name": null,
"type": null,
"value": {
"end": 8931,
"labels": [
"ANALYSIS"
],
"start": 8845,
"text": "He remained in judicial custody till December 22, 2014, on which date he was released."
}
},
{
"from_name": null,
"id": "c10757d3d2c34a98adaa48e2e30aa5f2",
"to_name": null,
"type": null,
"value": {
"end": 9069,
"labels": [
"ANALYSIS"
],
"start": 8932,
"text": "During this period, though the respondent had paid certain amounts towards maintenance, but he did not clear the entire outstanding dues."
}
},
{
"from_name": null,
"id": "2279857edc7e4c59b9f2281cd8d2dc17",
"to_name": null,
"type": null,
"value": {
"end": 9330,
"labels": [
"FAC"
],
"start": 9069,
"text": "\n Thereafter, on February 13, 2015, the learned ASJ decided the appeal of the respondent reducing the maintenance from Rs.2,50,000/-, as fixed by the Family Court, to Rs.50,000/- per month, from the date of filing of the petition under Section 12 of the DV Act."
}
},
{
"from_name": null,
"id": "36a1e2efb25b4f6b9cb075dafcdc67e9",
"to_name": null,
"type": null,
"value": {
"end": 9546,
"labels": [
"FAC"
],
"start": 9331,
"text": "This order was challenged by the appellant by filing a petition (Crl.MC. No. 850 of 2015) before the High Court under Section 482 read with Section 482 of the Code of Criminal Procedure, 1973 (for short, `Cr.P.C.')."
}
},
{
"from_name": null,
"id": "1f3211b0d6d640b2ad5164c47752fe3c",
"to_name": null,
"type": null,
"value": {
"end": 9752,
"labels": [
"ANALYSIS"
],
"start": 9548,
"text": "It will also be of interest to note that the maintenance of Rs.50,000/-, as fixed by the learned ASJ, even when reduced significantly from Rs.2,50,000/-, was still not acceptable to the respondent either."
}
},
{
"from_name": null,
"id": "4eed9eb07cee45f5854b3aabc37ce037",
"to_name": null,
"type": null,
"value": {
"end": 9907,
"labels": [
"ANALYSIS"
],
"start": 9753,
"text": "Seeking further reduction in the maintenance, the respondent also challenged this order before the High Court by filing petition under Section 482 Cr.P.C."
}
},
{
"from_name": null,
"id": "375205cc2c9641c7b3fd9ffc2b6370d6",
"to_name": null,
"type": null,
"value": {
"end": 9994,
"labels": [
"RLC"
],
"start": 9908,
"text": "However, his petition was dismissed by the High Court vide order dated April 06, 2015."
}
},
{
"from_name": null,
"id": "fc8d5ab6383a41bd85462c2b56b8f4cf",
"to_name": null,
"type": null,
"value": {
"end": 10109,
"labels": [
"ANALYSIS"
],
"start": 9994,
"text": "\nThe special leave petition filed by the respondent there against was also dismissed by this Court on May 11, 2015."
}
},
{
"from_name": null,
"id": "e0f695e0ce944da48b6c253c3170eb1d",
"to_name": null,
"type": null,
"value": {
"end": 10266,
"labels": [
"ANALYSIS"
],
"start": 10110,
"text": "In this manner, insofar as maintenance granted by the learned ASJ @ Rs.50,000/- per month is concerned, this order has attained finality qua the respondent."
}
},
{
"from_name": null,
"id": "87ebdf8510e94c95817595d4b5bf627d",
"to_name": null,
"type": null,
"value": {
"end": 10421,
"labels": [
"ANALYSIS"
],
"start": 10267,
"text": "The question, therefore, is as to whether the petitioner is entitled to enhancement and whether the learned ASJ rightly reduced the amount of maintenance."
}
},
{
"from_name": null,
"id": "0fabe6047d5d4dec9480124166cd3534",
"to_name": null,
"type": null,
"value": {
"end": 10594,
"labels": [
"ANALYSIS"
],
"start": 10423,
"text": "Though, the petitioner has filed a petition under Section 482 Cr.P.C., which is registered as Crl.MC. No. 850 of 2015, as pointed out above, and the same is still pending."
}
},
{
"from_name": null,
"id": "df842b152ada494a80150713cd5e1b29",
"to_name": null,
"type": null,
"value": {
"end": 10745,
"labels": [
"FAC"
],
"start": 10595,
"text": "Notwithstanding, the petitioner has chosen to file the instant special leave petition challenging the order dated February 13, 2015 passed by the ASJ."
}
},
{
"from_name": null,
"id": "8d5d0fb3abfd4906b69948608c3583bf",
"to_name": null,
"type": null,
"value": {
"end": 10977,
"labels": [
"ANALYSIS"
],
"start": 10745,
"text": "\n Normally, when the proceedings are still pending before the High Court, where same order dated February 13, 2015 passed by the ASJ is challenged, this Court should not have entertained the instant petition from the very beginning."
}
},
{
"from_name": null,
"id": "a586e66f727e46668135c9a1d1001d5f",
"to_name": null,
"type": null,
"value": {
"end": 11150,
"labels": [
"ANALYSIS"
],
"start": 10978,
"text": "However, notice was issued in this petition, keeping in mind the consideration as to whether the dispute can be resolved amicably, suitably and appropriately by this Court."
}
},
{
"from_name": null,
"id": "a8d519b90a3348dc8be237b0174b4456",
"to_name": null,
"type": null,
"value": {
"end": 11207,
"labels": [
"ANALYSIS"
],
"start": 11151,
"text": "For this purpose, matter was taken up from time to time."
}
},
{
"from_name": null,
"id": "c8540d32a9da48239cfb7a2e3442dc7d",
"to_name": null,
"type": null,
"value": {
"end": 11284,
"labels": [
"ANALYSIS"
],
"start": 11208,
"text": "Attempts were even made that the parties settle all their disputes amicably."
}
},
{
"from_name": null,
"id": "25b1717b9c3f41e5b0d9c793573c8452",
"to_name": null,
"type": null,
"value": {
"end": 11358,
"labels": [
"ANALYSIS"
],
"start": 11285,
"text": "We even called the parties to the Chambers and had discussions with them."
}
},
{
"from_name": null,
"id": "c6da26f00512419dbe8f82c6af4cdf7e",
"to_name": null,
"type": null,
"value": {
"end": 11456,
"labels": [
"ANALYSIS"
],
"start": 11359,
"text": "However, amicable solution to the problem, acceptable to both the parties, could not be achieved."
}
},
{
"from_name": null,
"id": "fa783425e3b54b38893ef6903c30a25d",
"to_name": null,
"type": null,
"value": {
"end": 11590,
"labels": [
"ARG_PETITIONER"
],
"start": 11458,
"text": "The petitioner, who appears in person, has submitted that there were no valid reasons for the learned ASJ to reduce the maintenance."
}
},
{
"from_name": null,
"id": "a7640d2d5074440aae2696e222cd03e1",
"to_name": null,
"type": null,
"value": {
"end": 11898,
"labels": [
"ARG_PETITIONER"
],
"start": 11591,
"text": "In order to prove that the respondent is a man of means who is running number of businesses either as the proprietor or partner of firm(s) or shareholder/director in certain companies and possesses various assets and is also enjoying the life of affluence, she has produced plethora of documents in support."
}
},
{
"from_name": null,
"id": "79163aecba6c424d9b708b003ddf0ceb",
"to_name": null,
"type": null,
"value": {
"end": 12061,
"labels": [
"ARG_RESPONDENT"
],
"start": 11899,
"text": "The respondent has refuted the authenticity or the relevance of those documents and his submission is that his stakes in all these businesses are no longer there."
}
},
{
"from_name": null,
"id": "275c70ad438b4194b370c09c427cb3db",
"to_name": null,
"type": null,
"value": {
"end": 12235,
"labels": [
"ARG_RESPONDENT"
],
"start": 12062,
"text": "According to him, some of the companies/firms mentioned by the petitioner never took off and started any business and in some other companies he no longer enjoys any stakes."
}
},
{
"from_name": null,
"id": "06d18101201e4678bb06c99f74330d98",
"to_name": null,
"type": null,
"value": {
"end": 12351,
"labels": [
"ARG_RESPONDENT"
],
"start": 12236,
"text": "Picture painted by the respondent is that he is undergoing very hard times and his financial condition is pathetic."
}
},
{
"from_name": null,
"id": "0275845f32764f6b8b358d74e56ba497",
"to_name": null,
"type": null,
"value": {
"end": 12496,
"labels": [
"ARG_RESPONDENT"
],
"start": 12352,
"text": "It is also stated that he had to even go behind bars and remain in custody for more than fifty days because of his inability to pay the arrears."
}
},
{
"from_name": null,
"id": "98b403938b7a490e824ca8cfcf649ccb",
"to_name": null,
"type": null,
"value": {
"end": 12761,
"labels": [
"ANALYSIS"
],
"start": 12496,
"text": "\n 4) We may point out that during arguments, it was contended by learned counsel for the respondent that apart from the monthly maintenance amount which the respondent was giving to the petitioner every month, the petitioner had some other source of income as well."
}
},
{
"from_name": null,
"id": "734d470bb4dc48d5b5215d1f8d765c75",
"to_name": null,
"type": null,
"value": {
"end": 12978,
"labels": [
"ANALYSIS"
],
"start": 12762,
"text": "This submission was based on the premise that the amount of maintenance so far received by the petitioner, which was to the tune of Rs.49 lakhs, was kept by the petitioner in the fixed deposits accounts in the banks."
}
},
{
"from_name": null,
"id": "1bdbdf51f1ab479581b7e5378ce88193",
"to_name": null,
"type": null,
"value": {
"end": 13148,
"labels": [
"ANALYSIS"
],
"start": 12979,
"text": "According to him, it proves that the petitioner had other source of income and she was employed/self-employed and from that income, she was meeting her day to day needs."
}
},
{
"from_name": null,
"id": "42c7fd9989674273a2d52be1c06238e1",
"to_name": null,
"type": null,
"value": {
"end": 13445,
"labels": [
"PRE_RELIED"
],
"start": 13149,
"text": "We accordingly passed order dated January 29, 2018 directing the petitioner to file an affidavit of her income which would be in the fomat as prescribed in the judgment of Delhi High Court in the case of Kusum Sharma v.\n Mahinder Kumar Sharma decided on January 14, 2015 (FAO No. 309/1996)."
}
},
{
"from_name": null,
"id": "d31beed9966e4d58a85462e2cd0fcae9",
"to_name": null,
"type": null,
"value": {
"end": 13534,
"labels": [
"ANALYSIS"
],
"start": 13446,
"text": "Respondent was also given opportunity to file additional documents along with affidavit."
}
},
{
"from_name": null,
"id": "32408c58c0da428b946e5ce3d72f6409",
"to_name": null,
"type": null,
"value": {
"end": 13603,
"labels": [
"ANALYSIS"
],
"start": 13535,
"text": "Such an affidavit of income was, therefore, filed by the petitioner."
}
},
{
"from_name": null,
"id": "1565876bfc2942519bc989250f0e835b",
"to_name": null,
"type": null,
"value": {
"end": 13701,
"labels": [
"ANALYSIS"
],
"start": 13604,
"text": "Respondent also filed reply to the said income affidavit to which petitioner filed her rejoinder."
}
},
{
"from_name": null,
"id": "2999a3bc76f340ccaf462f03bc14900d",
"to_name": null,
"type": null,
"value": {
"end": 13884,
"labels": [
"ANALYSIS"
],
"start": 13701,
"text": "\n 5) In the income affidavit filed by the petitioner in the prescribed format, she has, inter alia, mentioned that she is staying with her parents in their house in Mansarovar Garden."
}
},
{
"from_name": null,
"id": "3e767ecf4b7d4e57b59ba626bd4a796a",
"to_name": null,
"type": null,
"value": {
"end": 13945,
"labels": [
"ANALYSIS"
],
"start": 13885,
"text": "The petitioner has also mentioned about monthly expenditure."
}
},
{
"from_name": null,
"id": "08d422e0406442479db62349f4d95813",
"to_name": null,
"type": null,
"value": {
"end": 14012,
"labels": [
"ANALYSIS"
],
"start": 13946,
"text": "Col. 11 and Col. 16 of Part I being relevant are reproduced below:"
}
},
{
"from_name": null,
"id": "150cc3d8294b40f58ad0608edc6b3199",
"to_name": null,
"type": null,
"value": {
"end": 14072,
"labels": [
"ANALYSIS"
],
"start": 14013,
"text": "Sl. No. Description Particulars 11.\n "
}
},
{
"from_name": null,
"id": "5a0a490cde144cdc812d85ed366b8b7c",
"to_name": null,
"type": null,
"value": {
"end": 14188,
"labels": [
"ANALYSIS"
],
"start": 14072,
"text": "Monthly expenditure (as Rs. 1.5 lac approx. spent jointly 16.\n mentioned in S. No. 60) by parents and self."
}
},
{
"from_name": null,
"id": "1cd3bd29b487425b86494f41dc17bca6",
"to_name": null,
"type": null,
"value": {
"end": 14253,
"labels": [
"ANALYSIS"
],
"start": 14189,
"text": "My share in the above expenditure is around Rs. 1 lac per month."
}
},
{
"from_name": null,
"id": "33b0754ec44b4567872d515d567b9cdb",
"to_name": null,
"type": null,
"value": {
"end": 14407,
"labels": [
"ANALYSIS"
],
"start": 14255,
"text": "If not staying at Matrimonial Staying with my parents in House home, relationship and in which my brother has a sizable income of the person with share."
}
},
{
"from_name": null,
"id": "0b54112e50b843c6ada7bcfd6dad2892",
"to_name": null,
"type": null,
"value": {
"end": 14462,
"labels": [
"ANALYSIS"
],
"start": 14408,
"text": "Income Rs. 1.5 lac p.m.\n whom you are staying?"
}
},
{
"from_name": null,
"id": "9bf7242995ea4bd1b3766e8d3c1d2271",
"to_name": null,
"type": null,
"value": {
"end": 14596,
"labels": [
"ANALYSIS"
],
"start": 14462,
"text": "\n 6) It is not understood as to how petitioner's share of expenditure is Rs. 1 lakh per month out of Rs.1.5 lakhs monthly expenditure."
}
},
{
"from_name": null,
"id": "c4e901184eb74a6bb88a07e27bf20487",
"to_name": null,
"type": null,
"value": {
"end": 14743,
"labels": [
"ANALYSIS"
],
"start": 14596,
"text": "\n Likewise, it is not explained in Col. 16 as to in what form, income of Rs. 1.5 lakhs per month is generated and who is earning that income."
}
},
{
"from_name": null,
"id": "06f74d8fc4904489adda7df8fdf62d4d",
"to_name": null,
"type": null,
"value": {
"end": 14909,
"labels": [
"ANALYSIS"
],
"start": 14744,
"text": "Of course, the petitioner has otherwise maintained that she is not having any other source of income except the amount of maintenance given to her by the respondent."
}
},
{
"from_name": null,
"id": "d958b5a587c248139f326b32a2b37eb7",
"to_name": null,
"type": null,
"value": {
"end": 15076,
"labels": [
"ANALYSIS"
],
"start": 14910,
"text": "The petitioner has also stated that she is compelled to live in her parents house as the maintenance amount is not sufficient even to pay monthly rent of an aparment."
}
},
{
"from_name": null,
"id": "1c3a303f0f564ab1b3c9610be4897e87",
"to_name": null,
"type": null,
"value": {
"end": 15167,
"labels": [
"ANALYSIS"
],
"start": 15076,
"text": "\n 7) In Part II of the affidavit, the petitioner has made averments relating to respondent."
}
},
{
"from_name": null,
"id": "d9e8c37ea2704ce18cb9fa7650fdbe60",
"to_name": null,
"type": null,
"value": {
"end": 15243,
"labels": [
"ANALYSIS"
],
"start": 15168,
"text": "The petitioner says that respondent is earning about Rs.20 lakhs per month."
}
},
{
"from_name": null,
"id": "6cab6e492b74428b999deeab52b2e7b2",
"to_name": null,
"type": null,
"value": {
"end": 15367,
"labels": [
"ANALYSIS"
],
"start": 15244,
"text": "She has given the details of certain business ventures/restaurants owned by the respondent in which he is having his share."
}
},
{
"from_name": null,
"id": "d634aa1c5484478ab427d36e203d35f7",
"to_name": null,
"type": null,
"value": {
"end": 15454,
"labels": [
"ANALYSIS"
],
"start": 15368,
"text": "The petitioner has also given particulars of assets allegedly owned by the respondent."
}
},
{
"from_name": null,
"id": "59b28035437c46c790c86a1157cd41c0",
"to_name": null,
"type": null,
"value": {
"end": 15544,
"labels": [
"ANALYSIS"
],
"start": 15455,
"text": "The petitioner has annexed photocopies of various documents in support of her assertions."
}
},
{
"from_name": null,
"id": "d2cfc6dc629049b6910fb6d5651b3644",
"to_name": null,
"type": null,
"value": {
"end": 15727,
"labels": [
"ARG_RESPONDENT"
],
"start": 15546,
"text": "8) In the reply affidavit filed by the respondent, it is averred that the petitioner is maintaining four bank accounts and the total amount lying in these accounts is Rs.8,36,610/-."
}
},
{
"from_name": null,
"id": "c92e27c526be4fa18ff50ab33e808290",
"to_name": null,
"type": null,
"value": {
"end": 15839,
"labels": [
"ARG_RESPONDENT"
],
"start": 15728,
"text": "It is also stated that the petitioner is having fixed deposits in the banks for a total sum of Rs. 35,75,000/-."
}
},
{
"from_name": null,
"id": "9c66521145dd4f6b9953c348ab7e22fa",
"to_name": null,
"type": null,
"value": {
"end": 15915,
"labels": [
"ARG_RESPONDENT"
],
"start": 15840,
"text": "In this manner, the total bank balance of the petitioner is Rs.44,11,610/-."
}
},
{
"from_name": null,
"id": "90fc0fd5610d437abafc684780851e9f",
"to_name": null,
"type": null,
"value": {
"end": 16028,
"labels": [
"ARG_RESPONDENT"
],
"start": 15916,
"text": "As against this, the respondent has paid to the petitioner a sum of Rs.49 lakhs from June 4, 2009 to July, 2017."
}
},
{
"from_name": null,
"id": "3c7eaa3f5c6649b9a74c1d05a0131dd4",
"to_name": null,
"type": null,
"value": {
"end": 16190,
"labels": [
"ARG_RESPONDENT"
],
"start": 16029,
"text": "Thus, in the last eight years, against a sum of Rs.49 lakhs paid by the respondent to the petitioner, the petitioner is still having bank balance of Rs.44 lakhs."
}
},
{
"from_name": null,
"id": "d26f5844c6b64d878ba963b776caaf2a",
"to_name": null,
"type": null,
"value": {
"end": 16465,
"labels": [
"ARG_RESPONDENT"
],
"start": 16191,
"text": "According to the respondent, it would be inconceivable that petitioner has spent only Rs.5 lakhs of rupees (or little more if interest earned by the petitioner on the aforesaid Rs.49 lakhs is added) in eight years and that shows that she has other sources of income as well."
}
},
{
"from_name": null,
"id": "dc802eb6800c451aaaefecba14e98d51",
"to_name": null,
"type": null,
"value": {
"end": 16666,
"labels": [
"ARG_RESPONDENT"
],
"start": 16465,
"text": "\n Other averments in the petitioner's affidavit was also denied including her share of expenditure in the neighbourhood of Rs.1 lakh per month or that respondent is earning Rs.20 lakhs per month."
}
},
{
"from_name": null,
"id": "99c02d27ae934d0cb57aa35b9abda440",
"to_name": null,
"type": null,
"value": {
"end": 16920,
"labels": [
"ARG_RESPONDENT"
],
"start": 16667,
"text": "In respect of the particulars given by the petitioner about the businesses of the respondent, the respondent has denied the same and submits that, at present, there is no Restaurant or Bar anywhere in India in which respondent has any share or interest."
}
},
{
"from_name": null,
"id": "60b40e337ab84661a9abefa7c7be2aa6",
"to_name": null,
"type": null,
"value": {
"end": 17043,
"labels": [
"ANALYSIS"
],
"start": 16920,
"text": "\nHe has his own explanation and has given alleged circumstances in which he had to give up his share in certain businesses."
}
},
{
"from_name": null,
"id": "17bc6f3638114855a439dbdd505a3c54",
"to_name": null,
"type": null,
"value": {
"end": 17117,
"labels": [
"ARG_PETITIONER"
],
"start": 17044,
"text": "The petitioner has controverted his averments in her rejoinder affidavit."
}
},
{
"from_name": null,
"id": "bd99bc8ce0404e5191d4864b8f137ea2",
"to_name": null,
"type": null,
"value": {
"end": 17273,
"labels": [
"ARG_PETITIONER"
],
"start": 17118,
"text": "During arguments, the petitioner also tried to demonstrate, by referring to certain documents filed by her, that the respondent was indulging in falsehood."
}
},
{
"from_name": null,
"id": "bac8ef0af6144fda9550dd11e00c29c0",
"to_name": null,
"type": null,
"value": {
"end": 17476,
"labels": [
"ANALYSIS"
],
"start": 17273,
"text": "\n 9) We have given a glimpse of the respective cases set up by both the parties, without giving details thereof, as asserted by the petitioner and the manner in which the respondent has refuted the same."
}
},
{
"from_name": null,
"id": "85fc7645d730408fa55dac12ac18e1e5",
"to_name": null,
"type": null,
"value": {
"end": 17983,
"labels": [
"ANALYSIS"
],
"start": 17476,
"text": "\n 10) After giving conscious and objective consideration to the documents placed on record by both the sides, we are of the view that it is only after the evidence is led by both the parties, the veracity and evidential value of such material can be finally adjudged, more particularly, when the said material and assertions of the parties would be tested with their cross- examination.\n 11) The present proceedings arise out of the petition which was filed by the petitioner under Section 12 of the DV Act."
}
},
{
"from_name": null,
"id": "1e9732be085c492a9f3ccab21798424f",
"to_name": null,
"type": null,
"value": {
"end": 18130,
"labels": [
"ANALYSIS"
],
"start": 17984,
"text": "The trial court had arrived at a figure of maintenance on the basis of affidavits filed by both the parties along with their respective documents."
}
},
{
"from_name": null,
"id": "641aeac984f040518369b4cfa809364b",
"to_name": null,
"type": null,
"value": {
"end": 18368,
"labels": [
"ANALYSIS"
],
"start": 18130,
"text": "\n Same exercise is undertaken by the learned ASJ in the impugned order while adjudging the correctness of the order passed by the trial court and, in the process, reducing the maintenance from Rs.2.50 lakhs to Rs.50,000/- per month."
}
},
{
"from_name": null,
"id": "bad61a93bbfb4bd2a2d6c2417f70bd1a",
"to_name": null,
"type": null,
"value": {
"end": 18451,
"labels": [
"ANALYSIS"
],
"start": 18369,
"text": "This obviously happened as the proceedings under the DV Act are of summary nature."
}
},
{
"from_name": null,
"id": "303f5953ab22411891262b381c999983",
"to_name": null,
"type": null,
"value": {
"end": 18866,
"labels": [
"RATIO"
],
"start": 18451,
"text": "\n 12) In these circumstances, the appropriate course of action would be to allow the petitioner to file an application for maintenance under the Hindu Adoptions and Maintenance Act, 1956 or under Section 125 of the Code of Criminal Procedure, 1973 so that in these proceedings, both the parties lead their documentary and oral evidence and on the basis of such material, appropriate view is taken by the said Court."
}
},
{
"from_name": null,
"id": "2d78708fdf3d484abe68bc99a6b5db38",
"to_name": null,
"type": null,
"value": {
"end": 19018,
"labels": [
"RPC"
],
"start": 18866,
"text": "\n 13) We accordingly dispose of this petition by granting liberty to the petitioner to move appropriate application for maintenance, as indicated above."
}
},
{
"from_name": null,
"id": "d403e313b1f84daba69eb0ee82d071e8",
"to_name": null,
"type": null,
"value": {
"end": 19279,
"labels": [
"RPC"
],
"start": 19019,
"text": "Once such application is moved, same shall be decided by the concerned Court most expeditiously having regard to the fact that the petitioner is fighting for her maintenance for last number of years and these proceedings should attain finality at the earliest."
}
},
{
"from_name": null,
"id": "fefc3ef5d73347e68165638792c511d3",
"to_name": null,
"type": null,
"value": {
"end": 19446,
"labels": [
"RPC"
],
"start": 19280,
"text": "We also make it clear that any maintenance fixed shall not, in any case, be less than Rs.50,000/- per month which figure of maintenance has already attained finality."
}
},
{
"from_name": null,
"id": "3b74a04e4cc2473599c11d042f047b26",
"to_name": null,
"type": null,
"value": {
"end": 19559,
"labels": [
"RPC"
],
"start": 19446,
"text": "\n 14) As a sequel, the respondent shall continue to pay Rs.50,000/- per month to the petitioner in the meanwhile."
}
},
{
"from_name": null,
"id": "98209984a1a34fdfa6cdbb6c5c3bf77b",
"to_name": null,
"type": null,
"value": {
"end": 19612,
"labels": [
"RPC"
],
"start": 19560,
"text": "The present petition stands disposed of accordingly."
}
},
{
"from_name": null,
"id": "ce11926816374cf7b67ef8839a94b285",
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"end": 19714,
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"start": 19614,
"text": ".............................................J.\n "
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"text": "(A.K. SIKRI)"
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},
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"text": "(ASHOK BHUSHAN)"
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"text": "NEW DELHI; JULY 23, 2018."
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] | 4,263 | {
"text": " NON-REPORTABLE\n IN THE SUPREME COURT OF INDIA\nCRIMINAL APPELLATE JURISDICTION\n\nSPECIAL LEAVE PETITION (CRIMINAL) NO. 3935 OF 2016\n\nSHALU OJHA VERSUS .....PETITIONER(S)\nPRASHANT OJHA .....RESPONDENT(S)\n\n J U D G M E N T\n A.K. SIKRI, J.\n On an earlier occasion, after hearing the petitioner who appeared in person, and the learned counsel for the respondent, we had passed order dated September 4, 2017, thereby disposing of this petition with the following directions: (a) insofar as domestic violence proceedings before the Family Court are concerned, necessary documents shall be filed by both the parties within four weeks from today and evidence led pursuant thereto. The trial court shall endeavour to decide the case finally, within a period of eight months from today, on the basis of evidence and fix the rate of maintenance finally; and (b) Crl.MC. No. 850 of 2015, pending before the High Court, shall be taken up for hearing immediately and the High Court shall endeavour to dispose of the same as expeditiously as possible and determine at what rate interim maintenance is to be given, i.e. whether order dated February 13, 2015 passed by the learned ASJ need any modification or not.\n 2) Thereafter, review petition was filed by the petitioner pointing out that there was apparent error in passing the aforesaid directions inasmuch as matter was remitted to the High Court for presumption that proceedings were pending but the fact is that no such proceedings are pending under the Protection of Women from Domestic Violence Act, 2005 (for short the `DV Act').\n Realising this error, the review petition was allowed and the Special Leave Petition was restored which has been heard afresh.\n 3) Notwithstanding the aforesaid factual error which had crept in the order dated September 4, 2017, the other factual details recorded in the said order are a matter of record. Therefore, it would be in the fitness of things to reproduce the same: Though this case has a chequered history, only those facts which are very material are taken note of, eschewing other unnecessary details, in order to avoid burdening this judgment with the facts which may not be relevant.\n The petitioner is the respondent's wife. It is unfortunate that after their marriage on April 20, 2007 in Delhi, they stayed together hardly for four months. Thus, for almost ten years they have parted company and are living separately. It is not necessary to go into the reasons which led to the matrimonial discord as in the present petition this Court is concerned only with the dispute regarding the rate of maintenance.\n The petitioner had filed an application sometime in June 2009 claiming maintenance under the provisions of Section 12 of the DV Act. In that application, apart from other reliefs, she has claimed maintenance as well. Order dated July 05, 2012 was passed by the learned Metropolitan Magistrate granting interim maintenance @ Rs.2,50,000/- per month with effect from the date of filing of the complaint as well as compensation of Rs.1,00,000/-. Since the respondent did not honour the said order, the petitioner filed the execution petition for recovery of the arrears of maintenance. In the meantime, the respondent challenged the order of the Metropolitan Magistrate granting maintenance, by filing appeal under Section 29 of the DV Act, in the Court of Additional Sessions Judge, Delhi (for short, the `ASJ'). In the said appeal, the learned ASJ issued interim directions dated January 10, 2013 for depositing of the entire arrears of maintenance within two months. As this order was not complied with, the appeal filed by the respondent was dismissed on May 07, 2013. This order of dismissal was challenged by the respondent before the High Court. In those proceedings, order dated July 23, 2013 was passed allowing the appellant herein to file the reply, etc. As no stay was granted, order dated July 23, 2013 was challenged by the respondent in this Court by filing a special leave petition. This Court, however, did not entertain the same. At the same time, while disposing of the special leave petition, observations were made to the effect that if the parties apply for mediation, the matter shall be referred to the Delhi High Court Mediation and Conciliation Centre at the earliest. Keeping in view these observations, the High Court referred the dispute to the Mediation Centre at the Delhi High Court and also stayed the execution proceedings in the meantime. Mediation proceedings failed. As a result, the High Court took up the matter on merits and passed orders dated September 10, 2013 directing the respondent to pay Rs.5,00,000/- on or before September 30, 2013 and another sum of Rs.5,00,000/- on or before October 31, 2013. The petitioner filed an application seeking modification of these orders and prayed for the directions to the respondent to pay entire arrears of maintenance as per the order of the Family Court in domestic violence proceedings. In the said application only notice was issued and since interim stay on the execution proceedings continued, the petitioner filed special leave petition in this Court for vacation of the interim order passed by the High Court in the execution proceedings. This special leave petition was converted into appeal on grant of leave, in which judgment was delivered on September 18, 2014 allowing the said appeal.\n Operative portion of the said judgment reads as under: \"31. The issue before the High Court in Crl.MC. No.\n 1975 of 2013 is limited i.e. whether the sessions court could have dismissed the respondent's appeal only on the ground that respondent did not discharge the obligation arising out of the conditional interim order passed by the sessions court. Necessarily the High Court will have to go into the question whether the sessions court has the power to grant interim stay of the execution of the order under appeal before it.\n 32. In a matter arising under a legislation meant for protecting the rights of the women, the High Court should have been slow in granting interim orders, interfering with the orders by which maintenance is granted to the appellant. No doubt, such interim orders are now vacated. In the process the appellant is still awaiting the fruits of maintenance order even after 2 years of the order.\n 33. We find it difficult to accept that in a highly contested matter like this the appellant would have instructed her counsel not to press her claim for maintenance. In our view, the High Court ought not to have accepted the statement of the counsel without verification. The impugned order is set aside.\n 34. We are of the opinion that the conduct of the respondent is a gross abuse of the judicial process.\n We do not see any reason why the respondent's petition Crl.MC No. 1975 of 2013 should be kept pending. Whatever be the decision of the High Court, one of the parties will (we are sure) approach this Court again thereby delaying the conclusion of the litigation. The interests of justice would be better served if the respondent's appeal before the Sessions Court is heard and disposed of on merits instead of going into the residuary questions of the authority of the appellate Court to grant interim orders or the legality of the decision of the Sessions Court to dismiss the appeal only on the ground of the non- compliance by the respondent with the conditions of the interim order. The Criminal Appeal No. 23/2012 stands restored to the file of the Sessions Court.\n 35. We also direct that the maintenance order passed by the magistrate be executed forthwith in accordance with law. The executing court should complete the process within 8 weeks and report compliance in the High Court. We make it clear that such hearing of the Sessions Court should only be after the execution of the order of maintenance passed by the Magistrate.\n 36. In the event of the respondent's success in the appeal, either in full or part, the Sessions Court can make appropriate orders regarding the payments due to be made by the respondent in the execution proceedings.\"\n Notwithstanding the aforesaid judgment, as the respondent did not clear the entire arrears of maintenance, he was sent to judicial custody, where he remained till December 22, 2014. A miscellaneous application was filed by the respondent in this Court in the afore-mentioned disposed of appeal stating that he was in judicial custody due to his inability to pay the entire maintenance and requested that his matter be heard by the Sessions Court on merits. In this application this Court passed orders dated December 18, 2014 directing the Sessions Court to decide the appeal of the respondent within six weeks. He remained in judicial custody till December 22, 2014, on which date he was released. During this period, though the respondent had paid certain amounts towards maintenance, but he did not clear the entire outstanding dues.\n Thereafter, on February 13, 2015, the learned ASJ decided the appeal of the respondent reducing the maintenance from Rs.2,50,000/-, as fixed by the Family Court, to Rs.50,000/- per month, from the date of filing of the petition under Section 12 of the DV Act. This order was challenged by the appellant by filing a petition (Crl.MC. No. 850 of 2015) before the High Court under Section 482 read with Section 482 of the Code of Criminal Procedure, 1973 (for short, `Cr.P.C.').\n It will also be of interest to note that the maintenance of Rs.50,000/-, as fixed by the learned ASJ, even when reduced significantly from Rs.2,50,000/-, was still not acceptable to the respondent either. Seeking further reduction in the maintenance, the respondent also challenged this order before the High Court by filing petition under Section 482 Cr.P.C. However, his petition was dismissed by the High Court vide order dated April 06, 2015.\nThe special leave petition filed by the respondent there against was also dismissed by this Court on May 11, 2015. In this manner, insofar as maintenance granted by the learned ASJ @ Rs.50,000/- per month is concerned, this order has attained finality qua the respondent. The question, therefore, is as to whether the petitioner is entitled to enhancement and whether the learned ASJ rightly reduced the amount of maintenance.\n Though, the petitioner has filed a petition under Section 482 Cr.P.C., which is registered as Crl.MC. No. 850 of 2015, as pointed out above, and the same is still pending. Notwithstanding, the petitioner has chosen to file the instant special leave petition challenging the order dated February 13, 2015 passed by the ASJ.\n Normally, when the proceedings are still pending before the High Court, where same order dated February 13, 2015 passed by the ASJ is challenged, this Court should not have entertained the instant petition from the very beginning. However, notice was issued in this petition, keeping in mind the consideration as to whether the dispute can be resolved amicably, suitably and appropriately by this Court. For this purpose, matter was taken up from time to time. Attempts were even made that the parties settle all their disputes amicably. We even called the parties to the Chambers and had discussions with them. However, amicable solution to the problem, acceptable to both the parties, could not be achieved.\n The petitioner, who appears in person, has submitted that there were no valid reasons for the learned ASJ to reduce the maintenance. In order to prove that the respondent is a man of means who is running number of businesses either as the proprietor or partner of firm(s) or shareholder/director in certain companies and possesses various assets and is also enjoying the life of affluence, she has produced plethora of documents in support. The respondent has refuted the authenticity or the relevance of those documents and his submission is that his stakes in all these businesses are no longer there. According to him, some of the companies/firms mentioned by the petitioner never took off and started any business and in some other companies he no longer enjoys any stakes. Picture painted by the respondent is that he is undergoing very hard times and his financial condition is pathetic. It is also stated that he had to even go behind bars and remain in custody for more than fifty days because of his inability to pay the arrears.\n 4) We may point out that during arguments, it was contended by learned counsel for the respondent that apart from the monthly maintenance amount which the respondent was giving to the petitioner every month, the petitioner had some other source of income as well. This submission was based on the premise that the amount of maintenance so far received by the petitioner, which was to the tune of Rs.49 lakhs, was kept by the petitioner in the fixed deposits accounts in the banks. According to him, it proves that the petitioner had other source of income and she was employed/self-employed and from that income, she was meeting her day to day needs. We accordingly passed order dated January 29, 2018 directing the petitioner to file an affidavit of her income which would be in the fomat as prescribed in the judgment of Delhi High Court in the case of Kusum Sharma v.\n Mahinder Kumar Sharma decided on January 14, 2015 (FAO No. 309/1996). Respondent was also given opportunity to file additional documents along with affidavit. Such an affidavit of income was, therefore, filed by the petitioner. Respondent also filed reply to the said income affidavit to which petitioner filed her rejoinder.\n 5) In the income affidavit filed by the petitioner in the prescribed format, she has, inter alia, mentioned that she is staying with her parents in their house in Mansarovar Garden. The petitioner has also mentioned about monthly expenditure. Col. 11 and Col. 16 of Part I being relevant are reproduced below: Sl. No. Description Particulars 11.\n Monthly expenditure (as Rs. 1.5 lac approx. spent jointly 16.\n mentioned in S. No. 60) by parents and self. My share in the above expenditure is around Rs. 1 lac per month.\n If not staying at Matrimonial Staying with my parents in House home, relationship and in which my brother has a sizable income of the person with share. Income Rs. 1.5 lac p.m.\n whom you are staying?\n 6) It is not understood as to how petitioner's share of expenditure is Rs. 1 lakh per month out of Rs.1.5 lakhs monthly expenditure.\n Likewise, it is not explained in Col. 16 as to in what form, income of Rs. 1.5 lakhs per month is generated and who is earning that income. Of course, the petitioner has otherwise maintained that she is not having any other source of income except the amount of maintenance given to her by the respondent. The petitioner has also stated that she is compelled to live in her parents house as the maintenance amount is not sufficient even to pay monthly rent of an aparment.\n 7) In Part II of the affidavit, the petitioner has made averments relating to respondent. The petitioner says that respondent is earning about Rs.20 lakhs per month. She has given the details of certain business ventures/restaurants owned by the respondent in which he is having his share. The petitioner has also given particulars of assets allegedly owned by the respondent. The petitioner has annexed photocopies of various documents in support of her assertions.\n 8) In the reply affidavit filed by the respondent, it is averred that the petitioner is maintaining four bank accounts and the total amount lying in these accounts is Rs.8,36,610/-. It is also stated that the petitioner is having fixed deposits in the banks for a total sum of Rs. 35,75,000/-. In this manner, the total bank balance of the petitioner is Rs.44,11,610/-. As against this, the respondent has paid to the petitioner a sum of Rs.49 lakhs from June 4, 2009 to July, 2017. Thus, in the last eight years, against a sum of Rs.49 lakhs paid by the respondent to the petitioner, the petitioner is still having bank balance of Rs.44 lakhs. According to the respondent, it would be inconceivable that petitioner has spent only Rs.5 lakhs of rupees (or little more if interest earned by the petitioner on the aforesaid Rs.49 lakhs is added) in eight years and that shows that she has other sources of income as well.\n Other averments in the petitioner's affidavit was also denied including her share of expenditure in the neighbourhood of Rs.1 lakh per month or that respondent is earning Rs.20 lakhs per month. In respect of the particulars given by the petitioner about the businesses of the respondent, the respondent has denied the same and submits that, at present, there is no Restaurant or Bar anywhere in India in which respondent has any share or interest.\nHe has his own explanation and has given alleged circumstances in which he had to give up his share in certain businesses. The petitioner has controverted his averments in her rejoinder affidavit. During arguments, the petitioner also tried to demonstrate, by referring to certain documents filed by her, that the respondent was indulging in falsehood.\n 9) We have given a glimpse of the respective cases set up by both the parties, without giving details thereof, as asserted by the petitioner and the manner in which the respondent has refuted the same.\n 10) After giving conscious and objective consideration to the documents placed on record by both the sides, we are of the view that it is only after the evidence is led by both the parties, the veracity and evidential value of such material can be finally adjudged, more particularly, when the said material and assertions of the parties would be tested with their cross- examination.\n 11) The present proceedings arise out of the petition which was filed by the petitioner under Section 12 of the DV Act. The trial court had arrived at a figure of maintenance on the basis of affidavits filed by both the parties along with their respective documents.\n Same exercise is undertaken by the learned ASJ in the impugned order while adjudging the correctness of the order passed by the trial court and, in the process, reducing the maintenance from Rs.2.50 lakhs to Rs.50,000/- per month. This obviously happened as the proceedings under the DV Act are of summary nature.\n 12) In these circumstances, the appropriate course of action would be to allow the petitioner to file an application for maintenance under the Hindu Adoptions and Maintenance Act, 1956 or under Section 125 of the Code of Criminal Procedure, 1973 so that in these proceedings, both the parties lead their documentary and oral evidence and on the basis of such material, appropriate view is taken by the said Court.\n 13) We accordingly dispose of this petition by granting liberty to the petitioner to move appropriate application for maintenance, as indicated above. Once such application is moved, same shall be decided by the concerned Court most expeditiously having regard to the fact that the petitioner is fighting for her maintenance for last number of years and these proceedings should attain finality at the earliest. We also make it clear that any maintenance fixed shall not, in any case, be less than Rs.50,000/- per month which figure of maintenance has already attained finality.\n 14) As a sequel, the respondent shall continue to pay Rs.50,000/- per month to the petitioner in the meanwhile. The present petition stands disposed of accordingly.\n .............................................J.\n (A.K. SIKRI) .............................................J.\n (ASHOK BHUSHAN) NEW DELHI; JULY 23, 2018.\n "
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"end": 89,
"labels": [
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"start": 0,
"text": "PETITIONER:\nKULDIP SINGH\n\n Vs.\n\nRESPONDENT:\nTHE STATE OF PUNJAB AND ANOTHER."
}
},
{
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"end": 127,
"labels": [
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"start": 89,
"text": "\n\nDATE OF JUDGMENT:\n15/02/1956\n\nBENCH:"
}
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"id": "98b88a7e5303455483de53e90ed59522",
"to_name": "text",
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"end": 1161,
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"start": 127,
"text": "\n\nACT:\nComplaint by Court-Complaint by Senior Subordinate Judge of\noffences committed in a proceeding before the Subordinate\nJudge of the first class-Validity-Competency of the\nAdditional Judge to entertain appeal-Power of High Court in\nrevision-Code of Criminal Procedure (Act V of 1898), ss. 195\n(3), 476, 476-A, 476-B, 439-The Punjab Courts Act (VI of\n1918), ss. 18,21-Code of Civil Procedure (Act V of .1908),\ns. 115.\n\nHEADNOTE:\nThe question as to which Court is competent to make a com-\nplaint under s. 476-A read with s. 195(3) of the Code of\nCriminal Procedure where none wag made by the Court in which\nthe offence was committed or its successor Court, will\ndepend on the nature of the proceeding in which the offence\nwas committed, whether civil, criminal or revenue, and on\nthe hierarchy of superior Courts to which an appeal from\nsuch proceeding will ordinarily lie as contemplated by s.\n195(3) of the Code, apart from such exceptions as may be\nmade in respect of any particular matters by any special\nnotifications or laws."
}
},
{
"from_name": "label",
"id": "e24be5a3a8214dec826bb4816f0f8b9c",
"to_name": "text",
"type": "labels",
"value": {
"end": 1300,
"labels": [
"PREAMBLE"
],
"start": 1162,
"text": "Where, however, appeals ordinarily\nlie to different courts, the one of the lowest grade will be\nthe Court competent to make the complaint."
}
},
{
"from_name": "label",
"id": "aa0714fbb0a040bab0665ef81b45106f",
"to_name": "text",
"type": "labels",
"value": {
"end": 1435,
"labels": [
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],
"start": 1300,
"text": "\nWadero Abdul Bahman v. Sadhuram, ([1930] 32 Cr. L. J. 1012]\nand M. S. Sheriff v. Govindan (A.I.R. 1951 Mad. 1060, 1061),\nnot approved."
}
},
{
"from_name": "label",
"id": "b1017a07ba9e41fabd24e723ab7d466a",
"to_name": "text",
"type": "labels",
"value": {
"end": 1808,
"labels": [
"PREAMBLE"
],
"start": 1435,
"text": "\nUnder the Punjab Courts Act of 1918 and the hierarchy of\ncivil Courts established thereby, appeals from the Courts of\nthe various subordinate Judges who constitute distinct\nCourts do not ordinarily lie to the Senior Subordinate Judge\nbut to the District Judge and the Court of the Additional\nJudge is not a Court of coordinate jurisdiction with that of\nthe District Judge."
}
},
{
"from_name": "label",
"id": "610876e973fb4701a94ce60478562a42",
"to_name": "text",
"type": "labels",
"value": {
"end": 1907,
"labels": [
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],
"start": 1809,
"text": "The Act neither mentions nor recognises\nan Additional District Judge as a Court of that hierarchy."
}
},
{
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"id": "ba47c2b45d9d4872b152a6bce16d0107",
"to_name": "text",
"type": "labels",
"value": {
"end": 2656,
"labels": [
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],
"start": 1907,
"text": "\nConsequently, in a case where offences under ss. 193 and 471\nof the Indian Penal Code were alleged to have been committed\nin a civil proceeding in the Court of a Subordinate Judge of\nthe first class, exercising jurisdiction under the Punjab\nCourts Act of 1918, and neither he nor his successor made a\ncomplaint or rejected the application for the making of it,\nthe Senior Subordinate Judge had no jurisdiction to\nentertain the matter and make the complaint either as a\nCourt of appeal under s. 476-B or of Its own authority under\ns. 476-A of the Code of Criminal Procedure and the\nAdditional\n17\n126\nJudge, by wrongly describing himself as an Additional\n\nDistrict Judge, could not assume a jurisdiction which he did\nnot possess under those sections."
}
},
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"id": "1ac55f3d492548f3a02f86a79d5c180b",
"to_name": "text",
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"end": 3132,
"labels": [
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],
"start": 2656,
"text": "\nThe High Court has power to revise orders of subordinate\nCourts made without jurisdiction both under s. 439 of the\nCode of Criminal Procedure and under s. 115 of the Code of\nCivil Procedure, therefore, it was not necessary to decide\nunder Art. 136 of the Constitution which of these two\nsections applied in the present case, but the High Court\nerred in upholding the complaint made by the Senior\nSubordinate Judge because that court had no jurisdiction to\nmake the complaint."
}
},
{
"from_name": "label",
"id": "e592ebac6cee43d79dab6668d4331cce",
"to_name": "text",
"type": "labels",
"value": {
"end": 3453,
"labels": [
"PREAMBLE"
],
"start": 3132,
"text": "\nThe High Court is not a Court to which the Subordinate Judge\nof the first class is subordinate within the meaning of s.\n196(3) of the Code of Criminal Procedure and could not,\ntherefore, make the complaint of its own authority and\nshould have remitted the application to the District Judge\nfor disposal according to law."
}
},
{
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"id": "2b5773ea69a140378760b687280295fd",
"to_name": "text",
"type": "labels",
"value": {
"end": 3463,
"labels": [
"PREAMBLE"
],
"start": 3453,
"text": "\n\nJUDGMENT"
}
},
{
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"id": "8e8da6fb762a40bfb9193bc046527c6e",
"to_name": "text",
"type": "labels",
"value": {
"end": 3528,
"labels": [
"NONE"
],
"start": 3463,
"text": ":CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 34 of 1955."
}
},
{
"from_name": "label",
"id": "1cfd21d82cc04a72bcfd0c96508a9b11",
"to_name": "text",
"type": "labels",
"value": {
"end": 3791,
"labels": [
"NONE"
],
"start": 3528,
"text": "\nAppeal by special leave from the judgment and order dated the 7th June 1954 of the Punjab High Court at Simla in Criminal Revision No. 985 of 1953 arising out of the judgment and order dated the 9th May 1953 of the Court of the Additional District Judge, Ambala."
}
},
{
"from_name": "label",
"id": "5316b15d53654aa0902cce1fb9167494",
"to_name": "text",
"type": "labels",
"value": {
"end": 3843,
"labels": [
"NONE"
],
"start": 3791,
"text": "\nRamalal Anand and I. S. Sawhney, for the appellant."
}
},
{
"from_name": "label",
"id": "888e2fb66f2845b28baca8a227d6f3c2",
"to_name": "text",
"type": "labels",
"value": {
"end": 3952,
"labels": [
"NONE"
],
"start": 3843,
"text": "\nGopal Singh and P. G. Gokhale, for respondent No. I.\nJindra Lal and Gopal Singh, for respondent No. 2.\n1956."
}
},
{
"from_name": "label",
"id": "2973c8cba42f47578660609c35214c65",
"to_name": "text",
"type": "labels",
"value": {
"end": 3965,
"labels": [
"NONE"
],
"start": 3953,
"text": "February 15."
}
},
{
"from_name": "label",
"id": "4a48825e0a4f432596b5062ef55f858f",
"to_name": "text",
"type": "labels",
"value": {
"end": 4013,
"labels": [
"NONE"
],
"start": 3966,
"text": "The Judgment of the Court was delivered by BOSE"
}
},
{
"from_name": "label",
"id": "bd6af4c97fc14a82abf36f8909844f17",
"to_name": "text",
"type": "labels",
"value": {
"end": 4178,
"labels": [
"FAC"
],
"start": 4014,
"text": "J.-This appeal was argued at great length because of the wide divergence of judicial opinion that centres round sections 195 and 476 of the Criminal Procedure Code."
}
},
{
"from_name": "label",
"id": "8fb0190487f24144a52e48b3611288db",
"to_name": "text",
"type": "labels",
"value": {
"end": 4342,
"labels": [
"FAC"
],
"start": 4179,
"text": "The question is about the validity of a complaint made against the appellant for perjury and for using a forged document as genuine in the following circumstances."
}
},
{
"from_name": "label",
"id": "d870030d27ab40de846c7937ed3474bb",
"to_name": "text",
"type": "labels",
"value": {
"end": 4559,
"labels": [
"FAC"
],
"start": 4344,
"text": "The second respondent Amar Singh filed a civil 127 suit against the appellant for recovery of a large sum of money on the basis of a mortgage in the Court of Mr. E. F.\nBarlow, a Subordinate Judge of the First class."
}
},
{
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"id": "28fa48302c434b93942b14a9298003c3",
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"value": {
"end": 4819,
"labels": [
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],
"start": 4560,
"text": "The appellant filed a receipt which purported to show that Rs.\n35 000 had been paid towards satisfaction of the mortgage (whether in full satisfaction or part is not clear), and in the witness box he swore that he had paid the money and was given the receipt."
}
},
{
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"value": {
"end": 4940,
"labels": [
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"start": 4820,
"text": "Mr. Barlow held that the receipt did not appear to be a genuine document and that the appellant's evidence was not true."
}
},
{
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"labels": [
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"start": 4941,
"text": "Accordingly he passed a preliminary decree against the appellant for the full amount of the claim on 15-3-1950 and a final decree followed on 15-7-1950."
}
},
{
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"end": 5167,
"labels": [
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"start": 5093,
"text": "\nThere was an appeal to the High Court but that was dismissed on 9-5-1951."
}
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"start": 5168,
"text": "The High Court also held that the receipt was a very auspicious document and that the appellant's evidence was not reliable."
}
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{
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"labels": [
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"start": 5292,
"text": "\nThe plaintiff then made an application in the Court of Mr.\nW. Augustine, who is said to have succeeded Mr. Barlow as a Subordinate Judge of the first class, asking that a complaint be filed against the, appellant under sections 193 and 471 of the Indian Penal Code."
}
},
{
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"end": 5847,
"labels": [
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"start": 5559,
"text": "But before it could be beard Mr. Augustine was transferred and it seems that no Subordinate Judge of the first class was appointed in his place; instead, Mr. K. K. Gujral, a Subordinate Judge of the fourth class, was sent to this area and be seems to have been asked to decide the matter."
}
},
{
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"start": 5848,
"text": "But as he was only a Subordinate Judge of the fourth class be made a report to the District Judge that he had no jurisdiction because the offences had been committed in the Court of a Subordinate Judge of the first class."
}
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{
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"labels": [
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"start": 6070,
"text": "The District Judge thereupon transferred the matter to the Senior Subordinate Judge, Mr.\nPitam Singh, and that officer made the complaint that is now under consideration."
}
},
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"end": 6354,
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"start": 6240,
"text": "\n The appellant filed an appeal against Mr. Pitam Singh's order to the Additional District Judge, Mr. J. N. Kapur."
}
},
{
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"labels": [
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"start": 6355,
"text": "This learned Judge held that the Senior Subordinate Judge (Mr. Pitam Singh) had no jurisdiction to make the complaint because he was 128 not Mr. Barlow's successor."
}
},
{
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"end": 6584,
"labels": [
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"start": 6520,
"text": "He also held, on the merits, that there was no prima facie case."
}
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"text": "\n The matter went to the High Court in revision and the learned High Court Judge who beard the matter held that the Senior Subordinate Judge had jurisdiction and that the material disclosed a prima facie case."
}
},
{
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"end": 6934,
"labels": [
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"start": 6794,
"text": "Accordingly, he set aside the Additional District Judge's order and restored the order of the Senior Subordinate Judge making the complaint."
}
},
{
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"end": 6964,
"labels": [
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"start": 6934,
"text": "\n This raises three questions."
}
},
{
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"labels": [
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"start": 6965,
"text": "The first concerns the jurisdiction of the Senior Subordinate Judge Mr. Pitam Singh to entertain the application and make the complaint."
}
},
{
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"labels": [
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],
"start": 7102,
"text": "The second is whether the Additional District Judge had jurisdiction to entertain an appeal against Mr. Pitam Singh's order; and the third is whether the High Court had power to reverse the Additional District Judge's order in revision."
}
},
{
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"value": {
"end": 7416,
"labels": [
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],
"start": 7339,
"text": "We will first deal with Mr. Pitam Singh's jurisdiction to make the complaint."
}
},
{
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"end": 7509,
"labels": [
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],
"start": 7417,
"text": "This question is governed by the Criminal Procedure Code and by the Punjab Courts Act, 1918."
}
},
{
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"end": 7560,
"labels": [
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],
"start": 7510,
"text": "We will examine the Criminal Procedure Code first."
}
},
{
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"value": {
"end": 7744,
"labels": [
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],
"start": 7560,
"text": "\n The offences said to have been committed are ones under sections 471 and 193 of the Indian Penal Code, namely, using as genuine a forged document knowing it to be forged and perjury."
}
},
{
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"id": "ad5a646b5b814e518927139350bca49a",
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"value": {
"end": 7997,
"labels": [
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],
"start": 7745,
"text": "Section 195(1) (b) and (c) of the Criminal Procedure Code prohibit any Court from taking cognizance of either of these two offences except on the complaint in writing of the Court concerned \"or of some other Court to which such Court is subordinate\".\n "
}
},
{
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"id": "52d3289e75284972b79a51e1bcbfabc4",
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"end": 8097,
"labels": [
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],
"start": 7997,
"text": "The offences were committed in the Court of Mr. E.F.\nBarlow, a Subordinate Judge of the first class."
}
},
{
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"labels": [
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],
"start": 8098,
"text": "It seems to have been accepted that Mr. Gujral was not Mr. Barlow's successor because be was only a Subordinate Judge of the fourth class, but whether he was the successor or not, he neither made the complaint nor rejected the application."
}
},
{
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"end": 8493,
"labels": [
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],
"start": 8338,
"text": "He declined to do either because he said be had no jurisdiction; so also neither Mr. Barlow nor Mr. Augustine made a complaint or rejected the application."
}
},
{
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"id": "df268aebc1cf447b921a4182c5495876",
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"value": {
"end": 8565,
"labels": [
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],
"start": 8494,
"text": "That carries 129 us on to section 476-A of the Criminal Procedure Code."
}
},
{
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"id": "b3a8981a1fc6413da34bf3568d0e06bf",
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"value": {
"end": 9134,
"labels": [
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],
"start": 8566,
"text": "Section 476-A states that when the Court in which the offence is said to have been committed neither makes a complaint nor rejects an application for the making of a complaint, \"the Court to which such former Court is subordinate within the meaning of section 195, sub-section (3)\" may take action under section 476.\n Section 476 authorises the appropriate Court, after recording a finding that it is expedient in the interests of justice, etc., to, among other things, make a complaint in writing and forward it to a Magistrate of the first class having jurisdiction."
}
},
{
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"id": "2336a250bb444e638cee39edfc84159c",
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"end": 9168,
"labels": [
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],
"start": 9135,
"text": "That was done by Mr. Pitam Singh."
}
},
{
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"id": "8e33a4705fd242108f5981697603e354",
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"value": {
"end": 9425,
"labels": [
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],
"start": 9169,
"text": "So the only question we have to decide on this part of the case is whether the Court of the Senior Subordinate Judge over which Mr. Pitam Singh presided was the Court to which the Court of Mr. Barlow was subordinate within the meaning of section 195(3 ).\n "
}
},
{
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"id": "cebee75f89664f5e967a63b5df6f7ea3",
"to_name": "text",
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"value": {
"end": 9517,
"labels": [
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],
"start": 9425,
"text": "Now it is to be noticed that subordination has been given a special meaning in this section."
}
},
{
"from_name": "label",
"id": "119e86415ea244999802af00a0cf17db",
"to_name": "text",
"type": "labels",
"value": {
"end": 9764,
"labels": [
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],
"start": 9518,
"text": "It is not any superior Court that has jurisdiction, nor yet the Court to which the \"former Court\" is subordinate for, what might be termed, most general purposes, but only the Court to which it is subordinate within the meaning of section 195(3)."
}
},
{
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"id": "9700c54b60984885af46788e0a3b3fbb",
"to_name": "text",
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"value": {
"end": 10677,
"labels": [
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],
"start": 9765,
"text": "Section 195(3) states that- \"For the purposes of this section, a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies to the principal court having ordinary original civil jurisdiction within the local limits of whose jurisdiction such Civil Court is situate\" and then follows this proviso- \"Provided that- (a)where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; and 130 (b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed\".\n "
}
},
{
"from_name": "label",
"id": "49177d71fb294f9dabcba3d8409ae270",
"to_name": "text",
"type": "labels",
"value": {
"end": 10746,
"labels": [
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],
"start": 10677,
"text": "These provisions have given rise to much conflict in the High Courts."
}
},
{
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"id": "4975d9322d684bba8336a98da5aa17e6",
"to_name": "text",
"type": "labels",
"value": {
"end": 10803,
"labels": [
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],
"start": 10747,
"text": "The controversy has centred round the word \"ordinarily\"."
}
},
{
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"id": "dec3846f50a443499d407567044d5512",
"to_name": "text",
"type": "labels",
"value": {
"end": 10997,
"labels": [
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],
"start": 10804,
"text": "One class of case, of which Wadero Abdul Rahman v. Sadhuram(1) is a sample, holds that \"ordinarily\"\nmeans \"in the majority of cases\" and that it has no reference to the particular case in hand."
}
},
{
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"id": "46e47e7b175841539ddfa98947a1440a",
"to_name": "text",
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"value": {
"end": 11091,
"labels": [
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],
"start": 10998,
"text": "We do not think that is right because that gives no meaning to the proviso to sub-clause (3)."
}
},
{
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"id": "584dda23dcdf4bf0a0f1be30dd50f7ef",
"to_name": "text",
"type": "labels",
"value": {
"end": 11373,
"labels": [
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],
"start": 11092,
"text": "If appeals lie to a particular Court, e.g., the District Court, in the majority of cases and to another Court,say the High Court, only in a few cases, then the inferior tribunal is a fixed quantity and so the need to choose between the inferior and the superior Court cannot arise."
}
},
{
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"id": "7d5b409d36b34984811bf24c5917bef4",
"to_name": "text",
"type": "labels",
"value": {
"end": 11539,
"labels": [
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],
"start": 11374,
"text": "That makes sub-clause (a) to the proviso otiose; also, it does not necessarily follow that the appeal in the majority of cases will always lie to the inferior Court."
}
},
{
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"id": "2e82f10e2ab34e8c9d7a8738da99f306",
"to_name": "text",
"type": "labels",
"value": {
"end": 11928,
"labels": [
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],
"start": 11539,
"text": "\nCases may occur in which the majority of appeals would go to the higher of two given tribunals; and in any case this interpretation has the disadvantage that a Court may be compelled to call for and go into a mass of statistics to ascertain which of two Courts entertains the majority of appeals over a given period of time, as well as to determine what is the appropriate period of time."
}
},
{
"from_name": "label",
"id": "5de352149703466cb8d06489d0e0aa84",
"to_name": "text",
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"value": {
"end": 12213,
"labels": [
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],
"start": 11928,
"text": "\n Another view considers that the word means that the higher Court is the one to which there is an unrestricted right of appeal and so cannot apply when any restriction intervenes such as when the right of appeal is limited to a particular class of cases or is hedged in by conditions."
}
},
{
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"id": "9ca65d3407f344819c0ae5b400f26e16",
"to_name": "text",
"type": "labels",
"value": {
"end": 12270,
"labels": [
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],
"start": 12214,
"text": "This was the view taken in M. S. Sheriff v. Govindan(2)."
}
},
{
"from_name": "label",
"id": "701207d9800649558249b426c40a1ddd",
"to_name": "text",
"type": "labels",
"value": {
"end": 12338,
"labels": [
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],
"start": 12270,
"text": "\nOther views are also possible but we do not intend to explore them."
}
},
{
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"id": "2e36f5e034b64b93a16ad26dd24f20fd",
"to_name": "text",
"type": "labels",
"value": {
"end": 12387,
"labels": [
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],
"start": 12339,
"text": "In our opinion, the matter is to be viewed thus."
}
},
{
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"id": "229f99d9c91042d7994410749c4bb1b3",
"to_name": "text",
"type": "labels",
"value": {
"end": 12575,
"labels": [
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],
"start": 12388,
"text": "The first question to be asked is whether any decrees, orders or sentences of the original Court (1) [1930) 32 Cr. L.J. 1012. (2) A.I.R. I 1951 Mad. 1060, 1061, 131 are appealable at all."
}
},
{
"from_name": "label",
"id": "d468c8ebd8e04a02b7b5f6ed843d9853",
"to_name": "text",
"type": "labels",
"value": {
"end": 12793,
"labels": [
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],
"start": 12576,
"text": "If they are not, and the Court is a Civil Court, then,, under section 195(3), the appeal against the order making or refusing.to make a complaint will be to the principal Court of ordinary original civil jurisdiction."
}
},
{
"from_name": "label",
"id": "7e24fe10704f4312a223a0f1a0e395ac",
"to_name": "text",
"type": "labels",
"value": {
"end": 12986,
"labels": [
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],
"start": 12793,
"text": "\nIf, however, appeals from its various decrees and orders lie to different Courts, then we have to see to which of them they \"ordinarily\" lie and select the one of lowest grade from among them."
}
},
{
"from_name": "label",
"id": "2a20ee9fd31643b09a48f7e64b0d5138",
"to_name": "text",
"type": "labels",
"value": {
"end": 13253,
"labels": [
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],
"start": 12988,
"text": "In determining the Court or Courts to which an appeal will ordinarily lie, we have to see which Court or Courts entertain appeals from that class of tribunal in the ordinary way apart from special notifications or laws that lift the matter out of the general class."
}
},
{
"from_name": "label",
"id": "349752ce5e3f4ade86a457cb3a7fc2f6",
"to_name": "text",
"type": "labels",
"value": {
"end": 13357,
"labels": [
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],
"start": 13254,
"text": "Our meaning will be clearer when we turn to the case in hand and examine the Punjab Courts Act of 1918."
}
},
{
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"id": "a600251662b6409b8d1da73e195f91f1",
"to_name": "text",
"type": "labels",
"value": {
"end": 13989,
"labels": [
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],
"start": 13359,
"text": "Apart from the Courts of Small Causes and Courts established under other enactments, the Punjab Courts Act, 1918 makes provision for three classes of Civil Courts, namely- (1) the Court of the District Judge, (2) the Court of the Additional Judge, and (3) the Court of the Subordinate Judge.\n At the moment we are concerned with the Subordinate Judge.\nSection 22 enables the State Government to fix the number of Subordinate Judges after consultation with the High Court.\nThe local limit of jurisdiction of each of these Judges is the district in which he is appointed unless the High Court defines a different limit (section 27)."
}
},
{
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"id": "c7274302a5284bd5a4cc4dcce2058209",
"to_name": "text",
"type": "labels",
"value": {
"end": 14264,
"labels": [
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],
"start": 13990,
"text": "The pecuniary limits are set out in section 26: \"The jurisdiction to be exercised in civil suits as regards the value by any person appointed to be a Subordinate Judge shall be determined by the High Court either by including him in a class or otherwise as it thinks fit\".\n "
}
},
{
"from_name": "label",
"id": "cb5ab1339aca4cee97e9795af0a7a27c",
"to_name": "text",
"type": "labels",
"value": {
"end": 14348,
"labels": [
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],
"start": 14264,
"text": "These are what might be termed the ordinary powers and jurisdiction of these Courts."
}
},
{
"from_name": "label",
"id": "aa839cba041c415988bfae439f92d661",
"to_name": "text",
"type": "labels",
"value": {
"end": 14458,
"labels": [
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],
"start": 14349,
"text": "But sections 29 and 30 authorise the High Court to confer certain additional powers and jurisdiction on them."
}
},
{
"from_name": "label",
"id": "da7d00670002447c8081c9f83e90f11f",
"to_name": "text",
"type": "labels",
"value": {
"end": 14488,
"labels": [
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],
"start": 14459,
"text": "We will deal with that later."
}
},
{
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"id": "f0449297393b46b2a3ef781d77fd93eb",
"to_name": "text",
"type": "labels",
"value": {
"end": 14536,
"labels": [
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],
"start": 14489,
"text": "132 Next, we turn to the provisions for appeal."
}
},
{
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"id": "b00e17a266f543e49e3c175b2c4f6f60",
"to_name": "text",
"type": "labels",
"value": {
"end": 14569,
"labels": [
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],
"start": 14537,
"text": "They are governed by section 39."
}
},
{
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"id": "c20b22dc407c42369c841e08b1dd1085",
"to_name": "text",
"type": "labels",
"value": {
"end": 14783,
"labels": [
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],
"start": 14570,
"text": "In the absence of any other enactment for the time being in force, when the value of the suit does not exceed five thousand rupees the appeal lies to the District Judge, and in every other suit, to the High Court."
}
},
{
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"id": "dc3afd4644544dccbe5d9b6031185218",
"to_name": "text",
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"value": {
"end": 15228,
"labels": [
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"start": 14784,
"text": "But by sub-section (3) the High Court is empowered to direct by notification \"that appeals lying to the District Court from all or any of the decrees or orders passed in an original suit by any Subordinate Judge shall be preferred to such other 'Subordinate Judge as may be mentioned in the notification\"\nand when that is done \"such other Subordinate Judge shall be deemed to be a District Court for the purposes of all appeals so preferred\".\n "
}
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{
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"id": "61a0452a4c774d6795a483078531905a",
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"end": 15554,
"labels": [
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"start": 15228,
"text": "The High Court availed itself of this provision and provided that appeals lying to the District Courts from decrees or orders passed by any Subordinate Judge in two classes of case which are specified \"shall be preferred to the Senior Subordinate Judge of the first class exercising jurisdiction within such Civil District\".\n "
}
},
{
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"end": 15682,
"labels": [
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"start": 15554,
"text": "There are thus three forums of appeal from the Court of the Subordinate Judge depending on the nature of the suit and its value."
}
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{
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"id": "c6f57eca2475442892a81376d53ee47b",
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"end": 15834,
"labels": [
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"start": 15683,
"text": "The question is whether in each of these three classes of case the appeal can be said to lie \"ordinarily\"\nto one or other of these appellate tribunals."
}
},
{
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"id": "1f1668f80d0346e28e705b8094af9ea1",
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"end": 16172,
"labels": [
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"start": 15835,
"text": "Applying the rule we have set out above, the appeal to the Senior Subordinate Judge cannot be termed \"ordinary\" because the special appellate jurisdiction conferred by the Notification is not the ordinary jurisdiction of the Senior Subordinate Judge but an additional power which can only be exercised in a certain limited class of case."
}
},
{
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"id": "825caa307cb94546b0ee8bcd6b176688",
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"labels": [
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"start": 16173,
"text": "It is not a power common to all Subordinate Judges nor even to all Senior Subordinate Judges."
}
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{
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"labels": [
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"start": 16267,
"text": "Therefore, it cannot be said that appeals from the Courts of the various Subordinate Judges \"ordinarily\" lie to the Senior Subordinate Judge."
}
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{
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"id": "345b06b3c2864fad8e5894d0cd6533df",
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"start": 16409,
"text": "Consequently, that Court is not one of the appellate tribunals contemplated 133 by section 195(3) of the Criminal Procedure Code and its proviso."
}
},
{
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"start": 16555,
"text": "But appeals do \"ordinarily\" lie either to the District Court or the High Court; and as the District Court is the lower of these two tribunals that must be regarded as the appellate authority for the purposes of section 476-B of the Criminal Procedure Code."
}
},
{
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"end": 16926,
"labels": [
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"start": 16811,
"text": "\nNow it is to be observed that this is a purely objective analysis is and is not subjective to any particular suit."
}
},
{
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"id": "c12b74b78e494ab68283424a72344f24",
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"end": 17397,
"labels": [
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],
"start": 16926,
"text": "In the present suit, the value of the suit was over Rs. 5,000, so the appeal would have lain to the High Court, but we are not concerned with that be cause section 195(3) does not say that the appellate authority within the meaning of that section shall be the Court to which the appeal in the particular case under consideration would ordinarily lie but generally \"the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court\"."
}
},
{
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"id": "e9d4918743814738962be1385e5eabae",
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"end": 17638,
"labels": [
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],
"start": 17397,
"text": "\n It would, however, be wrong to say that the nature of the proceedings in the case must be wholly ignored because sub- clause (b) to the proviso to sub-section (3) states that \"where appeals lie to a Civil and also to a Revenue Court, such."
}
},
{
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"id": "e9a8a6c66e164b779963889c3f9c4692",
"to_name": "text",
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"value": {
"end": 17760,
"labels": [
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],
"start": 17639,
"text": "Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding\"."
}
},
{
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"id": "780484b5307041eaa5445ed0604c3559",
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"end": 18160,
"labels": [
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],
"start": 17761,
"text": "Therefore, to that limited extent the nature of the proceedings must be taken into account, but once the genus of the proceedings is determined, namely whether civil, criminal or revenue, the heirarchy of the superior Courts for these purposes will be determined, first by the rules that apply in their special cases and next by the rule in section 195(3) which we have just expounded and explained."
}
},
{
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"id": "067aa1deca8b4593a6388b97d1318d5f",
"to_name": "text",
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"value": {
"end": 18287,
"labels": [
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],
"start": 18160,
"text": "\nM. S. Sheriff v. The State of Madras and Others,(1) was quoted but the present point was neither considered nor decided there."
}
},
{
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"id": "9a90d582988d4a5d9b89cd6930ddcd09",
"to_name": "text",
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"end": 18499,
"labels": [
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],
"start": 18287,
"text": "\nThe next question is whether the Court of the Senior Subordinate Judge is the same Court as Mr. Barlow's Court, namely the Court of the Subordinate (1) [1954] S. C. R. 1144,1147.\n18 134 Judge of the first class."
}
},
{
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"id": "38cb7ef35f324b8dbe3a78216e07f0cd",
"to_name": "text",
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"value": {
"end": 18680,
"labels": [
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],
"start": 18500,
"text": "That depends on whether there is only one Court of the Subordinate Judge in each district, presided over by a number of Judges, or whether each Court is a separate Court in itself."
}
},
{
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"id": "246c8b1ccf564f8ba96ccbfda87bb85a",
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"value": {
"end": 18735,
"labels": [
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],
"start": 18681,
"text": "That turns on the provisions of the Punjab Courts Act."
}
},
{
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"id": "5e1f1ebcf9264a238067348570741a35",
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"end": 18816,
"labels": [
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],
"start": 18735,
"text": "\n We make it clear that our decision on this point is confined to the Punjab Act."
}
},
{
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"id": "ab220ee6a16b4683bd8544f9e3662f92",
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"end": 18954,
"labels": [
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],
"start": 18817,
"text": "We understand that similar Acts in other States are differently worded so that what we decide for the Punjab may not bold good elsewhere."
}
},
{
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"id": "66699cda43aa4060849843726540d1c8",
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"value": {
"end": 19057,
"labels": [
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],
"start": 18955,
"text": "We say this because rulings were cited before us from other parts of India which take differing views."
}
},
{
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"id": "a07b0398b5eb43458557fbdef7ba0e00",
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"value": {
"end": 19186,
"labels": [
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],
"start": 19058,
"text": "We do not intend to refer to them because it would not be right to examine the language of Acts that are not directly before us."
}
},
{
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"id": "02e71b299a784ee5baa24b4c04e6f688",
"to_name": "text",
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"value": {
"end": 19293,
"labels": [
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],
"start": 19186,
"text": "\nAccordingly, we confine ourselves to the Punjab Act (Act VI of 1918).\n Section 18 of the Punjab Courts Act"
}
},
{
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"id": "d79bb03427db4c94b28ec52c2fe5e34f",
"to_name": "text",
"type": "labels",
"value": {
"end": 19565,
"labels": [
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],
"start": 19294,
"text": "states that there shall be the following classes of Courts, namely \"................................................\n(3) the Court of the Subordinate Judge\".\nSection 22 provides that \"the State Government may........ fix the number of Subordinate Judges to be appointed\"."
}
},
{
"from_name": "label",
"id": "795b3049715545949f9cd8d91171ca8a",
"to_name": "text",
"type": "labels",
"value": {
"end": 19658,
"labels": [
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],
"start": 19565,
"text": "\nSection 26, which has already been quoted, fixes the pecuniary limits of their jurisdiction."
}
},
{
"from_name": "label",
"id": "771e532c26fb4543a80163f63e8f7f41",
"to_name": "text",
"type": "labels",
"value": {
"end": 20048,
"labels": [
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],
"start": 19659,
"text": "Then comes section 27 defining the local limits of their jurisdiction: \"(1) The local limits of the jurisdiction of a Subordinate Judge shall be such as the High Court may define.\n (2) When the High Court posts a Subordinate Judge to a district, the local limits of the district shall, in the absence of any direction to the contrary, be deemed to be the local limits of his jurisdiction\"."
}
},
{
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"id": "8353250ab9b34976b416887049def770",
"to_name": "text",
"type": "labels",
"value": {
"end": 20087,
"labels": [
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],
"start": 20050,
"text": "From there we go to the Notification."
}
},
{
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"id": "2da8ddf2bbc74e7881053acd1f59ee5b",
"to_name": "text",
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"value": {
"end": 20139,
"labels": [
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],
"start": 20088,
"text": "It is High Court Notification No. 4 dated 3-1-1923."
}
},
{
"from_name": "label",
"id": "b406276ce4174b14b222334d70f75253",
"to_name": "text",
"type": "labels",
"value": {
"end": 20716,
"labels": [
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],
"start": 20140,
"text": "It makes four classes of Subordinate Judges with effect from 5-1-1923 \"in respect of the jurisdiction to be exercised by them in original suits, namely:- Class I-Subordinate Judges exercising juris- 135 diction without limit as to the value of the cases; Class II-Subordinate Judges exercising jurisdiction in cases of which the value does not exceed Rs. 5.000; Class III-Subordinate Judges exercising jurisdiction in cases of which the value does not exceed Rs. 2,000; Class IV-Subordinate Judges exercising jurisdiction in cases of which the value does not exceed Rs. 1,000."
}
},
{
"from_name": "label",
"id": "8657ccb1bbb44cab9de56dd04af16a7c",
"to_name": "text",
"type": "labels",
"value": {
"end": 21001,
"labels": [
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],
"start": 20716,
"text": "\nWhen a Subordinate Judge is appointed to any of the classes constituted by this Notification, he shall exercise the jurisdiction here in before defined for the class to which he is appointed within the local limits of the civil district to which he may be posted from time to time\".\n "
}
},
{
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"id": "e2c7eeab88144e5d9cf2c183720fb93b",
"to_name": "text",
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"value": {
"end": 21041,
"labels": [
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],
"start": 21001,
"text": "This gives rise to three points of view."
}
},
{
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"id": "dbb45c7003b94871a9532216d917bd13",
"to_name": "text",
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"value": {
"end": 21198,
"labels": [
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],
"start": 21042,
"text": "According to one, there is only one Court of the Subordinate Judge for each district and every other Subordinate Judge is an additional Judge to that Court."
}
},
{
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"id": "247f0c581b3e4793a8c962389c43fc73",
"to_name": "text",
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"value": {
"end": 21410,
"labels": [
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],
"start": 21199,
"text": "This is based on the language of section 18, and the High Court Notification is, under that view, interpreted as dividing the Judges of that one Court into four categories but not as creating independent Courts."
}
},
{
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"id": "29b5225adf12426cbb0b0e551e2fa33d",
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"value": {
"end": 21609,
"labels": [
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],
"start": 21411,
"text": "Section 26 is there read as empowering the High Court to include each Subordinate Judge individually on appointment into a given class within the one Court and not to turn him into a separate Court."
}
},
{
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"id": "ac99894c7e8d4e97a9b56e50d79e4be7",
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"value": {
"end": 21746,
"labels": [
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],
"start": 21609,
"text": "\nAccording to the second view, there are four classes of Subordinate Judge's Courts in the Punjab because of the High Court Notification."
}
},
{
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"id": "9a4c8d16d6384885af9c9e41ae100387",
"to_name": "text",
"type": "labels",
"value": {
"end": 22160,
"labels": [
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],
"start": 21747,
"text": "The argument here runs that section 18 must be read with section 26, and as the High Court is empowered to divide Subordinate Judges in a district into classes it must mean that each class forms an independent Court, for according to this point of view, it would be anomalous to have Judges of the one Court invested with differing pecuniary jurisdictions because that is always regarded as inherent to the Court."
}
},
{
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"id": "c58b9d86d07f4d77a095827909f324ec",
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"value": {
"end": 22524,
"labels": [
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],
"start": 22161,
"text": "The position created by the Act, it is said, is not the same as the one that arises when work is -administratively distributed among Additional Judges of the same 136 Court because the jurisdiction and powers of the Judges are unaffected by such distribution and there remains the one Court with one inherent and territorial jurisdiction despite the distribution."
}
},
{
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"id": "98c4cf002cb64043bcefe4da8ab138e6",
"to_name": "text",
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"value": {
"end": 23103,
"labels": [
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],
"start": 22524,
"text": "\n The third view is that each Subordinate Judge is a separate and independent Court in himself and it is pointed out that section 27 invests each Judge personally with a territorial jurisdiction and not the Court, and so also section 26.\n Under section 33 the power of control (apart from the High Court) over all civil Courts within the local limits of a District Judge's jurisdiction is with him, and section 34 empowers the District Judge to distribute any civil business \"cognizable by .... the Courts under his control.... among such Courts in such manner as he thinks fit\"."
}
},
{
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"id": "a9519e3072f04cbea6d41bde2e92b9e1",
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"end": 23333,
"labels": [
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],
"start": 23104,
"text": "The Senior Subordinate Judge does not therefore appear to be vested with either administrative or judicial control over any other Subordinate Judge except in so far as he is a Court of appeal in certain specified classes of case."
}
},
{
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"id": "8f3584f6f8174bf98b3de5255d5fa992",
"to_name": "text",
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"value": {
"end": 23567,
"labels": [
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],
"start": 23333,
"text": "\n In our opinion, the Senior Subordinate Judge who made the complaint had no jurisdiction to make it, either as the original Court which tried the suit, or as the appellate authority under section 476-B of the Criminal Procedure Code."
}
},
{
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"id": "e2639b28261a46a1818925b1e8f32313",
"to_name": "text",
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"value": {
"end": 23655,
"labels": [
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],
"start": 23568,
"text": "It is not enough that he also had first class powers because be was not the same Court."
}
},
{
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"id": "3746fbeb7031440c854a6e900772ecfa",
"to_name": "text",
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"value": {
"end": 23802,
"labels": [
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],
"start": 23656,
"text": "That is not to say that a successor could not have been appointed to Mr. Barlow so as to establish continuity in the Court over which he presided."
}
},
{
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"id": "48bb770e98b44b6b80f51ebc0ffe3afd",
"to_name": "text",
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"value": {
"end": 23931,
"labels": [
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],
"start": 23803,
"text": "It is possible that one could have been appointed and indeed it seems to have been assumed that Mr. Augustine was his successor."
}
},
{
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"id": "a2f848003e4449a288fb5ad2b719f29a",
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"value": {
"end": 24011,
"labels": [
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],
"start": 23932,
"text": "But as Mr. Augustine did not take up this matter we need not decide that point."
}
},
{
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"id": "a3fb8db5b107488dbcbe161f5d17ec2e",
"to_name": "text",
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"value": {
"end": 24178,
"labels": [
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],
"start": 24012,
"text": "What we think is clear is that Mr. Pitam Singh was not a successor, especially as appeals lay to him from certain decisions of the Subordinate Judges in his district."
}
},
{
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"id": "bbc6a2b408cd45d2a93c65fd8da661f6",
"to_name": "text",
"type": "labels",
"value": {
"end": 24288,
"labels": [
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],
"start": 24179,
"text": "It would be unusual to provide an appeal from one Judge of a Court to another single Judge of the same Court."
}
},
{
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"id": "ec8ea09008134bf590142c839e8d2cb8",
"to_name": "text",
"type": "labels",
"value": {
"end": 24399,
"labels": [
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],
"start": 24289,
"text": "It would be even more anomalous to have an appeal from the decision of a judge lie to his successor in office."
}
},
{
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"id": "d2e5f22a9866402d911b48208a4111f7",
"to_name": "text",
"type": "labels",
"value": {
"end": 24840,
"labels": [
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],
"start": 24400,
"text": "Even 137 in the High Courts, where there are Letters Patent appeals, the appeal is always heard by a Division Bench of at least two Judges; nor can this be treated as a case where a Court with inherent jurisdiction decides the matter as an original tribunal though, owing to territorial or other similar classification not affecting inherent jurisdiction, the case should have gone to some other tribunal of co-ordinate or lesser authority."
}
},
{
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"id": "e91b5ef5512543a58362ebf2b2e71ae9",
"to_name": "text",
"type": "labels",
"value": {
"end": 25226,
"labels": [
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],
"start": 24841,
"text": "Section 193(1) of the Criminal Procedure Code imposes a definite bar which cannot be ignored or waived any more than the prohibitions under sections 132 and 197 and, just as the sanctions provided for in those sections cannot be given by any authority save the ones specified, so here, only the Courts mentioned in section 195 (1) (b) and (c) can remove the bar and make the complaint."
}
},
{
"from_name": "label",
"id": "0022c63ef01f4b42a6139203971c85e9",
"to_name": "text",
"type": "labels",
"value": {
"end": 25280,
"labels": [
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],
"start": 25226,
"text": "\nThis also appears to accord with the Punjab practice."
}
},
{
"from_name": "label",
"id": "2acc05e23b8b4b989bc7f83113c1e5fd",
"to_name": "text",
"type": "labels",
"value": {
"end": 25614,
"labels": [
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],
"start": 25281,
"text": "The Rules and Orders of the Punjab High Court reproduce a Notification of the High Court dated 16-5-1935 as amended on 23-2-1940, at page 3 of Chapter 20-B of Volume I, where it is said in paragraph 2- \"It is further directed the Court of such Senior Subordinate Judge of the first class shall be deemed to be a District Court, etc.\""
}
},
{
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"id": "eb8e307fba2b435ca07f9db36051c3e8",
"to_name": "text",
"type": "labels",
"value": {
"end": 25769,
"labels": [
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],
"start": 25616,
"text": "This appears to regard each Senior Subordinate Judge as a Court in himself and not merely as the presiding officer of the Court of the Subordinate Judge."
}
},
{
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"id": "d97e29e255c74ca3abb76ac8ed6d2195",
"to_name": "text",
"type": "labels",
"value": {
"end": 25827,
"labels": [
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],
"start": 25769,
"text": "\n Section 39(3) of the Punjab Courts Act is also relevant."
}
},
{
"from_name": "label",
"id": "03218b489e964c789c58a0c78a176a5f",
"to_name": "text",
"type": "labels",
"value": {
"end": 26264,
"labels": [
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],
"start": 25827,
"text": "\nIt states that- \"the High Court may by notification direct that appeals lying to the District Court from all or any of the decrees or orders passed in an original suit by any Subordinate Judge shall be preferred to such other Subordinate Judge as may be mentioned in the notification, and the appeals shall thereupon be preferred accordingly, and the Court of such other Subordinate Judge shall 'De deemed to be a District Court, etc.\n\""
}
},
{
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"labels": [
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],
"start": 26265,
"text": "Now this permits an appeal from one Subordinate Judge to another and the words the \"Court of such other Subordinate Judge\" indicate that the Subordi- 138 nate Judge to whom the appeal is preferred is a separate and distinct Court."
}
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"labels": [
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"start": 26496,
"text": "The position thus reduces itself to this."
}
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{
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"labels": [
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],
"start": 26538,
"text": "The original Court made no complaint; section 476-A of the Criminal Procedure Code was therefore attracted and the jurisdiction to make the complaint was transferred to the Court to which Mr. Barlow's Court was subordinate within the meaning of section 195."
}
},
{
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"text": "That Court, as we have seen, was the Court of the District Judge."
}
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"labels": [
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],
"start": 26861,
"text": "\n Now, when the matter was reported to the District Judge by Mr. K. K. Gujral, the District Judge dealt with it."
}
},
{
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"text": "He had authority under section 476-A either to make the complaint himself or to reject the application."
}
},
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"text": "He did neither."
}
},
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"end": 27157,
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],
"start": 27093,
"text": "\nInstead, he sent it to Mr. Pitam Singh who had no jurisdiction."
}
},
{
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"labels": [
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],
"start": 27158,
"text": "Of course, the District Judge could have sent it to the original Court or to the successor Judge of that Court if there was one, but he sent it to a Court without jurisdiction, so his order was ineffective and the subsequent order of Mr. Pitam Singh was without jurisdiction."
}
},
{
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"end": 27539,
"labels": [
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],
"start": 27434,
"text": "That still left the District Court free to act under section 476-A when the matter came back to it again."
}
},
{
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"end": 27932,
"labels": [
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],
"start": 27540,
"text": "This time it came by way of appeal from Mr. Pitam Singh's order but that made no difference because the substance of the matter was this: the original Court had not taken any action, therefore it was incumbent on the District Judge to make an appropriate order either under section 476- A or by sending it for disposal to the only other Court that had jurisdiction, namely the original Court."
}
},
{
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"end": 27977,
"labels": [
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],
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"text": "But the District Judge did not deal with it."
}
},
{
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"end": 28147,
"labels": [
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],
"start": 27978,
"text": "The application went instead to the Additional District Judge and what we now have to see is whether the Additional District Judge had the requisite power and authority."
}
},
{
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"id": "e7e66822f623454bbaa413139c9fc6f6",
"to_name": "text",
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"end": 28388,
"labels": [
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],
"start": 28148,
"text": "That depends on whether the Additional District Judge was a Judge of the District Court or whether he formed a separate Court of his own like the various Subordinate Judges; and that in turn depends on the language of the Punjab Courts Act."
}
},
{
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"value": {
"end": 29005,
"labels": [
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],
"start": 28388,
"text": "\n As we have already pointed out, section 18 of that Act states that, in addition to Courts of Small Causes 139 and Courts established under other enactments, \"there shall be the following classes of Civil Courts, namely:-- (1) The Court of the District Judge; (2) The Court of the Additional Judge; and (3) The Court of the Subordinate Judge\".\nThe Court of the Additional Judge is therefore constituted a distinct class of Court, and it is to be observed that the Act speaks of the Court of the Additional Judge and not of the Additional District Judge as is the case with certain other Acts in other parts of India."
}
},
{
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"end": 29162,
"labels": [
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],
"start": 29006,
"text": "This language is also to be compared with articles 214 and 216 of the Constitution which constitute and define the constitution of the High Courts in India."
}
},
{
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"id": "1698d5e7a7444d74bce5db5cb5b32543",
"to_name": "text",
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"value": {
"end": 29173,
"labels": [
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],
"start": 29164,
"text": "``214(1)."
}
},
{
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"to_name": "text",
"type": "labels",
"value": {
"end": 29219,
"labels": [
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],
"start": 29174,
"text": "There shall be a High Court for each State''."
}
},
{
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"to_name": "text",
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"end": 29227,
"labels": [
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],
"start": 29219,
"text": "\n \"216 ."
}
},
{
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"to_name": "text",
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"value": {
"end": 29369,
"labels": [
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],
"start": 29228,
"text": "Every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint\"."
}
},
{
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"id": "d51eb011b6164d699040d627b339a87a",
"to_name": "text",
"type": "labels",
"value": {
"end": 29589,
"labels": [
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],
"start": 29369,
"text": "\nThe Punjab Courts Act nowhere speaks of an Additional District Judge or of an Additional Judge to the District Court; also, the Additional Judge is not a Judge of co- ordinate judicial authority with the District Judge."
}
},
{
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"id": "b6e8d124c0fb489391dbe4903c9acb13",
"to_name": "text",
"type": "labels",
"value": {
"end": 29907,
"labels": [
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],
"start": 29590,
"text": "Section 21 (I) states that- \"When the business pending before any District Judge requires the aid of an Additional Judge or Judges for its speedy disposal, the State Government may appoint such Additional Judges as may be necessary\".\nBut these Judges cannot discharge all the judicial functions of the District Judge."
}
},
{
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"id": "0895b5deb8d14c75a3b689d8a84eda34",
"to_name": "text",
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"value": {
"end": 30044,
"labels": [
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],
"start": 29908,
"text": "Their jurisdiction is a limited one and is limited to the discharge of such functions as may be entrusted to them by the District Judge."
}
},
{
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"id": "d93a5bf71a104a6c83135a405b34a0ff",
"to_name": "text",
"type": "labels",
"value": {
"end": 30207,
"labels": [
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],
"start": 30045,
"text": "Section 21(2) states that \"An Additional Judge so appointed shall discharge any of the functions of a District Judge' which the District Judge may assign to him\"."
}
},
{
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"id": "b7066cee49bc46dda12d77654e43a151",
"to_name": "text",
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"value": {
"end": 30434,
"labels": [
"STA"
],
"start": 30207,
"text": "\nIt is true that sub-section (2) goes on to say that \"in the discharge of those functions he shall exercise the same powers as the District Judge\" but these powers are limited to the cases with which 140 he is entitled to deal."
}
},
{
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"id": "80e7f0e919e5439e9ed617bd88859160",
"to_name": "text",
"type": "labels",
"value": {
"end": 30553,
"labels": [
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],
"start": 30435,
"text": "Thus, if his functions are confined to the hearing of appeals he cannot exercise original jurisdiction and vice versa."
}
},
{
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"id": "c39a3e39a32b46b79dddcfafef2184f3",
"to_name": "text",
"type": "labels",
"value": {
"end": 30782,
"labels": [
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],
"start": 30554,
"text": "But if he is invested with the functions of an appellate tribunal at the District Court level, then he can exercise all the powers of the District Judge in dealing with appeals which the District Judge is competent to entertain."
}
},
{
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"id": "e4f0260d227141439e47b648171f2a27",
"to_name": "text",
"type": "labels",
"value": {
"end": 30962,
"labels": [
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],
"start": 30783,
"text": "This is a very different thing from the administrative distribution of work among the Judges of a sin-ale Court entitled to divide itself into sections and sit as division Courts."
}
},
{
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"id": "33c1d374936b4b3c86291b1cb530397d",
"to_name": "text",
"type": "labels",
"value": {
"end": 31300,
"labels": [
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],
"start": 30963,
"text": "When the Chief Justice of a High Court or the District Judge of a District Court makes an administrative allotment of work among the Judges of his Court, their jurisdiction and powers are not affected, and if work allotted to one Judge goes to another by mistake his jurisdiction to entertain the matter and deal with it is not affected."
}
},
{
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"id": "fbf70e338d0849928c92fb7b9b3e527e",
"to_name": "text",
"type": "labels",
"value": {
"end": 31511,
"labels": [
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],
"start": 31301,
"text": "But that is not the scheme of the Punjab Courts Act and the mere fact that Mr. J. N. Kapur called himself the Additional District Judge and purported to act as such cannot affect the matter of his jurisdiction."
}
},
{
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"id": "91d8908f550844bd962ce73ebc4f496c",
"to_name": "text",
"type": "labels",
"value": {
"end": 31640,
"labels": [
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],
"start": 31512,
"text": "As the Punjab Courts Act does not contemplate the appointment of Additional Judges to the District Court, none can be appointed."
}
},
{
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"id": "c8909f6f67a34ecd8550f01dd77b993f",
"to_name": "text",
"type": "labels",
"value": {
"end": 31894,
"labels": [
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],
"start": 31641,
"text": "The Court contemplated is the Court of the Additional Judge which is in the nature of a special tribunal set up for a special purpose and invested with the powers of a District Judge when dealing with the matters specially entrusted to its jurisdiction."
}
},
{
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"id": "0a8c3f5e3e444a17a3509f7a811d5cb0",
"to_name": "text",
"type": "labels",
"value": {
"end": 32057,
"labels": [
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],
"start": 31895,
"text": "We hold therefore that the Court of the Additional Judge is not- a division Court of the Court of the District Judge but a separate and distinct Court of its own."
}
},
{
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"id": "bb0844ad21da4adeb8b24fb71afe96f5",
"to_name": "text",
"type": "labels",
"value": {
"end": 32339,
"labels": [
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],
"start": 32057,
"text": "\n Now, as we have seen, when the original Court does not make a complaint under section 476 of the Criminal Procedure Code or reject the application, then the only other Court competent to exercise these powers is the Court to which appeals from the original Court \"ordinarily lie\"."
}
},
{
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"id": "159e3d8dad324b9298c01f87ecfb68c5",
"to_name": "text",
"type": "labels",
"value": {
"end": 32467,
"labels": [
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],
"start": 32340,
"text": "That Court, in the present case, was the Court of the District Judge and not the Court of the Additional Judge Mr. J. N.\nKapur."
}
},
{
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"id": "d4647cfe9ba84dbea5fab4605dd1e47e",
"to_name": "text",
"type": "labels",
"value": {
"end": 32533,
"labels": [
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],
"start": 32468,
"text": "Therefore, Mr. J. N. Kapur's order was also without jurisdiction."
}
},
{
"from_name": "label",
"id": "344b18c6e99e4253ab1ca72e20b823fa",
"to_name": "text",
"type": "labels",
"value": {
"end": 32737,
"labels": [
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],
"start": 32535,
"text": "141 Mr. Kapur's order went up to the High Court in revision, and the next question we have to determine is whether the High Court had jurisdiction to entertain the revision and the extent of its powers."
}
},
{
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"id": "dfe47dbcb13246dd9e92ab037592662a",
"to_name": "text",
"type": "labels",
"value": {
"end": 33157,
"labels": [
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],
"start": 32738,
"text": "Keshardeo Chamria v. Radha Kissen Chamria and Other8(1) and many cases from the High Courts were cited which show that there is much difference of opinion about this but we are fortunately not called upon to decide that question because this is not a case where a Court with jurisdiction has acted under section 476 of the Criminal Procedure Code of its own motion or has acted as a Court of appeal under section 476-B."
}
},
{
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"id": "bd120d36fa584bd59f508e2a95a81437",
"to_name": "text",
"type": "labels",
"value": {
"end": 33371,
"labels": [
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],
"start": 33158,
"text": "As we have shown, the Court of the Senior Subordinate Judge Mr. Pitam Singh had no jurisdiction to entertain this matter either as a Court of appeal under section 476-B or of its own authority under section 476-A."
}
},
{
"from_name": "label",
"id": "98db1548fb44440bbfad170acdd8cf85",
"to_name": "text",
"type": "labels",
"value": {
"end": 33509,
"labels": [
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],
"start": 33372,
"text": "The Additional Judge Mr. J. N. Kapur, who has called himself an Additional District Judge, also had no jurisdiction under either section."
}
},
{
"from_name": "label",
"id": "f38b9826b4404ec7adcd66712779c4b7",
"to_name": "text",
"type": "labels",
"value": {
"end": 33607,
"labels": [
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],
"start": 33510,
"text": "But he seised himself of the case and has rejected the application for the making of a complaint."
}
},
{
"from_name": "label",
"id": "4d9d1af76ce641e9879a4328433e7213",
"to_name": "text",
"type": "labels",
"value": {
"end": 33742,
"labels": [
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],
"start": 33608,
"text": "He therefore assumed a jurisdiction which he did not possess and that at once attracted the revisional jurisdiction of the High Court."
}
},
{
"from_name": "label",
"id": "cb7ac7c604704116a88a0c7c4fd58604",
"to_name": "text",
"type": "labels",
"value": {
"end": 34088,
"labels": [
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],
"start": 33742,
"text": "\n Now it does not matter in this case whether that jurisdiction lies under section 439 of the Criminal Procedure Code or under section 115 of the Civil Procedure Code because under either of these two sections the High Court is entitled to set aside an order of a Court subordinate to it which has assumed a jurisdiction that it does not possess."
}
},
{
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"id": "0f65e1855b4c4520a450499c226fe496",
"to_name": "text",
"type": "labels",
"value": {
"end": 34180,
"labels": [
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],
"start": 34089,
"text": "Therefore, in so far as the High Court set aside the order of Mr. J. N. Kapur it was right."
}
},
{
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"id": "9dc3880f4d3a4d628176c35bffdab008",
"to_name": "text",
"type": "labels",
"value": {
"end": 34273,
"labels": [
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],
"start": 34181,
"text": "But where it went wrong was in upholding the complaint made by the Senior Subordinate Judge."
}
},
{
"from_name": "label",
"id": "67a0f76ed7804044bac23beae57c0e26",
"to_name": "text",
"type": "labels",
"value": {
"end": 34346,
"labels": [
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],
"start": 34274,
"text": "As we have shown, that Court had no jurisdiction to make the complaint ."
}
},
{
"from_name": "label",
"id": "aa98d96b032b495a973b73d75f564b73",
"to_name": "text",
"type": "labels",
"value": {
"end": 34699,
"labels": [
"ANALYSIS"
],
"start": 34346,
"text": "\n The next question is whether the High Court could itself have made the complaint in this particular case because if it could have done so then we would not have used our extraordinary powers of appeal under article 136 to set right what would in those circum- (1) [1953] S.C.R. 136, 150 to 152.\n19 142 stances have been a mere procedural irregularity."
}
},
{
"from_name": "label",
"id": "5126e99ecd444423825075e1a1c5f379",
"to_name": "text",
"type": "labels",
"value": {
"end": 34827,
"labels": [
"ANALYSIS"
],
"start": 34700,
"text": "But as our opinion is that the High Court had no jurisdiction to act under section 476 in this case, we are bound to interfere."
}
},
{
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"id": "4e7cb7b5944a4f479f6456dc465f5db0",
"to_name": "text",
"type": "labels",
"value": {
"end": 35085,
"labels": [
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],
"start": 34828,
"text": "As we have shown, section 195 contains an express prohibition against taking cognizance of the kind of complaint we have here unless the bar is lifted either by the original Court or the Court to which it is subordinate within the meaning of section 195(3)."
}
},
{
"from_name": "label",
"id": "a5a8fc95289d463b832e9a3f1b600d12",
"to_name": "text",
"type": "labels",
"value": {
"end": 35178,
"labels": [
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],
"start": 35086,
"text": "Those are the only Courts invested with jurisdiction to lift the ban and make the complaint."
}
},
{
"from_name": "label",
"id": "8ee4b003a5464a78bf91be63784ddaf9",
"to_name": "text",
"type": "labels",
"value": {
"end": 35560,
"labels": [
"ANALYSIS"
],
"start": 35179,
"text": "Had this been a case in which the High' Court was the superior Court within the meaning of section 195(3) the matter would have been different, but as the original Court was neither the original Court nor the Court to which the original Court was subordinate, according to the special definition in section 195(3), it had no jurisdiction to make the complaint of its own authority."
}
},
{
"from_name": "label",
"id": "841c4d889093408b826359d901ce5db7",
"to_name": "text",
"type": "labels",
"value": {
"end": 35698,
"labels": [
"RATIO"
],
"start": 35560,
"text": "\nTherefore, all that the High Court could, and should, have done was to send the case to the District Judge for disposal according to law."
}
},
{
"from_name": "label",
"id": "6303d4f94adc4ee6b46614653f1ae014",
"to_name": "text",
"type": "labels",
"value": {
"end": 35764,
"labels": [
"RATIO"
],
"start": 35699,
"text": "We will, therefore,, now do what the High Court should have done."
}
},
{
"from_name": "label",
"id": "cbd46c2bdec64f91b9572ae1ba2200fd",
"to_name": "text",
"type": "labels",
"value": {
"end": 35876,
"labels": [
"RATIO"
],
"start": 35764,
"text": "\n We were asked not to allow the proceedings to pend any longer but we are not prepared to do that in this case."
}
},
{
"from_name": "label",
"id": "0973f769494f4b859de7a24d949ede28",
"to_name": "text",
"type": "labels",
"value": {
"end": 36428,
"labels": [
"RATIO"
],
"start": 35877,
"text": "If the view taken by Mr. Pitam Singh and the High Court is right, then a serious offence of a kind that is unfortunately becoming increasingly common, and which is difficult to bring home to,an offender, has been committed against the administration of justice, and if the District Court is satisfied, as were Mr. Pitam Singh and the High Court, that a prima facie case has been made out and that it is expedient in the interests of justice that a complaint should be filed, then it is but right that the matter should be tried in the criminal Courts."
}
},
{
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"id": "ecb866dfffab4116be151114098087ba",
"to_name": "text",
"type": "labels",
"value": {
"end": 36491,
"labels": [
"NONE"
],
"start": 36429,
"text": "We will not say anything more lest it prejudice the appellant."
}
},
{
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"id": "3634de39423a44508a29b5d23789dcce",
"to_name": "text",
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"text": "The District Judge will of course be free to exercise his own discretion."
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"text": "The application for the making of a complaint will accordingly be remitted to the District Judge who will now deal with it."
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"text": "PETITIONER:\nKULDIP SINGH\n\n Vs.\n\nRESPONDENT:\nTHE STATE OF PUNJAB AND ANOTHER.\n\nDATE OF JUDGMENT:\n15/02/1956\n\nBENCH:\n\nACT:\nComplaint by Court-Complaint by Senior Subordinate Judge of\noffences committed in a proceeding before the Subordinate\nJudge of the first class-Validity-Competency of the\nAdditional Judge to entertain appeal-Power of High Court in\nrevision-Code of Criminal Procedure (Act V of 1898), ss. 195\n(3), 476, 476-A, 476-B, 439-The Punjab Courts Act (VI of\n1918), ss. 18,21-Code of Civil Procedure (Act V of .1908),\ns. 115.\n\nHEADNOTE:\nThe question as to which Court is competent to make a com-\nplaint under s. 476-A read with s. 195(3) of the Code of\nCriminal Procedure where none wag made by the Court in which\nthe offence was committed or its successor Court, will\ndepend on the nature of the proceeding in which the offence\nwas committed, whether civil, criminal or revenue, and on\nthe hierarchy of superior Courts to which an appeal from\nsuch proceeding will ordinarily lie as contemplated by s.\n195(3) of the Code, apart from such exceptions as may be\nmade in respect of any particular matters by any special\nnotifications or laws. Where, however, appeals ordinarily\nlie to different courts, the one of the lowest grade will be\nthe Court competent to make the complaint.\nWadero Abdul Bahman v. Sadhuram, ([1930] 32 Cr. L. J. 1012]\nand M. S. Sheriff v. Govindan (A.I.R. 1951 Mad. 1060, 1061),\nnot approved.\nUnder the Punjab Courts Act of 1918 and the hierarchy of\ncivil Courts established thereby, appeals from the Courts of\nthe various subordinate Judges who constitute distinct\nCourts do not ordinarily lie to the Senior Subordinate Judge\nbut to the District Judge and the Court of the Additional\nJudge is not a Court of coordinate jurisdiction with that of\nthe District Judge. The Act neither mentions nor recognises\nan Additional District Judge as a Court of that hierarchy.\nConsequently, in a case where offences under ss. 193 and 471\nof the Indian Penal Code were alleged to have been committed\nin a civil proceeding in the Court of a Subordinate Judge of\nthe first class, exercising jurisdiction under the Punjab\nCourts Act of 1918, and neither he nor his successor made a\ncomplaint or rejected the application for the making of it,\nthe Senior Subordinate Judge had no jurisdiction to\nentertain the matter and make the complaint either as a\nCourt of appeal under s. 476-B or of Its own authority under\ns. 476-A of the Code of Criminal Procedure and the\nAdditional\n17\n126\nJudge, by wrongly describing himself as an Additional\n\nDistrict Judge, could not assume a jurisdiction which he did\nnot possess under those sections.\nThe High Court has power to revise orders of subordinate\nCourts made without jurisdiction both under s. 439 of the\nCode of Criminal Procedure and under s. 115 of the Code of\nCivil Procedure, therefore, it was not necessary to decide\nunder Art. 136 of the Constitution which of these two\nsections applied in the present case, but the High Court\nerred in upholding the complaint made by the Senior\nSubordinate Judge because that court had no jurisdiction to\nmake the complaint.\nThe High Court is not a Court to which the Subordinate Judge\nof the first class is subordinate within the meaning of s.\n196(3) of the Code of Criminal Procedure and could not,\ntherefore, make the complaint of its own authority and\nshould have remitted the application to the District Judge\nfor disposal according to law.\n\nJUDGMENT:CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 34 of 1955.\nAppeal by special leave from the judgment and order dated the 7th June 1954 of the Punjab High Court at Simla in Criminal Revision No. 985 of 1953 arising out of the judgment and order dated the 9th May 1953 of the Court of the Additional District Judge, Ambala.\nRamalal Anand and I. S. Sawhney, for the appellant.\nGopal Singh and P. G. Gokhale, for respondent No. I.\nJindra Lal and Gopal Singh, for respondent No. 2.\n1956. February 15. The Judgment of the Court was delivered by BOSE J.-This appeal was argued at great length because of the wide divergence of judicial opinion that centres round sections 195 and 476 of the Criminal Procedure Code. The question is about the validity of a complaint made against the appellant for perjury and for using a forged document as genuine in the following circumstances.\n The second respondent Amar Singh filed a civil 127 suit against the appellant for recovery of a large sum of money on the basis of a mortgage in the Court of Mr. E. F.\nBarlow, a Subordinate Judge of the First class. The appellant filed a receipt which purported to show that Rs.\n35 000 had been paid towards satisfaction of the mortgage (whether in full satisfaction or part is not clear), and in the witness box he swore that he had paid the money and was given the receipt. Mr. Barlow held that the receipt did not appear to be a genuine document and that the appellant's evidence was not true. Accordingly he passed a preliminary decree against the appellant for the full amount of the claim on 15-3-1950 and a final decree followed on 15-7-1950.\nThere was an appeal to the High Court but that was dismissed on 9-5-1951. The High Court also held that the receipt was a very auspicious document and that the appellant's evidence was not reliable.\nThe plaintiff then made an application in the Court of Mr.\nW. Augustine, who is said to have succeeded Mr. Barlow as a Subordinate Judge of the first class, asking that a complaint be filed against the, appellant under sections 193 and 471 of the Indian Penal Code. But before it could be beard Mr. Augustine was transferred and it seems that no Subordinate Judge of the first class was appointed in his place; instead, Mr. K. K. Gujral, a Subordinate Judge of the fourth class, was sent to this area and be seems to have been asked to decide the matter. But as he was only a Subordinate Judge of the fourth class be made a report to the District Judge that he had no jurisdiction because the offences had been committed in the Court of a Subordinate Judge of the first class. The District Judge thereupon transferred the matter to the Senior Subordinate Judge, Mr.\nPitam Singh, and that officer made the complaint that is now under consideration.\n The appellant filed an appeal against Mr. Pitam Singh's order to the Additional District Judge, Mr. J. N. Kapur.\nThis learned Judge held that the Senior Subordinate Judge (Mr. Pitam Singh) had no jurisdiction to make the complaint because he was 128 not Mr. Barlow's successor. He also held, on the merits, that there was no prima facie case.\n The matter went to the High Court in revision and the learned High Court Judge who beard the matter held that the Senior Subordinate Judge had jurisdiction and that the material disclosed a prima facie case. Accordingly, he set aside the Additional District Judge's order and restored the order of the Senior Subordinate Judge making the complaint.\n This raises three questions. The first concerns the jurisdiction of the Senior Subordinate Judge Mr. Pitam Singh to entertain the application and make the complaint. The second is whether the Additional District Judge had jurisdiction to entertain an appeal against Mr. Pitam Singh's order; and the third is whether the High Court had power to reverse the Additional District Judge's order in revision. We will first deal with Mr. Pitam Singh's jurisdiction to make the complaint. This question is governed by the Criminal Procedure Code and by the Punjab Courts Act, 1918. We will examine the Criminal Procedure Code first.\n The offences said to have been committed are ones under sections 471 and 193 of the Indian Penal Code, namely, using as genuine a forged document knowing it to be forged and perjury. Section 195(1) (b) and (c) of the Criminal Procedure Code prohibit any Court from taking cognizance of either of these two offences except on the complaint in writing of the Court concerned \"or of some other Court to which such Court is subordinate\".\n The offences were committed in the Court of Mr. E.F.\nBarlow, a Subordinate Judge of the first class. It seems to have been accepted that Mr. Gujral was not Mr. Barlow's successor because be was only a Subordinate Judge of the fourth class, but whether he was the successor or not, he neither made the complaint nor rejected the application. He declined to do either because he said be had no jurisdiction; so also neither Mr. Barlow nor Mr. Augustine made a complaint or rejected the application. That carries 129 us on to section 476-A of the Criminal Procedure Code.\nSection 476-A states that when the Court in which the offence is said to have been committed neither makes a complaint nor rejects an application for the making of a complaint, \"the Court to which such former Court is subordinate within the meaning of section 195, sub-section (3)\" may take action under section 476.\n Section 476 authorises the appropriate Court, after recording a finding that it is expedient in the interests of justice, etc., to, among other things, make a complaint in writing and forward it to a Magistrate of the first class having jurisdiction. That was done by Mr. Pitam Singh. So the only question we have to decide on this part of the case is whether the Court of the Senior Subordinate Judge over which Mr. Pitam Singh presided was the Court to which the Court of Mr. Barlow was subordinate within the meaning of section 195(3 ).\n Now it is to be noticed that subordination has been given a special meaning in this section. It is not any superior Court that has jurisdiction, nor yet the Court to which the \"former Court\" is subordinate for, what might be termed, most general purposes, but only the Court to which it is subordinate within the meaning of section 195(3).\nSection 195(3) states that- \"For the purposes of this section, a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies to the principal court having ordinary original civil jurisdiction within the local limits of whose jurisdiction such Civil Court is situate\" and then follows this proviso- \"Provided that- (a)where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; and 130 (b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed\".\n These provisions have given rise to much conflict in the High Courts. The controversy has centred round the word \"ordinarily\". One class of case, of which Wadero Abdul Rahman v. Sadhuram(1) is a sample, holds that \"ordinarily\"\nmeans \"in the majority of cases\" and that it has no reference to the particular case in hand. We do not think that is right because that gives no meaning to the proviso to sub-clause (3). If appeals lie to a particular Court, e.g., the District Court, in the majority of cases and to another Court,say the High Court, only in a few cases, then the inferior tribunal is a fixed quantity and so the need to choose between the inferior and the superior Court cannot arise. That makes sub-clause (a) to the proviso otiose; also, it does not necessarily follow that the appeal in the majority of cases will always lie to the inferior Court.\nCases may occur in which the majority of appeals would go to the higher of two given tribunals; and in any case this interpretation has the disadvantage that a Court may be compelled to call for and go into a mass of statistics to ascertain which of two Courts entertains the majority of appeals over a given period of time, as well as to determine what is the appropriate period of time.\n Another view considers that the word means that the higher Court is the one to which there is an unrestricted right of appeal and so cannot apply when any restriction intervenes such as when the right of appeal is limited to a particular class of cases or is hedged in by conditions. This was the view taken in M. S. Sheriff v. Govindan(2).\nOther views are also possible but we do not intend to explore them. In our opinion, the matter is to be viewed thus. The first question to be asked is whether any decrees, orders or sentences of the original Court (1) [1930) 32 Cr. L.J. 1012. (2) A.I.R. I 1951 Mad. 1060, 1061, 131 are appealable at all. If they are not, and the Court is a Civil Court, then,, under section 195(3), the appeal against the order making or refusing.to make a complaint will be to the principal Court of ordinary original civil jurisdiction.\nIf, however, appeals from its various decrees and orders lie to different Courts, then we have to see to which of them they \"ordinarily\" lie and select the one of lowest grade from among them.\n In determining the Court or Courts to which an appeal will ordinarily lie, we have to see which Court or Courts entertain appeals from that class of tribunal in the ordinary way apart from special notifications or laws that lift the matter out of the general class. Our meaning will be clearer when we turn to the case in hand and examine the Punjab Courts Act of 1918.\n Apart from the Courts of Small Causes and Courts established under other enactments, the Punjab Courts Act, 1918 makes provision for three classes of Civil Courts, namely- (1) the Court of the District Judge, (2) the Court of the Additional Judge, and (3) the Court of the Subordinate Judge.\n At the moment we are concerned with the Subordinate Judge.\nSection 22 enables the State Government to fix the number of Subordinate Judges after consultation with the High Court.\nThe local limit of jurisdiction of each of these Judges is the district in which he is appointed unless the High Court defines a different limit (section 27). The pecuniary limits are set out in section 26: \"The jurisdiction to be exercised in civil suits as regards the value by any person appointed to be a Subordinate Judge shall be determined by the High Court either by including him in a class or otherwise as it thinks fit\".\n These are what might be termed the ordinary powers and jurisdiction of these Courts. But sections 29 and 30 authorise the High Court to confer certain additional powers and jurisdiction on them. We will deal with that later.\n132 Next, we turn to the provisions for appeal. They are governed by section 39. In the absence of any other enactment for the time being in force, when the value of the suit does not exceed five thousand rupees the appeal lies to the District Judge, and in every other suit, to the High Court. But by sub-section (3) the High Court is empowered to direct by notification \"that appeals lying to the District Court from all or any of the decrees or orders passed in an original suit by any Subordinate Judge shall be preferred to such other 'Subordinate Judge as may be mentioned in the notification\"\nand when that is done \"such other Subordinate Judge shall be deemed to be a District Court for the purposes of all appeals so preferred\".\n The High Court availed itself of this provision and provided that appeals lying to the District Courts from decrees or orders passed by any Subordinate Judge in two classes of case which are specified \"shall be preferred to the Senior Subordinate Judge of the first class exercising jurisdiction within such Civil District\".\n There are thus three forums of appeal from the Court of the Subordinate Judge depending on the nature of the suit and its value. The question is whether in each of these three classes of case the appeal can be said to lie \"ordinarily\"\nto one or other of these appellate tribunals. Applying the rule we have set out above, the appeal to the Senior Subordinate Judge cannot be termed \"ordinary\" because the special appellate jurisdiction conferred by the Notification is not the ordinary jurisdiction of the Senior Subordinate Judge but an additional power which can only be exercised in a certain limited class of case. It is not a power common to all Subordinate Judges nor even to all Senior Subordinate Judges. Therefore, it cannot be said that appeals from the Courts of the various Subordinate Judges \"ordinarily\" lie to the Senior Subordinate Judge. Consequently, that Court is not one of the appellate tribunals contemplated 133 by section 195(3) of the Criminal Procedure Code and its proviso. But appeals do \"ordinarily\" lie either to the District Court or the High Court; and as the District Court is the lower of these two tribunals that must be regarded as the appellate authority for the purposes of section 476-B of the Criminal Procedure Code.\nNow it is to be observed that this is a purely objective analysis is and is not subjective to any particular suit.In the present suit, the value of the suit was over Rs. 5,000, so the appeal would have lain to the High Court, but we are not concerned with that be cause section 195(3) does not say that the appellate authority within the meaning of that section shall be the Court to which the appeal in the particular case under consideration would ordinarily lie but generally \"the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court\".\n It would, however, be wrong to say that the nature of the proceedings in the case must be wholly ignored because sub- clause (b) to the proviso to sub-section (3) states that \"where appeals lie to a Civil and also to a Revenue Court, such. Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding\". Therefore, to that limited extent the nature of the proceedings must be taken into account, but once the genus of the proceedings is determined, namely whether civil, criminal or revenue, the heirarchy of the superior Courts for these purposes will be determined, first by the rules that apply in their special cases and next by the rule in section 195(3) which we have just expounded and explained.\nM. S. Sheriff v. The State of Madras and Others,(1) was quoted but the present point was neither considered nor decided there.\nThe next question is whether the Court of the Senior Subordinate Judge is the same Court as Mr. Barlow's Court, namely the Court of the Subordinate (1) [1954] S. C. R. 1144,1147.\n18 134 Judge of the first class. That depends on whether there is only one Court of the Subordinate Judge in each district, presided over by a number of Judges, or whether each Court is a separate Court in itself. That turns on the provisions of the Punjab Courts Act.\n We make it clear that our decision on this point is confined to the Punjab Act. We understand that similar Acts in other States are differently worded so that what we decide for the Punjab may not bold good elsewhere. We say this because rulings were cited before us from other parts of India which take differing views. We do not intend to refer to them because it would not be right to examine the language of Acts that are not directly before us.\nAccordingly, we confine ourselves to the Punjab Act (Act VI of 1918).\n Section 18 of the Punjab Courts Act states that there shall be the following classes of Courts, namely \"................................................\n(3) the Court of the Subordinate Judge\".\nSection 22 provides that \"the State Government may........ fix the number of Subordinate Judges to be appointed\".\nSection 26, which has already been quoted, fixes the pecuniary limits of their jurisdiction. Then comes section 27 defining the local limits of their jurisdiction: \"(1) The local limits of the jurisdiction of a Subordinate Judge shall be such as the High Court may define.\n (2) When the High Court posts a Subordinate Judge to a district, the local limits of the district shall, in the absence of any direction to the contrary, be deemed to be the local limits of his jurisdiction\".\n From there we go to the Notification. It is High Court Notification No. 4 dated 3-1-1923. It makes four classes of Subordinate Judges with effect from 5-1-1923 \"in respect of the jurisdiction to be exercised by them in original suits, namely:- Class I-Subordinate Judges exercising juris- 135 diction without limit as to the value of the cases; Class II-Subordinate Judges exercising jurisdiction in cases of which the value does not exceed Rs. 5.000; Class III-Subordinate Judges exercising jurisdiction in cases of which the value does not exceed Rs. 2,000; Class IV-Subordinate Judges exercising jurisdiction in cases of which the value does not exceed Rs. 1,000.\nWhen a Subordinate Judge is appointed to any of the classes constituted by this Notification, he shall exercise the jurisdiction here in before defined for the class to which he is appointed within the local limits of the civil district to which he may be posted from time to time\".\n This gives rise to three points of view. According to one, there is only one Court of the Subordinate Judge for each district and every other Subordinate Judge is an additional Judge to that Court. This is based on the language of section 18, and the High Court Notification is, under that view, interpreted as dividing the Judges of that one Court into four categories but not as creating independent Courts. Section 26 is there read as empowering the High Court to include each Subordinate Judge individually on appointment into a given class within the one Court and not to turn him into a separate Court.\nAccording to the second view, there are four classes of Subordinate Judge's Courts in the Punjab because of the High Court Notification. The argument here runs that section 18 must be read with section 26, and as the High Court is empowered to divide Subordinate Judges in a district into classes it must mean that each class forms an independent Court, for according to this point of view, it would be anomalous to have Judges of the one Court invested with differing pecuniary jurisdictions because that is always regarded as inherent to the Court. The position created by the Act, it is said, is not the same as the one that arises when work is -administratively distributed among Additional Judges of the same 136 Court because the jurisdiction and powers of the Judges are unaffected by such distribution and there remains the one Court with one inherent and territorial jurisdiction despite the distribution.\n The third view is that each Subordinate Judge is a separate and independent Court in himself and it is pointed out that section 27 invests each Judge personally with a territorial jurisdiction and not the Court, and so also section 26.\n Under section 33 the power of control (apart from the High Court) over all civil Courts within the local limits of a District Judge's jurisdiction is with him, and section 34 empowers the District Judge to distribute any civil business \"cognizable by .... the Courts under his control.... among such Courts in such manner as he thinks fit\". The Senior Subordinate Judge does not therefore appear to be vested with either administrative or judicial control over any other Subordinate Judge except in so far as he is a Court of appeal in certain specified classes of case.\n In our opinion, the Senior Subordinate Judge who made the complaint had no jurisdiction to make it, either as the original Court which tried the suit, or as the appellate authority under section 476-B of the Criminal Procedure Code. It is not enough that he also had first class powers because be was not the same Court. That is not to say that a successor could not have been appointed to Mr. Barlow so as to establish continuity in the Court over which he presided. It is possible that one could have been appointed and indeed it seems to have been assumed that Mr. Augustine was his successor. But as Mr. Augustine did not take up this matter we need not decide that point. What we think is clear is that Mr. Pitam Singh was not a successor, especially as appeals lay to him from certain decisions of the Subordinate Judges in his district. It would be unusual to provide an appeal from one Judge of a Court to another single Judge of the same Court. It would be even more anomalous to have an appeal from the decision of a judge lie to his successor in office. Even 137 in the High Courts, where there are Letters Patent appeals, the appeal is always heard by a Division Bench of at least two Judges; nor can this be treated as a case where a Court with inherent jurisdiction decides the matter as an original tribunal though, owing to territorial or other similar classification not affecting inherent jurisdiction, the case should have gone to some other tribunal of co-ordinate or lesser authority. Section 193(1) of the Criminal Procedure Code imposes a definite bar which cannot be ignored or waived any more than the prohibitions under sections 132 and 197 and, just as the sanctions provided for in those sections cannot be given by any authority save the ones specified, so here, only the Courts mentioned in section 195 (1) (b) and (c) can remove the bar and make the complaint.\nThis also appears to accord with the Punjab practice. The Rules and Orders of the Punjab High Court reproduce a Notification of the High Court dated 16-5-1935 as amended on 23-2-1940, at page 3 of Chapter 20-B of Volume I, where it is said in paragraph 2- \"It is further directed the Court of such Senior Subordinate Judge of the first class shall be deemed to be a District Court, etc.\"\n This appears to regard each Senior Subordinate Judge as a Court in himself and not merely as the presiding officer of the Court of the Subordinate Judge.\n Section 39(3) of the Punjab Courts Act is also relevant.\nIt states that- \"the High Court may by notification direct that appeals lying to the District Court from all or any of the decrees or orders passed in an original suit by any Subordinate Judge shall be preferred to such other Subordinate Judge as may be mentioned in the notification, and the appeals shall thereupon be preferred accordingly, and the Court of such other Subordinate Judge shall 'De deemed to be a District Court, etc.\n\" Now this permits an appeal from one Subordinate Judge to another and the words the \"Court of such other Subordinate Judge\" indicate that the Subordi- 138 nate Judge to whom the appeal is preferred is a separate and distinct Court.\nThe position thus reduces itself to this. The original Court made no complaint; section 476-A of the Criminal Procedure Code was therefore attracted and the jurisdiction to make the complaint was transferred to the Court to which Mr. Barlow's Court was subordinate within the meaning of section 195. That Court, as we have seen, was the Court of the District Judge.\n Now, when the matter was reported to the District Judge by Mr. K. K. Gujral, the District Judge dealt with it. He had authority under section 476-A either to make the complaint himself or to reject the application. He did neither.\nInstead, he sent it to Mr. Pitam Singh who had no jurisdiction. Of course, the District Judge could have sent it to the original Court or to the successor Judge of that Court if there was one, but he sent it to a Court without jurisdiction, so his order was ineffective and the subsequent order of Mr. Pitam Singh was without jurisdiction. That still left the District Court free to act under section 476-A when the matter came back to it again. This time it came by way of appeal from Mr. Pitam Singh's order but that made no difference because the substance of the matter was this: the original Court had not taken any action, therefore it was incumbent on the District Judge to make an appropriate order either under section 476- A or by sending it for disposal to the only other Court that had jurisdiction, namely the original Court. But the District Judge did not deal with it. The application went instead to the Additional District Judge and what we now have to see is whether the Additional District Judge had the requisite power and authority. That depends on whether the Additional District Judge was a Judge of the District Court or whether he formed a separate Court of his own like the various Subordinate Judges; and that in turn depends on the language of the Punjab Courts Act.\n As we have already pointed out, section 18 of that Act states that, in addition to Courts of Small Causes 139 and Courts established under other enactments, \"there shall be the following classes of Civil Courts, namely:-- (1) The Court of the District Judge; (2) The Court of the Additional Judge; and (3) The Court of the Subordinate Judge\".\nThe Court of the Additional Judge is therefore constituted a distinct class of Court, and it is to be observed that the Act speaks of the Court of the Additional Judge and not of the Additional District Judge as is the case with certain other Acts in other parts of India. This language is also to be compared with articles 214 and 216 of the Constitution which constitute and define the constitution of the High Courts in India.\n ``214(1). There shall be a High Court for each State''.\n \"216 . Every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint\".\nThe Punjab Courts Act nowhere speaks of an Additional District Judge or of an Additional Judge to the District Court; also, the Additional Judge is not a Judge of co- ordinate judicial authority with the District Judge.\nSection 21 (I) states that- \"When the business pending before any District Judge requires the aid of an Additional Judge or Judges for its speedy disposal, the State Government may appoint such Additional Judges as may be necessary\".\nBut these Judges cannot discharge all the judicial functions of the District Judge. Their jurisdiction is a limited one and is limited to the discharge of such functions as may be entrusted to them by the District Judge. Section 21(2) states that \"An Additional Judge so appointed shall discharge any of the functions of a District Judge' which the District Judge may assign to him\".\nIt is true that sub-section (2) goes on to say that \"in the discharge of those functions he shall exercise the same powers as the District Judge\" but these powers are limited to the cases with which 140 he is entitled to deal. Thus, if his functions are confined to the hearing of appeals he cannot exercise original jurisdiction and vice versa. But if he is invested with the functions of an appellate tribunal at the District Court level, then he can exercise all the powers of the District Judge in dealing with appeals which the District Judge is competent to entertain. This is a very different thing from the administrative distribution of work among the Judges of a sin-ale Court entitled to divide itself into sections and sit as division Courts. When the Chief Justice of a High Court or the District Judge of a District Court makes an administrative allotment of work among the Judges of his Court, their jurisdiction and powers are not affected, and if work allotted to one Judge goes to another by mistake his jurisdiction to entertain the matter and deal with it is not affected. But that is not the scheme of the Punjab Courts Act and the mere fact that Mr. J. N. Kapur called himself the Additional District Judge and purported to act as such cannot affect the matter of his jurisdiction. As the Punjab Courts Act does not contemplate the appointment of Additional Judges to the District Court, none can be appointed. The Court contemplated is the Court of the Additional Judge which is in the nature of a special tribunal set up for a special purpose and invested with the powers of a District Judge when dealing with the matters specially entrusted to its jurisdiction. We hold therefore that the Court of the Additional Judge is not- a division Court of the Court of the District Judge but a separate and distinct Court of its own.\n Now, as we have seen, when the original Court does not make a complaint under section 476 of the Criminal Procedure Code or reject the application, then the only other Court competent to exercise these powers is the Court to which appeals from the original Court \"ordinarily lie\". That Court, in the present case, was the Court of the District Judge and not the Court of the Additional Judge Mr. J. N.\nKapur. Therefore, Mr. J. N. Kapur's order was also without jurisdiction.\n 141 Mr. Kapur's order went up to the High Court in revision, and the next question we have to determine is whether the High Court had jurisdiction to entertain the revision and the extent of its powers. Keshardeo Chamria v. Radha Kissen Chamria and Other8(1) and many cases from the High Courts were cited which show that there is much difference of opinion about this but we are fortunately not called upon to decide that question because this is not a case where a Court with jurisdiction has acted under section 476 of the Criminal Procedure Code of its own motion or has acted as a Court of appeal under section 476-B. As we have shown, the Court of the Senior Subordinate Judge Mr. Pitam Singh had no jurisdiction to entertain this matter either as a Court of appeal under section 476-B or of its own authority under section 476-A. The Additional Judge Mr. J. N. Kapur, who has called himself an Additional District Judge, also had no jurisdiction under either section. But he seised himself of the case and has rejected the application for the making of a complaint. He therefore assumed a jurisdiction which he did not possess and that at once attracted the revisional jurisdiction of the High Court.\n Now it does not matter in this case whether that jurisdiction lies under section 439 of the Criminal Procedure Code or under section 115 of the Civil Procedure Code because under either of these two sections the High Court is entitled to set aside an order of a Court subordinate to it which has assumed a jurisdiction that it does not possess. Therefore, in so far as the High Court set aside the order of Mr. J. N. Kapur it was right. But where it went wrong was in upholding the complaint made by the Senior Subordinate Judge. As we have shown, that Court had no jurisdiction to make the complaint .\n The next question is whether the High Court could itself have made the complaint in this particular case because if it could have done so then we would not have used our extraordinary powers of appeal under article 136 to set right what would in those circum- (1) [1953] S.C.R. 136, 150 to 152.\n19 142 stances have been a mere procedural irregularity. But as our opinion is that the High Court had no jurisdiction to act under section 476 in this case, we are bound to interfere. As we have shown, section 195 contains an express prohibition against taking cognizance of the kind of complaint we have here unless the bar is lifted either by the original Court or the Court to which it is subordinate within the meaning of section 195(3). Those are the only Courts invested with jurisdiction to lift the ban and make the complaint. Had this been a case in which the High' Court was the superior Court within the meaning of section 195(3) the matter would have been different, but as the original Court was neither the original Court nor the Court to which the original Court was subordinate, according to the special definition in section 195(3), it had no jurisdiction to make the complaint of its own authority.\nTherefore, all that the High Court could, and should, have done was to send the case to the District Judge for disposal according to law. We will, therefore,, now do what the High Court should have done.\n We were asked not to allow the proceedings to pend any longer but we are not prepared to do that in this case. If the view taken by Mr. Pitam Singh and the High Court is right, then a serious offence of a kind that is unfortunately becoming increasingly common, and which is difficult to bring home to,an offender, has been committed against the administration of justice, and if the District Court is satisfied, as were Mr. Pitam Singh and the High Court, that a prima facie case has been made out and that it is expedient in the interests of justice that a complaint should be filed, then it is but right that the matter should be tried in the criminal Courts. We will not say anything more lest it prejudice the appellant. The District Judge will of course be free to exercise his own discretion. The application for the making of a complaint will accordingly be remitted to the District Judge who will now deal with it.\n143 "
} |
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{
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{
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"end": 48,
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"start": 0,
"text": "PETITIONER:\nDHANVANTRAI BALWANTRAI DESAI\n\n Vs."
}
},
{
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"id": "37eff41ad9404a0dbeb9bb60747d09a3",
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"end": 82,
"labels": [
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"start": 48,
"text": "\n\nRESPONDENT:\nSTATE OF MAHARASHTRA"
}
},
{
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"text": "\n\nDATE OF JUDGMENT:"
}
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"end": 112,
"labels": [
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"start": 101,
"text": "\n28/09/1962"
}
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{
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"to_name": "text",
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"value": {
"end": 263,
"labels": [
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],
"start": 114,
"text": "BENCH:\nMUDHOLKAR, J.R.\nBENCH:\nMUDHOLKAR, J.R.\nIMAM, SYED JAFFER\nSUBBARAO, K.\nAYYANGAR, N. RAJAGOPALA\n\nCITATION:\n\n1964 AIR 575 1963 SCR "
}
},
{
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"id": "93fb38cb7d674070968dfb5bd5f50cbd",
"to_name": "text",
"type": "labels",
"value": {
"end": 838,
"labels": [
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],
"start": 263,
"text": "Supl. (1) 485\n\nCITATOR INFO : (3)\n (8,9)\nR 1966 SC1762 (19,20)\n (8)\nR 1968 SC1292 (5)\n\nE 1973 SC 28\n\nR 1973 SC 246\n\nF 1990 SC1269\n\nACT:\nCriminal Trial-Bribery-Receipt of gratification-Presumption-\nRebuttal of-Onus-Plausible explanation by accused, if\ndischarges onus-Prevention of Corruption Act, 1947 (11 of\n1947), s. 4.\n\nHEADNOTE:\nThe appellant was the Resident Engineer for Light Houses and\nthe complainant had a contract for reconstructing one of the\nlight houses."
}
},
{
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"id": "90caa64ee3514265bc999e50f78c4a3e",
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"end": 948,
"labels": [
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],
"start": 839,
"text": "For this construction the contractor used\nwater from a temple well and used a temple room for storing\ncement."
}
},
{
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"id": "15d7f8e0854241bab268eb3616275f29",
"to_name": "text",
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"value": {
"end": 1082,
"labels": [
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],
"start": 949,
"text": "On the completion of the work the appellant asked\nthe-contractor to carry out certain repairs to the temple\nbut he declined to do so."
}
},
{
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"id": "fc83d19ec9df4d99b35dee1bfd97d586",
"to_name": "text",
"type": "labels",
"value": {
"end": 1239,
"labels": [
"PREAMBLE"
],
"start": 1083,
"text": "At the time of the payment of the\nfinal bill the contractor paid a sum of Rs. 1,000,/- to the\nappellant and the amount was recovered from him upon a\nsearch."
}
},
{
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"id": "69706ba6d37b4142a54de62d9cf46399",
"to_name": "text",
"type": "labels",
"value": {
"end": 1436,
"labels": [
"PREAMBLE"
],
"start": 1240,
"text": "The explanation offered by the appellant was that\nthe contractor had given this sum of money for payment to\nthe temple authorities for repairs to the temple as he had\nhimself been unable to do so."
}
},
{
"from_name": "label",
"id": "46e6e9e8e62e4355bbe41163bbddfdff",
"to_name": "text",
"type": "labels",
"value": {
"end": 1558,
"labels": [
"PREAMBLE"
],
"start": 1437,
"text": "He was convicted under s. 161\nIndian Penal Code by raised the presumption under s. 4 of\nthe Prevention of Corruption Act."
}
},
{
"from_name": "label",
"id": "c8a738634a234c4aa4e8cadff50a0dca",
"to_name": "text",
"type": "labels",
"value": {
"end": 1700,
"labels": [
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],
"start": 1559,
"text": "The appellant contended\nthat the explanation given by him was both reasonable and\nprobable and that accordingly the presumption was rebutted."
}
},
{
"from_name": "label",
"id": "c1928b649990460882f751573d5853a2",
"to_name": "text",
"type": "labels",
"value": {
"end": 1854,
"labels": [
"PREAMBLE"
],
"start": 1701,
"text": "Held, that the presumption under s. 4(1) had properly been\nraised as the appellant had admittedly accepted gratifica-\ntion other than legal remuneration."
}
},
{
"from_name": "label",
"id": "5479097909dc41cd8acf19596aad1659",
"to_name": "text",
"type": "labels",
"value": {
"end": 1932,
"labels": [
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],
"start": 1855,
"text": "The appellant had\nfailed to rebut this presumption and was rightly convicted."
}
},
{
"from_name": "label",
"id": "a620bb07d65f4551859802317ac8a0c2",
"to_name": "text",
"type": "labels",
"value": {
"end": 2083,
"labels": [
"PREAMBLE"
],
"start": 1932,
"text": "\nThe burden of rebutting such a presumption resting upon the\naccused was not as light as in the case of a presumption\nraised under s. 114 Evidence Act."
}
},
{
"from_name": "label",
"id": "3f19b63e4d72492d87322335e1c7214e",
"to_name": "text",
"type": "labels",
"value": {
"end": 2230,
"labels": [
"PREAMBLE"
],
"start": 2084,
"text": "The burden was not\ndischarged by merely giving a reasonable and probable\nexplanation. The accused had to show that the explanation\nwas a true one."
}
},
{
"from_name": "label",
"id": "7a589f706ebe47bfa15391da69c4dd49",
"to_name": "text",
"type": "labels",
"value": {
"end": 2324,
"labels": [
"PREAMBLE"
],
"start": 2231,
"text": "Unless the explanation is supported by\n\nproof, the presumption cannot be said to be rebutted."
}
},
{
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"id": "5f22be4c0757413c93d16fc385f34b16",
"to_name": "text",
"type": "labels",
"value": {
"end": 2516,
"labels": [
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],
"start": 2324,
"text": "\nC.I. Emden v. State of U. P., [1960] 2 S. C. R. 592, Otto\nGeorge Gfeller v. The King, A.I.R. (1943) P. C. 211 and\n486\nState of Madras v. A. Vaidyanatha Iyer, [1958] S. C. R. 580,\nreferred to."
}
},
{
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"id": "cbf290fb1baa45c19baea235e76366e2",
"to_name": "text",
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"value": {
"end": 2527,
"labels": [
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],
"start": 2516,
"text": "\n\nJUDGMENT:"
}
},
{
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"to_name": "text",
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"value": {
"end": 2593,
"labels": [
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],
"start": 2527,
"text": "CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 218 of 1960."
}
},
{
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"id": "42db34b906da46a8a50b6bc8bcad9763",
"to_name": "text",
"type": "labels",
"value": {
"end": 2720,
"labels": [
"NONE"
],
"start": 2594,
"text": "Appeal by special leave from the judgment and order dated August 3, 1960, of the Bombay High, Court in Cr. A. No. 282 of 1960."
}
},
{
"from_name": "label",
"id": "9fb331f1dd83472fbca05635a219294a",
"to_name": "text",
"type": "labels",
"value": {
"end": 2859,
"labels": [
"NONE"
],
"start": 2720,
"text": "\nA.S. R. Chari, M. K. Ramamurthi, R. K. Garg, D. P. Singh, S. C. Aggarwal, L. M. Atmaram Bhukhanwala and K. R.\nChoudhri, for the appellant."
}
},
{
"from_name": "label",
"id": "3669a37dc24d42bdb9111670442426a7",
"to_name": "text",
"type": "labels",
"value": {
"end": 2936,
"labels": [
"NONE"
],
"start": 2859,
"text": "\nR.L. Anand, D. R. Prem, R. H. Dhebar and R. N. Sachthey, for the respondent."
}
},
{
"from_name": "label",
"id": "52a0f64104804fea8e87f8316d6b26b3",
"to_name": "text",
"type": "labels",
"value": {
"end": 2942,
"labels": [
"NONE"
],
"start": 2936,
"text": "\n1962."
}
},
{
"from_name": "label",
"id": "3a93de7f7c4d4856a94aa8737b004d82",
"to_name": "text",
"type": "labels",
"value": {
"end": 2956,
"labels": [
"NONE"
],
"start": 2943,
"text": "September 28."
}
},
{
"from_name": "label",
"id": "439ce5dd57f04a559297b5096441a9b1",
"to_name": "text",
"type": "labels",
"value": {
"end": 3014,
"labels": [
"NONE"
],
"start": 2957,
"text": "The judgment of the Court was delivered by MUDHOLKAR, J.-"
}
},
{
"from_name": "label",
"id": "27942f149baf467eba3fe6220b4aaf2b",
"to_name": "text",
"type": "labels",
"value": {
"end": 3305,
"labels": [
"RLC"
],
"start": 3014,
"text": "In this appeal by special leave from the judgment' of the High Court of Bombay affirming the conviction and sentences passed on the appellant in respect of offences under s. 161, Indian Penal Code and s. 5(1)(d) of the Prevention of Corruption Act, 1947 (2 of 1947) read with s. 5(2) thereof"
}
},
{
"from_name": "label",
"id": "d25bc95a5537416aa70ef0844dc277b9",
"to_name": "text",
"type": "labels",
"value": {
"end": 3557,
"labels": [
"RLC"
],
"start": 3305,
"text": ", the only point urged is that the presumption raised against the appellant under s. 4 of the Prevention of Corruption Act must be held to have been rebutted by the explanation given by him inasmuch as that explanation was both reasonable and probable."
}
},
{
"from_name": "label",
"id": "cc91df5aed134a688b2f9d2e3909115b",
"to_name": "text",
"type": "labels",
"value": {
"end": 3635,
"labels": [
"NONE"
],
"start": 3557,
"text": "\nIn order to appreciate the contention it is necessary to state certain facts."
}
},
{
"from_name": "label",
"id": "50695b3e3ea6487997308d8c62574ff4",
"to_name": "text",
"type": "labels",
"value": {
"end": 3737,
"labels": [
"FAC"
],
"start": 3635,
"text": "\nIn the year 1954 the appellant was appointed Resident Engineer for Light Houses and posted to Bombay."
}
},
{
"from_name": "label",
"id": "44761efac713410cb2ea6ae2f38bdc8e",
"to_name": "text",
"type": "labels",
"value": {
"end": 3822,
"labels": [
"FAC"
],
"start": 3738,
"text": "He was due to retire in January, 1955 but he was given extensions from time to time."
}
},
{
"from_name": "label",
"id": "506dfd24d61d45b2a7bdd28d157364a5",
"to_name": "text",
"type": "labels",
"value": {
"end": 3932,
"labels": [
"FAC"
],
"start": 3823,
"text": "The complainant, M. M. Patel (who will hereafter be referred to as the complainant) is a building contractor."
}
},
{
"from_name": "label",
"id": "7497fdf32c8949388b0d41cfa8cf065f",
"to_name": "text",
"type": "labels",
"value": {
"end": 4077,
"labels": [
"FAC"
],
"start": 3933,
"text": "It was proposed to reconstruct a light house at Tolkeshwar Point which is situated on the West 481 Coast, somewhere between Ratnagiri and Karwar"
}
},
{
"from_name": "label",
"id": "78d649de070b4deda23813cb6fd9a61e",
"to_name": "text",
"type": "labels",
"value": {
"end": 4152,
"labels": [
"FAC"
],
"start": 4078,
"text": "The complainant submitted a tender for the construction on March 21, 1956."
}
},
{
"from_name": "label",
"id": "5afe91e690304893a7e6a012367fe891",
"to_name": "text",
"type": "labels",
"value": {
"end": 4230,
"labels": [
"FAC"
],
"start": 4153,
"text": "That tender was accepted on June 30, 1956 and a work order was issued to him."
}
},
{
"from_name": "label",
"id": "0b68c5a7501d4cc2bb4980dc344ded53",
"to_name": "text",
"type": "labels",
"value": {
"end": 4330,
"labels": [
"FAC"
],
"start": 4231,
"text": "The general conditions governing the contract. are contained in the set of papers inviting tenders."
}
},
{
"from_name": "label",
"id": "1df022884c4f493ab307f05b08e99b24",
"to_name": "text",
"type": "labels",
"value": {
"end": 4384,
"labels": [
"FAC"
],
"start": 4330,
"text": "\nThe complainant commenced the work in November, 1956."
}
},
{
"from_name": "label",
"id": "19d404a1ed08459d9e47ff90862f6b85",
"to_name": "text",
"type": "labels",
"value": {
"end": 4523,
"labels": [
"FAC"
],
"start": 4385,
"text": "It would appear that the overseer supervising the work was not satisfied with the manner in which the contractor was carrying on the work."
}
},
{
"from_name": "label",
"id": "2b978763c9754938947dba11e0e13c17",
"to_name": "text",
"type": "labels",
"value": {
"end": 4727,
"labels": [
"FAC"
],
"start": 4524,
"text": "As a result, in December, 1956, the appellant had to bring the fact to the complainant's notice and warn him to carry out the work according to the specification contained in the notice inviting tenders."
}
},
{
"from_name": "label",
"id": "24449ce055b94176af16b57fd57ce0cc",
"to_name": "text",
"type": "labels",
"value": {
"end": 4850,
"labels": [
"FAC"
],
"start": 4727,
"text": "\nIt may be mentioned that just near the place where the light house was being constructed, there is a temple of Tolkeshwar."
}
},
{
"from_name": "label",
"id": "6b993080b8b84c44848d119017659e67",
"to_name": "text",
"type": "labels",
"value": {
"end": 4903,
"labels": [
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],
"start": 4851,
"text": "Attached to the temple there is a small dharmashala."
}
},
{
"from_name": "label",
"id": "8074c9f19dc8485c86c7c22445609f4c",
"to_name": "text",
"type": "labels",
"value": {
"end": 5028,
"labels": [
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],
"start": 4904,
"text": "There is also a well near the dharmashala, and that well is the only convenient source of water supply to the neighbourhood."
}
},
{
"from_name": "label",
"id": "7340b06c38d74ebe9b695959c6374823",
"to_name": "text",
"type": "labels",
"value": {
"end": 5095,
"labels": [
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],
"start": 5029,
"text": "At the relevant time the water in it was upto a depth of six feet."
}
},
{
"from_name": "label",
"id": "d8e9c741eb8e4c4ca0b3a4c4465bc1b5",
"to_name": "text",
"type": "labels",
"value": {
"end": 5259,
"labels": [
"FAC"
],
"start": 5096,
"text": "In the year 1957 appellant wrote a letter to the trustee of the temple asking his permission to take water from that well for supplying it to the Government staff."
}
},
{
"from_name": "label",
"id": "fb0ec7384d894c96ab45dc59bfc7c8d8",
"to_name": "text",
"type": "labels",
"value": {
"end": 5358,
"labels": [
"FAC"
],
"start": 5260,
"text": "The idea was to set up a pump in the well and lay out a pipeline leading up to the staff quarters."
}
},
{
"from_name": "label",
"id": "373c6f0a10d04a798b3610865619a89d",
"to_name": "text",
"type": "labels",
"value": {
"end": 5491,
"labels": [
"FAC"
],
"start": 5359,
"text": "In reply to the letter Mr. Gole who was the trustee, wrote that if this was done the water in the well will run out in a short time."
}
},
{
"from_name": "label",
"id": "7803714273d04d7db41d3a7aee34269d",
"to_name": "text",
"type": "labels",
"value": {
"end": 5764,
"labels": [
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],
"start": 5492,
"text": "He, therefore, suggested that the well be deepened and added : \"'However, the trustees have no objection to the Government's intention of laying out a pipeline from the well provided arrangements are made for supply of water to the temple and the small dharmshala nearby\"."
}
},
{
"from_name": "label",
"id": "48acc1631cc7469c84a55647c312c023",
"to_name": "text",
"type": "labels",
"value": {
"end": 5849,
"labels": [
"FAC"
],
"start": 5765,
"text": "It is not clear whether a pump was set up by the Government and a pipeline laid out."
}
},
{
"from_name": "label",
"id": "6bf04197fb874d349356de9ca27884f1",
"to_name": "text",
"type": "labels",
"value": {
"end": 5913,
"labels": [
"FAC"
],
"start": 5850,
"text": "But it is an admitted fact that the well has not been deepened."
}
},
{
"from_name": "label",
"id": "5d5050aefa6040308237b2bbf490ff88",
"to_name": "text",
"type": "labels",
"value": {
"end": 6155,
"labels": [
"FAC"
],
"start": 5914,
"text": "It is also admitted that the contractor used the well water for carrying on his work without 488 obtaining any express permission of the trustees and by the time he finished the work the water level had gone down to a little below two feet.\n"
}
},
{
"from_name": "label",
"id": "bc1378a93c4b4f33888ff91e9633c738",
"to_name": "text",
"type": "labels",
"value": {
"end": 6420,
"labels": [
"FAC"
],
"start": 6155,
"text": "According to the complainant in February, 1957, the appellant had paid a visit to Tolkeshwar and during his visit he told the complainant \"to behave like other contractors\" evidently suggesting that he should also pay him certain percentage of his bills as a bribe."
}
},
{
"from_name": "label",
"id": "1cd3f55eddb8470f87f5c52fb2393fcf",
"to_name": "text",
"type": "labels",
"value": {
"end": 6752,
"labels": [
"FAC"
],
"start": 6421,
"text": "It is sufficient to say that both the courts have found that the appellant did not visit Tolkeshwar in February, 1957, but the High Court has held that the appellant did make a demand for bribe in June, 1957, when he visited Tolkeshwar and that the complainant has made a mistake regarding the date on which the bribe was demanded."
}
},
{
"from_name": "label",
"id": "2fa724f75da24cb8aa886853443a393e",
"to_name": "text",
"type": "labels",
"value": {
"end": 6923,
"labels": [
"FAC"
],
"start": 6753,
"text": "On March 26, 1957 one Bhatia was posted as Overseer there and though on March 30, 1957. a cheque for Rs. 7,278 odd was given to the complainant on his first running bill."
}
},
{
"from_name": "label",
"id": "ccb6b8169349438688e625231dcdaca1",
"to_name": "text",
"type": "labels",
"value": {
"end": 7113,
"labels": [
"FAC"
],
"start": 6924,
"text": "Bhatia made a complaint to the appellant on April 2, 1957, that the complainant was not carrying on his work satisfactorily and was not affording facilities to him for supervising the work."
}
},
{
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"id": "f8b512981c424c8ab95a331e8e1160a5",
"to_name": "text",
"type": "labels",
"value": {
"end": 7233,
"labels": [
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],
"start": 7114,
"text": "On April 6, 1957, an Assistant Engineer attached to the appellant's charge inspected the work and found faults with it."
}
},
{
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"id": "f506109a6fb7412f8075f4330eb435f5",
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"end": 7377,
"labels": [
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],
"start": 7234,
"text": "On April 7, 1957, the complainant and some of his workmen assaulted Bhatia about which the latter made a complaint in writing to the appellant."
}
},
{
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"id": "3acd723f3ea44c23b0822b154a2d5770",
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"end": 7535,
"labels": [
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],
"start": 7378,
"text": "This complaint was eventually forwarded to the higher authorities who reprimanded the complainant and required him to give an undertaking to behave properly."
}
},
{
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"id": "b8433ddf29c34b6bad539a3a1592f7e0",
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"end": 7688,
"labels": [
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],
"start": 7536,
"text": "On April 9, 1957, the appellant wrote to Bhatia asking him to give instructions in writing to the complainant, instead of giving mere oral instructions."
}
},
{
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"labels": [
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"start": 7689,
"text": "He likewise wrote to the complainant asking him to carry on the work according to the instructions of Bhatia and also under- take not to use force."
}
},
{
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"value": {
"end": 7989,
"labels": [
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],
"start": 7837,
"text": "On May 13, 1957, the appellant reported to the Director General of light Houses that the complainant's work was bad and not according to specifications."
}
},
{
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"id": "8fe17dc6e7d8459fb0045345f9e598a5",
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"value": {
"end": 8139,
"labels": [
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],
"start": 7990,
"text": "He, therefore, suggested that 489 the complainant should be required to pull down the constructions which were not according to the specifi- cations."
}
},
{
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"end": 8179,
"labels": [
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],
"start": 8140,
"text": "The complainant protested against this."
}
},
{
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"end": 8363,
"labels": [
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],
"start": 8180,
"text": "On May 28, 1957, he presented a second running bill for Rs. 38,000 odd and though apparently a cheque was prepared it was not handed over to the complainant as the work was defective."
}
},
{
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"id": "7a5bd0aacda94b239407caf05586da4b",
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"end": 8488,
"labels": [
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],
"start": 8363,
"text": "\nOn August 1, 1957, the Director General of Light Houses instructed the appellant not to make any payment to the complainant."
}
},
{
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"value": {
"end": 8726,
"labels": [
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],
"start": 8489,
"text": "It would appear that after some corresponding between the complainant and the higher authorities he eventually pulled down the structures which were not according to the specifications and re-constructed them and was paid Rs. 27,569 odd."
}
},
{
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"id": "e6d5c95455ed49d988c93f163a7e9f8a",
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"end": 8756,
"labels": [
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],
"start": 8727,
"text": "That was on February 6, 1958."
}
},
{
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"labels": [
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],
"start": 8757,
"text": "It may be mentioned that this payment was made after the appellant visited the site on January 10, 1958, and made a favourable report to the Director General of Light Houses."
}
},
{
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"id": "21daae005d6f4ff98ce852b5c3f886a3",
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"value": {
"end": 9060,
"labels": [
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],
"start": 8932,
"text": "Mr. A.S.R. Chari for the appellant points out that it is not suggested that even at this time the appellant asked for any bribe."
}
},
{
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"id": "35c2c4ea7edb423cbb60df397808d461",
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"value": {
"end": 9383,
"labels": [
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],
"start": 9061,
"text": "Further payments of Rs. 35,000 odd, Rs. 7,000 odd, Rs. 21,000 odd, Rs. 6,200 odd, Rs. 9,190 odd, Rs. 18,900 odd were made between March 18, 1958, and February 9, 1959, and Mr. Chari again points out that there is no suggestion that any illegal gratification was demanded by the appellant before passing any of these bills."
}
},
{
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"id": "1892df4f585d4ec3bb89ca1c4af55a5e",
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"end": 9520,
"labels": [
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],
"start": 9384,
"text": "In the meanwhile reports that the work being done was unsatisfactory used to be made from time to time by the Overseer to the appellant."
}
},
{
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"id": "d3db1c6bc56d4d2eaa9a3430d27af84e",
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"end": 9754,
"labels": [
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],
"start": 9520,
"text": "\nAccording to the prosecution when the appellant visited the site on January 5, 1959, during the absence of the complainant he asked the complainant's brother-in-law jaikishen, who was in charge of the work for Rs. 300/- to Rs. 400/-."
}
},
{
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"id": "6cb27d297ada4357bc1176c0abf77ebb",
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"end": 9842,
"labels": [
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],
"start": 9755,
"text": "Jaikishen, however, did not pay the money on the pretext that he had no funds with him."
}
},
{
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"id": "c97761a7ff5e4958b0ba972cfecdcb86",
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"value": {
"end": 9984,
"labels": [
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],
"start": 9843,
"text": "This story, it may be mentioned was not believed by the Special judge and no reference to it has been made in the judgment of the High Court."
}
},
{
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"value": {
"end": 10106,
"labels": [
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],
"start": 9984,
"text": "\n490 At about that time the appellant was asked to level the ground adjoining the staff quarters and also deepen the well."
}
},
{
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"id": "cbfd7f5ef3464d5bb1b2bc876361832b",
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"end": 10165,
"labels": [
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],
"start": 10107,
"text": "This was extra work and the complainant declined to do it."
}
},
{
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"id": "6591bb33112a4aa885bab9275aa8a77c",
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"end": 10272,
"labels": [
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],
"start": 10166,
"text": "It is said that he was also asked to repair the temple and dharmshala and he refused to do that work also."
}
},
{
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"id": "d3d12341b8f74499a692a8c85af10919",
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"value": {
"end": 10372,
"labels": [
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],
"start": 10273,
"text": "On February 9, 1959, the complainant presented his ninth running bill which was for Rs. 22,000 odd."
}
},
{
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"id": "e33353927b7f4048997388bbae079ea0",
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"value": {
"end": 10425,
"labels": [
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],
"start": 10373,
"text": "On March 13, 1959, the appellant visited Tolkeshwar."
}
},
{
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"id": "07d079f4103f4742ad1c5241af31d1ce",
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"value": {
"end": 10524,
"labels": [
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],
"start": 10426,
"text": "During this visit he received a letter from D. S. Apte, D. W. 2 who used to look after the temple."
}
},
{
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"id": "5324f4a8fda24442b0f1caf16eb332b4",
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"value": {
"end": 10866,
"labels": [
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],
"start": 10525,
"text": "In that letter he brought to the notice of the appellant that the temple was 400 years old, that small and petty repairs to the temple had become necessary, that it was also necessary to paint the temple both from inside and outside as also to provide a water tap in the temple and construct a road connecting the temple with the lighthouse."
}
},
{
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"id": "c0c5c2c0b04f466bb2cf273825fd69af",
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"value": {
"end": 10953,
"labels": [
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],
"start": 10867,
"text": "He, therefore, requested the appellant to consider these requirements sympathetically."
}
},
{
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"id": "e14fcf184f8b4996ac964b2366e193da",
"to_name": "text",
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"value": {
"end": 11090,
"labels": [
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],
"start": 10954,
"text": "According to the appellant, it is in pursuance of this request that he suggested to the complainant to do some work free for the temple."
}
},
{
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"id": "dff8e51112a940099ecdd77de3cdd978",
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"type": "labels",
"value": {
"end": 11284,
"labels": [
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],
"start": 11091,
"text": "It may be mentioned that the complainant had actually taken up his residence in the dharmshala attached to the temple and had used the main temple hall for sometime for storing his cement bags."
}
},
{
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"id": "84533cf5ec364c2f8c8795da086dda7b",
"to_name": "text",
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"value": {
"end": 11337,
"labels": [
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],
"start": 11285,
"text": "Thus in addition to using the water from the temple."
}
},
{
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"id": "a9d6fdbe05e840c5a8a858de3a3b0e9e",
"to_name": "text",
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"value": {
"end": 11390,
"labels": [
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],
"start": 11338,
"text": "well he had made ample use of the temple properties."
}
},
{
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"id": "19ea1273e4044c30ac19daaab8d2ff68",
"to_name": "text",
"type": "labels",
"value": {
"end": 11521,
"labels": [
"FAC"
],
"start": 11391,
"text": "According to Mr. Chari it was apparently for this reason that the appellant made the aforementioned suggestion to the complainant."
}
},
{
"from_name": "label",
"id": "c9dbca5da4804d5db82aba093366d0fd",
"to_name": "text",
"type": "labels",
"value": {
"end": 11713,
"labels": [
"FAC"
],
"start": 11522,
"text": "It is an admitted4 fact that though the cheque for payment of Rs. 22,000 odd for the ninth running bill was prepared on March 23, 1959, it was not handed over to the complainant on that date."
}
},
{
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"id": "af4ae44c0b5c43ee8263ba852cbc8341",
"to_name": "text",
"type": "labels",
"value": {
"end": 11959,
"labels": [
"FAC"
],
"start": 11714,
"text": "It is the complainant's case that the appellant was demanding 10% of the bills by way of illegal gratification, that upon the complainant refusing to pay that amount the appellant brought down the demand to 3 or 4% and ultimately to Rs.\n1,000/-."
}
},
{
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"id": "3d4fbdbfa8d54e4989be6c66839e8ff6",
"to_name": "text",
"type": "labels",
"value": {
"end": 12087,
"labels": [
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],
"start": 11960,
"text": "The prosecution case is that it is for compelling the complaint 491 to disgorge this amount that the cheque was being withheld."
}
},
{
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"id": "ff272568befb49acba915e06cea2993b",
"to_name": "text",
"type": "labels",
"value": {
"end": 12257,
"labels": [
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],
"start": 12087,
"text": "\nAccording to the appellant he refused to certify completion of the work unless the complainant undertook to level the ground and deepen the well and for no other reason."
}
},
{
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"id": "8f26fb41de4c4c2a80919fe727935ccd",
"to_name": "text",
"type": "labels",
"value": {
"end": 12465,
"labels": [
"FAC"
],
"start": 12258,
"text": "He admitted that this was extra work but he said that the complainant was required under the contract to do the extra work though of course he would have been entitled to separate payment with respect to it."
}
},
{
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"id": "59079c686be7466e9a7b8656de2ca0d7",
"to_name": "text",
"type": "labels",
"value": {
"end": 12568,
"labels": [
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],
"start": 12466,
"text": "It was for this reason alone that he had asked the complainant to see him in Bombay on March 26, 1959."
}
},
{
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"id": "bd06a5c8245f4ed9be5a74d2235ea1f5",
"to_name": "text",
"type": "labels",
"value": {
"end": 12781,
"labels": [
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],
"start": 12569,
"text": "The complainant on being informed of this, wrote to the appellant's office on March 27, 1959, saying that the Cheque should not be sent by post but should be 'handed over to him personally when he visited Bombay."
}
},
{
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"id": "e0bee5db18ac4114a16e9fec939aeb59",
"to_name": "text",
"type": "labels",
"value": {
"end": 12858,
"labels": [
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],
"start": 12781,
"text": "\nOn March 28, 1959, this postcard was brought to the notice of the appellant."
}
},
{
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"id": "2ebde26303f1482a81fe36dc4f803432",
"to_name": "text",
"type": "labels",
"value": {
"end": 13113,
"labels": [
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],
"start": 12859,
"text": "He was going on a short leave and, therefore, he made an endorsement on that postcard that the complainant should be asked to see him on April 6, 1959, by which time he would be back on duty and that the complainant would be given the cheque on that day."
}
},
{
"from_name": "label",
"id": "ad2f7fd7fc594e56b03b664e782deeb1",
"to_name": "text",
"type": "labels",
"value": {
"end": 13369,
"labels": [
"FAC"
],
"start": 13114,
"text": "On March 31, 1959, the appellant learnt that a cheque for Rs. 32,200 odd on account of the tenth running bill had been prepared and he, therefore, asked for payment of the bill also but the officer in charge did not hand over either of the cheques to him."
}
},
{
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"id": "d25277243e204a95834f083a0f1f20be",
"to_name": "text",
"type": "labels",
"value": {
"end": 13459,
"labels": [
"FAC"
],
"start": 13370,
"text": "Thereafter the complainant went to the anti-corruption department and lodged a complaint."
}
},
{
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"id": "144fc8c9fd0c4e0ead61eefc06dbea8c",
"to_name": "text",
"type": "labels",
"value": {
"end": 13556,
"labels": [
"FAC"
],
"start": 13460,
"text": "On April 6, 1959, the complainant. went to the office of the appellant and saw him in his cabin."
}
},
{
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"id": "ff7c18472bff4887b8edc12934a4f849",
"to_name": "text",
"type": "labels",
"value": {
"end": 13626,
"labels": [
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],
"start": 13557,
"text": "There the cheque was handed over by the appellant to the complainant."
}
},
{
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"id": "b9c155ede93f4ecb817e1835811b53e0",
"to_name": "text",
"type": "labels",
"value": {
"end": 13728,
"labels": [
"FAC"
],
"start": 13627,
"text": "But before that., according to the complainant, he paid Rs. 1,000 in currency notes to the appellant."
}
},
{
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"id": "8c0a9e3974844755b34a69ed3ed367bc",
"to_name": "text",
"type": "labels",
"value": {
"end": 13832,
"labels": [
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],
"start": 13729,
"text": "Having done that he came out and then certain police officials accompanied by panchas entered the room."
}
},
{
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"id": "d2a5f9a823b04befa035daa84cdc5afe",
"to_name": "text",
"type": "labels",
"value": {
"end": 13963,
"labels": [
"FAC"
],
"start": 13833,
"text": "On being required to produce the money by the police officials the appellant promptly took out the currency notes from his pocket."
}
},
{
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"id": "dff0c787923c44669a4baf9af20d7e1d",
"to_name": "text",
"type": "labels",
"value": {
"end": 14211,
"labels": [
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],
"start": 13964,
"text": "492 It may be mentioned that the currency notes were besmeared with enthracene powder and it is common ground that traces of enthracene powder were found not only on the pocket of the appellant but also on his fingers and those of the complainant."
}
},
{
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"id": "0ab56bdd95454ff3bd3ea0291732b1ec",
"to_name": "text",
"type": "labels",
"value": {
"end": 14291,
"labels": [
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],
"start": 14212,
"text": "The currency notes were on examination also found to show traces of enthracene."
}
},
{
"from_name": "label",
"id": "98f2d70168c34db2b458ea179bd77f3c",
"to_name": "text",
"type": "labels",
"value": {
"end": 14364,
"labels": [
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],
"start": 14292,
"text": "It may be mentioned that the cheque was not subjected to the usual test."
}
},
{
"from_name": "label",
"id": "8b8d8f27b5d74e1c9380a947c1bb05fa",
"to_name": "text",
"type": "labels",
"value": {
"end": 14763,
"labels": [
"FAC"
],
"start": 14365,
"text": "The appellant's explanation is that after he handed over the cheque to the complainant the letter said that he was really not in a position to do the repair work etc., to the temple and dharmshala because he did not have enough men even for doing the work which was undertaken by him and that he was therefore handing over to the appellant Rs. 1,000 for being transmitted to the temple authorities."
}
},
{
"from_name": "label",
"id": "0aa678cbe3b24468887d08f6f951798f",
"to_name": "text",
"type": "labels",
"value": {
"end": 14993,
"labels": [
"ANALYSIS"
],
"start": 14764,
"text": "His grievance is that by not subjecting the cheque to the usual test he has been deprived of the opportunity of establishing his defence that the cheque was handed over by him to the complainant even before he received the money."
}
},
{
"from_name": "label",
"id": "9f3e2772df554d7ba08a90675337a763",
"to_name": "text",
"type": "labels",
"value": {
"end": 15108,
"labels": [
"ANALYSIS"
],
"start": 14994,
"text": "It does not appear, however, that any grievance was made of this fact before the special Judge who tried the case."
}
},
{
"from_name": "label",
"id": "08f70f2018004cdd8b09ca0f45871576",
"to_name": "text",
"type": "labels",
"value": {
"end": 15171,
"labels": [
"ANALYSIS"
],
"start": 15108,
"text": "\nThus the receipt of Rs. 1,000/- was admitted by the appellant."
}
},
{
"from_name": "label",
"id": "720b64890b474d86b52e00f636134846",
"to_name": "text",
"type": "labels",
"value": {
"end": 15233,
"labels": [
"ANALYSIS"
],
"start": 15172,
"text": "This was admittedly not the appellant's 'legal remuneration'."
}
},
{
"from_name": "label",
"id": "a2cd2001406d49ab9783e875d6978ed3",
"to_name": "text",
"type": "labels",
"value": {
"end": 15369,
"labels": [
"ANALYSIS"
],
"start": 15234,
"text": "The first question, therefore, is whether a presumption under Sub-s. 1 of s. 4 of the prevention of Corruption Act arises in this case."
}
},
{
"from_name": "label",
"id": "51b103ab09454653ad968c18c56b6855",
"to_name": "text",
"type": "labels",
"value": {
"end": 16104,
"labels": [
"STA"
],
"start": 15370,
"text": "That provision runs thus: \"Where in any trial of an offence punishable under section 161 or section 165 of the Indian Penal Code it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or 493 obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said section 161, Sit or,, as the case may be, without consideration or for a consideration which he knows to be inadequate.\"\n "
}
},
{
"from_name": "label",
"id": "1a84c8bfa72b462890a68d350b67a290",
"to_name": "text",
"type": "labels",
"value": {
"end": 16359,
"labels": [
"ARG_PETITIONER"
],
"start": 16104,
"text": "It was contended that the use of the word \"gratification' in sub-s. (1) of s. 4 emphasises that the mere receipt of any money does not justify the raising of a presumption thereunder and that something more than the mere receipt of money has to be proved."
}
},
{
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"value": {
"end": 16452,
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],
"start": 16360,
"text": "A similar argument was raised before this Court in C. 1. Emden v. State of Uttar Pradesh(1)."
}
},
{
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"id": "1dc5b1945e804443881266b2c168ce1b",
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"labels": [
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],
"start": 16453,
"text": "Dealing with it this Court has pointed out that what the prosecution has to prove is that the accused person has received \"gratification other than legal remuneration\"\n and that when it is shown that he has received a certain sum of money which was not a legal remuneration, then the condition prescribed by this section is satisfied."
}
},
{
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"end": 16992,
"labels": [
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],
"start": 16788,
"text": "This Court then proceeded to observe: \"If the word \"gratification' is construed to mean money paid by way of a bribe then it would be futile or superfluous to prescribe for the raising of the presumption."
}
},
{
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"id": "393db374ad574c518aa064bebb7792ee",
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"end": 17244,
"labels": [
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],
"start": 16992,
"text": "\n Technically it may no doubt be suggested that the object which the statutory presumption serves on this construction is that the court may then presume that the money was paid by way of a bribe as a motive or reward as required by s. 161 of the Code."
}
},
{
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"id": "214751919e6a458c9ef917bacc51900e",
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"end": 17377,
"labels": [
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],
"start": 17245,
"text": "In our opinion this could not have been the intention of the Legislature in prescribing the statutory presumption under s. 4 (1)\".\n "
}
},
{
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"id": "b59360b27d20432dbc2c0dce81ab5f16",
"to_name": "text",
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"end": 17486,
"labels": [
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],
"start": 17377,
"text": "This Court further said that there is yet another consideration which supports the construction placed by it."
}
},
{
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"id": "6442d428f49b49dcb6178010ef10cd8a",
"to_name": "text",
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"end": 17972,
"labels": [
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],
"start": 17486,
"text": "\n In this connection a reference was made to s. 165 of the Code and it was observed: (1) (1960) 2 S.C.R. 592.\n 494 \"It cannot be suggested that the relevant clause in s. 4 (1) which deals with the acceptance of any valuable things hold be interpreted to impose upon the prosecution an obligation to prove not only that the valuable thing has been received by the accused but that it has been received by him without consideration or for a consideration which he knows to be inadequate."
}
},
{
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"id": "c3617cc09edc4eac93e8a7c8ec72f1e0",
"to_name": "text",
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"value": {
"end": 18156,
"labels": [
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],
"start": 17973,
"text": "The plain meaning of this clause undoubtedly requires the presumption to be raised whenever it is shown that the valuable thing has been received by the accused without anything more."
}
},
{
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"id": "9428f05282124861a993bcbc3e6b2dcb",
"to_name": "text",
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"value": {
"end": 18437,
"labels": [
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],
"start": 18157,
"text": "If that is the true position in respect of the construction of this part of s. 4 (1) it would be unreasonable to hold that the word 'gratification' in the same clause imports the necessity to prove not only the payment of money but the incriminating character of the said payment."
}
},
{
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"id": "2409ad4288fc47d5aa56e717e0a3cfdf",
"to_name": "text",
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"value": {
"end": 18618,
"labels": [
"ANALYSIS"
],
"start": 18438,
"text": "It is true that the Legislature 'might have used the word 'money' or 'consideration' as has been done by the relevant section of the English statute;...........\n "
}
},
{
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"id": "8a74394d9ad44666ac4b762cf1bc4da3",
"to_name": "text",
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"value": {
"end": 18789,
"labels": [
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],
"start": 18618,
"text": "That being the legal position it must be held the requirements of sub-s. (1) of s. 4 have been fulfilled in the present case and the presumption thereunder must be raised."
}
},
{
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"id": "27a299fa4d3f4c37a67d500d615e4095",
"to_name": "text",
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"value": {
"end": 19002,
"labels": [
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],
"start": 18790,
"text": "The next contention of Mr. Chari is that the accused person is entitled to rebut the presumption arising against him by virtue of a statutory provision by offering an explanation which is reasonable and probable."
}
},
{
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"id": "54f8012880d4476aa5ecaad390000046",
"to_name": "text",
"type": "labels",
"value": {
"end": 19230,
"labels": [
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],
"start": 19003,
"text": "According to him the complainant evidently nursed a grievance against the appellant because the latter used to find fault with his work that the complainant was required to demolish some construction and do the work over again."
}
},
{
"from_name": "label",
"id": "51b7d31370b84f51bae2d24d6549e9da",
"to_name": "text",
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"value": {
"end": 19513,
"labels": [
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],
"start": 19231,
"text": "He further points out that the complainant also felt aggrieved because of the appellant's insistence on the complainant doing the work of leveling the ground adjoining 495 the staff quarters and deepening the temple well even though he would have been paid separately for this work."
}
},
{
"from_name": "label",
"id": "f278ba565dbd4e769d891372e36b9c2f",
"to_name": "text",
"type": "labels",
"value": {
"end": 19660,
"labels": [
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],
"start": 19514,
"text": "It is because of these circumstances that according to Mr. Chari, the complainant conceived the idea of laying a trap for involving the appellant."
}
},
{
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"id": "3fd2ad6939ed434591f99c9c1b96e12b",
"to_name": "text",
"type": "labels",
"value": {
"end": 19804,
"labels": [
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],
"start": 19661,
"text": "He points out that apart from the bare statement of the complainant there is nothing to show that the appellant had been asking for any bribes."
}
},
{
"from_name": "label",
"id": "41fc68bf46b64ae5b317f99df9a25431",
"to_name": "text",
"type": "labels",
"value": {
"end": 19911,
"labels": [
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],
"start": 19805,
"text": "No doubt the appellant had suggested that some work for the temple should be done free by the complainant."
}
},
{
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"id": "97a473d327e34fbfa838615fa5428de9",
"to_name": "text",
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"value": {
"end": 20087,
"labels": [
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],
"start": 19912,
"text": "But that was merely by way of request and nothing more and that there is nothing to show that he was using his official position to coerce the complainant for doing this work."
}
},
{
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"id": "7282c89560ae4c58af91f7a0e81dcc55",
"to_name": "text",
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"value": {
"end": 20443,
"labels": [
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],
"start": 20088,
"text": "He has taken us through considerable portions of the evidence on record to show that the complainant was not the kind of man who could be easily cowed down and it is unthinkable that the appellant would have tried to use pressure tactics against the complainant either for doing some work for the temple or for obtaining illegal gratification for himself."
}
},
{
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"id": "74a378ff3b8244d58251171f98223733",
"to_name": "text",
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"value": {
"end": 20568,
"labels": [
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],
"start": 20444,
"text": "And in this connection he referred in Particular to a reply sent by the complainant to the Director General of Light Houses."
}
},
{
"from_name": "label",
"id": "dd835616d87f42b2bfe0c95b64ec06a4",
"to_name": "text",
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"value": {
"end": 20763,
"labels": [
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],
"start": 20568,
"text": "\nThen he points out that it has not been established that though bills worth a lakh of rupees or so were already passed for payment by the appellant, he had used any pressure for obtaining bribe."
}
},
{
"from_name": "label",
"id": "a6ba2ae4ad2b4d8ca9181f8f2403680e",
"to_name": "text",
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"value": {
"end": 20956,
"labels": [
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],
"start": 20764,
"text": "It would, therefore, not be reasonable to hold that the appellant had withheld the ninth bill just for coercing the complainant to pay a thousand rupees to him by way of illegal gratification."
}
},
{
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"id": "9eec91c6f9e843f290061ed89936ec9b",
"to_name": "text",
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"value": {
"end": 21166,
"labels": [
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],
"start": 20957,
"text": "He then pointed out that actually on March 19, 1959, the appellant had applied to the Director General of Light Houses for permission to retire as from June 30, and requested him to settle his gratuity amount."
}
},
{
"from_name": "label",
"id": "36402aad3ed346eab6cf075f8b57a854",
"to_name": "text",
"type": "labels",
"value": {
"end": 21393,
"labels": [
"ANALYSIS"
],
"start": 21167,
"text": "In these circumstances and knowing full well the kind of person the complainant was, would the appellant, says Mr. Chari, have been foolish enough to press him for a comparatively trivial amount of Rs. 1,000/- by way of bribe?"
}
},
{
"from_name": "label",
"id": "b5a5e48354db4ea48b0ed2d1f20d1b0b",
"to_name": "text",
"type": "labels",
"value": {
"end": 21685,
"labels": [
"ANALYSIS"
],
"start": 21394,
"text": "He, therefore, urges that in the circumstances the explanation 496 offered by the appellant which is to the effect that the complainant voluntarily paid to him a sum of Rs. 1,000/- on April 6, 1959, for being passed on to the temple authorities should be accepted as reasonable and probable."
}
},
{
"from_name": "label",
"id": "0be9cea532494f7bad05cdb3fdeafa03",
"to_name": "text",
"type": "labels",
"value": {
"end": 21972,
"labels": [
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],
"start": 21686,
"text": "His grievance is that the High Court has misstated and misapplied the law when it observed in its judgment: \"The usual standard of an explanation given by the accused which may reasonably be true, though the Court does not accept it to be true, cannot be enough to discharge the burden."
}
},
{
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"id": "c655f651226649a98ae71ca2f7396980",
"to_name": "text",
"type": "labels",
"value": {
"end": 22087,
"labels": [
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],
"start": 21973,
"text": "It is not necessary to consider what evidence would satisfy the words 'until the contrary is proved' in this case."
}
},
{
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"id": "634c03f5d6da4289a36b3d7a5ad12f34",
"to_name": "text",
"type": "labels",
"value": {
"end": 22345,
"labels": [
"ANALYSIS"
],
"start": 22088,
"text": "The least that can be said is that the Court must be satisfied from the material placed before it on behalf of the. accused either from the evidence for the prosecution or for the accused that it creates a reasonable doubt about the prosecution case itself."
}
},
{
"from_name": "label",
"id": "3ff12243a8f94679bfa01c1c287d202f",
"to_name": "text",
"type": "labels",
"value": {
"end": 22538,
"labels": [
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],
"start": 22346,
"text": "It is not necessary to go beyond this in this case since we are satisfied that the circumstances and the evidence placed before us do not create a reasonable doubt about the prosecution case.\""
}
},
{
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"id": "0f8100478fc7434aa0524e35a1ab79f9",
"to_name": "text",
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"value": {
"end": 22800,
"labels": [
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],
"start": 22538,
"text": "\nMr. Chari contends that upon the view taken by the High Court it would mean that an accused person is required to discharge more or less the same burden for proving his innocence which the prosecution has to discharge for proving the guilt of an accused person."
}
},
{
"from_name": "label",
"id": "ca56c812895b406eb0502fc4255bb56e",
"to_name": "text",
"type": "labels",
"value": {
"end": 23061,
"labels": [
"ANALYSIS"
],
"start": 22801,
"text": "He referred us to the decision in Otto George Gfeller v. The King (1) and contended that whether a presumption arises from the common course of human affairs or from a statute there is no difference as to the manner in which that presumption could be rebutted."
}
},
{
"from_name": "label",
"id": "29947a28937f4cfba677a4fd828a8772",
"to_name": "text",
"type": "labels",
"value": {
"end": 23568,
"labels": [
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],
"start": 23062,
"text": "In the decision referred to above the Privy Council, when dealing with a case from Nigeria, held that if an explanation was given which the jury think might reasonably be true and which is consistent with innocence, although they were not convinced of its truth, the accused person would be (1) A. 1. R. (1943) P. C. 211.\n 497 entitled to acquittal inasmuch as the prosecution would have failed to discharge the duty cast upon it of satisfying the jury beyond 'reasonable doubt of the guilt of the accused."
}
},
{
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"id": "a67ec0e5551e4a1cb9f6641d69c14edb",
"to_name": "text",
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"value": {
"end": 23882,
"labels": [
"ANALYSIS"
],
"start": 23568,
"text": "\nThat, however, was a case where the question before the jury was whether a presumption of the kind which in India may be raised under s. 114 of the Evidence Act could be raised from the fact of possession of goods recently stolen, that the possessor of the goods was either a thief or receiver of stolen property."
}
},
{
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"id": "5d5d214d599049a3aba128a58c1ef549",
"to_name": "text",
"type": "labels",
"value": {
"end": 24029,
"labels": [
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],
"start": 23883,
"text": "In the case before us, however, the presumption arises not under s. 114 of the Evidence Act but under s. 4(1) of the Prevention of Corruption Act."
}
},
{
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"id": "0e0a1e700d4141efa606a39222dcd3fa",
"to_name": "text",
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"value": {
"end": 24638,
"labels": [
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],
"start": 24030,
"text": "It is well to bear in mind that whereas under s. 114 of the Evidence Act it is open to the Court to draw or not to draw a presumption as to the existence of one fact from the proof of another fact and it is not obligatory upon the court to draw such presumption, under sub-s. (1) of s. 4, however, if a certain fact is proved, that is, where any gratification (other than legal gratification) or any valuable thing is proved to have been received by an accused person the court is required to draw a presumption that that person received that thing as a motive of reward such as is mentioned in s.\n161 I.P.C."
}
},
{
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"id": "b57d6d96653b4dfd8ed630b6a442c58f",
"to_name": "text",
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"value": {
"end": 24814,
"labels": [
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],
"start": 24639,
"text": "Therefore, the Court has no choice in the matter,, once it is established that the accused person has received a sum of money which was not due to him as a legal remuneration."
}
},
{
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"id": "d3a0e0c45f1945ae887b445a26d2b4d7",
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"value": {
"end": 25053,
"labels": [
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],
"start": 24815,
"text": "Of course, it is open to that person to show that though that money was not due to him as legal remuneration it was legally due to him in some other manner or that he had received it under a transaction or an arrangement which was lawful."
}
},
{
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"id": "3e3d3b03092e43a1a112f615924da5f0",
"to_name": "text",
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"value": {
"end": 25342,
"labels": [
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],
"start": 25054,
"text": "\"-The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under s. 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable."
}
},
{
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"id": "bea191a31aa94c8c8cc305db041a20ca",
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"value": {
"end": 25403,
"labels": [
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],
"start": 25343,
"text": "It must further be shown that the explanation is a true one."
}
},
{
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"id": "4fad650c808d4de0b84f34eda70869eb",
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"value": {
"end": 25601,
"labels": [
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],
"start": 25404,
"text": "The words 'unless the contrary is proved' which occur 498 in this provision make it clear that the presumption has to be rebutted by 'Proof' and not by a bare explanation which is merely plausible."
}
},
{
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"id": "a24979e60f94458ca55ce3f5856428d0",
"to_name": "text",
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"value": {
"end": 25824,
"labels": [
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],
"start": 25602,
"text": "A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that 'a reasonable man would act on the supposition that it exists."
}
},
{
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"id": "9f22a4f03ae64ab182ab78c73e6ec588",
"to_name": "text",
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"value": {
"end": 25954,
"labels": [
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],
"start": 25825,
"text": "Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted."
}
},
{
"from_name": "label",
"id": "eb379461697545cdbb1301b56bc2176a",
"to_name": "text",
"type": "labels",
"value": {
"end": 26311,
"labels": [
"PRE_RELIED"
],
"start": 25954,
"text": "\nHow the burden which has shifted to the accused under s.\n4(1) of the prevention of Corruption Act is to be discharged has been considered by this Court in State of Madras v. A.\nVaidyanatha Iyer(1) where it has been observed : \"Therefore, where it is proved that a gratification has been accepted, then the presumption shall at once arise under the section."
}
},
{
"from_name": "label",
"id": "74ecc6b0c95a4f2dbb2f7b707476f9fd",
"to_name": "text",
"type": "labels",
"value": {
"end": 26441,
"labels": [
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],
"start": 26312,
"text": "It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused."
}
},
{
"from_name": "label",
"id": "e5983635f0114e5b824a0ad5011dfa8a",
"to_name": "text",
"type": "labels",
"value": {
"end": 26606,
"labels": [
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],
"start": 26442,
"text": "It may here be mentioned that the legislature has chosen to use the words 'shall presume' and not 'may presume', the former a presumption of law and latter of fact."
}
},
{
"from_name": "label",
"id": "c9b48b0870ee4055bd6c2b320e3e09e8",
"to_name": "text",
"type": "labels",
"value": {
"end": 26912,
"labels": [
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],
"start": 26607,
"text": "Both these phrases have been defined in the Indian Evidence Act, no doubt for the purpose of that Act, but s. 4 of the Prevention of Corruption Act is in pari materia with the Evidence Act because it deals with a branch of law of evidence, i.e., presumptions, and, therefore, should have the same meaning."
}
},
{
"from_name": "label",
"id": "8beff80946e74018b9c581f932b47f5e",
"to_name": "text",
"type": "labels",
"value": {
"end": 27124,
"labels": [
"ANALYSIS"
],
"start": 26913,
"text": "\"Shall presume' has been defined in the Evidence Act as follows : \"'Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved.\""
}
},
{
"from_name": "label",
"id": "9cdb189ad1b34ac7b6f21136469a62b6",
"to_name": "text",
"type": "labels",
"value": {
"end": 27427,
"labels": [
"PRE_RELIED"
],
"start": 27124,
"text": "\nIt is a presumption of law and therefore it is obligatory on the court to raise this presumption (1) [1958] S. C. R. 580.\n 499 in every case brought under s. 4 of the Prevention of Corruption Act because unlike the case of presumption of fact, presumptions of law constitute a branch of jurisprudence.\""
}
},
{
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"id": "7ed9a1701c524b4989cc2e7c6639b314",
"to_name": "text",
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"value": {
"end": 27612,
"labels": [
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],
"start": 27427,
"text": "\nThese observations were made by this Court while dealing with an appeal against an order of the Madras High Court setting aside the conviction of an accused person under s.\n161, I.P.C."
}
},
{
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"id": "058c8013ba054cb19801d38116ccc696",
"to_name": "text",
"type": "labels",
"value": {
"end": 27770,
"labels": [
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],
"start": 27613,
"text": "In that case the accused, an Income-tax Officer, was alleged to have received a sum of Rs. 1,000 as bribe from an assessee whose case was pending before him."
}
},
{
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"id": "e9845812e6964dfaa0c5fa4310aace51",
"to_name": "text",
"type": "labels",
"value": {
"end": 27831,
"labels": [
"ANALYSIS"
],
"start": 27771,
"text": "His defence was that he had taken that money by way of loan."
}
},
{
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"id": "e14e461378334bba892101912bbfb59e",
"to_name": "text",
"type": "labels",
"value": {
"end": 27960,
"labels": [
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],
"start": 27832,
"text": "The High Court found as a fact that the accused was in need of Rs. 1,000/- and had asked the assessee for a loan of that amount."
}
},
{
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"id": "b7f0d153653148b28650a584e134a1cb",
"to_name": "text",
"type": "labels",
"value": {
"end": 28223,
"labels": [
"ANALYSIS"
],
"start": 27961,
"text": "It was of opinion that the versions given by the assessee and the accused were balanced, that the bribe seemed to tilt the scale in favour of the accused and that the evidence was not sufficient to show that the explanation offered cannot reasonably be rejected."
}
},
{
"from_name": "label",
"id": "ee4a8bb2db434bc18b23e1d536240dc7",
"to_name": "text",
"type": "labels",
"value": {
"end": 28324,
"labels": [
"ANALYSIS"
],
"start": 28224,
"text": "This Court reversed the High Court's decision holding that the approach of the High Court was wrong."
}
},
{
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"id": "96dda8392c0049bab1445ee4a21bb8f7",
"to_name": "text",
"type": "labels",
"value": {
"end": 28556,
"labels": [
"ANALYSIS"
],
"start": 28325,
"text": "The basis of the decision of this Court evidently was that a presumption of law cannot be successfully rebutted by merely raising a probability, however reasonable, that the actual fact is the reverse of the fact which is presumed."
}
},
{
"from_name": "label",
"id": "ff6263b5dc274dbdbdcd2cb9cc063782",
"to_name": "text",
"type": "labels",
"value": {
"end": 28657,
"labels": [
"ANALYSIS"
],
"start": 28557,
"text": "Something more than raising a reasonable probability is required for rebutting a presumption of law."
}
},
{
"from_name": "label",
"id": "ba9cd4e0e6c6485998a159fe1f2db56f",
"to_name": "text",
"type": "labels",
"value": {
"end": 28875,
"labels": [
"ANALYSIS"
],
"start": 28658,
"text": "The bare word of the appellant is not enough and it was necessary for him to show that upon the established practice his explanation was so probable that a prudent man ought, in the circumstances, to have accepted it."
}
},
{
"from_name": "label",
"id": "1ae36fdb6fdf4ac18e9b6faafd946ca1",
"to_name": "text",
"type": "labels",
"value": {
"end": 29056,
"labels": [
"ANALYSIS"
],
"start": 28876,
"text": "According to Mr. Chari here, there is some material in addition to the explanation offered by the appellant which will go to rebut the Presumption raised under s. 4 (1) of the Act."
}
},
{
"from_name": "label",
"id": "d7b80e8eec2542a5b9af6a18e9a5af57",
"to_name": "text",
"type": "labels",
"value": {
"end": 29280,
"labels": [
"ANALYSIS"
],
"start": 29057,
"text": "He points out that there is the letter from D. S.\nApte addressed to the appellant, defence Ex. No. 32 collectively, which the appellant claims to have received on or after March 500 13, 1959, during his visit to Tolkeshwar."
}
},
{
"from_name": "label",
"id": "8c30675696714c3682bc3f47fd205301",
"to_name": "text",
"type": "labels",
"value": {
"end": 29478,
"labels": [
"ANALYSIS"
],
"start": 29281,
"text": "He says that this letter was produced by him immediately when the police official came to his cabin on April 6, 1959 and recovered from him a sum of Rs. 1,000/which the complainant had paid to him."
}
},
{
"from_name": "label",
"id": "9ffb1a6c18d347ae8a3446ec26e0e3a8",
"to_name": "text",
"type": "labels",
"value": {
"end": 29647,
"labels": [
"ANALYSIS"
],
"start": 29479,
"text": "He points out that this letter was in the same pocket in which the money was kept and says that it is con- clusive to disprove the money being received by way of bribe."
}
},
{
"from_name": "label",
"id": "86217558421e43efb50065ddd90e39d1",
"to_name": "text",
"type": "labels",
"value": {
"end": 29694,
"labels": [
"ANALYSIS"
],
"start": 29648,
"text": "He also relise upon the evidence of D.S. Apte."
}
},
{
"from_name": "label",
"id": "54bc3dda15624ada98d4af4e8c232d13",
"to_name": "text",
"type": "labels",
"value": {
"end": 29755,
"labels": [
"ANALYSIS"
],
"start": 29695,
"text": "That evidence, however, does not go further than the letter."
}
},
{
"from_name": "label",
"id": "c77f80f6ce624ff4a604b296b3d6daba",
"to_name": "text",
"type": "labels",
"value": {
"end": 30128,
"labels": [
"ANALYSIS"
],
"start": 29756,
"text": "No evidence was, however brought to our notice to show that the appellant had at any time asked the complainant to give any money by way of donation to the temple and indeed there is evidence to the contrary to the effect that none of the persons interested in the temple had authorised the appellant to collect any money for meeting the expenses of repairs to the temple."
}
},
{
"from_name": "label",
"id": "4e2fbbb3d5564f7a89fe32de4fc9670d",
"to_name": "text",
"type": "labels",
"value": {
"end": 30431,
"labels": [
"ANALYSIS"
],
"start": 30129,
"text": "It is because of these circumstances and because it believed the statement of the complainant that the appellant had asked him for a bribe that the High Court did not accept the appellant's explanation that the money was paid by the complainant to him for being passed on to the temple trustee as true."
}
},
{
"from_name": "label",
"id": "83a891dfc17c43fe9c58086f1c6b07f3",
"to_name": "text",
"type": "labels",
"value": {
"end": 30516,
"labels": [
"ANALYSIS"
],
"start": 30432,
"text": "The High Court disbelieved the evidence of Apte and held the letter to be worthless."
}
},
{
"from_name": "label",
"id": "f95c2508fea740158595534e4179b473",
"to_name": "text",
"type": "labels",
"value": {
"end": 30591,
"labels": [
"ANALYSIS"
],
"start": 30516,
"text": "\nIn doing so it cannot be said that the High Court' has acted unreasonably."
}
},
{
"from_name": "label",
"id": "1d99970aa19d4c2c8f681a976de158e0",
"to_name": "text",
"type": "labels",
"value": {
"end": 30697,
"labels": [
"RATIO"
],
"start": 30592,
"text": "It would therefore not be appropriate for us to place our own assessment on these two pieces of evidence."
}
},
{
"from_name": "label",
"id": "58fe37025c734c75b180daf64def229e",
"to_name": "text",
"type": "labels",
"value": {
"end": 30926,
"labels": [
"ANALYSIS"
],
"start": 30697,
"text": "\nFurther the question whether a presumption of law or fact stands rebutted by the evidence or other material on record is one of fact and not law and this Court is slow to interfere with the view of facts taken by the High Court."
}
},
{
"from_name": "label",
"id": "00840fec14014ca5880b437ee1e4553d",
"to_name": "text",
"type": "labels",
"value": {
"end": 31184,
"labels": [
"RATIO"
],
"start": 30926,
"text": "\nNo doubt, it will be open to this Court to examine the evidence for itself where the High Court has proceeded upon an erroneous view as to the nature of the presumption or, again, where the assessment of facts made by the High Court is manifestly erroneous."
}
},
{
"from_name": "label",
"id": "368b6227b1a2475f84cfb35389a38294",
"to_name": "text",
"type": "labels",
"value": {
"end": 31249,
"labels": [
"RATIO"
],
"start": 31185,
"text": "The case before us does not suffer from either of these defects."
}
},
{
"from_name": "label",
"id": "161bca04df2a4ed2bc40132f297200bd",
"to_name": "text",
"type": "labels",
"value": {
"end": 31293,
"labels": [
"RPC"
],
"start": 31250,
"text": "In the circumstances we dismiss the appeal."
}
},
{
"from_name": "label",
"id": "83695c424e1a4a3493be64a5526ac27e",
"to_name": "text",
"type": "labels",
"value": {
"end": 31507,
"labels": [
"RATIO"
],
"start": 31293,
"text": "\n 501 A plea was made before us that in view of the age of the appellant and the fact that he was just about to retire when the prosecution was started we should reduce the sentence to the period already undergone."
}
},
{
"from_name": "label",
"id": "430f19bf8de74952859a0773c32f255e",
"to_name": "text",
"type": "labels",
"value": {
"end": 31697,
"labels": [
"RATIO"
],
"start": 31508,
"text": "These circumstances were borne in mind by the learned Special judge when he passed a substantive sentence of imprisonment of one year only though the maximum for the offence is seven years."
}
},
{
"from_name": "label",
"id": "9ca32c39e2a440cb8c9ca946264b0fb1",
"to_name": "text",
"type": "labels",
"value": {
"end": 31771,
"labels": [
"RPC"
],
"start": 31698,
"text": "We do not think that there is room for further reduction of the sentence."
}
},
{
"from_name": "label",
"id": "34785b2c5ee841e093aea2756127c3fd",
"to_name": "text",
"type": "labels",
"value": {
"end": 31790,
"labels": [
"RPC"
],
"start": 31771,
"text": "\n Appeal dismissed."
}
}
]
}
] | 1,714 | {
"text": "PETITIONER:\nDHANVANTRAI BALWANTRAI DESAI\n\n Vs.\n\nRESPONDENT:\nSTATE OF MAHARASHTRA\n\nDATE OF JUDGMENT:\n28/09/1962\n\nBENCH:\nMUDHOLKAR, J.R.\nBENCH:\nMUDHOLKAR, J.R.\nIMAM, SYED JAFFER\nSUBBARAO, K.\nAYYANGAR, N. RAJAGOPALA\n\nCITATION:\n\n1964 AIR 575 1963 SCR Supl. (1) 485\n\nCITATOR INFO : (3)\n (8,9)\nR 1966 SC1762 (19,20)\n (8)\nR 1968 SC1292 (5)\n\nE 1973 SC 28\n\nR 1973 SC 246\n\nF 1990 SC1269\n\nACT:\nCriminal Trial-Bribery-Receipt of gratification-Presumption-\nRebuttal of-Onus-Plausible explanation by accused, if\ndischarges onus-Prevention of Corruption Act, 1947 (11 of\n1947), s. 4.\n\nHEADNOTE:\nThe appellant was the Resident Engineer for Light Houses and\nthe complainant had a contract for reconstructing one of the\nlight houses. For this construction the contractor used\nwater from a temple well and used a temple room for storing\ncement. On the completion of the work the appellant asked\nthe-contractor to carry out certain repairs to the temple\nbut he declined to do so. At the time of the payment of the\nfinal bill the contractor paid a sum of Rs. 1,000,/- to the\nappellant and the amount was recovered from him upon a\nsearch. The explanation offered by the appellant was that\nthe contractor had given this sum of money for payment to\nthe temple authorities for repairs to the temple as he had\nhimself been unable to do so. He was convicted under s. 161\nIndian Penal Code by raised the presumption under s. 4 of\nthe Prevention of Corruption Act. The appellant contended\nthat the explanation given by him was both reasonable and\nprobable and that accordingly the presumption was rebutted.\nHeld, that the presumption under s. 4(1) had properly been\nraised as the appellant had admittedly accepted gratifica-\ntion other than legal remuneration. The appellant had\nfailed to rebut this presumption and was rightly convicted.\nThe burden of rebutting such a presumption resting upon the\naccused was not as light as in the case of a presumption\nraised under s. 114 Evidence Act. The burden was not\ndischarged by merely giving a reasonable and probable\nexplanation. The accused had to show that the explanation\nwas a true one. Unless the explanation is supported by\n\nproof, the presumption cannot be said to be rebutted.\nC.I. Emden v. State of U. P., [1960] 2 S. C. R. 592, Otto\nGeorge Gfeller v. The King, A.I.R. (1943) P. C. 211 and\n486\nState of Madras v. A. Vaidyanatha Iyer, [1958] S. C. R. 580,\nreferred to.\n\nJUDGMENT:CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 218 of 1960.\nAppeal by special leave from the judgment and order dated August 3, 1960, of the Bombay High, Court in Cr. A. No. 282 of 1960.\nA.S. R. Chari, M. K. Ramamurthi, R. K. Garg, D. P. Singh, S. C. Aggarwal, L. M. Atmaram Bhukhanwala and K. R.\nChoudhri, for the appellant.\nR.L. Anand, D. R. Prem, R. H. Dhebar and R. N. Sachthey, for the respondent.\n1962. September 28. The judgment of the Court was delivered by MUDHOLKAR, J.-In this appeal by special leave from the judgment' of the High Court of Bombay affirming the conviction and sentences passed on the appellant in respect of offences under s. 161, Indian Penal Code and s. 5(1)(d) of the Prevention of Corruption Act, 1947 (2 of 1947) read with s. 5(2) thereof, the only point urged is that the presumption raised against the appellant under s. 4 of the Prevention of Corruption Act must be held to have been rebutted by the explanation given by him inasmuch as that explanation was both reasonable and probable.\nIn order to appreciate the contention it is necessary to state certain facts.\nIn the year 1954 the appellant was appointed Resident Engineer for Light Houses and posted to Bombay. He was due to retire in January, 1955 but he was given extensions from time to time. The complainant, M. M. Patel (who will hereafter be referred to as the complainant) is a building contractor. It was proposed to reconstruct a light house at Tolkeshwar Point which is situated on the West 481 Coast, somewhere between Ratnagiri and Karwar The complainant submitted a tender for the construction on March 21, 1956. That tender was accepted on June 30, 1956 and a work order was issued to him. The general conditions governing the contract. are contained in the set of papers inviting tenders.\nThe complainant commenced the work in November, 1956. It would appear that the overseer supervising the work was not satisfied with the manner in which the contractor was carrying on the work. As a result, in December, 1956, the appellant had to bring the fact to the complainant's notice and warn him to carry out the work according to the specification contained in the notice inviting tenders.\nIt may be mentioned that just near the place where the light house was being constructed, there is a temple of Tolkeshwar. Attached to the temple there is a small dharmashala. There is also a well near the dharmashala, and that well is the only convenient source of water supply to the neighbourhood. At the relevant time the water in it was upto a depth of six feet. In the year 1957 appellant wrote a letter to the trustee of the temple asking his permission to take water from that well for supplying it to the Government staff. The idea was to set up a pump in the well and lay out a pipeline leading up to the staff quarters. In reply to the letter Mr. Gole who was the trustee, wrote that if this was done the water in the well will run out in a short time. He, therefore, suggested that the well be deepened and added : \"'However, the trustees have no objection to the Government's intention of laying out a pipeline from the well provided arrangements are made for supply of water to the temple and the small dharmshala nearby\". It is not clear whether a pump was set up by the Government and a pipeline laid out. But it is an admitted fact that the well has not been deepened. It is also admitted that the contractor used the well water for carrying on his work without 488 obtaining any express permission of the trustees and by the time he finished the work the water level had gone down to a little below two feet.\nAccording to the complainant in February, 1957, the appellant had paid a visit to Tolkeshwar and during his visit he told the complainant \"to behave like other contractors\" evidently suggesting that he should also pay him certain percentage of his bills as a bribe. It is sufficient to say that both the courts have found that the appellant did not visit Tolkeshwar in February, 1957, but the High Court has held that the appellant did make a demand for bribe in June, 1957, when he visited Tolkeshwar and that the complainant has made a mistake regarding the date on which the bribe was demanded. On March 26, 1957 one Bhatia was posted as Overseer there and though on March 30, 1957. a cheque for Rs. 7,278 odd was given to the complainant on his first running bill. Bhatia made a complaint to the appellant on April 2, 1957, that the complainant was not carrying on his work satisfactorily and was not affording facilities to him for supervising the work. On April 6, 1957, an Assistant Engineer attached to the appellant's charge inspected the work and found faults with it. On April 7, 1957, the complainant and some of his workmen assaulted Bhatia about which the latter made a complaint in writing to the appellant. This complaint was eventually forwarded to the higher authorities who reprimanded the complainant and required him to give an undertaking to behave properly. On April 9, 1957, the appellant wrote to Bhatia asking him to give instructions in writing to the complainant, instead of giving mere oral instructions. He likewise wrote to the complainant asking him to carry on the work according to the instructions of Bhatia and also under- take not to use force. On May 13, 1957, the appellant reported to the Director General of light Houses that the complainant's work was bad and not according to specifications. He, therefore, suggested that 489 the complainant should be required to pull down the constructions which were not according to the specifi- cations. The complainant protested against this. On May 28, 1957, he presented a second running bill for Rs. 38,000 odd and though apparently a cheque was prepared it was not handed over to the complainant as the work was defective.\nOn August 1, 1957, the Director General of Light Houses instructed the appellant not to make any payment to the complainant. It would appear that after some corresponding between the complainant and the higher authorities he eventually pulled down the structures which were not according to the specifications and re-constructed them and was paid Rs. 27,569 odd. That was on February 6, 1958. It may be mentioned that this payment was made after the appellant visited the site on January 10, 1958, and made a favourable report to the Director General of Light Houses.\nMr. A.S.R. Chari for the appellant points out that it is not suggested that even at this time the appellant asked for any bribe. Further payments of Rs. 35,000 odd, Rs. 7,000 odd, Rs. 21,000 odd, Rs. 6,200 odd, Rs. 9,190 odd, Rs. 18,900 odd were made between March 18, 1958, and February 9, 1959, and Mr. Chari again points out that there is no suggestion that any illegal gratification was demanded by the appellant before passing any of these bills. In the meanwhile reports that the work being done was unsatisfactory used to be made from time to time by the Overseer to the appellant.\nAccording to the prosecution when the appellant visited the site on January 5, 1959, during the absence of the complainant he asked the complainant's brother-in-law jaikishen, who was in charge of the work for Rs. 300/- to Rs. 400/-. Jaikishen, however, did not pay the money on the pretext that he had no funds with him. This story, it may be mentioned was not believed by the Special judge and no reference to it has been made in the judgment of the High Court.\n490 At about that time the appellant was asked to level the ground adjoining the staff quarters and also deepen the well. This was extra work and the complainant declined to do it. It is said that he was also asked to repair the temple and dharmshala and he refused to do that work also.\nOn February 9, 1959, the complainant presented his ninth running bill which was for Rs. 22,000 odd. On March 13, 1959, the appellant visited Tolkeshwar. During this visit he received a letter from D. S. Apte, D. W. 2 who used to look after the temple. In that letter he brought to the notice of the appellant that the temple was 400 years old, that small and petty repairs to the temple had become necessary, that it was also necessary to paint the temple both from inside and outside as also to provide a water tap in the temple and construct a road connecting the temple with the lighthouse. He, therefore, requested the appellant to consider these requirements sympathetically. According to the appellant, it is in pursuance of this request that he suggested to the complainant to do some work free for the temple. It may be mentioned that the complainant had actually taken up his residence in the dharmshala attached to the temple and had used the main temple hall for sometime for storing his cement bags. Thus in addition to using the water from the temple. well he had made ample use of the temple properties. According to Mr. Chari it was apparently for this reason that the appellant made the aforementioned suggestion to the complainant. It is an admitted4 fact that though the cheque for payment of Rs. 22,000 odd for the ninth running bill was prepared on March 23, 1959, it was not handed over to the complainant on that date. It is the complainant's case that the appellant was demanding 10% of the bills by way of illegal gratification, that upon the complainant refusing to pay that amount the appellant brought down the demand to 3 or 4% and ultimately to Rs.\n1,000/-. The prosecution case is that it is for compelling the complaint 491 to disgorge this amount that the cheque was being withheld.\nAccording to the appellant he refused to certify completion of the work unless the complainant undertook to level the ground and deepen the well and for no other reason. He admitted that this was extra work but he said that the complainant was required under the contract to do the extra work though of course he would have been entitled to separate payment with respect to it. It was for this reason alone that he had asked the complainant to see him in Bombay on March 26, 1959. The complainant on being informed of this, wrote to the appellant's office on March 27, 1959, saying that the Cheque should not be sent by post but should be 'handed over to him personally when he visited Bombay.\nOn March 28, 1959, this postcard was brought to the notice of the appellant. He was going on a short leave and, therefore, he made an endorsement on that postcard that the complainant should be asked to see him on April 6, 1959, by which time he would be back on duty and that the complainant would be given the cheque on that day. On March 31, 1959, the appellant learnt that a cheque for Rs. 32,200 odd on account of the tenth running bill had been prepared and he, therefore, asked for payment of the bill also but the officer in charge did not hand over either of the cheques to him. Thereafter the complainant went to the anti-corruption department and lodged a complaint.\nOn April 6, 1959, the complainant. went to the office of the appellant and saw him in his cabin. There the cheque was handed over by the appellant to the complainant. But before that., according to the complainant, he paid Rs. 1,000 in currency notes to the appellant. Having done that he came out and then certain police officials accompanied by panchas entered the room. On being required to produce the money by the police officials the appellant promptly took out the currency notes from his pocket.\n492 It may be mentioned that the currency notes were besmeared with enthracene powder and it is common ground that traces of enthracene powder were found not only on the pocket of the appellant but also on his fingers and those of the complainant. The currency notes were on examination also found to show traces of enthracene. It may be mentioned that the cheque was not subjected to the usual test. The appellant's explanation is that after he handed over the cheque to the complainant the letter said that he was really not in a position to do the repair work etc., to the temple and dharmshala because he did not have enough men even for doing the work which was undertaken by him and that he was therefore handing over to the appellant Rs. 1,000 for being transmitted to the temple authorities. His grievance is that by not subjecting the cheque to the usual test he has been deprived of the opportunity of establishing his defence that the cheque was handed over by him to the complainant even before he received the money. It does not appear, however, that any grievance was made of this fact before the special Judge who tried the case.\nThus the receipt of Rs. 1,000/- was admitted by the appellant. This was admittedly not the appellant's 'legal remuneration'. The first question, therefore, is whether a presumption under Sub-s. 1 of s. 4 of the prevention of Corruption Act arises in this case. That provision runs thus: \"Where in any trial of an offence punishable under section 161 or section 165 of the Indian Penal Code it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or 493 obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said section 161, Sit or,, as the case may be, without consideration or for a consideration which he knows to be inadequate.\"\n It was contended that the use of the word \"gratification' in sub-s. (1) of s. 4 emphasises that the mere receipt of any money does not justify the raising of a presumption thereunder and that something more than the mere receipt of money has to be proved. A similar argument was raised before this Court in C. 1. Emden v. State of Uttar Pradesh(1). Dealing with it this Court has pointed out that what the prosecution has to prove is that the accused person has received \"gratification other than legal remuneration\"\n and that when it is shown that he has received a certain sum of money which was not a legal remuneration, then the condition prescribed by this section is satisfied. This Court then proceeded to observe: \"If the word \"gratification' is construed to mean money paid by way of a bribe then it would be futile or superfluous to prescribe for the raising of the presumption.\n Technically it may no doubt be suggested that the object which the statutory presumption serves on this construction is that the court may then presume that the money was paid by way of a bribe as a motive or reward as required by s. 161 of the Code. In our opinion this could not have been the intention of the Legislature in prescribing the statutory presumption under s. 4 (1)\".\n This Court further said that there is yet another consideration which supports the construction placed by it.\n In this connection a reference was made to s. 165 of the Code and it was observed: (1) (1960) 2 S.C.R. 592.\n 494 \"It cannot be suggested that the relevant clause in s. 4 (1) which deals with the acceptance of any valuable things hold be interpreted to impose upon the prosecution an obligation to prove not only that the valuable thing has been received by the accused but that it has been received by him without consideration or for a consideration which he knows to be inadequate. The plain meaning of this clause undoubtedly requires the presumption to be raised whenever it is shown that the valuable thing has been received by the accused without anything more. If that is the true position in respect of the construction of this part of s. 4 (1) it would be unreasonable to hold that the word 'gratification' in the same clause imports the necessity to prove not only the payment of money but the incriminating character of the said payment. It is true that the Legislature 'might have used the word 'money' or 'consideration' as has been done by the relevant section of the English statute;...........\n That being the legal position it must be held the requirements of sub-s. (1) of s. 4 have been fulfilled in the present case and the presumption thereunder must be raised.\nThe next contention of Mr. Chari is that the accused person is entitled to rebut the presumption arising against him by virtue of a statutory provision by offering an explanation which is reasonable and probable. According to him the complainant evidently nursed a grievance against the appellant because the latter used to find fault with his work that the complainant was required to demolish some construction and do the work over again. He further points out that the complainant also felt aggrieved because of the appellant's insistence on the complainant doing the work of leveling the ground adjoining 495 the staff quarters and deepening the temple well even though he would have been paid separately for this work. It is because of these circumstances that according to Mr. Chari, the complainant conceived the idea of laying a trap for involving the appellant. He points out that apart from the bare statement of the complainant there is nothing to show that the appellant had been asking for any bribes. No doubt the appellant had suggested that some work for the temple should be done free by the complainant. But that was merely by way of request and nothing more and that there is nothing to show that he was using his official position to coerce the complainant for doing this work. He has taken us through considerable portions of the evidence on record to show that the complainant was not the kind of man who could be easily cowed down and it is unthinkable that the appellant would have tried to use pressure tactics against the complainant either for doing some work for the temple or for obtaining illegal gratification for himself. And in this connection he referred in Particular to a reply sent by the complainant to the Director General of Light Houses.\nThen he points out that it has not been established that though bills worth a lakh of rupees or so were already passed for payment by the appellant, he had used any pressure for obtaining bribe. It would, therefore, not be reasonable to hold that the appellant had withheld the ninth bill just for coercing the complainant to pay a thousand rupees to him by way of illegal gratification. He then pointed out that actually on March 19, 1959, the appellant had applied to the Director General of Light Houses for permission to retire as from June 30, and requested him to settle his gratuity amount. In these circumstances and knowing full well the kind of person the complainant was, would the appellant, says Mr. Chari, have been foolish enough to press him for a comparatively trivial amount of Rs. 1,000/- by way of bribe? He, therefore, urges that in the circumstances the explanation 496 offered by the appellant which is to the effect that the complainant voluntarily paid to him a sum of Rs. 1,000/- on April 6, 1959, for being passed on to the temple authorities should be accepted as reasonable and probable. His grievance is that the High Court has misstated and misapplied the law when it observed in its judgment: \"The usual standard of an explanation given by the accused which may reasonably be true, though the Court does not accept it to be true, cannot be enough to discharge the burden. It is not necessary to consider what evidence would satisfy the words 'until the contrary is proved' in this case. The least that can be said is that the Court must be satisfied from the material placed before it on behalf of the. accused either from the evidence for the prosecution or for the accused that it creates a reasonable doubt about the prosecution case itself. It is not necessary to go beyond this in this case since we are satisfied that the circumstances and the evidence placed before us do not create a reasonable doubt about the prosecution case.\"\nMr. Chari contends that upon the view taken by the High Court it would mean that an accused person is required to discharge more or less the same burden for proving his innocence which the prosecution has to discharge for proving the guilt of an accused person. He referred us to the decision in Otto George Gfeller v. The King (1) and contended that whether a presumption arises from the common course of human affairs or from a statute there is no difference as to the manner in which that presumption could be rebutted. In the decision referred to above the Privy Council, when dealing with a case from Nigeria, held that if an explanation was given which the jury think might reasonably be true and which is consistent with innocence, although they were not convinced of its truth, the accused person would be (1) A. 1. R. (1943) P. C. 211.\n 497 entitled to acquittal inasmuch as the prosecution would have failed to discharge the duty cast upon it of satisfying the jury beyond 'reasonable doubt of the guilt of the accused.\nThat, however, was a case where the question before the jury was whether a presumption of the kind which in India may be raised under s. 114 of the Evidence Act could be raised from the fact of possession of goods recently stolen, that the possessor of the goods was either a thief or receiver of stolen property. In the case before us, however, the presumption arises not under s. 114 of the Evidence Act but under s. 4(1) of the Prevention of Corruption Act. It is well to bear in mind that whereas under s. 114 of the Evidence Act it is open to the Court to draw or not to draw a presumption as to the existence of one fact from the proof of another fact and it is not obligatory upon the court to draw such presumption, under sub-s. (1) of s. 4, however, if a certain fact is proved, that is, where any gratification (other than legal gratification) or any valuable thing is proved to have been received by an accused person the court is required to draw a presumption that that person received that thing as a motive of reward such as is mentioned in s.\n161 I.P.C. Therefore, the Court has no choice in the matter,, once it is established that the accused person has received a sum of money which was not due to him as a legal remuneration. Of course, it is open to that person to show that though that money was not due to him as legal remuneration it was legally due to him in some other manner or that he had received it under a transaction or an arrangement which was lawful. \"-The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under s. 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur 498 in this provision make it clear that the presumption has to be rebutted by 'Proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that 'a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted.\nHow the burden which has shifted to the accused under s.\n4(1) of the prevention of Corruption Act is to be discharged has been considered by this Court in State of Madras v. A.\nVaidyanatha Iyer(1) where it has been observed : \"Therefore, where it is proved that a gratification has been accepted, then the presumption shall at once arise under the section. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. It may here be mentioned that the legislature has chosen to use the words 'shall presume' and not 'may presume', the former a presumption of law and latter of fact. Both these phrases have been defined in the Indian Evidence Act, no doubt for the purpose of that Act, but s. 4 of the Prevention of Corruption Act is in pari materia with the Evidence Act because it deals with a branch of law of evidence, i.e., presumptions, and, therefore, should have the same meaning. \"Shall presume' has been defined in the Evidence Act as follows : \"'Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved.\"\nIt is a presumption of law and therefore it is obligatory on the court to raise this presumption (1) [1958] S. C. R. 580.\n 499 in every case brought under s. 4 of the Prevention of Corruption Act because unlike the case of presumption of fact, presumptions of law constitute a branch of jurisprudence.\"\nThese observations were made by this Court while dealing with an appeal against an order of the Madras High Court setting aside the conviction of an accused person under s.\n161, I.P.C. In that case the accused, an Income-tax Officer, was alleged to have received a sum of Rs. 1,000 as bribe from an assessee whose case was pending before him. His defence was that he had taken that money by way of loan.\nThe High Court found as a fact that the accused was in need of Rs. 1,000/- and had asked the assessee for a loan of that amount. It was of opinion that the versions given by the assessee and the accused were balanced, that the bribe seemed to tilt the scale in favour of the accused and that the evidence was not sufficient to show that the explanation offered cannot reasonably be rejected. This Court reversed the High Court's decision holding that the approach of the High Court was wrong. The basis of the decision of this Court evidently was that a presumption of law cannot be successfully rebutted by merely raising a probability, however reasonable, that the actual fact is the reverse of the fact which is presumed. Something more than raising a reasonable probability is required for rebutting a presumption of law. The bare word of the appellant is not enough and it was necessary for him to show that upon the established practice his explanation was so probable that a prudent man ought, in the circumstances, to have accepted it. According to Mr. Chari here, there is some material in addition to the explanation offered by the appellant which will go to rebut the Presumption raised under s. 4 (1) of the Act. He points out that there is the letter from D. S.\nApte addressed to the appellant, defence Ex. No. 32 collectively, which the appellant claims to have received on or after March 500 13, 1959, during his visit to Tolkeshwar. He says that this letter was produced by him immediately when the police official came to his cabin on April 6, 1959 and recovered from him a sum of Rs. 1,000/which the complainant had paid to him. He points out that this letter was in the same pocket in which the money was kept and says that it is con- clusive to disprove the money being received by way of bribe. He also relise upon the evidence of D.S. Apte. That evidence, however, does not go further than the letter. No evidence was, however brought to our notice to show that the appellant had at any time asked the complainant to give any money by way of donation to the temple and indeed there is evidence to the contrary to the effect that none of the persons interested in the temple had authorised the appellant to collect any money for meeting the expenses of repairs to the temple. It is because of these circumstances and because it believed the statement of the complainant that the appellant had asked him for a bribe that the High Court did not accept the appellant's explanation that the money was paid by the complainant to him for being passed on to the temple trustee as true. The High Court disbelieved the evidence of Apte and held the letter to be worthless.\nIn doing so it cannot be said that the High Court' has acted unreasonably. It would therefore not be appropriate for us to place our own assessment on these two pieces of evidence.\nFurther the question whether a presumption of law or fact stands rebutted by the evidence or other material on record is one of fact and not law and this Court is slow to interfere with the view of facts taken by the High Court.\nNo doubt, it will be open to this Court to examine the evidence for itself where the High Court has proceeded upon an erroneous view as to the nature of the presumption or, again, where the assessment of facts made by the High Court is manifestly erroneous. The case before us does not suffer from either of these defects. In the circumstances we dismiss the appeal.\n 501 A plea was made before us that in view of the age of the appellant and the fact that he was just about to retire when the prosecution was started we should reduce the sentence to the period already undergone. These circumstances were borne in mind by the learned Special judge when he passed a substantive sentence of imprisonment of one year only though the maximum for the offence is seven years. We do not think that there is room for further reduction of the sentence.\n Appeal dismissed.\n "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "ec406be4ac734d6ebfb921ce2badeba8",
"to_name": null,
"type": null,
"value": {
"end": 642,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nCOMMISSIONER OF INCOME-TAX BOMBAY\n\n Vs.\n\nRESPONDENT:\nCHUGANDAS AND CO., BOMBAY\n\nDATE OF JUDGMENT:\n29/07/1964\n\nBENCH:\nSHAH, J.C.\nBENCH:\nSHAH, J.C.\nSUBBARAO, K.\nSIKRI, S.M.\n\nCITATION:\n\n1965 AIR 568 1964 SCR (8) 332\n\nCITATOR INFO : (7)\n (9)\nR 1966 SC 47 (5,6)\n (12)\nRF 1966 SC1514\n\nF 1967 SC1061\n\nD 1968 SC 9\n\nACT:\nIndian Income-tax Act (XI of 1922), s. 25(3)-Exemption\napplicable to what income.\n\nHEADNOTE:\nThe respondent was a firm dealing in securities and was\ncharged to income-tax under the Income-tax Act (VII of\n1918)."
}
},
{
"from_name": null,
"id": "41336fdbfe3642d3afdefb07007e2f78",
"to_name": null,
"type": null,
"value": {
"end": 793,
"labels": [
"PREAMBLE"
],
"start": 643,
"text": "It received certain sums of money as interest oil\nsecurities in the accounting years 1946 and 1947 (assessment\nyears 194748 and 1948-49) respectively."
}
},
{
"from_name": null,
"id": "ea64218f37aa40ca96054a88c117ab01",
"to_name": null,
"type": null,
"value": {
"end": 961,
"labels": [
"PREAMBLE"
],
"start": 794,
"text": "It discontinued its\nbusiness on 30th June 1947, and, for the assessment year\n1948-49, claimed exemption from taxation under s. 25(3) of\nthe Incometax Act (XI of 1922)."
}
},
{
"from_name": null,
"id": "541485b9167d4ce5aa69c82c931d5241",
"to_name": null,
"type": null,
"value": {
"end": 1265,
"labels": [
"PREAMBLE"
],
"start": 962,
"text": "The income-tax officer and\nthe Appellate Assistant Commissioner, held that, the income\nfell under the bead 'interest on securities\" under s. 8 and\nnot under the head \"profits and gains of business,\nprofession or vocation\" under s. 10 and that therefore, the\nrespondent was not entitled to the exemption."
}
},
{
"from_name": null,
"id": "1f075bcc23d947609ff8ae83e5aa5444",
"to_name": null,
"type": null,
"value": {
"end": 1380,
"labels": [
"PREAMBLE"
],
"start": 1266,
"text": "The Appellate\nTribunal reversed that order and the High Court (by a\nmajority) confirmed the order of the Tribunal."
}
},
{
"from_name": null,
"id": "30cb9e2a770640fc8c10fdcb05af047e",
"to_name": null,
"type": null,
"value": {
"end": 1442,
"labels": [
"PREAMBLE"
],
"start": 1381,
"text": "The\nCommissioner of Income-tax appealed to the Supreme Court."
}
},
{
"from_name": null,
"id": "ca0f070feaa540f4966e19f754dec233",
"to_name": null,
"type": null,
"value": {
"end": 1480,
"labels": [
"PREAMBLE"
],
"start": 1443,
"text": "Held: The appeal should be dismissed."
}
},
{
"from_name": null,
"id": "5244a421eda7442d86f72cbe0696c4d1",
"to_name": null,
"type": null,
"value": {
"end": 1712,
"labels": [
"PREAMBLE"
],
"start": 1480,
"text": "\nWhen s. 25(3) of the Indian Income-tax Act (XI of 1922)\nenacts that \"where any business, profession or vocation on\nwhich tax was at any time charged, it is intended that the\ntax was at any time charged on the owner of the business."
}
},
{
"from_name": null,
"id": "d5c40021b9f04bf192cce528f3f82c57",
"to_name": null,
"type": null,
"value": {
"end": 1945,
"labels": [
"PREAMBLE"
],
"start": 1712,
"text": "\nIf that condition be fulfilled in respect of the income of\nthe business under the Indian Income-tax Act (VII of 1918),\nthe owner will be entitled to get the benefit of the\nexemption under the section if the business is discontinued."
}
},
{
"from_name": null,
"id": "361128f5b79741fcb9123ad2462ab13c",
"to_name": null,
"type": null,
"value": {
"end": 2101,
"labels": [
"PREAMBLE"
],
"start": 1945,
"text": "\nThe section in terms refers to tax charged on any business,\nthat is, tax charged on any person In respect of all income\nearned by carrying on the business."
}
},
{
"from_name": null,
"id": "0bd40fa591fd4b1985c413b2fdd15f7a",
"to_name": null,
"type": null,
"value": {
"end": 2320,
"labels": [
"PREAMBLE"
],
"start": 2102,
"text": "There is no reason to\nrestrict the condition of the applicability of the exemption\nonly to income on which tax was payable under s. 10 of the\nAct under the head \"Profits and gains of business,\n\nprofession or vocation\"."
}
},
{
"from_name": null,
"id": "629867ec67ba42349e877473617202d0",
"to_name": null,
"type": null,
"value": {
"end": 2557,
"labels": [
"PREAMBLE"
],
"start": 2320,
"text": "\nThe United Commercial Bank Ltd., Calcutta v. The\nCommissioner of Income-tax, West Bengal, 19581 S.C.R. 79 and\nThe Commissioner of Income-tax, Madras v. The Express\nNewspapers Limited, Madras, [1964] 8 S.C.R. 189, referred\nto.\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "186afab5de90428b89bd44578e8a3027",
"to_name": null,
"type": null,
"value": {
"end": 2818,
"labels": [
"NONE"
],
"start": 2557,
"text": "\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 685 & 686 of 1963.Appeal from the judgment and order dated December 17, 18, 1958, of the Bombay High Court in Income-tax Reference No.\n27/X of 1954.\nK.N. Rajagopala Sastri and R. N. Sachthey, for the appellant."
}
},
{
"from_name": null,
"id": "4b2d90c2edb643f6ac2a0c05a672ea82",
"to_name": null,
"type": null,
"value": {
"end": 2907,
"labels": [
"NONE"
],
"start": 2818,
"text": "\nN.A. Palkhivala, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the respondent."
}
},
{
"from_name": null,
"id": "4fc8a38be26345e59c224d3fa934aba6",
"to_name": null,
"type": null,
"value": {
"end": 2922,
"labels": [
"NONE"
],
"start": 2907,
"text": "\nJuly 29, 1964."
}
},
{
"from_name": null,
"id": "e439a83ce8ac4d079e20c00075069fbb",
"to_name": null,
"type": null,
"value": {
"end": 2973,
"labels": [
"NONE"
],
"start": 2923,
"text": "The Judgment of the Court was delivered by SHAH-- "
}
},
{
"from_name": null,
"id": "9fb301ae2294429a9104f5cfbb06747b",
"to_name": null,
"type": null,
"value": {
"end": 3103,
"labels": [
"FAC"
],
"start": 2973,
"text": "M/S. Chugandas and Co a firm dealing in securities- received in the year 1946 Rs. 4,13,992/- as interest on securities held by it."
}
},
{
"from_name": null,
"id": "2dbb6989a7a44daa9c6b92c8ae0f9b26",
"to_name": null,
"type": null,
"value": {
"end": 3172,
"labels": [
"FAC"
],
"start": 3104,
"text": "In 1947 it received Rs. 1,01,229/- as interest from the same source."
}
},
{
"from_name": null,
"id": "3ff6c7b05e854df6b12e0b85367a2c6f",
"to_name": null,
"type": null,
"value": {
"end": 3225,
"labels": [
"FAC"
],
"start": 3173,
"text": "On June 30, 1947 the firm discontinued its business."
}
},
{
"from_name": null,
"id": "e439d07720b24fe58b76f7734f8deb65",
"to_name": null,
"type": null,
"value": {
"end": 3713,
"labels": [
"FAC"
],
"start": 3226,
"text": "In proceedings for assessment for 1947-48 and 1948-49 the firm, relying upon s. 25(3) of the Indian Income-tax Act, 1922, claimed exemption from payment of tax on income earned in the relevant previous year, on the plea that the firm was carrying on business before the Indian Income-tax Act, 1922, was enacted, and on that business, tax had been charged under the provisions of the Indian Incometax Act 7 of 1918 in respect of the business done immediately before that Act was repealed."
}
},
{
"from_name": null,
"id": "0ca20bb6c0b84c97a9bc76aa3a4b9c1a",
"to_name": null,
"type": null,
"value": {
"end": 3821,
"labels": [
"FAC"
],
"start": 3714,
"text": "The firm also applied to substitute the income earned in the year 1947 for the income of the previous year."
}
},
{
"from_name": null,
"id": "56a912eaf7824ca690e4accfcdb98265",
"to_name": null,
"type": null,
"value": {
"end": 4059,
"labels": [
"FAC"
],
"start": 3822,
"text": "The Income- tax Officer held that the interest earned by the firm on securities being \"liable to be assessed to tax\" under s. 8 and not under s. 10 of the Income-tax Act, the firm was not entitled to the benefit of the exemption claimed."
}
},
{
"from_name": null,
"id": "3c2c2455d6e647bb8695f00f51751778",
"to_name": null,
"type": null,
"value": {
"end": 4160,
"labels": [
"FAC"
],
"start": 4060,
"text": "The order of the Income-tax Officer was confirmed in appeal by the Appellate Assistant Commissioner."
}
},
{
"from_name": null,
"id": "c61aba41c96a47a29b697f02180813bf",
"to_name": null,
"type": null,
"value": {
"end": 4424,
"labels": [
"RLC"
],
"start": 4161,
"text": "The Income-tax Appellate Tribunal, however, reversed the order and held that the firm was entitled to the benefit of the exemption in respect of the entire income of the business including income from securities in the year in which the business was discontinued."
}
},
{
"from_name": null,
"id": "b16ec5e24ed048d5b7be2c85ca548f36",
"to_name": null,
"type": null,
"value": {
"end": 4690,
"labels": [
"ISSUE"
],
"start": 4424,
"text": "\nAt the instance of the Commissioner, the Tribunal referred under s. 66(1) of the Act a question, whichwhen reframed by the High Court of Bombay read as follows:- \"Whether the assessee is entitled to the benefit of s. 25(3) in respect of the interest on securities?\""
}
},
{
"from_name": null,
"id": "cb9fc4c9fded45cb97543943c287a2b7",
"to_name": null,
"type": null,
"value": {
"end": 4785,
"labels": [
"ANALYSIS"
],
"start": 4690,
"text": "\nIt is common ground that the principal business of the assessee was as a dealer in securities."
}
},
{
"from_name": null,
"id": "40ba34c118c84c0cb6b3255e36345e05",
"to_name": null,
"type": null,
"value": {
"end": 5033,
"labels": [
"ANALYSIS"
],
"start": 4786,
"text": "Securities held by the assessee were its stock-in-trade and interest on those securities was received from time to time, and this interest had for computing the taxable income to be taken into account under s. 8 of the Indian Income-tax Act, 1922."
}
},
{
"from_name": null,
"id": "09651ed4dcda473782de7f77c83cd7ea",
"to_name": null,
"type": null,
"value": {
"end": 5816,
"labels": [
"STA"
],
"start": 5033,
"text": "\nSection 25(3), on the true interpretation of which the respective contentions of the assessee and the Commissioner have to be adjudged, is in the following terms: \"Where any business, profession or vocation on which tax was at any time charged under the provisions of the Indian Income-tax Act, 1918 (VII of 1918), is discontinued, then, unless there has been a succession by virtue of which the provisions of sub-section (4) have been rendered applicable, no tax shall be payable in respect of the income, profits and gains of the period between the end of the previous year and the date of such discontinuance, and the assessee may further claim that the income, profits and gains of the previous year shall be deemed to have been the income, profits and gains of the said period."
}
},
{
"from_name": null,
"id": "950c2035f2aa4566928f2e4a2bf61328",
"to_name": null,
"type": null,
"value": {
"end": 6157,
"labels": [
"STA"
],
"start": 5817,
"text": "Where any such claim is made, an assessment shall be made on the basis of the income, profits and gains of the said period, and if an amount of tax has already been paid in respect of the income, profits and gains of the previous year exceeding the amount payable on the basis of such assessment, a refund shall be given of the difference.\""
}
},
{
"from_name": null,
"id": "a0ff6a57dfb54dc39ed2e1ceefd19fd7",
"to_name": null,
"type": null,
"value": {
"end": 6538,
"labels": [
"ANALYSIS"
],
"start": 6157,
"text": "\nExemption from liability to pay tax in respect of the income, ,profits and gains under s. 25(3) may be claimed by anassessee if the business is one in respect of which tax was charged at any time under the Indian Income-tax Act, 1918 and the business is discontinued-there being? a succession by virtue of which the provisions of sub-s. (4) of s. 25 have been rendered applicable."
}
},
{
"from_name": null,
"id": "354affe371474d3ca53125d157251065",
"to_name": null,
"type": null,
"value": {
"end": 6781,
"labels": [
"ANALYSIS"
],
"start": 6539,
"text": "Section 25(3) however applies even if the person assessed under the Income-tax Act, 1918, was different from the person who claims relief under that section provided the former was the predecessor- in-interest of such person qua the business."
}
},
{
"from_name": null,
"id": "7c6073fe8dbb4ff5828d581925f19c78",
"to_name": null,
"type": null,
"value": {
"end": 6968,
"labels": [
"ANALYSIS"
],
"start": 6782,
"text": "The reason for enacting s. 25(3) was that under the Indian Income-tax Act 7 of 1918, income-tax was levied by virtue of s. 14(2) of Act 7 of 1918 on the income of the year of assessment."
}
},
{
"from_name": null,
"id": "ea888b9b9612463d831df4a9acca9918",
"to_name": null,
"type": null,
"value": {
"end": 7051,
"labels": [
"ANALYSIS"
],
"start": 6969,
"text": "Tax was therefore levied in the financial year 1921-22 on the income of that year."
}
},
{
"from_name": null,
"id": "2ce2bcf331464bca891d45b3128dac25",
"to_name": null,
"type": null,
"value": {
"end": 7215,
"labels": [
"ANALYSIS"
],
"start": 7052,
"text": "By the Indian Income-tax Act 11 of 1922 the basis of taxation was altered and by s. 3 of that Act, charge for tax was imposed upon the income of the previous year."
}
},
{
"from_name": null,
"id": "3f274552ac41417f8f726d338c012b3a",
"to_name": null,
"type": null,
"value": {
"end": 7360,
"labels": [
"ANALYSIS"
],
"start": 7216,
"text": "When Act 1 1 of 1922 was brought into force on April 1, 1922, two assessments in respect of the same income for the year 1921-22 had to be made."
}
},
{
"from_name": null,
"id": "8252e013dd4541af8021bbdf3089fbef",
"to_name": null,
"type": null,
"value": {
"end": 7626,
"labels": [
"ANALYSIS"
],
"start": 7361,
"text": "The income for 1921-22 was accordingly charged to tax twice: it was charged under Act 7 of 1918 and it was also charge,' to tax under s. 3 of Act 1 1 of 1922 read with the appropriate Finance Act, resulting in double taxation in respect of the income for that year."
}
},
{
"from_name": null,
"id": "51b615a8a64f4165b076c99b05628d87",
"to_name": null,
"type": null,
"value": {
"end": 7808,
"labels": [
"ANALYSIS"
],
"start": 7626,
"text": "\nBut with a view to make the number of assessments equal to the number of years during which the business was carried on the Legislature enacted the exemption prescribed by s.\n25(3)."
}
},
{
"from_name": null,
"id": "8023a40a8977419cb095bbbf4bddafa5",
"to_name": null,
"type": null,
"value": {
"end": 8005,
"labels": [
"ANALYSIS"
],
"start": 7809,
"text": "This benefit was however restricted only to the income, profits and gains of business, profession or vocation on which tax had been charged under the provisions of the Indian Income-tax Act, 1918."
}
},
{
"from_name": null,
"id": "4dc46d850f5141c9bc8866ad1cc0fe51",
"to_name": null,
"type": null,
"value": {
"end": 8289,
"labels": [
"ANALYSIS"
],
"start": 8006,
"text": "By enacting s. 25(3) the Legislature intended to exempt the income, profits and gains resulting from the activity styled business, profession or vocation from tax when the business, profes- sion or vocation is discontinued if tax was charged in respect thereof under the Act of 1918."
}
},
{
"from_name": null,
"id": "45582bb1fd694db09121cbad58f35f5b",
"to_name": null,
"type": null,
"value": {
"end": 8309,
"labels": [
"ANALYSIS"
],
"start": 8290,
"text": "That much is clear."
}
},
{
"from_name": null,
"id": "6e5611d9f12145b0a8c0c53d95caee91",
"to_name": null,
"type": null,
"value": {
"end": 8344,
"labels": [
"ANALYSIS"
],
"start": 8309,
"text": "\nBut that is not the whole problem."
}
},
{
"from_name": null,
"id": "b6024eb19bfe4693aae7603ff1cd15cc",
"to_name": null,
"type": null,
"value": {
"end": 8597,
"labels": [
"ANALYSIS"
],
"start": 8345,
"text": "What is to be regarded --is income, profits and gains of business, profession or vocation within the meaning of s. 25(3) for which exemption may be obtained on discontinuance raises a problem on whichthere was a difference of opinion in the High Court."
}
},
{
"from_name": null,
"id": "a36ff2feeaab44c7a239a61cecb1f50b",
"to_name": null,
"type": null,
"value": {
"end": 8890,
"labels": [
"ANALYSIS"
],
"start": 8598,
"text": "In the judgment under appeal, Tendolkar, J., was of the view that by this expression only income, profits and gains of business chargeable to tax under the head \"profits and gains of business, profession or vocation\" under s. 10 read with s. 6(iv) stood exempt from liability under s. 25(3)_."
}
},
{
"from_name": null,
"id": "2ecc0224b17745799e5770ec5fca6aea",
"to_name": null,
"type": null,
"value": {
"end": 9256,
"labels": [
"ANALYSIS"
],
"start": 8891,
"text": "S. T.\nDesai, J., held that s. 25(3) exempted from liability to tax all income, profits and gains earned by conducting a busi- ness, profession or vocation irrespective of whether they were chargeable to tax under the head \"profits and gains of business, profession or vocation\", and with this view K. T.\nDesai, J., to whom the case was referred for opinion.\nagreed."
}
},
{
"from_name": null,
"id": "439c734c0d934cd98069fbc12fb93ca2",
"to_name": null,
"type": null,
"value": {
"end": 9380,
"labels": [
"ANALYSIS"
],
"start": 9256,
"text": "\nTo appreciate the point in dispute, it is necessary to bear in mind the scheme of the Act for computing the taxable income."
}
},
{
"from_name": null,
"id": "d609f2b7a4ba4008bd409e5f442b3275",
"to_name": null,
"type": null,
"value": {
"end": 9610,
"labels": [
"ANALYSIS"
],
"start": 9381,
"text": "Under the Act, income-tax is a single tax on the aggregate of income received from diverse heads mentioned in s. 6: s. 6 is not a charging section, and income computed under each distinct head is not separately chargeable to tax."
}
},
{
"from_name": null,
"id": "051131bf99934ae4ad423557cad9c0ed",
"to_name": null,
"type": null,
"value": {
"end": 9755,
"labels": [
"ANALYSIS"
],
"start": 9611,
"text": "But income which is chargeable under a specific head, cannot be brought to tax under another head either in lieu of or in addition to that head."
}
},
{
"from_name": null,
"id": "f8a1463975794b369c8861dedcf0603a",
"to_name": null,
"type": null,
"value": {
"end": 10348,
"labels": [
"PRE_RELIED"
],
"start": 9756,
"text": "As observed by this Court in The United Commercial Bank Ltd., Calcutta v. The Commissioner of Income-tax, West Bengal(1) \"the scheme of the Indian Income-tax Act, 1922, is that the various heads of income, profits and gains enumerated in s. 6 are mutually exclusive, each head being specific to cover the item) arising from a particular source and, consequently, \"interest on securities\" which is specifically made chargeable to tax under s. 8 as a distinct head, falls under that section and cannot be brought under s. 10, whether the securities are held as trading assets or capital asset.\""
}
},
{
"from_name": null,
"id": "444253d377124123a295c8ecceb671a5",
"to_name": null,
"type": null,
"value": {
"end": 10766,
"labels": [
"PRE_RELIED"
],
"start": 10349,
"text": "In The United Commercial Bank's case(1) the Income Tax Officer split up the income of a Banking Company was in the course of assessment, into two heads\"interest on securities\" and \"business income\", and set off the business loss against the income from securities in the year, of assessment, but did not allow the business loss of a previous year to be set off under s. 24(2) against that (1) [1959] S.C.R. 79.income."
}
},
{
"from_name": null,
"id": "aeaf3437f2854f6e9122355a6cdbb595",
"to_name": null,
"type": null,
"value": {
"end": 10820,
"labels": [
"PRE_RELIED"
],
"start": 10767,
"text": "This view was approved by the High Court of Calcutta."
}
},
{
"from_name": null,
"id": "5ece31dab590451c91852afa182eb1bd",
"to_name": null,
"type": null,
"value": {
"end": 11002,
"labels": [
"PRE_RELIED"
],
"start": 10821,
"text": "The High Court held that the several heads under s. 6 of the income-tax Act are mutually exclusive, and an item falling under an exclusive head cannot be charged under another head."
}
},
{
"from_name": null,
"id": "7ed9a3152fbe41ddb1128d36cd957a98",
"to_name": null,
"type": null,
"value": {
"end": 11250,
"labels": [
"PRE_RELIED"
],
"start": 11003,
"text": "This view was affirmed by this Court, and it was held that \"interest on securities\" being specifically charged under s. 8, which is a distinct head, it could not be brought under s. 10, whether the securities were trading assets or capital assets."
}
},
{
"from_name": null,
"id": "3523a4edd3df43fa92ac80d1d776b059",
"to_name": null,
"type": null,
"value": {
"end": 11485,
"labels": [
"ANALYSIS"
],
"start": 11250,
"text": "\nIt must therefore be held that even if an item of income is earned in the course of carrying on a business, it will not necessarily fall within the head \"profits and gains of busi- ness\" within the meaning of s. 10 read with s. 6(iv)."
}
},
{
"from_name": null,
"id": "5b3217d6cbf447f8be9785090a9de805",
"to_name": null,
"type": null,
"value": {
"end": 11743,
"labels": [
"ANALYSIS"
],
"start": 11486,
"text": "If securities constitute stock-in-trade of the business of an assessee, interest received from those securities will for the purpose of determining the taxable income be shown under the head \"interest on securities\" under s. 8 read with s.\n6(ii) of the Act."
}
},
{
"from_name": null,
"id": "deab2e9e47974820b3939aa1faa19059",
"to_name": null,
"type": null,
"value": {
"end": 11826,
"labels": [
"ANALYSIS"
],
"start": 11744,
"text": "Similarly dividends from shares will be shown under s. 12(1A) and not under s. 10."
}
},
{
"from_name": null,
"id": "fe819a2bd637442abfc3c2be030340a3",
"to_name": null,
"type": null,
"value": {
"end": 12111,
"labels": [
"ANALYSIS"
],
"start": 11827,
"text": "If an assessee carries on business of purchasing and selling buildings, the profits and gains earned by transactions in buildings will be shown under s. 10, but income received from the buildings so long as they are owned by the assessee will be shown under s. 9 read with s. 6 (iii)."
}
},
{
"from_name": null,
"id": "55d0ba89f93c46419aa9ded929bf55c3",
"to_name": null,
"type": null,
"value": {
"end": 12364,
"labels": [
"ANALYSIS"
],
"start": 12112,
"text": "Income earned by an assessee carrying on business will in each case be broken up, and taxable income under the head profits and gains of business will be that amount alone which is earned in the business, and does not all under any other specific head."
}
},
{
"from_name": null,
"id": "4d4b6b02ff424669bbfe11faa5b07fd7",
"to_name": null,
"type": null,
"value": {
"end": 12633,
"labels": [
"ANALYSIS"
],
"start": 12366,
"text": "Tendolkar J., in the judgment under appeal was of the opinion that income of the business to be computed under s.\n 10 alone could be admitted to the exemption: the ,majority of the Court held that all income earned by carrying on business qualified for the exemption."
}
},
{
"from_name": null,
"id": "1e828b1388244e3ba2764f848742c323",
"to_name": null,
"type": null,
"value": {
"end": 12820,
"labels": [
"ANALYSIS"
],
"start": 12634,
"text": "Now cl. (3) of s. 25 expressly provides that income of a business, profession or vocation which was charged at any time under Act 7 of 1918 to tax is, on discontinuance of that business."
}
},
{
"from_name": null,
"id": "30bdc297d085461eb6d45163e213d6e6",
"to_name": null,
"type": null,
"value": {
"end": 12983,
"labels": [
"ANALYSIS"
],
"start": 12821,
"text": "profession or vocation, exempt from liability to tax under Act 11 at 1922 for the period between the end of the previous year and the date of such discontinuance."
}
},
{
"from_name": null,
"id": "5f2f21448f104449b0a9bb9cf7040623",
"to_name": null,
"type": null,
"value": {
"end": 13296,
"labels": [
"ANALYSIS"
],
"start": 12984,
"text": "Tax is charged under the Income-tax Acts on specific units, such 51 S.C.-22 as, individuals, Hindu Undivided Families, Companies Local Authorities, Firms and Associations of persons or partners of firms and members of associations individually, and business, profession or vocation is not a unit of assess- ment."
}
},
{
"from_name": null,
"id": "80078a8eaa4947d6b5e00e1af4297934",
"to_name": null,
"type": null,
"value": {
"end": 13460,
"labels": [
"ANALYSIS"
],
"start": 13298,
"text": "When, therefore, s. 25(3) enacts that tax was chargedat any time on any business, it is intended that the tax wasat any time charged on the owner of any business."
}
},
{
"from_name": null,
"id": "640c8902f6724eed8fedca7d451a7b02",
"to_name": null,
"type": null,
"value": {
"end": 13706,
"labels": [
"ANALYSIS"
],
"start": 13460,
"text": "If that condition be fulfilled in respect of the income of the business under the Act of 1918, the owner or his successorin-interest qua the business, will be entitled to get the benefit of the exemption under it if the business, is discontinued."
}
},
{
"from_name": null,
"id": "08c779afbe954cc2bc3a2b36cbe59444",
"to_name": null,
"type": null,
"value": {
"end": 13855,
"labels": [
"ANALYSIS"
],
"start": 13707,
"text": "The section in terms refers to tax charged on any business, i.e., tax charged on any person in respect of income earned by carrying on the business."
}
},
{
"from_name": null,
"id": "b225b9f9a5f544ccb9ee353922cd0880",
"to_name": null,
"type": null,
"value": {
"end": 14045,
"labels": [
"ANALYSIS"
],
"start": 13855,
"text": "\n Undoubtedly it is not all income earned by a person who conducted any business, which is exempt under sub-s. (3) of s. 25: non-business income will certainly not qualify for the privilege."
}
},
{
"from_name": null,
"id": "93066b674adb46f68ac8be141cee4cb6",
"to_name": null,
"type": null,
"value": {
"end": 14254,
"labels": [
"ANALYSIS"
],
"start": 14046,
"text": "But there is no reason to restrict the condition of the applicability of the exemption only to income on which the tax was payable under the head \"profits and gains of business,profession orvocation\". "
}
},
{
"from_name": null,
"id": "0a50bb9b6c9643fa81250d4b47920fe3",
"to_name": null,
"type": null,
"value": {
"end": 14388,
"labels": [
"ANALYSIS"
],
"start": 14254,
"text": "The Legislature has made no such expressreservation, and there is no warrant for reading intosub-s. (3) such a restricted meaning."
}
},
{
"from_name": null,
"id": "7ba195f25f8a401e9961efc8f255cc2a",
"to_name": null,
"type": null,
"value": {
"end": 14554,
"labels": [
"ANALYSIS"
],
"start": 14389,
"text": "Sub- section (3) it may be noticed does not refer to chargeability of income to tax under a particular head as a condition of obtaining the benefit of the exemption."
}
},
{
"from_name": null,
"id": "035e1005adc941679e73de07225fd7e4",
"to_name": null,
"type": null,
"value": {
"end": 14625,
"labels": [
"ANALYSIS"
],
"start": 14554,
"text": "\n Diverse other provisions of the Act lend strong support to that view."
}
},
{
"from_name": null,
"id": "2aad3cb932b144ec8e3d0aafe4401ea4",
"to_name": null,
"type": null,
"value": {
"end": 14837,
"labels": [
"ANALYSIS"
],
"start": 14626,
"text": "Where the Legislature intended to refer to a specific head of taxation under s. 6 of the Act as a condi- tion for imposing an obligation or claiming a right, the Legislature has in terms referred to such a head."
}
},
{
"from_name": null,
"id": "4f58fd268d8d43c59dcf8bddd9090a60",
"to_name": null,
"type": null,
"value": {
"end": 15029,
"labels": [
"ANALYSIS"
],
"start": 14838,
"text": "For instance, by s. 18(2) liability is imposed upon any person responsible for paying any income chargeable under the head \"salaries\" to deduct income-tax and super-tax on the amount payable."
}
},
{
"from_name": null,
"id": "fcbd16b3edef4e78a84e8949f7b874bb",
"to_name": null,
"type": null,
"value": {
"end": 15241,
"labels": [
"ANALYSIS"
],
"start": 15030,
"text": "Similarly under s. 18(3) persons responsible for paying income-tax under the head \"interest on securities\"\n are liable to deduct income-tax and supertax at the prescribed rates on the amount of interest payable."
}
},
{
"from_name": null,
"id": "560a2ad61c544468b77c6c8849765d3a",
"to_name": null,
"type": null,
"value": {
"end": 15406,
"labels": [
"ANALYSIS"
],
"start": 15242,
"text": "Section 24 enables set-off in respect of loss sustained under any of the heads mentioned in s. 6 against income, profits and gains from any other head in that year."
}
},
{
"from_name": null,
"id": "bca5fb337564489eac1ab9c73dbc5c63",
"to_name": null,
"type": null,
"value": {
"end": 15497,
"labels": [
"ANALYSIS"
],
"start": 15407,
"text": "These are some of the provisions in which reference is made to specific heads of taxation."
}
},
{
"from_name": null,
"id": "414f195e6656474bb21970b72f48611c",
"to_name": null,
"type": null,
"value": {
"end": 15609,
"labels": [
"ANALYSIS"
],
"start": 15498,
"text": "But the exemption under s. 25(3) is general: it is not restricted to income chargeable under s.\n 10 of the Act."
}
},
{
"from_name": null,
"id": "17f8c962b22e4dc99e2a4764a830e489",
"to_name": null,
"type": null,
"value": {
"end": 15690,
"labels": [
"ANALYSIS"
],
"start": 15610,
"text": "Some indication is also furnished by the scheme of sub-ss. (1) and (2) of s. 25."
}
},
{
"from_name": null,
"id": "6d905bae89c9464280ec09650792d250",
"to_name": null,
"type": null,
"value": {
"end": 15865,
"labels": [
"ANALYSIS"
],
"start": 15691,
"text": "Under sub-s. (1) the Income-tax Officer is given power to make what is called an \"accelerated assessment\" when a business, profession or vocation is discontinued in any year."
}
},
{
"from_name": null,
"id": "0b0cf87ae8d84c9dad6720edbe9930c9",
"to_name": null,
"type": null,
"value": {
"end": 16112,
"labels": [
"ANALYSIS"
],
"start": 15866,
"text": "The reason of the rule contained in s. 25(1) is to prevent loss of revenue by the assessee discontinuing the business, profession or voca- tion and frittering away or secreting the assets and income or disappearing from the scene of his activity."
}
},
{
"from_name": null,
"id": "0544cbb127b745799e656c087a06fe52",
"to_name": null,
"type": null,
"value": {
"end": 16247,
"labels": [
"ANALYSIS"
],
"start": 16113,
"text": "But such an assessment would in the normal course have to be in respect of the entire income of that business, profession or vocation."
}
},
{
"from_name": null,
"id": "4c1073233c7845e5994a36098288f09a",
"to_name": null,
"type": null,
"value": {
"end": 16729,
"labels": [
"ANALYSIS"
],
"start": 16248,
"text": "If the contention of the Department that income of the business, profession or vocation for the purpose of an accelerated assessment is to be limited only to income on which tax is payable under s. 10 be correct, the assessment under s. 25(1) would serve little useful purpose, because income received from securities, from dividends, from house- property etc. would remain still to be determined and brought to tax after the end of the year and in the relevant year of assessment."
}
},
{
"from_name": null,
"id": "7e8fd0bf583d4342ad395d6b36dedc80",
"to_name": null,
"type": null,
"value": {
"end": 17066,
"labels": [
"ANALYSIS"
],
"start": 16730,
"text": "Again an assessee discontinuing his business, profession or vocation is entitled by s. 24 to set off losses in one business against profits in another, and this right may turn out to be illusory if in the assessment of the income of a business which is discontinued, profit and gains which fall within s. 10 only are taken into account."
}
},
{
"from_name": null,
"id": "34ea70d816e24316a48fb1ff1529c69b",
"to_name": null,
"type": null,
"value": {
"end": 17201,
"labels": [
"ANALYSIS"
],
"start": 17067,
"text": "The Revenue authorities, it is true, may get a complete picture of the liability of the assessee to taxation only on final assessment."
}
},
{
"from_name": null,
"id": "7eb8a92eaf5643dbb043a1cbc7dfbd95",
"to_name": null,
"type": null,
"value": {
"end": 17619,
"labels": [
"ANALYSIS"
],
"start": 17202,
"text": "This is not to say that a mere possibility of two assessments is decisive of the intention of the Legislature, for if that be the test, every person who has income received from business, profession or vocation and income from other source would still have to be subject, after an accelerated assessment under s. 25(1), to a final assess, ment in respect of the non-business income to determine his overall liability."
}
},
{
"from_name": null,
"id": "2924be20f2154975b7c80473ae014c82",
"to_name": null,
"type": null,
"value": {
"end": 17926,
"labels": [
"ANALYSIS"
],
"start": 17620,
"text": "But the possibility of two assessments in respect of the same business for the same year, one of which serves no useful purpose, must be taken into accountin ascertaining the meaning to be attributed to the expres- sion \"income, profits and gains of business, profession or vocation\" which is discontinued."
}
},
{
"from_name": null,
"id": "5b0826dba4c54229b7d06424cd345707",
"to_name": null,
"type": null,
"value": {
"end": 18090,
"labels": [
"ANALYSIS"
],
"start": 17927,
"text": "The phraseology of s. 25 (2) also supports the view that the income, profits and gains of business are not restricted to profits and gains charge-able under s. 10."
}
},
{
"from_name": null,
"id": "83c9b7ea19744835bac8e7062e07e250",
"to_name": null,
"type": null,
"value": {
"end": 18276,
"labels": [
"ANALYSIS"
],
"start": 18091,
"text": "For failure to give notice of discontinuance of business, penalty for an amount not exceeding the tax assessed in respect of any income, profits or gains of the business may be imposed."
}
},
{
"from_name": null,
"id": "99183c7287aa46ba871c62fc460ed328",
"to_name": null,
"type": null,
"value": {
"end": 18417,
"labels": [
"ANALYSIS"
],
"start": 18277,
"text": "There is no local reason for restricting the penalty to the amount of tax assessed on profits and gains determined for the purpose of s. 10."
}
},
{
"from_name": null,
"id": "1a8147006f1e4a71b64bb1a91b0d6ce4",
"to_name": null,
"type": null,
"value": {
"end": 18721,
"labels": [
"ANALYSIS"
],
"start": 18417,
"text": "\nIt has also to be noticed that prior to the insertion of sub-s. (1A) of s. 12 by s. 9 of the Finance Act, 1955, with affect from April 1, 1955, income from dividends was chargeable not under s. 12 but under s. 10, if the shares from which such income was received were the stock-intrade of the assessee."
}
},
{
"from_name": null,
"id": "3a176d12373947c0958979ede69e1fa4",
"to_name": null,
"type": null,
"value": {
"end": 18939,
"labels": [
"ANALYSIS"
],
"start": 18722,
"text": "The result of the insertion of s. 12(1A) is that in respect of a business in shares dividends received from the shares were till March 31, 1955, regarded as profits and gains of business assessable to tax under s.\n10."
}
},
{
"from_name": null,
"id": "e3a48582cee34ac9bf89c774fb3dd016",
"to_name": null,
"type": null,
"value": {
"end": 19083,
"labels": [
"ANALYSIS"
],
"start": 18940,
"text": "After the enactment of the Finance Act of 1955, dividends became chargeable under s. 12(1A) under the head \"income derived from other sources\"."
}
},
{
"from_name": null,
"id": "1b95986e4e224913ae029afa2dc97f4d",
"to_name": null,
"type": null,
"value": {
"end": 19472,
"labels": [
"ANALYSIS"
],
"start": 19084,
"text": "Could it have been the intention of the Legislature that dividend income of a business in respect of which tax was charged under the head \"Income from shares\" under Act 7 of 1918 would not, after March 31, 1955, be entitled to the benefit of the exemption under s. 25(3) merely because the head under which it was charged prior to the Finance Act of 1955 is now the head \"other sources\" ?"
}
},
{
"from_name": null,
"id": "a295e741bbc24cfb9110a885dbe01e88",
"to_name": null,
"type": null,
"value": {
"end": 19665,
"labels": [
"ANALYSIS"
],
"start": 19472,
"text": "\nSection 2(4) of the Indian Income-tax Act, 1922 defines \"business\" as including any trade, commerce, or manufacture or any adventure or concern in the nature of trade, commerce or manufacture."
}
},
{
"from_name": null,
"id": "afbf53873dac4484b92acc0d23d6e0df",
"to_name": null,
"type": null,
"value": {
"end": 19723,
"labels": [
"ANALYSIS"
],
"start": 19666,
"text": "Business is therefore an activity of a commercial nature."
}
},
{
"from_name": null,
"id": "55601ac81d62403c84ff15376d2a1651",
"to_name": null,
"type": null,
"value": {
"end": 19905,
"labels": [
"ANALYSIS"
],
"start": 19724,
"text": "By s. 25(3) indisputably exemption from payment of tax was intended to be given where there had been in respect of the same activity double taxation when Act 11 of 1922 was enacted."
}
},
{
"from_name": null,
"id": "1ac959dd5daa40bcade2690313bac7cd",
"to_name": null,
"type": null,
"value": {
"end": 20147,
"labels": [
"ANALYSIS"
],
"start": 19906,
"text": "If the right arises on discontinuance of the activity styled business,as s. 25(3) expressly provides, tax in connection with that activity would prima facie be tax payable on the income, profits and gains derived from that business activity."
}
},
{
"from_name": null,
"id": "a73122d3e722479eadaf1ee6491925d4",
"to_name": null,
"type": null,
"value": {
"end": 20409,
"labels": [
"ANALYSIS"
],
"start": 20148,
"text": "The heads described in s. 6 and further elaborated for the pur- pose of computation of income in ss. 7 to 10, and 12, 12A 12AA and 12B are intended merely to indicate the classes of income: the heads do not exhaustively delimit sources from which income arises."
}
},
{
"from_name": null,
"id": "bd65e3ef6eb749619094baa18f7e85e9",
"to_name": null,
"type": null,
"value": {
"end": 20821,
"labels": [
"PRE_RELIED"
],
"start": 20410,
"text": "This is made clear in the judgment of this Court in the United Commercial Bank Ltd.'s ,case(1) that business income is broken up under different heads only for the purpose of computation of the total income: by that break-up the income does not cease to be the income of the business, the different heads of income being only the classification prescribed by the Indian Income-tax Act for computation of income."
}
},
{
"from_name": null,
"id": "332df36ba7464ec99c27538b71fb8082",
"to_name": null,
"type": null,
"value": {
"end": 21024,
"labels": [
"ANALYSIS"
],
"start": 20822,
"text": "It cannot be gainsaid that there was on the part of the Legislature a desire by enacting s. 25(3) to give relief to two classes of income subjected to double taxation for the income of the year 1921-22."
}
},
{
"from_name": null,
"id": "d2731db8ab6c4bb09753dbc3d358c729",
"to_name": null,
"type": null,
"value": {
"end": 21415,
"labels": [
"ANALYSIS"
],
"start": 21025,
"text": "That this benefit was restricted to income paid by assessees who paid tax on income derived from business and professional earnings under the earlier Act and was not available in respect of other income, will not, in our judgment, be a ground for giving a restricted meaning to the expression \"income, profits and gains of business, profession or vocation\" occurring in sub-s. (3) of s. 25."
}
},
{
"from_name": null,
"id": "2049c6c6433949ebb26e90f689cad016",
"to_name": null,
"type": null,
"value": {
"end": 21574,
"labels": [
"ANALYSIS"
],
"start": 21416,
"text": "An intention to grant a partial exemption to income, profits and gains of a business, profession or vocation may not be lightly attributed to the Legislature."
}
},
{
"from_name": null,
"id": "b3dc11a32f804a50b70c102747360798",
"to_name": null,
"type": null,
"value": {
"end": 21738,
"labels": [
"ANALYSIS"
],
"start": 21574,
"text": "\nThere is no force in the contention raised by counsel for the Commissioner that for the year 1921-22 interest on securities could not be charged to tax twice over."
}
},
{
"from_name": null,
"id": "26ad0e10d1544a30bbdcc589a4e275de",
"to_name": null,
"type": null,
"value": {
"end": 21978,
"labels": [
"ANALYSIS"
],
"start": 21739,
"text": "Under the Income-tax Act, 7 of 1918, by s. 14(2) tax was levied in respect of the year beginning from April 1, 1918 in respect of each subsequent year, upon every assessee on his taxable income in that year at the rate specified in Sch. 1."
}
},
{
"from_name": null,
"id": "b78ab056189342e2b1d7482116778a16",
"to_name": null,
"type": null,
"value": {
"end": 22121,
"labels": [
"ANALYSIS"
],
"start": 21979,
"text": "Section 5 of that Act classified the income chargeable to income- tax, and \"Interest on securities\" was charged under s. 7 read with s. 5(ii)."
}
},
{
"from_name": null,
"id": "8823d09a1f73418db71a4eb369544f97",
"to_name": null,
"type": null,
"value": {
"end": 22349,
"labels": [
"ANALYSIS"
],
"start": 22122,
"text": "In respect of interest on securities by s. 14(1) the aggregate amount of the assessee's income chargeable under each of the heads mentioned in ss. 6 to 11 (1) [1958] S.C.R. 79became taxable in the year in which it was received."
}
},
{
"from_name": null,
"id": "9f70c5d3db654208bf91bcc6a3b90d5d",
"to_name": null,
"type": null,
"value": {
"end": 22476,
"labels": [
"ANALYSIS"
],
"start": 22350,
"text": "Act 7 of 1918 undoubtedly made a provision in s. 19 for adjustment of liability to tax when the actual income was ascertained."
}
},
{
"from_name": null,
"id": "7bbc041296384cb7b3dc69846abf5280",
"to_name": null,
"type": null,
"value": {
"end": 22668,
"labels": [
"ANALYSIS"
],
"start": 22476,
"text": "\nOur attention has not been invited to any provision in the Income-tax Act 7 of 1918 which excluded from liability to tax, interest on securities for the year in which that income had accrued."
}
},
{
"from_name": null,
"id": "801939f3959048749d7d615052235711",
"to_name": null,
"type": null,
"value": {
"end": 23014,
"labels": [
"ANALYSIS"
],
"start": 22669,
"text": "By s. 3 of Act 1 1 of 1922 interest on securities earned in the year 1921-22 became chargeable and under s. 68 of that Act which was a provision transitory as well as repealing, machinery provided by the Inome-tax Act of 1918 was expressly kept alive for the purpose of assessment and making adjustments under s. 19 of the Income- tax Act, 1918."
}
},
{
"from_name": null,
"id": "fbe2632e60cb42549b2870c29e3e31de",
"to_name": null,
"type": null,
"value": {
"end": 23165,
"labels": [
"ANALYSIS"
],
"start": 23015,
"text": "Interest on securities earned in 1921-22 was therefore chargeable to tax under Act 7 of 1918, and it was also chargeable to tax under Act 1 1 of 1922."
}
},
{
"from_name": null,
"id": "6207ca16f00c43f09afacdd56fdd4c48",
"to_name": null,
"type": null,
"value": {
"end": 23383,
"labels": [
"ANALYSIS"
],
"start": 23166,
"text": "We are therefore unable to agree with counsel for the Commissioner that interest on securities not being exposed to double taxation for the year 1921-22, benefit of s. 25(3) was not admissible to that class of income."
}
},
{
"from_name": null,
"id": "6b86a8ba6c0e4e74a96f45827dd63bbf",
"to_name": null,
"type": null,
"value": {
"end": 23693,
"labels": [
"ARG_PETITIONER"
],
"start": 23383,
"text": "\nCounsel also contended, relying upon the judgment of this Court in Commissioner of Income-tax, Bihar and Orissa Y.\nRamakrishna Deo(1) that it is for the respondent to prove that the income sought to be taxed is exempt from taxation, and unless he discharges that burden, the claim of the respondent must fail."
}
},
{
"from_name": null,
"id": "7d32ac65abf84ce2941ef9c59310d3cd",
"to_name": null,
"type": null,
"value": {
"end": 23927,
"labels": [
"ANALYSIS"
],
"start": 23694,
"text": "Undoubtedly where a doubt arises on the facts placed before the taxing authority, whether the tax-payer is entitled to exemption from taxation under a certain statutory provision, the burden lies upon him to establish that exemption."
}
},
{
"from_name": null,
"id": "433d1aa359364d17a5f26c4effc38eeb",
"to_name": null,
"type": null,
"value": {
"end": 24349,
"labels": [
"ANALYSIS"
],
"start": 23928,
"text": "But, here we are concerned not with any question of burden of proof, but with a question of interpretation whether the exemption which is admittedly given by s. 25(3) operates in respect of the entirety _of the business income for the year in question in the course of which the business is discontinued or whether it applies only to that class of income which is taxable under the head it profits and gains of business.\""
}
},
{
"from_name": null,
"id": "d81eb0fe944d41a392cb9410474111de",
"to_name": null,
"type": null,
"value": {
"end": 24390,
"labels": [
"ANALYSIS"
],
"start": 24350,
"text": "carried on by the assessee in that year."
}
},
{
"from_name": null,
"id": "a1bb11113e4443aebdd920c9491c1d10",
"to_name": null,
"type": null,
"value": {
"end": 24502,
"labels": [
"ANALYSIS"
],
"start": 24390,
"text": "\nSection 26 on which reliance was placed by counsel for the Commissioner also may be noticed in this connection."
}
},
{
"from_name": null,
"id": "ecb647a9b4464aeabb0f572068c19289",
"to_name": null,
"type": null,
"value": {
"end": 24660,
"labels": [
"ANALYSIS"
],
"start": 24503,
"text": "(1) [1959] Supp. 1 S.C.R. 176That section provides for a scheme of assessment when there is change in the constitution of a firm or succession to a business."
}
},
{
"from_name": null,
"id": "06e49f0a6a454fa0887084ee04218147",
"to_name": null,
"type": null,
"value": {
"end": 24802,
"labels": [
"ANALYSIS"
],
"start": 24661,
"text": "The section applies not to discontinuance of business, but to changes in the constitution of the assessee firm and to succession to business."
}
},
{
"from_name": null,
"id": "35c385dade4c49aa9dd53c64170578b2",
"to_name": null,
"type": null,
"value": {
"end": 25078,
"labels": [
"ANALYSIS"
],
"start": 24803,
"text": "Under sub-s. (1) if at the time of making an assessment it be found by the Income- tax Officer that a change has occurred in the constitution of a firm or that a firm has been newly constituted, the firm as constituted at the time of making the assessment has to be assessed."
}
},
{
"from_name": null,
"id": "368fbe1436a54462a9c03f77f4918b13",
"to_name": null,
"type": null,
"value": {
"end": 25301,
"labels": [
"ANALYSIS"
],
"start": 25079,
"text": "But the income, profits and gains for the previous year for the purpose of inclusion in the total income of the partners must be apportioned between the partners who in such previous year were entitled to receive the same."
}
},
{
"from_name": null,
"id": "f2244b5b902f4081a7826b91a757e5ba",
"to_name": null,
"type": null,
"value": {
"end": 25452,
"labels": [
"ANALYSIS"
],
"start": 25302,
"text": "If the tax assessed upon a partner cannot be recovered from him it may be recovered from the firm as constituted at the time of making the assessment."
}
},
{
"from_name": null,
"id": "94020f1cb7174d298397efd049aa11d1",
"to_name": null,
"type": null,
"value": {
"end": 25584,
"labels": [
"ANALYSIS"
],
"start": 25453,
"text": "This provision deals with the machinery of assessment and not with computation of income, nor with exemption from liability to tax."
}
},
{
"from_name": null,
"id": "e5836b87d60947409b6ba1b14ba36b7f",
"to_name": null,
"type": null,
"value": {
"end": 25986,
"labels": [
"ANALYSIS"
],
"start": 25585,
"text": "Sub-section (2) of s. 26 deals with cases of succession to any person carrying on any business, profession or vocation by another person carrying on business, profession or vocation in such capacity, and provides that the person succeeding is, subject to the provisions of sub-s. (4) of s. 25, liable to be assessed in respect of his actual share of the income, profits and gains of the previous year."
}
},
{
"from_name": null,
"id": "92092169081042b6bcf5a78e023bd74c",
"to_name": null,
"type": null,
"value": {
"end": 26557,
"labels": [
"ANALYSIS"
],
"start": 25987,
"text": "But the proviso enacts that if the person succeeded in the business, profession or vocation cannot be found, the assessment of the profits of the year in which succession took place upto the date of succession, and for the previous year, shall be made on the person succeeding in like manner and in the same amount as it would have been made on the person succeeded or when the tax in respect of the assessment made for either of such years assessed on the person succeeded cannot be recovered from him, it shall be payable by and recoverable from the person succeeding."
}
},
{
"from_name": null,
"id": "ef32b57e694047daa03e36c0b9d6eac8",
"to_name": null,
"type": null,
"value": {
"end": 26910,
"labels": [
"ANALYSIS"
],
"start": 26558,
"text": "This clause also deals with liability to assessment and payment of tax and not with the computation of income and whatever interpretation may be placed on s. 26 as to the extent of liability incurred by a successor to a business, profession or vocation, it is not indicative of the extent or of the field of the right to claim exemption unders. 25 (3)."
}
},
{
"from_name": null,
"id": "b4b47f5c1b604900afd8068da07bdfe5",
"to_name": null,
"type": null,
"value": {
"end": 27179,
"labels": [
"ANALYSIS"
],
"start": 26911,
"text": "Section 26 provides for apportionment of liability to tax in case of change in the constitution of firms and succession to persons carrying on business: it directs apportionment of tax liability in respect of the actual share of the successor and the person succeeded."
}
},
{
"from_name": null,
"id": "d1145d64b7a743fb817055f1106faa83",
"to_name": null,
"type": null,
"value": {
"end": 27610,
"labels": [
"ANALYSIS"
],
"start": 27180,
"text": "The fact that under sub-s. (2) of s. 26 liability is imposed upon the successor to pay tax on behalf of his predecessor or to be assessed in respect of the income of the person succeeded for the previous year, will not, in our judgment, be sufficient to hold that the exemption which has been granted in consequence of double taxation under the Acts of 1918 and 1922 also must be restricted to income which is taxable under s. 10."
}
},
{
"from_name": null,
"id": "8dbf99ee8e064904bd7fbd5734f650a1",
"to_name": null,
"type": null,
"value": {
"end": 27749,
"labels": [
"PRE_RELIED"
],
"start": 27610,
"text": "\nWe may briefly refer to the decision of this Court in The Commissioner of Income-tax, Madras v. The Express Newspapers Limited, Madras(1)."
}
},
{
"from_name": null,
"id": "828b76f71cee43db9953b13f57cd9280",
"to_name": null,
"type": null,
"value": {
"end": 27948,
"labels": [
"PRE_RELIED"
],
"start": 27750,
"text": "In that case Free Press Limited-a Private Company-transferred its business on August 31, 1946 to the assessee the Express Newspapers Ltd. and thereafter resolved to wind up its business voluntarily."
}
},
{
"from_name": null,
"id": "05cb87ced7114fa0b1bb6a2db608c751",
"to_name": null,
"type": null,
"value": {
"end": 28143,
"labels": [
"PRE_RELIED"
],
"start": 27949,
"text": "An amount of Rs. 2,14,000/- was assessed in the relevant year of assessment as business profit of the transferor company taxable under s. 10(2) (vii) and Rs. 3,94,576/- taxable as capital gains."
}
},
{
"from_name": null,
"id": "8f784e56729548519dd75bef092f9d48",
"to_name": null,
"type": null,
"value": {
"end": 28260,
"labels": [
"PRE_RELIED"
],
"start": 28144,
"text": "The business profit was held to be not taxable because it accrued in a winding up sale and not in a trading venture."
}
},
{
"from_name": null,
"id": "0964a2ceb3ab43d89de0f6c7244955dc",
"to_name": null,
"type": null,
"value": {
"end": 28477,
"labels": [
"PRE_RELIED"
],
"start": 28261,
"text": "Liability of the second amount to tax as capital gains was not canvassed, but it was contended by the Express Newspapers Ltd. that as successor to the Free Press Ltd., it was not liable to be assessed under s. 26(2)."
}
},
{
"from_name": null,
"id": "d6ff1ad9106a4bebbfb046b6fb8be1d2",
"to_name": null,
"type": null,
"value": {
"end": 28734,
"labels": [
"PRE_RELIED"
],
"start": 28478,
"text": "In examining the scheme of s. 12B it was observed:- \"Under that section the tax shall be payable by the assessee under the head capital gains in respect of any profits or gains arising from the sale of a capital asset effected during the prescribed period."
}
},
{
"from_name": null,
"id": "784b8d8dfac34e46a83f8afe55c7c2fe",
"to_name": null,
"type": null,
"value": {
"end": 28862,
"labels": [
"PRE_RELIED"
],
"start": 28735,
"text": "It says further that such profits or gains shall be deemed to be income of the previous year in which the sale etc. took place."
}
},
{
"from_name": null,
"id": "eda036eb7bea419a938613f4810e8d7d",
"to_name": null,
"type": null,
"value": {
"end": 29020,
"labels": [
"PRE_RELIED"
],
"start": 28863,
"text": "This deeming clause does not lift the capital gains from the 6th head in s. 6 and place it (1)[1964] 8 S.C.R. 189 under the 4th head."
}
},
{
"from_name": null,
"id": "20e3acc0fd674d0f85a33ed3100c57c4",
"to_name": null,
"type": null,
"value": {
"end": 29174,
"labels": [
"PRE_RELIED"
],
"start": 29021,
"text": "It only introduces a limited fiction, namely, that capital gains accrued will be deemed to be income of the previous year in which the sale was affected."
}
},
{
"from_name": null,
"id": "15cb3cecdd27468b8dabf30db27a22fd",
"to_name": null,
"type": null,
"value": {
"end": 29267,
"labels": [
"PRE_RELIED"
],
"start": 29174,
"text": "\n The fiction does not make them the profit or gains of the business."
}
},
{
"from_name": null,
"id": "b06a3cf7346445ada8d0e3e279598ce3",
"to_name": null,
"type": null,
"value": {
"end": 29413,
"labels": [
"PRE_RELIED"
],
"start": 29268,
"text": "It is well settled that a legal fiction is limited to the purpose for which it is created and should not be extended beyond its legitimate field."
}
},
{
"from_name": null,
"id": "10e854148f814f7a9cd231a99a1d62b9",
"to_name": null,
"type": null,
"value": {
"end": 29583,
"labels": [
"PRE_RELIED"
],
"start": 29414,
"text": "Sub- section (2A) and (2B) of s. 24 provide for the setting off of the loss falling under the head \"capital gains\" against any capital gains falling under the same head."
}
},
{
"from_name": null,
"id": "2b9337e05a384b3aa870692ffcb9ac57",
"to_name": null,
"type": null,
"value": {
"end": 29663,
"labels": [
"PRE_RELIED"
],
"start": 29584,
"text": "Such loss cannot be set off against an income falling under any different head."
}
},
{
"from_name": null,
"id": "fb2620019c604e9bb2d9c4c6234d6de6",
"to_name": null,
"type": null,
"value": {
"end": 29855,
"labels": [
"PRE_RELIED"
],
"start": 29664,
"text": "These three sections indicate beyond any doubt that the capital gains are separately computed in accordance with the said provisions and they are not treated as the profits from the business."
}
},
{
"from_name": null,
"id": "3a9393031beb40008fa411ed5550097c",
"to_name": null,
"type": null,
"value": {
"end": 30159,
"labels": [
"PRE_RELIED"
],
"start": 29856,
"text": "The profits and gains of business and capital gains are two distinct concepts in the Incometax Act: the former arises from the activity which is called business and the latter accrues because capital assets are disposed of at a value higher than what they cost to the assessee.\n "
}
},
{
"from_name": null,
"id": "facc562a258f4c47be9a1e2cdd25aade",
"to_name": null,
"type": null,
"value": {
"end": 30291,
"labels": [
"PRE_RELIED"
],
"start": 30159,
"text": "They are placed under \"different heads; they are derived from different sources; and the income is computed under different methods."
}
},
{
"from_name": null,
"id": "b2ef67456a0d4d8f93188245c45fba21",
"to_name": null,
"type": null,
"value": {
"end": 30447,
"labels": [
"PRE_RELIED"
],
"start": 30291,
"text": "\n The fact that the capital gains are connected with the capital assets of the business cannot make them the profit of the business."
}
},
{
"from_name": null,
"id": "a6d4b225560140a6979b4de66fb041a1",
"to_name": null,
"type": null,
"value": {
"end": 30575,
"labels": [
"PRE_RELIED"
],
"start": 30448,
"text": "They are only deemed to be income of the previous year and not the profit or gains arising from the business during that year.\""
}
},
{
"from_name": null,
"id": "e1dd452411954613b5cf5044842bfe0b",
"to_name": null,
"type": null,
"value": {
"end": 30783,
"labels": [
"PRE_RELIED"
],
"start": 30577,
"text": "Dealing with s. 26(2) it was observed:- the expression \"profits\" in the proviso makes it clear that the income, profits and gains in sub-s. (2) of s. 26 only refer to the profits under the 4th head in s. 6."
}
},
{
"from_name": null,
"id": "eb1cc4790745469684960ccfcb01ca0c",
"to_name": null,
"type": null,
"value": {
"end": 31013,
"labels": [
"PRE_RELIED"
],
"start": 30784,
"text": "On the other hand, if the interpretation sought to be put upon the expression \"income\" in sub-s. (2) of s. 26 by the Revenue is accepted, then the absence of that word in the proviso destroys the argument."
}
},
{
"from_name": null,
"id": "a6a55b84469c47e6adc4e883ac958875",
"to_name": null,
"type": null,
"value": {
"end": 31197,
"labels": [
"PRE_RELIED"
],
"start": 31014,
"text": "But the more reasonable view is that both the sub-section and the proviso deal only with the profits under the 4th head mentioned in s. 6 and, so construed, it excludes capital gains."
}
},
{
"from_name": null,
"id": "14d3dd1f6e5442aa8008b1cd6a3fac9f",
"to_name": null,
"type": null,
"value": {
"end": 31539,
"labels": [
"PRE_RELIED"
],
"start": 31198,
"text": "The argument that sub-s. (2) of s. 26 read with the proviso thereto indicates that the total income of the person succeeded is the criterion for separate assessment under sub-s. (2) and for assessment and realisation under the proviso is on the assumption that sub-s. (2) and the proviso deal with all the heads mentioned in s. 6 of the Act."
}
},
{
"from_name": null,
"id": "ba753917f17049269e6c3c9f5e717a39",
"to_name": null,
"type": null,
"value": {
"end": 31776,
"labels": [
"PRE_RELIED"
],
"start": 31540,
"text": "But if, as we have held, the scope of sub-s. (2) of s. 26 is only limited to the income from the business, the share under sub- s. (2) and the assessment and realisation under the proviso can only relate to the income from the business."
}
},
{
"from_name": null,
"id": "f6208b38e723403aac078fcd5340839f",
"to_name": null,
"type": null,
"value": {
"end": 31829,
"labels": [
"PRE_RELIED"
],
"start": 31777,
"text": "The argument is really begging the question itself.\""
}
},
{
"from_name": null,
"id": "81eef2d889ff492898ddef7a609d2c04",
"to_name": null,
"type": null,
"value": {
"end": 32327,
"labels": [
"ANALYSIS"
],
"start": 31829,
"text": "\nIt is obvious that the Court in that case held having regard to the special nature of \"capital gains\" which are not in truth income, but are deemed income for the purpose of taxation and the phraseology used, that the liability of the successor under the proviso to s. 26 (2) is only in respect of tax on income, profits and gains of the business strictly so-called, to be computed under s. 10 read with s. 6 (iv) and not in respect of all receipts which may be regarded as income of the business."
}
},
{
"from_name": null,
"id": "29dc3da0932e4857b5bbaff08b824e49",
"to_name": null,
"type": null,
"value": {
"end": 32387,
"labels": [
"RATIO"
],
"start": 32328,
"text": "The schemes of s. 25(3) and s.\n26(2) proviso are different."
}
},
{
"from_name": null,
"id": "c93ab7703e1c4064b95ae875c795d1ef",
"to_name": null,
"type": null,
"value": {
"end": 32583,
"labels": [
"RATIO"
],
"start": 32388,
"text": "The first grants an exemption because there has been a double levy of tax, and an intention to exempt all income, profits and gains of business from taxation may be attributed to the Legislature."
}
},
{
"from_name": null,
"id": "596af554710b438e8a30813d889961a0",
"to_name": null,
"type": null,
"value": {
"end": 32709,
"labels": [
"RATIO"
],
"start": 32583,
"text": "\nSection 26(2) fastens liability of the predecessor, if he cannot be found, upon the successor and must be strictly construed."
}
},
{
"from_name": null,
"id": "7ba55833aa514f779a939df7a793f7f5",
"to_name": null,
"type": null,
"value": {
"end": 33120,
"labels": [
"RATIO"
],
"start": 32710,
"text": "The Legislature has imposed by s. 26(2) liability upon the successor to be assessed for profits earned in a business carried on by his predecessor, and unless there is a clear intention expressed in the statute to include in that expression what in reality is not income, but is deemed income, the liability to assessment would justifiably be limited to profits of the business which is computable under s. 10."
}
},
{
"from_name": null,
"id": "6551635ef2d049778b4c950668e2bef5",
"to_name": null,
"type": null,
"value": {
"end": 33177,
"labels": [
"RPC"
],
"start": 33120,
"text": "\nThe appeals therefore fail and are dismissed with costs."
}
},
{
"from_name": null,
"id": "a16a353f2f5641f6bdd97fe607591483",
"to_name": null,
"type": null,
"value": {
"end": 33194,
"labels": [
"NONE"
],
"start": 33177,
"text": "\nOne hearing fee."
}
},
{
"from_name": null,
"id": "cee7324a890f4e0db03c6063f2ddefdc",
"to_name": null,
"type": null,
"value": {
"end": 33213,
"labels": [
"NONE"
],
"start": 33194,
"text": "\nAppeals dismisses."
}
}
]
}
] | 4,262 | {
"text": "PETITIONER:\nCOMMISSIONER OF INCOME-TAX BOMBAY\n\n Vs.\n\nRESPONDENT:\nCHUGANDAS AND CO., BOMBAY\n\nDATE OF JUDGMENT:\n29/07/1964\n\nBENCH:\nSHAH, J.C.\nBENCH:\nSHAH, J.C.\nSUBBARAO, K.\nSIKRI, S.M.\n\nCITATION:\n\n1965 AIR 568 1964 SCR (8) 332\n\nCITATOR INFO : (7)\n (9)\nR 1966 SC 47 (5,6)\n (12)\nRF 1966 SC1514\n\nF 1967 SC1061\n\nD 1968 SC 9\n\nACT:\nIndian Income-tax Act (XI of 1922), s. 25(3)-Exemption\napplicable to what income.\n\nHEADNOTE:\nThe respondent was a firm dealing in securities and was\ncharged to income-tax under the Income-tax Act (VII of\n1918). It received certain sums of money as interest oil\nsecurities in the accounting years 1946 and 1947 (assessment\nyears 194748 and 1948-49) respectively. It discontinued its\nbusiness on 30th June 1947, and, for the assessment year\n1948-49, claimed exemption from taxation under s. 25(3) of\nthe Incometax Act (XI of 1922). The income-tax officer and\nthe Appellate Assistant Commissioner, held that, the income\nfell under the bead 'interest on securities\" under s. 8 and\nnot under the head \"profits and gains of business,\nprofession or vocation\" under s. 10 and that therefore, the\nrespondent was not entitled to the exemption. The Appellate\nTribunal reversed that order and the High Court (by a\nmajority) confirmed the order of the Tribunal. The\nCommissioner of Income-tax appealed to the Supreme Court.\nHeld: The appeal should be dismissed.\nWhen s. 25(3) of the Indian Income-tax Act (XI of 1922)\nenacts that \"where any business, profession or vocation on\nwhich tax was at any time charged, it is intended that the\ntax was at any time charged on the owner of the business.\nIf that condition be fulfilled in respect of the income of\nthe business under the Indian Income-tax Act (VII of 1918),\nthe owner will be entitled to get the benefit of the\nexemption under the section if the business is discontinued.\nThe section in terms refers to tax charged on any business,\nthat is, tax charged on any person In respect of all income\nearned by carrying on the business. There is no reason to\nrestrict the condition of the applicability of the exemption\nonly to income on which tax was payable under s. 10 of the\nAct under the head \"Profits and gains of business,\n\nprofession or vocation\".\nThe United Commercial Bank Ltd., Calcutta v. The\nCommissioner of Income-tax, West Bengal, 19581 S.C.R. 79 and\nThe Commissioner of Income-tax, Madras v. The Express\nNewspapers Limited, Madras, [1964] 8 S.C.R. 189, referred\nto.\n\nJUDGMENT:\nCIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 685 & 686 of 1963.Appeal from the judgment and order dated December 17, 18, 1958, of the Bombay High Court in Income-tax Reference No.\n27/X of 1954.\nK.N. Rajagopala Sastri and R. N. Sachthey, for the appellant.\nN.A. Palkhivala, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the respondent.\nJuly 29, 1964. The Judgment of the Court was delivered by SHAH-- M/S. Chugandas and Co a firm dealing in securities- received in the year 1946 Rs. 4,13,992/- as interest on securities held by it. In 1947 it received Rs. 1,01,229/- as interest from the same source. On June 30, 1947 the firm discontinued its business. In proceedings for assessment for 1947-48 and 1948-49 the firm, relying upon s. 25(3) of the Indian Income-tax Act, 1922, claimed exemption from payment of tax on income earned in the relevant previous year, on the plea that the firm was carrying on business before the Indian Income-tax Act, 1922, was enacted, and on that business, tax had been charged under the provisions of the Indian Incometax Act 7 of 1918 in respect of the business done immediately before that Act was repealed. The firm also applied to substitute the income earned in the year 1947 for the income of the previous year. The Income- tax Officer held that the interest earned by the firm on securities being \"liable to be assessed to tax\" under s. 8 and not under s. 10 of the Income-tax Act, the firm was not entitled to the benefit of the exemption claimed. The order of the Income-tax Officer was confirmed in appeal by the Appellate Assistant Commissioner. The Income-tax Appellate Tribunal, however, reversed the order and held that the firm was entitled to the benefit of the exemption in respect of the entire income of the business including income from securities in the year in which the business was discontinued.\nAt the instance of the Commissioner, the Tribunal referred under s. 66(1) of the Act a question, whichwhen reframed by the High Court of Bombay read as follows:- \"Whether the assessee is entitled to the benefit of s. 25(3) in respect of the interest on securities?\"\nIt is common ground that the principal business of the assessee was as a dealer in securities. Securities held by the assessee were its stock-in-trade and interest on those securities was received from time to time, and this interest had for computing the taxable income to be taken into account under s. 8 of the Indian Income-tax Act, 1922.\nSection 25(3), on the true interpretation of which the respective contentions of the assessee and the Commissioner have to be adjudged, is in the following terms: \"Where any business, profession or vocation on which tax was at any time charged under the provisions of the Indian Income-tax Act, 1918 (VII of 1918), is discontinued, then, unless there has been a succession by virtue of which the provisions of sub-section (4) have been rendered applicable, no tax shall be payable in respect of the income, profits and gains of the period between the end of the previous year and the date of such discontinuance, and the assessee may further claim that the income, profits and gains of the previous year shall be deemed to have been the income, profits and gains of the said period. Where any such claim is made, an assessment shall be made on the basis of the income, profits and gains of the said period, and if an amount of tax has already been paid in respect of the income, profits and gains of the previous year exceeding the amount payable on the basis of such assessment, a refund shall be given of the difference.\"\nExemption from liability to pay tax in respect of the income, ,profits and gains under s. 25(3) may be claimed by anassessee if the business is one in respect of which tax was charged at any time under the Indian Income-tax Act, 1918 and the business is discontinued-there being? a succession by virtue of which the provisions of sub-s. (4) of s. 25 have been rendered applicable. Section 25(3) however applies even if the person assessed under the Income-tax Act, 1918, was different from the person who claims relief under that section provided the former was the predecessor- in-interest of such person qua the business. The reason for enacting s. 25(3) was that under the Indian Income-tax Act 7 of 1918, income-tax was levied by virtue of s. 14(2) of Act 7 of 1918 on the income of the year of assessment. Tax was therefore levied in the financial year 1921-22 on the income of that year. By the Indian Income-tax Act 11 of 1922 the basis of taxation was altered and by s. 3 of that Act, charge for tax was imposed upon the income of the previous year. When Act 1 1 of 1922 was brought into force on April 1, 1922, two assessments in respect of the same income for the year 1921-22 had to be made. The income for 1921-22 was accordingly charged to tax twice: it was charged under Act 7 of 1918 and it was also charge,' to tax under s. 3 of Act 1 1 of 1922 read with the appropriate Finance Act, resulting in double taxation in respect of the income for that year.\nBut with a view to make the number of assessments equal to the number of years during which the business was carried on the Legislature enacted the exemption prescribed by s.\n25(3). This benefit was however restricted only to the income, profits and gains of business, profession or vocation on which tax had been charged under the provisions of the Indian Income-tax Act, 1918. By enacting s. 25(3) the Legislature intended to exempt the income, profits and gains resulting from the activity styled business, profession or vocation from tax when the business, profes- sion or vocation is discontinued if tax was charged in respect thereof under the Act of 1918. That much is clear.\nBut that is not the whole problem. What is to be regarded --is income, profits and gains of business, profession or vocation within the meaning of s. 25(3) for which exemption may be obtained on discontinuance raises a problem on whichthere was a difference of opinion in the High Court. In the judgment under appeal, Tendolkar, J., was of the view that by this expression only income, profits and gains of business chargeable to tax under the head \"profits and gains of business, profession or vocation\" under s. 10 read with s. 6(iv) stood exempt from liability under s. 25(3)_. S. T.\nDesai, J., held that s. 25(3) exempted from liability to tax all income, profits and gains earned by conducting a busi- ness, profession or vocation irrespective of whether they were chargeable to tax under the head \"profits and gains of business, profession or vocation\", and with this view K. T.\nDesai, J., to whom the case was referred for opinion.\nagreed.\nTo appreciate the point in dispute, it is necessary to bear in mind the scheme of the Act for computing the taxable income. Under the Act, income-tax is a single tax on the aggregate of income received from diverse heads mentioned in s. 6: s. 6 is not a charging section, and income computed under each distinct head is not separately chargeable to tax. But income which is chargeable under a specific head, cannot be brought to tax under another head either in lieu of or in addition to that head. As observed by this Court in The United Commercial Bank Ltd., Calcutta v. The Commissioner of Income-tax, West Bengal(1) \"the scheme of the Indian Income-tax Act, 1922, is that the various heads of income, profits and gains enumerated in s. 6 are mutually exclusive, each head being specific to cover the item) arising from a particular source and, consequently, \"interest on securities\" which is specifically made chargeable to tax under s. 8 as a distinct head, falls under that section and cannot be brought under s. 10, whether the securities are held as trading assets or capital asset.\" In The United Commercial Bank's case(1) the Income Tax Officer split up the income of a Banking Company was in the course of assessment, into two heads\"interest on securities\" and \"business income\", and set off the business loss against the income from securities in the year, of assessment, but did not allow the business loss of a previous year to be set off under s. 24(2) against that (1) [1959] S.C.R. 79.income. This view was approved by the High Court of Calcutta. The High Court held that the several heads under s. 6 of the income-tax Act are mutually exclusive, and an item falling under an exclusive head cannot be charged under another head. This view was affirmed by this Court, and it was held that \"interest on securities\" being specifically charged under s. 8, which is a distinct head, it could not be brought under s. 10, whether the securities were trading assets or capital assets.\nIt must therefore be held that even if an item of income is earned in the course of carrying on a business, it will not necessarily fall within the head \"profits and gains of busi- ness\" within the meaning of s. 10 read with s. 6(iv). If securities constitute stock-in-trade of the business of an assessee, interest received from those securities will for the purpose of determining the taxable income be shown under the head \"interest on securities\" under s. 8 read with s.\n6(ii) of the Act. Similarly dividends from shares will be shown under s. 12(1A) and not under s. 10. If an assessee carries on business of purchasing and selling buildings, the profits and gains earned by transactions in buildings will be shown under s. 10, but income received from the buildings so long as they are owned by the assessee will be shown under s. 9 read with s. 6 (iii). Income earned by an assessee carrying on business will in each case be broken up, and taxable income under the head profits and gains of business will be that amount alone which is earned in the business, and does not all under any other specific head.\n Tendolkar J., in the judgment under appeal was of the opinion that income of the business to be computed under s.\n 10 alone could be admitted to the exemption: the ,majority of the Court held that all income earned by carrying on business qualified for the exemption. Now cl. (3) of s. 25 expressly provides that income of a business, profession or vocation which was charged at any time under Act 7 of 1918 to tax is, on discontinuance of that business. profession or vocation, exempt from liability to tax under Act 11 at 1922 for the period between the end of the previous year and the date of such discontinuance. Tax is charged under the Income-tax Acts on specific units, such 51 S.C.-22 as, individuals, Hindu Undivided Families, Companies Local Authorities, Firms and Associations of persons or partners of firms and members of associations individually, and business, profession or vocation is not a unit of assess- ment. When, therefore, s. 25(3) enacts that tax was chargedat any time on any business, it is intended that the tax wasat any time charged on the owner of any business.If that condition be fulfilled in respect of the income of the business under the Act of 1918, the owner or his successorin-interest qua the business, will be entitled to get the benefit of the exemption under it if the business, is discontinued. The section in terms refers to tax charged on any business, i.e., tax charged on any person in respect of income earned by carrying on the business.\n Undoubtedly it is not all income earned by a person who conducted any business, which is exempt under sub-s. (3) of s. 25: non-business income will certainly not qualify for the privilege. But there is no reason to restrict the condition of the applicability of the exemption only to income on which the tax was payable under the head \"profits and gains of business,profession orvocation\". The Legislature has made no such expressreservation, and there is no warrant for reading intosub-s. (3) such a restricted meaning. Sub- section (3) it may be noticed does not refer to chargeability of income to tax under a particular head as a condition of obtaining the benefit of the exemption.\n Diverse other provisions of the Act lend strong support to that view. Where the Legislature intended to refer to a specific head of taxation under s. 6 of the Act as a condi- tion for imposing an obligation or claiming a right, the Legislature has in terms referred to such a head. For instance, by s. 18(2) liability is imposed upon any person responsible for paying any income chargeable under the head \"salaries\" to deduct income-tax and super-tax on the amount payable. Similarly under s. 18(3) persons responsible for paying income-tax under the head \"interest on securities\"\n are liable to deduct income-tax and supertax at the prescribed rates on the amount of interest payable. Section 24 enables set-off in respect of loss sustained under any of the heads mentioned in s. 6 against income, profits and gains from any other head in that year. These are some of the provisions in which reference is made to specific heads of taxation. But the exemption under s. 25(3) is general: it is not restricted to income chargeable under s.\n 10 of the Act. Some indication is also furnished by the scheme of sub-ss. (1) and (2) of s. 25. Under sub-s. (1) the Income-tax Officer is given power to make what is called an \"accelerated assessment\" when a business, profession or vocation is discontinued in any year. The reason of the rule contained in s. 25(1) is to prevent loss of revenue by the assessee discontinuing the business, profession or voca- tion and frittering away or secreting the assets and income or disappearing from the scene of his activity. But such an assessment would in the normal course have to be in respect of the entire income of that business, profession or vocation. If the contention of the Department that income of the business, profession or vocation for the purpose of an accelerated assessment is to be limited only to income on which tax is payable under s. 10 be correct, the assessment under s. 25(1) would serve little useful purpose, because income received from securities, from dividends, from house- property etc. would remain still to be determined and brought to tax after the end of the year and in the relevant year of assessment. Again an assessee discontinuing his business, profession or vocation is entitled by s. 24 to set off losses in one business against profits in another, and this right may turn out to be illusory if in the assessment of the income of a business which is discontinued, profit and gains which fall within s. 10 only are taken into account. The Revenue authorities, it is true, may get a complete picture of the liability of the assessee to taxation only on final assessment. This is not to say that a mere possibility of two assessments is decisive of the intention of the Legislature, for if that be the test, every person who has income received from business, profession or vocation and income from other source would still have to be subject, after an accelerated assessment under s. 25(1), to a final assess, ment in respect of the non-business income to determine his overall liability. But the possibility of two assessments in respect of the same business for the same year, one of which serves no useful purpose, must be taken into accountin ascertaining the meaning to be attributed to the expres- sion \"income, profits and gains of business, profession or vocation\" which is discontinued. The phraseology of s. 25 (2) also supports the view that the income, profits and gains of business are not restricted to profits and gains charge-able under s. 10. For failure to give notice of discontinuance of business, penalty for an amount not exceeding the tax assessed in respect of any income, profits or gains of the business may be imposed. There is no local reason for restricting the penalty to the amount of tax assessed on profits and gains determined for the purpose of s. 10.\nIt has also to be noticed that prior to the insertion of sub-s. (1A) of s. 12 by s. 9 of the Finance Act, 1955, with affect from April 1, 1955, income from dividends was chargeable not under s. 12 but under s. 10, if the shares from which such income was received were the stock-intrade of the assessee. The result of the insertion of s. 12(1A) is that in respect of a business in shares dividends received from the shares were till March 31, 1955, regarded as profits and gains of business assessable to tax under s.\n10. After the enactment of the Finance Act of 1955, dividends became chargeable under s. 12(1A) under the head \"income derived from other sources\". Could it have been the intention of the Legislature that dividend income of a business in respect of which tax was charged under the head \"Income from shares\" under Act 7 of 1918 would not, after March 31, 1955, be entitled to the benefit of the exemption under s. 25(3) merely because the head under which it was charged prior to the Finance Act of 1955 is now the head \"other sources\" ?\nSection 2(4) of the Indian Income-tax Act, 1922 defines \"business\" as including any trade, commerce, or manufacture or any adventure or concern in the nature of trade, commerce or manufacture. Business is therefore an activity of a commercial nature. By s. 25(3) indisputably exemption from payment of tax was intended to be given where there had been in respect of the same activity double taxation when Act 11 of 1922 was enacted. If the right arises on discontinuance of the activity styled business,as s. 25(3) expressly provides, tax in connection with that activity would prima facie be tax payable on the income, profits and gains derived from that business activity. The heads described in s. 6 and further elaborated for the pur- pose of computation of income in ss. 7 to 10, and 12, 12A 12AA and 12B are intended merely to indicate the classes of income: the heads do not exhaustively delimit sources from which income arises. This is made clear in the judgment of this Court in the United Commercial Bank Ltd.'s ,case(1) that business income is broken up under different heads only for the purpose of computation of the total income: by that break-up the income does not cease to be the income of the business, the different heads of income being only the classification prescribed by the Indian Income-tax Act for computation of income. It cannot be gainsaid that there was on the part of the Legislature a desire by enacting s. 25(3) to give relief to two classes of income subjected to double taxation for the income of the year 1921-22. That this benefit was restricted to income paid by assessees who paid tax on income derived from business and professional earnings under the earlier Act and was not available in respect of other income, will not, in our judgment, be a ground for giving a restricted meaning to the expression \"income, profits and gains of business, profession or vocation\" occurring in sub-s. (3) of s. 25. An intention to grant a partial exemption to income, profits and gains of a business, profession or vocation may not be lightly attributed to the Legislature.\nThere is no force in the contention raised by counsel for the Commissioner that for the year 1921-22 interest on securities could not be charged to tax twice over. Under the Income-tax Act, 7 of 1918, by s. 14(2) tax was levied in respect of the year beginning from April 1, 1918 in respect of each subsequent year, upon every assessee on his taxable income in that year at the rate specified in Sch. 1. Section 5 of that Act classified the income chargeable to income- tax, and \"Interest on securities\" was charged under s. 7 read with s. 5(ii). In respect of interest on securities by s. 14(1) the aggregate amount of the assessee's income chargeable under each of the heads mentioned in ss. 6 to 11 (1) [1958] S.C.R. 79became taxable in the year in which it was received. Act 7 of 1918 undoubtedly made a provision in s. 19 for adjustment of liability to tax when the actual income was ascertained.\nOur attention has not been invited to any provision in the Income-tax Act 7 of 1918 which excluded from liability to tax, interest on securities for the year in which that income had accrued. By s. 3 of Act 1 1 of 1922 interest on securities earned in the year 1921-22 became chargeable and under s. 68 of that Act which was a provision transitory as well as repealing, machinery provided by the Inome-tax Act of 1918 was expressly kept alive for the purpose of assessment and making adjustments under s. 19 of the Income- tax Act, 1918. Interest on securities earned in 1921-22 was therefore chargeable to tax under Act 7 of 1918, and it was also chargeable to tax under Act 1 1 of 1922. We are therefore unable to agree with counsel for the Commissioner that interest on securities not being exposed to double taxation for the year 1921-22, benefit of s. 25(3) was not admissible to that class of income.\nCounsel also contended, relying upon the judgment of this Court in Commissioner of Income-tax, Bihar and Orissa Y.\nRamakrishna Deo(1) that it is for the respondent to prove that the income sought to be taxed is exempt from taxation, and unless he discharges that burden, the claim of the respondent must fail. Undoubtedly where a doubt arises on the facts placed before the taxing authority, whether the tax-payer is entitled to exemption from taxation under a certain statutory provision, the burden lies upon him to establish that exemption. But, here we are concerned not with any question of burden of proof, but with a question of interpretation whether the exemption which is admittedly given by s. 25(3) operates in respect of the entirety _of the business income for the year in question in the course of which the business is discontinued or whether it applies only to that class of income which is taxable under the head it profits and gains of business.\" carried on by the assessee in that year.\nSection 26 on which reliance was placed by counsel for the Commissioner also may be noticed in this connection.\n(1) [1959] Supp. 1 S.C.R. 176That section provides for a scheme of assessment when there is change in the constitution of a firm or succession to a business. The section applies not to discontinuance of business, but to changes in the constitution of the assessee firm and to succession to business. Under sub-s. (1) if at the time of making an assessment it be found by the Income- tax Officer that a change has occurred in the constitution of a firm or that a firm has been newly constituted, the firm as constituted at the time of making the assessment has to be assessed. But the income, profits and gains for the previous year for the purpose of inclusion in the total income of the partners must be apportioned between the partners who in such previous year were entitled to receive the same. If the tax assessed upon a partner cannot be recovered from him it may be recovered from the firm as constituted at the time of making the assessment. This provision deals with the machinery of assessment and not with computation of income, nor with exemption from liability to tax. Sub-section (2) of s. 26 deals with cases of succession to any person carrying on any business, profession or vocation by another person carrying on business, profession or vocation in such capacity, and provides that the person succeeding is, subject to the provisions of sub-s. (4) of s. 25, liable to be assessed in respect of his actual share of the income, profits and gains of the previous year. But the proviso enacts that if the person succeeded in the business, profession or vocation cannot be found, the assessment of the profits of the year in which succession took place upto the date of succession, and for the previous year, shall be made on the person succeeding in like manner and in the same amount as it would have been made on the person succeeded or when the tax in respect of the assessment made for either of such years assessed on the person succeeded cannot be recovered from him, it shall be payable by and recoverable from the person succeeding. This clause also deals with liability to assessment and payment of tax and not with the computation of income and whatever interpretation may be placed on s. 26 as to the extent of liability incurred by a successor to a business, profession or vocation, it is not indicative of the extent or of the field of the right to claim exemption unders. 25 (3). Section 26 provides for apportionment of liability to tax in case of change in the constitution of firms and succession to persons carrying on business: it directs apportionment of tax liability in respect of the actual share of the successor and the person succeeded. The fact that under sub-s. (2) of s. 26 liability is imposed upon the successor to pay tax on behalf of his predecessor or to be assessed in respect of the income of the person succeeded for the previous year, will not, in our judgment, be sufficient to hold that the exemption which has been granted in consequence of double taxation under the Acts of 1918 and 1922 also must be restricted to income which is taxable under s. 10.\nWe may briefly refer to the decision of this Court in The Commissioner of Income-tax, Madras v. The Express Newspapers Limited, Madras(1). In that case Free Press Limited-a Private Company-transferred its business on August 31, 1946 to the assessee the Express Newspapers Ltd. and thereafter resolved to wind up its business voluntarily. An amount of Rs. 2,14,000/- was assessed in the relevant year of assessment as business profit of the transferor company taxable under s. 10(2) (vii) and Rs. 3,94,576/- taxable as capital gains. The business profit was held to be not taxable because it accrued in a winding up sale and not in a trading venture. Liability of the second amount to tax as capital gains was not canvassed, but it was contended by the Express Newspapers Ltd. that as successor to the Free Press Ltd., it was not liable to be assessed under s. 26(2). In examining the scheme of s. 12B it was observed:- \"Under that section the tax shall be payable by the assessee under the head capital gains in respect of any profits or gains arising from the sale of a capital asset effected during the prescribed period. It says further that such profits or gains shall be deemed to be income of the previous year in which the sale etc. took place. This deeming clause does not lift the capital gains from the 6th head in s. 6 and place it (1)[1964] 8 S.C.R. 189 under the 4th head. It only introduces a limited fiction, namely, that capital gains accrued will be deemed to be income of the previous year in which the sale was affected.\n The fiction does not make them the profit or gains of the business. It is well settled that a legal fiction is limited to the purpose for which it is created and should not be extended beyond its legitimate field. Sub- section (2A) and (2B) of s. 24 provide for the setting off of the loss falling under the head \"capital gains\" against any capital gains falling under the same head. Such loss cannot be set off against an income falling under any different head. These three sections indicate beyond any doubt that the capital gains are separately computed in accordance with the said provisions and they are not treated as the profits from the business. The profits and gains of business and capital gains are two distinct concepts in the Incometax Act: the former arises from the activity which is called business and the latter accrues because capital assets are disposed of at a value higher than what they cost to the assessee.\n They are placed under \"different heads; they are derived from different sources; and the income is computed under different methods.\n The fact that the capital gains are connected with the capital assets of the business cannot make them the profit of the business. They are only deemed to be income of the previous year and not the profit or gains arising from the business during that year.\"\n Dealing with s. 26(2) it was observed:- the expression \"profits\" in the proviso makes it clear that the income, profits and gains in sub-s. (2) of s. 26 only refer to the profits under the 4th head in s. 6. On the other hand, if the interpretation sought to be put upon the expression \"income\" in sub-s. (2) of s. 26 by the Revenue is accepted, then the absence of that word in the proviso destroys the argument. But the more reasonable view is that both the sub-section and the proviso deal only with the profits under the 4th head mentioned in s. 6 and, so construed, it excludes capital gains. The argument that sub-s. (2) of s. 26 read with the proviso thereto indicates that the total income of the person succeeded is the criterion for separate assessment under sub-s. (2) and for assessment and realisation under the proviso is on the assumption that sub-s. (2) and the proviso deal with all the heads mentioned in s. 6 of the Act. But if, as we have held, the scope of sub-s. (2) of s. 26 is only limited to the income from the business, the share under sub- s. (2) and the assessment and realisation under the proviso can only relate to the income from the business. The argument is really begging the question itself.\"\nIt is obvious that the Court in that case held having regard to the special nature of \"capital gains\" which are not in truth income, but are deemed income for the purpose of taxation and the phraseology used, that the liability of the successor under the proviso to s. 26 (2) is only in respect of tax on income, profits and gains of the business strictly so-called, to be computed under s. 10 read with s. 6 (iv) and not in respect of all receipts which may be regarded as income of the business. The schemes of s. 25(3) and s.\n26(2) proviso are different. The first grants an exemption because there has been a double levy of tax, and an intention to exempt all income, profits and gains of business from taxation may be attributed to the Legislature.\nSection 26(2) fastens liability of the predecessor, if he cannot be found, upon the successor and must be strictly construed. The Legislature has imposed by s. 26(2) liability upon the successor to be assessed for profits earned in a business carried on by his predecessor, and unless there is a clear intention expressed in the statute to include in that expression what in reality is not income, but is deemed income, the liability to assessment would justifiably be limited to profits of the business which is computable under s. 10.\nThe appeals therefore fail and are dismissed with costs.\nOne hearing fee.\nAppeals dismisses.\n"
} |
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{
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{
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"text": "IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\n DATED THIS THE 26TH DAY OF MAY, 2020\n\n BEFORE"
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"start": 105,
"text": "\n\n THE HON'BLE MR.JUSTICE B.A.PATIL\n\n CRIMINAL PETITION No.1945/2020"
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"text": "\n\nBETWEEN:\n\nSri Khandya Praveen ...Petitioner"
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"start": 257,
"text": "@ Praveen @ H.K.Praveen Kumar\nS/o Keshavamurthy\nAged about 39 years\nR/o Khandya Village & Post\nChikkamagaluru Taluk-577 101."
}
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"start": 383,
"text": "(By Sri Aruna Shyam M., Advocate)"
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"text": "\n\nAND:"
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"text": "\n\nThe State of Karnataka ...Respondent"
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"text": "\nthrough Basavanahalli Police Station"
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"text": "\nRepresented by its State Public Prosecutor"
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"text": "\nHigh Court Building\nHigh Court of Karnataka"
}
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"text": "\nBengaluru-560 001."
}
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"text": "(By Sri Mahesh Shetty, HCGP)"
}
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"to_name": null,
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"end": 1053,
"labels": [
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"start": 654,
"text": "\n\n This Criminal Petition is filed under Section 439 of\nCr.P.C praying to enlarge the petitioner on bail in Crime\nNo.132/2016 of Basavanahalli Police Station,\nChikkamagaluru for the offences punishable under\nSections 364A, 395, 386, 342, 324, 506, 120B r/w 149 of\nIndian Penal Code.\n\n This Criminal Petition coming on for Orders this day,\n`through Video Conference' the Court made the\n"
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{
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"id": "8beb37657a1246e5b4cf7db3ce1c8821",
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"labels": [
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"start": 1053,
"text": "following:-"
}
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{
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"id": "67994a3d6a8c4e9b9b1e9c38f9f71efe",
"to_name": null,
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"labels": [
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],
"start": 1064,
"text": "\n\n O R D E R\n "
}
},
{
"from_name": null,
"id": "ce59d927634c4bc3a3798fdd13b2988c",
"to_name": null,
"type": null,
"value": {
"end": 1523,
"labels": [
"FAC"
],
"start": 1120,
"text": "The present petition has been filed by the petitioner- accused No.4 under Section 439 of Cr.P.C. praying to release him on bail in Crime No.132/2016 of Basavanahalli Police Station, Chikkamagaluru District, for the offences punishable under Sections 364A, 395, 386, 342, 324, 506, 120B r/w 149 of Indian Penal Code, in S.C.No.34/2018 on the file of Principal District and Sessions Judge, Chikkamagaluru."
}
},
{
"from_name": null,
"id": "4db4452780bc43c3a50427206bf7170e",
"to_name": null,
"type": null,
"value": {
"end": 1669,
"labels": [
"NONE"
],
"start": 1523,
"text": "\n 2. I have heard the learned counsel Sri.Aruna Shyam M. through virtual hearing and Sri.Mahesh Shetty, learned High Court Government Pleader.\n 3."
}
},
{
"from_name": null,
"id": "4c2e21bbf7d248f5a72ad046dc3e9f06",
"to_name": null,
"type": null,
"value": {
"end": 1813,
"labels": [
"FAC"
],
"start": 1670,
"text": "The gist of the complaint is that on 28.6.2016 at about 2.00 a.m., the complainant was about to open the gate of his house to park his vehicle."
}
},
{
"from_name": null,
"id": "a284da4585034b7fbbad4c8a5dd77e0a",
"to_name": null,
"type": null,
"value": {
"end": 2051,
"labels": [
"FAC"
],
"start": 1814,
"text": "At that time, one Abhijith and six others came in a black Scorpio vehicle bearing Regn.No.KA-20/N-3659 and surrounded and thereafter kidnapped him in their car and he was also threatened not to shout and if he shouts, they will kill him."
}
},
{
"from_name": null,
"id": "600d69fb166e402aa456dc14acb30131",
"to_name": null,
"type": null,
"value": {
"end": 2403,
"labels": [
"FAC"
],
"start": 2051,
"text": "\nIt is further alleged that the persons who were there in the car were holding deadly weapons and they also forcibly took his car key and out of them two persons took away the car and they also switched off his mobile and thereafter started proceeding to Bengaluru and thereafter took him to a go-down at Bengaluru and tied him and wrongfully confined."
}
},
{
"from_name": null,
"id": "0d362e6a73344064a9f6422c7a621c5e",
"to_name": null,
"type": null,
"value": {
"end": 2663,
"labels": [
"FAC"
],
"start": 2404,
"text": "It is further alleged that subsequently, one Naveen Shetty assaulted on the head and face of the complainant and threatened him that he should pay Rs.25 lakhs to a person whom they are going to name and if he is not going to pay, they will take away his life."
}
},
{
"from_name": null,
"id": "92376d7f55654c6c9fe40538f8e65a3d",
"to_name": null,
"type": null,
"value": {
"end": 2890,
"labels": [
"FAC"
],
"start": 2664,
"text": "When the complainant questioned him as to why he should pay so much of money, then Naveen Shetty told that he has cheated Rs.20 lakhs to Nataraj Kalmane Chit Fund in a cricket betting and as such he has to pay the said amount."
}
},
{
"from_name": null,
"id": "93529ebf7aa3428eba9e3716665a9c19",
"to_name": null,
"type": null,
"value": {
"end": 3067,
"labels": [
"FAC"
],
"start": 2890,
"text": "\nIt is further alleged that thereafter they shifted the complainant to another place, where accused No.4- petitioner along with Naveen Shetty came and they demanded Rs.10 lakhs."
}
},
{
"from_name": null,
"id": "4234598adeb3458799b5be756b98d434",
"to_name": null,
"type": null,
"value": {
"end": 3158,
"labels": [
"FAC"
],
"start": 3068,
"text": "They also gave a mobile handset and he telephoned to one Shiva to arrange for Rs.10 lakhs."
}
},
{
"from_name": null,
"id": "d23d934df7e74cd2b080304523225fc9",
"to_name": null,
"type": null,
"value": {
"end": 3445,
"labels": [
"FAC"
],
"start": 3158,
"text": "\nBut the said Shiva told that he has got only Rs.2,00,000/- and the complainant told about his kidnap and requested him to arrange for money and the said Shiva agreed to arrange Rs.10 lakhs with his friends and thereafter he telephoned to Shiva and told him to pay the same to one Pavan."
}
},
{
"from_name": null,
"id": "ade52a35064448cf9d82cae5fe65a6f3",
"to_name": null,
"type": null,
"value": {
"end": 3521,
"labels": [
"FAC"
],
"start": 3446,
"text": "He further told that the said Naveen Shetty has to be paid the said amount."
}
},
{
"from_name": null,
"id": "bb01ee4090f04e5685436e8f3cd26a8b",
"to_name": null,
"type": null,
"value": {
"end": 3723,
"labels": [
"FAC"
],
"start": 3522,
"text": "He also gave a mobile number 9480805120, but the said mobile number belongs to Dy.S.P. and he told to bring the said amount near the Police Quarters where he handed over Rs.10 lakhs at about 10.15 p.m."
}
},
{
"from_name": null,
"id": "b735f74ce47d45e38b2b9ac9c3e6a724",
"to_name": null,
"type": null,
"value": {
"end": 3777,
"labels": [
"FAC"
],
"start": 3724,
"text": "On the basis of the complaint, a case was registered."
}
},
{
"from_name": null,
"id": "2175cf8c10284ec1bc1c6778e6875b3f",
"to_name": null,
"type": null,
"value": {
"end": 4036,
"labels": [
"ARG_PETITIONER"
],
"start": 3779,
"text": "4. It is the contention of the learned counsel for the petitioner that already the charge sheet has been filed and since more than two years the petitioner-accused is in custody, neither the charge has been framed nor any progress has been made in the case."
}
},
{
"from_name": null,
"id": "d0a6629c5e2b40bcb4dab31b3c906b1e",
"to_name": null,
"type": null,
"value": {
"end": 4141,
"labels": [
"ARG_PETITIONER"
],
"start": 4037,
"text": "It is his further submission that he is having an old aged mother and nobody is there to look after her."
}
},
{
"from_name": null,
"id": "59c28f4c095f4b819d5dab9bea8544a6",
"to_name": null,
"type": null,
"value": {
"end": 4184,
"labels": [
"ARG_PETITIONER"
],
"start": 4142,
"text": "He is the only bread earner in his family."
}
},
{
"from_name": null,
"id": "79ee77b8803a403688ee4c1d61bc922a",
"to_name": null,
"type": null,
"value": {
"end": 4352,
"labels": [
"ARG_PETITIONER"
],
"start": 4185,
"text": "It is his further submission that the complaint has been registered after six days of the incident and no amount has been recovered from the possession of the accused."
}
},
{
"from_name": null,
"id": "c7790a57100e48b8a6ebd37bf5c5a679",
"to_name": null,
"type": null,
"value": {
"end": 4476,
"labels": [
"ARG_PETITIONER"
],
"start": 4353,
"text": "It is his further submission that the complainant has neither sustained any injury nor he has been treated in the hospital."
}
},
{
"from_name": null,
"id": "81eeb1fac1164d81b9f674a12318609f",
"to_name": null,
"type": null,
"value": {
"end": 4601,
"labels": [
"ARG_PETITIONER"
],
"start": 4477,
"text": "It is his further submission that the complainant was charge sheeted for having played a gambling and he has pleaded guilty."
}
},
{
"from_name": null,
"id": "b8ed77eb066946a3b52e3f2b1743a64e",
"to_name": null,
"type": null,
"value": {
"end": 4736,
"labels": [
"ARG_PETITIONER"
],
"start": 4602,
"text": "It is his further submission that all other accused persons have been released on bail and the petitioner-accused alone is in custody."
}
},
{
"from_name": null,
"id": "25e10b810a81435da76ccbb81bd9fdeb",
"to_name": null,
"type": null,
"value": {
"end": 4895,
"labels": [
"ARG_PETITIONER"
],
"start": 4737,
"text": "It is his further submission that the injured complainant alone is the witness in the said incident and his evidence is also not trustworthy and not reliable."
}
},
{
"from_name": null,
"id": "f4495a9979454bf8b2ded28e9af3ecab",
"to_name": null,
"type": null,
"value": {
"end": 5175,
"labels": [
"ARG_PETITIONER"
],
"start": 4896,
"text": "It is his further submission that only because of cancellation of the anticipatory bail by the Hon'ble Apex Court the learned District Judge without even considering the application for cancellation of the bail has rejected the bail and he has been wrongfully taken into custody."
}
},
{
"from_name": null,
"id": "f3cc28060d9b4d8fb87a16283f3ba55a",
"to_name": null,
"type": null,
"value": {
"end": 5375,
"labels": [
"ARG_PETITIONER"
],
"start": 5176,
"text": "It is his further submission that because of Covid-19 there is no likelihood of progress in the case and continuation of the petitioner- accused in custody is going to affect his right and liberties."
}
},
{
"from_name": null,
"id": "06dc51c9330e4c5faced88296de578b1",
"to_name": null,
"type": null,
"value": {
"end": 5503,
"labels": [
"ARG_PETITIONER"
],
"start": 5375,
"text": "\nIt is his further submission that he is ready to abide by the conditions imposed by this Court and ready to offer the sureties."
}
},
{
"from_name": null,
"id": "28453536e28d4f0da5bd880902e6540e",
"to_name": null,
"type": null,
"value": {
"end": 5599,
"labels": [
"ARG_PETITIONER"
],
"start": 5504,
"text": "On these grounds he prayed to allow the petition and to release the petitioner-accused on bail."
}
},
{
"from_name": null,
"id": "9ddb41a62ee0489dbd6e7a6806704af0",
"to_name": null,
"type": null,
"value": {
"end": 5933,
"labels": [
"ARG_RESPONDENT"
],
"start": 5599,
"text": "\n 5. Per contra, the learned High Court Government Pleader vehemently argued and submitted that earlier the petitioner-accused has approached this Court in Criminal Petition No.6790/2018 and subsequently in another Criminal Petition No.9456/2018, this Court after considering the merits of the case has dismissed the bail application."
}
},
{
"from_name": null,
"id": "50277f31d782465aa6735c00edccda68",
"to_name": null,
"type": null,
"value": {
"end": 6009,
"labels": [
"ARG_RESPONDENT"
],
"start": 5934,
"text": "No new grounds have been made out so as to reconsider the bail application."
}
},
{
"from_name": null,
"id": "d3d34c8c1a014585ad171c53a1fabed4",
"to_name": null,
"type": null,
"value": {
"end": 6112,
"labels": [
"ARG_RESPONDENT"
],
"start": 6010,
"text": "Merely because there is delay in trial, the petitioner-accused is not entitled to be released on bail."
}
},
{
"from_name": null,
"id": "0487253e65684170b0f2e45c7feec8ed",
"to_name": null,
"type": null,
"value": {
"end": 6401,
"labels": [
"ARG_RESPONDENT"
],
"start": 6113,
"text": "It is his further submission that the charge sheet material clearly goes to show that it is the petitioner-accused who is the main accused and at his instance complainant was kidnapped and the amount has been paid to Deputy Superintendent of Police who has also collected the said amount."
}
},
{
"from_name": null,
"id": "d1f10d282df24e5185c56d4f4623fccb",
"to_name": null,
"type": null,
"value": {
"end": 6466,
"labels": [
"ARG_RESPONDENT"
],
"start": 6402,
"text": "There is prima facie material as against the petitioner-accused."
}
},
{
"from_name": null,
"id": "3c59c0207a33473cb1f567b96a9cebe1",
"to_name": null,
"type": null,
"value": {
"end": 6604,
"labels": [
"ARG_RESPONDENT"
],
"start": 6467,
"text": "It is his further submission that if the petitioner-accused is enlarged on bail he may abscond and he may not be available for the trial."
}
},
{
"from_name": null,
"id": "2455db24640b401e9af91c7b4e69ada9",
"to_name": null,
"type": null,
"value": {
"end": 6656,
"labels": [
"ARG_RESPONDENT"
],
"start": 6605,
"text": "On these grounds he prayed to dismiss the petition."
}
},
{
"from_name": null,
"id": "b93e585ed1ce4dc0bdbe8922fa43f4a0",
"to_name": null,
"type": null,
"value": {
"end": 6801,
"labels": [
"ANALYSIS"
],
"start": 6656,
"text": "\n 6. I have carefully and cautiously gone through the submissions made by the learned counsels appearing for the parties and perused the records."
}
},
{
"from_name": null,
"id": "22cdcf23a92f4083a3e9f151a6cfd19a",
"to_name": null,
"type": null,
"value": {
"end": 7050,
"labels": [
"ANALYSIS"
],
"start": 6801,
"text": "\n 7. It is not in dispute that earlier this Court considered the bail application filed by the petitioner- accused No.4 in Criminal Petition No.6790/2018 and subsequently in Criminal Petition No.9456/2018 dated 22.10.2018 and 11.2.2019 respectively."
}
},
{
"from_name": null,
"id": "d99fc38cbea846b9967a1da724c354cb",
"to_name": null,
"type": null,
"value": {
"end": 7249,
"labels": [
"ANALYSIS"
],
"start": 7051,
"text": "By considering the merits of the case this Court has came to the conclusion that there is prima facie material as against the petitioner- accused and the bail applications were came to be dismissed."
}
},
{
"from_name": null,
"id": "8163e01c87184235bd16dce5ab874d15",
"to_name": null,
"type": null,
"value": {
"end": 7387,
"labels": [
"ANALYSIS"
],
"start": 7249,
"text": "\n 8. The only contention which has been raised by the learned counsel for the petitioner-accused is that there is no progress in the case."
}
},
{
"from_name": null,
"id": "75156806386644f1a3f403446df386f6",
"to_name": null,
"type": null,
"value": {
"end": 7603,
"labels": [
"ANALYSIS"
],
"start": 7388,
"text": "Since more than two years the petitioner-accused is in custody and his right and liberty is involved and it is the complainant who is the only witness and his evidence has to be testified during the course of trial."
}
},
{
"from_name": null,
"id": "d0102c2388824ea18bd7aea8f55ed020",
"to_name": null,
"type": null,
"value": {
"end": 8167,
"labels": [
"ANALYSIS"
],
"start": 7604,
"text": "But merely because the petitioner-accused is in custody, trial has not yet commenced, is not a ground to release him on bail, that too when the petitioner-accused is involved in a serious offence of kidnapping and demanding money of Rs.10 Lakhs and already when the petitioner has approached this Court and it has considered the bail applications and has rejected the bail applications, then under such circumstances, I am of the considered opinion that it is not a fit case so as to reconsider the bail application and to enlarge the petitioner-accused on bail.\n"
}
},
{
"from_name": null,
"id": "359c577bfddd4bfda8cd6abf16bc92da",
"to_name": null,
"type": null,
"value": {
"end": 8523,
"labels": [
"ANALYSIS"
],
"start": 8167,
"text": "Though it is contended by the learned counsel for the petitioner-accused that because of Covid-19 continuation of the petitioner-accused in custody is not necessary, in view of the direction of the Hon'ble Apex Court, in the said decision, the Hon'ble Apex Court issued direction to release the accused if the offences punishable are less than seven years."
}
},
{
"from_name": null,
"id": "0d344e47f02142fb8ddab2280e200e84",
"to_name": null,
"type": null,
"value": {
"end": 8685,
"labels": [
"ANALYSIS"
],
"start": 8524,
"text": "In that light, the ratio laid down in the said case cannot be made applicable and the petitioner-accused can be released on parole or released on a limited bail."
}
},
{
"from_name": null,
"id": "8b1864a4cc134f61a2e7ccb5c48dfcf7",
"to_name": null,
"type": null,
"value": {
"end": 8769,
"labels": [
"ANALYSIS"
],
"start": 8686,
"text": "Already it is notified that the Court should start function from 1st of June, 2020."
}
},
{
"from_name": null,
"id": "7a2c833920094e8d837a7ac27dfd6fa2",
"to_name": null,
"type": null,
"value": {
"end": 8873,
"labels": [
"ANALYSIS"
],
"start": 8770,
"text": "In that light, if a direction is issued to expedite the trial, it is going to meet the ends of justice."
}
},
{
"from_name": null,
"id": "1f085e65d07e4f45ac7c6c93b5b1c8d9",
"to_name": null,
"type": null,
"value": {
"end": 9078,
"labels": [
"RATIO"
],
"start": 8873,
"text": "\n 9. Taking into consideration the above said facts and circumstances of the case, I am of the considered opinion that the petitioner-accused has not made out any good grounds so as to enlarge him on bail."
}
},
{
"from_name": null,
"id": "586ecd45332840e48ff20f5c53690778",
"to_name": null,
"type": null,
"value": {
"end": 9388,
"labels": [
"RPC"
],
"start": 9079,
"text": "However, I am of the considered opinion that if the learned Principal District and Sessions Judge, Chikkamagaluru District is directed to expedite the trial expeditiously within a period of one year from the date of receipt of this order, then under such circumstances it is going to meet the ends of justice."
}
},
{
"from_name": null,
"id": "8a94ed1891ae44f2b13524a399a6e927",
"to_name": null,
"type": null,
"value": {
"end": 9443,
"labels": [
"RPC"
],
"start": 9388,
"text": "\n With the above observation the petition is dismissed."
}
},
{
"from_name": null,
"id": "061f526690fd4b07adac11a6dfda51d2",
"to_name": null,
"type": null,
"value": {
"end": 9576,
"labels": [
"RPC"
],
"start": 9443,
"text": "\n However, liberty has been given to the petitioner- accused to move this Court for bail after examination of the complainant."
}
},
{
"from_name": null,
"id": "0a99a690eff3457899b85ee3f0c556e1",
"to_name": null,
"type": null,
"value": {
"end": 9594,
"labels": [
"NONE"
],
"start": 9576,
"text": "\n Sd/- JUDGE *AP/-"
}
}
]
}
] | 4,166 | {
"text": "IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\n DATED THIS THE 26TH DAY OF MAY, 2020\n\n BEFORE\n\n THE HON'BLE MR.JUSTICE B.A.PATIL\n\n CRIMINAL PETITION No.1945/2020\n\nBETWEEN:\n\nSri Khandya Praveen ...Petitioner\n@ Praveen @ H.K.Praveen Kumar\nS/o Keshavamurthy\nAged about 39 years\nR/o Khandya Village & Post\nChikkamagaluru Taluk-577 101.\n\n(By Sri Aruna Shyam M., Advocate)\n\nAND:\n\nThe State of Karnataka ...Respondent\nthrough Basavanahalli Police Station\nRepresented by its State Public Prosecutor\nHigh Court Building\nHigh Court of Karnataka\nBengaluru-560 001.\n\n(By Sri Mahesh Shetty, HCGP)\n\n This Criminal Petition is filed under Section 439 of\nCr.P.C praying to enlarge the petitioner on bail in Crime\nNo.132/2016 of Basavanahalli Police Station,\nChikkamagaluru for the offences punishable under\nSections 364A, 395, 386, 342, 324, 506, 120B r/w 149 of\nIndian Penal Code.\n\n This Criminal Petition coming on for Orders this day,\n`through Video Conference' the Court made the\nfollowing:-\n\n O R D E R\n The present petition has been filed by the petitioner- accused No.4 under Section 439 of Cr.P.C. praying to release him on bail in Crime No.132/2016 of Basavanahalli Police Station, Chikkamagaluru District, for the offences punishable under Sections 364A, 395, 386, 342, 324, 506, 120B r/w 149 of Indian Penal Code, in S.C.No.34/2018 on the file of Principal District and Sessions Judge, Chikkamagaluru.\n 2. I have heard the learned counsel Sri.Aruna Shyam M. through virtual hearing and Sri.Mahesh Shetty, learned High Court Government Pleader.\n 3. The gist of the complaint is that on 28.6.2016 at about 2.00 a.m., the complainant was about to open the gate of his house to park his vehicle. At that time, one Abhijith and six others came in a black Scorpio vehicle bearing Regn.No.KA-20/N-3659 and surrounded and thereafter kidnapped him in their car and he was also threatened not to shout and if he shouts, they will kill him.\nIt is further alleged that the persons who were there in the car were holding deadly weapons and they also forcibly took his car key and out of them two persons took away the car and they also switched off his mobile and thereafter started proceeding to Bengaluru and thereafter took him to a go-down at Bengaluru and tied him and wrongfully confined. It is further alleged that subsequently, one Naveen Shetty assaulted on the head and face of the complainant and threatened him that he should pay Rs.25 lakhs to a person whom they are going to name and if he is not going to pay, they will take away his life. When the complainant questioned him as to why he should pay so much of money, then Naveen Shetty told that he has cheated Rs.20 lakhs to Nataraj Kalmane Chit Fund in a cricket betting and as such he has to pay the said amount.\nIt is further alleged that thereafter they shifted the complainant to another place, where accused No.4- petitioner along with Naveen Shetty came and they demanded Rs.10 lakhs. They also gave a mobile handset and he telephoned to one Shiva to arrange for Rs.10 lakhs.\nBut the said Shiva told that he has got only Rs.2,00,000/- and the complainant told about his kidnap and requested him to arrange for money and the said Shiva agreed to arrange Rs.10 lakhs with his friends and thereafter he telephoned to Shiva and told him to pay the same to one Pavan. He further told that the said Naveen Shetty has to be paid the said amount. He also gave a mobile number 9480805120, but the said mobile number belongs to Dy.S.P. and he told to bring the said amount near the Police Quarters where he handed over Rs.10 lakhs at about 10.15 p.m. On the basis of the complaint, a case was registered.\n 4. It is the contention of the learned counsel for the petitioner that already the charge sheet has been filed and since more than two years the petitioner-accused is in custody, neither the charge has been framed nor any progress has been made in the case. It is his further submission that he is having an old aged mother and nobody is there to look after her. He is the only bread earner in his family. It is his further submission that the complaint has been registered after six days of the incident and no amount has been recovered from the possession of the accused. It is his further submission that the complainant has neither sustained any injury nor he has been treated in the hospital. It is his further submission that the complainant was charge sheeted for having played a gambling and he has pleaded guilty. It is his further submission that all other accused persons have been released on bail and the petitioner-accused alone is in custody. It is his further submission that the injured complainant alone is the witness in the said incident and his evidence is also not trustworthy and not reliable. It is his further submission that only because of cancellation of the anticipatory bail by the Hon'ble Apex Court the learned District Judge without even considering the application for cancellation of the bail has rejected the bail and he has been wrongfully taken into custody. It is his further submission that because of Covid-19 there is no likelihood of progress in the case and continuation of the petitioner- accused in custody is going to affect his right and liberties.\nIt is his further submission that he is ready to abide by the conditions imposed by this Court and ready to offer the sureties. On these grounds he prayed to allow the petition and to release the petitioner-accused on bail.\n 5. Per contra, the learned High Court Government Pleader vehemently argued and submitted that earlier the petitioner-accused has approached this Court in Criminal Petition No.6790/2018 and subsequently in another Criminal Petition No.9456/2018, this Court after considering the merits of the case has dismissed the bail application. No new grounds have been made out so as to reconsider the bail application. Merely because there is delay in trial, the petitioner-accused is not entitled to be released on bail. It is his further submission that the charge sheet material clearly goes to show that it is the petitioner-accused who is the main accused and at his instance complainant was kidnapped and the amount has been paid to Deputy Superintendent of Police who has also collected the said amount. There is prima facie material as against the petitioner-accused. It is his further submission that if the petitioner-accused is enlarged on bail he may abscond and he may not be available for the trial. On these grounds he prayed to dismiss the petition.\n 6. I have carefully and cautiously gone through the submissions made by the learned counsels appearing for the parties and perused the records.\n 7. It is not in dispute that earlier this Court considered the bail application filed by the petitioner- accused No.4 in Criminal Petition No.6790/2018 and subsequently in Criminal Petition No.9456/2018 dated 22.10.2018 and 11.2.2019 respectively. By considering the merits of the case this Court has came to the conclusion that there is prima facie material as against the petitioner- accused and the bail applications were came to be dismissed.\n 8. The only contention which has been raised by the learned counsel for the petitioner-accused is that there is no progress in the case. Since more than two years the petitioner-accused is in custody and his right and liberty is involved and it is the complainant who is the only witness and his evidence has to be testified during the course of trial. But merely because the petitioner-accused is in custody, trial has not yet commenced, is not a ground to release him on bail, that too when the petitioner-accused is involved in a serious offence of kidnapping and demanding money of Rs.10 Lakhs and already when the petitioner has approached this Court and it has considered the bail applications and has rejected the bail applications, then under such circumstances, I am of the considered opinion that it is not a fit case so as to reconsider the bail application and to enlarge the petitioner-accused on bail.\nThough it is contended by the learned counsel for the petitioner-accused that because of Covid-19 continuation of the petitioner-accused in custody is not necessary, in view of the direction of the Hon'ble Apex Court, in the said decision, the Hon'ble Apex Court issued direction to release the accused if the offences punishable are less than seven years. In that light, the ratio laid down in the said case cannot be made applicable and the petitioner-accused can be released on parole or released on a limited bail. Already it is notified that the Court should start function from 1st of June, 2020. In that light, if a direction is issued to expedite the trial, it is going to meet the ends of justice.\n 9. Taking into consideration the above said facts and circumstances of the case, I am of the considered opinion that the petitioner-accused has not made out any good grounds so as to enlarge him on bail. However, I am of the considered opinion that if the learned Principal District and Sessions Judge, Chikkamagaluru District is directed to expedite the trial expeditiously within a period of one year from the date of receipt of this order, then under such circumstances it is going to meet the ends of justice.\n With the above observation the petition is dismissed.\n However, liberty has been given to the petitioner- accused to move this Court for bail after examination of the complainant.\n Sd/- JUDGE *AP/- "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "b218fefcc88949e5a632dcff4ee6ce39",
"to_name": null,
"type": null,
"value": {
"end": 88,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": " REPORTABLE\n\n IN THE SUPREME COURT OF INDIA"
}
},
{
"from_name": null,
"id": "5449bee4bb8a432faedf792a40907da1",
"to_name": null,
"type": null,
"value": {
"end": 401,
"labels": [
"PREAMBLE"
],
"start": 104,
"text": "CRIMINAL APPELLATE JURISDICTION\n\n CRIMINAL APPEAL NO. 407 OF 2020\n[Arising out of Special Leave Petition(Crl.)No. 656 OF 2018]\n\nBhagwan Singh VERSUS ..... Appellants(s)\nState of Uttarakhand .....Respondents(s)\n\n JUDGMENT"
}
},
{
"from_name": null,
"id": "fcb9e43012714d9c93aa99b30bd225b5",
"to_name": null,
"type": null,
"value": {
"end": 417,
"labels": [
"NONE"
],
"start": 401,
"text": "\n Leave granted."
}
},
{
"from_name": null,
"id": "b32efc5aee484340b604c2af31b0ccd2",
"to_name": null,
"type": null,
"value": {
"end": 1045,
"labels": [
"FAC"
],
"start": 419,
"text": "2. This Criminal Appeal is directed against the judgment dated 26th July, 2017 passed by the High Court of Uttarakhand whereby the appellant's criminal appeal against the judgment and order dated 11th/12th July, 2013 rendered by Learned Sessions Judge, Bageshwar convicting the appellant under Sections 302 and 307 of Indian Penal Code (for short, `IPC') and sentencing him to undergo life imprisonment (under Section 302, IPC) and 5 years' rigorous imprisonment (under Section 307, IPC) along with a fine of Rs.\n 20,000/ in default whereof he was directed to undergo 6 months' additional rigorous imprisonment, was dismissed."
}
},
{
"from_name": null,
"id": "81e2575b0e894b49802467a71abe6793",
"to_name": null,
"type": null,
"value": {
"end": 1175,
"labels": [
"FAC"
],
"start": 1046,
"text": "The appellant was, however, acquitted for offence punishable under Section 25 of the Arms Act for want of the requisite sanction."
}
},
{
"from_name": null,
"id": "b617ba00fa454dd495ebb7fa87e8e3a3",
"to_name": null,
"type": null,
"value": {
"end": 1419,
"labels": [
"FAC"
],
"start": 1176,
"text": "3. It may be mentioned at the outset that notice of the special leave petition was issued on the limited question to determine the nature of offence committed by the appellant i.e. whether it falls under the ambit of Section 302 or 304 of IPC."
}
},
{
"from_name": null,
"id": "b735bbaa14074c21afd14d802dcdc23d",
"to_name": null,
"type": null,
"value": {
"end": 1478,
"labels": [
"NONE"
],
"start": 1420,
"text": "To determine this question the facts may be briefly noted."
}
},
{
"from_name": null,
"id": "1336706e83f74bfeb3b8d4bb6172ba12",
"to_name": null,
"type": null,
"value": {
"end": 1488,
"labels": [
"NONE"
],
"start": 1479,
"text": "Facts: 4."
}
},
{
"from_name": null,
"id": "1f13fd43c9b843f6a65dfcdd86b87b3f",
"to_name": null,
"type": null,
"value": {
"end": 1733,
"labels": [
"FAC"
],
"start": 1489,
"text": "On 21st April, 2007, the marriage ceremony of the Appellant's son was taking place at village Dafaut, Uttarakhand, when around 5:30 pm as soon as the marriage procession reached the Appellant's courtyard he suddenly fired celebratory gunshots."
}
},
{
"from_name": null,
"id": "544b7a92546b4be9b6ac7c92c5ac2910",
"to_name": null,
"type": null,
"value": {
"end": 1949,
"labels": [
"FAC"
],
"start": 1734,
"text": "The pellets struck 5 persons standing in the courtyard namely, Smt. Anita W/o Chanchal Singh, Khushal Singh @ Sonu, Ummed Singh (P.W.6), Smt.\nVimla W/o Devendra Singh (P.W.5) and Smt. Vimla W/o Bhupal Singh (P.W.7)."
}
},
{
"from_name": null,
"id": "f79d2b550f1f4883a7408dfe9837687e",
"to_name": null,
"type": null,
"value": {
"end": 2067,
"labels": [
"FAC"
],
"start": 1950,
"text": "The injured were taken to the hospital where two of them Anita and Khushal Singh @ Sonu succumbed to their injuries."
}
},
{
"from_name": null,
"id": "19c4b2f1da174bcba5ccaf84611540ab",
"to_name": null,
"type": null,
"value": {
"end": 2225,
"labels": [
"FAC"
],
"start": 2068,
"text": "Later at about 8:40 pm, Dharam Singh (P.W.3) filed an FIR at PS Kothwali, Bageshwar, narrating in full detail the incident of which he himself was a witness."
}
},
{
"from_name": null,
"id": "68dfd154a81545e8b88198d6cc106de6",
"to_name": null,
"type": null,
"value": {
"end": 2435,
"labels": [
"FAC"
],
"start": 2226,
"text": "5. After the conclusion of investigation, initially a charge sheet under Section 304, IPC was filed but later on the appellant was charged under Sections 302 and 307, IPC along with Section 25 of the Arms Act."
}
},
{
"from_name": null,
"id": "d5414d560b874a6fbfc4d87272a1bef1",
"to_name": null,
"type": null,
"value": {
"end": 2592,
"labels": [
"RLC"
],
"start": 2436,
"text": "6. The Ld. Sessions Judge held the appellant guilty of offences under Sections 302 and 307, IPC based on testimonies of eye witnesses and injured witnesses."
}
},
{
"from_name": null,
"id": "ff5989ac0369473f803caab74144cffc",
"to_name": null,
"type": null,
"value": {
"end": 2742,
"labels": [
"RLC"
],
"start": 2593,
"text": "It was noted that Appellant fired shots from his son's licensed gun causing fatal injuries to Smt. Anita and Khushal Singh and injuring three others."
}
},
{
"from_name": null,
"id": "e6b28e9174a14ae7a4eec663f497c012",
"to_name": null,
"type": null,
"value": {
"end": 2844,
"labels": [
"RLC"
],
"start": 2743,
"text": "He was consequently sentenced in the manner as briefly noticed in the opening paragraph of the order."
}
},
{
"from_name": null,
"id": "8f701355a2304d728ada01aafa3428a0",
"to_name": null,
"type": null,
"value": {
"end": 2899,
"labels": [
"FAC"
],
"start": 2845,
"text": "7. The appellant went in appeal before the High Court."
}
},
{
"from_name": null,
"id": "b7f1c2f094274fd1813191c1dbb76935",
"to_name": null,
"type": null,
"value": {
"end": 2976,
"labels": [
"FAC"
],
"start": 2900,
"text": "His primary contention was that he had no intention to cause anyone's death."
}
},
{
"from_name": null,
"id": "134f434b6c994c37951a8d8ec1749ece",
"to_name": null,
"type": null,
"value": {
"end": 3081,
"labels": [
"FAC"
],
"start": 2977,
"text": "He stated that the firing was accidental and was caused by a ball with which some children were playing."
}
},
{
"from_name": null,
"id": "85f189dc326941f2abf388aa6b416676",
"to_name": null,
"type": null,
"value": {
"end": 3157,
"labels": [
"FAC"
],
"start": 3082,
"text": "The ball struck against the gun in his hand and led to the firing of shots."
}
},
{
"from_name": null,
"id": "bf4fa1c37dcc49b18e1f85b7380859d6",
"to_name": null,
"type": null,
"value": {
"end": 3329,
"labels": [
"FAC"
],
"start": 3158,
"text": "The occurrence was an admitted fact and the only plea taken was that it being a case of accidental firing, Section 300 punishable under Section 302, IPC was not attracted."
}
},
{
"from_name": null,
"id": "d491a0ef6d3c4c4e87049b6ef8b1d367",
"to_name": null,
"type": null,
"value": {
"end": 3495,
"labels": [
"RLC"
],
"start": 3330,
"text": "8. The High Court rejected the appellant's plea and held as follows: \"There is no merit in the submission put forth by learned Advocates appearing for the appellant."
}
},
{
"from_name": null,
"id": "92dc9016ca8a4d7b91c79ed878083f9e",
"to_name": null,
"type": null,
"value": {
"end": 3603,
"labels": [
"RLC"
],
"start": 3496,
"text": "PW2 Chanchal Singh has categorically deposed that the appellant has aimed at his wife Smt. Anita and fired."
}
},
{
"from_name": null,
"id": "016812500fba4c2fbcb829298d65f62a",
"to_name": null,
"type": null,
"value": {
"end": 3632,
"labels": [
"RLC"
],
"start": 3604,
"text": "The bullet hit on her chest."
}
},
{
"from_name": null,
"id": "c32b972a8cfb40ea9f40a66ab2cf81c8",
"to_name": null,
"type": null,
"value": {
"end": 3681,
"labels": [
"RLC"
],
"start": 3633,
"text": "She was taken to the hospital and declared dead."
}
},
{
"from_name": null,
"id": "1afaf9db09c54d3fad8e9f599c7ea557",
"to_name": null,
"type": null,
"value": {
"end": 3807,
"labels": [
"RLC"
],
"start": 3682,
"text": "In his cross examination, he has denied the suggestion that the ball has struck against the gun which led to accidental fire."
}
},
{
"from_name": null,
"id": "17ea0a4a19514ffa97192b3fca0ba562",
"to_name": null,
"type": null,
"value": {
"end": 3905,
"labels": [
"RLC"
],
"start": 3808,
"text": "PW3 Dharam Singh has also admitted that the injuries were caused by the accused with the firearm."
}
},
{
"from_name": null,
"id": "0bdf0f4f43994f0b9d48a9fb8183dca3",
"to_name": null,
"type": null,
"value": {
"end": 3945,
"labels": [
"RLC"
],
"start": 3906,
"text": "The injured were taken to the hospital."
}
},
{
"from_name": null,
"id": "1c5e6329ad80433a86ed94d4b135a3b7",
"to_name": null,
"type": null,
"value": {
"end": 4003,
"labels": [
"RLC"
],
"start": 3946,
"text": "He has also denied that it was a case of accidental fire."
}
},
{
"from_name": null,
"id": "220bf536cb82488494d68ed3c44f1e31",
"to_name": null,
"type": null,
"value": {
"end": 4043,
"labels": [
"RLC"
],
"start": 4004,
"text": "PW4 Tejpal Singh is another eyewitness."
}
},
{
"from_name": null,
"id": "960646cc5af84ebf90be7ffbb63a35c8",
"to_name": null,
"type": null,
"value": {
"end": 4081,
"labels": [
"RLC"
],
"start": 4044,
"text": "According to him the appellant fired."
}
},
{
"from_name": null,
"id": "dea8b339e7c344a09c576d7c88b58ff8",
"to_name": null,
"type": null,
"value": {
"end": 4135,
"labels": [
"RLC"
],
"start": 4082,
"text": "The pellets had hit Anita and his son Khushal @ Sonu."
}
},
{
"from_name": null,
"id": "3ce4209d4f6f4f5e8518ec2549339fb7",
"to_name": null,
"type": null,
"value": {
"end": 4201,
"labels": [
"RLC"
],
"start": 4136,
"text": "He has also denied the suggestion that it was an accidental fire."
}
},
{
"from_name": null,
"id": "73b880f1bd2e4889867ecb13c9ef5b28",
"to_name": null,
"type": null,
"value": {
"end": 4337,
"labels": [
"RLC"
],
"start": 4202,
"text": "PW5 Vimla Devi W/o Devendra Singh has also corroborated the statements of eyewitnesses PW2 Chandchal (sic.) Singh and PW4 Tejpal Singh."
}
},
{
"from_name": null,
"id": "3c1b046405194c7ba3dc61d2699a90f5",
"to_name": null,
"type": null,
"value": {
"end": 4452,
"labels": [
"RLC"
],
"start": 4338,
"text": "According to her also, the appellant has fired and she suffered the pellet injuries and was taken to the hospital."
}
},
{
"from_name": null,
"id": "f5a6428aceff4fa798af31e6f6c58320",
"to_name": null,
"type": null,
"value": {
"end": 4491,
"labels": [
"RLC"
],
"start": 4453,
"text": "PW6 Ummed Singh is another eyewitness."
}
},
{
"from_name": null,
"id": "afcdd378a08e49b2821847e7071e6536",
"to_name": null,
"type": null,
"value": {
"end": 4552,
"labels": [
"RLC"
],
"start": 4492,
"text": "According to him also, the appellant was seen holding a gun."
}
},
{
"from_name": null,
"id": "3d55405667f34477a5b205c3da881ff9",
"to_name": null,
"type": null,
"value": {
"end": 4583,
"labels": [
"RLC"
],
"start": 4553,
"text": "He also received the injuries."
}
},
{
"from_name": null,
"id": "7b2787f959644f59b70751be34c84f06",
"to_name": null,
"type": null,
"value": {
"end": 4627,
"labels": [
"RLC"
],
"start": 4584,
"text": "He was taken to the hospital for treatment."
}
},
{
"from_name": null,
"id": "438719af364e495b8c0d583e67b13e6a",
"to_name": null,
"type": null,
"value": {
"end": 4685,
"labels": [
"RLC"
],
"start": 4628,
"text": "He has also denied that it was a case of accidental fire."
}
},
{
"from_name": null,
"id": "52f27141ee29410787cff17954b95db3",
"to_name": null,
"type": null,
"value": {
"end": 4741,
"labels": [
"RLC"
],
"start": 4686,
"text": "PW7 Vimla Devi W/o Bhupal Singh is also the eyewitness."
}
},
{
"from_name": null,
"id": "b2c2cd2d387642cfad5c7f4437235061",
"to_name": null,
"type": null,
"value": {
"end": 4847,
"labels": [
"RLC"
],
"start": 4742,
"text": "According to her, the appellant fired his gun and she along with others had received the pellet injuries."
}
},
{
"from_name": null,
"id": "8793bf63a80a4bac9ebcf7247ceb6b22",
"to_name": null,
"type": null,
"value": {
"end": 4883,
"labels": [
"RLC"
],
"start": 4848,
"text": "She was also taken to the hospital."
}
},
{
"from_name": null,
"id": "a1f33eb0905d43d69c07c6135ab5326c",
"to_name": null,
"type": null,
"value": {
"end": 4989,
"labels": [
"RLC"
],
"start": 4884,
"text": "He has admitted in the cross examination that the appellant fired aiming Anita Devi and Khushal Singh.\"\n "
}
},
{
"from_name": null,
"id": "a13d3bbff61c4aef9b357b665146c4ac",
"to_name": null,
"type": null,
"value": {
"end": 5063,
"labels": [
"RLC"
],
"start": 4989,
"text": "The High Court has further held that: \"Appellant was standing on the roof."
}
},
{
"from_name": null,
"id": "83c46edaf5ba4586847a0f666f5ceff4",
"to_name": null,
"type": null,
"value": {
"end": 5087,
"labels": [
"RLC"
],
"start": 5064,
"text": "He aimed at Anita Devi."
}
},
{
"from_name": null,
"id": "56a7dd9f95f742a19a4231a216a4b1f2",
"to_name": null,
"type": null,
"value": {
"end": 5141,
"labels": [
"RLC"
],
"start": 5087,
"text": "\n The bullet struck Anita Devi on her chest."
}
},
{
"from_name": null,
"id": "581d763eaf234f3cb00d4d7377d6c588",
"to_name": null,
"type": null,
"value": {
"end": 5194,
"labels": [
"RLC"
],
"start": 5142,
"text": "Khushal Singh @ Sonu also received firearm injuries."
}
},
{
"from_name": null,
"id": "570b090e3fc444e6b6213a8ceea01043",
"to_name": null,
"type": null,
"value": {
"end": 5254,
"labels": [
"RLC"
],
"start": 5195,
"text": "Other persons also suffered the pellet injuries by firearm."
}
},
{
"from_name": null,
"id": "246ba03312e747599d3abf51b3e40a95",
"to_name": null,
"type": null,
"value": {
"end": 5416,
"labels": [
"RLC"
],
"start": 5255,
"text": "Appellant was seen shooting by PW2 Chanchal Singh, PW4 Tejpal Singh, PW5 Smt. Vimla Devi W/o Devendra Singh, PW6 Ummed Singh and PW7 Vimla Devi W/o Bhupal Singh."
}
},
{
"from_name": null,
"id": "a215531b22094265bbe455339f49d813",
"to_name": null,
"type": null,
"value": {
"end": 5463,
"labels": [
"RLC"
],
"start": 5417,
"text": "It cannot be termed as the case of negligence."
}
},
{
"from_name": null,
"id": "4a73b23f14c843d69a11101a9c4d0000",
"to_name": null,
"type": null,
"value": {
"end": 5594,
"labels": [
"RLC"
],
"start": 5464,
"text": "The accused had knowledge throughout that if the bullet is fired aiming at a particular person, it would result in his/her death.\""
}
},
{
"from_name": null,
"id": "25d2200c886647c095ecf9600b215a36",
"to_name": null,
"type": null,
"value": {
"end": 5683,
"labels": [
"FAC"
],
"start": 5594,
"text": "\n 9. As stated earlier, this Court issued notice restricted to the nature of the offence."
}
},
{
"from_name": null,
"id": "cf6c109c141b4f50a12466c0d7653953",
"to_name": null,
"type": null,
"value": {
"end": 5919,
"labels": [
"FAC"
],
"start": 5684,
"text": "The appellant's culpability of causing the death of Smt.\nAnita and Khushal Singh by way of gunshot injury as concurrently established was thus neither intended to be interfered with nor the same has been seriously reagitated before us."
}
},
{
"from_name": null,
"id": "878ac050664e42d78b3714a8b3786446",
"to_name": null,
"type": null,
"value": {
"end": 5936,
"labels": [
"NONE"
],
"start": 5920,
"text": "Contentions: 10."
}
},
{
"from_name": null,
"id": "2f5bc38fae054ac8bad23c86f04fd061",
"to_name": null,
"type": null,
"value": {
"end": 6139,
"labels": [
"ARG_PETITIONER"
],
"start": 5937,
"text": "Learned senior counsel for the appellant very passionately contended that this is a case of celebratory firing which unfortunately caused unintentional death of two persons and injuries to three others."
}
},
{
"from_name": null,
"id": "ae6cd53c838f4485b47b261896cd0117",
"to_name": null,
"type": null,
"value": {
"end": 6276,
"labels": [
"ARG_PETITIONER"
],
"start": 6140,
"text": "It is not `culpable homicide' because the appellant had, while firing towards roof, no knowledge that the act was likely to cause death."
}
},
{
"from_name": null,
"id": "ed59eca097d449ef8aa11fb4a5644f35",
"to_name": null,
"type": null,
"value": {
"end": 6378,
"labels": [
"ARG_PETITIONER"
],
"start": 6277,
"text": "He contended that such an act amounts to negligence of the nature as defined under Section 304A, IPC."
}
},
{
"from_name": null,
"id": "4f4b15cf79d74e86bfdb12edfbf6dfc4",
"to_name": null,
"type": null,
"value": {
"end": 6733,
"labels": [
"ARG_PETITIONER"
],
"start": 6379,
"text": "Learned senior counsel alternatively submitted that the appellant's act at best would constitute culpable homicide not amounting to murder punishable under Section 304 Part2, IPC, for the appellant can be said to have the knowledge that his act was likely to cause death but he had no intention to cause death or such bodily injury likely to cause death."
}
},
{
"from_name": null,
"id": "8f0e457544aa421a9e0528af34216d86",
"to_name": null,
"type": null,
"value": {
"end": 6824,
"labels": [
"ARG_PETITIONER"
],
"start": 6733,
"text": "\nReliance was placed on the decision of this Court in Kunwar Pal vs.\nState of Uttarakhand1."
}
},
{
"from_name": null,
"id": "129bbfcdf4ea4811b5b1bd0f4c8076a1",
"to_name": null,
"type": null,
"value": {
"end": 6996,
"labels": [
"ARG_RESPONDENT"
],
"start": 6824,
"text": "\n11. Conversely, learned State Counsel reiterated that the appellant was rightly convicted under Section 302, IPC as the evidence on 1 (2014) 12 SCC 434 record does suggest"
}
},
{
"from_name": null,
"id": "e363d8a0ccc4469fa27f2294f7773184",
"to_name": null,
"type": null,
"value": {
"end": 7106,
"labels": [
"ARG_RESPONDENT"
],
"start": 6997,
"text": "that while standing on the roof he aimed at Smt.\nAnita and fired the gunshot and the bullet struck her chest."
}
},
{
"from_name": null,
"id": "5afa1862f0d24f68b23b5cff13c408d2",
"to_name": null,
"type": null,
"value": {
"end": 7166,
"labels": [
"ARG_RESPONDENT"
],
"start": 7107,
"text": "Similarly, Khushal Singh @ Sonu received firearms injuries."
}
},
{
"from_name": null,
"id": "1f1dc40551b34fd1bd640dc90254e3f7",
"to_name": null,
"type": null,
"value": {
"end": 7230,
"labels": [
"ARG_RESPONDENT"
],
"start": 7167,
"text": "Both Anita and Khushal Singh admittedly died of those injuries."
}
},
{
"from_name": null,
"id": "83b6abb1465d4bef81d7ec6f9a0405d5",
"to_name": null,
"type": null,
"value": {
"end": 7244,
"labels": [
"NONE"
],
"start": 7230,
"text": "\nAnalysis: 12."
}
},
{
"from_name": null,
"id": "16221d24d1e94026868d75d1897c3a08",
"to_name": null,
"type": null,
"value": {
"end": 7314,
"labels": [
"NONE"
],
"start": 7245,
"text": "We have heard learned counsel for the parties and perused the record."
}
},
{
"from_name": null,
"id": "6b992693508b48dd8591fbeaa74f0326",
"to_name": null,
"type": null,
"value": {
"end": 7644,
"labels": [
"ANALYSIS"
],
"start": 7315,
"text": "From the contents of FIR read with the statements of injured and eyewitnesses, it emerges out that there was a marriage function of son of the appellant and no sooner did the rituals of marriage were performed at about 5.30 p.m., the appellant fired from a licensed gun pointing towards the roof and caused injuries to 5 persons."
}
},
{
"from_name": null,
"id": "48e49f4f07cb40838a79c6d97516d7f5",
"to_name": null,
"type": null,
"value": {
"end": 7778,
"labels": [
"ANALYSIS"
],
"start": 7645,
"text": "Smt.\nAnita W/o Chanchal Singh and Khushal Singh @ Sonu were grievously injured who eventually succumbed to their respective injuries."
}
},
{
"from_name": null,
"id": "3521d431ddfd49fe844130b82ba2219c",
"to_name": null,
"type": null,
"value": {
"end": 7976,
"labels": [
"ANALYSIS"
],
"start": 7779,
"text": "Smt. Anita as well as Khushal Singh were present there in order to participate in the marriage celebrations which suggests that neither they nor their families had any animosity with the appellant."
}
},
{
"from_name": null,
"id": "3b74fcc07d7544d086486098fe610c04",
"to_name": null,
"type": null,
"value": {
"end": 8068,
"labels": [
"ANALYSIS"
],
"start": 7976,
"text": "\nSimilarly, Dharm Singh (P.W.3) complainant, too had no axe to grind against the appellant."
}
},
{
"from_name": null,
"id": "cf6b055dc6c34500aa1a4f6d3742cf3f",
"to_name": null,
"type": null,
"value": {
"end": 8188,
"labels": [
"ANALYSIS"
],
"start": 8069,
"text": "The eyewitness account further reveals that the shots were fired towards the roof and not aiming at any of the victims."
}
},
{
"from_name": null,
"id": "c2ebc427d2244dce8435fb932748a93f",
"to_name": null,
"type": null,
"value": {
"end": 8297,
"labels": [
"ANALYSIS"
],
"start": 8189,
"text": "It may thus be difficult to accept that the appellant had any intention to kill Smt. Anita or Khushal Singh."
}
},
{
"from_name": null,
"id": "b9eca047c34049e5913d1ae97eda78e4",
"to_name": null,
"type": null,
"value": {
"end": 8506,
"labels": [
"ANALYSIS"
],
"start": 8298,
"text": "13. Equally unfounded is the defence plea taken by the appellant that he was only holding the licenced gun and a ball thrown by the children who were playing with it, struck the gun causing accidental firing."
}
},
{
"from_name": null,
"id": "c400f53c86774780ace04e9a5ad5fc85",
"to_name": null,
"type": null,
"value": {
"end": 8574,
"labels": [
"ANALYSIS"
],
"start": 8507,
"text": "The version of eyewitnesses completely belies such a defence story."
}
},
{
"from_name": null,
"id": "51ede14aa945483c8aab2066083eee2c",
"to_name": null,
"type": null,
"value": {
"end": 8713,
"labels": [
"ANALYSIS"
],
"start": 8575,
"text": "Otherwise also, it does not appeal to common sense that a ball would strike the gun in appellant's hand resulting in an undesigned firing."
}
},
{
"from_name": null,
"id": "7689a972f11348c29b94d2eb5889b376",
"to_name": null,
"type": null,
"value": {
"end": 8844,
"labels": [
"ANALYSIS"
],
"start": 8714,
"text": "Unless the safety lock of the gun was moved forward, the gun wouldn't go off automatically even if its butt was hit by a playball."
}
},
{
"from_name": null,
"id": "616a86c16c244a85a7080b7a65a634ae",
"to_name": null,
"type": null,
"value": {
"end": 8962,
"labels": [
"ANALYSIS"
],
"start": 8844,
"text": "\nAppellant's attempt to shelter behind Section 304A, IPC is thus an exercise in futility and is liable to be rejected."
}
},
{
"from_name": null,
"id": "bb376ca1ff5843229a13c962d3382194",
"to_name": null,
"type": null,
"value": {
"end": 9293,
"labels": [
"ANALYSIS"
],
"start": 8963,
"text": "14. In this backdrop, the short question which falls for consideration is whether the appellant's act of causing death of Smt. Anita and Khushal Singh tantamounts to offence of `murder' as held by the trial court and the High Court or any lesser offence as urged by Shri Siddharth Luthra, learned senior counsel for the appellant."
}
},
{
"from_name": null,
"id": "7881d4f39c4843b19d505be6b4a6f0b0",
"to_name": null,
"type": null,
"value": {
"end": 9493,
"labels": [
"ANALYSIS"
],
"start": 9294,
"text": "Sections 299 as well as 300, IPC provide for situations in which death is caused by an act with the intention of causing death or such bodily injury which the offender knows is likely to cause death."
}
},
{
"from_name": null,
"id": "041b23a2a40644dd84656776a172acae",
"to_name": null,
"type": null,
"value": {
"end": 9716,
"labels": [
"STA"
],
"start": 9494,
"text": "Both Sections 299 and 300 deal with instances in which death is caused by an act with the intention of causing such bodily injury as the offender knows to be likely to cause death of the person to whom injury is inflicted."
}
},
{
"from_name": null,
"id": "361d12cb3fa44496a6951d0660a5e002",
"to_name": null,
"type": null,
"value": {
"end": 9872,
"labels": [
"STA"
],
"start": 9717,
"text": "These provisions also deal with cases where there is no intention of either causing death or a bodily injury which is ordinarily sufficient to cause death."
}
},
{
"from_name": null,
"id": "6d07d14faa6a4f39831994cf2dabf41a",
"to_name": null,
"type": null,
"value": {
"end": 10024,
"labels": [
"STA"
],
"start": 9873,
"text": "The absence of intention to cause death or bodily injury which is in the ordinary course of nature likely to cause death is, therefore, not conclusive."
}
},
{
"from_name": null,
"id": "ff9ac2fd25b94cd28dc9959a1f1dfe77",
"to_name": null,
"type": null,
"value": {
"end": 10187,
"labels": [
"STA"
],
"start": 10025,
"text": "What is required to be seen is whether the act is one where the offender must be deemed to have had the knowledge that he was likely, by such act, to cause death."
}
},
{
"from_name": null,
"id": "14af82874c184d57ab44da18857ab074",
"to_name": null,
"type": null,
"value": {
"end": 10576,
"labels": [
"ANALYSIS"
],
"start": 10188,
"text": "15. The trial court as well as the High Court have proceeded on the premise that the appellant's act by firing from the gun which was pointed towards the roof, was as bad as firing into a crowd of persons so he ought to have known that his act of gunshot firing was so imminently dangerous that it would, in all probability, cause death or such bodily injury as was likely to cause death."
}
},
{
"from_name": null,
"id": "a313f5ec037245799e6246deb810098c",
"to_name": null,
"type": null,
"value": {
"end": 10679,
"labels": [
"ANALYSIS"
],
"start": 10577,
"text": "16. The facts and circumstances of the instant case, however, do not permit to draw such a conclusion."
}
},
{
"from_name": null,
"id": "20cd332ec45d4eb1bbeed42a43a797e2",
"to_name": null,
"type": null,
"value": {
"end": 10809,
"labels": [
"ANALYSIS"
],
"start": 10680,
"text": "We have already rejected the prosecution version to the extent that the appellant aimed at Smt.\nAnita and then fired the shot(s)."
}
},
{
"from_name": null,
"id": "1a2c98a3a6914501ace92c8bdd29f6a8",
"to_name": null,
"type": null,
"value": {
"end": 10915,
"labels": [
"ANALYSIS"
],
"start": 10810,
"text": "The evidence on record contrarily shows that the appellant aimed the gun towards the roof and then fired."
}
},
{
"from_name": null,
"id": "2bdb07c65c47469395066e6171b058a9",
"to_name": null,
"type": null,
"value": {
"end": 10956,
"labels": [
"ANALYSIS"
],
"start": 10916,
"text": "It was an unfortunate case of misfiring."
}
},
{
"from_name": null,
"id": "f57e161096584b18a7d848622051899c",
"to_name": null,
"type": null,
"value": {
"end": 11136,
"labels": [
"ANALYSIS"
],
"start": 10957,
"text": "The appellant of course cannot absolve himself of the conclusion that he carried a loaded gun at a crowded place where his own guests had gathered to attend the marriage ceremony."
}
},
{
"from_name": null,
"id": "41d4d3fbf9724d50b49444aa0c454919",
"to_name": null,
"type": null,
"value": {
"end": 11318,
"labels": [
"ANALYSIS"
],
"start": 11137,
"text": "He did not take any reasonable safety measure like to fire the shot in the air or towards the sky, rather he invited full risk and aimed the gun towards the roof and fired the shot."
}
},
{
"from_name": null,
"id": "16fc40ff86a24bf9a2d255b052ba9c9f",
"to_name": null,
"type": null,
"value": {
"end": 11448,
"labels": [
"ANALYSIS"
],
"start": 11318,
"text": "\nHe was expected to know that pellets could cause multiple gunshot injuries to the nearby persons even if a single shot was fired."
}
},
{
"from_name": null,
"id": "7ea2127246f847189ee72d255480d3bc",
"to_name": null,
"type": null,
"value": {
"end": 11622,
"labels": [
"ANALYSIS"
],
"start": 11449,
"text": "The appellant is, thus, guilty of an act, the likely consequences of which including causing fatal injuries to the persons being in a close circuit, are attributable to him."
}
},
{
"from_name": null,
"id": "ffb2f75c1fcb4bb7b72f7a669a064939",
"to_name": null,
"type": null,
"value": {
"end": 11794,
"labels": [
"ANALYSIS"
],
"start": 11623,
"text": "The offence committed by the appellant, thus, would amount to `culpable homicide' within the meaning of Section 299, though punishable under Section 304 Part 2 of the IPC."
}
},
{
"from_name": null,
"id": "88f19edb9885408eaa5262f17718d2d6",
"to_name": null,
"type": null,
"value": {
"end": 11893,
"labels": [
"ANALYSIS"
],
"start": 11794,
"text": "\n 17. Incidents of celebratory firing are regretfully rising, for they are seen as a status symbol."
}
},
{
"from_name": null,
"id": "ea934ae11b8b4173bf5ff719059aefdb",
"to_name": null,
"type": null,
"value": {
"end": 12056,
"labels": [
"ANALYSIS"
],
"start": 11894,
"text": "A gun licensed for selfprotection or safety and security of crops and cattle cannot be fired in celebratory events, it being a potential cause of fatal accidents."
}
},
{
"from_name": null,
"id": "ac6f8492b1ae4a3e84c71874fa915b35",
"to_name": null,
"type": null,
"value": {
"end": 12128,
"labels": [
"ANALYSIS"
],
"start": 12057,
"text": "Such like misuse of fire arms convert a happy event to a pall of gloom."
}
},
{
"from_name": null,
"id": "29c65ef2032d472c85f3a34ab4de5937",
"to_name": null,
"type": null,
"value": {
"end": 12346,
"labels": [
"ANALYSIS"
],
"start": 12129,
"text": "Appellant cannot escape the consequences of carrying the gun with live cartridges with the knowledge that firing at a marriage ceremony with people present there was imminently dangerous and was likely to cause death."
}
},
{
"from_name": null,
"id": "654145a2accc447b86fa59e5a3be0229",
"to_name": null,
"type": null,
"value": {
"end": 12448,
"labels": [
"PRE_RELIED"
],
"start": 12346,
"text": "\n 18. A somewhat, similar situation arose in Kunwar Pal (Supra) wherein this Court held as under: \"12."
}
},
{
"from_name": null,
"id": "4661f01e84234fab94822e95fdc9734e",
"to_name": null,
"type": null,
"value": {
"end": 12667,
"labels": [
"PRE_RELIED"
],
"start": 12449,
"text": "We find that the intention of the appellant to kill the deceased, if any, has not been proved beyond a reasonable doubt and in any case the appellant is entitled to the benefit of doubt which is prominent in this case."
}
},
{
"from_name": null,
"id": "040c82c07c1c4384a5861544c45e2fe6",
"to_name": null,
"type": null,
"value": {
"end": 12934,
"labels": [
"PRE_RELIED"
],
"start": 12668,
"text": "It is not possible therefore to sustain the sentence under Section 304 Part I IPC, which requires that the act by which death is caused, must be done with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death."
}
},
{
"from_name": null,
"id": "9762b68336e84139b19bcd753e28ca24",
"to_name": null,
"type": null,
"value": {
"end": 13096,
"labels": [
"PRE_RELIED"
],
"start": 12935,
"text": "Though it is not possible to attribute intention it is equally not possible to hold that the act was done without the knowledge that it is likely to cause death."
}
},
{
"from_name": null,
"id": "9c0badbe5dc543e1b2661a16fd190d8d",
"to_name": null,
"type": null,
"value": {
"end": 13287,
"labels": [
"PRE_RELIED"
],
"start": 13097,
"text": "Everybody, who carries a gun with live cartridges and even others know that firing a gun and that too in the presence of several people is an act, is likely to cause death, as indeed it did."
}
},
{
"from_name": null,
"id": "4abe9e2c58d34df39a881f3b92085329",
"to_name": null,
"type": null,
"value": {
"end": 13422,
"labels": [
"PRE_RELIED"
],
"start": 13288,
"text": "Guns must be carried with a sense of responsibility and caution and are not meant to be used in such places like marriage ceremonies.\""
}
},
{
"from_name": null,
"id": "9cbded1273544a899892615e9c984cdc",
"to_name": null,
"type": null,
"value": {
"end": 13623,
"labels": [
"RATIO"
],
"start": 13422,
"text": "\n 19. Resultantly, we hold that the appellant had the requisite knowledge essential for constituting the offence of `culpable homicide' under Section 299 and punishable under Section 304 Part2 of IPC."
}
},
{
"from_name": null,
"id": "ef4363c1ff4e4c998a5934345bc75920",
"to_name": null,
"type": null,
"value": {
"end": 13705,
"labels": [
"RATIO"
],
"start": 13623,
"text": "\n He is thus held guilty under Section 304 Part2 and not under Section 302 of IPC."
}
},
{
"from_name": null,
"id": "f7804bafad624814b2770acbcc564441",
"to_name": null,
"type": null,
"value": {
"end": 13933,
"labels": [
"RATIO"
],
"start": 13706,
"text": "On the same analogy, the appellant is liable to be punished for `attempt to commit culpable homicide' not amounting to murder under Section 308, in place of Section 307 of IPC for the injuries caused to the other three victims."
}
},
{
"from_name": null,
"id": "de14151680104690a6a4b1e34ba36211",
"to_name": null,
"type": null,
"value": {
"end": 13995,
"labels": [
"RATIO"
],
"start": 13934,
"text": "To this extent, the appellant's contentions merit acceptance."
}
},
{
"from_name": null,
"id": "009aa11b15d44a50964465b1b120973e",
"to_name": null,
"type": null,
"value": {
"end": 14012,
"labels": [
"NONE"
],
"start": 13995,
"text": "\n Conclusion: 20."
}
},
{
"from_name": null,
"id": "324b1ece495647c8a743cf6b545e652f",
"to_name": null,
"type": null,
"value": {
"end": 14072,
"labels": [
"RPC"
],
"start": 14013,
"text": "For the abovestated reasons, the appeal is allowed in part."
}
},
{
"from_name": null,
"id": "72c9370617314d338743a7ce00725be3",
"to_name": null,
"type": null,
"value": {
"end": 14229,
"labels": [
"RPC"
],
"start": 14073,
"text": "The conviction of the appellant under Section 302, IPC is modified to Section 304 Part2, IPC and that under Section 307, IPC is altered to Section 308, IPC."
}
},
{
"from_name": null,
"id": "d995f496168c4536b4df848cbf73e1b5",
"to_name": null,
"type": null,
"value": {
"end": 14565,
"labels": [
"RPC"
],
"start": 14230,
"text": "As a necessary corollary, the sentence of life imprisonment awarded to the appellant for committing the offence under Section 302 IPC, is reduced to 10 years' rigorous imprisonment and the sentence awarded to him under Section 307, IPC is substituted with Section 308 IPC, without any alteration in the fine imposed by the trial court."
}
},
{
"from_name": null,
"id": "35530d227c7a4dbebbbfc26779062481",
"to_name": null,
"type": null,
"value": {
"end": 14604,
"labels": [
"NONE"
],
"start": 14565,
"text": "\n ....................................."
}
},
{
"from_name": null,
"id": "12dd8aa2770f4dd0a4a77ed8e6893a24",
"to_name": null,
"type": null,
"value": {
"end": 14653,
"labels": [
"NONE"
],
"start": 14604,
"text": "\n (S.A. BOBDE)"
}
},
{
"from_name": null,
"id": "592bf1984d3845519ec2a209927942ea",
"to_name": null,
"type": null,
"value": {
"end": 14692,
"labels": [
"NONE"
],
"start": 14654,
"text": "CJI .................................."
}
},
{
"from_name": null,
"id": "dd48caa776044071bf1c0f94155e6532",
"to_name": null,
"type": null,
"value": {
"end": 14733,
"labels": [
"NONE"
],
"start": 14692,
"text": "J.\n "
}
},
{
"from_name": null,
"id": "ff41c4489be048b48b85d7ade80bb6ad",
"to_name": null,
"type": null,
"value": {
"end": 14745,
"labels": [
"NONE"
],
"start": 14733,
"text": "(B.R. GAVAI)"
}
},
{
"from_name": null,
"id": "f1f070ed9f6642c385bd649fc9013969",
"to_name": null,
"type": null,
"value": {
"end": 14779,
"labels": [
"NONE"
],
"start": 14746,
"text": "................................."
}
},
{
"from_name": null,
"id": "f97b96ea5c6b4c5dbb66816022d46e0d",
"to_name": null,
"type": null,
"value": {
"end": 14818,
"labels": [
"NONE"
],
"start": 14780,
"text": "J.\n "
}
},
{
"from_name": null,
"id": "92014df13a7942d89da67c3ca3a7c5b2",
"to_name": null,
"type": null,
"value": {
"end": 14830,
"labels": [
"NONE"
],
"start": 14818,
"text": "(SURYA KANT)"
}
},
{
"from_name": null,
"id": "54ec8e916f5c40c59eb041c980d73527",
"to_name": null,
"type": null,
"value": {
"end": 14859,
"labels": [
"NONE"
],
"start": 14831,
"text": "NEW DELHI DATED : 18.03.2020"
}
}
]
}
] | 4,134 | {
"text": " REPORTABLE\n\n IN THE SUPREME COURT OF INDIA\n CRIMINAL APPELLATE JURISDICTION\n\n CRIMINAL APPEAL NO. 407 OF 2020\n[Arising out of Special Leave Petition(Crl.)No. 656 OF 2018]\n\nBhagwan Singh VERSUS ..... Appellants(s)\nState of Uttarakhand .....Respondents(s)\n\n JUDGMENT\n Leave granted.\n 2. This Criminal Appeal is directed against the judgment dated 26th July, 2017 passed by the High Court of Uttarakhand whereby the appellant's criminal appeal against the judgment and order dated 11th/12th July, 2013 rendered by Learned Sessions Judge, Bageshwar convicting the appellant under Sections 302 and 307 of Indian Penal Code (for short, `IPC') and sentencing him to undergo life imprisonment (under Section 302, IPC) and 5 years' rigorous imprisonment (under Section 307, IPC) along with a fine of Rs.\n 20,000/ in default whereof he was directed to undergo 6 months' additional rigorous imprisonment, was dismissed. The appellant was, however, acquitted for offence punishable under Section 25 of the Arms Act for want of the requisite sanction.\n3. It may be mentioned at the outset that notice of the special leave petition was issued on the limited question to determine the nature of offence committed by the appellant i.e. whether it falls under the ambit of Section 302 or 304 of IPC. To determine this question the facts may be briefly noted.\nFacts: 4. On 21st April, 2007, the marriage ceremony of the Appellant's son was taking place at village Dafaut, Uttarakhand, when around 5:30 pm as soon as the marriage procession reached the Appellant's courtyard he suddenly fired celebratory gunshots. The pellets struck 5 persons standing in the courtyard namely, Smt. Anita W/o Chanchal Singh, Khushal Singh @ Sonu, Ummed Singh (P.W.6), Smt.\nVimla W/o Devendra Singh (P.W.5) and Smt. Vimla W/o Bhupal Singh (P.W.7). The injured were taken to the hospital where two of them Anita and Khushal Singh @ Sonu succumbed to their injuries. Later at about 8:40 pm, Dharam Singh (P.W.3) filed an FIR at PS Kothwali, Bageshwar, narrating in full detail the incident of which he himself was a witness.\n5. After the conclusion of investigation, initially a charge sheet under Section 304, IPC was filed but later on the appellant was charged under Sections 302 and 307, IPC along with Section 25 of the Arms Act.\n6. The Ld. Sessions Judge held the appellant guilty of offences under Sections 302 and 307, IPC based on testimonies of eye witnesses and injured witnesses. It was noted that Appellant fired shots from his son's licensed gun causing fatal injuries to Smt. Anita and Khushal Singh and injuring three others. He was consequently sentenced in the manner as briefly noticed in the opening paragraph of the order.\n7. The appellant went in appeal before the High Court. His primary contention was that he had no intention to cause anyone's death. He stated that the firing was accidental and was caused by a ball with which some children were playing. The ball struck against the gun in his hand and led to the firing of shots. The occurrence was an admitted fact and the only plea taken was that it being a case of accidental firing, Section 300 punishable under Section 302, IPC was not attracted.\n8. The High Court rejected the appellant's plea and held as follows: \"There is no merit in the submission put forth by learned Advocates appearing for the appellant. PW2 Chanchal Singh has categorically deposed that the appellant has aimed at his wife Smt. Anita and fired. The bullet hit on her chest. She was taken to the hospital and declared dead. In his cross examination, he has denied the suggestion that the ball has struck against the gun which led to accidental fire. PW3 Dharam Singh has also admitted that the injuries were caused by the accused with the firearm. The injured were taken to the hospital. He has also denied that it was a case of accidental fire. PW4 Tejpal Singh is another eyewitness. According to him the appellant fired. The pellets had hit Anita and his son Khushal @ Sonu. He has also denied the suggestion that it was an accidental fire. PW5 Vimla Devi W/o Devendra Singh has also corroborated the statements of eyewitnesses PW2 Chandchal (sic.) Singh and PW4 Tejpal Singh. According to her also, the appellant has fired and she suffered the pellet injuries and was taken to the hospital. PW6 Ummed Singh is another eyewitness. According to him also, the appellant was seen holding a gun. He also received the injuries. He was taken to the hospital for treatment. He has also denied that it was a case of accidental fire. PW7 Vimla Devi W/o Bhupal Singh is also the eyewitness. According to her, the appellant fired his gun and she along with others had received the pellet injuries. She was also taken to the hospital. He has admitted in the cross examination that the appellant fired aiming Anita Devi and Khushal Singh.\"\n The High Court has further held that: \"Appellant was standing on the roof. He aimed at Anita Devi.\n The bullet struck Anita Devi on her chest. Khushal Singh @ Sonu also received firearm injuries. Other persons also suffered the pellet injuries by firearm. Appellant was seen shooting by PW2 Chanchal Singh, PW4 Tejpal Singh, PW5 Smt. Vimla Devi W/o Devendra Singh, PW6 Ummed Singh and PW7 Vimla Devi W/o Bhupal Singh. It cannot be termed as the case of negligence. The accused had knowledge throughout that if the bullet is fired aiming at a particular person, it would result in his/her death.\"\n 9. As stated earlier, this Court issued notice restricted to the nature of the offence. The appellant's culpability of causing the death of Smt.\nAnita and Khushal Singh by way of gunshot injury as concurrently established was thus neither intended to be interfered with nor the same has been seriously reagitated before us.\nContentions: 10. Learned senior counsel for the appellant very passionately contended that this is a case of celebratory firing which unfortunately caused unintentional death of two persons and injuries to three others. It is not `culpable homicide' because the appellant had, while firing towards roof, no knowledge that the act was likely to cause death. He contended that such an act amounts to negligence of the nature as defined under Section 304A, IPC. Learned senior counsel alternatively submitted that the appellant's act at best would constitute culpable homicide not amounting to murder punishable under Section 304 Part2, IPC, for the appellant can be said to have the knowledge that his act was likely to cause death but he had no intention to cause death or such bodily injury likely to cause death.\nReliance was placed on the decision of this Court in Kunwar Pal vs.\nState of Uttarakhand1.\n11. Conversely, learned State Counsel reiterated that the appellant was rightly convicted under Section 302, IPC as the evidence on 1 (2014) 12 SCC 434 record does suggest that while standing on the roof he aimed at Smt.\nAnita and fired the gunshot and the bullet struck her chest. Similarly, Khushal Singh @ Sonu received firearms injuries. Both Anita and Khushal Singh admittedly died of those injuries.\nAnalysis: 12. We have heard learned counsel for the parties and perused the record. From the contents of FIR read with the statements of injured and eyewitnesses, it emerges out that there was a marriage function of son of the appellant and no sooner did the rituals of marriage were performed at about 5.30 p.m., the appellant fired from a licensed gun pointing towards the roof and caused injuries to 5 persons. Smt.\nAnita W/o Chanchal Singh and Khushal Singh @ Sonu were grievously injured who eventually succumbed to their respective injuries. Smt. Anita as well as Khushal Singh were present there in order to participate in the marriage celebrations which suggests that neither they nor their families had any animosity with the appellant.\nSimilarly, Dharm Singh (P.W.3) complainant, too had no axe to grind against the appellant. The eyewitness account further reveals that the shots were fired towards the roof and not aiming at any of the victims. It may thus be difficult to accept that the appellant had any intention to kill Smt. Anita or Khushal Singh.\n13. Equally unfounded is the defence plea taken by the appellant that he was only holding the licenced gun and a ball thrown by the children who were playing with it, struck the gun causing accidental firing. The version of eyewitnesses completely belies such a defence story. Otherwise also, it does not appeal to common sense that a ball would strike the gun in appellant's hand resulting in an undesigned firing. Unless the safety lock of the gun was moved forward, the gun wouldn't go off automatically even if its butt was hit by a playball.\nAppellant's attempt to shelter behind Section 304A, IPC is thus an exercise in futility and is liable to be rejected.\n14. In this backdrop, the short question which falls for consideration is whether the appellant's act of causing death of Smt. Anita and Khushal Singh tantamounts to offence of `murder' as held by the trial court and the High Court or any lesser offence as urged by Shri Siddharth Luthra, learned senior counsel for the appellant. Sections 299 as well as 300, IPC provide for situations in which death is caused by an act with the intention of causing death or such bodily injury which the offender knows is likely to cause death. Both Sections 299 and 300 deal with instances in which death is caused by an act with the intention of causing such bodily injury as the offender knows to be likely to cause death of the person to whom injury is inflicted. These provisions also deal with cases where there is no intention of either causing death or a bodily injury which is ordinarily sufficient to cause death. The absence of intention to cause death or bodily injury which is in the ordinary course of nature likely to cause death is, therefore, not conclusive. What is required to be seen is whether the act is one where the offender must be deemed to have had the knowledge that he was likely, by such act, to cause death.\n15. The trial court as well as the High Court have proceeded on the premise that the appellant's act by firing from the gun which was pointed towards the roof, was as bad as firing into a crowd of persons so he ought to have known that his act of gunshot firing was so imminently dangerous that it would, in all probability, cause death or such bodily injury as was likely to cause death.\n16. The facts and circumstances of the instant case, however, do not permit to draw such a conclusion. We have already rejected the prosecution version to the extent that the appellant aimed at Smt.\nAnita and then fired the shot(s). The evidence on record contrarily shows that the appellant aimed the gun towards the roof and then fired. It was an unfortunate case of misfiring. The appellant of course cannot absolve himself of the conclusion that he carried a loaded gun at a crowded place where his own guests had gathered to attend the marriage ceremony. He did not take any reasonable safety measure like to fire the shot in the air or towards the sky, rather he invited full risk and aimed the gun towards the roof and fired the shot.\nHe was expected to know that pellets could cause multiple gunshot injuries to the nearby persons even if a single shot was fired. The appellant is, thus, guilty of an act, the likely consequences of which including causing fatal injuries to the persons being in a close circuit, are attributable to him. The offence committed by the appellant, thus, would amount to `culpable homicide' within the meaning of Section 299, though punishable under Section 304 Part 2 of the IPC.\n 17. Incidents of celebratory firing are regretfully rising, for they are seen as a status symbol. A gun licensed for selfprotection or safety and security of crops and cattle cannot be fired in celebratory events, it being a potential cause of fatal accidents. Such like misuse of fire arms convert a happy event to a pall of gloom. Appellant cannot escape the consequences of carrying the gun with live cartridges with the knowledge that firing at a marriage ceremony with people present there was imminently dangerous and was likely to cause death.\n 18. A somewhat, similar situation arose in Kunwar Pal (Supra) wherein this Court held as under: \"12. We find that the intention of the appellant to kill the deceased, if any, has not been proved beyond a reasonable doubt and in any case the appellant is entitled to the benefit of doubt which is prominent in this case. It is not possible therefore to sustain the sentence under Section 304 Part I IPC, which requires that the act by which death is caused, must be done with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death. Though it is not possible to attribute intention it is equally not possible to hold that the act was done without the knowledge that it is likely to cause death. Everybody, who carries a gun with live cartridges and even others know that firing a gun and that too in the presence of several people is an act, is likely to cause death, as indeed it did. Guns must be carried with a sense of responsibility and caution and are not meant to be used in such places like marriage ceremonies.\"\n 19. Resultantly, we hold that the appellant had the requisite knowledge essential for constituting the offence of `culpable homicide' under Section 299 and punishable under Section 304 Part2 of IPC.\n He is thus held guilty under Section 304 Part2 and not under Section 302 of IPC. On the same analogy, the appellant is liable to be punished for `attempt to commit culpable homicide' not amounting to murder under Section 308, in place of Section 307 of IPC for the injuries caused to the other three victims. To this extent, the appellant's contentions merit acceptance.\n Conclusion: 20. For the abovestated reasons, the appeal is allowed in part. The conviction of the appellant under Section 302, IPC is modified to Section 304 Part2, IPC and that under Section 307, IPC is altered to Section 308, IPC. As a necessary corollary, the sentence of life imprisonment awarded to the appellant for committing the offence under Section 302 IPC, is reduced to 10 years' rigorous imprisonment and the sentence awarded to him under Section 307, IPC is substituted with Section 308 IPC, without any alteration in the fine imposed by the trial court.\n .....................................\n (S.A. BOBDE) CJI ..................................J.\n (B.R. GAVAI) ................................. J.\n (SURYA KANT) NEW DELHI DATED : 18.03.2020 "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
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"id": "773b20fd3a004a11aad8054a01dd835e",
"to_name": null,
"type": null,
"value": {
"end": 87,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "IN THE COURT OF THE JUDICIAL MAGISTRATE FIRST\n CLASS, SUNDARGARH."
}
},
{
"from_name": null,
"id": "d6d4b90269894387a714712026a5304a",
"to_name": null,
"type": null,
"value": {
"end": 128,
"labels": [
"PREAMBLE"
],
"start": 112,
"text": "DIST: SUNDARGARH"
}
},
{
"from_name": null,
"id": "48a3d607a7f64db39736abf6a3282c1d",
"to_name": null,
"type": null,
"value": {
"end": 666,
"labels": [
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],
"start": 128,
"text": "\n\nAt present : Shri Arup Nayak, M.A.LL.B\n J.M.F.C.,Sundargarh.\n\n GR Case No -212 of 2012\n T.R No:- 568 of 15\n\nDated this , 24th Day of February, 2016\n\nState..... .........Prosecution\n\n -Versus \n\nJogeswar Sai Paikara, aged about 30 years,\nS/o- Late Mangulusai Paikara,\nVill- Veluan, Fatebahal,\nP.S. Tumla, Dist- Jaspur (Chhatisgarh)\n\n .............Accused\n\n Date of Argument : 18.02.2016.\n Date of Judgment : 24.02.2016."
}
},
{
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"id": "17784434d5d743e6b2e34cbe028318c2",
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"type": null,
"value": {
"end": 908,
"labels": [
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],
"start": 667,
"text": "------------------------------------------------------------------------------------\n For the Prosecution: Mrs Tanuja Mohanty, APP, Sundargarh\n For the Defence : Shri S K Purohit and associates, Sundargarh\n\n Offences"
}
},
{
"from_name": null,
"id": "8f405590c4724261aee714a713b38a16",
"to_name": null,
"type": null,
"value": {
"end": 942,
"labels": [
"PREAMBLE"
],
"start": 909,
"text": "U/s. 394 of The Indian Penal Code"
}
},
{
"from_name": null,
"id": "82681e4a01824242bf796c4b2b5f2345",
"to_name": null,
"type": null,
"value": {
"end": 991,
"labels": [
"PREAMBLE"
],
"start": 942,
"text": "\n J U D G M E N T"
}
},
{
"from_name": null,
"id": "87d8ceeaf73b4d008682823cf1d85f09",
"to_name": null,
"type": null,
"value": {
"end": 1143,
"labels": [
"FAC"
],
"start": 993,
"text": "1. The above named accused stands prosecuted U/s. 394 of The Indian Penal Code ( herein after referred to as the IPC) for the purpose of brevity only."
}
},
{
"from_name": null,
"id": "d0659cb2f5744d5f81781e4053235b88",
"to_name": null,
"type": null,
"value": {
"end": 1455,
"labels": [
"FAC"
],
"start": 1145,
"text": "2. The brief facts of the prosecution is that :- On 22.03.2012 at about 4.45 PM, the complainant Sukumar Panda lodged a written report to the effect that on that day at about 4.00 PM his driver namely Saroj Kumar Kaudi was proceeded towards Kinjirkela by taking his Bolero bearing Registration No. OR 16C 3387."
}
},
{
"from_name": null,
"id": "cda804d9529f4b92849de22b301392f3",
"to_name": null,
"type": null,
"value": {
"end": 1636,
"labels": [
"FAC"
],
"start": 1455,
"text": "\nOn the way in a lonely place near Khaparilate village, three unknown persons suddenly came in front of the vehicle as a result of which, the driver stopped the vehicle at the spot."
}
},
{
"from_name": null,
"id": "acb0c74e96514ca3b008ab467ad7f5a5",
"to_name": null,
"type": null,
"value": {
"end": 1748,
"labels": [
"FAC"
],
"start": 1637,
"text": "The unknown persons assaulted the driver by keeping him on the point of gun and fled away with the said Bolero."
}
},
{
"from_name": null,
"id": "6f61352482214fd4896adf94acc50954",
"to_name": null,
"type": null,
"value": {
"end": 1926,
"labels": [
"FAC"
],
"start": 1750,
"text": "Basing on the said report, the OIC Kinjirkela PS registered PS Case No. 13, dated 22.03.2012 U/s 394 IPC read with Section 25/27 Arms Act and took up investigation of the case."
}
},
{
"from_name": null,
"id": "13705f4115364ae3862bf7d548c3e8df",
"to_name": null,
"type": null,
"value": {
"end": 2246,
"labels": [
"FAC"
],
"start": 1927,
"text": "During the course of investigation , the IO visited the spot, examined the complainant and other witnesses, seized the stolen vehicle from ASI Kutwa OP, seized the R.C book, Insurance policy of the said vehicle, DL of the driver on production and also left the same along with the vehicle in zima by executing zimanama."
}
},
{
"from_name": null,
"id": "8aca9825557c46109f3a0784a2d4f328",
"to_name": null,
"type": null,
"value": {
"end": 2444,
"labels": [
"FAC"
],
"start": 2247,
"text": "After completion of investigation submitted charge sheet vide No. 08, dated 15.02.2013 U/s. 394 IPC against the accused persons namely Jogeswar Sai Paikara, Deonath Sai Paikara and Ramsingh Sidkar."
}
},
{
"from_name": null,
"id": "912d001eda444622a9db5f7cab191cb8",
"to_name": null,
"type": null,
"value": {
"end": 2570,
"labels": [
"FAC"
],
"start": 2444,
"text": "\n 3. As the accused Ramsingh Sidkar and Deonath Sai Paikara are absconded and their presence could not procured by the court ."
}
},
{
"from_name": null,
"id": "c0e3857dba5943aaa763609b8ffba387",
"to_name": null,
"type": null,
"value": {
"end": 2684,
"labels": [
"FAC"
],
"start": 2571,
"text": "Hence, this case has been split up against the accused Jogeswar Sai Paikra to face his trial in the court of law."
}
},
{
"from_name": null,
"id": "3c0522cec6e64daab18b5c9de1ef4326",
"to_name": null,
"type": null,
"value": {
"end": 2760,
"labels": [
"FAC"
],
"start": 2686,
"text": "4. The plea of defense is one of complete denial and of false implication."
}
},
{
"from_name": null,
"id": "a7a3f4327c074ab387bf754dc9a5979f",
"to_name": null,
"type": null,
"value": {
"end": 3250,
"labels": [
"ISSUE"
],
"start": 2760,
"text": "\n5. In the present case the following points need to be determined ;- Whether on 22.03.2012 at about 4.00 PM near Khaparilate village Dist -Sundargarh, the accused Jogeswar Sai Paikra along with Deonath Sai Paikara and Ramsingh Sidkar;- I) committed robbery of a Bolero bearing Registration No. OR 16C 3387 from the possession of its driver ?\n II) Voluntarily caused hurt to the driver of the above said Bolero for committing robbery and thereby committed an offence punishable u/s 394 IPC?"
}
},
{
"from_name": null,
"id": "151b861ab93541a5ab22e79989c30694",
"to_name": null,
"type": null,
"value": {
"end": 3347,
"labels": [
"FAC"
],
"start": 3250,
"text": "\n 6. During course of trial, the prosecution site examined 9 witnesses to substantiate it's case."
}
},
{
"from_name": null,
"id": "825f034aa8db40b294b7be0bca56d5e5",
"to_name": null,
"type": null,
"value": {
"end": 3531,
"labels": [
"FAC"
],
"start": 3348,
"text": "P.W.1 is the complainant of the case, P.W.2 Ranjan Kumar Patel is a chance witness, P.W.3 Saroj Kumar Kaudi is the driver of the vehicle, P.Ws 4,5,6,7 and 8 are the seizure witnesses."
}
},
{
"from_name": null,
"id": "a7904a9045e54777a1977fa728ddf450",
"to_name": null,
"type": null,
"value": {
"end": 3561,
"labels": [
"FAC"
],
"start": 3531,
"text": "\nP.W.9 is the IO of this case."
}
},
{
"from_name": null,
"id": "1fdda24f5f494c3abd09e7bcc42adabf",
"to_name": null,
"type": null,
"value": {
"end": 3639,
"labels": [
"FAC"
],
"start": 3562,
"text": "On the other hand, no evidence has been adduced by the accused on his behalf."
}
},
{
"from_name": null,
"id": "f6c870ad0ca14dd1823a0a84704cfe1d",
"to_name": null,
"type": null,
"value": {
"end": 3805,
"labels": [
"FAC"
],
"start": 3641,
"text": "7. P.W.1, the informant identified the accused and deposed that on 22.03.2012 in between 4.00 PM to 4.30 PM, his driver had gone to Kinjirkela by taking his Bolero."
}
},
{
"from_name": null,
"id": "89130be86ed84be585254f74f0883890",
"to_name": null,
"type": null,
"value": {
"end": 3975,
"labels": [
"FAC"
],
"start": 3806,
"text": "On the way near \"Athtesha jungle\" some people stopped him and when the driver stopped the vehicle those persons assaulted his driver and fled away by taking the vehicle."
}
},
{
"from_name": null,
"id": "9514626f99814c7683165967dcc36fd2",
"to_name": null,
"type": null,
"value": {
"end": 4121,
"labels": [
"FAC"
],
"start": 3976,
"text": "The driver informed him through telephone about the occurrence and after that he went to the spot along with the driver and searched the vehicle."
}
},
{
"from_name": null,
"id": "2e37b1180a774e858b2e0b1bc04d56bf",
"to_name": null,
"type": null,
"value": {
"end": 4307,
"labels": [
"FAC"
],
"start": 4121,
"text": "\nOn the same day at about 10.00PM, P.W.1 got information that his vehicle was seized by the Kotwa OP, after that he went to the Kotwa OP and acknowledged his vehicle and brought it back."
}
},
{
"from_name": null,
"id": "67b94c800ded48e7b7d398be68bdd86b",
"to_name": null,
"type": null,
"value": {
"end": 4461,
"labels": [
"FAC"
],
"start": 4308,
"text": "P.W.1 lodged an F.I.R regarding this matter, marked vide Ext.1 and also identified his signature on it, marked vide Ext.1/1.\n P.W.2, Ranjan Kumar."
}
},
{
"from_name": null,
"id": "67ef83324c0b4e2ab69746b8d9b73294",
"to_name": null,
"type": null,
"value": {
"end": 4637,
"labels": [
"FAC"
],
"start": 4462,
"text": "Patel, the chance witness identified the accused and stated that he is a school teacher and on 22.03.2012 at about 4.00 PM he was returning from his school by his motor cycle."
}
},
{
"from_name": null,
"id": "7de993bbe33e46caa5177e555b75336b",
"to_name": null,
"type": null,
"value": {
"end": 4899,
"labels": [
"FAC"
],
"start": 4638,
"text": "On the way near Khapurilata village he found one white color Bolero was standing on the road, two persons were inside the Bolero and the back seated person in the Bolero trying to press the neck of the other person seated in the driver seat by means of a towel."
}
},
{
"from_name": null,
"id": "3f91d189d83a4f6d9de300f1841657aa",
"to_name": null,
"type": null,
"value": {
"end": 4965,
"labels": [
"FAC"
],
"start": 4900,
"text": "There were other two persons urinating by the side of the Bolero."
}
},
{
"from_name": null,
"id": "79001e0b07df498489ba38911ea59d4a",
"to_name": null,
"type": null,
"value": {
"end": 5083,
"labels": [
"FAC"
],
"start": 4966,
"text": "By watching him the person seated on the driver seat shouted for help, for which P.W.2 stopped his motor cycle there."
}
},
{
"from_name": null,
"id": "3602e6191cb247b8a46a5693dcbe6e22",
"to_name": null,
"type": null,
"value": {
"end": 5218,
"labels": [
"FAC"
],
"start": 5084,
"text": "Thereby, one of the persons urinating outside the Bolero rushed towards him by saying \"App Yahan Se Jaiye, nehito hum apko mar denge\"."
}
},
{
"from_name": null,
"id": "ea43b87e3851427db391b5c6ebca044c",
"to_name": null,
"type": null,
"value": {
"end": 5395,
"labels": [
"FAC"
],
"start": 5219,
"text": "Out of fear P.W.2 started his vehicle to go, but in the mean time he heard the voice of the person seated in the driver seat for help and found that person running towards him."
}
},
{
"from_name": null,
"id": "4b071b4791494e9aaaef4a93429f9da7",
"to_name": null,
"type": null,
"value": {
"end": 5460,
"labels": [
"FAC"
],
"start": 5396,
"text": "He stopped his vehicle and gave him lift upto Kanakjore village."
}
},
{
"from_name": null,
"id": "a9e4d2c0c11d47889a3caa16d6fcae36",
"to_name": null,
"type": null,
"value": {
"end": 5611,
"labels": [
"FAC"
],
"start": 5461,
"text": "On being asked by P.W.2, that person said that those persons hired the vehicle from Sundargarh but on the way assaulted him and took away his vehicle."
}
},
{
"from_name": null,
"id": "3a2c0cee31794b0cac29a8293e3f49ab",
"to_name": null,
"type": null,
"value": {
"end": 5722,
"labels": [
"FAC"
],
"start": 5612,
"text": "In presence of P.W.2, that person also contacted to the owner of the vehicle, intimating about the occurrence."
}
},
{
"from_name": null,
"id": "74602fb95cae4d6ca79c6b867ff0e90f",
"to_name": null,
"type": null,
"value": {
"end": 5729,
"labels": [
"FAC"
],
"start": 5722,
"text": "\n P.W.3"
}
},
{
"from_name": null,
"id": "6ac3eaa94d0f4a07890713e3c06629c8",
"to_name": null,
"type": null,
"value": {
"end": 6048,
"labels": [
"FAC"
],
"start": 5729,
"text": ", Saroj Kumar Kaudi, the driver of the vehicle identified the accused and deposed that on 22.03.2012, at about 3.00 PM one person hired his vehicle to Gudiadihi, then they picked up another two persons near the Hospital, Sundargarh and carrying all total three persons P.W.3 proceeded towards Gudiadihi from Sundargarh."
}
},
{
"from_name": null,
"id": "367242907b5b4bee939d2917c9edcebe",
"to_name": null,
"type": null,
"value": {
"end": 6144,
"labels": [
"FAC"
],
"start": 6049,
"text": "On the way near the village Khaparilata those persons asked him to stop the vehicle for urinal."
}
},
{
"from_name": null,
"id": "1c41e5c1046148999f57e5f5e5cd2d5f",
"to_name": null,
"type": null,
"value": {
"end": 6210,
"labels": [
"FAC"
],
"start": 6144,
"text": "\nWhen he stopped the vehicle two persons went outside the vehicle."
}
},
{
"from_name": null,
"id": "e71fba8397f5433d82348cab49ab76d2",
"to_name": null,
"type": null,
"value": {
"end": 6382,
"labels": [
"FAC"
],
"start": 6211,
"text": "The accused had seated at his back seat and asked him to drive his vehicle, when the same was objected by P.W.3, the accused started to assault him by means of fist blows."
}
},
{
"from_name": null,
"id": "ad495d69a6e74a3f9ded444fb1e0a57d",
"to_name": null,
"type": null,
"value": {
"end": 6492,
"labels": [
"FAC"
],
"start": 6383,
"text": "After that the other two persons who went outside, came near to him and tried to pull him out of the vehicle."
}
},
{
"from_name": null,
"id": "7022817d2b454deb9481d55dfd24b1f2",
"to_name": null,
"type": null,
"value": {
"end": 6640,
"labels": [
"FAC"
],
"start": 6493,
"text": "P.W.3 further stated that at that very moment a school teacher came to that spot, but the accused persons also threatened him, so he left the spot."
}
},
{
"from_name": null,
"id": "79ea9d9a4b0449c2acaa71a5e44fbb79",
"to_name": null,
"type": null,
"value": {
"end": 6783,
"labels": [
"FAC"
],
"start": 6641,
"text": "After some time P.W.3 by making himself free from those persons, came out from that place with the help of that school teacher in his vehicle."
}
},
{
"from_name": null,
"id": "3b0cb026c8eb4f3fab573e542aa96de3",
"to_name": null,
"type": null,
"value": {
"end": 6854,
"labels": [
"FAC"
],
"start": 6783,
"text": "\nThereafter, he intimated the owner of the vehicle about the occurrence"
}
},
{
"from_name": null,
"id": "3e91bc1ee4e64ad4be44a23f97a9652a",
"to_name": null,
"type": null,
"value": {
"end": 7033,
"labels": [
"FAC"
],
"start": 6855,
"text": ".P.W.3 further stated that on the very day, Chhatisgarh police called to the owner of the vehicle and informed about the arrest of the accused persons and seizure of the vehicle."
}
},
{
"from_name": null,
"id": "1a659502bc4d46c0a32a13c61110eb18",
"to_name": null,
"type": null,
"value": {
"end": 7102,
"labels": [
"FAC"
],
"start": 7034,
"text": "After that they went to that P.S and recognized the accused persons."
}
},
{
"from_name": null,
"id": "cab5dcf1845042178fa9bbfcd306fe15",
"to_name": null,
"type": null,
"value": {
"end": 7279,
"labels": [
"FAC"
],
"start": 7103,
"text": "P.W.3 further deposed that he took the vehicle and the relevant documents by executing the zimanama, marked vide Ext.2 and identified his signature on it, marked vide Ext. 2/1."
}
},
{
"from_name": null,
"id": "cb4ea61eafaa49a4bb4e87edfe91ffbd",
"to_name": null,
"type": null,
"value": {
"end": 7402,
"labels": [
"FAC"
],
"start": 7281,
"text": "P.W.4, Naiman Soren, the seizure witness stated that, on 22.03.2012, he had been to Kotwa OP alongwith A.S.I, Kinjirkela."
}
},
{
"from_name": null,
"id": "0423902312c54df0928e1ff9e62d9a9e",
"to_name": null,
"type": null,
"value": {
"end": 7528,
"labels": [
"FAC"
],
"start": 7403,
"text": "At Kotwa OP, A.S.I seized the seizure list regarding that vehicle and also seized one F.I.R copy in his presence at Kotwa PS."
}
},
{
"from_name": null,
"id": "99fc35753a204ae5a01521f847433654",
"to_name": null,
"type": null,
"value": {
"end": 7827,
"labels": [
"FAC"
],
"start": 7529,
"text": "Ext. 3 is the said seizure list and he identified his signature on it, marked vide Ext. 3/1.\n P.W.5, Luis Valrian Kiro, the seizure witness deposed that on 29.11.2012 OIC, Bhagabat Naik seized the F.I.R No.3 of 2012 of Tumula P.S and the property seizure memo of the Bolero Vehicle in his presence."
}
},
{
"from_name": null,
"id": "e05b282ceaa947cda72cd65992eefab7",
"to_name": null,
"type": null,
"value": {
"end": 8105,
"labels": [
"FAC"
],
"start": 7828,
"text": "Ext.4 is the said seizure list and he identified his signature on it, marked vide Ext. 4/1.\n P.W.6, Parikhit Majhi, the seizure witness deposed that on 23.03.2012, OIC, Bhagabat Naik seized one F.I.R copy and one property seizure memo of the Bolero in his presence of Kotwa PS."
}
},
{
"from_name": null,
"id": "fa7fc2ab065a416d807a091af9f1d8fe",
"to_name": null,
"type": null,
"value": {
"end": 8182,
"labels": [
"FAC"
],
"start": 8106,
"text": "He identified his signature on the seizure list(Ext.3), marked vide Ext.3/1."
}
},
{
"from_name": null,
"id": "80c59f5ace7a4ba4bcb70ca866ebda6a",
"to_name": null,
"type": null,
"value": {
"end": 8351,
"labels": [
"FAC"
],
"start": 8183,
"text": "P.W.6 further deposed that on 25.03.2012, OIC, Bhagabat Naik seized the vehicle documents, Driving License, R.C book and Insurance papers of the Bolero in his presence."
}
},
{
"from_name": null,
"id": "daa3a1d51ebf4385935710a80b1b17a2",
"to_name": null,
"type": null,
"value": {
"end": 8444,
"labels": [
"FAC"
],
"start": 8352,
"text": "Ext.5 is the said seizure list and he identified his signature on it, marked vide Ext.5/1.\n "
}
},
{
"from_name": null,
"id": "04004ec6b303417eb46710de4d170c3b",
"to_name": null,
"type": null,
"value": {
"end": 8692,
"labels": [
"FAC"
],
"start": 8444,
"text": "P.W.7, Pankaj Kumar Mohanta, the seizure witness deposed that on 25.03.2012, the OIC Bhagabat Naik seized the RC book of the Bolero bearing Registration NO. OR 16C 3387, the DL of the driver and Insurance certificate of the vehicle in his presence."
}
},
{
"from_name": null,
"id": "ae27da8b9b344f10bed7ba60757bc431",
"to_name": null,
"type": null,
"value": {
"end": 9018,
"labels": [
"FAC"
],
"start": 8693,
"text": "He identified his signature on the seizure list (Ext.5), marked vide Ext.5/1.\n P.W.8 , Nabin Chadnra Minz the seizure witness deposed that on 29.11.2012 the OIC Bhagabat Naik seized some documents and prepared the seizure list in his presence but due to passage of time he could not recollect the documents which were seized."
}
},
{
"from_name": null,
"id": "3ecea2cefc1e4d4c9cf26f3418bab33c",
"to_name": null,
"type": null,
"value": {
"end": 9401,
"labels": [
"FAC"
],
"start": 9019,
"text": "He identified his signature on the seizure list (Ext.4) marked vide Ext.4/2.\n P.W.9, Bhagabat Naik, the IO of the case, deposed that on the day of occurrence he got information from Hari Sankar Singh, the ASI of Kutwa OP, about the recovery of the stolen Bolero bearing Registration No. OR-16C- 3387 and arrest of two accused persons namely Ramsing Sidkara and Deonath Sai Paikrai ."
}
},
{
"from_name": null,
"id": "b1af18f6407442369ac67c5d66fc8963",
"to_name": null,
"type": null,
"value": {
"end": 9632,
"labels": [
"FAC"
],
"start": 9402,
"text": "On 23-03.2012, the I.O examined the ASI, Kotwa P.S and seized one FIR copy and xerox copy of the property seizure memo of the said vehicle and prepared the seizure list marked vide Ext.3 and identified his signature, vide Ext.3/3."
}
},
{
"from_name": null,
"id": "8fccbce804974b239f85b17af9ad7645",
"to_name": null,
"type": null,
"value": {
"end": 9860,
"labels": [
"FAC"
],
"start": 9633,
"text": "On 25.03.2012 the IO seized RC book , Insurance policy of the vehicle, DL of Saroj Kumar Kaudi (the driver of the vehicle) on production and prepared the seizure list marked vide Ext.5 and identified his signature vide Ext.5/3."
}
},
{
"from_name": null,
"id": "096ac1a0e426405a98d11c9e4a6797e5",
"to_name": null,
"type": null,
"value": {
"end": 9984,
"labels": [
"FAC"
],
"start": 9861,
"text": "On 29.11.2012 he received information about the arrest of the accused Jogeswar Sai paikrai in another case under Tumula PS."
}
},
{
"from_name": null,
"id": "21c73a8539fa4ac89bc7ade37a7bc2b8",
"to_name": null,
"type": null,
"value": {
"end": 10168,
"labels": [
"FAC"
],
"start": 9985,
"text": "The IO seized FIR copy of Tumula PS Case No. 03/2012, arrest memo, copy of property memo and prepared the seizure list (Ext.4) and identified his signature on it, marked vide Ext.4/3."
}
},
{
"from_name": null,
"id": "86c51d91da314f21a591e1128344f8e9",
"to_name": null,
"type": null,
"value": {
"end": 10181,
"labels": [
"ANALYSIS"
],
"start": 10168,
"text": "\n 8. "
}
},
{
"from_name": null,
"id": "1b48b4e942034d459adcb9f1967964b7",
"to_name": null,
"type": null,
"value": {
"end": 10270,
"labels": [
"ANALYSIS"
],
"start": 10181,
"text": "In the instant case at hand, the accused is implicated for the offense U/s. 394 of I.P.C."
}
},
{
"from_name": null,
"id": "767bbd1d108e4e8c9d128efef876fdf6",
"to_name": null,
"type": null,
"value": {
"end": 10432,
"labels": [
"ANALYSIS"
],
"start": 10271,
"text": "In order to attract the offence U/s.394, there must be robbery, either committed or attempted and for that purpose the accused must have voluntarily caused hurt."
}
},
{
"from_name": null,
"id": "acbff928bdaf47f7849cbc886ca7c92a",
"to_name": null,
"type": null,
"value": {
"end": 10624,
"labels": [
"ANALYSIS"
],
"start": 10433,
"text": "By taking into consideration the materials available on record and as per the allegations of prosecution the offense of Robbery has been committed in broad day light in the form of Extortion."
}
},
{
"from_name": null,
"id": "7b989aa4da34497b9e3d8644ae68e71a",
"to_name": null,
"type": null,
"value": {
"end": 10836,
"labels": [
"ANALYSIS"
],
"start": 10625,
"text": "The allegation of the prosecution is that on 22.03.2012, in between 4.00 PM to 4.30 PM, the accused along with his two other companion committed robbery of one Bolero by assaulting the driver of the complainant."
}
},
{
"from_name": null,
"id": "a65f4ee507504f8f8b2f0d996b662987",
"to_name": null,
"type": null,
"value": {
"end": 10907,
"labels": [
"ANALYSIS"
],
"start": 10837,
"text": "So this allegation attracts the offense U/s.394 of I.P.C.\n 9. "
}
},
{
"from_name": null,
"id": "4edfb30c71254df1ae7a22fdaa796ca6",
"to_name": null,
"type": null,
"value": {
"end": 11059,
"labels": [
"ANALYSIS"
],
"start": 10907,
"text": "In a whole, coming to the discussion, P.W.1 the owner of the vehicle is the complainant of this case and lodged the F.I.R at Kinjirikela P.S at 4.45 Pm."
}
},
{
"from_name": null,
"id": "13fa18e7b1484bb7bc841961d0498d5f",
"to_name": null,
"type": null,
"value": {
"end": 11205,
"labels": [
"ANALYSIS"
],
"start": 11060,
"text": "P.W.1 stated that he got telephonic information from his driver about the occurrence and after that he went to the Kinjirikela PS and lodged FIR."
}
},
{
"from_name": null,
"id": "295aca68fc894865988ff3aea7a480e3",
"to_name": null,
"type": null,
"value": {
"end": 11373,
"labels": [
"ANALYSIS"
],
"start": 11206,
"text": "P.W.3, the driver of the vehicle stated that he had been assaulted by the accused persons and after that they fled away by taking his Bolero, near village khaparilata."
}
},
{
"from_name": null,
"id": "2b196240d8124c70a2049f479b6a9cfd",
"to_name": null,
"type": null,
"value": {
"end": 11526,
"labels": [
"ANALYSIS"
],
"start": 11374,
"text": "He took the help of a school teacher from the spot and after that he gave telephonic information to the owner of the vehicle in presence of that person."
}
},
{
"from_name": null,
"id": "1a19cb7e535b4d81b2f41a4886fbd5d8",
"to_name": null,
"type": null,
"value": {
"end": 11687,
"labels": [
"ANALYSIS"
],
"start": 11527,
"text": "P.W.2, the school teacher deposed that when he was returning from his school at about 4.00 PM, he found the driver (P.W.3) was assaulted by the accused persons."
}
},
{
"from_name": null,
"id": "defc2fa3e6354f5fb841e3eca02953c4",
"to_name": null,
"type": null,
"value": {
"end": 11782,
"labels": [
"ANALYSIS"
],
"start": 11688,
"text": "P.W.2 gave lift to the driver of the Bolero from that spot and left him at Kanakajore village."
}
},
{
"from_name": null,
"id": "fc7b6432ae204834b99861afe47e46f4",
"to_name": null,
"type": null,
"value": {
"end": 11892,
"labels": [
"ANALYSIS"
],
"start": 11783,
"text": "P.W.3 further deposed that the driver informed the owner telephonically in his presence about the occurrence."
}
},
{
"from_name": null,
"id": "b7434964b5b046b8afcc81e3b24a827b",
"to_name": null,
"type": null,
"value": {
"end": 12215,
"labels": [
"ANALYSIS"
],
"start": 11893,
"text": "P.W.9, the I.O stated that on the day of occurrence during investigation, he got telephonic information from the A.S.I, Kotwa OP, that the said vehicle has been seized, two of the accused persons namely Ramsingh Sidkar and Deonath Sai Paikara were arrested and other accused namely Jogeswar Sai Paikara has been absconded."
}
},
{
"from_name": null,
"id": "9e1e49126e1740f7954e7a7d63cd4e2c",
"to_name": null,
"type": null,
"value": {
"end": 12361,
"labels": [
"ANALYSIS"
],
"start": 12216,
"text": "On the next day I.e on 23.03.2012 the I.O seized the said vehicle from the A.S.I, Kotwa OP in presence of P.W.4 and P.W.6, the seizure witnesses."
}
},
{
"from_name": null,
"id": "4a0f996a29834971bea38c8e6d5488e9",
"to_name": null,
"type": null,
"value": {
"end": 12619,
"labels": [
"ANALYSIS"
],
"start": 12362,
"text": "P.W.4 and P.W.6 also proved the said seizure by saying that the seizure has been made in their presence by the I.O. The I.O left the vehicle in zima of the driver (P.W.2) by verifying the relevant documents and by execution of zimanama, marked vide. Ext. 2."
}
},
{
"from_name": null,
"id": "c3a44307ea754e86936e48f34f09ca11",
"to_name": null,
"type": null,
"value": {
"end": 12839,
"labels": [
"ANALYSIS"
],
"start": 12620,
"text": "From the above discussion now it can be safely conclude that the Bolero has been robbed near village Khaparilata, from the possession of it's driver and recovered at Kotwa P.S from the possession of the accused persons."
}
},
{
"from_name": null,
"id": "bbaa35c6fde84e629ddcb5ec8ae37cf0",
"to_name": null,
"type": null,
"value": {
"end": 13204,
"labels": [
"ANALYSIS"
],
"start": 12839,
"text": "\n 10. From the allegations and evidences deposed by the prosecution witnesses, it comes to light that the driver of the Bolero has been assaulted by the accused persons in a lonely place on the road near village khaparilata, which has not been seen by any one except a chance witness, who is a school teacher and was returning from his school by that way and time."
}
},
{
"from_name": null,
"id": "2827c035d7f84c75b803965ad751eb9d",
"to_name": null,
"type": null,
"value": {
"end": 13411,
"labels": [
"ANALYSIS"
],
"start": 13205,
"text": "Here the offense of Robbery has been committed in the form of extortion, which ultimately implies, the possessor of the property has the knowledge of the incident and he left the property in fear of injury."
}
},
{
"from_name": null,
"id": "de45f25835704400805df86d2e1c2c27",
"to_name": null,
"type": null,
"value": {
"end": 13566,
"labels": [
"ANALYSIS"
],
"start": 13412,
"text": "So, it can be safely presume that the driver and the school teacher are the sole eye witnesses in this case to bring the accused into the clutches of law."
}
},
{
"from_name": null,
"id": "e112406da27742c3b4b223ab93c42a83",
"to_name": null,
"type": null,
"value": {
"end": 13724,
"labels": [
"ANALYSIS"
],
"start": 13567,
"text": "Now the question is whether this is the said accused who has committed the offense of robbery in the form of Extortion with the help of other two co-accused."
}
},
{
"from_name": null,
"id": "f9eed98b46444550a670c7c2cf9a5130",
"to_name": null,
"type": null,
"value": {
"end": 13946,
"labels": [
"ARG_RESPONDENT"
],
"start": 13724,
"text": "\n 11. During the course of argument, the Ld defense counsel raised his contentions regarding the time of occurrence and filing of F.I.R at Kinjirikela P.S by the informant, who was at Sundargarh at the time of occurrence."
}
},
{
"from_name": null,
"id": "382b08b7e6dd49e5bd1eed61c40297b4",
"to_name": null,
"type": null,
"value": {
"end": 14032,
"labels": [
"ARG_RESPONDENT"
],
"start": 13947,
"text": "Kinjirikela P.S is about 30 Kms distance from Sundargarh, which is highly improbable."
}
},
{
"from_name": null,
"id": "60fe97b84cc94304ab327884deb9d8fb",
"to_name": null,
"type": null,
"value": {
"end": 14396,
"labels": [
"ARG_RESPONDENT"
],
"start": 14032,
"text": "\n The Ld. Defense counsel put forth another contention regarding conduct of T.I Parade and to strengthen his contention, the Ld. Defense counsel placed reliance on the decision laid down in AIR 1998 SUPREME COURT 1922(Shaikh Umar Ahmed Shaikh and another Vrs.\nState of Maharastra) and AIR 1982 SUPREME COURT 839( Mohanlal Gangaram Gehani Vrs. State of Maharastra)."
}
},
{
"from_name": null,
"id": "27b7e00c184b4c2f81367d1d1b637593",
"to_name": null,
"type": null,
"value": {
"end": 14569,
"labels": [
"ANALYSIS"
],
"start": 14398,
"text": "In the case of Shaikh Umar Ahmed Shaikh, there was an attack by a mob, causing death of a constable and there was requirement of T.I parade of 5 to 6 persons out of a mob."
}
},
{
"from_name": null,
"id": "38ef8e5ebd9d4b7eb7148b41a65b108b",
"to_name": null,
"type": null,
"value": {
"end": 14780,
"labels": [
"ANALYSIS"
],
"start": 14570,
"text": "So far as the case of Mohanlal Gangaram Gehani is concerned, there was presence of dying declaration and the recorder of the dying declaration made contradictory statement and T.I parade has not been conducted."
}
},
{
"from_name": null,
"id": "7e0ad46ccdd849eaae4036324b2e9a6f",
"to_name": null,
"type": null,
"value": {
"end": 14921,
"labels": [
"ANALYSIS"
],
"start": 14781,
"text": "So far as both the cases are concerned, the facts and circumstances of both the cases are different in relation to the present case at hand."
}
},
{
"from_name": null,
"id": "79acc6f85ea6460a87c59236b8cc3e86",
"to_name": null,
"type": null,
"value": {
"end": 15149,
"labels": [
"ANALYSIS"
],
"start": 14922,
"text": "Dealing with the other contention, the court is of the view that, when occurrence has been sufficiently proved, the time regarding the commission of offense and filing of FIR in the present facts and circumstance is immaterial."
}
},
{
"from_name": null,
"id": "45c8147c0dd6488daea9896170ce58ed",
"to_name": null,
"type": null,
"value": {
"end": 15252,
"labels": [
"ANALYSIS"
],
"start": 15149,
"text": "\n 12. Now coming to the point for discussion about the involvement of the accused in the present case."
}
},
{
"from_name": null,
"id": "49f045afb4224291a8a20bf909c3e229",
"to_name": null,
"type": null,
"value": {
"end": 15384,
"labels": [
"ANALYSIS"
],
"start": 15253,
"text": "In this case prosecution has not examined the A.S.I of Kotwa P.S, who has seized the vehicle from the possession of the Co-accused."
}
},
{
"from_name": null,
"id": "2e5c2452272c4d1dbd044e87030489fd",
"to_name": null,
"type": null,
"value": {
"end": 15446,
"labels": [
"ANALYSIS"
],
"start": 15385,
"text": "Test Identification parade has not been conducted by the I.O."
}
},
{
"from_name": null,
"id": "8adfc2fae147436aba9c867b8a103b05",
"to_name": null,
"type": null,
"value": {
"end": 15544,
"labels": [
"ANALYSIS"
],
"start": 15447,
"text": "In absence of such evidences, available evidences may be taken into consideration for conclusion."
}
},
{
"from_name": null,
"id": "4fd87c745312481e80111c87e0e2f0b6",
"to_name": null,
"type": null,
"value": {
"end": 15780,
"labels": [
"ANALYSIS"
],
"start": 15545,
"text": "P.W.9, the I.O stated that he got information from the A.S.I, Kotwa PS, that two accused persons Ramsingh Sidkar and Deonath Sai Paikara were arrested from the involved vehicle and one accused namely Jogeswar Sai Paikara has absconded."
}
},
{
"from_name": null,
"id": "dcb54bab70d94fb0a4bdbce324bb8943",
"to_name": null,
"type": null,
"value": {
"end": 15925,
"labels": [
"ANALYSIS"
],
"start": 15781,
"text": "On 29.11.2012 the I.O got information about the arrest of Jogeswar Sai Paikara in Tumla P.S case no. 3/12 and taken him on remand on 18.12.2012."
}
},
{
"from_name": null,
"id": "b6c779573c4241ca8c562fae7fcfc290",
"to_name": null,
"type": null,
"value": {
"end": 16051,
"labels": [
"ANALYSIS"
],
"start": 15926,
"text": "P.W.3, the driver of the vehicle clearly identified the accused and stated that the accused had been seated in his back seat."
}
},
{
"from_name": null,
"id": "2a78d3fdd34742d694d1600b869c8792",
"to_name": null,
"type": null,
"value": {
"end": 16175,
"labels": [
"ANALYSIS"
],
"start": 16051,
"text": "\n At the place of occurrence, accused asked him to drive, when he objected the accused assaulted him by means of fist blows."
}
},
{
"from_name": null,
"id": "03f807575f2b4f8e9a2caf2ee61f7262",
"to_name": null,
"type": null,
"value": {
"end": 16261,
"labels": [
"ANALYSIS"
],
"start": 16176,
"text": "P.W.2, the chance witness, during his examination identified the accused three times."
}
},
{
"from_name": null,
"id": "ddda97d80b6047a3847670b3a5e7f1c5",
"to_name": null,
"type": null,
"value": {
"end": 16382,
"labels": [
"ANALYSIS"
],
"start": 16262,
"text": "In Para -1 , he stated that \"I do not know the name of the accused standing in the dock, but it seems as if I know him\"."
}
},
{
"from_name": null,
"id": "f760461aec904095ac642b83bf87d165",
"to_name": null,
"type": null,
"value": {
"end": 16563,
"labels": [
"ANALYSIS"
],
"start": 16383,
"text": "In para-9 of his cross- examination, he stated that, \"the accused standing in the dock was present on the spot on the day of occurrence, but I can not say what he was doing there\"."
}
},
{
"from_name": null,
"id": "846e466f30f441568e134e843aa37366",
"to_name": null,
"type": null,
"value": {
"end": 16688,
"labels": [
"ANALYSIS"
],
"start": 16564,
"text": "In Para-16 of his cross-examination, he stated that \"this accused standing in the dock had threatened me in hindi language\"."
}
},
{
"from_name": null,
"id": "6e5fe2f6cccc407faed935de81c989d6",
"to_name": null,
"type": null,
"value": {
"end": 16776,
"labels": [
"ANALYSIS"
],
"start": 16690,
"text": "The presence of accused on the spot of occurrence is affirmed by both P.W.2 and P.W.3."
}
},
{
"from_name": null,
"id": "75b4d196bccf489893ffb1ac11dc564a",
"to_name": null,
"type": null,
"value": {
"end": 16904,
"labels": [
"ANALYSIS"
],
"start": 16777,
"text": "However, the statement of P.W.2 and P.W.3 are contradictory about the overt act done by the accused at the place of occurrence."
}
},
{
"from_name": null,
"id": "b022d7dcf9e946fb9682631131a6ee5f",
"to_name": null,
"type": null,
"value": {
"end": 17119,
"labels": [
"ANALYSIS"
],
"start": 16905,
"text": "Both P.W.2 and P.W.3 deposed in a consistent manner corroborating their previous statements and nothing could have brought from their mouth during their cross examination , which put questions on their credibility."
}
},
{
"from_name": null,
"id": "7c40f06d7a9f433bbeba5111b2273f11",
"to_name": null,
"type": null,
"value": {
"end": 17222,
"labels": [
"ANALYSIS"
],
"start": 17120,
"text": "P.W.3 is the victim of the case, he spent a long time with the accused persons in comparison to P.W.2."
}
},
{
"from_name": null,
"id": "946e3b4ba0a74079a8d2fa078cdf6328",
"to_name": null,
"type": null,
"value": {
"end": 17319,
"labels": [
"ANALYSIS"
],
"start": 17223,
"text": "P.W.2 is a chance witness, who has seen two persons inside the vehicle and two persons out side."
}
},
{
"from_name": null,
"id": "e3da8a2860c44ca2a2b15b0e5d3c85d4",
"to_name": null,
"type": null,
"value": {
"end": 17399,
"labels": [
"ANALYSIS"
],
"start": 17320,
"text": "P.W.2 left the spot immediately after threatening by one of the accused person."
}
},
{
"from_name": null,
"id": "9cc0abf9b47f47058e7cc128b404bf0a",
"to_name": null,
"type": null,
"value": {
"end": 17559,
"labels": [
"ANALYSIS"
],
"start": 17400,
"text": "The fact cannot be ignored that in ordinary course, a person tends to remember things more particularly which he himself had undergone in comparison to others."
}
},
{
"from_name": null,
"id": "1cb0003fc5564216aedd7f9e3838528e",
"to_name": null,
"type": null,
"value": {
"end": 17637,
"labels": [
"ANALYSIS"
],
"start": 17560,
"text": "The occurrence took place on 22.03.2012 and P.W.2 has examined on 16.07.2013."
}
},
{
"from_name": null,
"id": "cf7166c563054438947673e3a41923b1",
"to_name": null,
"type": null,
"value": {
"end": 17700,
"labels": [
"ANALYSIS"
],
"start": 17638,
"text": "Human memory is subject to deterioration with passage of time."
}
},
{
"from_name": null,
"id": "8805620202c24e07b1ed52301df3a2bc",
"to_name": null,
"type": null,
"value": {
"end": 17796,
"labels": [
"ANALYSIS"
],
"start": 17701,
"text": "The presence of accused on the spot of occurrence is not disputed by both of the eye witnesses."
}
},
{
"from_name": null,
"id": "33fdfffe058a4d18b9b6a6512a6bda33",
"to_name": null,
"type": null,
"value": {
"end": 17891,
"labels": [
"ANALYSIS"
],
"start": 17797,
"text": "So it can be safely conclude with the involvement of the accused in the alleged crime/offense."
}
},
{
"from_name": null,
"id": "f38eb7f178f54794a5a5691eae75081a",
"to_name": null,
"type": null,
"value": {
"end": 17961,
"labels": [
"ANALYSIS"
],
"start": 17892,
"text": "This is an offense, which comes under the purview of Joint liability."
}
},
{
"from_name": null,
"id": "b3610d1a8df24d2ba4cce836fed70793",
"to_name": null,
"type": null,
"value": {
"end": 18206,
"labels": [
"ANALYSIS"
],
"start": 17962,
"text": "As per the principle of joint liability, where one or more persons having similar intention to commit any crime, commits any such crime, then each of such persons is liable for that offense jointly and severally, as if it was done by him alone."
}
},
{
"from_name": null,
"id": "61318c328fcc41fbbc34eea90e550b05",
"to_name": null,
"type": null,
"value": {
"end": 18362,
"labels": [
"ANALYSIS"
],
"start": 18207,
"text": "Mere presence of an accused, at the scene of the occurrence, having the intention to commit such crime/offense is sufficient to draw inference against him."
}
},
{
"from_name": null,
"id": "51d3c82608a741efac47a396f877ae19",
"to_name": null,
"type": null,
"value": {
"end": 18390,
"labels": [
"ANALYSIS"
],
"start": 18363,
"text": "Overt act is not necessary."
}
},
{
"from_name": null,
"id": "b5e932903c3144e4a3dafd3e3d14e409",
"to_name": null,
"type": null,
"value": {
"end": 18558,
"labels": [
"ANALYSIS"
],
"start": 18391,
"text": "By taking into consideration of the evidences, adduced by PW.2 and P.W.3, the eye witnesses, the involvement of the accused in the present case is sufficiently proved."
}
},
{
"from_name": null,
"id": "2115f45df06b42098f4657832d556638",
"to_name": null,
"type": null,
"value": {
"end": 18704,
"labels": [
"ANALYSIS"
],
"start": 18559,
"text": "Thus this court is of the view that the prosecution has successfully established the guilt of accused U/s 394 of IPC beyond all reasonable doubt."
}
},
{
"from_name": null,
"id": "e8f10463b8f645109ee51ce4ab08bc84",
"to_name": null,
"type": null,
"value": {
"end": 18899,
"labels": [
"RATIO"
],
"start": 18704,
"text": "\n 14. On the basis of the above analysis this court is of the conclusion that the prosecution has successfully established the case against the accused U/s. 394 IPC beyond all reasonable doubt ."
}
},
{
"from_name": null,
"id": "f3003c2050114964a6e8eb4e009caaf3",
"to_name": null,
"type": null,
"value": {
"end": 18993,
"labels": [
"RPC"
],
"start": 18900,
"text": "The accused is found guilty for offense U/s. 394 IPC and convicted thereof u/s 248(2) Cr.P.C."
}
},
{
"from_name": null,
"id": "c02742306bee4496b362a0baffccac3e",
"to_name": null,
"type": null,
"value": {
"end": 19144,
"labels": [
"NONE"
],
"start": 18993,
"text": "\n Pronounced this judgment in the open court in the presence of accused today this 24th day of February, 2016 under my signature and seal of the court."
}
},
{
"from_name": null,
"id": "67bcc097bd0241fa8a3f1a6aaebf49b6",
"to_name": null,
"type": null,
"value": {
"end": 19165,
"labels": [
"NONE"
],
"start": 19144,
"text": "\n J.M.F.C, Sundargarh"
}
},
{
"from_name": null,
"id": "ee51ede7969248d7b470254fc5f3a449",
"to_name": null,
"type": null,
"value": {
"end": 19241,
"labels": [
"RATIO"
],
"start": 19165,
"text": " Committing robbery in the form of extortion is a grievous offence in nature"
}
},
{
"from_name": null,
"id": "16356bdea9fb4024a2aa421cef362dd9",
"to_name": null,
"type": null,
"value": {
"end": 19483,
"labels": [
"RATIO"
],
"start": 19241,
"text": ". Hence having regard to the facts and allegations of the case, this court is of the view that, if such type of convicts are released under the beneficial provisions of Probation of offenders Act, it would send a wrong message to the society."
}
},
{
"from_name": null,
"id": "90fb17209fce40a1bb0f52ef013649c8",
"to_name": null,
"type": null,
"value": {
"end": 19610,
"labels": [
"RATIO"
],
"start": 19484,
"text": "Hence, this court is not inclined to extend any of the beneficial provisions under Probation of offenders Act to the convicts."
}
},
{
"from_name": null,
"id": "05b92db6bed34a4b8e2e66715d126f61",
"to_name": null,
"type": null,
"value": {
"end": 19760,
"labels": [
"NONE"
],
"start": 19612,
"text": "J.M.F.C., Sundargarh HEARING ON THE QUESTION OF SENTENCE Heard the convict as well as Learned counsel for the convict and Learned APP for the state."
}
},
{
"from_name": null,
"id": "b510acc1f50446038cdd642c3249ae23",
"to_name": null,
"type": null,
"value": {
"end": 19902,
"labels": [
"ARG_PETITIONER"
],
"start": 19761,
"text": "The convict and the Learned Defence counsel submitted that being a first time offender, lenient view should be taken while imposing sentence."
}
},
{
"from_name": null,
"id": "25c848e8ade348118f129ed2178343a6",
"to_name": null,
"type": null,
"value": {
"end": 20045,
"labels": [
"ARG_RESPONDENT"
],
"start": 19903,
"text": "On the other hand, the counsel for the state submitted that the convict has committed grievous offense, hence prayed for exemplary punishment."
}
},
{
"from_name": null,
"id": "5374aec7411641e385f90cd678b48ef9",
"to_name": null,
"type": null,
"value": {
"end": 20364,
"labels": [
"RPC"
],
"start": 20046,
"text": "Taking into consideration of the circumstances and manner of the commission of the offense, the convict namely Jogeswar Sai Paikara sentenced to undergo Rigorous Imprisonment for three years and to pay fine of Rs.10,000/- (Ten thousand) and in default, he shall further undergo Simple Imprisonment for (06) six months."
}
},
{
"from_name": null,
"id": "ae368628b07b47f5b4a5dbb854da45e7",
"to_name": null,
"type": null,
"value": {
"end": 20500,
"labels": [
"RPC"
],
"start": 20364,
"text": "\n The period of detention undergone, if any, by the convict as U.T.P.\nbe set-off U/s-428 of Cr.P.C against the sentence of imprisonment."
}
},
{
"from_name": null,
"id": "d5f534bc306e465fa366e2bdf712f8d3",
"to_name": null,
"type": null,
"value": {
"end": 20651,
"labels": [
"NONE"
],
"start": 20502,
"text": "Pronounced this sentence in the open court in the presence of accused today this 24th day of February, 2016 under my signature and seal of the court."
}
},
{
"from_name": null,
"id": "064d90bc852e4f17a0f8dc86b9e5d0e6",
"to_name": null,
"type": null,
"value": {
"end": 20734,
"labels": [
"NONE"
],
"start": 20651,
"text": "\n J.M.F.C., Sundargarh Typed to my dictation and corrected by me JM.F.C.,Sundargarh"
}
},
{
"from_name": null,
"id": "d6d1455c25c345a7bd0badfce3996752",
"to_name": null,
"type": null,
"value": {
"end": 20784,
"labels": [
"NONE"
],
"start": 20735,
"text": "Supply free copy of this judgment to the convict."
}
},
{
"from_name": null,
"id": "3579fca3e40d4d409a581861aa0450c3",
"to_name": null,
"type": null,
"value": {
"end": 20803,
"labels": [
"NONE"
],
"start": 20784,
"text": "\n JMFC, Sundargarh."
}
},
{
"from_name": null,
"id": "ed8945a644d04d689229093c9965699a",
"to_name": null,
"type": null,
"value": {
"end": 20847,
"labels": [
"NONE"
],
"start": 20804,
"text": "Typed and corrected by me JMFC, Sundargarh."
}
},
{
"from_name": null,
"id": "f652f9fe56e7495fb2f9650f819a27c2",
"to_name": null,
"type": null,
"value": {
"end": 20878,
"labels": [
"NONE"
],
"start": 20848,
"text": "LIST OF PROSECUTION WITNESSES."
}
},
{
"from_name": null,
"id": "bd70f4308850453d8b8dc5f43a5c5ae4",
"to_name": null,
"type": null,
"value": {
"end": 20910,
"labels": [
"NONE"
],
"start": 20880,
"text": "P.W.1. Sukumar Panda P.W.2 "
}
},
{
"from_name": null,
"id": "818c1228dc954390b1da8a5192e099b8",
"to_name": null,
"type": null,
"value": {
"end": 20981,
"labels": [
"NONE"
],
"start": 20910,
"text": "Ranjan Kumar Patel P.W.3 Saroj Kumar Kaudi P.W.4 Naiman Surin P.W.5"
}
},
{
"from_name": null,
"id": "b8921b123cb6456d913b73bbf987a1cb",
"to_name": null,
"type": null,
"value": {
"end": 21061,
"labels": [
"NONE"
],
"start": 20984,
"text": "Luis Valerian Kiro P.W.6 Parikhita Majhi P.W.7 Pankaj Kumar Mahanto P.W.8"
}
},
{
"from_name": null,
"id": "a774db38995f40abb62333b4d0504d9d",
"to_name": null,
"type": null,
"value": {
"end": 21500,
"labels": [
"NONE"
],
"start": 21062,
"text": " Nabin Chandra Minz P.W.9 Bhagabat Naik LIST OF DEFENCE WITNESSES NIL LIST OF EXHIBITS MARKED ON BEHALF OF PROSECUTION Ext.1 FIR Ext.1/1 Signature of P.W.1 Ext.1/2 Signature of P.W.9 Ext.1/3 Formal FIR Ext.1/4 Signature of P.W.9 on Ext.1/3 Ext.2 Zimanama Ext.2/1 Signature of P.W.3 on Ext.2 Ext.2/2 Signature of P.W.9 on Ext.2 Ext.3 Seizure list Ext.3/1 Signature of P.W.4 on Ext.3 Ext.3/2 Signature of P.W.6 on Ext.3."
}
},
{
"from_name": null,
"id": "78f4d09ed45d4e0f8fd903c603cdbe82",
"to_name": null,
"type": null,
"value": {
"end": 21759,
"labels": [
"NONE"
],
"start": 21500,
"text": "\n Ext.3/3 Signature of P.W.4 on Ext.3 Ext.4 Seizure list Ext.4/1 Signature of P.W.5 Ext.4/2 Signature of P.W.8 on Ext.4 Ext.5 Seizure list Ext.5/1 Signature of P.W.6 Ext.5/2 Signature of P.W.7 on Ext.5 Ext.5/3 Signature of P.W.9 on Ext.5 Ext.6 "
}
},
{
"from_name": null,
"id": "464ce5f74d274ba1a9531163b280123e",
"to_name": null,
"type": null,
"value": {
"end": 21874,
"labels": [
"NONE"
],
"start": 21759,
"text": "Spot Map Ext.6/1 Signature of P.W.9 on Ext.6 LIST OF EXHIBITS MARKED ON BEHALF OF DEFENCE NIL J.M.F.C.,Sundargarh."
}
}
]
}
] | 4,270 | {
"text": "IN THE COURT OF THE JUDICIAL MAGISTRATE FIRST\n CLASS, SUNDARGARH.\n DIST: SUNDARGARH\n\nAt present : Shri Arup Nayak, M.A.LL.B\n J.M.F.C.,Sundargarh.\n\n GR Case No -212 of 2012\n T.R No:- 568 of 15\n\nDated this , 24th Day of February, 2016\n\nState..... .........Prosecution\n\n -Versus \n\nJogeswar Sai Paikara, aged about 30 years,\nS/o- Late Mangulusai Paikara,\nVill- Veluan, Fatebahal,\nP.S. Tumla, Dist- Jaspur (Chhatisgarh)\n\n .............Accused\n\n Date of Argument : 18.02.2016.\n Date of Judgment : 24.02.2016.\n------------------------------------------------------------------------------------\n For the Prosecution: Mrs Tanuja Mohanty, APP, Sundargarh\n For the Defence : Shri S K Purohit and associates, Sundargarh\n\n Offences U/s. 394 of The Indian Penal Code\n J U D G M E N T\n 1. The above named accused stands prosecuted U/s. 394 of The Indian Penal Code ( herein after referred to as the IPC) for the purpose of brevity only.\n 2. The brief facts of the prosecution is that :- On 22.03.2012 at about 4.45 PM, the complainant Sukumar Panda lodged a written report to the effect that on that day at about 4.00 PM his driver namely Saroj Kumar Kaudi was proceeded towards Kinjirkela by taking his Bolero bearing Registration No. OR 16C 3387.\nOn the way in a lonely place near Khaparilate village, three unknown persons suddenly came in front of the vehicle as a result of which, the driver stopped the vehicle at the spot. The unknown persons assaulted the driver by keeping him on the point of gun and fled away with the said Bolero.\n Basing on the said report, the OIC Kinjirkela PS registered PS Case No. 13, dated 22.03.2012 U/s 394 IPC read with Section 25/27 Arms Act and took up investigation of the case. During the course of investigation , the IO visited the spot, examined the complainant and other witnesses, seized the stolen vehicle from ASI Kutwa OP, seized the R.C book, Insurance policy of the said vehicle, DL of the driver on production and also left the same along with the vehicle in zima by executing zimanama. After completion of investigation submitted charge sheet vide No. 08, dated 15.02.2013 U/s. 394 IPC against the accused persons namely Jogeswar Sai Paikara, Deonath Sai Paikara and Ramsingh Sidkar.\n 3. As the accused Ramsingh Sidkar and Deonath Sai Paikara are absconded and their presence could not procured by the court . Hence, this case has been split up against the accused Jogeswar Sai Paikra to face his trial in the court of law.\n 4. The plea of defense is one of complete denial and of false implication.\n5. In the present case the following points need to be determined ;- Whether on 22.03.2012 at about 4.00 PM near Khaparilate village Dist -Sundargarh, the accused Jogeswar Sai Paikra along with Deonath Sai Paikara and Ramsingh Sidkar;- I) committed robbery of a Bolero bearing Registration No. OR 16C 3387 from the possession of its driver ?\n II) Voluntarily caused hurt to the driver of the above said Bolero for committing robbery and thereby committed an offence punishable u/s 394 IPC?\n 6. During course of trial, the prosecution site examined 9 witnesses to substantiate it's case. P.W.1 is the complainant of the case, P.W.2 Ranjan Kumar Patel is a chance witness, P.W.3 Saroj Kumar Kaudi is the driver of the vehicle, P.Ws 4,5,6,7 and 8 are the seizure witnesses.\nP.W.9 is the IO of this case. On the other hand, no evidence has been adduced by the accused on his behalf.\n 7. P.W.1, the informant identified the accused and deposed that on 22.03.2012 in between 4.00 PM to 4.30 PM, his driver had gone to Kinjirkela by taking his Bolero. On the way near \"Athtesha jungle\" some people stopped him and when the driver stopped the vehicle those persons assaulted his driver and fled away by taking the vehicle. The driver informed him through telephone about the occurrence and after that he went to the spot along with the driver and searched the vehicle.\nOn the same day at about 10.00PM, P.W.1 got information that his vehicle was seized by the Kotwa OP, after that he went to the Kotwa OP and acknowledged his vehicle and brought it back. P.W.1 lodged an F.I.R regarding this matter, marked vide Ext.1 and also identified his signature on it, marked vide Ext.1/1.\n P.W.2, Ranjan Kumar. Patel, the chance witness identified the accused and stated that he is a school teacher and on 22.03.2012 at about 4.00 PM he was returning from his school by his motor cycle. On the way near Khapurilata village he found one white color Bolero was standing on the road, two persons were inside the Bolero and the back seated person in the Bolero trying to press the neck of the other person seated in the driver seat by means of a towel. There were other two persons urinating by the side of the Bolero. By watching him the person seated on the driver seat shouted for help, for which P.W.2 stopped his motor cycle there. Thereby, one of the persons urinating outside the Bolero rushed towards him by saying \"App Yahan Se Jaiye, nehito hum apko mar denge\". Out of fear P.W.2 started his vehicle to go, but in the mean time he heard the voice of the person seated in the driver seat for help and found that person running towards him. He stopped his vehicle and gave him lift upto Kanakjore village. On being asked by P.W.2, that person said that those persons hired the vehicle from Sundargarh but on the way assaulted him and took away his vehicle. In presence of P.W.2, that person also contacted to the owner of the vehicle, intimating about the occurrence.\n P.W.3, Saroj Kumar Kaudi, the driver of the vehicle identified the accused and deposed that on 22.03.2012, at about 3.00 PM one person hired his vehicle to Gudiadihi, then they picked up another two persons near the Hospital, Sundargarh and carrying all total three persons P.W.3 proceeded towards Gudiadihi from Sundargarh. On the way near the village Khaparilata those persons asked him to stop the vehicle for urinal.\nWhen he stopped the vehicle two persons went outside the vehicle. The accused had seated at his back seat and asked him to drive his vehicle, when the same was objected by P.W.3, the accused started to assault him by means of fist blows. After that the other two persons who went outside, came near to him and tried to pull him out of the vehicle. P.W.3 further stated that at that very moment a school teacher came to that spot, but the accused persons also threatened him, so he left the spot. After some time P.W.3 by making himself free from those persons, came out from that place with the help of that school teacher in his vehicle.\nThereafter, he intimated the owner of the vehicle about the occurrence .P.W.3 further stated that on the very day, Chhatisgarh police called to the owner of the vehicle and informed about the arrest of the accused persons and seizure of the vehicle. After that they went to that P.S and recognized the accused persons. P.W.3 further deposed that he took the vehicle and the relevant documents by executing the zimanama, marked vide Ext.2 and identified his signature on it, marked vide Ext. 2/1.\n P.W.4, Naiman Soren, the seizure witness stated that, on 22.03.2012, he had been to Kotwa OP alongwith A.S.I, Kinjirkela. At Kotwa OP, A.S.I seized the seizure list regarding that vehicle and also seized one F.I.R copy in his presence at Kotwa PS. Ext. 3 is the said seizure list and he identified his signature on it, marked vide Ext. 3/1.\n P.W.5, Luis Valrian Kiro, the seizure witness deposed that on 29.11.2012 OIC, Bhagabat Naik seized the F.I.R No.3 of 2012 of Tumula P.S and the property seizure memo of the Bolero Vehicle in his presence. Ext.4 is the said seizure list and he identified his signature on it, marked vide Ext. 4/1.\n P.W.6, Parikhit Majhi, the seizure witness deposed that on 23.03.2012, OIC, Bhagabat Naik seized one F.I.R copy and one property seizure memo of the Bolero in his presence of Kotwa PS. He identified his signature on the seizure list(Ext.3), marked vide Ext.3/1. P.W.6 further deposed that on 25.03.2012, OIC, Bhagabat Naik seized the vehicle documents, Driving License, R.C book and Insurance papers of the Bolero in his presence. Ext.5 is the said seizure list and he identified his signature on it, marked vide Ext.5/1.\n P.W.7, Pankaj Kumar Mohanta, the seizure witness deposed that on 25.03.2012, the OIC Bhagabat Naik seized the RC book of the Bolero bearing Registration NO. OR 16C 3387, the DL of the driver and Insurance certificate of the vehicle in his presence. He identified his signature on the seizure list (Ext.5), marked vide Ext.5/1.\n P.W.8 , Nabin Chadnra Minz the seizure witness deposed that on 29.11.2012 the OIC Bhagabat Naik seized some documents and prepared the seizure list in his presence but due to passage of time he could not recollect the documents which were seized. He identified his signature on the seizure list (Ext.4) marked vide Ext.4/2.\n P.W.9, Bhagabat Naik, the IO of the case, deposed that on the day of occurrence he got information from Hari Sankar Singh, the ASI of Kutwa OP, about the recovery of the stolen Bolero bearing Registration No. OR-16C- 3387 and arrest of two accused persons namely Ramsing Sidkara and Deonath Sai Paikrai . On 23-03.2012, the I.O examined the ASI, Kotwa P.S and seized one FIR copy and xerox copy of the property seizure memo of the said vehicle and prepared the seizure list marked vide Ext.3 and identified his signature, vide Ext.3/3. On 25.03.2012 the IO seized RC book , Insurance policy of the vehicle, DL of Saroj Kumar Kaudi (the driver of the vehicle) on production and prepared the seizure list marked vide Ext.5 and identified his signature vide Ext.5/3. On 29.11.2012 he received information about the arrest of the accused Jogeswar Sai paikrai in another case under Tumula PS. The IO seized FIR copy of Tumula PS Case No. 03/2012, arrest memo, copy of property memo and prepared the seizure list (Ext.4) and identified his signature on it, marked vide Ext.4/3.\n 8. In the instant case at hand, the accused is implicated for the offense U/s. 394 of I.P.C. In order to attract the offence U/s.394, there must be robbery, either committed or attempted and for that purpose the accused must have voluntarily caused hurt. By taking into consideration the materials available on record and as per the allegations of prosecution the offense of Robbery has been committed in broad day light in the form of Extortion. The allegation of the prosecution is that on 22.03.2012, in between 4.00 PM to 4.30 PM, the accused along with his two other companion committed robbery of one Bolero by assaulting the driver of the complainant. So this allegation attracts the offense U/s.394 of I.P.C.\n 9. In a whole, coming to the discussion, P.W.1 the owner of the vehicle is the complainant of this case and lodged the F.I.R at Kinjirikela P.S at 4.45 Pm. P.W.1 stated that he got telephonic information from his driver about the occurrence and after that he went to the Kinjirikela PS and lodged FIR. P.W.3, the driver of the vehicle stated that he had been assaulted by the accused persons and after that they fled away by taking his Bolero, near village khaparilata. He took the help of a school teacher from the spot and after that he gave telephonic information to the owner of the vehicle in presence of that person. P.W.2, the school teacher deposed that when he was returning from his school at about 4.00 PM, he found the driver (P.W.3) was assaulted by the accused persons. P.W.2 gave lift to the driver of the Bolero from that spot and left him at Kanakajore village. P.W.3 further deposed that the driver informed the owner telephonically in his presence about the occurrence. P.W.9, the I.O stated that on the day of occurrence during investigation, he got telephonic information from the A.S.I, Kotwa OP, that the said vehicle has been seized, two of the accused persons namely Ramsingh Sidkar and Deonath Sai Paikara were arrested and other accused namely Jogeswar Sai Paikara has been absconded. On the next day I.e on 23.03.2012 the I.O seized the said vehicle from the A.S.I, Kotwa OP in presence of P.W.4 and P.W.6, the seizure witnesses. P.W.4 and P.W.6 also proved the said seizure by saying that the seizure has been made in their presence by the I.O. The I.O left the vehicle in zima of the driver (P.W.2) by verifying the relevant documents and by execution of zimanama, marked vide. Ext. 2. From the above discussion now it can be safely conclude that the Bolero has been robbed near village Khaparilata, from the possession of it's driver and recovered at Kotwa P.S from the possession of the accused persons.\n 10. From the allegations and evidences deposed by the prosecution witnesses, it comes to light that the driver of the Bolero has been assaulted by the accused persons in a lonely place on the road near village khaparilata, which has not been seen by any one except a chance witness, who is a school teacher and was returning from his school by that way and time. Here the offense of Robbery has been committed in the form of extortion, which ultimately implies, the possessor of the property has the knowledge of the incident and he left the property in fear of injury. So, it can be safely presume that the driver and the school teacher are the sole eye witnesses in this case to bring the accused into the clutches of law. Now the question is whether this is the said accused who has committed the offense of robbery in the form of Extortion with the help of other two co-accused.\n 11. During the course of argument, the Ld defense counsel raised his contentions regarding the time of occurrence and filing of F.I.R at Kinjirikela P.S by the informant, who was at Sundargarh at the time of occurrence. Kinjirikela P.S is about 30 Kms distance from Sundargarh, which is highly improbable.\n The Ld. Defense counsel put forth another contention regarding conduct of T.I Parade and to strengthen his contention, the Ld. Defense counsel placed reliance on the decision laid down in AIR 1998 SUPREME COURT 1922(Shaikh Umar Ahmed Shaikh and another Vrs.\nState of Maharastra) and AIR 1982 SUPREME COURT 839( Mohanlal Gangaram Gehani Vrs. State of Maharastra).\n In the case of Shaikh Umar Ahmed Shaikh, there was an attack by a mob, causing death of a constable and there was requirement of T.I parade of 5 to 6 persons out of a mob. So far as the case of Mohanlal Gangaram Gehani is concerned, there was presence of dying declaration and the recorder of the dying declaration made contradictory statement and T.I parade has not been conducted. So far as both the cases are concerned, the facts and circumstances of both the cases are different in relation to the present case at hand. Dealing with the other contention, the court is of the view that, when occurrence has been sufficiently proved, the time regarding the commission of offense and filing of FIR in the present facts and circumstance is immaterial.\n 12. Now coming to the point for discussion about the involvement of the accused in the present case. In this case prosecution has not examined the A.S.I of Kotwa P.S, who has seized the vehicle from the possession of the Co-accused. Test Identification parade has not been conducted by the I.O. In absence of such evidences, available evidences may be taken into consideration for conclusion. P.W.9, the I.O stated that he got information from the A.S.I, Kotwa PS, that two accused persons Ramsingh Sidkar and Deonath Sai Paikara were arrested from the involved vehicle and one accused namely Jogeswar Sai Paikara has absconded. On 29.11.2012 the I.O got information about the arrest of Jogeswar Sai Paikara in Tumla P.S case no. 3/12 and taken him on remand on 18.12.2012. P.W.3, the driver of the vehicle clearly identified the accused and stated that the accused had been seated in his back seat.\n At the place of occurrence, accused asked him to drive, when he objected the accused assaulted him by means of fist blows. P.W.2, the chance witness, during his examination identified the accused three times. In Para -1 , he stated that \"I do not know the name of the accused standing in the dock, but it seems as if I know him\". In para-9 of his cross- examination, he stated that, \"the accused standing in the dock was present on the spot on the day of occurrence, but I can not say what he was doing there\". In Para-16 of his cross-examination, he stated that \"this accused standing in the dock had threatened me in hindi language\".\n The presence of accused on the spot of occurrence is affirmed by both P.W.2 and P.W.3. However, the statement of P.W.2 and P.W.3 are contradictory about the overt act done by the accused at the place of occurrence. Both P.W.2 and P.W.3 deposed in a consistent manner corroborating their previous statements and nothing could have brought from their mouth during their cross examination , which put questions on their credibility. P.W.3 is the victim of the case, he spent a long time with the accused persons in comparison to P.W.2. P.W.2 is a chance witness, who has seen two persons inside the vehicle and two persons out side. P.W.2 left the spot immediately after threatening by one of the accused person. The fact cannot be ignored that in ordinary course, a person tends to remember things more particularly which he himself had undergone in comparison to others. The occurrence took place on 22.03.2012 and P.W.2 has examined on 16.07.2013. Human memory is subject to deterioration with passage of time. The presence of accused on the spot of occurrence is not disputed by both of the eye witnesses. So it can be safely conclude with the involvement of the accused in the alleged crime/offense. This is an offense, which comes under the purview of Joint liability. As per the principle of joint liability, where one or more persons having similar intention to commit any crime, commits any such crime, then each of such persons is liable for that offense jointly and severally, as if it was done by him alone. Mere presence of an accused, at the scene of the occurrence, having the intention to commit such crime/offense is sufficient to draw inference against him. Overt act is not necessary. By taking into consideration of the evidences, adduced by PW.2 and P.W.3, the eye witnesses, the involvement of the accused in the present case is sufficiently proved. Thus this court is of the view that the prosecution has successfully established the guilt of accused U/s 394 of IPC beyond all reasonable doubt.\n 14. On the basis of the above analysis this court is of the conclusion that the prosecution has successfully established the case against the accused U/s. 394 IPC beyond all reasonable doubt . The accused is found guilty for offense U/s. 394 IPC and convicted thereof u/s 248(2) Cr.P.C.\n Pronounced this judgment in the open court in the presence of accused today this 24th day of February, 2016 under my signature and seal of the court.\n J.M.F.C, Sundargarh Committing robbery in the form of extortion is a grievous offence in nature. Hence having regard to the facts and allegations of the case, this court is of the view that, if such type of convicts are released under the beneficial provisions of Probation of offenders Act, it would send a wrong message to the society. Hence, this court is not inclined to extend any of the beneficial provisions under Probation of offenders Act to the convicts.\n J.M.F.C., Sundargarh HEARING ON THE QUESTION OF SENTENCE Heard the convict as well as Learned counsel for the convict and Learned APP for the state. The convict and the Learned Defence counsel submitted that being a first time offender, lenient view should be taken while imposing sentence. On the other hand, the counsel for the state submitted that the convict has committed grievous offense, hence prayed for exemplary punishment. Taking into consideration of the circumstances and manner of the commission of the offense, the convict namely Jogeswar Sai Paikara sentenced to undergo Rigorous Imprisonment for three years and to pay fine of Rs.10,000/- (Ten thousand) and in default, he shall further undergo Simple Imprisonment for (06) six months.\n The period of detention undergone, if any, by the convict as U.T.P.\nbe set-off U/s-428 of Cr.P.C against the sentence of imprisonment.\n Pronounced this sentence in the open court in the presence of accused today this 24th day of February, 2016 under my signature and seal of the court.\n J.M.F.C., Sundargarh Typed to my dictation and corrected by me JM.F.C.,Sundargarh Supply free copy of this judgment to the convict.\n JMFC, Sundargarh.\nTyped and corrected by me JMFC, Sundargarh.\nLIST OF PROSECUTION WITNESSES.\n P.W.1. Sukumar Panda P.W.2 Ranjan Kumar Patel P.W.3 Saroj Kumar Kaudi P.W.4 Naiman Surin P.W.5 Luis Valerian Kiro P.W.6 Parikhita Majhi P.W.7 Pankaj Kumar Mahanto P.W.8 Nabin Chandra Minz P.W.9 Bhagabat Naik LIST OF DEFENCE WITNESSES NIL LIST OF EXHIBITS MARKED ON BEHALF OF PROSECUTION Ext.1 FIR Ext.1/1 Signature of P.W.1 Ext.1/2 Signature of P.W.9 Ext.1/3 Formal FIR Ext.1/4 Signature of P.W.9 on Ext.1/3 Ext.2 Zimanama Ext.2/1 Signature of P.W.3 on Ext.2 Ext.2/2 Signature of P.W.9 on Ext.2 Ext.3 Seizure list Ext.3/1 Signature of P.W.4 on Ext.3 Ext.3/2 Signature of P.W.6 on Ext.3.\n Ext.3/3 Signature of P.W.4 on Ext.3 Ext.4 Seizure list Ext.4/1 Signature of P.W.5 Ext.4/2 Signature of P.W.8 on Ext.4 Ext.5 Seizure list Ext.5/1 Signature of P.W.6 Ext.5/2 Signature of P.W.7 on Ext.5 Ext.5/3 Signature of P.W.9 on Ext.5 Ext.6 Spot Map Ext.6/1 Signature of P.W.9 on Ext.6 LIST OF EXHIBITS MARKED ON BEHALF OF DEFENCE NIL J.M.F.C.,Sundargarh.\n "
} |
{
"group": "Criminal"
} | [
{
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{
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"text": "IN THE COURT OF THE CIVIL JUDGE (SR. DIVISION)CUM\n JUDICIAL MAGISTRATE"
}
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"start": 134,
"text": "FIRST CLASS: BONAI, DISTRICT:"
}
},
{
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"text": "SUNDARGARH.\n\nP r e s e n t :\n "
}
},
{
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"id": "6a7d0f045cff4ba392e35525ea6e62dc",
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"end": 389,
"labels": [
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],
"start": 261,
"text": "Shri. D.Patnaik, M.Sc,LL.B.\n Civil Judge (Sr. Division)cum\n J.M.F.C., Bonai."
}
},
{
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"id": "173add22ed7943099fa2c79d256547df",
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"value": {
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"labels": [
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"start": 389,
"text": "\n\n G.R. Case No.559 of 2008\n Trial No. 64 of 2015"
}
},
{
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"id": "9c6580baa3304918bb5b101f003a1194",
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"value": {
"end": 519,
"labels": [
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"start": 452,
"text": "State ... Prosecution\n\n Versus \n\n"
}
},
{
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"id": "66cac6e1f0a14d8eaa75489407b33385",
"to_name": null,
"type": null,
"value": {
"end": 633,
"labels": [
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],
"start": 519,
"text": "1. Nidhi Tiriwa,aged about 43 years,Son of Loksoma Munda @\nTirria of village:Balijodi, P.S Koira, Dist Sundargarh."
}
},
{
"from_name": null,
"id": "f3f7f3185e364ebfa7c28e867fdf2963",
"to_name": null,
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"value": {
"end": 744,
"labels": [
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],
"start": 635,
"text": "2. Guru Hembrum @ Khuntia, Son of Bene Hembrum @ Khuntia,\nof village Balijodi, P.S Koira, DistSundargarh.\n\n3."
}
},
{
"from_name": null,
"id": "e679ddce8071486e9e9d901f81461567",
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"value": {
"end": 884,
"labels": [
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],
"start": 745,
"text": "Suren Munda, aged about 20 years, Son of Hangra Munda of\nvillage Balijodi, P.S Koira, Dist Sundargarh.\n\n ..."
}
},
{
"from_name": null,
"id": "fece73e8dab5460abf3d97e4bf09d627",
"to_name": null,
"type": null,
"value": {
"end": 1047,
"labels": [
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],
"start": 886,
"text": "Accused persons\n\nFor the prosecution ... Sri T.K. Sahoo,\nFor the accused persons. A.P.P.,Bonai\n\n ..."
}
},
{
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"id": "d2db9eb132764b4c800e7a8dcb47bcf4",
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"value": {
"end": 1123,
"labels": [
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],
"start": 1048,
"text": "Sri. D.Mahanta\n Associates, Bonai."
}
},
{
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"id": "38310a73bb014a2180490b9a99b0f5ec",
"to_name": null,
"type": null,
"value": {
"end": 1384,
"labels": [
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],
"start": 1125,
"text": "Date of conclusion of argument : 28.08.2018\n\nDate of delivery of judgment : 03.09.2018\n\nOFFENCE U/Ss 341/294/323/506/ OF THE INDIAN PENAL\n CODE.\n\n J U D G M E N T\n "
}
},
{
"from_name": null,
"id": "341490b7c4cd41169e6550fd287b3499",
"to_name": null,
"type": null,
"value": {
"end": 1544,
"labels": [
"FAC"
],
"start": 1384,
"text": "The accused persons named above stand prosecuted for alleged commission of offence u/s.341/294/323/506 of the Indian Penal Code (hereinafter in short as \"IPC\")."
}
},
{
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"id": "9f48220a0fd5470b87ca1ecd1e3687a0",
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"value": {
"end": 1552,
"labels": [
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],
"start": 1546,
"text": "______"
}
},
{
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"id": "2e428080a50449a6bf39e129d22bb7be",
"to_name": null,
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"value": {
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"labels": [
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],
"start": 1552,
"text": "__ ___"
}
},
{
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"id": "e52289c4c1104fbfb64dd8d318b2f1b9",
"to_name": null,
"type": null,
"value": {
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"labels": [
"NONE"
],
"start": 1558,
"text": "______"
}
},
{
"from_name": null,
"id": "4d5f6539eebf43058a0ad9d4e17181c1",
"to_name": null,
"type": null,
"value": {
"end": 1570,
"labels": [
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],
"start": 1564,
"text": "______"
}
},
{
"from_name": null,
"id": "69d5706e77404dc99e366bd2195308a9",
"to_name": null,
"type": null,
"value": {
"end": 1605,
"labels": [
"NONE"
],
"start": 1570,
"text": "___________________________________"
}
},
{
"from_name": null,
"id": "a8885cd843b246bb8f344ca630ef4229",
"to_name": null,
"type": null,
"value": {
"end": 1760,
"labels": [
"FAC"
],
"start": 1605,
"text": " 2. The story of the prosecution is that: The complainant Sri Sidhakanhu Murmu was working in Bright Security Agency prior to one year of lodging this FIR."
}
},
{
"from_name": null,
"id": "fc965d395f484624a9245506b3fd431a",
"to_name": null,
"type": null,
"value": {
"end": 1826,
"labels": [
"FAC"
],
"start": 1761,
"text": "On 01.10.2018 he was working in S.N Mohanty Nuagaon Crusher Unit."
}
},
{
"from_name": null,
"id": "c1793e7236584f50a937541131b08001",
"to_name": null,
"type": null,
"value": {
"end": 2069,
"labels": [
"FAC"
],
"start": 1827,
"text": "On that day at about 2 P.M driver of one dumper bearing No.OR14L 9267 of Maa Santoshi Transport brought iron ore from the crusher unit and parked the vehicle in front of the gate in such a way that no other vehicle could come inside the gate."
}
},
{
"from_name": null,
"id": "b9a0339e817a428b9915ea18f7f64fb7",
"to_name": null,
"type": null,
"value": {
"end": 2308,
"labels": [
"FAC"
],
"start": 2070,
"text": "When the complainant asked the driver of the dumper Nidhi Tiria (accused) to remove the vehicle and parked it in a proper way providing space to other vehicles he abused the complaint in obscene language and gave a push pressing his neck."
}
},
{
"from_name": null,
"id": "0eefb4c44773483a8f0da9e723a24a97",
"to_name": null,
"type": null,
"value": {
"end": 2449,
"labels": [
"FAC"
],
"start": 2309,
"text": "After that Nidhi Tiria took his dumper outside and while leaving he threatened the complaint to kill him with the assistance of his friends."
}
},
{
"from_name": null,
"id": "e770e4fd3e7943e7a278f0c9a84412f8",
"to_name": null,
"type": null,
"value": {
"end": 2668,
"labels": [
"FAC"
],
"start": 2450,
"text": "On 4.10.2008 while the complainant was on duty in the crusher plant at about 2.30 P.M Nidhi Tiriwa, Guru Hembrum @ Khuntia,Suren Munda (accused persons) came there holding a lathi and abused him saying `Sala, Maagiha'."
}
},
{
"from_name": null,
"id": "204fdec93e924303b36b7eee12c70c22",
"to_name": null,
"type": null,
"value": {
"end": 2743,
"labels": [
"FAC"
],
"start": 2669,
"text": "Abusing so they assaulted the complainant and tore away his uniform shirt."
}
},
{
"from_name": null,
"id": "572f75a52c0e4027a2932f4d5a61966a",
"to_name": null,
"type": null,
"value": {
"end": 2809,
"labels": [
"FAC"
],
"start": 2744,
"text": "The complainant sustained injury on his left hand and left elbow."
}
},
{
"from_name": null,
"id": "ede45883c3e24d05babbd65570748f41",
"to_name": null,
"type": null,
"value": {
"end": 3077,
"labels": [
"FAC"
],
"start": 2809,
"text": "\n On the basis of such FIR Koida P.S. Case No.93 dtd. 5.8.2008 was registered and was investigated into by Sri Kartik Rout, ASI of Koira P.S. After completion of investigation charge sheet has been submitted against the accused persons under the aforesaid offences.\n3."
}
},
{
"from_name": null,
"id": "3cc514354f774301a117611a27f8b198",
"to_name": null,
"type": null,
"value": {
"end": 3141,
"labels": [
"FAC"
],
"start": 3078,
"text": "The plea of the defence is one of complete denial of this case."
}
},
{
"from_name": null,
"id": "f63f386c31f94959989eaaa4950087d9",
"to_name": null,
"type": null,
"value": {
"end": 3740,
"labels": [
"ISSUE"
],
"start": 3143,
"text": "4. The points for determination in this case are that: a) Whether on 04.10.2008 at about 2.30 P.M. at S.N. Mohanty Crusher Unit in village Nuagaon the accused persons in furtherance of their common intention wrongfully restrained the ________ __________________________________________________ informant while he was proceeding in any certain direction in which he had right to proceed ?\n b) Whether on the same date,time and place the accused persons in furtherance of their common intention abused the informant in obscene languages in or near a public place causing annoyance to him and others."
}
},
{
"from_name": null,
"id": "7cbb51e78f97414f9c44944fb0153448",
"to_name": null,
"type": null,
"value": {
"end": 3911,
"labels": [
"ISSUE"
],
"start": 3740,
"text": "\n c)Whether on the same date,time and place the accused persons in furtherance of their common intention has voluntarily caused hurt by means of lathi to the informant."
}
},
{
"from_name": null,
"id": "35412b714293415cbee7cfd971774eb8",
"to_name": null,
"type": null,
"value": {
"end": 4120,
"labels": [
"ISSUE"
],
"start": 3911,
"text": "\n d) Whether the accused persons in furtherance of their common intention committed criminal intimidation by threatening the informant to kill 5. him which caused alarm to him and his mind."
}
},
{
"from_name": null,
"id": "ffcf19b46fac469c945da1b856129025",
"to_name": null,
"type": null,
"value": {
"end": 4296,
"labels": [
"FAC"
],
"start": 4120,
"text": "\n In order to prove its case, Prosecution has examined as many as four witnesses out of which P.W.3 is the complainant of this case and rest are witnesses to the occurrence."
}
},
{
"from_name": null,
"id": "ceb369a34be94316930927f787bad79f",
"to_name": null,
"type": null,
"value": {
"end": 4401,
"labels": [
"FAC"
],
"start": 4297,
"text": "On the other hand, no evidence was adduced by the defence on behalf of the accused to disprove the case."
}
},
{
"from_name": null,
"id": "7b44e6dea5934c159b03c829b9e537d7",
"to_name": null,
"type": null,
"value": {
"end": 4445,
"labels": [
"ANALYSIS"
],
"start": 4401,
"text": "\n 6. P.W.3 is the complainant of this case."
}
},
{
"from_name": null,
"id": "fe27bc7f4d4a4b779a51565bc2043398",
"to_name": null,
"type": null,
"value": {
"end": 4528,
"labels": [
"ANALYSIS"
],
"start": 4446,
"text": "He deposed in his evidence that he knew the accused persons involved in this case."
}
},
{
"from_name": null,
"id": "42662b8ac05f4b879b7df46f877330f8",
"to_name": null,
"type": null,
"value": {
"end": 4632,
"labels": [
"ANALYSIS"
],
"start": 4529,
"text": "In his deposition he said that this matter being an old one he did not remember the occurrence exactly."
}
},
{
"from_name": null,
"id": "917b1b485b8e46aea042fc2c97fcaa9d",
"to_name": null,
"type": null,
"value": {
"end": 4768,
"labels": [
"ANALYSIS"
],
"start": 4633,
"text": "However, about 10 years back due to dispute with the accused persons he lost his cool and lodged this FIR which is marked as Ext1/1.\n 7"
}
},
{
"from_name": null,
"id": "dde112a846724c3fa23722428b01ac51",
"to_name": null,
"type": null,
"value": {
"end": 5024,
"labels": [
"ANALYSIS"
],
"start": 4768,
"text": ". P.W.1 in his evidence stated that on 5.10.2008 he was working ASI of Koida P.S. On that day on receiving written report of the complainant Sidhakanhu Murmu, IIC registered the Koira P.S. Case No.93 and directed him to take up investigation of this case."
}
},
{
"from_name": null,
"id": "e48f6a2597474991aa1e297b78d7d76a",
"to_name": null,
"type": null,
"value": {
"end": 5127,
"labels": [
"ANALYSIS"
],
"start": 5025,
"text": "P.W.1 stated in his evidence that during investigation he visited the spot and examined the witnesses."
}
},
{
"from_name": null,
"id": "f5d705d73b584fe6bada7c3e1dca42ce",
"to_name": null,
"type": null,
"value": {
"end": 5228,
"labels": [
"ANALYSIS"
],
"start": 5128,
"text": "He also seized wearing clothes of the complainant,prepared the seizure list which is marked as Ext2."
}
},
{
"from_name": null,
"id": "ad832e1590a04fbbb43cc1673400660e",
"to_name": null,
"type": null,
"value": {
"end": 5407,
"labels": [
"ANALYSIS"
],
"start": 5229,
"text": "He ________ __________________________________________________ also sated that he issued injury requisition in favour of injured complainant and sent it to medical on 29.10.2008."
}
},
{
"from_name": null,
"id": "2e6f2a858511465991332abff747d4bc",
"to_name": null,
"type": null,
"value": {
"end": 5506,
"labels": [
"ANALYSIS"
],
"start": 5408,
"text": "He stated that he handed over the charge of investigation to the IIC of Koida P.S on his transfer."
}
},
{
"from_name": null,
"id": "07d5fbf320f84ee7b52ed6a85e863951",
"to_name": null,
"type": null,
"value": {
"end": 5688,
"labels": [
"ANALYSIS"
],
"start": 5506,
"text": "\n 8. P.W.2 in his evidence stated that on 15.12.2009, while he was working as ASI of police at Koida P.S. he took charge of investigation of this case from IIC Pradeep Kumar Sahu."
}
},
{
"from_name": null,
"id": "d705ae6be5cb4819b8f9cf07aca26fd1",
"to_name": null,
"type": null,
"value": {
"end": 5842,
"labels": [
"ANALYSIS"
],
"start": 5689,
"text": "On 26.12.2009 after completion of investigation he submitted charge sheet against Nidhi Tiria,Guru Hembrum and Suren Munda u/s.341/323/294/506/34 of IPC."
}
},
{
"from_name": null,
"id": "3e2ad3d290dd4f4f8fe36e2fdba2c16c",
"to_name": null,
"type": null,
"value": {
"end": 6033,
"labels": [
"ANALYSIS"
],
"start": 5844,
"text": "9. P.W.4 who is the Operational Manager in Security Office stated in his evidence that though he knew the complainant of this case he did not know the accused persons involved in this case."
}
},
{
"from_name": null,
"id": "763e1abbcf064954b10d5a25a6a7bd00",
"to_name": null,
"type": null,
"value": {
"end": 6177,
"labels": [
"ANALYSIS"
],
"start": 6034,
"text": "He stated in his evidence that about 10 years back from the date of his deposition he had scribed the FIR as per narration of Sidhakanhu Murmu."
}
},
{
"from_name": null,
"id": "40379ae6252641dd9520f5d59afdab29",
"to_name": null,
"type": null,
"value": {
"end": 6223,
"labels": [
"ANALYSIS"
],
"start": 6178,
"text": "He marked his signature in the FIR as Ext1/3."
}
},
{
"from_name": null,
"id": "8cd1754a1d374e038d4d786f19e33c83",
"to_name": null,
"type": null,
"value": {
"end": 6315,
"labels": [
"ANALYSIS"
],
"start": 6224,
"text": "He further stated that the uniform of the informant was seized in the Koida police station."
}
},
{
"from_name": null,
"id": "5700ed558d044aeabda6bdc39bdf1f11",
"to_name": null,
"type": null,
"value": {
"end": 6387,
"labels": [
"ANALYSIS"
],
"start": 6317,
"text": "10. The complainant in this case did not support the prosecution case."
}
},
{
"from_name": null,
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"to_name": null,
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"end": 6546,
"labels": [
"ANALYSIS"
],
"start": 6388,
"text": "In his cross examination complainant stated that the matter was amicably settled in presence of village gentries and he did not want to proceed in the matter."
}
},
{
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"id": "eb0b798a58894aa6b822154d34231204",
"to_name": null,
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"labels": [
"ANALYSIS"
],
"start": 6547,
"text": "In his cross examination he also stated that he did not know the contents of the FIR neither was he examined by police in connection with this case."
}
},
{
"from_name": null,
"id": "be5da94468b74c69aad0c2dd11caa971",
"to_name": null,
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"value": {
"end": 6782,
"labels": [
"ANALYSIS"
],
"start": 6696,
"text": "P.W.4 who is the scribe of the FIR also did not speak anything against the occurrence."
}
},
{
"from_name": null,
"id": "8a6399a8245f440e96014b3f6f5359c5",
"to_name": null,
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"value": {
"end": 6943,
"labels": [
"ANALYSIS"
],
"start": 6783,
"text": "His cross examination also reveals that the matter was amicably settled in presence of village gentries and he had no direct knowledge regarding the occurrence."
}
},
{
"from_name": null,
"id": "20e72cc3211d4adaa34da24b43ae4526",
"to_name": null,
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"value": {
"end": 6995,
"labels": [
"NONE"
],
"start": 6945,
"text": "________ _________________________________________"
}
},
{
"from_name": null,
"id": "7eac5757419046ed859f72664701b067",
"to_name": null,
"type": null,
"value": {
"end": 7001,
"labels": [
"NONE"
],
"start": 6995,
"text": "______"
}
},
{
"from_name": null,
"id": "c16b48bff5be4a7a88ae6ab18a94ebce",
"to_name": null,
"type": null,
"value": {
"end": 7122,
"labels": [
"ANALYSIS"
],
"start": 7001,
"text": "___ 11. It is the mandate of law that the facts admitted need not be proved as per Section 58 of the Indian Evidence Act."
}
},
{
"from_name": null,
"id": "a3829e4af05f4e31bce4cb9001a7a75d",
"to_name": null,
"type": null,
"value": {
"end": 7248,
"labels": [
"ANALYSIS"
],
"start": 7123,
"text": "In the instant case the complainant who is the victim of this case is denying any such assault on him by the accused persons."
}
},
{
"from_name": null,
"id": "ffb15a1a845e4eb18e9db9e3a78a0dda",
"to_name": null,
"type": null,
"value": {
"end": 7417,
"labels": [
"ANALYSIS"
],
"start": 7249,
"text": "When the complainant himself is silent regarding the commission of any offence by the accused persons no further discussion is needed to establish the prosecution case."
}
},
{
"from_name": null,
"id": "79296db8a4b74bf6907aeb8f4d578711",
"to_name": null,
"type": null,
"value": {
"end": 7618,
"labels": [
"ANALYSIS"
],
"start": 7417,
"text": "\n12. On the contrary the I.O in his evidence stated that on 5.10.2008 he was directed to investigate this case and on 29.10.2008 he issued injury requisition for medical examination of the complainant."
}
},
{
"from_name": null,
"id": "0e2f68d8e5514577b9b0b941d6ecafb8",
"to_name": null,
"type": null,
"value": {
"end": 7651,
"labels": [
"ANALYSIS"
],
"start": 7619,
"text": "This is also quite unbelievable."
}
},
{
"from_name": null,
"id": "24a3b7fa4b384195adbbbc96e5e45dd7",
"to_name": null,
"type": null,
"value": {
"end": 7716,
"labels": [
"ANALYSIS"
],
"start": 7652,
"text": "No other prosecution witness is supporting the prosecution case."
}
},
{
"from_name": null,
"id": "86903f1826024ee5bd6296d9b10efb9d",
"to_name": null,
"type": null,
"value": {
"end": 7891,
"labels": [
"RATIO"
],
"start": 7717,
"text": "13. In the end, I am of the considered view that prosecution has failed miserably to prove the offences alleged against the accused persons with beyond all reasonable doubts."
}
},
{
"from_name": null,
"id": "8d4ace934cb248fc92930650291f5ce1",
"to_name": null,
"type": null,
"value": {
"end": 8152,
"labels": [
"RPC"
],
"start": 7892,
"text": "14. Considering the above analysis and further considering the above facts and circumstances,it is held that the prosecution has failed to prove the offences u/s. 341/294/323/506/34 of Indian Penal Code against the accused persons beyond all reasonable doubts."
}
},
{
"from_name": null,
"id": "9b8e6b23cf4b451b96fcd24955dd613c",
"to_name": null,
"type": null,
"value": {
"end": 8247,
"labels": [
"RPC"
],
"start": 8152,
"text": "\n In such premises, I hold the accused persons not guilty and acquit them U/s 248(1) of Cr.P.C."
}
},
{
"from_name": null,
"id": "2ba9eb01dcf74f5481478c5899d0b2e0",
"to_name": null,
"type": null,
"value": {
"end": 8369,
"labels": [
"RPC"
],
"start": 8248,
"text": "The accused persons be set at liberty forthwith if not required in any other case and their bail bonds stand cancelled.\n "
}
},
{
"from_name": null,
"id": "0bdf0d7a9ba340688af5b4f7291682ab",
"to_name": null,
"type": null,
"value": {
"end": 8435,
"labels": [
"RPC"
],
"start": 8369,
"text": "Enter this case as a mistake of facts for the statistical purpose."
}
},
{
"from_name": null,
"id": "3b27f334c29b469a85c4fc5901e3d281",
"to_name": null,
"type": null,
"value": {
"end": 8623,
"labels": [
"RPC"
],
"start": 8435,
"text": "\n The seized articles if any be destroyed four months after the expiry of the appeal period and in case of appeal the same be disposed as per the order of the Hon'ble Appellate Court."
}
},
{
"from_name": null,
"id": "4bdb26f30eca44eb9252a2720971cd43",
"to_name": null,
"type": null,
"value": {
"end": 8691,
"labels": [
"RPC"
],
"start": 8625,
"text": "Enter this case as a mistake of facts for the statistical purpose."
}
},
{
"from_name": null,
"id": "781c7264f61e41bf9402a4b1ad790818",
"to_name": null,
"type": null,
"value": {
"end": 8749,
"labels": [
"NONE"
],
"start": 8695,
"text": "________ _____________________________________________"
}
},
{
"from_name": null,
"id": "f3c8dd13f35148468ce2220a56999e08",
"to_name": null,
"type": null,
"value": {
"end": 8888,
"labels": [
"NONE"
],
"start": 8749,
"text": "_____ Pronounced the judgment in the open court and given under my signature and seal of this court on this the 3rd day of September, 2018."
}
},
{
"from_name": null,
"id": "239d544d392e488b9bb2b72552824af6",
"to_name": null,
"type": null,
"value": {
"end": 8932,
"labels": [
"NONE"
],
"start": 8890,
"text": "Typed to my dictation and corrected by me."
}
},
{
"from_name": null,
"id": "fd2cac93eef440ecb7fb292674cedc02",
"to_name": null,
"type": null,
"value": {
"end": 8978,
"labels": [
"NONE"
],
"start": 8934,
"text": "Sd/- Asst.Sessions Judge,cumJ.M.F.C., Bonai."
}
},
{
"from_name": null,
"id": "9ea90fdb2b8749429b7813ea8dbe4c92",
"to_name": null,
"type": null,
"value": {
"end": 9034,
"labels": [
"NONE"
],
"start": 8978,
"text": "\n 03.09.2018 Sd/ Asst.Sessions Judge,cumJ.M.F.C., Bonai."
}
},
{
"from_name": null,
"id": "6403ad3d607342f088aaefec3c11d120",
"to_name": null,
"type": null,
"value": {
"end": 9230,
"labels": [
"NONE"
],
"start": 9036,
"text": "List of Prosecution witnesses: 03.09.2018 P.W.1 Samara Oram P.W.2 Kartika Rout P.W.3 Sidhakanhu Murmu P.W.4 Prasanta Kumar Samanta List of Defence Witnesses: Nil."
}
},
{
"from_name": null,
"id": "c5f0af40985d4151a16793d4b2415a9a",
"to_name": null,
"type": null,
"value": {
"end": 9677,
"labels": [
"NONE"
],
"start": 9231,
"text": "List of Exts. marked for Prosecution: Ext.1 Endorsement of IIC in F.I.R.\nExt.2 Seizure list Ext2/1 Signature of P.W.1 Ext1/1 FIR Ext1/2 Signature of P.W.3 on Ext1/1 Ext1/3 Signature of P.W.4 on Ext1/1 Ext2/2 Signature of P.W.4 on Ext2 List of Exts. marked for Defence: Nil.\n Sd/ Asst.Sessions Judge,cumJ.M.F.C., Bonai.\n 03.09.2018 ________ __________________________________________________"
}
}
]
}
] | 4,227 | {
"text": " .\n IN THE COURT OF THE CIVIL JUDGE (SR. DIVISION)CUM\n JUDICIAL MAGISTRATE FIRST CLASS: BONAI, DISTRICT:\n\n SUNDARGARH.\n\nP r e s e n t :\n Shri. D.Patnaik, M.Sc,LL.B.\n Civil Judge (Sr. Division)cum\n J.M.F.C., Bonai.\n\n G.R. Case No.559 of 2008\n Trial No. 64 of 2015\n\nState ... Prosecution\n\n Versus \n\n1. Nidhi Tiriwa,aged about 43 years,Son of Loksoma Munda @\nTirria of village:Balijodi, P.S Koira, Dist Sundargarh.\n\n2. Guru Hembrum @ Khuntia, Son of Bene Hembrum @ Khuntia,\nof village Balijodi, P.S Koira, DistSundargarh.\n\n3. Suren Munda, aged about 20 years, Son of Hangra Munda of\nvillage Balijodi, P.S Koira, Dist Sundargarh.\n\n ... Accused persons\n\nFor the prosecution ... Sri T.K. Sahoo,\nFor the accused persons. A.P.P.,Bonai\n\n ... Sri. D.Mahanta\n Associates, Bonai.\n\nDate of conclusion of argument : 28.08.2018\n\nDate of delivery of judgment : 03.09.2018\n\nOFFENCE U/Ss 341/294/323/506/ OF THE INDIAN PENAL\n CODE.\n\n J U D G M E N T\n The accused persons named above stand prosecuted for alleged commission of offence u/s.341/294/323/506 of the Indian Penal Code (hereinafter in short as \"IPC\").\n ________ __________________________________________________ 2. The story of the prosecution is that: The complainant Sri Sidhakanhu Murmu was working in Bright Security Agency prior to one year of lodging this FIR. On 01.10.2018 he was working in S.N Mohanty Nuagaon Crusher Unit.\nOn that day at about 2 P.M driver of one dumper bearing No.OR14L 9267 of Maa Santoshi Transport brought iron ore from the crusher unit and parked the vehicle in front of the gate in such a way that no other vehicle could come inside the gate. When the complainant asked the driver of the dumper Nidhi Tiria (accused) to remove the vehicle and parked it in a proper way providing space to other vehicles he abused the complaint in obscene language and gave a push pressing his neck. After that Nidhi Tiria took his dumper outside and while leaving he threatened the complaint to kill him with the assistance of his friends. On 4.10.2008 while the complainant was on duty in the crusher plant at about 2.30 P.M Nidhi Tiriwa, Guru Hembrum @ Khuntia,Suren Munda (accused persons) came there holding a lathi and abused him saying `Sala, Maagiha'. Abusing so they assaulted the complainant and tore away his uniform shirt. The complainant sustained injury on his left hand and left elbow.\n On the basis of such FIR Koida P.S. Case No.93 dtd. 5.8.2008 was registered and was investigated into by Sri Kartik Rout, ASI of Koira P.S. After completion of investigation charge sheet has been submitted against the accused persons under the aforesaid offences.\n3. The plea of the defence is one of complete denial of this case.\n 4. The points for determination in this case are that: a) Whether on 04.10.2008 at about 2.30 P.M. at S.N. Mohanty Crusher Unit in village Nuagaon the accused persons in furtherance of their common intention wrongfully restrained the ________ __________________________________________________ informant while he was proceeding in any certain direction in which he had right to proceed ?\n b) Whether on the same date,time and place the accused persons in furtherance of their common intention abused the informant in obscene languages in or near a public place causing annoyance to him and others.\n c)Whether on the same date,time and place the accused persons in furtherance of their common intention has voluntarily caused hurt by means of lathi to the informant.\n d) Whether the accused persons in furtherance of their common intention committed criminal intimidation by threatening the informant to kill 5. him which caused alarm to him and his mind.\n In order to prove its case, Prosecution has examined as many as four witnesses out of which P.W.3 is the complainant of this case and rest are witnesses to the occurrence. On the other hand, no evidence was adduced by the defence on behalf of the accused to disprove the case.\n 6. P.W.3 is the complainant of this case. He deposed in his evidence that he knew the accused persons involved in this case. In his deposition he said that this matter being an old one he did not remember the occurrence exactly. However, about 10 years back due to dispute with the accused persons he lost his cool and lodged this FIR which is marked as Ext1/1.\n 7. P.W.1 in his evidence stated that on 5.10.2008 he was working ASI of Koida P.S. On that day on receiving written report of the complainant Sidhakanhu Murmu, IIC registered the Koira P.S. Case No.93 and directed him to take up investigation of this case. P.W.1 stated in his evidence that during investigation he visited the spot and examined the witnesses. He also seized wearing clothes of the complainant,prepared the seizure list which is marked as Ext2. He ________ __________________________________________________ also sated that he issued injury requisition in favour of injured complainant and sent it to medical on 29.10.2008. He stated that he handed over the charge of investigation to the IIC of Koida P.S on his transfer.\n 8. P.W.2 in his evidence stated that on 15.12.2009, while he was working as ASI of police at Koida P.S. he took charge of investigation of this case from IIC Pradeep Kumar Sahu. On 26.12.2009 after completion of investigation he submitted charge sheet against Nidhi Tiria,Guru Hembrum and Suren Munda u/s.341/323/294/506/34 of IPC.\n 9. P.W.4 who is the Operational Manager in Security Office stated in his evidence that though he knew the complainant of this case he did not know the accused persons involved in this case. He stated in his evidence that about 10 years back from the date of his deposition he had scribed the FIR as per narration of Sidhakanhu Murmu. He marked his signature in the FIR as Ext1/3. He further stated that the uniform of the informant was seized in the Koida police station.\n 10. The complainant in this case did not support the prosecution case. In his cross examination complainant stated that the matter was amicably settled in presence of village gentries and he did not want to proceed in the matter. In his cross examination he also stated that he did not know the contents of the FIR neither was he examined by police in connection with this case. P.W.4 who is the scribe of the FIR also did not speak anything against the occurrence. His cross examination also reveals that the matter was amicably settled in presence of village gentries and he had no direct knowledge regarding the occurrence.\n ________ __________________________________________________ 11. It is the mandate of law that the facts admitted need not be proved as per Section 58 of the Indian Evidence Act. In the instant case the complainant who is the victim of this case is denying any such assault on him by the accused persons. When the complainant himself is silent regarding the commission of any offence by the accused persons no further discussion is needed to establish the prosecution case.\n12. On the contrary the I.O in his evidence stated that on 5.10.2008 he was directed to investigate this case and on 29.10.2008 he issued injury requisition for medical examination of the complainant. This is also quite unbelievable. No other prosecution witness is supporting the prosecution case.\n13. In the end, I am of the considered view that prosecution has failed miserably to prove the offences alleged against the accused persons with beyond all reasonable doubts.\n14. Considering the above analysis and further considering the above facts and circumstances,it is held that the prosecution has failed to prove the offences u/s. 341/294/323/506/34 of Indian Penal Code against the accused persons beyond all reasonable doubts.\n In such premises, I hold the accused persons not guilty and acquit them U/s 248(1) of Cr.P.C. The accused persons be set at liberty forthwith if not required in any other case and their bail bonds stand cancelled.\n Enter this case as a mistake of facts for the statistical purpose.\n The seized articles if any be destroyed four months after the expiry of the appeal period and in case of appeal the same be disposed as per the order of the Hon'ble Appellate Court.\n Enter this case as a mistake of facts for the statistical purpose.\n ________ __________________________________________________ Pronounced the judgment in the open court and given under my signature and seal of this court on this the 3rd day of September, 2018.\n Typed to my dictation and corrected by me.\n Sd/- Asst.Sessions Judge,cumJ.M.F.C., Bonai.\n 03.09.2018 Sd/ Asst.Sessions Judge,cumJ.M.F.C., Bonai.\n List of Prosecution witnesses: 03.09.2018 P.W.1 Samara Oram P.W.2 Kartika Rout P.W.3 Sidhakanhu Murmu P.W.4 Prasanta Kumar Samanta List of Defence Witnesses: Nil.\nList of Exts. marked for Prosecution: Ext.1 Endorsement of IIC in F.I.R.\nExt.2 Seizure list Ext2/1 Signature of P.W.1 Ext1/1 FIR Ext1/2 Signature of P.W.3 on Ext1/1 Ext1/3 Signature of P.W.4 on Ext1/1 Ext2/2 Signature of P.W.4 on Ext2 List of Exts. marked for Defence: Nil.\n Sd/ Asst.Sessions Judge,cumJ.M.F.C., Bonai.\n 03.09.2018 ________ __________________________________________________ "
} |
{
"group": "Criminal"
} | [
{
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{
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"end": 59,
"labels": [
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],
"start": 0,
"text": "PETITIONER:\nSHRI BODHISATTWA GAUTAM\n\n Vs.\n\nRESPONDENT:"
}
},
{
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"id": "dabe4f19d23249d29cf2f77ba898555b",
"to_name": "text",
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"end": 111,
"labels": [
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],
"start": 59,
"text": "\nMISS SUBHRA CHAKRABORTY\n\nDATE OF JUDGMENT15/12/1995"
}
},
{
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"id": "ae1085aa49b746868513b49eefd8a277",
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"value": {
"end": 313,
"labels": [
"PRE_RELIED"
],
"start": 113,
"text": "BENCH:\nAHMAD SAGHIR S. (J)\nBENCH:\nAHMAD SAGHIR S. (J)\nKULDIP SINGH (J)\n\nCITATION: 1996 SCC (1) 490\n 1996 AIR 922 1995 SCALE (7)228\n JT 1995 (9) 509\n\nACT:\n\nHEADNOTE:\n\nJUDGMENT"
}
},
{
"from_name": "label",
"id": "0ed2ccf19252485594d9f2c616bada5d",
"to_name": "text",
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"value": {
"end": 389,
"labels": [
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],
"start": 313,
"text": ": J U D G M E N T S. SAGHIR AHMAD. J."
}
},
{
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"id": "e856f193d671446da6136f7f8173240e",
"to_name": "text",
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"value": {
"end": 676,
"labels": [
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],
"start": 389,
"text": "\n Subhra Chakraborty (alias - Kalpana) who was a student of the Baptist College, Kohima where the opposite party, Shri Bodhisattwa Gautam was a lecturer, filed a complaint in the Court of the Judicial Magistrate, Ist Class, Kohima, Nagaland, alleging, inter alia, as under :- \"3."
}
},
{
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"id": "396a4c2280ce49e4a696c36d37d9a503",
"to_name": "text",
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"value": {
"end": 889,
"labels": [
"FAC"
],
"start": 677,
"text": "That, your complainant begs to state that in April 1989 the accused person entered into Baptist College, Kohima as a Lecturer thereof and the complainant was a student of the said College at that relevant period."
}
},
{
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"id": "0cc1aed56c404786ad74da0ae9adf355",
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"end": 1111,
"labels": [
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],
"start": 899,
"text": "4. That, the accused person was in said Service in Kohima from April 1989 till he resigned the Service on 27th Jan, 1995 and was residing in a rented house in Kenezou Valley, Kohima owned by Dr. Zakiebatsu Angam."
}
},
{
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"labels": [
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],
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"text": "\n 5."
}
},
{
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"to_name": "text",
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"value": {
"end": 1421,
"labels": [
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],
"start": 1124,
"text": "That, on 6th Feb. 1995 the accused person left for silchar and presently residing in his uncle's (Shri Amiya Kanta Chakraborty) house in Premtala, Silchar-4, Dist. Cachar, in the State of Assam and assumed his service as Lecturer in Cachar College (Commerce Dept.) Silchar - 4 (Assam).\n 6."
}
},
{
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"to_name": "text",
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"value": {
"end": 1687,
"labels": [
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],
"start": 1422,
"text": "That, on the 10th June, 1989 for the 1st time the accused visited the complainant's residence in Kohima and thereafter often he used to visit complainant's residence, as a teacher he was respected by the complainant as well as all the members including her parents."
}
},
{
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"to_name": "text",
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"value": {
"end": 1822,
"labels": [
"FAC"
],
"start": 1688,
"text": "In course of such visits once in the month of Nov. 1989 the accused voluntarily told your complainant that he was already in her love."
}
},
{
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"id": "eccde6472c704d1b84b8daa930a7bce2",
"to_name": "text",
"type": "labels",
"value": {
"end": 1888,
"labels": [
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],
"start": 1823,
"text": "Thus there developed a love affair between themselves since 1989."
}
},
{
"from_name": "label",
"id": "a2dedae6cfd6473ab7f47e9512126e49",
"to_name": "text",
"type": "labels",
"value": {
"end": 2170,
"labels": [
"FAC"
],
"start": 1889,
"text": "7. That, the complainant most humbly states further that with malafide intention to practise deception on the complainant, the accused gave false assurance of marriage to the innocent complainant and thereby the accused dishonestly procured sexual intercourse with the complainant."
}
},
{
"from_name": "label",
"id": "d4661c0d47234e0f8d05f60b2884fa32",
"to_name": "text",
"type": "labels",
"value": {
"end": 2529,
"labels": [
"FAC"
],
"start": 2171,
"text": "The accused often use to induce the complainant to have biological contact with him, but whenever he was approached by the complainant to complete the marriage ceremony, the accused very tactfully used to defer the marriage sometimes saying that he was waiting for his parents formal consent and sometimes saying to cooperate him till he got a Govt. Service."
}
},
{
"from_name": "label",
"id": "b101ffbd969c44599d3e00fe458914e2",
"to_name": "text",
"type": "labels",
"value": {
"end": 2787,
"labels": [
"FAC"
],
"start": 2530,
"text": "8. That, in course of continuation of the affairs between the complainant and the accused, the complainant got pregnant twice, once in the month of September, 1993 and secondly on in the month of April 1994 out of her co- habitation with the accused person."
}
},
{
"from_name": "label",
"id": "4e0410941d604052beb1061d35e2f9ad",
"to_name": "text",
"type": "labels",
"value": {
"end": 3237,
"labels": [
"FAC"
],
"start": 2788,
"text": "9. That, the complainant being worried about her said pregnancy created pressure upon the accused to marry her immediately and to save her from being ruined, but the accused on the plea of his parents permission went on deferring the marriage, as a result there was a quarrel in between the complainant and the accused, where after the accused lastly opined for secret marriage to avoid social gathering as he was waiting for his parents permission."
}
},
{
"from_name": "label",
"id": "15db4927c13e4558856c0d6c7c1b69fb",
"to_name": "text",
"type": "labels",
"value": {
"end": 3661,
"labels": [
"FAC"
],
"start": 3238,
"text": "The complainant being pregnant was placed in a very awkward position, as such, agreed to said secret marriage, accordingly the accused on the 20th September, 1993, married the complainant in front of the God he Worships in his residence in Kenozou Valley, Kohima by putting Vermilion (sindur) on the complainant's forehead and accepted the complainant as his lawful wife and thus the complainant was consorted and consoled."
}
},
{
"from_name": "label",
"id": "1201798d1bdc4b16b98763d4a69b7d34",
"to_name": "text",
"type": "labels",
"value": {
"end": 3900,
"labels": [
"FAC"
],
"start": 3662,
"text": "But the complainant faced further corporal punishment, as the accused kept on insisting the complainant to be refrained from giving birth to the baby and was pressurizing her to undergo operation/abortion despite her refusal for the same."
}
},
{
"from_name": "label",
"id": "b424eb81b85444468f01d3720e895e35",
"to_name": "text",
"type": "labels",
"value": {
"end": 4189,
"labels": [
"FAC"
],
"start": 3901,
"text": "The accused with fraudulent intention to deceive the complainant proposed the said abortion on the plea that birth of the baby would be a barrier to convince his parents to accept the complainant as their daughter-in-law and such event would lead the complainant to a path of unhappiness."
}
},
{
"from_name": "label",
"id": "174af1d18b144a89946a6d3741a374a5",
"to_name": "text",
"type": "labels",
"value": {
"end": 4442,
"labels": [
"FAC"
],
"start": 4190,
"text": "The complainant being an innocent lady failed to understand the accused's wicked and mischievous plan whereby the accused succeeded and dishonestly motivated the complainant to undergo operation in the Putonou Clinic, Kohima and aborted in October' 93."
}
},
{
"from_name": "label",
"id": "611da2ea651240bbadad8baceb4472f7",
"to_name": "text",
"type": "labels",
"value": {
"end": 4783,
"labels": [
"FAC"
],
"start": 4442,
"text": "\n 10. That, the said Ceremony of giving Sindur (Vermilion) on the complainant's forehead by the accused in front of the God made the complainant to believe that she was lawfully married wife of the accused and with such believe she in good faith completely submitted herself to the accused as an ideal wife and never disbelieved the accused."
}
},
{
"from_name": "label",
"id": "283cb11ef14b4201badfb20b453f2090",
"to_name": "text",
"type": "labels",
"value": {
"end": 4893,
"labels": [
"FAC"
],
"start": 4784,
"text": "The complainant even did not have any doubt as to why the accused insisted her to keep their marriage secret."
}
},
{
"from_name": "label",
"id": "6f8dfec93451485fa696cd66ab626022",
"to_name": "text",
"type": "labels",
"value": {
"end": 5491,
"labels": [
"FAC"
],
"start": 4894,
"text": "The complainant was forced to undergo abortion even second time in the month of April' 94 in the CAREWELL NURSING HOME at Dimapur with the pretext that if the complainant gave birth to any child before the accused could convince his parents she would never be accepted by Bodhisatta's parents and relatives further their marriage being a secret one, the developed stage of the complainant would hamper the dignity of her own parents and other paternal relations irreparably and thus taking the privilege of complainant innocency the accused has exploited the complainant in a very pre-planned way."
}
},
{
"from_name": "label",
"id": "bd928de961ea4da59172276282cfff17",
"to_name": "text",
"type": "labels",
"value": {
"end": 5897,
"labels": [
"FAC"
],
"start": 5491,
"text": "\n The accused is so wicked that he even furnished a false name in the said Nursing Home and signed the consent Register/Paper as BIKASH GAUTAM concealing his real name BODHISATTA GAUTAM which fact was unknown to the innocent complainant until recently and came to know only in the 2nd week of February, 1995 when the complainant went to obtain a certified copy of the abortion consent paper of the accused."
}
},
{
"from_name": "label",
"id": "478fe05cfa63479a93dc4927cd560808",
"to_name": "text",
"type": "labels",
"value": {
"end": 5998,
"labels": [
"FAC"
],
"start": 5899,
"text": "A copy of said consent paper signed by the accused in annexed hereto and marked as Annexure-1.\n 11."
}
},
{
"from_name": "label",
"id": "e4347dac5fc547ecb454268eb8fc790d",
"to_name": "text",
"type": "labels",
"value": {
"end": 6134,
"labels": [
"FAC"
],
"start": 5999,
"text": "That, believing her self to be the lawful wife of the accused, the complainant like a dumb shouldered up all those hardship since 1989."
}
},
{
"from_name": "label",
"id": "4e1a6ec42f6e40bf9a76ce823a69ffc8",
"to_name": "text",
"type": "labels",
"value": {
"end": 6469,
"labels": [
"FAC"
],
"start": 6135,
"text": "On hearing the massage that the accused would go to Silchar, the complainant on 4th Feb.'95 went down to Dimapur and visited the accused to take the complainant permanently with the accused to Silchar as he was going to Silchar to join as a Lecturer in a Government College named CACHAR COLLEGE which both of them actually waited for."
}
},
{
"from_name": "label",
"id": "bce22a7288c5421f97f0940f9b674c98",
"to_name": "text",
"type": "labels",
"value": {
"end": 6736,
"labels": [
"FAC"
],
"start": 6470,
"text": "But the wicked accused forgetting the consequences of his all fraudulent activities in total disregards of their marriage and their relationship refused to accept the complainant as his wife and abandoned the complainant asking her to forget all her dream."
}
},
{
"from_name": "label",
"id": "bb2a8aadfbc04fdcad9646533a0eb677",
"to_name": "text",
"type": "labels",
"value": {
"end": 7447,
"labels": [
"FAC"
],
"start": 6737,
"text": "Be it further submitted that the accused's friends namely (1) Shri Subrata Datta, (2) Shri Ranadhir Deb (3) Shri Prasanta Dey and (4) Shri Pradeep Paul of Dimapur tried a lot to convince the accused and not to abandon the complainant in such a cruel manner, as he had already married the complainant and cohabited years together, but all efforts ended in futility as the accused in reply said that the giving of vermilion on complainant's forehead was pretext of marriage to over come the past situations and not at all a complete marriage and the accused repeatedly said that he had no option, but to abandon the complainant as his parents are not agreeable to accept the complainant as their daughter-in-law."
}
},
{
"from_name": "label",
"id": "197735d9443a4ef69db25553f8f19bb3",
"to_name": "text",
"type": "labels",
"value": {
"end": 7781,
"labels": [
"FAC"
],
"start": 7447,
"text": "\n 12. That, the accused not only induced the complainant and cohabited with her, giving her a false assurance of marriage but also fraudulently gave through certain marriage ceremony with knowledge that was not a valid marriage and thereby dishonestly made the complaint to believe that she was a lawfully married wife of the accused."
}
},
{
"from_name": "label",
"id": "92038c1f0fb846ffb41ea601742dd499",
"to_name": "text",
"type": "labels",
"value": {
"end": 7921,
"labels": [
"FAC"
],
"start": 7782,
"text": "The accused even committed the offence of miscarriage by compelling the complainant to undergo abortion twice against her free will."
}
},
{
"from_name": "label",
"id": "a488a65000a043f3a0afdc4979cf0ae1",
"to_name": "text",
"type": "labels",
"value": {
"end": 8256,
"labels": [
"FAC"
],
"start": 7922,
"text": "The way the accused exploited the complainant and abandoned her is nothing but an act of grave cruelty as the same has caused serious injury and danger to the complainant's health both mentally and physically, as such, the accused above named has committed Criminal offences punishable U/S 312/420/493/496/498-A of Indian Penal Code.\""
}
},
{
"from_name": "label",
"id": "be7432e8a08942ae8c12ffdcb080d962",
"to_name": "text",
"type": "labels",
"value": {
"end": 8700,
"labels": [
"FAC"
],
"start": 8258,
"text": "This complaint was registered as Criminal Case No. 1/95 under Sections 312/420/493/496/498-A, Indian Penal Code and Bodhisattwa Gautam was summoned but he, in the meantime, filed a petition in the Gauhati High Court under Section 482 of the Code of Criminal Procedure for quashing of the complaint and the proceedings initiated on its basis, on the ground that the allegations, taken at their face-value, do not make out any case against him."
}
},
{
"from_name": "label",
"id": "9b27e115c0424934a686dae315e28aaf",
"to_name": "text",
"type": "labels",
"value": {
"end": 8874,
"labels": [
"FAC"
],
"start": 8701,
"text": "But the High Court by its judgment and order dated May 12, 1995.dismissed the petition compelling Bodhisattwa Gautam to approach this Court by way of Special Leave Petition."
}
},
{
"from_name": "label",
"id": "54737bd8a5d14b9682ff098ce918aada",
"to_name": "text",
"type": "labels",
"value": {
"end": 9099,
"labels": [
"FAC"
],
"start": 8875,
"text": "Special Leave Petition (Criminal) No. 2675/95 was filed and was dismissed by us by our order dated October 20, 1995, in which we stated as under :- \"We see no ground to interfere with the impugned judgment of the High Court."
}
},
{
"from_name": "label",
"id": "2cc17690af204de1a251c25db73bba16",
"to_name": "text",
"type": "labels",
"value": {
"end": 9139,
"labels": [
"FAC"
],
"start": 9099,
"text": "\n We dismiss the special leave petition."
}
},
{
"from_name": "label",
"id": "0e28e31e078a458383f6533c8ca87308",
"to_name": "text",
"type": "labels",
"value": {
"end": 9276,
"labels": [
"FAC"
],
"start": 9139,
"text": "\n Having done so, we further take suo motu notice to the facts of this case as narrated in the complainant which has been read before us."
}
},
{
"from_name": "label",
"id": "2f85ca3d5d344b9b942a76cfa7951747",
"to_name": "text",
"type": "labels",
"value": {
"end": 9465,
"labels": [
"FAC"
],
"start": 9277,
"text": "We issue notice to the petitioner as to why he should not be asked to pay reasonable maintenance per month to the respondent during the pendency of the prosecution proceedings against him."
}
},
{
"from_name": "label",
"id": "9818d2e190404fd599e4f2e10603e446",
"to_name": "text",
"type": "labels",
"value": {
"end": 9502,
"labels": [
"FAC"
],
"start": 9466,
"text": "Mr. A. Bhattacharjee accepts notice."
}
},
{
"from_name": "label",
"id": "4584ac98b073497790e75f59a25d2df0",
"to_name": "text",
"type": "labels",
"value": {
"end": 9533,
"labels": [
"FAC"
],
"start": 9512,
"text": "List it on 1.12.1995."
}
},
{
"from_name": "label",
"id": "f924c6b6ed694b36a8ad178449168a5a",
"to_name": "text",
"type": "labels",
"value": {
"end": 9614,
"labels": [
"FAC"
],
"start": 9533,
"text": "\n Petitioner in person be present in Court on the next date of hearing.\n "
}
},
{
"from_name": "label",
"id": "c4b0f2b5d62346868614aa3e47e7af86",
"to_name": "text",
"type": "labels",
"value": {
"end": 9687,
"labels": [
"FAC"
],
"start": 9614,
"text": "Notice be also sent to the respondent along with the copy of this order.\""
}
},
{
"from_name": "label",
"id": "9b18046de56448f68defe356e3709db4",
"to_name": "text",
"type": "labels",
"value": {
"end": 10044,
"labels": [
"FAC"
],
"start": 9697,
"text": "Pursuant to the above order, Shri Bodhisattwa Gautam put in appearance and filed an affidavit in reply in which he denied the allegation made against him in the complaint and stated that the complaint was filed only to harass and humiliate him and, therefore, there was no occasion to direct him to pay any amount as maintenance to the respondent."
}
},
{
"from_name": "label",
"id": "722a7a904d134fe0a0920d60585a4cd7",
"to_name": "text",
"type": "labels",
"value": {
"end": 10184,
"labels": [
"FAC"
],
"start": 10045,
"text": "He also indicated that although he had taken up service in another College, namely, Cachar College, his services had since been terminated."
}
},
{
"from_name": "label",
"id": "8faeabfd3d954702b1b2cb52a80b0617",
"to_name": "text",
"type": "labels",
"value": {
"end": 10554,
"labels": [
"FAC"
],
"start": 10185,
"text": "Para 4 of his affidavit in which these facts have been stated is reproduced below :- \"4. That I say that I am not in any employment now and I am an unemployed person after my services as a Lecturer in Cachar College, Silchar, has been terminated with effect from 16.7.1995 by a resolution of the Governing Body of the said College passed in a meeting held on 14.9.1995."
}
},
{
"from_name": "label",
"id": "b322723e778b4a419d2dc9fc7685a4b8",
"to_name": "text",
"type": "labels",
"value": {
"end": 10718,
"labels": [
"FAC"
],
"start": 10555,
"text": "A true copy of the proceedings of the said meeting of the Governing Body of Cachar College, Silchar held on 14.9.1995 is annexed hereto as Annexure - A1.\n "
}
},
{
"from_name": "label",
"id": "6339b19e04ac4da79df118d08b2d7455",
"to_name": "text",
"type": "labels",
"value": {
"end": 11166,
"labels": [
"FAC"
],
"start": 10718,
"text": "The relevant resolution No. 5(A) of the said meeting of the Governing Body reads as follows :- \"Resolution No. 5(A): The Principal placed the leave petitions of Shri B.Gautam, Lecturer, Deptt. of Commerce, adding that Shri Gautam resumed his duties in the College on the re-opening day of the College after summer vacation, i.e., on 15th of July, 1995 and at first he sought leave for twenty one days and the for three years at a stretch.\n "
}
},
{
"from_name": "label",
"id": "52c86fa9c00e4e54806a1247d2add9ba",
"to_name": "text",
"type": "labels",
"value": {
"end": 11357,
"labels": [
"FAC"
],
"start": 11166,
"text": "The Principal also stated that Shri B.\n Gautam was appointed against a lien vacancy for one year vice Dr. A.\n Mazumdar, the one-year lien having expired on 9.9.1995.\n "
}
},
{
"from_name": "label",
"id": "8650fe55a0174ab98e6ac59cb6abda0a",
"to_name": "text",
"type": "labels",
"value": {
"end": 11679,
"labels": [
"FAC"
],
"start": 11357,
"text": "The matter was thoroughly discussed and it was unanimously resolved that since Shri B. Gautam's term of appointment against lien vacancy had expired on 9.9.1995 and his service was not confirmed, (he did not complete even one full year's service), he cannot be granted three years' leave at a stretch as prayed for by him."
}
},
{
"from_name": "label",
"id": "731de28341dd404e8c8cfb4db81669d5",
"to_name": "text",
"type": "labels",
"value": {
"end": 11988,
"labels": [
"FAC"
],
"start": 11679,
"text": "\n Also resolved that as Shri B. Gautam has been absent from the College from 16th of July, 1995 and also the term of his appointment expired on 9.9.1995, Shri Gautam's service as lecturer in the Deptt. of Commerce in Cachar College, Silchar be treated as having been terminated w.e.f. 16th July, 1995."
}
},
{
"from_name": "label",
"id": "68518b5a400646e0a4e5833bcbca63bb",
"to_name": "text",
"type": "labels",
"value": {
"end": 12166,
"labels": [
"FAC"
],
"start": 11988,
"text": "\n The Principal be requested to forward the above resolution to the D.P.I.\n Assam, for his kind approval of the termination of the services of Sri B.\n Gautam w.e.f. 16.7.1995.\"\n "
}
},
{
"from_name": "label",
"id": "0af01fa0e9fe4316a201a2ad903212a7",
"to_name": "text",
"type": "labels",
"value": {
"end": 12363,
"labels": [
"FAC"
],
"start": 12166,
"text": "This resolution along with other resolutions passed in the said meeting held on 14.9.1995 were placed before the meeting of the Governing Body held subsequently on 11.11.1995 for confirmation."
}
},
{
"from_name": "label",
"id": "ce83e23ab72f45bdaa2b61d879dea499",
"to_name": "text",
"type": "labels",
"value": {
"end": 12500,
"labels": [
"FAC"
],
"start": 12364,
"text": "A true copy of the notice of meeting to be held on 11.11.1995 containing the agenda of the meeting is annexed hereto as Annexure - A2.\n "
}
},
{
"from_name": "label",
"id": "4a19a2eb508744b6ad34309b374a14ce",
"to_name": "text",
"type": "labels",
"value": {
"end": 12658,
"labels": [
"FAC"
],
"start": 12500,
"text": "Now I have been reliably informed that in the meeting of the Governing Body on 11.11.1995, the aforesaid resolution terminating my service has been confirmed."
}
},
{
"from_name": "label",
"id": "eb4fbff4dfcd4e489b3bb8ec5904076f",
"to_name": "text",
"type": "labels",
"value": {
"end": 12860,
"labels": [
"FAC"
],
"start": 12659,
"text": "I further state that I have not received any payment towards my salary since July, 1995 and after the termination of my service with effect from 16.7.1995 no question of my receiving any salary arises."
}
},
{
"from_name": "label",
"id": "b4287cc379f24bf7964cf4050879632b",
"to_name": "text",
"type": "labels",
"value": {
"end": 13010,
"labels": [
"FAC"
],
"start": 12860,
"text": "\n In the circumstances I respectfully submit that no question of burdening me with the liability of paying maintenance to the respondent can arise.\"\n "
}
},
{
"from_name": "label",
"id": "62d4fc1657734e3f8ddf2e5f26df15e1",
"to_name": "text",
"type": "labels",
"value": {
"end": 13450,
"labels": [
"ANALYSIS"
],
"start": 13010,
"text": "The facts set out in the complaint lodged against Bodhisattwa Gautam indicate that there was initially a period of romance during which Bodhisattwa Gautam used to visit the house of Subhra Chakraborty and on one occasion, he told her that he was in love with her and ultimately succeeded, on the basis of his assurances to marry her, in developing sexual relationship with her with the tragic result that Subhra Chakraborty became pregnant."
}
},
{
"from_name": "label",
"id": "cd7b8ca28b9541428f38724f92625e08",
"to_name": "text",
"type": "labels",
"value": {
"end": 13593,
"labels": [
"ANALYSIS"
],
"start": 13451,
"text": "While in that state, she persuaded Gautam to marry her, but he, deferred the proposal on the plea that he had to take his parents' permission."
}
},
{
"from_name": "label",
"id": "ac09829df2b8423091462bf6066d2599",
"to_name": "text",
"type": "labels",
"value": {
"end": 13636,
"labels": [
"ANALYSIS"
],
"start": 13594,
"text": "He, however, agreed to marry her secretly."
}
},
{
"from_name": "label",
"id": "ad4e7c5131bc480c8dbf83581c4206ad",
"to_name": "text",
"type": "labels",
"value": {
"end": 13802,
"labels": [
"ANALYSIS"
],
"start": 13637,
"text": "Consequently, on 20th September, 1993, Bodhisattwa Gautam took her before the God he worshiped and put Vermilion on her forehead and accepted her as his lawful wife."
}
},
{
"from_name": "label",
"id": "e39652a094c14adcb29b5c1eccf4ebbc",
"to_name": "text",
"type": "labels",
"value": {
"end": 13964,
"labels": [
"ANALYSIS"
],
"start": 13803,
"text": "In spite of the secret marriage, he, through his insistence, succeeded in motivating her for an abortion which took place in a clinic at Kohima in October, 1993."
}
},
{
"from_name": "label",
"id": "ddd391d7aa0b42f795f7cd5c882028e9",
"to_name": "text",
"type": "labels",
"value": {
"end": 14223,
"labels": [
"ANALYSIS"
],
"start": 13964,
"text": "\n Subhra Chakraborty became pregnant second time and at the instance of Bodhisattwa Gautam she had to abort again in April, 1994 in the Carewell Nursing Home at Dimapur where Gautam signed the consent paper and deliberately mentioned himself as Bikash Gautam."
}
},
{
"from_name": "label",
"id": "3aab9ec8ded74644a4cce6cea635c825",
"to_name": "text",
"type": "labels",
"value": {
"end": 14468,
"labels": [
"FAC"
],
"start": 14223,
"text": "\n The Gauhati High Court, as already pointed out above, refused to quash the proceeding in Criminal Case No 1/95 pending in the Court of the Judicial Magistrate, Ist Class, Kohima and this Court has upheld the judgment of the Gauhati High Court."
}
},
{
"from_name": "label",
"id": "f02223c184b94086ae4a81354721b86d",
"to_name": "text",
"type": "labels",
"value": {
"end": 14698,
"labels": [
"ISSUE"
],
"start": 14469,
"text": "The question is whether any further order can be passed in the case and Gautam can be compelled to pay maintenance to Subhra Chakraborty during the pendency of the Criminal Case for which Show Cause Notice has been issued to him?"
}
},
{
"from_name": "label",
"id": "02b2acb39a6e4661b3f0428ecf507a29",
"to_name": "text",
"type": "labels",
"value": {
"end": 14779,
"labels": [
"ANALYSIS"
],
"start": 14698,
"text": "\n This Court, as the highest Court of the country, has a variety of jurisdiction."
}
},
{
"from_name": "label",
"id": "4a729b16c050478f93e94468d57f7664",
"to_name": "text",
"type": "labels",
"value": {
"end": 15007,
"labels": [
"ANALYSIS"
],
"start": 14780,
"text": "Under Article 32 of the Constitution, it has the jurisdiction to enforce the Fundamental Rights guaranteed by the Constitution by issuing writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-Warranto and Certiorari."
}
},
{
"from_name": "label",
"id": "466fe74a118d45e69ec0b07a857898a2",
"to_name": "text",
"type": "labels",
"value": {
"end": 15087,
"labels": [
"ANALYSIS"
],
"start": 15008,
"text": "Fundamental Rights can be enforced even against private bodies and individuals."
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"text": "Even the right to approach the Supreme Court for the enforcement of the Fundamental Rights under Article 32 itself is a Fundamental Right."
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"text": "The jurisdiction enjoyed by this Court under Article 32 is very wide as this Court, while considering a petition for the enforcement of any of the Fundamental Rights guaranteed in Part III of the Constitution, can declare an Act to be ultra vires or beyond the competence of the legislature and has also the power to award compensation for the violation of the Fundamental Rights."
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"text": "See : Rudul Sah vs. State of Bihar : AIR 1983 SC 1086; Peoples' Union for Democratic Rights (through its Secretary & Anr.) vs. Police Commissioner, Delhi Police HQs.\n& Anr. : (1989) 4 SCC 730.\n "
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"text": "For the exercise of this jurisdiction, it is not necessary that the person who is the victim of violation of his fundamental right should personally approach the Court as the Court can itself take cognizance of the matter and proceed suo motu or on a petition of any public spirited individual."
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"start": 16097,
"text": "This Court through its various decisions, has already given new dimensions, meaning and purpose to many of the fundamental rights especially the Right to Freedom and Liberty and Right to Life."
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"text": "The Directive Principles of the State Policy, have also been raised by this Court from their static and unenforceable concept to a level as high as that of the fundamental rights."
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"text": "\n This Court has, innumerable times, declared that \"Right to Life\" does not merely mean animal existence but means something more, namely, the right to live with human dignity."
}
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"text": "(See : Francis Coralie Mullin vs. The Administrator, Union Territory of Delhi & Ors., AIR 1981 SC 746; State of Maharashtra vs. Chandrabhan, AIR 1983 SC 803; Olga Tellis & Ors. vs. Bombay Municipal Corporation & Ors., AIR 1986 SC 180; and Delhi Transport Corporation vs. D.T.C.\nMazdoor Congress & Ors., AIR 1991 SC 101)."
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{
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"start": 16967,
"text": "Right to Life would, therefore, include all those aspects of life which go to make a life meaningful, complete and worth-living."
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"start": 17095,
"text": "\n Unfortunately, a woman, in our country, belongs to a class or group of society who are in a disadvantaged position on account of several social barriers and impediments and have, therefore, been the victim of tyranny at the hands of men with whom they, fortunately, under the Constitution enjoy equal status."
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"text": "Women also have the right to life and liberty; they also have the right to be respected and treated as equal citizens."
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"text": "Their honour and dignity cannot be touched or violated."
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"text": "They also have the right to lead an honourable and peaceful life."
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"text": "Women, in them, have many personalities combined."
}
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"start": 17697,
"text": "They are Mother, Daughter, Sister and Wife and not play things for centre spreads in various magazines, periodicals or newspapers nor can they be exploited for obscene purposes."
}
},
{
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"text": "They must have the liberty, the freedom and, of course, independence to live the roles assigned to them by Nature so that the society may flourish as they alone have the talents and capacity to shape the destiny and character of men anywhere and in every part of the world."
}
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"labels": [
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"start": 18148,
"text": "\n Rape is thus not only a crime against the person of a woman (victim), it is a crime against the entire society."
}
},
{
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"text": "It destroys the entire psychology of a woman and pushed her into deep emotional crises."
}
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"text": "It is only by her sheer will power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt."
}
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"text": "Rape is, therefore, the most hated crime."
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"start": 18557,
"text": "It is a crime against basic human rights and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21."
}
},
{
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"start": 18728,
"text": "\nTo many feminists and psychiatrists, rape is less a sexual offence than an act of aggression aimed at degrating and humiliating women."
}
},
{
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"text": "The rape laws do not, unfortunately, take care of the social aspect of the matter and are inept in many respects."
}
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"labels": [
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"start": 18977,
"text": "\n It is said that present days' law relating to rape have their origin in 1736 in Britain, when Sir Mathew Hale in his Historia Placitorum Cornea or, in other words, \"History of the pleas of the Crown\" presented common-law rape doctrines which were immediately noticed to be hostile to the interests of women as one of the requirement was to inform the jury during trial that rape charges were easy to bring but difficult to defend."
}
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{
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"text": "Consequently, in a tide of law reforms, this requirement was removed."
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"text": "The rule of corroboration which was much stricter in a trial for the offence of rape than for other offences was also largely removed from law."
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"text": "\n In India also the rule of \"Corroboration of the Prosecutrix\" has undergone a change through statutory amendments as also through decisions of this Court."
}
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{
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"text": "\n In State of Himachal Pradesh vs. Raghubir Singh, 1993(2) SCC 622, this Court observed as under :- \"There is no legal compulsion to look for corroboration of the evidence of the prosecutrix before recording an order of conviction."
}
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{
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"text": "Evidence has to be weighed and not counted."
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"text": "Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate her veracity."
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{
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"labels": [
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"text": "In the present case the evidence of the prosecutrix is found to be reliable and trustworthy."
}
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{
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"end": 20409,
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"text": "No corroboration was required to be looked for, though enough was available on the record."
}
},
{
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"end": 20466,
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"start": 20410,
"text": "The medical evidence provided sufficient corroboration.\""
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{
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"end": 20781,
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"start": 20476,
"text": "In State of Karnataka vs. Mahabaleshwar Gourya Naik, AIR 1992 SC 2043 = 1992 Suppl. (3) SCC 179, the Court went to the extent of laying down that even if the victim of rape is not available to give evidence on account of her having committed suicide, the prosecution case cannot be thrown away over board."
}
},
{
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"end": 20965,
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"start": 20782,
"text": "In such a case, the non-availability of the victim will not be fatal and the Court can record a conviction on the basis of the available evidence brought on record by the prosecution."
}
},
{
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"id": "8f9ad41e3bdf4bbe9bf53f3c0ba9c045",
"to_name": "text",
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"value": {
"end": 21293,
"labels": [
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],
"start": 20965,
"text": "\n In spite of the decision of this Court that (depending upon the circumstances of the case) corroboration of the prosecutrix was not necessary, the cases continued to end in acquittal on account of mishandling of the crime by the police and the invocation of the theory of \"consent\" by the Courts who tried the offence."
}
},
{
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"end": 21518,
"labels": [
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],
"start": 21294,
"text": "To overcome this difficulty, the legislature intervened and introduced Section 114-A in the Evidence Act by Act No. 43 of 1983 reading as under:- 114-A. Presumption as to absence of consent in certain prosecutions for rape.-"
}
},
{
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"value": {
"end": 21974,
"labels": [
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],
"start": 21519,
"text": "In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) or sub-section (2) of Section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.\""
}
},
{
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"value": {
"end": 22140,
"labels": [
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],
"start": 21976,
"text": "This Section enables a court to raise a presumption that the woman who was the victim of rape had not consented and that the offence was committed against her will."
}
},
{
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"value": {
"end": 22185,
"labels": [
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],
"start": 22141,
"text": "The situation, however, has hardly improved."
}
},
{
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"id": "33c928fb882c4051a8ca961fab4ff0b6",
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"value": {
"end": 22382,
"labels": [
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],
"start": 22186,
"text": "Conviction rates for rape are still lower than any other major crime and the woman continue to argue even today that in rape cases the victimized women, rather than the rapists, were put on trial."
}
},
{
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"id": "917168b827f7474ca86ccb66a7d8cbe3",
"to_name": "text",
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"value": {
"end": 22596,
"labels": [
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],
"start": 22383,
"text": "A large number of women still fail to report rapes to the police because they fear embarrassing and insensitive treatment by the doctors, the law enforcement personnel and/or the cross-examining defence attorneys."
}
},
{
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"id": "cedf4c2575df4e61a6bc251b7370fc6e",
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"value": {
"end": 22926,
"labels": [
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],
"start": 22597,
"text": "The fear has to be allayed from the minds of women so that if and when this crime is committed, the victim may promptly report the matter to the police and on a chargesheet being submitted, the trial may proceed speedily without causing any embarrassment to the prosecutrix who may come in the witness box without fear psychosis."
}
},
{
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"end": 23223,
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"start": 22926,
"text": "\n We may, at this stage, refer to a decision of this Court in Delhi Domestic Working Women's Forum vs. Union of India, 1995 (1) SCC 14, in which Court observed as under :- \"It is rather unfortunate that in recent times, there has been an increase in violence against women causing serious concern."
}
},
{
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"id": "3cff940d58ea47edbf4f06295e1304e0",
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"value": {
"end": 23299,
"labels": [
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],
"start": 23224,
"text": "Rape does indeed pose a series of problems for the criminal justice system."
}
},
{
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"end": 23406,
"labels": [
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],
"start": 23300,
"text": "There are cries for harshest penalties, but often times such crimes eclipse the real plight of the victim."
}
},
{
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"id": "31ea8be4f7f24ba791c02dd3a986fcdb",
"to_name": "text",
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"value": {
"end": 23487,
"labels": [
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],
"start": 23406,
"text": "\n Rape is an experience which shakes the foundations of the lives of the victims."
}
},
{
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"id": "8d2737c380324ef68bdde2d231d3d28e",
"to_name": "text",
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"value": {
"end": 23645,
"labels": [
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],
"start": 23487,
"text": "\n For many, its effect is a long-term one, impairing their capacity for personal relationships, altering their behaviour values and generating and less fears."
}
},
{
"from_name": "label",
"id": "d1ebe7c374e0425a809163f981f608cf",
"to_name": "text",
"type": "labels",
"value": {
"end": 23759,
"labels": [
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],
"start": 23646,
"text": "In addition to the trauma of the rape itself, victims have had to suffer further agony during legal proceedings.\""
}
},
{
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"id": "5b268831c1b04e0ea098c7fd701bac20",
"to_name": "text",
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"value": {
"end": 23930,
"labels": [
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],
"start": 23759,
"text": "\n This Court further observed as under :- \"The defects in the present system are : Firstly, complaints are handled roughly and are not even such attention as is warranted."
}
},
{
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"id": "7eaff544973b4f41836eb5a127fdfab9",
"to_name": "text",
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"value": {
"end": 23994,
"labels": [
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],
"start": 23931,
"text": "The victims, more often than not, are humiliated by the police."
}
},
{
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"id": "49e3afef6ea54e96b0e493259d6addad",
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"value": {
"end": 24064,
"labels": [
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],
"start": 23995,
"text": "The victims have invariably found rape trials a traumatic experience."
}
},
{
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"id": "e25866ac04f34257b418301336260202",
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"type": "labels",
"value": {
"end": 24142,
"labels": [
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],
"start": 24065,
"text": "The experience of giving evidence in court has been negative and destructive."
}
},
{
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"id": "597de4d871ee47089a9a5e44ff955007",
"to_name": "text",
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"value": {
"end": 24231,
"labels": [
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],
"start": 24143,
"text": "The victims often say, they considered the ordeal to be even worse than the rape itself."
}
},
{
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"id": "745180e5be6b43fca10ccca3ba891272",
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"end": 24377,
"labels": [
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],
"start": 24232,
"text": "Undoubtedly, the court proceedings added to and prolonged the psychological stress they had had to suffer as a result of the rape itself."
}
},
{
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"id": "5e57685f9fed42dc892b1f3adb8ffee9",
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"value": {
"end": 24481,
"labels": [
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],
"start": 24377,
"text": "\n In this background, it is necessary to indicate the broad parameters in assisting the victims of rape."
}
},
{
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],
"start": 24481,
"text": "\n(1) The complainants of sexual assault cases should be provided with legal representation."
}
},
{
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"to_name": "text",
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"value": {
"end": 24662,
"labels": [
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],
"start": 24573,
"text": "It is important to have some one who is well-acquainted with the criminal justice system."
}
},
{
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"value": {
"end": 25012,
"labels": [
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],
"start": 24663,
"text": "The role of the victim's advocate would not only be to explain to the victim the nature of the proceedings, to prepare her for the case and to assist her in the police station and in court but to provide her with guidance as to how she might obtain help of a different nature from other agencies, for example, mind counselling or medical assistance."
}
},
{
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"id": "f3359fb6e14f4a698c7cfe8ebf8b0a88",
"to_name": "text",
"type": "labels",
"value": {
"end": 25203,
"labels": [
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],
"start": 25013,
"text": "It is important to secure continuity of assistance by ensuring that the same person who looked after the complainant's interests in the police station represent her till the end of the case."
}
},
{
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"id": "822ea23bcec4455ca58f74f574f8df59",
"to_name": "text",
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"value": {
"end": 25507,
"labels": [
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],
"start": 25203,
"text": "\n(2) Legal assistance will have to be provided at the police station since the victim of sexual assault might very well be in a distressed state upon arrival at the police station, the guidance and support of a lawyer at this stage and whilst she was being questioned would be of great assistance to her."
}
},
{
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"id": "a652c73c6ca64ea4856aa12a2de1514e",
"to_name": "text",
"type": "labels",
"value": {
"end": 25709,
"labels": [
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],
"start": 25507,
"text": "\n(3) The police should be under a duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed."
}
},
{
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"id": "cef869d705974145bf1f11112e15d0b5",
"to_name": "text",
"type": "labels",
"value": {
"end": 25894,
"labels": [
"ANALYSIS"
],
"start": 25709,
"text": "\n(4) A list of advocates willing to act in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable."
}
},
{
"from_name": "label",
"id": "7f17bafc038845e7ae77fae6e265f5b9",
"to_name": "text",
"type": "labels",
"value": {
"end": 26194,
"labels": [
"ANALYSIS"
],
"start": 25894,
"text": "\n(5) The advocate shall be appointed by the court, upon application by the police at the earliest convenient movement, but in order to ensure that victims were questioned without undue delay, advocates would be authorised to act at the police station before leave of the court was sought or obtained."
}
},
{
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"id": "2f4f0348938a468ca84acd351466f27d",
"to_name": "text",
"type": "labels",
"value": {
"end": 26453,
"labels": [
"ANALYSIS"
],
"start": 26194,
"text": "\n(6) In all rape trials anonymity of the victims must be maintained, as far as necessary.\n(7) It is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board."
}
},
{
"from_name": "label",
"id": "681e529f88514d008ceee04b92ed2d70",
"to_name": "text",
"type": "labels",
"value": {
"end": 26511,
"labels": [
"ANALYSIS"
],
"start": 26454,
"text": "Rape victims frequently incur substantial financial loss."
}
},
{
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"id": "c2ffa195de8448d297e1f4294b5af0c5",
"to_name": "text",
"type": "labels",
"value": {
"end": 26576,
"labels": [
"ANALYSIS"
],
"start": 26512,
"text": "Some, for example, are too dramatized to continue in employment."
}
},
{
"from_name": "label",
"id": "57bba7a5dd574a95a766cb82223ea19e",
"to_name": "text",
"type": "labels",
"value": {
"end": 26758,
"labels": [
"ANALYSIS"
],
"start": 26576,
"text": "\n(8) Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place."
}
},
{
"from_name": "label",
"id": "c68fba923b1c412c9d40e691096d2a33",
"to_name": "text",
"type": "labels",
"value": {
"end": 26938,
"labels": [
"ANALYSIS"
],
"start": 26759,
"text": "The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of the child but if this occurred as a result of the rape."
}
},
{
"from_name": "label",
"id": "ef8997cc280e4f1bb6feae570ef8ef3b",
"to_name": "text",
"type": "labels",
"value": {
"end": 27072,
"labels": [
"ANALYSIS"
],
"start": 26938,
"text": "\n In the present situation, the third respondent will have to evolve such scheme as to wipe out the fears of such unfortunate victims."
}
},
{
"from_name": "label",
"id": "ce646dc8cfd64935a83afc9eedeeb4c6",
"to_name": "text",
"type": "labels",
"value": {
"end": 27154,
"labels": [
"ANALYSIS"
],
"start": 27073,
"text": "Such a scheme shall be prepared within six months from the date of this judgment."
}
},
{
"from_name": "label",
"id": "4cb3191573e5469ea47aa309423e4ffd",
"to_name": "text",
"type": "labels",
"value": {
"end": 27303,
"labels": [
"ANALYSIS"
],
"start": 27155,
"text": "Thereupon, the Union of India, will examine the same and shall take necessary steps for the implementation of the scheme at the earliest.\"\n "
}
},
{
"from_name": "label",
"id": "b34302aa7c274ee78f7e7758d95d443f",
"to_name": "text",
"type": "labels",
"value": {
"end": 27514,
"labels": [
"ANALYSIS"
],
"start": 27303,
"text": "This decision recognises the right of the victim for compensation by providing that it shall be awarded by the Court on conviction of the offender subject to the finalisation of Scheme by the Central Government."
}
},
{
"from_name": "label",
"id": "659bd010492c47ec84e33306311057c5",
"to_name": "text",
"type": "labels",
"value": {
"end": 27741,
"labels": [
"ANALYSIS"
],
"start": 27515,
"text": "If the Court trying an offence of rape has jurisdiction to award the compensation at the final stage, there is no reason to deny to the Court the right to award interim compensation which should also be provided in the Scheme."
}
},
{
"from_name": "label",
"id": "e8a77c272f4943a4878b4476c0fc92b9",
"to_name": "text",
"type": "labels",
"value": {
"end": 28116,
"labels": [
"ANALYSIS"
],
"start": 27742,
"text": "On the basis of principles set out in the aforesaid decision in Delhi Domestic Working Women's Forum, the jurisdiction to pay interim compensation shall be treated to be part of the over all jurisdiction of the Courts trying the offences of rape which, as pointed out above is an offence against basic human rights as also the Fundamental Right of Personal Liberty and Life."
}
},
{
"from_name": "label",
"id": "be86eeb177cc47d3b8a559a3865035ae",
"to_name": "text",
"type": "labels",
"value": {
"end": 28317,
"labels": [
"ANALYSIS"
],
"start": 28126,
"text": "Apart from the above, this Court has the inherent jurisdiction to pass any order it consists fit and proper in the interest of justice or to do complete justice between the parties.\n "
}
},
{
"from_name": "label",
"id": "c8221a04917a4afea6397b60f39ad48d",
"to_name": "text",
"type": "labels",
"value": {
"end": 28950,
"labels": [
"RPC"
],
"start": 28317,
"text": "Having regard to the facts and circumstances of the present case in which there is a serious allegation that Bodhisattwa Gautam had married Subhra Chakraborty before the God he worshiped by putting Varmilion on her forehead and accepting her as his wife and also having impregnated her twice resulting in abortion on both the occasions, we, on being prima-facie satisfied, dispose of this matter by providing that Bodhisattwa Gautam shall pay to Subhra Chakraborty a sum of Rs. 1,000/- every month as interim compensation during the pendency of Criminal Case No. 1/95 in the court of Judicial Magistrate, 1st Class, Kohima, Nagaland."
}
},
{
"from_name": "label",
"id": "e065ef58eacb4fefa95300844d45ad74",
"to_name": "text",
"type": "labels",
"value": {
"end": 29085,
"labels": [
"RPC"
],
"start": 28951,
"text": "He shall also be liable to pay arrears of compensation at the same rate from the date on which the complaint was filed till this date."
}
},
{
"from_name": "label",
"id": "8e0d4ad62b4a44bcb987eb39c6d1cd02",
"to_name": "text",
"type": "labels",
"value": {
"end": 29335,
"labels": [
"RPC"
],
"start": 29086,
"text": "We may further observe that whatever has been said in this Judgment shall not, in any way, affect or prejudice the Magistrate from deciding the complaint on merits on the basis of the evidence as may be tendered before it and in accordance with law."
}
}
]
}
] | 1,725 | {
"text": "PETITIONER:\nSHRI BODHISATTWA GAUTAM\n\n Vs.\n\nRESPONDENT:\nMISS SUBHRA CHAKRABORTY\n\nDATE OF JUDGMENT15/12/1995\n\nBENCH:\nAHMAD SAGHIR S. (J)\nBENCH:\nAHMAD SAGHIR S. (J)\nKULDIP SINGH (J)\n\nCITATION: 1996 SCC (1) 490\n 1996 AIR 922 1995 SCALE (7)228\n JT 1995 (9) 509\n\nACT:\n\nHEADNOTE:\n\nJUDGMENT: J U D G M E N T S. SAGHIR AHMAD. J.\n Subhra Chakraborty (alias - Kalpana) who was a student of the Baptist College, Kohima where the opposite party, Shri Bodhisattwa Gautam was a lecturer, filed a complaint in the Court of the Judicial Magistrate, Ist Class, Kohima, Nagaland, alleging, inter alia, as under :- \"3. That, your complainant begs to state that in April 1989 the accused person entered into Baptist College, Kohima as a Lecturer thereof and the complainant was a student of the said College at that relevant period.\n 4. That, the accused person was in said Service in Kohima from April 1989 till he resigned the Service on 27th Jan, 1995 and was residing in a rented house in Kenezou Valley, Kohima owned by Dr. Zakiebatsu Angam.\n 5. That, on 6th Feb. 1995 the accused person left for silchar and presently residing in his uncle's (Shri Amiya Kanta Chakraborty) house in Premtala, Silchar-4, Dist. Cachar, in the State of Assam and assumed his service as Lecturer in Cachar College (Commerce Dept.) Silchar - 4 (Assam).\n 6. That, on the 10th June, 1989 for the 1st time the accused visited the complainant's residence in Kohima and thereafter often he used to visit complainant's residence, as a teacher he was respected by the complainant as well as all the members including her parents. In course of such visits once in the month of Nov. 1989 the accused voluntarily told your complainant that he was already in her love. Thus there developed a love affair between themselves since 1989.\n7. That, the complainant most humbly states further that with malafide intention to practise deception on the complainant, the accused gave false assurance of marriage to the innocent complainant and thereby the accused dishonestly procured sexual intercourse with the complainant. The accused often use to induce the complainant to have biological contact with him, but whenever he was approached by the complainant to complete the marriage ceremony, the accused very tactfully used to defer the marriage sometimes saying that he was waiting for his parents formal consent and sometimes saying to cooperate him till he got a Govt. Service.\n8. That, in course of continuation of the affairs between the complainant and the accused, the complainant got pregnant twice, once in the month of September, 1993 and secondly on in the month of April 1994 out of her co- habitation with the accused person.\n9. That, the complainant being worried about her said pregnancy created pressure upon the accused to marry her immediately and to save her from being ruined, but the accused on the plea of his parents permission went on deferring the marriage, as a result there was a quarrel in between the complainant and the accused, where after the accused lastly opined for secret marriage to avoid social gathering as he was waiting for his parents permission. The complainant being pregnant was placed in a very awkward position, as such, agreed to said secret marriage, accordingly the accused on the 20th September, 1993, married the complainant in front of the God he Worships in his residence in Kenozou Valley, Kohima by putting Vermilion (sindur) on the complainant's forehead and accepted the complainant as his lawful wife and thus the complainant was consorted and consoled. But the complainant faced further corporal punishment, as the accused kept on insisting the complainant to be refrained from giving birth to the baby and was pressurizing her to undergo operation/abortion despite her refusal for the same. The accused with fraudulent intention to deceive the complainant proposed the said abortion on the plea that birth of the baby would be a barrier to convince his parents to accept the complainant as their daughter-in-law and such event would lead the complainant to a path of unhappiness. The complainant being an innocent lady failed to understand the accused's wicked and mischievous plan whereby the accused succeeded and dishonestly motivated the complainant to undergo operation in the Putonou Clinic, Kohima and aborted in October' 93.\n 10. That, the said Ceremony of giving Sindur (Vermilion) on the complainant's forehead by the accused in front of the God made the complainant to believe that she was lawfully married wife of the accused and with such believe she in good faith completely submitted herself to the accused as an ideal wife and never disbelieved the accused. The complainant even did not have any doubt as to why the accused insisted her to keep their marriage secret. The complainant was forced to undergo abortion even second time in the month of April' 94 in the CAREWELL NURSING HOME at Dimapur with the pretext that if the complainant gave birth to any child before the accused could convince his parents she would never be accepted by Bodhisatta's parents and relatives further their marriage being a secret one, the developed stage of the complainant would hamper the dignity of her own parents and other paternal relations irreparably and thus taking the privilege of complainant innocency the accused has exploited the complainant in a very pre-planned way.\n The accused is so wicked that he even furnished a false name in the said Nursing Home and signed the consent Register/Paper as BIKASH GAUTAM concealing his real name BODHISATTA GAUTAM which fact was unknown to the innocent complainant until recently and came to know only in the 2nd week of February, 1995 when the complainant went to obtain a certified copy of the abortion consent paper of the accused.\n A copy of said consent paper signed by the accused in annexed hereto and marked as Annexure-1.\n 11. That, believing her self to be the lawful wife of the accused, the complainant like a dumb shouldered up all those hardship since 1989. On hearing the massage that the accused would go to Silchar, the complainant on 4th Feb.'95 went down to Dimapur and visited the accused to take the complainant permanently with the accused to Silchar as he was going to Silchar to join as a Lecturer in a Government College named CACHAR COLLEGE which both of them actually waited for. But the wicked accused forgetting the consequences of his all fraudulent activities in total disregards of their marriage and their relationship refused to accept the complainant as his wife and abandoned the complainant asking her to forget all her dream. Be it further submitted that the accused's friends namely (1) Shri Subrata Datta, (2) Shri Ranadhir Deb (3) Shri Prasanta Dey and (4) Shri Pradeep Paul of Dimapur tried a lot to convince the accused and not to abandon the complainant in such a cruel manner, as he had already married the complainant and cohabited years together, but all efforts ended in futility as the accused in reply said that the giving of vermilion on complainant's forehead was pretext of marriage to over come the past situations and not at all a complete marriage and the accused repeatedly said that he had no option, but to abandon the complainant as his parents are not agreeable to accept the complainant as their daughter-in-law.\n 12. That, the accused not only induced the complainant and cohabited with her, giving her a false assurance of marriage but also fraudulently gave through certain marriage ceremony with knowledge that was not a valid marriage and thereby dishonestly made the complaint to believe that she was a lawfully married wife of the accused. The accused even committed the offence of miscarriage by compelling the complainant to undergo abortion twice against her free will. The way the accused exploited the complainant and abandoned her is nothing but an act of grave cruelty as the same has caused serious injury and danger to the complainant's health both mentally and physically, as such, the accused above named has committed Criminal offences punishable U/S 312/420/493/496/498-A of Indian Penal Code.\"\n This complaint was registered as Criminal Case No. 1/95 under Sections 312/420/493/496/498-A, Indian Penal Code and Bodhisattwa Gautam was summoned but he, in the meantime, filed a petition in the Gauhati High Court under Section 482 of the Code of Criminal Procedure for quashing of the complaint and the proceedings initiated on its basis, on the ground that the allegations, taken at their face-value, do not make out any case against him. But the High Court by its judgment and order dated May 12, 1995.dismissed the petition compelling Bodhisattwa Gautam to approach this Court by way of Special Leave Petition. Special Leave Petition (Criminal) No. 2675/95 was filed and was dismissed by us by our order dated October 20, 1995, in which we stated as under :- \"We see no ground to interfere with the impugned judgment of the High Court.\n We dismiss the special leave petition.\n Having done so, we further take suo motu notice to the facts of this case as narrated in the complainant which has been read before us. We issue notice to the petitioner as to why he should not be asked to pay reasonable maintenance per month to the respondent during the pendency of the prosecution proceedings against him. Mr. A. Bhattacharjee accepts notice.\n List it on 1.12.1995.\n Petitioner in person be present in Court on the next date of hearing.\n Notice be also sent to the respondent along with the copy of this order.\"\n Pursuant to the above order, Shri Bodhisattwa Gautam put in appearance and filed an affidavit in reply in which he denied the allegation made against him in the complaint and stated that the complaint was filed only to harass and humiliate him and, therefore, there was no occasion to direct him to pay any amount as maintenance to the respondent. He also indicated that although he had taken up service in another College, namely, Cachar College, his services had since been terminated. Para 4 of his affidavit in which these facts have been stated is reproduced below :- \"4. That I say that I am not in any employment now and I am an unemployed person after my services as a Lecturer in Cachar College, Silchar, has been terminated with effect from 16.7.1995 by a resolution of the Governing Body of the said College passed in a meeting held on 14.9.1995. A true copy of the proceedings of the said meeting of the Governing Body of Cachar College, Silchar held on 14.9.1995 is annexed hereto as Annexure - A1.\n The relevant resolution No. 5(A) of the said meeting of the Governing Body reads as follows :- \"Resolution No. 5(A): The Principal placed the leave petitions of Shri B.Gautam, Lecturer, Deptt. of Commerce, adding that Shri Gautam resumed his duties in the College on the re-opening day of the College after summer vacation, i.e., on 15th of July, 1995 and at first he sought leave for twenty one days and the for three years at a stretch.\n The Principal also stated that Shri B.\n Gautam was appointed against a lien vacancy for one year vice Dr. A.\n Mazumdar, the one-year lien having expired on 9.9.1995.\n The matter was thoroughly discussed and it was unanimously resolved that since Shri B. Gautam's term of appointment against lien vacancy had expired on 9.9.1995 and his service was not confirmed, (he did not complete even one full year's service), he cannot be granted three years' leave at a stretch as prayed for by him.\n Also resolved that as Shri B. Gautam has been absent from the College from 16th of July, 1995 and also the term of his appointment expired on 9.9.1995, Shri Gautam's service as lecturer in the Deptt. of Commerce in Cachar College, Silchar be treated as having been terminated w.e.f. 16th July, 1995.\n The Principal be requested to forward the above resolution to the D.P.I.\n Assam, for his kind approval of the termination of the services of Sri B.\n Gautam w.e.f. 16.7.1995.\"\n This resolution along with other resolutions passed in the said meeting held on 14.9.1995 were placed before the meeting of the Governing Body held subsequently on 11.11.1995 for confirmation. A true copy of the notice of meeting to be held on 11.11.1995 containing the agenda of the meeting is annexed hereto as Annexure - A2.\n Now I have been reliably informed that in the meeting of the Governing Body on 11.11.1995, the aforesaid resolution terminating my service has been confirmed. I further state that I have not received any payment towards my salary since July, 1995 and after the termination of my service with effect from 16.7.1995 no question of my receiving any salary arises.\n In the circumstances I respectfully submit that no question of burdening me with the liability of paying maintenance to the respondent can arise.\"\n The facts set out in the complaint lodged against Bodhisattwa Gautam indicate that there was initially a period of romance during which Bodhisattwa Gautam used to visit the house of Subhra Chakraborty and on one occasion, he told her that he was in love with her and ultimately succeeded, on the basis of his assurances to marry her, in developing sexual relationship with her with the tragic result that Subhra Chakraborty became pregnant. While in that state, she persuaded Gautam to marry her, but he, deferred the proposal on the plea that he had to take his parents' permission. He, however, agreed to marry her secretly. Consequently, on 20th September, 1993, Bodhisattwa Gautam took her before the God he worshiped and put Vermilion on her forehead and accepted her as his lawful wife. In spite of the secret marriage, he, through his insistence, succeeded in motivating her for an abortion which took place in a clinic at Kohima in October, 1993.\n Subhra Chakraborty became pregnant second time and at the instance of Bodhisattwa Gautam she had to abort again in April, 1994 in the Carewell Nursing Home at Dimapur where Gautam signed the consent paper and deliberately mentioned himself as Bikash Gautam.\n The Gauhati High Court, as already pointed out above, refused to quash the proceeding in Criminal Case No 1/95 pending in the Court of the Judicial Magistrate, Ist Class, Kohima and this Court has upheld the judgment of the Gauhati High Court. The question is whether any further order can be passed in the case and Gautam can be compelled to pay maintenance to Subhra Chakraborty during the pendency of the Criminal Case for which Show Cause Notice has been issued to him?\n This Court, as the highest Court of the country, has a variety of jurisdiction. Under Article 32 of the Constitution, it has the jurisdiction to enforce the Fundamental Rights guaranteed by the Constitution by issuing writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-Warranto and Certiorari. Fundamental Rights can be enforced even against private bodies and individuals. Even the right to approach the Supreme Court for the enforcement of the Fundamental Rights under Article 32 itself is a Fundamental Right. The jurisdiction enjoyed by this Court under Article 32 is very wide as this Court, while considering a petition for the enforcement of any of the Fundamental Rights guaranteed in Part III of the Constitution, can declare an Act to be ultra vires or beyond the competence of the legislature and has also the power to award compensation for the violation of the Fundamental Rights. See : Rudul Sah vs. State of Bihar : AIR 1983 SC 1086; Peoples' Union for Democratic Rights (through its Secretary & Anr.) vs. Police Commissioner, Delhi Police HQs.\n& Anr. : (1989) 4 SCC 730.\n For the exercise of this jurisdiction, it is not necessary that the person who is the victim of violation of his fundamental right should personally approach the Court as the Court can itself take cognizance of the matter and proceed suo motu or on a petition of any public spirited individual. This Court through its various decisions, has already given new dimensions, meaning and purpose to many of the fundamental rights especially the Right to Freedom and Liberty and Right to Life. The Directive Principles of the State Policy, have also been raised by this Court from their static and unenforceable concept to a level as high as that of the fundamental rights.\n This Court has, innumerable times, declared that \"Right to Life\" does not merely mean animal existence but means something more, namely, the right to live with human dignity. (See : Francis Coralie Mullin vs. The Administrator, Union Territory of Delhi & Ors., AIR 1981 SC 746; State of Maharashtra vs. Chandrabhan, AIR 1983 SC 803; Olga Tellis & Ors. vs. Bombay Municipal Corporation & Ors., AIR 1986 SC 180; and Delhi Transport Corporation vs. D.T.C.\nMazdoor Congress & Ors., AIR 1991 SC 101). Right to Life would, therefore, include all those aspects of life which go to make a life meaningful, complete and worth-living.\n Unfortunately, a woman, in our country, belongs to a class or group of society who are in a disadvantaged position on account of several social barriers and impediments and have, therefore, been the victim of tyranny at the hands of men with whom they, fortunately, under the Constitution enjoy equal status. Women also have the right to life and liberty; they also have the right to be respected and treated as equal citizens. Their honour and dignity cannot be touched or violated. They also have the right to lead an honourable and peaceful life. Women, in them, have many personalities combined. They are Mother, Daughter, Sister and Wife and not play things for centre spreads in various magazines, periodicals or newspapers nor can they be exploited for obscene purposes. They must have the liberty, the freedom and, of course, independence to live the roles assigned to them by Nature so that the society may flourish as they alone have the talents and capacity to shape the destiny and character of men anywhere and in every part of the world.\n Rape is thus not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushed her into deep emotional crises. It is only by her sheer will power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21.\nTo many feminists and psychiatrists, rape is less a sexual offence than an act of aggression aimed at degrating and humiliating women. The rape laws do not, unfortunately, take care of the social aspect of the matter and are inept in many respects.\n It is said that present days' law relating to rape have their origin in 1736 in Britain, when Sir Mathew Hale in his Historia Placitorum Cornea or, in other words, \"History of the pleas of the Crown\" presented common-law rape doctrines which were immediately noticed to be hostile to the interests of women as one of the requirement was to inform the jury during trial that rape charges were easy to bring but difficult to defend. Consequently, in a tide of law reforms, this requirement was removed. The rule of corroboration which was much stricter in a trial for the offence of rape than for other offences was also largely removed from law.\n In India also the rule of \"Corroboration of the Prosecutrix\" has undergone a change through statutory amendments as also through decisions of this Court.\n In State of Himachal Pradesh vs. Raghubir Singh, 1993(2) SCC 622, this Court observed as under :- \"There is no legal compulsion to look for corroboration of the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate her veracity. In the present case the evidence of the prosecutrix is found to be reliable and trustworthy. No corroboration was required to be looked for, though enough was available on the record. The medical evidence provided sufficient corroboration.\"\n In State of Karnataka vs. Mahabaleshwar Gourya Naik, AIR 1992 SC 2043 = 1992 Suppl. (3) SCC 179, the Court went to the extent of laying down that even if the victim of rape is not available to give evidence on account of her having committed suicide, the prosecution case cannot be thrown away over board. In such a case, the non-availability of the victim will not be fatal and the Court can record a conviction on the basis of the available evidence brought on record by the prosecution.\n In spite of the decision of this Court that (depending upon the circumstances of the case) corroboration of the prosecutrix was not necessary, the cases continued to end in acquittal on account of mishandling of the crime by the police and the invocation of the theory of \"consent\" by the Courts who tried the offence. To overcome this difficulty, the legislature intervened and introduced Section 114-A in the Evidence Act by Act No. 43 of 1983 reading as under:- 114-A. Presumption as to absence of consent in certain prosecutions for rape.- In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) or sub-section (2) of Section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.\"\n This Section enables a court to raise a presumption that the woman who was the victim of rape had not consented and that the offence was committed against her will. The situation, however, has hardly improved. Conviction rates for rape are still lower than any other major crime and the woman continue to argue even today that in rape cases the victimized women, rather than the rapists, were put on trial. A large number of women still fail to report rapes to the police because they fear embarrassing and insensitive treatment by the doctors, the law enforcement personnel and/or the cross-examining defence attorneys. The fear has to be allayed from the minds of women so that if and when this crime is committed, the victim may promptly report the matter to the police and on a chargesheet being submitted, the trial may proceed speedily without causing any embarrassment to the prosecutrix who may come in the witness box without fear psychosis.\n We may, at this stage, refer to a decision of this Court in Delhi Domestic Working Women's Forum vs. Union of India, 1995 (1) SCC 14, in which Court observed as under :- \"It is rather unfortunate that in recent times, there has been an increase in violence against women causing serious concern. Rape does indeed pose a series of problems for the criminal justice system. There are cries for harshest penalties, but often times such crimes eclipse the real plight of the victim.\n Rape is an experience which shakes the foundations of the lives of the victims.\n For many, its effect is a long-term one, impairing their capacity for personal relationships, altering their behaviour values and generating and less fears. In addition to the trauma of the rape itself, victims have had to suffer further agony during legal proceedings.\"\n This Court further observed as under :- \"The defects in the present system are : Firstly, complaints are handled roughly and are not even such attention as is warranted. The victims, more often than not, are humiliated by the police. The victims have invariably found rape trials a traumatic experience. The experience of giving evidence in court has been negative and destructive. The victims often say, they considered the ordeal to be even worse than the rape itself. Undoubtedly, the court proceedings added to and prolonged the psychological stress they had had to suffer as a result of the rape itself.\n In this background, it is necessary to indicate the broad parameters in assisting the victims of rape.\n(1) The complainants of sexual assault cases should be provided with legal representation. It is important to have some one who is well-acquainted with the criminal justice system. The role of the victim's advocate would not only be to explain to the victim the nature of the proceedings, to prepare her for the case and to assist her in the police station and in court but to provide her with guidance as to how she might obtain help of a different nature from other agencies, for example, mind counselling or medical assistance. It is important to secure continuity of assistance by ensuring that the same person who looked after the complainant's interests in the police station represent her till the end of the case.\n(2) Legal assistance will have to be provided at the police station since the victim of sexual assault might very well be in a distressed state upon arrival at the police station, the guidance and support of a lawyer at this stage and whilst she was being questioned would be of great assistance to her.\n(3) The police should be under a duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed.\n(4) A list of advocates willing to act in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.\n(5) The advocate shall be appointed by the court, upon application by the police at the earliest convenient movement, but in order to ensure that victims were questioned without undue delay, advocates would be authorised to act at the police station before leave of the court was sought or obtained.\n(6) In all rape trials anonymity of the victims must be maintained, as far as necessary.\n(7) It is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss. Some, for example, are too dramatized to continue in employment.\n(8) Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of the child but if this occurred as a result of the rape.\n In the present situation, the third respondent will have to evolve such scheme as to wipe out the fears of such unfortunate victims. Such a scheme shall be prepared within six months from the date of this judgment. Thereupon, the Union of India, will examine the same and shall take necessary steps for the implementation of the scheme at the earliest.\"\n This decision recognises the right of the victim for compensation by providing that it shall be awarded by the Court on conviction of the offender subject to the finalisation of Scheme by the Central Government. If the Court trying an offence of rape has jurisdiction to award the compensation at the final stage, there is no reason to deny to the Court the right to award interim compensation which should also be provided in the Scheme. On the basis of principles set out in the aforesaid decision in Delhi Domestic Working Women's Forum, the jurisdiction to pay interim compensation shall be treated to be part of the over all jurisdiction of the Courts trying the offences of rape which, as pointed out above is an offence against basic human rights as also the Fundamental Right of Personal Liberty and Life.\n Apart from the above, this Court has the inherent jurisdiction to pass any order it consists fit and proper in the interest of justice or to do complete justice between the parties.\n Having regard to the facts and circumstances of the present case in which there is a serious allegation that Bodhisattwa Gautam had married Subhra Chakraborty before the God he worshiped by putting Varmilion on her forehead and accepting her as his wife and also having impregnated her twice resulting in abortion on both the occasions, we, on being prima-facie satisfied, dispose of this matter by providing that Bodhisattwa Gautam shall pay to Subhra Chakraborty a sum of Rs. 1,000/- every month as interim compensation during the pendency of Criminal Case No. 1/95 in the court of Judicial Magistrate, 1st Class, Kohima, Nagaland. He shall also be liable to pay arrears of compensation at the same rate from the date on which the complaint was filed till this date. We may further observe that whatever has been said in this Judgment shall not, in any way, affect or prejudice the Magistrate from deciding the complaint on merits on the basis of the evidence as may be tendered before it and in accordance with law.\n"
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"text": "PETITIONER:\nC.I.T. (CENTRAL) CALCUTTA\n\n Vs.\n\nRESPONDENT:\nDAULAT RAM RAWATMULL\n\nDATE OF JUDGMENT12/09/1972"
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"text": "\n\nACT:\nIncome Tax-Tribunal-Findings of fact-By use of inadmissible,\nirrelevant material an issue of law arises."
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"text": "\n\nHEADNOTE:"
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"text": "The Tribunal based its decision that an amount of Rs. 5 Lacs\nin fixed deposit in the name of B represented the\nconcealed income of respondent firm on following\ncircumstances :\n(a) Explanation furnished by B with regard to the source of\nRs. 5,00,000 in proceedings relating to his personal\nassessment was found to be incorrect; (b) transfer of two\namounts of Rs. 5 lacs each from Calcutta to Bombay and\nthereafter to Jamnagar and the issue of fixed deposit\nreceipt by the bank in the name of the sons of partners of\nthe respondent firm; and (c) the use of the two receipts as\ncollateral security for the overdraft facility of Rs.\n10,00,000 afforded to the respondent firm."
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"text": "The High Court\nheld that the above material was not safe 'for holding that\nthe sum of Rs. 5,00,000 belonged to the respondent firm and\nthat the Tribunal had taken into consideration the material\nwhich was not relevant to the issue.\n"
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"text": "Dismissing the appeal,\nHELD : No case has been made for interfering with the\njudgment of the High Court."
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"text": "can be reviewed only on the ground that there is no\nevidence to support it or that it is perverse."
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"text": "Further,\nwhen a conclusion has been reached on an appreciation of a\nnumber of facts, whether that is sound or not must be deter-\nmined not by considering the weight to be attached to each\nsingle fact in isolation but by assessing the cumulative\neffect of all the facts 'in their [1957] 31 I.T.R. 28\nreferred to."
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"text": "\nSree Meenakshi Mills Ltd. v. Commissioner of Income Tax."
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"text": "\nBut, when a court of fact acts on material partly relevant\nand partly irrelevant, it, is impossible to say to what\nextent the mind of the court was affected by the irrelevant\nmaterial used by it in arriving at its finding."
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"text": "finding is vitiated because of the use of inadmissible\nmaterial and thereby an issue of law arises."
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"text": "Likewise, if\nthe court of fact bases its decision partly on conjectures,\nsurprises and suspicion and partly on evidence, in such a\nsituation an issue of law arises."
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"text": "[191F]\nDhirailal Gridharilal v. Commissioner of Income Tax, Bombay,\n[1954] 26 I.T.R. 736, Ddwarda (Inspector of Taxes) v.\nBairstow and Another, [1955] 28 I.T.R. 579 and Metha Parikh\nJUDGMENT:I.T.R. 181 referred to."
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"text": "\n In the present case the question for determination was not whether the amount of Rs. 5,00,000 belonged to B, but whether it belonged to the respondent firm."
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"text": "The fact that B has not been to give a satisfactory explanation regarding the source of Rs. 5,00,000 would not be decisive even of the matter as to whether B was or was not the owner of that amount."
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"text": "From the simple fact that the explanation regarding the source of money 185 furnished by A in whose name the money is lying in deposit, has been found to be false, it would be a remote and far fetched conclusion to hold that the money beyongs to B.\n"
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"text": "be in such a case no direct nexus between the facts found and the conclusion drawn therefrom."
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"text": "\nThe transfer of amount of Rs. 5,00,000 from Calcutta to Jamnagar for fixed deposit in the name of Band the use soon thereafter of the fixed deposit receipt as a security for overdraft, facility to the respondent firm did not justify the inference that the amount belonged to the respondent."
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"text": "\nThe approach of the Tribunal in this respect is manifestly erroneous because it is a common feature of commercial and other transactions that securities are offered by other persons to guarantee the payment of the amount which may be found due from the principal debtor."
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"text": "The concept of security and ownership are different and it would be a wholly erroneous approach to hold that a thing offered in security by a third person to guarantee the payment of debt due from the principal debtor belongs not to the surety but to the principal debtor."
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"text": "Further B offered security for the overdraft facility to a firm of which his father was a partner."
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"text": "In the circumstances, the fact that B received no consideration for offering fixed deposit receipt as security for the overdraft facility would not result in any inference against the respondent."
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"text": "[194C] (3) As it was the department which claimed that the amount of fixed deposit receipt belonged to the respondent firm even though the receipt had been issued in the name of B, the burden lay on the department to prove that the respondent was the owner of the amount."
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"text": "\nA simple way of discharging the onus and resolving the controversy was to trace the source and origin of the amount and find out its ultimate destination."
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"text": "So far as the source is concerned there was no material on the record to show that the amount came from the coffers of the respondent firm,"
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"text": "As regards the destination of the amount there was nothing to show that it went to the coffers of the respondent."
}
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"labels": [
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"text": "Thus both as regards the source as well as the destination of the amount, the material on the record gave no support to the claim of the department."
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"labels": [
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"start": 5209,
"text": "\n & CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1133 and 1134 of 1969."
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"end": 5435,
"labels": [
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],
"start": 5285,
"text": "\nAppeal by special leave from the judgment and order date# April 1, 1966 of the Calcutta High Court in Income-tax Refe- rences Nos. 53 and 54 of 1961."
}
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{
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"id": "ea1e53cd38194d1cb66c1adf33ad84a9",
"to_name": "text",
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"end": 5552,
"labels": [
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],
"start": 5435,
"text": "\nF. S. Nariman, Additional Solicitor-General of India, B.\nB. Ahuja S. P. Nayar and R. N. Sachthey, for the appellant."
}
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{
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"text": "\nB. Sen, N. R. Khaitan, O. P. Khaitan and B. P. Maheshwari, for the respondent."
}
},
{
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"labels": [
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"text": "\nThe Judgment of the Court was delivered by KHANNA , J."
}
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"end": 6330,
"labels": [
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],
"start": 5687,
"text": "This judgment would dispose of civil appeals No.\n1133 and 1134 of 1969 which have been filed by special leave by the Commissioner of Income Tax against the judgment of the Calcutta High Court in two references under section 66 of the Indian Income Tax Act, 1922 (hereinafter referred to as the Act) and the question which arises for determination is whether 186 there was relevant material before the Income Tax Appellate tribunal to hold that the sum of Rs. 5,00,000 in fixed deposit in the name of Biswanath Gupta (Bhuwalka) was the concealed income of the, respondent firm for the previous year corresponding to the assessment year 1946-47."
}
},
{
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"end": 6516,
"labels": [
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],
"start": 6331,
"text": "Appeal No. 1133 relates to the sum of Rs. 4,50,000 out of the above sum of Rs. 5,00,000, while appeal No. 1134 relates to the remaining sum of Rs. 50,000 out of the sum of Rs. 5,00,000."
}
},
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"labels": [
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],
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"text": "\n The assessee firm, who is the respondent inthese two appeals, is a registered firm consisting of six partners."
}
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{
"from_name": "label",
"id": "12ac89ee1a4b4252ace3188f008438e5",
"to_name": "text",
"type": "labels",
"value": {
"end": 6851,
"labels": [
"FAC"
],
"start": 6629,
"text": "The names. of the partners and their shares are given below Nandlal Bhuwalka /3/- Girdharilal Bhuwalka /3/- Shyamlal Bhuwalka /2/- Bajranglal Bhuwalka /2/- Bawatmal Nopany /3/- Ranieshwarlal Nopany -/3/-"
}
},
{
"from_name": "label",
"id": "0d1a35b28a9c4a8fbff7c66fca33fe59",
"to_name": "text",
"type": "labels",
"value": {
"end": 6955,
"labels": [
"FAC"
],
"start": 6852,
"text": "The respondent was carrying on business as dealers and commission agents in jute and other commodities."
}
},
{
"from_name": "label",
"id": "d8db267cecd9431b9f7e9b572b73efb5",
"to_name": "text",
"type": "labels",
"value": {
"end": 7004,
"labels": [
"FAC"
],
"start": 6956,
"text": "In addition to that it did speculative business."
}
},
{
"from_name": "label",
"id": "94a9ac3a4b734d4fbd6a81b08e538d93",
"to_name": "text",
"type": "labels",
"value": {
"end": 7160,
"labels": [
"FAC"
],
"start": 7005,
"text": "The respondent also acted as procuring agent for rice and paddy in certain areas for the Government of Bengal and received commission on such procurements."
}
},
{
"from_name": "label",
"id": "0c11d42ff7304eb5b9c2bbcab7f146bc",
"to_name": "text",
"type": "labels",
"value": {
"end": 7309,
"labels": [
"FAC"
],
"start": 7161,
"text": "The respondent was originally assessed on March 30, 1948 for the assessment year in question on the basis of an income of Rs. 4,71,752."
}
},
{
"from_name": "label",
"id": "073ecb6b2ce44b0fb8ff2975105aee86",
"to_name": "text",
"type": "labels",
"value": {
"end": 7371,
"labels": [
"FAC"
],
"start": 7309,
"text": "\n On appeal, the income assessed was reduced 'to Rs. 4,28,448."
}
},
{
"from_name": "label",
"id": "8fdf601f1d7b42f58385684aa050c9df",
"to_name": "text",
"type": "labels",
"value": {
"end": 7575,
"labels": [
"FAC"
],
"start": 7373,
"text": "On February 19, 1955 the Income Tax Officer issued notice under section 34 of the Act stating that he had reason to believe that the respondent's income assessable to income tax had been under-assessed."
}
},
{
"from_name": "label",
"id": "cb79bcbe14d744a59b3cb586a8e241cc",
"to_name": "text",
"type": "labels",
"value": {
"end": 7679,
"labels": [
"FAC"
],
"start": 7576,
"text": "He accordingly called upon the respondent to file return of income for the assessment year in question."
}
},
{
"from_name": "label",
"id": "f3557243b71e48f4a6716778a853df22",
"to_name": "text",
"type": "labels",
"value": {
"end": 7840,
"labels": [
"FAC"
],
"start": 7680,
"text": "In response to that notice, the respondent filed a return showing income in accordance with the original assessment as reduced in appeal, namely, Rs.\n 4,28,448."
}
},
{
"from_name": "label",
"id": "681af95f717c4bdba6e9c717aea5b8fe",
"to_name": "text",
"type": "labels",
"value": {
"end": 7924,
"labels": [
"FAC"
],
"start": 7841,
"text": "The Income Tax Officer thereafter examined the matter afresh and made reassessment."
}
},
{
"from_name": "label",
"id": "d70913a1f8604835aa747f02e753a918",
"to_name": "text",
"type": "labels",
"value": {
"end": 8456,
"labels": [
"FAC"
],
"start": 7925,
"text": "It was found by the Income Tax Officer that the respondent had obtained overdraft to the extent of Its. 10,00,000 from the, Central Bank of India Ltd. (hereinafter referred to as the Central Bank), Calcutta upon the security of two fixed deposit receipts of Rs. 5,00,000 each in the Central Bank, Jamnagar branch One of those fixed deposit receipts was dated Novem- ber 8, 1944 in the name of Raghunath Prasad Agarwal, who is the same person as Raghunath Prasad Nopany and is son of Rawatmal Nopany, partner of the respondent firm."
}
},
{
"from_name": "label",
"id": "6b8df31125d74afb959fdf9c7a8ba1a9",
"to_name": "text",
"type": "labels",
"value": {
"end": 8669,
"labels": [
"FAC"
],
"start": 8457,
"text": "The other fixes deposit receipt was dated November 21, 1944 in the name 187 of Biswanath Gupta (B. N. Gupta), who is the same person as Biswanath Bhuwalka and is son of Bajranglal, partner of the respondent firm."
}
},
{
"from_name": "label",
"id": "05b310aaa0674422aa8938b7c59c704b",
"to_name": "text",
"type": "labels",
"value": {
"end": 8897,
"labels": [
"FAC"
],
"start": 8670,
"text": "There was a third fixed deposit receipt of Rs. 5,00,000 issued by Central Bank Jamnagar branch in the name, of S. P. Agarwal, son of Rameshwarlal, partner of the respondent firm, but we are not much concerned with that receipt."
}
},
{
"from_name": "label",
"id": "29d94f1216144f0eacb7b357b69031b0",
"to_name": "text",
"type": "labels",
"value": {
"end": 9171,
"labels": [
"FAC"
],
"start": 8897,
"text": "\n Alhough the present appeals relate to the fixed deposit of Rs. 5,00,000 in the name of Biswanath, we may also set out them facts concerning the fixed deposit receipt in the name of Raghunath Prasad in so far as they are essential for appreciating the point of controversy."
}
},
{
"from_name": "label",
"id": "282100542cb045b5acd1e654421f5de5",
"to_name": "text",
"type": "labels",
"value": {
"end": 9349,
"labels": [
"FAC"
],
"start": 9172,
"text": "On November 2, 1944 an amount of Rs. 5,00,000 in cash was tendered to the Burrabazar Calcutta branch of the Central Bank for being transferred to Bombay head office of the Bank."
}
},
{
"from_name": "label",
"id": "c3606de9ac1241bdb82daad38d77fe5c",
"to_name": "text",
"type": "labels",
"value": {
"end": 9491,
"labels": [
"FAC"
],
"start": 9350,
"text": "The Bombay head office of the Bank issued thereafter demand draft No.\n36 for the amount of' Rs. 5,00,000 on- the Jamnagar branch of the Bank."
}
},
{
"from_name": "label",
"id": "897a031b30cd491baa9600a6c0e7f961",
"to_name": "text",
"type": "labels",
"value": {
"end": 9657,
"labels": [
"FAC"
],
"start": 9492,
"text": "On the basis of that demand draft, a fixed deposit receipt was issued by the Jamnagar branch of the Central Bank on November 8, 1944 in the name of Raghunath Prasad."
}
},
{
"from_name": "label",
"id": "d1701bba65f041a49f624b9523394799",
"to_name": "text",
"type": "labels",
"value": {
"end": 9734,
"labels": [
"FAC"
],
"start": 9658,
"text": "Jamnagar was at that time a ,part of the Indian princely State of Nawanagar."
}
},
{
"from_name": "label",
"id": "3edca7442c8a4eb6813cd2032c22a666",
"to_name": "text",
"type": "labels",
"value": {
"end": 9889,
"labels": [
"FAC"
],
"start": 9735,
"text": "Another amount of Rs. 5,00,000 was tendered to Central Bank Burrabazar Calcutta branch on November 15, 1944 for being transferred to,, Bombay head office."
}
},
{
"from_name": "label",
"id": "c27eb8f963ba421193cd91c67f2ea7fc",
"to_name": "text",
"type": "labels",
"value": {
"end": 10006,
"labels": [
"FAC"
],
"start": 9890,
"text": "The head office of the, Bank issued demand draft No. 41 in favour of Biswanath (B. N. Gupta) on its Jamnagar branch."
}
},
{
"from_name": "label",
"id": "66c97e4c780744ffaa0ea6945ac1fe07",
"to_name": "text",
"type": "labels",
"value": {
"end": 10166,
"labels": [
"FAC"
],
"start": 10007,
"text": "On the basis of that demand draft, the Jamnagar branch of the Bank issued a fixed deposit receipt in favour of Biswanath for Rs. 5,00,000 on November 21, 1944."
}
},
{
"from_name": "label",
"id": "0839a995bb924f319ce10899b85662f1",
"to_name": "text",
"type": "labels",
"value": {
"end": 10317,
"labels": [
"FAC"
],
"start": 10167,
"text": "On November 24, 1944 the respondent firm opened an overdraft account with the Central Bank Calcutta for being operated up to a limit of Rs. 10,00,000."
}
},
{
"from_name": "label",
"id": "bd211bd1e4814abb8151a598152951c8",
"to_name": "text",
"type": "labels",
"value": {
"end": 10695,
"labels": [
"FAC"
],
"start": 10318,
"text": "Letter of guarantee and letter of continuity were signed in that connection by Raghunath Prasad and Biswanath on December 2. 1944 at the Calcutta branch of the Central Bank along with a promote signed by the respondent firm for keeping the two fixed deposit receipts under lien of the Bank against overdraft facilities granted to the respondent for an, amount of Rs.\n10,00,000."
}
},
{
"from_name": "label",
"id": "9373bbc98556443dae572efc51ab1c1c",
"to_name": "text",
"type": "labels",
"value": {
"end": 11095,
"labels": [
"FAC"
],
"start": 10696,
"text": "At first it was taken to be a clean overdraft without any security, but on investigation the Income Tax authorities found that the overdraft facility had been granted to the respondent on the basis of the collateral security of the two fixed deposit receipts dated November 8, 1944 and November 21, 1944 issued by Jamnagar branch of the Bank in favour of Raghunath Prasad and Biswanath respectively."
}
},
{
"from_name": "label",
"id": "9512eb560bc6412a99429aecf6a373fa",
"to_name": "text",
"type": "labels",
"value": {
"end": 11299,
"labels": [
"FAC"
],
"start": 11096,
"text": "No consideration, was received by Raghunath Prasad and Biswanath for the accommodation that they extended to the respondent for giving their fixed deposit receipts in security for the overdraft facility."
}
},
{
"from_name": "label",
"id": "6c952b1dc3634301afc18fff735aa415",
"to_name": "text",
"type": "labels",
"value": {
"end": 11506,
"labels": [
"FAC"
],
"start": 11300,
"text": "188 Both Raghunath Prasad and Biswanath in their individual assessments for the assessment year 1947-48 claimed that the amount of Rs. 5,00,000 deposited by each of them in Jamnagar branch belonged to them."
}
},
{
"from_name": "label",
"id": "24c5fc6ab6ce4fd3aaf562b61fd9ae3f",
"to_name": "text",
"type": "labels",
"value": {
"end": 11836,
"labels": [
"FAC"
],
"start": 11507,
"text": "The Income Tax Officer held in the order of assessment dated February 20, 1958 made under section 34 read with section 23 of the Act that the amount of Rs. 10,00,000, consisting of the two items of Rs. 5,00,000 each in fixed deposit in the names of Raghunath Prasad and Biswanath, was the concealed profit of the respondent firm."
}
},
{
"from_name": "label",
"id": "49f4230e459c467ca69cbd2ee0db6ce1",
"to_name": "text",
"type": "labels",
"value": {
"end": 11928,
"labels": [
"FAC"
],
"start": 11837,
"text": "The amount of Rs. 10,00,000, besides several other amounts with which we are not concerned."
}
},
{
"from_name": "label",
"id": "763b409d76de40e1a39d681b8027a1d5",
"to_name": "text",
"type": "labels",
"value": {
"end": 11977,
"labels": [
"FAC"
],
"start": 11929,
"text": "was added to the total income of the respondent."
}
},
{
"from_name": "label",
"id": "79dc600d891a41088b0f11994642645d",
"to_name": "text",
"type": "labels",
"value": {
"end": 12204,
"labels": [
"FAC"
],
"start": 11977,
"text": "\nOn appeal the Appellate Assistant Commissioner as per order dated May 12, 1958 held that the respondent firm had been able to explain the source of Rs. 50,000 out of the fixed ,deposit of Rs. 5,00,000 in the name of Biswanath."
}
},
{
"from_name": "label",
"id": "cc3ae4199a0842ec974dbfd09bf10c1d",
"to_name": "text",
"type": "labels",
"value": {
"end": 12305,
"labels": [
"FAC"
],
"start": 12205,
"text": "The Appellate Assistant Commissioner, therefore, reduced the addition in this respect by Rs. 50,000."
}
},
{
"from_name": "label",
"id": "8d1aa496cb774de8947e6e3ae8bb47ab",
"to_name": "text",
"type": "labels",
"value": {
"end": 12511,
"labels": [
"FAC"
],
"start": 12306,
"text": "The Appellate Assistant Commissioner, however, maintained the addition to the total income of 'the respondent of Rs. 9,50,000, out of the sum of Rs. 10,00,000 ,on account of the two fixed deposit receipts."
}
},
{
"from_name": "label",
"id": "8d98b3c7d0af43439ff6053958913054",
"to_name": "text",
"type": "labels",
"value": {
"end": 12693,
"labels": [
"FAC"
],
"start": 12512,
"text": "Two cross appeals were filed before the Income Tax Appellate Tribunal against the order of the Appellate Assistant Commissioner, one by the assessee and the other by the department."
}
},
{
"from_name": "label",
"id": "8c2f2357bc7441f2aa0dca0184e6b05d",
"to_name": "text",
"type": "labels",
"value": {
"end": 13117,
"labels": [
"FAC"
],
"start": 12694,
"text": "In the appeal filed by the assessee the Tribunal, as per order dated August 11, 1959/ December 15, 1959, agreed with the Appellate Assistant Commissioner that the fixed deposit receipt of Rs. 5,00,000 in the name ,of Raghunath Prasad and the sum of Rs. 4,50,000 out of the fixed deposit of Rs. 5,00,000 in the name of Biswanath in Jamnagar branch of the Central Bank represented the concealed pro-fits of the assessee firm."
}
},
{
"from_name": "label",
"id": "f7b5b1694e604ca48f0fe71fab7316c8",
"to_name": "text",
"type": "labels",
"value": {
"end": 13431,
"labels": [
"FAC"
],
"start": 13118,
"text": "In the appeal filed by the department, which related to the deletion of the sum of Rs. 50,000, the Tribunal held, as per order dated July 29, 1960, that the sum of RS. 50,000 also out of the amount of Rs. 5,00,000 in fixed deposit in the name of Biswanath, represented the concealed income of the respondent firm."
}
},
{
"from_name": "label",
"id": "10321cf969964f18b20861d924226d1d",
"to_name": "text",
"type": "labels",
"value": {
"end": 13540,
"labels": [
"FAC"
],
"start": 13432,
"text": "Certain questions were thereafter referred under section 66(1) of the Act by the Tribunal to the High Court."
}
},
{
"from_name": "label",
"id": "da45c545022a4abdac40c6613878072a",
"to_name": "text",
"type": "labels",
"value": {
"end": 13603,
"labels": [
"FAC"
],
"start": 13541,
"text": "The Tribunal, however, declined to refer some other questions."
}
},
{
"from_name": "label",
"id": "32aea968a677423190c7695bf710020e",
"to_name": "text",
"type": "labels",
"value": {
"end": 13775,
"labels": [
"FAC"
],
"start": 13604,
"text": "Applications were thereafter filed under section 66(2) of the Act in the High Court for directions to the Tribunal to refer certain additional questions to the High Court."
}
},
{
"from_name": "label",
"id": "ab609ccc04ae47ffbf6072c0fae98785",
"to_name": "text",
"type": "labels",
"value": {
"end": 14000,
"labels": [
"FAC"
],
"start": 13776,
"text": "As per order dated January 16, 1962 the High Court directed 'the Tribunal to draw a statement of case and refer the following question (hereinafter for sake of convenience mentioned as ,question No. 1 ) to the High Court 189"
}
},
{
"from_name": "label",
"id": "731af4555f0a4b1eb9f2ef8b3171c34b",
"to_name": "text",
"type": "labels",
"value": {
"end": 14457,
"labels": [
"ISSUE"
],
"start": 14001,
"text": "\"Whether on the facts and in the.\n circumstances of the case, there was material before the Income Tax Appellate Tribunal to hold that the sum of Rs 5,00,000/- standing in the name of Raghunath Prasad Nopany and a sum of Rs. 4,50,000,/- out of a sum of Rs.\n 5,00,0001- in the name of Biswanath Bhuwalka representing the fixed deposits were the concealed income of the assessee firm for the relevant previous year for the assessment for the year 1946-47.\"\n "
}
},
{
"from_name": "label",
"id": "d87c6b34055f4d8c857d7ea2214852e4",
"to_name": "text",
"type": "labels",
"value": {
"end": 15054,
"labels": [
"FAC"
],
"start": 14457,
"text": "By another order made on the same day, viz., January 16, 1962, the High Court issued a direction to the Tribunal to draw a statement of case and refer the following question (hereinafter mentioned as question No. 2) to the High Court: \"Whether on the facts and in the circumstances of the case, there was material before the Income Tax Tribunal to hold that the sum of Rs. 50,000/- out of the sum of Rs. 5,00,0001- standing in the name of Biswanath Gupta (Bhuwalka) representing the fixed deposit was the concealed income of the assessee firm for the relevant year for the assessment year 1946-47."
}
},
{
"from_name": "label",
"id": "046f309017ff44b78e784aae0e82157a",
"to_name": "text",
"type": "labels",
"value": {
"end": 15496,
"labels": [
"RLC"
],
"start": 15055,
"text": "\"\n In the reference relating to question No. 1 about the sum of Rs. 5,00,000 in fixed deposit in the name of Raghunath Prasad and Rs. 4,50,000 out of Rs. 5,00,000 in the name of Biswanath, the High Court held that there was material before the tribunal to hold that the sum of Rs. 5,00,000 sanding in the name of Raghunath Prasad was the concealed income of the respondent firm for the relevant previous year for the assessment year 1946-47."
}
},
{
"from_name": "label",
"id": "3f73459c608e4eee97a219f899bc5215",
"to_name": "text",
"type": "labels",
"value": {
"end": 15732,
"labels": [
"RLC"
],
"start": 15497,
"text": "The High Court in this connection took note of the fact that Raghunath Prasad died in August 1945 and after his death the amount of Rs.\n 5,00,000 was not paid to his heirs but was adjusted against the overdraft of the respondent firm."
}
},
{
"from_name": "label",
"id": "864a2cfec1d84f308294341ffe028c89",
"to_name": "text",
"type": "labels",
"value": {
"end": 16006,
"labels": [
"RLC"
],
"start": 15733,
"text": "As regards the other sum of Rs. 5,00,000 in fixed deposit in the name of Biswanath, the High Court held that there was no material before the Tribunal to hold that it was the concealed income of the respondent for the relevant previous year for the assessment year 1946-47."
}
},
{
"from_name": "label",
"id": "7f3d06375916450d89038f74f2c69104",
"to_name": "text",
"type": "labels",
"value": {
"end": 16131,
"labels": [
"FAC"
],
"start": 16007,
"text": "The answer to the later part of question No. I as well as to question No. 2 was thus given in favour of the respondent firm."
}
},
{
"from_name": "label",
"id": "d8ee4b9dbf7b4a8f817f9df7d255745b",
"to_name": "text",
"type": "labels",
"value": {
"end": 16474,
"labels": [
"FAC"
],
"start": 16131,
"text": "\n The respondent, it may be stated, filed an appeal in this Court to assail the finding of the High Court 'in answer to question No-. 1 that there was material before the Tribunal to hold that the sum of Rs. 5,00,000 in fixed deposit in the name of Raghunath Prasad was the concealed income of the respondent for the previous year in question."
}
},
{
"from_name": "label",
"id": "5ef32d231a244bfe93f69f957274d52d",
"to_name": "text",
"type": "labels",
"value": {
"end": 16580,
"labels": [
"FAC"
],
"start": 16475,
"text": "The aforesaid appeal, No. CA 1035/67, was dismissed by this Court as per judgment dated January 18, 1971."
}
},
{
"from_name": "label",
"id": "eb364ae401e340a8b045a1c06f0f653b",
"to_name": "text",
"type": "labels",
"value": {
"end": 16869,
"labels": [
"ANALYSIS"
],
"start": 16581,
"text": "The present two appeals, as stated earlier, relate to the finding of 190 the High Court that there was no material before the Tribunal to hold that the sum of Rs. 5,00,000 in fixed deposit in the name of Biswanath was the concealed income of the respondent for the relevant previous year."
}
},
{
"from_name": "label",
"id": "cc21b0a54a0f40108c0260f0a8e93735",
"to_name": "text",
"type": "labels",
"value": {
"end": 17324,
"labels": [
"ANALYSIS"
],
"start": 16869,
"text": "\nIt may also be stated that in the reference which was made under section 66(i) of the Act by the Tribunal to the High Court, the High Court as per judgment dated April 1, 1966, went into the question as to whether the income tax officer was justified in reopening the assessment under section 34 of the Act and whether on the facts and circumstances of the case, cash credits and fixed deposits in question were assessable for the assessment year 194647."
}
},
{
"from_name": "label",
"id": "2e451d95380d4da7b7208e5904e7ab1b",
"to_name": "text",
"type": "labels",
"value": {
"end": 17388,
"labels": [
"ANALYSIS"
],
"start": 17325,
"text": "Both these questions were answered in favour of the department."
}
},
{
"from_name": "label",
"id": "5a3c486c9fc94005a4de5122cf2ccd2e",
"to_name": "text",
"type": "labels",
"value": {
"end": 17471,
"labels": [
"ANALYSIS"
],
"start": 17389,
"text": "The decision of the High Court in this respect is reported in (1967)64 I.T.R. 593:"
}
},
{
"from_name": "label",
"id": "4d82e776f9b5449389fb9f5ff019c4dd",
"to_name": "text",
"type": "labels",
"value": {
"end": 17683,
"labels": [
"ANALYSIS"
],
"start": 17472,
"text": "We have earlier mentioned that there was a third fixed deposit receipt of Rs 5,00,000 issued by the Central Bank Jamnagar branch in the name of S. P. Agarwal, son of Rameshwarlal, partner of the respondent firm."
}
},
{
"from_name": "label",
"id": "b0caaee948564b7b95b7901ebd24b458",
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"value": {
"end": 17868,
"labels": [
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],
"start": 17684,
"text": "This amount of Rs. 5,00,000 had also been tendered in cash in the Burrabazar Calcutta branch of the Central Bank in October 1944 with instructions to remit the name to Jamnagar branch."
}
},
{
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"value": {
"end": 18089,
"labels": [
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],
"start": 17869,
"text": "The fixed deposit in the name of S. P. Agarwal was used as a security for overdraft facility to Shri Hanuman Sugar Mills Ltd., in the managing agency of which the partners of the respondent firm had controlling interest."
}
},
{
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"end": 18248,
"labels": [
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],
"start": 18090,
"text": "The Tribunal held that the amount of Rs. 5,00,000 in fixed deposit in the name of S. P. Agarwal did not represent the concealed income of the respondent firm."
}
},
{
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"id": "dd7ad549214a43d0be246e79ef52d6af",
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"end": 18353,
"labels": [
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],
"start": 18249,
"text": "An application was filed by the Commissioner of Income Tax to refer the question to the High Court as to"
}
},
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"end": 18584,
"labels": [
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],
"start": 18354,
"text": "whether in the facts and circumstances of the case the inference of the Tribunal that the fixed deposit of Rs. 5,00,000 in the name of S. P. Agarwal did not represent the concealed income of the assessee firm was justified in law."
}
},
{
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"end": 18623,
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],
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"text": "The Tribunal rejected the application."
}
},
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"end": 18786,
"labels": [
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],
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"text": "The Commissioner then applied to the High Court of Calcutta for an order calling upon the Tribunal to state a case and refer the above question to the High Court,"
}
},
{
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"labels": [
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],
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"text": "The High Court rejected the application."
}
},
{
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"end": 18917,
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"text": "The Commissioner filed an appeal to this Court against the above order of the High Court."
}
},
{
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"id": "49ba6f4f6a024ea98077e0a15d4d11d7",
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"end": 18995,
"labels": [
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],
"start": 18917,
"text": "\nThe appeal of the Commissioner was dismissed by this Court on March 26, 1964."
}
},
{
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"value": {
"end": 19058,
"labels": [
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],
"start": 18996,
"text": "The judgment of this Court is reported in (1964)53 I.T.R. 575."
}
},
{
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"id": "ef88cc414eca44199a91c9c5449b0d79",
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"end": 19276,
"labels": [
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],
"start": 19058,
"text": "\nIn the appeal before us the learned Additional Solicitor General has taken us through the various orders which were made in the case and has contended that there was relevant material before the Tribunal to hold that."
}
},
{
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"id": "976f00189a804a8885a80a2ba677db51",
"to_name": "text",
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"value": {
"end": 19395,
"labels": [
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],
"start": 19277,
"text": "the sum of Rs.\n5,00,000 in fixed deposit in the name of Biswanath wag the concealed income of the 191 respondent firm."
}
},
{
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"id": "b32b198c31ad490bbddde1639e86e1d4",
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"end": 19507,
"labels": [
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],
"start": 19396,
"text": "The High Court, it is urged, was not justified in interfering with the finding in this respect of the Tribunal."
}
},
{
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"end": 19700,
"labels": [
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],
"start": 19508,
"text": "As against that Mr. Sen on behalf of the respondent submits that there was no relevant material before the Tribunal to hold that the sum in question was the concealed income of the respondent."
}
},
{
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"id": "2e9f0870552c4f219dc14430e73b1b94",
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"end": 19802,
"labels": [
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],
"start": 19701,
"text": "the answers given by the High Court, according to the learned counsel, should therefore be sustained."
}
},
{
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"id": "caccd4a7f9104b30ad73191072b28cf2",
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"end": 19945,
"labels": [
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],
"start": 19803,
"text": "Before dealing with the facts of this case, we may advert to the principles which should govern the decisions of the court in such like cases."
}
},
{
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"end": 20356,
"labels": [
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],
"start": 19946,
"text": "Findings on questions of pure fact arrived at by the Tribunal are not to be disturbed by the High Court on a reference unless it appears that there was no evidence before the Tribunal upon which they, as reasonable men, could come to the conclusion to which they have come; and this is so, even though the High Court would on the evidence have come to a conclusion entirely different from that of the Tribunal."
}
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{
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"id": "827c576ee2df4d54a4ff9529f276866a",
"to_name": "text",
"type": "labels",
"value": {
"end": 20486,
"labels": [
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],
"start": 20357,
"text": "In other words, such a finding can be reviewed only on the ground that there is no evidence to support it or that it is perverse."
}
},
{
"from_name": "label",
"id": "8d00ba7afaac411891e69ae5a0e3e2e7",
"to_name": "text",
"type": "labels",
"value": {
"end": 21070,
"labels": [
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],
"start": 20487,
"text": "Further, when a conclusion has been reached on an appreciation of a number of facts, whether that is sound or not must be determined, not by considering the weight to be attached to each single fact in isolation, but by assessing the cumulative effect of all the facts in their setting as a whole [Sree Meenakshi Mills Ltd. v. Commissioner of Income Tax, Madras(1)].\nWhen a court of fact acts on material partly relevant and partly irrelevant, it is impossible to say to what extent the mind of the court was affected by the irrelevant material used by it in arriving at its finding."
}
},
{
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"id": "81bdd5a8e4934a8d98cf6e5488249807",
"to_name": "text",
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"value": {
"end": 21177,
"labels": [
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],
"start": 21071,
"text": "Such a finding is vitiated because of the use of inadmissible material and thereby an issue of law arises."
}
},
{
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"id": "003688926f6a414c8690fb70d3f6b226",
"to_name": "text",
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"value": {
"end": 21408,
"labels": [
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],
"start": 21178,
"text": "Likewise, if the court of fact bases its decision partly on conjectures, surmises and suspicions and partly on evidence, in such a situation an issue of law arises [see Dhirajlal Girdharlal v. Commissioner of Income Tax, Bombay(1)"
}
},
{
"from_name": "label",
"id": "d2cea817741d4cf8bbfc8f6cf7e1466f",
"to_name": "text",
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"value": {
"end": 21537,
"labels": [
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],
"start": 21409,
"text": "In the case of Edwards (Inspector of Taxes) v. Bairstow and Another(3), the House of Lords dealt with this aspect of the matter."
}
},
{
"from_name": "label",
"id": "2831342c24f747ba94b447be59e4a0e9",
"to_name": "text",
"type": "labels",
"value": {
"end": 22031,
"labels": [
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],
"start": 21537,
"text": "\nViscount Simonds, in that case observed : \"For it is universally conceded that, though it is a pure finding of fact, it may be set aside on grounds which have been stated in various ways but are, I think, fairly summarised by saying that the court should take that course if it appears that the Commissioners have acted without any evidence or upon a view of the facts which could not reasonably be entertained.\"\n(1) [1957] 31 T.T.R. 28.\n(2) [1954] 26 I.T.R. 736.\n(3) [1955] 28 I.T.R. 579.\n192"
}
},
{
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"id": "3ec29ed534064e85a3ac320121568731",
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"value": {
"end": 22073,
"labels": [
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],
"start": 22032,
"text": "Lord Radcliffee expressed himself in the."
}
},
{
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"to_name": "text",
"type": "labels",
"value": {
"end": 22229,
"labels": [
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],
"start": 22074,
"text": "following words \"If the case contains anything ex facie which is bad law and which bears upon the determination, it is obviously erroneous in point of law."
}
},
{
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"id": "16fd709abf8c4a2d8651088ef20105c9",
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"value": {
"end": 22456,
"labels": [
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],
"start": 22230,
"text": "But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal."
}
},
{
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"id": "d33fc5a8437948c79bf185857b6e3d8f",
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"type": "labels",
"value": {
"end": 22512,
"labels": [
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],
"start": 22457,
"text": "In those circumstances, too, the court must intervene.\""
}
},
{
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"id": "60a695d6afee4ff19e91ba994b51b9be",
"to_name": "text",
"type": "labels",
"value": {
"end": 22671,
"labels": [
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],
"start": 22512,
"text": "\nThe above observations were relied upon by Bhagwati J.\n(speaking for the majority) in the case of Mehta Parikh & Co. v. Commissioner of Income Tax, Bombay(1)."
}
},
{
"from_name": "label",
"id": "fc33728563454664a39cfd2a0ddd62b1",
"to_name": "text",
"type": "labels",
"value": {
"end": 22988,
"labels": [
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],
"start": 22672,
"text": "The following proposition was laid down in that case : \"It follows, therefore, that facts proved or admitted may provide evidence to support further conclusions to be deduced from them, which conclusions may themselves be conclusions of fact and such inferences from facts proved or admitted could be matters of law."
}
},
{
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"id": "ac6b06076ab04ddda097657af7e775d7",
"to_name": "text",
"type": "labels",
"value": {
"end": 23336,
"labels": [
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],
"start": 22989,
"text": "The Court would be entitled to intervene if it appears that the fact finding authority has acted without any evidence or upon a view of the facts, which could not reasonably be entertained or the facts found are such that no person acting judicially and properly instructed as to the relevant law would have come to the determination in question.\""
}
},
{
"from_name": "label",
"id": "a7182c5428df44249129e26746a8a204",
"to_name": "text",
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"value": {
"end": 23431,
"labels": [
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],
"start": 23336,
"text": "\nKeeping the principles enunciated above in view, let us examine the facts of the present case."
}
},
{
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"id": "5d744fb749344c6891ca1a865cd1c08c",
"to_name": "text",
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"value": {
"end": 24252,
"labels": [
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],
"start": 23432,
"text": "The Tribunal in arriving at the conclusion that the amount of Rs. 5,00,000 in fixed deposit in the name of Biswanath was the concealed income of the respondent firm based its decision on the following circumstances (1) Explanation furnished by Biswanath with regard to the source of Rs. 5,00,000 in proceedings relating to his personal assessment was found to be incorrect.\n (2) The transfer of the two amounts of Rs.\n 5,00,000 each from Calcutta to Bombay and thereafter to Jamnagar and the issue of fixed deposit receipts by the Bank in the name of the sons of the partners of the respondent firm.\n (3) The use of the above mentioned two receipts as collateral security for the overdraft facility of Rs. 10,00,000 afforded to the respondent firm."
}
},
{
"from_name": "label",
"id": "25f696a7c5824b959dc5b331b9da2da1",
"to_name": "text",
"type": "labels",
"value": {
"end": 24281,
"labels": [
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],
"start": 24252,
"text": "\n(1) (1956) 30 I.T.R. 181 193"
}
},
{
"from_name": "label",
"id": "a3fca5990f8a49d2be42ca8b1b2d7205",
"to_name": "text",
"type": "labels",
"value": {
"end": 24523,
"labels": [
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],
"start": 24282,
"text": "The High Court took the view that the above material was not sufficient for holding that the sum of Rs. 5,00,000 belonged to the respondent firm and that the Tribunal had taken into consideration material which was not relevant to the issue."
}
},
{
"from_name": "label",
"id": "04031e88aaf1461a9250184dc3a6e11d",
"to_name": "text",
"type": "labels",
"value": {
"end": 24669,
"labels": [
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],
"start": 24523,
"text": "\nWe have given the matter our consideration and are of the opinion that no case has been made for interfering with the judgment of the High Court."
}
},
{
"from_name": "label",
"id": "f9decc3ed7a6405dbf308ab3f786750c",
"to_name": "text",
"type": "labels",
"value": {
"end": 24890,
"labels": [
"ANALYSIS"
],
"start": 24670,
"text": "The explanation furnished about the source of Rs. 5,00,000 in fixed deposit in the name of Biswanath was that he had kept an amount of Rs. 4,50,000 with M/s Soorajmal Nagarmal and Rs. 50,000 in deposit with Comilla Bank."
}
},
{
"from_name": "label",
"id": "10121ce6f63a49558c27f658d31163e9",
"to_name": "text",
"type": "labels",
"value": {
"end": 25094,
"labels": [
"ANALYSIS"
],
"start": 24891,
"text": "The amount of Rs. 4,50,000 was stated to- have been withdrawn by Biswanath from M/s Soorajmal Nagarmal in January 1941, while the other amount of Rs. 50,000 was withdrawn from Comilla Bank in March 1942."
}
},
{
"from_name": "label",
"id": "849939bdab87427c8803c8e3b97e0d05",
"to_name": "text",
"type": "labels",
"value": {
"end": 25239,
"labels": [
"ANALYSIS"
],
"start": 25095,
"text": "The amount of Rs. 5,00,000 was then transferred by Biswanath to his native place Ratangarh (Desh) in Rajasthan due to bombing panic in Calcutta."
}
},
{
"from_name": "label",
"id": "1fb498d6e30744658278dcf4897b5d59",
"to_name": "text",
"type": "labels",
"value": {
"end": 25323,
"labels": [
"ANALYSIS"
],
"start": 25240,
"text": "When war situation improved, the money was taken from Desh to Jamnagar for deposit."
}
},
{
"from_name": "label",
"id": "4a880a1d48c04a889c6db839db146043",
"to_name": "text",
"type": "labels",
"value": {
"end": 25660,
"labels": [
"ANALYSIS"
],
"start": 25324,
"text": "This explanation was found to be false in view-of the admitted position that the amount of Rs. 5,00,000 in fixed deposit in the name. of Biswanath in Jamnagar bank had been tendered at Burrabazar Calcutta branch of Central Bank on November. .15. 1944 and thereafter was transferred through Bombay head office' of.\nthe Bank, to Jamnagar."
}
},
{
"from_name": "label",
"id": "5e2763d52f2e4d498aedb4240c1151c7",
"to_name": "text",
"type": "labels",
"value": {
"end": 25749,
"labels": [
"ANALYSIS"
],
"start": 25661,
"text": "There were also,. other circumstances which pointed to falsity of the above explanation."
}
},
{
"from_name": "label",
"id": "827fd78e9ed444aa99c851d2b2c1dcda",
"to_name": "text",
"type": "labels",
"value": {
"end": 25926,
"labels": [
"ANALYSIS"
],
"start": 25750,
"text": "The falsity the above explanation of Biswanath, in the opinion of the High Court. did not warrant the conclusion that the amount of Rs. 5,00,000 lakhs belonged to the assessee."
}
},
{
"from_name": "label",
"id": "72d9fb14cf0b4a669824f09c146f9fc5",
"to_name": "text",
"type": "labels",
"value": {
"end": 26001,
"labels": [
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],
"start": 25927,
"text": "We can find no flaw or infirmity in the above reasoning of the High Court."
}
},
{
"from_name": "label",
"id": "3da1bba0c79e45c8afe64d9cbd33262a",
"to_name": "text",
"type": "labels",
"value": {
"end": 26171,
"labels": [
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],
"start": 26002,
"text": "The question which arose for determination in this case was not whether the amount of Rs. 5,00,000 belonged to Biswanath, but whether it belonged to the respondent firm."
}
},
{
"from_name": "label",
"id": "4a1e3771628a41419f499ee5440b3fc1",
"to_name": "text",
"type": "labels",
"value": {
"end": 26392,
"labels": [
"ANALYSIS"
],
"start": 26172,
"text": "The fact that Biswanath has not been able to give a satisfactory explanation regardIng the source of Rs. 5,00,000 would not be decisive, even of the matter as to whether Biswanath was or was not the owner of that amount."
}
},
{
"from_name": "label",
"id": "8124291712714658970bdc60c911e72f",
"to_name": "text",
"type": "labels",
"value": {
"end": 26561,
"labels": [
"ANALYSIS"
],
"start": 26393,
"text": "A person can still be held to be the owner of a sum of money even though the explanation furnished by him regarding the source of that money is found to be not correct."
}
},
{
"from_name": "label",
"id": "cac996c51bc04600b9a1c72d59d051d0",
"to_name": "text",
"type": "labels",
"value": {
"end": 26809,
"labels": [
"ANALYSIS"
],
"start": 26562,
"text": "From the simple fact that the explanation regarding the source of money furnished by A, in- whose name the money is lying in deposit, has been found to be false, it 'would be a remote and far fetched conclusion to hold that the money belongs to B."
}
},
{
"from_name": "label",
"id": "04574c42f5034155a88b2cab704af8f4",
"to_name": "text",
"type": "labels",
"value": {
"end": 26915,
"labels": [
"ANALYSIS"
],
"start": 26810,
"text": "There would be in such a case no direct nexus between the facts found and the conclusion drawn therefrom."
}
},
{
"from_name": "label",
"id": "ce8ac81803954606a6a3992fa2a717a1",
"to_name": "text",
"type": "labels",
"value": {
"end": 27365,
"labels": [
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],
"start": 26915,
"text": "\nWe also see no cogent ground to take a view different from that of the High Court that the other circumstances, namely, the 4--L348SupCI/73 194 transfer of the amount of Rs. 5,00,000 from Calcutta to Jamnagar for fixed deposit in the name of Biswanath and the use soon thereafter of the said fixed deposit receipt as security for the overdraft facility to the respondent firm did not justify the inference that the amount belonged to the respondent."
}
},
{
"from_name": "label",
"id": "82e23b682f3d48aa9754636f5eacaa41",
"to_name": "text",
"type": "labels",
"value": {
"end": 27558,
"labels": [
"ANALYSIS"
],
"start": 27366,
"text": "The material on record indicates that the facility of overdraft on the security of the fixed deposit receipt in the name of Biswanath was enjoyed by the assessee firm for a little over a year."
}
},
{
"from_name": "label",
"id": "ba3895119c1843ceab7582fe84614004",
"to_name": "text",
"type": "labels",
"value": {
"end": 27714,
"labels": [
"ANALYSIS"
],
"start": 27559,
"text": "The Tribunal in this context observed that \"it is difficult to see how the firm could obtain an overdraft upon a fixed deposit by B. N. Gupta (Biswanath)\"."
}
},
{
"from_name": "label",
"id": "e9343d8404e64bb79bffeba96ddbd8df",
"to_name": "text",
"type": "labels",
"value": {
"end": 28003,
"labels": [
"ANALYSIS"
],
"start": 27715,
"text": "The, approach of the Tribunal in this respect, in our opinion was manifestly erroneous because it is a common feature of commercial and other transactions that securities are offered by other persons to guarantee the payment of the amount which may be found due from the principal debtor."
}
},
{
"from_name": "label",
"id": "4a1f84a58b9545deb200d2ecd6f9e0b5",
"to_name": "text",
"type": "labels",
"value": {
"end": 28277,
"labels": [
"ANALYSIS"
],
"start": 28004,
"text": "The. concept of security and ownership are different and it would be a wholly erroneous approach to hold that a thing offered in security by a third person to guarantee the payment of debt due from the principal debtor belongs not to the surety but to the principal debtor."
}
},
{
"from_name": "label",
"id": "71fe3be830204859bdce46e31c45fff1",
"to_name": "text",
"type": "labels",
"value": {
"end": 28467,
"labels": [
"ANALYSIS"
],
"start": 28278,
"text": "the Tribunal has, also referred to the fact that no con- sideration passed to Biswanath for offering the fixed deposit receipt as security for the overdraft facility to the respondent firm."
}
},
{
"from_name": "label",
"id": "7cd0ea732e554648ae3faf658b5d3bbd",
"to_name": "text",
"type": "labels",
"value": {
"end": 28618,
"labels": [
"ANALYSIS"
],
"start": 28468,
"text": "This circumstance, in our opinion, is of a natural character and has no material bearing for determining the ownership of the amount in fixed deposit."
}
},
{
"from_name": "label",
"id": "dc7028ba9e42446a8e447168a9df86f2",
"to_name": "text",
"type": "labels",
"value": {
"end": 28714,
"labels": [
"ANALYSIS"
],
"start": 28618,
"text": "\nSureties quite often offer security without receipt of consideration from the principal debtor."
}
},
{
"from_name": "label",
"id": "a24d143c20ec4e9ca2c1a00111f4b831",
"to_name": "text",
"type": "labels",
"value": {
"end": 28894,
"labels": [
"ANALYSIS"
],
"start": 28715,
"text": "So far as the present case is concerned, we cannot be oblivious of the fact that Biswanath offered security for the overdraft facility to a firm of which his father was a partner."
}
},
{
"from_name": "label",
"id": "a7593c6ec43d45e7a8f871f2eb248324",
"to_name": "text",
"type": "labels",
"value": {
"end": 29103,
"labels": [
"ANALYSIS"
],
"start": 28895,
"text": "In the circumstances, the, fact that Biswanath received no consideration for offering the fixed deposit receipt as security for the overdraft facility would not result in any inference against the respondent."
}
},
{
"from_name": "label",
"id": "0544f238a22f425e9e1102e396f14d65",
"to_name": "text",
"type": "labels",
"value": {
"end": 29850,
"labels": [
"ANALYSIS"
],
"start": 29103,
"text": "\nAlthough the proceedings under section 34 of the Act in the present case were started in 1955, after the lapse of about nine years since the time Biswanath had offered the fixed deposit receipt as security for the overdraft facility to the respondent firm, no material was brought on the record to show that the aforesaid sum of Rs. 5,00,000 in the name of Biswanath went to the coffers of the respondent firm or was adjusted towards its liability as was done in respect of the amount of Rs. 5,00,000 which had been deposited in the name of Raghunath Prasad. Had the sum of Rs. 5,00,000 deposited in the name of Biswanath been ultimately utilised by the respondent firm, the income tax authorities must have brought material on record about that."
}
},
{
"from_name": "label",
"id": "f5ce7b48bc684cddb8ef7f4d4402052d",
"to_name": "text",
"type": "labels",
"value": {
"end": 29942,
"labels": [
"ANALYSIS"
],
"start": 29850,
"text": "\nThe onus to prove that the apparent is not the real is on the party who claims it to be so."
}
},
{
"from_name": "label",
"id": "4f8fac420ae143e69f465415c39ac74b",
"to_name": "text",
"type": "labels",
"value": {
"end": 30278,
"labels": [
"ANALYSIS"
],
"start": 29943,
"text": "As it was the department which 195 claimed that the amount of fixed deposit receipt belonged to the respondent firm even though the receipt had been issued in the name of Biswanath, the burden lay on the department to prove that the respondent was the owner of the amount despite the fact that the receipt was in the name of Biswanath."
}
},
{
"from_name": "label",
"id": "d031d6c7e07f4719ad268b41207ee4eb",
"to_name": "text",
"type": "labels",
"value": {
"end": 30433,
"labels": [
"ANALYSIS"
],
"start": 30279,
"text": "A simple way of discharging the onus and resolving the controversy was to trace the source and origin of the amount and find out its ultimate destination."
}
},
{
"from_name": "label",
"id": "1957c1205c6c425f92ce575b650f221a",
"to_name": "text",
"type": "labels",
"value": {
"end": 30696,
"labels": [
"ANALYSIS"
],
"start": 30434,
"text": "So far as the source is concerned, there is no material on the record to show that the amount came from the coffers of the respondent firm or that it was tendered in Burrabazar Calcutta branch of the Central Bank on November 15, 1944 on behalf of the respondent."
}
},
{
"from_name": "label",
"id": "d7a4e6e7b2b6474293e98307c6937730",
"to_name": "text",
"type": "labels",
"value": {
"end": 30845,
"labels": [
"ANALYSIS"
],
"start": 30697,
"text": "As regards the destination of the amount, it has already been mentioned that there is nothing to show that it went to the coffers of the respondent."
}
},
{
"from_name": "label",
"id": "3629e0cf14d042a0b912dcf7db314c67",
"to_name": "text",
"type": "labels",
"value": {
"end": 30952,
"labels": [
"ANALYSIS"
],
"start": 30846,
"text": "On the contrary, there is positive evidence that the amount was received by Biswanath on January 22, 1946."
}
},
{
"from_name": "label",
"id": "d7867338962c4e14b0e1e139e2a5054f",
"to_name": "text",
"type": "labels",
"value": {
"end": 31047,
"labels": [
"ANALYSIS"
],
"start": 30953,
"text": "It would thus follow that both as regards the source as well as the destination of the amount."
}
},
{
"from_name": "label",
"id": "6aaf8efcd2c04ebcb2a2a690fe612c91",
"to_name": "text",
"type": "labels",
"value": {
"end": 31124,
"labels": [
"ANALYSIS"
],
"start": 31048,
"text": "the material on the record gives no support to the. claim of the department."
}
},
{
"from_name": "label",
"id": "2176835a51ae45b69b55569080f1d989",
"to_name": "text",
"type": "labels",
"value": {
"end": 31565,
"labels": [
"ANALYSIS"
],
"start": 31125,
"text": "Learned Additional Solicitor General has urged that the close proximity of time between the transfer of the amount of Rs. 5,00,000 from Calcutta for the issue of fixed deposit receipt in the name of Biswanath at Jamnagar and the opening of overdraft account of respondent firm in Calcutta with the said fixed deposit receipt constituting security for the overdraft account would show that the said amount in fact belonged to the respondent."
}
},
{
"from_name": "label",
"id": "50462fe9980b44e7bffb68a0f045f1f9",
"to_name": "text",
"type": "labels",
"value": {
"end": 31773,
"labels": [
"ANALYSIS"
],
"start": 31566,
"text": "We find it difficult to accede to this submission because the benefit received by the respondent by the use of the said receipt as a collateral security for overdraft facility was only of a temporary nature."
}
},
{
"from_name": "label",
"id": "1ccd33969fd0482092ac7289e5960646",
"to_name": "text",
"type": "labels",
"value": {
"end": 31888,
"labels": [
"ANALYSIS"
],
"start": 31774,
"text": "The receipt remained in the name of Biswanath and it was he who got the amount of the receipt on January 22, 1946."
}
},
{
"from_name": "label",
"id": "19163efdb45045ca8dd43ce8c8020b08",
"to_name": "text",
"type": "labels",
"value": {
"end": 32002,
"labels": [
"ANALYSIS"
],
"start": 31888,
"text": "\nReference was also made by the Additional Solicitor General to the order of the Appellate Assistant Commissioner."
}
},
{
"from_name": "label",
"id": "df36013d545b4d0ca9b7e4c3c2b02a30",
"to_name": "text",
"type": "labels",
"value": {
"end": 32103,
"labels": [
"ANALYSIS"
],
"start": 32003,
"text": "It is stated that the said order is much more elaborate and the Tribunal has made note of this fact."
}
},
{
"from_name": "label",
"id": "db9a7812a4694388addf213126fe8243",
"to_name": "text",
"type": "labels",
"value": {
"end": 32223,
"labels": [
"ANALYSIS"
],
"start": 32104,
"text": "In this respect we find that the order of the Appellate Assistant Commissioner is vitiated by two factual inaccuracies."
}
},
{
"from_name": "label",
"id": "56873344248340f8b2427b8edacea980",
"to_name": "text",
"type": "labels",
"value": {
"end": 32457,
"labels": [
"ANALYSIS"
],
"start": 32224,
"text": "According to the said order, the amount of the fixed deposit receipt in the name of Biswanath was received in Calcutta on November 25, 1946 and was transferred to the credit of the respondent firm against the overdraft with the Bank."
}
},
{
"from_name": "label",
"id": "3282c990992441fe8870a97f0dbcf799",
"to_name": "text",
"type": "labels",
"value": {
"end": 32661,
"labels": [
"ANALYSIS"
],
"start": 32458,
"text": "This observation was incorrect because there is ample material on record to show that the amount of the fixed deposit receipt was received, as mentioned earlier, on January 22, 1946 by Biswanath himself."
}
},
{
"from_name": "label",
"id": "b0e61c663ece4c1ea7fed26e1f836a87",
"to_name": "text",
"type": "labels",
"value": {
"end": 32728,
"labels": [
"ANALYSIS"
],
"start": 32662,
"text": "He also, it would appear, got the interest due on the said amount."
}
},
{
"from_name": "label",
"id": "eeaa5707433042f8b18fd27b4090edab",
"to_name": "text",
"type": "labels",
"value": {
"end": 32920,
"labels": [
"ANALYSIS"
],
"start": 32729,
"text": "196 The other factual inaccuracy which crept into the order of the, Appellate Assistant Commissioner was his assumption that the shares of the two groups of Nopany's and Bhuwalkas were equal."
}
},
{
"from_name": "label",
"id": "0346d88dddc24508bdd7e9aef102729a",
"to_name": "text",
"type": "labels",
"value": {
"end": 33061,
"labels": [
"ANALYSIS"
],
"start": 32921,
"text": "It was observed by the Appellate Assistant Commissioner : \"The appellant firm itself consists of two groups of partners Nopany and Bhuwalka."
}
},
{
"from_name": "label",
"id": "df51708901e6490a91d027572deeff14",
"to_name": "text",
"type": "labels",
"value": {
"end": 33090,
"labels": [
"ANALYSIS"
],
"start": 33062,
"text": "Each group had equal shares."
}
},
{
"from_name": "label",
"id": "ce6c2e6b2ac64d15936fe9c911c8b44c",
"to_name": "text",
"type": "labels",
"value": {
"end": 33172,
"labels": [
"ANALYSIS"
],
"start": 33091,
"text": "Raghunath Prasad belongs to the Nopany group and Biswanath to the Bhuwalka group."
}
},
{
"from_name": "label",
"id": "a8f1fef731c0432482da0a34256789b3",
"to_name": "text",
"type": "labels",
"value": {
"end": 33280,
"labels": [
"ANALYSIS"
],
"start": 33173,
"text": "The amount offered for fixed deposits therefore corresponds to the profit sharing proportion of each group."
}
},
{
"from_name": "label",
"id": "80f444b4e7e34e9d88c38a3e6390b1b5",
"to_name": "text",
"type": "labels",
"value": {
"end": 33407,
"labels": [
"ANALYSIS"
],
"start": 33281,
"text": "This mass of evidence and circumstances could not be upset merely because the fixed deposits stood in two particular names.\"\n "
}
},
{
"from_name": "label",
"id": "7c078445e5644d4099702c4d4757a2a8",
"to_name": "text",
"type": "labels",
"value": {
"end": 33646,
"labels": [
"ANALYSIS"
],
"start": 33407,
"text": "The above factual assumption regarding the equality of shares- of the two groups was incorrect because it is the common case of the parties that the share of Bhuwalka group was 10 annas in a rupee and that of Nopany was 6 annas in a rupee."
}
},
{
"from_name": "label",
"id": "12a0d456d62f47df8b37fdaabaceaf15",
"to_name": "text",
"type": "labels",
"value": {
"end": 33864,
"labels": [
"ANALYSIS"
],
"start": 33646,
"text": "\n The Appellate Assistant Commissioner also took into account the fact that the office of the Central Bank in Burrabazar Calcutta is in the same building in which there are the business premises of the respondent firm."
}
},
{
"from_name": "label",
"id": "faded8134e4243e5947ca23623f473d1",
"to_name": "text",
"type": "labels",
"value": {
"end": 34052,
"labels": [
"RATIO"
],
"start": 33865,
"text": "This was, in our opinion, a wholly extraneous and irrelevant circumstance for determining the ownership of Rs. 5,00,000 which had been deposited in fixed deposit in the name of Biswanath."
}
},
{
"from_name": "label",
"id": "93854b9bc52f4f508a899d14f2723c3a",
"to_name": "text",
"type": "labels",
"value": {
"end": 34231,
"labels": [
"RATIO"
],
"start": 34053,
"text": "There should, in our opinion, be some direct nexus between the conclusion of fact arrived at by the authority concerned and the primary facts upon which that conclusion is based."
}
},
{
"from_name": "label",
"id": "cc7291b0acf14656a5b3be395a167cf5",
"to_name": "text",
"type": "labels",
"value": {
"end": 34507,
"labels": [
"RATIO"
],
"start": 34232,
"text": "The use of extraneous and irrelevant material in arriving at that conclusion would vitiate the conclusion of fact because it is difficult to predicate as to what extent the extraneous and irrelevant material has influenced the authority in Arriving at the conclusion of fact."
}
},
{
"from_name": "label",
"id": "9a004ee127004cbd9f7716bddd684e6f",
"to_name": "text",
"type": "labels",
"value": {
"end": 34600,
"labels": [
"NONE"
],
"start": 34507,
"text": "\n No case, in our opinion, has been made for interfering with the judgment of the High Court."
}
},
{
"from_name": "label",
"id": "7683cfa6245646339df42c13b26a9120",
"to_name": "text",
"type": "labels",
"value": {
"end": 34660,
"labels": [
"RPC"
],
"start": 34601,
"text": "The appeals consequently fail and are dismissed with costs."
}
},
{
"from_name": "label",
"id": "152abf7e69604f38b77a7df5343ce90f",
"to_name": "text",
"type": "labels",
"value": {
"end": 34676,
"labels": [
"RPC"
],
"start": 34661,
"text": "On hearing fee."
}
},
{
"from_name": "label",
"id": "952563de6b8f4a70b390418f59dc3139",
"to_name": "text",
"type": "labels",
"value": {
"end": 34684,
"labels": [
"NONE"
],
"start": 34676,
"text": "\n K.B.N."
}
},
{
"from_name": "label",
"id": "9065c6b30aea434fb02e4378c0c43213",
"to_name": "text",
"type": "labels",
"value": {
"end": 34720,
"labels": [
"NONE"
],
"start": 34685,
"text": " Appeals dismissed 197"
}
}
]
}
] | 1,745 | {
"text": "PETITIONER:\nC.I.T. (CENTRAL) CALCUTTA\n\n Vs.\n\nRESPONDENT:\nDAULAT RAM RAWATMULL\n\nDATE OF JUDGMENT12/09/1972\n\nBENCH:\n\nACT:\nIncome Tax-Tribunal-Findings of fact-By use of inadmissible,\nirrelevant material an issue of law arises.\n\nHEADNOTE:\nThe Tribunal based its decision that an amount of Rs. 5 Lacs\nin fixed deposit in the name of B represented the\nconcealed income of respondent firm on following\ncircumstances :\n(a) Explanation furnished by B with regard to the source of\nRs. 5,00,000 in proceedings relating to his personal\nassessment was found to be incorrect; (b) transfer of two\namounts of Rs. 5 lacs each from Calcutta to Bombay and\nthereafter to Jamnagar and the issue of fixed deposit\nreceipt by the bank in the name of the sons of partners of\nthe respondent firm; and (c) the use of the two receipts as\ncollateral security for the overdraft facility of Rs.\n10,00,000 afforded to the respondent firm. The High Court\nheld that the above material was not safe 'for holding that\nthe sum of Rs. 5,00,000 belonged to the respondent firm and\nthat the Tribunal had taken into consideration the material\nwhich was not relevant to the issue.\nDismissing the appeal,\nHELD : No case has been made for interfering with the\njudgment of the High Court.\n(1) Findings on questions of fact arrived at by the\nTribunal can be reviewed only on the ground that there is no\nevidence to support it or that it is perverse. Further,\nwhen a conclusion has been reached on an appreciation of a\nnumber of facts, whether that is sound or not must be deter-\nmined not by considering the weight to be attached to each\nsingle fact in isolation but by assessing the cumulative\neffect of all the facts 'in their [1957] 31 I.T.R. 28\nreferred to.\nSree Meenakshi Mills Ltd. v. Commissioner of Income Tax.\nMadras, [1957] 31 I.T.R. 28 referred to.\nBut, when a court of fact acts on material partly relevant\nand partly irrelevant, it, is impossible to say to what\nextent the mind of the court was affected by the irrelevant\nmaterial used by it in arriving at its finding. Such a\nfinding is vitiated because of the use of inadmissible\nmaterial and thereby an issue of law arises. Likewise, if\nthe court of fact bases its decision partly on conjectures,\nsurprises and suspicion and partly on evidence, in such a\nsituation an issue of law arises. [191F]\nDhirailal Gridharilal v. Commissioner of Income Tax, Bombay,\n[1954] 26 I.T.R. 736, Ddwarda (Inspector of Taxes) v.\nBairstow and Another, [1955] 28 I.T.R. 579 and Metha Parikh\nJUDGMENT:I.T.R. 181 referred to.\n In the present case the question for determination was not whether the amount of Rs. 5,00,000 belonged to B, but whether it belonged to the respondent firm. The fact that B has not been to give a satisfactory explanation regarding the source of Rs. 5,00,000 would not be decisive even of the matter as to whether B was or was not the owner of that amount. From the simple fact that the explanation regarding the source of money 185 furnished by A in whose name the money is lying in deposit, has been found to be false, it would be a remote and far fetched conclusion to hold that the money beyongs to B.\nThere would be in such a case no direct nexus between the facts found and the conclusion drawn therefrom.\nThe transfer of amount of Rs. 5,00,000 from Calcutta to Jamnagar for fixed deposit in the name of Band the use soon thereafter of the fixed deposit receipt as a security for overdraft, facility to the respondent firm did not justify the inference that the amount belonged to the respondent.\nThe approach of the Tribunal in this respect is manifestly erroneous because it is a common feature of commercial and other transactions that securities are offered by other persons to guarantee the payment of the amount which may be found due from the principal debtor. The concept of security and ownership are different and it would be a wholly erroneous approach to hold that a thing offered in security by a third person to guarantee the payment of debt due from the principal debtor belongs not to the surety but to the principal debtor. Further B offered security for the overdraft facility to a firm of which his father was a partner. In the circumstances, the fact that B received no consideration for offering fixed deposit receipt as security for the overdraft facility would not result in any inference against the respondent. [194C] (3) As it was the department which claimed that the amount of fixed deposit receipt belonged to the respondent firm even though the receipt had been issued in the name of B, the burden lay on the department to prove that the respondent was the owner of the amount.\nA simple way of discharging the onus and resolving the controversy was to trace the source and origin of the amount and find out its ultimate destination. So far as the source is concerned there was no material on the record to show that the amount came from the coffers of the respondent firm, As regards the destination of the amount there was nothing to show that it went to the coffers of the respondent. Thus both as regards the source as well as the destination of the amount, the material on the record gave no support to the claim of the department.\n & CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1133 and 1134 of 1969.\nAppeal by special leave from the judgment and order date# April 1, 1966 of the Calcutta High Court in Income-tax Refe- rences Nos. 53 and 54 of 1961.\nF. S. Nariman, Additional Solicitor-General of India, B.\nB. Ahuja S. P. Nayar and R. N. Sachthey, for the appellant.\nB. Sen, N. R. Khaitan, O. P. Khaitan and B. P. Maheshwari, for the respondent.\nThe Judgment of the Court was delivered by KHANNA , J. This judgment would dispose of civil appeals No.\n1133 and 1134 of 1969 which have been filed by special leave by the Commissioner of Income Tax against the judgment of the Calcutta High Court in two references under section 66 of the Indian Income Tax Act, 1922 (hereinafter referred to as the Act) and the question which arises for determination is whether 186 there was relevant material before the Income Tax Appellate tribunal to hold that the sum of Rs. 5,00,000 in fixed deposit in the name of Biswanath Gupta (Bhuwalka) was the concealed income of the, respondent firm for the previous year corresponding to the assessment year 1946-47. Appeal No. 1133 relates to the sum of Rs. 4,50,000 out of the above sum of Rs. 5,00,000, while appeal No. 1134 relates to the remaining sum of Rs. 50,000 out of the sum of Rs. 5,00,000.\n The assessee firm, who is the respondent inthese two appeals, is a registered firm consisting of six partners.The names. of the partners and their shares are given below Nandlal Bhuwalka /3/- Girdharilal Bhuwalka /3/- Shyamlal Bhuwalka /2/- Bajranglal Bhuwalka /2/- Bawatmal Nopany /3/- Ranieshwarlal Nopany -/3/- The respondent was carrying on business as dealers and commission agents in jute and other commodities. In addition to that it did speculative business. The respondent also acted as procuring agent for rice and paddy in certain areas for the Government of Bengal and received commission on such procurements. The respondent was originally assessed on March 30, 1948 for the assessment year in question on the basis of an income of Rs. 4,71,752.\n On appeal, the income assessed was reduced 'to Rs. 4,28,448.\n On February 19, 1955 the Income Tax Officer issued notice under section 34 of the Act stating that he had reason to believe that the respondent's income assessable to income tax had been under-assessed. He accordingly called upon the respondent to file return of income for the assessment year in question. In response to that notice, the respondent filed a return showing income in accordance with the original assessment as reduced in appeal, namely, Rs.\n 4,28,448. The Income Tax Officer thereafter examined the matter afresh and made reassessment. It was found by the Income Tax Officer that the respondent had obtained overdraft to the extent of Its. 10,00,000 from the, Central Bank of India Ltd. (hereinafter referred to as the Central Bank), Calcutta upon the security of two fixed deposit receipts of Rs. 5,00,000 each in the Central Bank, Jamnagar branch One of those fixed deposit receipts was dated Novem- ber 8, 1944 in the name of Raghunath Prasad Agarwal, who is the same person as Raghunath Prasad Nopany and is son of Rawatmal Nopany, partner of the respondent firm. The other fixes deposit receipt was dated November 21, 1944 in the name 187 of Biswanath Gupta (B. N. Gupta), who is the same person as Biswanath Bhuwalka and is son of Bajranglal, partner of the respondent firm. There was a third fixed deposit receipt of Rs. 5,00,000 issued by Central Bank Jamnagar branch in the name, of S. P. Agarwal, son of Rameshwarlal, partner of the respondent firm, but we are not much concerned with that receipt.\n Alhough the present appeals relate to the fixed deposit of Rs. 5,00,000 in the name of Biswanath, we may also set out them facts concerning the fixed deposit receipt in the name of Raghunath Prasad in so far as they are essential for appreciating the point of controversy. On November 2, 1944 an amount of Rs. 5,00,000 in cash was tendered to the Burrabazar Calcutta branch of the Central Bank for being transferred to Bombay head office of the Bank. The Bombay head office of the Bank issued thereafter demand draft No.\n36 for the amount of' Rs. 5,00,000 on- the Jamnagar branch of the Bank. On the basis of that demand draft, a fixed deposit receipt was issued by the Jamnagar branch of the Central Bank on November 8, 1944 in the name of Raghunath Prasad. Jamnagar was at that time a ,part of the Indian princely State of Nawanagar. Another amount of Rs. 5,00,000 was tendered to Central Bank Burrabazar Calcutta branch on November 15, 1944 for being transferred to,, Bombay head office. The head office of the, Bank issued demand draft No. 41 in favour of Biswanath (B. N. Gupta) on its Jamnagar branch. On the basis of that demand draft, the Jamnagar branch of the Bank issued a fixed deposit receipt in favour of Biswanath for Rs. 5,00,000 on November 21, 1944. On November 24, 1944 the respondent firm opened an overdraft account with the Central Bank Calcutta for being operated up to a limit of Rs. 10,00,000. Letter of guarantee and letter of continuity were signed in that connection by Raghunath Prasad and Biswanath on December 2. 1944 at the Calcutta branch of the Central Bank along with a promote signed by the respondent firm for keeping the two fixed deposit receipts under lien of the Bank against overdraft facilities granted to the respondent for an, amount of Rs.\n10,00,000. At first it was taken to be a clean overdraft without any security, but on investigation the Income Tax authorities found that the overdraft facility had been granted to the respondent on the basis of the collateral security of the two fixed deposit receipts dated November 8, 1944 and November 21, 1944 issued by Jamnagar branch of the Bank in favour of Raghunath Prasad and Biswanath respectively. No consideration, was received by Raghunath Prasad and Biswanath for the accommodation that they extended to the respondent for giving their fixed deposit receipts in security for the overdraft facility.\n188 Both Raghunath Prasad and Biswanath in their individual assessments for the assessment year 1947-48 claimed that the amount of Rs. 5,00,000 deposited by each of them in Jamnagar branch belonged to them.\nThe Income Tax Officer held in the order of assessment dated February 20, 1958 made under section 34 read with section 23 of the Act that the amount of Rs. 10,00,000, consisting of the two items of Rs. 5,00,000 each in fixed deposit in the names of Raghunath Prasad and Biswanath, was the concealed profit of the respondent firm. The amount of Rs. 10,00,000, besides several other amounts with which we are not concerned. was added to the total income of the respondent.\nOn appeal the Appellate Assistant Commissioner as per order dated May 12, 1958 held that the respondent firm had been able to explain the source of Rs. 50,000 out of the fixed ,deposit of Rs. 5,00,000 in the name of Biswanath. The Appellate Assistant Commissioner, therefore, reduced the addition in this respect by Rs. 50,000. The Appellate Assistant Commissioner, however, maintained the addition to the total income of 'the respondent of Rs. 9,50,000, out of the sum of Rs. 10,00,000 ,on account of the two fixed deposit receipts. Two cross appeals were filed before the Income Tax Appellate Tribunal against the order of the Appellate Assistant Commissioner, one by the assessee and the other by the department. In the appeal filed by the assessee the Tribunal, as per order dated August 11, 1959/ December 15, 1959, agreed with the Appellate Assistant Commissioner that the fixed deposit receipt of Rs. 5,00,000 in the name ,of Raghunath Prasad and the sum of Rs. 4,50,000 out of the fixed deposit of Rs. 5,00,000 in the name of Biswanath in Jamnagar branch of the Central Bank represented the concealed pro-fits of the assessee firm. In the appeal filed by the department, which related to the deletion of the sum of Rs. 50,000, the Tribunal held, as per order dated July 29, 1960, that the sum of RS. 50,000 also out of the amount of Rs. 5,00,000 in fixed deposit in the name of Biswanath, represented the concealed income of the respondent firm. Certain questions were thereafter referred under section 66(1) of the Act by the Tribunal to the High Court. The Tribunal, however, declined to refer some other questions. Applications were thereafter filed under section 66(2) of the Act in the High Court for directions to the Tribunal to refer certain additional questions to the High Court. As per order dated January 16, 1962 the High Court directed 'the Tribunal to draw a statement of case and refer the following question (hereinafter for sake of convenience mentioned as ,question No. 1 ) to the High Court 189 \"Whether on the facts and in the.\n circumstances of the case, there was material before the Income Tax Appellate Tribunal to hold that the sum of Rs 5,00,000/- standing in the name of Raghunath Prasad Nopany and a sum of Rs. 4,50,000,/- out of a sum of Rs.\n 5,00,0001- in the name of Biswanath Bhuwalka representing the fixed deposits were the concealed income of the assessee firm for the relevant previous year for the assessment for the year 1946-47.\"\n By another order made on the same day, viz., January 16, 1962, the High Court issued a direction to the Tribunal to draw a statement of case and refer the following question (hereinafter mentioned as question No. 2) to the High Court: \"Whether on the facts and in the circumstances of the case, there was material before the Income Tax Tribunal to hold that the sum of Rs. 50,000/- out of the sum of Rs. 5,00,0001- standing in the name of Biswanath Gupta (Bhuwalka) representing the fixed deposit was the concealed income of the assessee firm for the relevant year for the assessment year 1946-47. \"\n In the reference relating to question No. 1 about the sum of Rs. 5,00,000 in fixed deposit in the name of Raghunath Prasad and Rs. 4,50,000 out of Rs. 5,00,000 in the name of Biswanath, the High Court held that there was material before the tribunal to hold that the sum of Rs. 5,00,000 sanding in the name of Raghunath Prasad was the concealed income of the respondent firm for the relevant previous year for the assessment year 1946-47. The High Court in this connection took note of the fact that Raghunath Prasad died in August 1945 and after his death the amount of Rs.\n 5,00,000 was not paid to his heirs but was adjusted against the overdraft of the respondent firm. As regards the other sum of Rs. 5,00,000 in fixed deposit in the name of Biswanath, the High Court held that there was no material before the Tribunal to hold that it was the concealed income of the respondent for the relevant previous year for the assessment year 1946-47. The answer to the later part of question No. I as well as to question No. 2 was thus given in favour of the respondent firm.\n The respondent, it may be stated, filed an appeal in this Court to assail the finding of the High Court 'in answer to question No-. 1 that there was material before the Tribunal to hold that the sum of Rs. 5,00,000 in fixed deposit in the name of Raghunath Prasad was the concealed income of the respondent for the previous year in question. The aforesaid appeal, No. CA 1035/67, was dismissed by this Court as per judgment dated January 18, 1971. The present two appeals, as stated earlier, relate to the finding of 190 the High Court that there was no material before the Tribunal to hold that the sum of Rs. 5,00,000 in fixed deposit in the name of Biswanath was the concealed income of the respondent for the relevant previous year.\nIt may also be stated that in the reference which was made under section 66(i) of the Act by the Tribunal to the High Court, the High Court as per judgment dated April 1, 1966, went into the question as to whether the income tax officer was justified in reopening the assessment under section 34 of the Act and whether on the facts and circumstances of the case, cash credits and fixed deposits in question were assessable for the assessment year 194647. Both these questions were answered in favour of the department. The decision of the High Court in this respect is reported in (1967)64 I.T.R. 593: We have earlier mentioned that there was a third fixed deposit receipt of Rs 5,00,000 issued by the Central Bank Jamnagar branch in the name of S. P. Agarwal, son of Rameshwarlal, partner of the respondent firm. This amount of Rs. 5,00,000 had also been tendered in cash in the Burrabazar Calcutta branch of the Central Bank in October 1944 with instructions to remit the name to Jamnagar branch.\nThe fixed deposit in the name of S. P. Agarwal was used as a security for overdraft facility to Shri Hanuman Sugar Mills Ltd., in the managing agency of which the partners of the respondent firm had controlling interest. The Tribunal held that the amount of Rs. 5,00,000 in fixed deposit in the name of S. P. Agarwal did not represent the concealed income of the respondent firm. An application was filed by the Commissioner of Income Tax to refer the question to the High Court as to whether in the facts and circumstances of the case the inference of the Tribunal that the fixed deposit of Rs. 5,00,000 in the name of S. P. Agarwal did not represent the concealed income of the assessee firm was justified in law. The Tribunal rejected the application. The Commissioner then applied to the High Court of Calcutta for an order calling upon the Tribunal to state a case and refer the above question to the High Court, The High Court rejected the application. The Commissioner filed an appeal to this Court against the above order of the High Court.\nThe appeal of the Commissioner was dismissed by this Court on March 26, 1964. The judgment of this Court is reported in (1964)53 I.T.R. 575.\nIn the appeal before us the learned Additional Solicitor General has taken us through the various orders which were made in the case and has contended that there was relevant material before the Tribunal to hold that. the sum of Rs.\n5,00,000 in fixed deposit in the name of Biswanath wag the concealed income of the 191 respondent firm. The High Court, it is urged, was not justified in interfering with the finding in this respect of the Tribunal. As against that Mr. Sen on behalf of the respondent submits that there was no relevant material before the Tribunal to hold that the sum in question was the concealed income of the respondent. the answers given by the High Court, according to the learned counsel, should therefore be sustained.\nBefore dealing with the facts of this case, we may advert to the principles which should govern the decisions of the court in such like cases. Findings on questions of pure fact arrived at by the Tribunal are not to be disturbed by the High Court on a reference unless it appears that there was no evidence before the Tribunal upon which they, as reasonable men, could come to the conclusion to which they have come; and this is so, even though the High Court would on the evidence have come to a conclusion entirely different from that of the Tribunal. In other words, such a finding can be reviewed only on the ground that there is no evidence to support it or that it is perverse. Further, when a conclusion has been reached on an appreciation of a number of facts, whether that is sound or not must be determined, not by considering the weight to be attached to each single fact in isolation, but by assessing the cumulative effect of all the facts in their setting as a whole [Sree Meenakshi Mills Ltd. v. Commissioner of Income Tax, Madras(1)].\nWhen a court of fact acts on material partly relevant and partly irrelevant, it is impossible to say to what extent the mind of the court was affected by the irrelevant material used by it in arriving at its finding. Such a finding is vitiated because of the use of inadmissible material and thereby an issue of law arises. Likewise, if the court of fact bases its decision partly on conjectures, surmises and suspicions and partly on evidence, in such a situation an issue of law arises [see Dhirajlal Girdharlal v. Commissioner of Income Tax, Bombay(1) In the case of Edwards (Inspector of Taxes) v. Bairstow and Another(3), the House of Lords dealt with this aspect of the matter.\nViscount Simonds, in that case observed : \"For it is universally conceded that, though it is a pure finding of fact, it may be set aside on grounds which have been stated in various ways but are, I think, fairly summarised by saying that the court should take that course if it appears that the Commissioners have acted without any evidence or upon a view of the facts which could not reasonably be entertained.\"\n(1) [1957] 31 T.T.R. 28.\n(2) [1954] 26 I.T.R. 736.\n(3) [1955] 28 I.T.R. 579.\n192 Lord Radcliffee expressed himself in the. following words \"If the case contains anything ex facie which is bad law and which bears upon the determination, it is obviously erroneous in point of law. But, without any such misconception appearing ex facie, it may be that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the court must intervene.\"\nThe above observations were relied upon by Bhagwati J.\n(speaking for the majority) in the case of Mehta Parikh & Co. v. Commissioner of Income Tax, Bombay(1). The following proposition was laid down in that case : \"It follows, therefore, that facts proved or admitted may provide evidence to support further conclusions to be deduced from them, which conclusions may themselves be conclusions of fact and such inferences from facts proved or admitted could be matters of law. The Court would be entitled to intervene if it appears that the fact finding authority has acted without any evidence or upon a view of the facts, which could not reasonably be entertained or the facts found are such that no person acting judicially and properly instructed as to the relevant law would have come to the determination in question.\"\nKeeping the principles enunciated above in view, let us examine the facts of the present case. The Tribunal in arriving at the conclusion that the amount of Rs. 5,00,000 in fixed deposit in the name of Biswanath was the concealed income of the respondent firm based its decision on the following circumstances (1) Explanation furnished by Biswanath with regard to the source of Rs. 5,00,000 in proceedings relating to his personal assessment was found to be incorrect.\n (2) The transfer of the two amounts of Rs.\n 5,00,000 each from Calcutta to Bombay and thereafter to Jamnagar and the issue of fixed deposit receipts by the Bank in the name of the sons of the partners of the respondent firm.\n (3) The use of the above mentioned two receipts as collateral security for the overdraft facility of Rs. 10,00,000 afforded to the respondent firm.\n(1) (1956) 30 I.T.R. 181 193 The High Court took the view that the above material was not sufficient for holding that the sum of Rs. 5,00,000 belonged to the respondent firm and that the Tribunal had taken into consideration material which was not relevant to the issue.\nWe have given the matter our consideration and are of the opinion that no case has been made for interfering with the judgment of the High Court.\nThe explanation furnished about the source of Rs. 5,00,000 in fixed deposit in the name of Biswanath was that he had kept an amount of Rs. 4,50,000 with M/s Soorajmal Nagarmal and Rs. 50,000 in deposit with Comilla Bank. The amount of Rs. 4,50,000 was stated to- have been withdrawn by Biswanath from M/s Soorajmal Nagarmal in January 1941, while the other amount of Rs. 50,000 was withdrawn from Comilla Bank in March 1942. The amount of Rs. 5,00,000 was then transferred by Biswanath to his native place Ratangarh (Desh) in Rajasthan due to bombing panic in Calcutta. When war situation improved, the money was taken from Desh to Jamnagar for deposit. This explanation was found to be false in view-of the admitted position that the amount of Rs. 5,00,000 in fixed deposit in the name. of Biswanath in Jamnagar bank had been tendered at Burrabazar Calcutta branch of Central Bank on November. .15. 1944 and thereafter was transferred through Bombay head office' of.\nthe Bank, to Jamnagar. There were also,. other circumstances which pointed to falsity of the above explanation. The falsity the above explanation of Biswanath, in the opinion of the High Court. did not warrant the conclusion that the amount of Rs. 5,00,000 lakhs belonged to the assessee. We can find no flaw or infirmity in the above reasoning of the High Court. The question which arose for determination in this case was not whether the amount of Rs. 5,00,000 belonged to Biswanath, but whether it belonged to the respondent firm. The fact that Biswanath has not been able to give a satisfactory explanation regardIng the source of Rs. 5,00,000 would not be decisive, even of the matter as to whether Biswanath was or was not the owner of that amount. A person can still be held to be the owner of a sum of money even though the explanation furnished by him regarding the source of that money is found to be not correct. From the simple fact that the explanation regarding the source of money furnished by A, in- whose name the money is lying in deposit, has been found to be false, it 'would be a remote and far fetched conclusion to hold that the money belongs to B. There would be in such a case no direct nexus between the facts found and the conclusion drawn therefrom.\nWe also see no cogent ground to take a view different from that of the High Court that the other circumstances, namely, the 4--L348SupCI/73 194 transfer of the amount of Rs. 5,00,000 from Calcutta to Jamnagar for fixed deposit in the name of Biswanath and the use soon thereafter of the said fixed deposit receipt as security for the overdraft facility to the respondent firm did not justify the inference that the amount belonged to the respondent. The material on record indicates that the facility of overdraft on the security of the fixed deposit receipt in the name of Biswanath was enjoyed by the assessee firm for a little over a year. The Tribunal in this context observed that \"it is difficult to see how the firm could obtain an overdraft upon a fixed deposit by B. N. Gupta (Biswanath)\". The, approach of the Tribunal in this respect, in our opinion was manifestly erroneous because it is a common feature of commercial and other transactions that securities are offered by other persons to guarantee the payment of the amount which may be found due from the principal debtor. The. concept of security and ownership are different and it would be a wholly erroneous approach to hold that a thing offered in security by a third person to guarantee the payment of debt due from the principal debtor belongs not to the surety but to the principal debtor. the Tribunal has, also referred to the fact that no con- sideration passed to Biswanath for offering the fixed deposit receipt as security for the overdraft facility to the respondent firm. This circumstance, in our opinion, is of a natural character and has no material bearing for determining the ownership of the amount in fixed deposit.\nSureties quite often offer security without receipt of consideration from the principal debtor. So far as the present case is concerned, we cannot be oblivious of the fact that Biswanath offered security for the overdraft facility to a firm of which his father was a partner. In the circumstances, the, fact that Biswanath received no consideration for offering the fixed deposit receipt as security for the overdraft facility would not result in any inference against the respondent.\nAlthough the proceedings under section 34 of the Act in the present case were started in 1955, after the lapse of about nine years since the time Biswanath had offered the fixed deposit receipt as security for the overdraft facility to the respondent firm, no material was brought on the record to show that the aforesaid sum of Rs. 5,00,000 in the name of Biswanath went to the coffers of the respondent firm or was adjusted towards its liability as was done in respect of the amount of Rs. 5,00,000 which had been deposited in the name of Raghunath Prasad. Had the sum of Rs. 5,00,000 deposited in the name of Biswanath been ultimately utilised by the respondent firm, the income tax authorities must have brought material on record about that.\nThe onus to prove that the apparent is not the real is on the party who claims it to be so. As it was the department which 195 claimed that the amount of fixed deposit receipt belonged to the respondent firm even though the receipt had been issued in the name of Biswanath, the burden lay on the department to prove that the respondent was the owner of the amount despite the fact that the receipt was in the name of Biswanath. A simple way of discharging the onus and resolving the controversy was to trace the source and origin of the amount and find out its ultimate destination. So far as the source is concerned, there is no material on the record to show that the amount came from the coffers of the respondent firm or that it was tendered in Burrabazar Calcutta branch of the Central Bank on November 15, 1944 on behalf of the respondent. As regards the destination of the amount, it has already been mentioned that there is nothing to show that it went to the coffers of the respondent. On the contrary, there is positive evidence that the amount was received by Biswanath on January 22, 1946. It would thus follow that both as regards the source as well as the destination of the amount. the material on the record gives no support to the. claim of the department.\nLearned Additional Solicitor General has urged that the close proximity of time between the transfer of the amount of Rs. 5,00,000 from Calcutta for the issue of fixed deposit receipt in the name of Biswanath at Jamnagar and the opening of overdraft account of respondent firm in Calcutta with the said fixed deposit receipt constituting security for the overdraft account would show that the said amount in fact belonged to the respondent. We find it difficult to accede to this submission because the benefit received by the respondent by the use of the said receipt as a collateral security for overdraft facility was only of a temporary nature. The receipt remained in the name of Biswanath and it was he who got the amount of the receipt on January 22, 1946.\nReference was also made by the Additional Solicitor General to the order of the Appellate Assistant Commissioner. It is stated that the said order is much more elaborate and the Tribunal has made note of this fact. In this respect we find that the order of the Appellate Assistant Commissioner is vitiated by two factual inaccuracies. According to the said order, the amount of the fixed deposit receipt in the name of Biswanath was received in Calcutta on November 25, 1946 and was transferred to the credit of the respondent firm against the overdraft with the Bank. This observation was incorrect because there is ample material on record to show that the amount of the fixed deposit receipt was received, as mentioned earlier, on January 22, 1946 by Biswanath himself. He also, it would appear, got the interest due on the said amount.\n196 The other factual inaccuracy which crept into the order of the, Appellate Assistant Commissioner was his assumption that the shares of the two groups of Nopany's and Bhuwalkas were equal. It was observed by the Appellate Assistant Commissioner : \"The appellant firm itself consists of two groups of partners Nopany and Bhuwalka. Each group had equal shares. Raghunath Prasad belongs to the Nopany group and Biswanath to the Bhuwalka group. The amount offered for fixed deposits therefore corresponds to the profit sharing proportion of each group. This mass of evidence and circumstances could not be upset merely because the fixed deposits stood in two particular names.\"\n The above factual assumption regarding the equality of shares- of the two groups was incorrect because it is the common case of the parties that the share of Bhuwalka group was 10 annas in a rupee and that of Nopany was 6 annas in a rupee.\n The Appellate Assistant Commissioner also took into account the fact that the office of the Central Bank in Burrabazar Calcutta is in the same building in which there are the business premises of the respondent firm. This was, in our opinion, a wholly extraneous and irrelevant circumstance for determining the ownership of Rs. 5,00,000 which had been deposited in fixed deposit in the name of Biswanath. There should, in our opinion, be some direct nexus between the conclusion of fact arrived at by the authority concerned and the primary facts upon which that conclusion is based. The use of extraneous and irrelevant material in arriving at that conclusion would vitiate the conclusion of fact because it is difficult to predicate as to what extent the extraneous and irrelevant material has influenced the authority in Arriving at the conclusion of fact.\n No case, in our opinion, has been made for interfering with the judgment of the High Court. The appeals consequently fail and are dismissed with costs. On hearing fee.\n K.B.N. Appeals dismissed 197 "
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{
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"end": 172,
"labels": [
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],
"start": 0,
"text": "IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS,\n ROURKELA, DISTRICT: SUNDARGARH.\n\nPresent:\n\n Smt. Neesha Samal, L.L.M.,\n J.M.F.C., Rourkela."
}
},
{
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"id": "fc4f1a7d2ca0446db8948e9b26c82393",
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"type": null,
"value": {
"end": 238,
"labels": [
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],
"start": 172,
"text": "\n\n GR Case No. 1420/2001\n Trial No. /2016\n\nState"
}
},
{
"from_name": null,
"id": "83cea455db0a440ea61fadfca95d85fa",
"to_name": null,
"type": null,
"value": {
"end": 902,
"labels": [
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],
"start": 273,
"text": ".... Prosecution\n\n -vrs-\n\nEtuari Badaik, aged about 56 years,\nWife of Bhaktu Badaik, resident of\nKabi Basti, Purunapani, P.S. Hatibari,\nDist: Sundargarh.\n\n ... Accused Person.\n\nCounsel for the Prosecution : Sri Santosh Kumar Nayak,\n APP, Rourkela.\n\nCounsel for the Dedfence : Sri S.L.Badaik, Advocate,\n Rourkela.\n\n Date of Argument: 07.12.2016\n Date of Judgment: 17.12.2016\n\n OFFENCE U/S 47(a) OF BIHAR AND ORISSA EXCISE ACT."
}
},
{
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"id": "01cfffd168b4437bb4c245a013eaf350",
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"value": {
"end": 951,
"labels": [
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],
"start": 902,
"text": "\n JUDGMENT\n "
}
},
{
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"id": "8d433cb1351942bf8de72177916416c6",
"to_name": null,
"type": null,
"value": {
"end": 1062,
"labels": [
"FAC"
],
"start": 951,
"text": "The above named accused faces trial for having committed the offence U/s. 47(a) of Bihar and Orissa Excise Act."
}
},
{
"from_name": null,
"id": "5ad858a75ee4456fb80f38a131d4f344",
"to_name": null,
"type": null,
"value": {
"end": 1455,
"labels": [
"FAC"
],
"start": 1064,
"text": "2. Brief facts of the case is that: On 22.8.2001, the SI Judhistir Sahoo, O.I.C., Hatibari P.S. reported in writing that on that day he along with his staff were conducting excise raid in different places of Purunapani area, when he received information from reliable sources that one lady namely Etuari Badaik of Kabi Basti, Purunapani village is selling liquor in her house unauthorisedly."
}
},
{
"from_name": null,
"id": "bb17a1f2cb4c4a78a080980327214d19",
"to_name": null,
"type": null,
"value": {
"end": 1608,
"labels": [
"FAC"
],
"start": 1456,
"text": "On this information he along with his staff proceeded to conduct raid in her house and recovered I.D.\nliquor kept in a green jerrican of about 5 liters."
}
},
{
"from_name": null,
"id": "0432dfd8027443478b8f22570b3e4475",
"to_name": null,
"type": null,
"value": {
"end": 1987,
"labels": [
"FAC"
],
"start": 1609,
"text": "The accused Etuari Badaik failed to produce any licence or authority for possession of the I.D. liquor and hence, the same was seized in presence of villagers Mangru Ganju and Raghunath Ganju, seizure list was prepared and she was arrested and on production of local bailor she was released on bail and thereafter, the matter was reported and the seized liquor was taken to P.S."
}
},
{
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"id": "b1bfd7b29e9c4d769d4c143e23ff25da",
"to_name": null,
"type": null,
"value": {
"end": 2171,
"labels": [
"FAC"
],
"start": 1989,
"text": "Basing on this report, the OIC registered Hatibari P.S. Case No.36 dated 22.8.2001 U/s 47(a) of Bihar and Orissa Excise Act and directed himself to take up investigation of the case."
}
},
{
"from_name": null,
"id": "9d48ad59361b4cbca52f5ad2a19a6dac",
"to_name": null,
"type": null,
"value": {
"end": 2451,
"labels": [
"FAC"
],
"start": 2172,
"text": "During course of investigation, he again visited the spot, examined the witnesses, sent the sample liquor of 180 ml. kept in a cleaned dry bottle for chemical examination to Scientific Officer, D.F.S.L., Rourkela who opined that the sample liquid contained 20% V/V ethyl clcohol."
}
},
{
"from_name": null,
"id": "e9e02785b4af49e8b4537e6427ddaaa9",
"to_name": null,
"type": null,
"value": {
"end": 2649,
"labels": [
"FAC"
],
"start": 2452,
"text": "After completion of investigation the I.O. submitted charge sheet against the accused vide C.S. No.36 dated 10.9.2001 U/s 47(a) of Bihar and Orissa Excise Act to face her trial in the Court of law."
}
},
{
"from_name": null,
"id": "ed8afb83117d4bea8fafb3d0645a789a",
"to_name": null,
"type": null,
"value": {
"end": 2667,
"labels": [
"FAC"
],
"start": 2650,
"text": "Hence, this case."
}
},
{
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"id": "978440e1abc948ec867b4d5b972ebe5d",
"to_name": null,
"type": null,
"value": {
"end": 2756,
"labels": [
"FAC"
],
"start": 2668,
"text": "3. The plea of the accused is one of complete denial and false implication in this case."
}
},
{
"from_name": null,
"id": "01f316c1e1234c788f47f2885d2c29ef",
"to_name": null,
"type": null,
"value": {
"end": 3108,
"labels": [
"ISSUE"
],
"start": 2757,
"text": "4. The point for determination in this case is: (i) Whether on 22.8.2001 at about 11.15 A.M., the accused was found in exclusive and conscious possession of 5 liters of I.D. Liquor kept in a green plastic jerrican in her house at Kabi Basti, Purunapani without any licence or authority ?\n (ii) Whether the seized liquor was I.D. liquor or not ?"
}
},
{
"from_name": null,
"id": "b8643c32176a4046af999648474cad94",
"to_name": null,
"type": null,
"value": {
"end": 3220,
"labels": [
"ANALYSIS"
],
"start": 3108,
"text": "\n 5. In order to substantiate the charges leveled against the accused, the prosecution has examined 3 witnesses."
}
},
{
"from_name": null,
"id": "87313877e5634736a3cabdf2ab49c121",
"to_name": null,
"type": null,
"value": {
"end": 3244,
"labels": [
"ANALYSIS"
],
"start": 3221,
"text": "Manguru Ganju as P.W.1."
}
},
{
"from_name": null,
"id": "ba17fb4dc33644169ddb41a265afa286",
"to_name": null,
"type": null,
"value": {
"end": 3313,
"labels": [
"ANALYSIS"
],
"start": 3245,
"text": "He identified his signature on the property seizure memo vide Ext.1."
}
},
{
"from_name": null,
"id": "0e97d696497248ed9a76f2eef84874fa",
"to_name": null,
"type": null,
"value": {
"end": 3335,
"labels": [
"ANALYSIS"
],
"start": 3314,
"text": "Raghu Ganju as P.W.2."
}
},
{
"from_name": null,
"id": "3c533bb198de4b21b2e2c8a64a819ce4",
"to_name": null,
"type": null,
"value": {
"end": 3406,
"labels": [
"ANALYSIS"
],
"start": 3335,
"text": "\nHe identified his signature on the property seizure memo vide Ext.1/1."
}
},
{
"from_name": null,
"id": "efaac77f989b46bf88fdd5400c427c0f",
"to_name": null,
"type": null,
"value": {
"end": 3428,
"labels": [
"ANALYSIS"
],
"start": 3407,
"text": "Muni Badaik as P.W.3."
}
},
{
"from_name": null,
"id": "c25bffd70d264b649b17676c2849293c",
"to_name": null,
"type": null,
"value": {
"end": 3523,
"labels": [
"ANALYSIS"
],
"start": 3429,
"text": "On the other hand, the accused has not adduced any oral or documentary evidence on his behalf."
}
},
{
"from_name": null,
"id": "4841899a8ea14186a21257a324635cfc",
"to_name": null,
"type": null,
"value": {
"end": 3876,
"labels": [
"ANALYSIS"
],
"start": 3523,
"text": "\n 6. In this case, P.W.1 and P.W.2 are the independent local witnesses of the Purunapani village of Kabi Basti who are co-villagers of the accused and as per the FIR, P.Ws 1 and 2 are seizure witnesses in presence of whom the liquor was seized from the possession of the accused in her house and the property seizure memo was prepared in their presence."
}
},
{
"from_name": null,
"id": "878195a8ad844c24b181b43852520df7",
"to_name": null,
"type": null,
"value": {
"end": 4004,
"labels": [
"ANALYSIS"
],
"start": 3877,
"text": "But both P.Ws 1 and 2 have stated in their evidence that they do not know the accused and nothing was seized in their presence."
}
},
{
"from_name": null,
"id": "257ee14a63d24396afe52ca8bcce3f13",
"to_name": null,
"type": null,
"value": {
"end": 4141,
"labels": [
"ANALYSIS"
],
"start": 4005,
"text": "Neither they were examined by the I.O. in connection with this case and they were asked to sign on a blank piece of paper by the police."
}
},
{
"from_name": null,
"id": "7d7454ab088346c09a23bed6be41c3c2",
"to_name": null,
"type": null,
"value": {
"end": 4261,
"labels": [
"ANALYSIS"
],
"start": 4142,
"text": "They identified their signatures on the property seizure memo, but could not prove the factum of seizure in any manner."
}
},
{
"from_name": null,
"id": "3cdeea0177e94424af2577d3d2450b26",
"to_name": null,
"type": null,
"value": {
"end": 4391,
"labels": [
"ANALYSIS"
],
"start": 4261,
"text": "\n P.W.3 is the Home Guard who accompanied the informant S.I. Judhistir Sahoo and other staffs in the patrolling duty on 22.8.2001."
}
},
{
"from_name": null,
"id": "70271eb922e9454aa9e3e8f54d98dda6",
"to_name": null,
"type": null,
"value": {
"end": 4646,
"labels": [
"ANALYSIS"
],
"start": 4392,
"text": "She deposed that on that day she along with the informant and other staffs went on patrolling duty to Kabi Basti, Purunapani under Hatibari P.S. and there S.I. received credible information that Etuari Badaik, the accused was selling liquor in her house."
}
},
{
"from_name": null,
"id": "4126848f8f614d059f3d9a0af2979252",
"to_name": null,
"type": null,
"value": {
"end": 4752,
"labels": [
"ANALYSIS"
],
"start": 4647,
"text": "So, they rushed to the spot, they saw her selling country made liquor in a black jerrican in her veranda."
}
},
{
"from_name": null,
"id": "b07ae70544294a65b95ebaf9289dca52",
"to_name": null,
"type": null,
"value": {
"end": 5022,
"labels": [
"ANALYSIS"
],
"start": 4753,
"text": "Her house was searched and the liquor was seized from her possession as she failed to produce any documents in support of the possession of liquor and hence, a property seizure memo was prepared in presence of the witnesses in respect of 5 liters of seized I.D. liquor."
}
},
{
"from_name": null,
"id": "a3c40728c7ea4e9b96e9b2b09fd3f30c",
"to_name": null,
"type": null,
"value": {
"end": 5135,
"labels": [
"ANALYSIS"
],
"start": 5024,
"text": "7. The prosecution has not examined the informant who is also the I.O. in this case and the scriber of the FIR."
}
},
{
"from_name": null,
"id": "47e79161e3164e9197b1ea9e039333fa",
"to_name": null,
"type": null,
"value": {
"end": 5366,
"labels": [
"ANALYSIS"
],
"start": 5136,
"text": "The Scientific Officer, DFSL, Rourkela has also not been examined by the prosecution due to which neither the FIR nor the chemical examination report as given by the Scientific Officer, DFSL, Rourkela could be proved in this case."
}
},
{
"from_name": null,
"id": "58a89d785c094a2e96f9966cdf37dc68",
"to_name": null,
"type": null,
"value": {
"end": 5467,
"labels": [
"ANALYSIS"
],
"start": 5367,
"text": "The contents of the FIR have been narrated by P.W.3 who was part of the patrolling duty on that day."
}
},
{
"from_name": null,
"id": "43bd0e1c786e45ab92cbc5b0bc917369",
"to_name": null,
"type": null,
"value": {
"end": 5590,
"labels": [
"ANALYSIS"
],
"start": 5468,
"text": "But the factum of seizure could not be produced due to non-support of the independent seizure witnesses i.e. P.Ws 1 and 2."
}
},
{
"from_name": null,
"id": "a842a271133f4d3d978f6fc8410347fc",
"to_name": null,
"type": null,
"value": {
"end": 5714,
"labels": [
"ANALYSIS"
],
"start": 5591,
"text": "Hence, in this case neither the FIR nor the seizure nor the chemical examination report could be proved by the prosecution."
}
},
{
"from_name": null,
"id": "d96cfbe378cf4775913339e26b42f286",
"to_name": null,
"type": null,
"value": {
"end": 5955,
"labels": [
"ANALYSIS"
],
"start": 5715,
"text": "This being an year old case of the year 2001, the prosecution deemed it fit to close its evidence as the case was lingering long for the evidence of the informant/I.O. and the scientific Officer who are not available to depose in this case."
}
},
{
"from_name": null,
"id": "438c246c0f0040a2aadbfbd77d6c0995",
"to_name": null,
"type": null,
"value": {
"end": 5999,
"labels": [
"ANALYSIS"
],
"start": 5956,
"text": "Hence, the prosecution evidence was closed."
}
},
{
"from_name": null,
"id": "dfe46bae9b4447aaa0e610cec19fbf60",
"to_name": null,
"type": null,
"value": {
"end": 6314,
"labels": [
"RATIO"
],
"start": 6000,
"text": "There being no evidence on record with regard to any proof that the liquor was seized from the exclusive and conscious possession of the accused and that the seized liquor was I.D. liquor, none of the ingredients of the section 47(a) of Bihar and Orissa Excise Act could be satisfy only with the evidence of P.W.3."
}
},
{
"from_name": null,
"id": "32ad2d49e54f4b76bb89c83152334ff1",
"to_name": null,
"type": null,
"value": {
"end": 6460,
"labels": [
"RPC"
],
"start": 6315,
"text": "Hence, the accused is found not guilty of committing the offence U/s 47(a) of Bihar and Orissa Excise Act and she is acquitted U/s 248(1) Cr.P.C."
}
},
{
"from_name": null,
"id": "11ae84601d014494a740ab097d731b23",
"to_name": null,
"type": null,
"value": {
"end": 6491,
"labels": [
"RPC"
],
"start": 6461,
"text": "The accused be set at liberty."
}
},
{
"from_name": null,
"id": "ed2b329f133541118eff51a5a13045c1",
"to_name": null,
"type": null,
"value": {
"end": 6548,
"labels": [
"RPC"
],
"start": 6492,
"text": "Her bail bond stands cancelled and surety be discharged."
}
},
{
"from_name": null,
"id": "d0d20c235870404f8f0b52bd9467b1a5",
"to_name": null,
"type": null,
"value": {
"end": 6744,
"labels": [
"RPC"
],
"start": 6548,
"text": "\n The seized articles, if any, be destroyed four months after the appeal period is over if there be no appeal and in the event of appeal, the same be subjected to the order of the Appellate Court."
}
},
{
"from_name": null,
"id": "2a4f60d0b0374dcf94a9ae5c886a4941",
"to_name": null,
"type": null,
"value": {
"end": 6805,
"labels": [
"RPC"
],
"start": 6746,
"text": "Enter this case as mistake of fact for statistical purpose."
}
},
{
"from_name": null,
"id": "5bc3e99f53824323a1d4a7eada66602f",
"to_name": null,
"type": null,
"value": {
"end": 6964,
"labels": [
"NONE"
],
"start": 6805,
"text": "\n Judgment is dictated and corrected by me, pronounced in the open court on this the 17th day of December, 2016 under my signature and seal of the Court."
}
},
{
"from_name": null,
"id": "f19588235cac4c8181d298b7e5b6e375",
"to_name": null,
"type": null,
"value": {
"end": 7008,
"labels": [
"NONE"
],
"start": 6964,
"text": "\n Judicial Magistrate First Class, Rourkela."
}
},
{
"from_name": null,
"id": "37a9791f15e049aebbf67efd2667892b",
"to_name": null,
"type": null,
"value": {
"end": 7038,
"labels": [
"NONE"
],
"start": 7010,
"text": "List of prosecution witness."
}
},
{
"from_name": null,
"id": "d429791868eb4d78bac32cbbce51160a",
"to_name": null,
"type": null,
"value": {
"end": 7060,
"labels": [
"NONE"
],
"start": 7038,
"text": "\n P.W.1 Mangru Ganju."
}
},
{
"from_name": null,
"id": "58542ad60bf74df9b80bc9dd924ed2e3",
"to_name": null,
"type": null,
"value": {
"end": 7102,
"labels": [
"NONE"
],
"start": 7060,
"text": "\n P.W.2 Raghu Ganju.\n P.W.3 Muni Badaik."
}
},
{
"from_name": null,
"id": "64ec45a1ba0c4e579fb80ee31d85d70e",
"to_name": null,
"type": null,
"value": {
"end": 7130,
"labels": [
"NONE"
],
"start": 7104,
"text": "List of defence witnesses."
}
},
{
"from_name": null,
"id": "7be8ef6930b740dc8acdbff8762c2d07",
"to_name": null,
"type": null,
"value": {
"end": 7140,
"labels": [
"NONE"
],
"start": 7130,
"text": "\n N i l.\n "
}
},
{
"from_name": null,
"id": "2c0217e6a3474ff0b29204c8363d60fc",
"to_name": null,
"type": null,
"value": {
"end": 7188,
"labels": [
"NONE"
],
"start": 7140,
"text": "List of exhibit marked on behalf of prosecution."
}
},
{
"from_name": null,
"id": "532953048f724a7e8e1194eea1b16b0b",
"to_name": null,
"type": null,
"value": {
"end": 7276,
"labels": [
"NONE"
],
"start": 7188,
"text": "\n Ext.1 Signature of P.W.1 on seizure list.\n Ext.2 Signature of P.W.2 on seizure list."
}
},
{
"from_name": null,
"id": "8301d1aedcfe4c2ba4eff3be41c369ef",
"to_name": null,
"type": null,
"value": {
"end": 7322,
"labels": [
"NONE"
],
"start": 7278,
"text": "List of exhibit marked on behalf of defence."
}
},
{
"from_name": null,
"id": "8c2f6d34f75244d6a025d860abdd9354",
"to_name": null,
"type": null,
"value": {
"end": 7389,
"labels": [
"NONE"
],
"start": 7322,
"text": "\n N i l.\n Judicial Magistrate First Class, Rourkela."
}
}
]
}
] | 4,193 | {
"text": "IN THE COURT OF JUDICIAL MAGISTRATE FIRST CLASS,\n ROURKELA, DISTRICT: SUNDARGARH.\n\nPresent:\n\n Smt. Neesha Samal, L.L.M.,\n J.M.F.C., Rourkela.\n\n GR Case No. 1420/2001\n Trial No. /2016\n\nState .... Prosecution\n\n -vrs-\n\nEtuari Badaik, aged about 56 years,\nWife of Bhaktu Badaik, resident of\nKabi Basti, Purunapani, P.S. Hatibari,\nDist: Sundargarh.\n\n ... Accused Person.\n\nCounsel for the Prosecution : Sri Santosh Kumar Nayak,\n APP, Rourkela.\n\nCounsel for the Dedfence : Sri S.L.Badaik, Advocate,\n Rourkela.\n\n Date of Argument: 07.12.2016\n Date of Judgment: 17.12.2016\n\n OFFENCE U/S 47(a) OF BIHAR AND ORISSA EXCISE ACT.\n JUDGMENT\n The above named accused faces trial for having committed the offence U/s. 47(a) of Bihar and Orissa Excise Act.\n 2. Brief facts of the case is that: On 22.8.2001, the SI Judhistir Sahoo, O.I.C., Hatibari P.S. reported in writing that on that day he along with his staff were conducting excise raid in different places of Purunapani area, when he received information from reliable sources that one lady namely Etuari Badaik of Kabi Basti, Purunapani village is selling liquor in her house unauthorisedly. On this information he along with his staff proceeded to conduct raid in her house and recovered I.D.\nliquor kept in a green jerrican of about 5 liters. The accused Etuari Badaik failed to produce any licence or authority for possession of the I.D. liquor and hence, the same was seized in presence of villagers Mangru Ganju and Raghunath Ganju, seizure list was prepared and she was arrested and on production of local bailor she was released on bail and thereafter, the matter was reported and the seized liquor was taken to P.S.\n Basing on this report, the OIC registered Hatibari P.S. Case No.36 dated 22.8.2001 U/s 47(a) of Bihar and Orissa Excise Act and directed himself to take up investigation of the case. During course of investigation, he again visited the spot, examined the witnesses, sent the sample liquor of 180 ml. kept in a cleaned dry bottle for chemical examination to Scientific Officer, D.F.S.L., Rourkela who opined that the sample liquid contained 20% V/V ethyl clcohol.\nAfter completion of investigation the I.O. submitted charge sheet against the accused vide C.S. No.36 dated 10.9.2001 U/s 47(a) of Bihar and Orissa Excise Act to face her trial in the Court of law. Hence, this case.\n3. The plea of the accused is one of complete denial and false implication in this case.\n4. The point for determination in this case is: (i) Whether on 22.8.2001 at about 11.15 A.M., the accused was found in exclusive and conscious possession of 5 liters of I.D. Liquor kept in a green plastic jerrican in her house at Kabi Basti, Purunapani without any licence or authority ?\n (ii) Whether the seized liquor was I.D. liquor or not ?\n 5. In order to substantiate the charges leveled against the accused, the prosecution has examined 3 witnesses. Manguru Ganju as P.W.1. He identified his signature on the property seizure memo vide Ext.1. Raghu Ganju as P.W.2.\nHe identified his signature on the property seizure memo vide Ext.1/1. Muni Badaik as P.W.3. On the other hand, the accused has not adduced any oral or documentary evidence on his behalf.\n 6. In this case, P.W.1 and P.W.2 are the independent local witnesses of the Purunapani village of Kabi Basti who are co-villagers of the accused and as per the FIR, P.Ws 1 and 2 are seizure witnesses in presence of whom the liquor was seized from the possession of the accused in her house and the property seizure memo was prepared in their presence. But both P.Ws 1 and 2 have stated in their evidence that they do not know the accused and nothing was seized in their presence. Neither they were examined by the I.O. in connection with this case and they were asked to sign on a blank piece of paper by the police. They identified their signatures on the property seizure memo, but could not prove the factum of seizure in any manner.\n P.W.3 is the Home Guard who accompanied the informant S.I. Judhistir Sahoo and other staffs in the patrolling duty on 22.8.2001. She deposed that on that day she along with the informant and other staffs went on patrolling duty to Kabi Basti, Purunapani under Hatibari P.S. and there S.I. received credible information that Etuari Badaik, the accused was selling liquor in her house. So, they rushed to the spot, they saw her selling country made liquor in a black jerrican in her veranda. Her house was searched and the liquor was seized from her possession as she failed to produce any documents in support of the possession of liquor and hence, a property seizure memo was prepared in presence of the witnesses in respect of 5 liters of seized I.D. liquor.\n 7. The prosecution has not examined the informant who is also the I.O. in this case and the scriber of the FIR. The Scientific Officer, DFSL, Rourkela has also not been examined by the prosecution due to which neither the FIR nor the chemical examination report as given by the Scientific Officer, DFSL, Rourkela could be proved in this case. The contents of the FIR have been narrated by P.W.3 who was part of the patrolling duty on that day. But the factum of seizure could not be produced due to non-support of the independent seizure witnesses i.e. P.Ws 1 and 2. Hence, in this case neither the FIR nor the seizure nor the chemical examination report could be proved by the prosecution. This being an year old case of the year 2001, the prosecution deemed it fit to close its evidence as the case was lingering long for the evidence of the informant/I.O. and the scientific Officer who are not available to depose in this case. Hence, the prosecution evidence was closed. There being no evidence on record with regard to any proof that the liquor was seized from the exclusive and conscious possession of the accused and that the seized liquor was I.D. liquor, none of the ingredients of the section 47(a) of Bihar and Orissa Excise Act could be satisfy only with the evidence of P.W.3. Hence, the accused is found not guilty of committing the offence U/s 47(a) of Bihar and Orissa Excise Act and she is acquitted U/s 248(1) Cr.P.C. The accused be set at liberty. Her bail bond stands cancelled and surety be discharged.\n The seized articles, if any, be destroyed four months after the appeal period is over if there be no appeal and in the event of appeal, the same be subjected to the order of the Appellate Court.\n Enter this case as mistake of fact for statistical purpose.\n Judgment is dictated and corrected by me, pronounced in the open court on this the 17th day of December, 2016 under my signature and seal of the Court.\n Judicial Magistrate First Class, Rourkela.\n List of prosecution witness.\n P.W.1 Mangru Ganju.\n P.W.2 Raghu Ganju.\n P.W.3 Muni Badaik.\n List of defence witnesses.\n N i l.\n List of exhibit marked on behalf of prosecution.\n Ext.1 Signature of P.W.1 on seizure list.\n Ext.2 Signature of P.W.2 on seizure list.\n List of exhibit marked on behalf of defence.\n N i l.\n Judicial Magistrate First Class, Rourkela.\n"
} |
{
"group": "Tax"
} | [
{
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"end": 123,
"labels": [
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],
"start": 0,
"text": "IN THE COURT OF THE SUB DIVISIONAL JUDICIAL MAGISTRATE,\n SUNDARGARH.\n\n "
}
},
{
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"id": "f7046d26f26d4f4bbb9fe84f73d44b69",
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"labels": [
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"text": "DISTRICT: SUNDARGARH."
}
},
{
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"labels": [
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],
"start": 146,
"text": "PRESENT:"
}
},
{
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"id": "087ee04292b6481eac7f525d8b3318b6",
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"type": null,
"value": {
"end": 197,
"labels": [
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],
"start": 174,
"text": "Sri C. Gachhayat, LL.M."
}
},
{
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"id": "9459c91d90004c66929eed6340abf9ce",
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"labels": [
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],
"start": 216,
"text": "S.D.J.M.,Sundargarh."
}
},
{
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"start": 256,
"text": "2(a) CC CASE No. 280 of 2013"
}
},
{
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"value": {
"end": 381,
"labels": [
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],
"start": 284,
"text": "\n Trial No. 269 of 2014\n\n Date of argument : 02.05.2015"
}
},
{
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"id": "7a5ba4cee99b4232978cba06a4bbe5ef",
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"value": {
"end": 447,
"labels": [
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],
"start": 400,
"text": "Date of Judgment : 08.05.2015\n\nState of Odisha."
}
},
{
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"id": "679962e4886446c5ad0a5f5a6527ac3e",
"to_name": null,
"type": null,
"value": {
"end": 466,
"labels": [
"PREAMBLE"
],
"start": 448,
"text": " ........."
}
},
{
"from_name": null,
"id": "3c2bf1f69b6f4e2cb5cdf58d7f427b82",
"to_name": null,
"type": null,
"value": {
"end": 492,
"labels": [
"PREAMBLE"
],
"start": 467,
"text": " Prosecution."
}
},
{
"from_name": null,
"id": "eded8073036847c1a47f191eb49d31e8",
"to_name": null,
"type": null,
"value": {
"end": 556,
"labels": [
"PREAMBLE"
],
"start": 492,
"text": "\n -vrs.-\n\n1. Victor Toppo, aged about 62 years,"
}
},
{
"from_name": null,
"id": "be4f19b4f0f144dd83d7d3fa646a0e62",
"to_name": null,
"type": null,
"value": {
"end": 630,
"labels": [
"PREAMBLE"
],
"start": 565,
"text": "Son of Late Lukash Toppo,\n Resident of Village- Handipani,"
}
},
{
"from_name": null,
"id": "e3b12d94beb0417aa4c406023c7229a1",
"to_name": null,
"type": null,
"value": {
"end": 672,
"labels": [
"PREAMBLE"
],
"start": 639,
"text": "PS. Kinjirkela, Dist. Sundargarh."
}
},
{
"from_name": null,
"id": "35daf087b5454d38a63c409b796b26df",
"to_name": null,
"type": null,
"value": {
"end": 739,
"labels": [
"PREAMBLE"
],
"start": 730,
"text": "........."
}
},
{
"from_name": null,
"id": "2c61078d348946fca7a17757b30a481f",
"to_name": null,
"type": null,
"value": {
"end": 755,
"labels": [
"PREAMBLE"
],
"start": 740,
"text": "Accused person."
}
},
{
"from_name": null,
"id": "68bee89b83954faaad7a5fc69efa0d64",
"to_name": null,
"type": null,
"value": {
"end": 815,
"labels": [
"PREAMBLE"
],
"start": 755,
"text": "\n\n Offence U/s.47(a)(i) Bihar & Orissa Excise Act.."
}
},
{
"from_name": null,
"id": "4c571c41b1b24a86823ae0b154d9d604",
"to_name": null,
"type": null,
"value": {
"end": 859,
"labels": [
"PREAMBLE"
],
"start": 817,
"text": "Counsel for the State : Sri B.K.Tappo, APP"
}
},
{
"from_name": null,
"id": "a7f960489b014f1ab31824e45896efb8",
"to_name": null,
"type": null,
"value": {
"end": 1029,
"labels": [
"PREAMBLE"
],
"start": 860,
"text": "Counsel for the Defence :Sri S.K.Purohit and associates,\n\n Advocate.\n\n J U D G M E N T\n1."
}
},
{
"from_name": null,
"id": "86ababf3c0da46be90a21596cddeebb8",
"to_name": null,
"type": null,
"value": {
"end": 1158,
"labels": [
"FAC"
],
"start": 1030,
"text": "Accused person stands charged for the offence U/s. 47(a) (i) of Bihar & Orissa Excise Act for illegal possession of I.D. liquor."
}
},
{
"from_name": null,
"id": "3f7061feb0a84ce88f280f7fe2dac742",
"to_name": null,
"type": null,
"value": {
"end": 1436,
"labels": [
"FAC"
],
"start": 1159,
"text": "2. The story of the prosecution in brief is that on 18.12.2013 at about 9.30 a.m. while the S.I. of Excise, Sadar charge was performing patrolling duty along with staff at Handipani area found that the accused was coming on the road by holding a plastic jerry cane in his hand."
}
},
{
"from_name": null,
"id": "22bc0b0974f84401a1fd61f2b696dfd0",
"to_name": null,
"type": null,
"value": {
"end": 1626,
"labels": [
"FAC"
],
"start": 1437,
"text": "On suspicion the SI of Excise detained him and on search, recovered three litres of ID liquor containing in a plastic jerry cane from the possession of the accused in presence of witnesses."
}
},
{
"from_name": null,
"id": "1062c17f8ef94f4e9cb8e9bff405dfd2",
"to_name": null,
"type": null,
"value": {
"end": 1811,
"labels": [
"FAC"
],
"start": 1627,
"text": "Thereafter he conducted blue litmus test, smell test, hydrometer test and from above tests and his prolonged service experience, he ascertained that the seized article was I.D. liquor."
}
},
{
"from_name": null,
"id": "2b69523b68eb438894c82f24f087dff4",
"to_name": null,
"type": null,
"value": {
"end": 2012,
"labels": [
"FAC"
],
"start": 1812,
"text": "Then the S.I. of Excise has enquired into the matter and after completion of his inquiry submitted final PR. against the accused person U/s. 47(a)(i) of Bihar & Orissa Excise Act suggesting his trial."
}
},
{
"from_name": null,
"id": "60a8a8c9aeee45509ce74af50ec8bcdd",
"to_name": null,
"type": null,
"value": {
"end": 2126,
"labels": [
"FAC"
],
"start": 2012,
"text": "\n 3. The plea of the accused person is one of complete denial and false implication only for statistical purpose."
}
},
{
"from_name": null,
"id": "1b7cbe95baaa4a108611c0e69fa915c2",
"to_name": null,
"type": null,
"value": {
"end": 2399,
"labels": [
"ISSUE"
],
"start": 2126,
"text": "\n 4. The points for determination of this case are as follows: I) Whether on 18.12.2013 at about 9.30 a.m. on the road at Handipani, the accused was in exclusive and conscious possession of one plastic jerry cane containing three litres of ID liquor without any authority?"
}
},
{
"from_name": null,
"id": "f7791b57504d4e78ba61b8eb5236d0f8",
"to_name": null,
"type": null,
"value": {
"end": 2455,
"labels": [
"ISSUE"
],
"start": 2399,
"text": "\n (ii) Whether the seized article is I.D. liquor or not?"
}
},
{
"from_name": null,
"id": "9b361477e24446ea87b5aab6116bac2c",
"to_name": null,
"type": null,
"value": {
"end": 2526,
"labels": [
"ANALYSIS"
],
"start": 2455,
"text": "\n 5. To prove its case, prosecution has examined only three witnesses."
}
},
{
"from_name": null,
"id": "2ff9610fe4f84bf2b4d3e400e7e3480a",
"to_name": null,
"type": null,
"value": {
"end": 2630,
"labels": [
"ANALYSIS"
],
"start": 2527,
"text": "Out of whom P.W. 2 is the S.I. of Excise, Sadar charge and P.W. 3 is the accompanying Excise constable."
}
},
{
"from_name": null,
"id": "e9de9fb19eae42a5a9d0d737640f1481",
"to_name": null,
"type": null,
"value": {
"end": 2703,
"labels": [
"ANALYSIS"
],
"start": 2631,
"text": "Pw 1 is the cited independent seizure witness to the alleged occurrence."
}
},
{
"from_name": null,
"id": "82052f7e8be042c7b8ed371ad5d0a823",
"to_name": null,
"type": null,
"value": {
"end": 2767,
"labels": [
"ANALYSIS"
],
"start": 2704,
"text": "Prosecution proved certain documents marked as Ext. 1 & Ext. 2."
}
},
{
"from_name": null,
"id": "e17354358aad43499126fe2fdcc4266d",
"to_name": null,
"type": null,
"value": {
"end": 2870,
"labels": [
"ANALYSIS"
],
"start": 2768,
"text": "On the other hand, no oral or documentary evidence adduced on behalf of accused person in his defence."
}
},
{
"from_name": null,
"id": "a95634cc216947ed9138cadadadf1305",
"to_name": null,
"type": null,
"value": {
"end": 2889,
"labels": [
"ANALYSIS"
],
"start": 2870,
"text": "\n 6. "
}
},
{
"from_name": null,
"id": "1b0e663f5d674cddbdb8692acaf11789",
"to_name": null,
"type": null,
"value": {
"end": 3259,
"labels": [
"ANALYSIS"
],
"start": 2889,
"text": "On analysis of the evidence on record P.W. 2 the S.I. of Excise deposed that on 18.12.2013, while she was performing patrolling duty at Handipani area found that the accused was coming on the road by holding one plastic jerry cane, so on suspicion he detained the accused Victor Toppo and on search recovered three litres of ID liquor from the possession of the accused."
}
},
{
"from_name": null,
"id": "ae9b0094f08d4b6385de33d7be6b6e7a",
"to_name": null,
"type": null,
"value": {
"end": 3426,
"labels": [
"ANALYSIS"
],
"start": 3260,
"text": "According to this witness he had conducted blue litmus paper test which turned into red in colour, conducted hydrometer test and thereafter prepared the seizure list."
}
},
{
"from_name": null,
"id": "cd43abc992004e8a822e42c0556cc29a",
"to_name": null,
"type": null,
"value": {
"end": 3605,
"labels": [
"ANALYSIS"
],
"start": 3428,
"text": "Another official witness PW 3 ( Excise constable) like wise supported the version of P.W 2 in respect of patrolling and seizure of the liquor from the possession of the accused."
}
},
{
"from_name": null,
"id": "fdf9cb545a8c43239296d308edec1ade",
"to_name": null,
"type": null,
"value": {
"end": 3726,
"labels": [
"ANALYSIS"
],
"start": 3606,
"text": "Specific version of both the witnesses is that seizure was conducted by the S.I. of Excise in presence of the witnesses."
}
},
{
"from_name": null,
"id": "71a876e518d44290986723ee9de9bb6b",
"to_name": null,
"type": null,
"value": {
"end": 3856,
"labels": [
"ANALYSIS"
],
"start": 3726,
"text": "\n Hence, it is necessary to testify the testimony of the official witnesses from independent source for the sake of corroboration."
}
},
{
"from_name": null,
"id": "9095b7675aaf4c5e867bad8bf69357c9",
"to_name": null,
"type": null,
"value": {
"end": 3985,
"labels": [
"ANALYSIS"
],
"start": 3857,
"text": "P.W.1, the independent seizure witness in evidence did not support the version of P.W. 2 at all in respect of factum of seizure."
}
},
{
"from_name": null,
"id": "1b19a355e67848f6b1ae584ea749687f",
"to_name": null,
"type": null,
"value": {
"end": 4119,
"labels": [
"ANALYSIS"
],
"start": 3986,
"text": "According to him nothing was seized in his presence by any Excise staff and he put his signature marked as Ext.1 on the seizure list."
}
},
{
"from_name": null,
"id": "728fedd3d3ca4f9e808b99e8bcdaa690",
"to_name": null,
"type": null,
"value": {
"end": 4227,
"labels": [
"ANALYSIS"
],
"start": 4120,
"text": "Hence there is discrepancy between the testimony of independent seizure witness and the official witnesses."
}
},
{
"from_name": null,
"id": "41072ccf74f04c5e9ffd06ff5e37812e",
"to_name": null,
"type": null,
"value": {
"end": 4427,
"labels": [
"ANALYSIS"
],
"start": 4227,
"text": "\n 7. To prove an offence U/s.47(a)(i) of Bihar & Orissa Excise Act, it is the bounden duty of prosecution to establish that the seizure was from the exclusive and conscious possession of the accused."
}
},
{
"from_name": null,
"id": "9d20bb28677348bfb4b33a7e0be9d46d",
"to_name": null,
"type": null,
"value": {
"end": 4510,
"labels": [
"ANALYSIS"
],
"start": 4428,
"text": "But in this case the seizure witness did not support the factum of seizure at all."
}
},
{
"from_name": null,
"id": "80a86b3c1737450c8b8432f621336579",
"to_name": null,
"type": null,
"value": {
"end": 4630,
"labels": [
"ANALYSIS"
],
"start": 4510,
"text": "\n Further the S.I. of Excise PW 2 in cross-examination admitted that he had not known the accused prior to the incident."
}
},
{
"from_name": null,
"id": "7a9aa61e2eaa486bb7788104d826e6e9",
"to_name": null,
"type": null,
"value": {
"end": 4658,
"labels": [
"ANALYSIS"
],
"start": 4631,
"text": "The spot is a village road."
}
},
{
"from_name": null,
"id": "95e1a5dfe6cb47ff9258f8ad4ff2e5d6",
"to_name": null,
"type": null,
"value": {
"end": 4768,
"labels": [
"ANALYSIS"
],
"start": 4659,
"text": "He further stated that there are many houses near the spot but she does not know the name of the house owner."
}
},
{
"from_name": null,
"id": "ccfe402570c440ca9b71d36970751bbc",
"to_name": null,
"type": null,
"value": {
"end": 4896,
"labels": [
"ANALYSIS"
],
"start": 4769,
"text": "He further deposed that he has not produced the seized articles before the court nor he sent the same for chemical examination."
}
},
{
"from_name": null,
"id": "56d0ff7b07e54db1bc2a10037806272d",
"to_name": null,
"type": null,
"value": {
"end": 5090,
"labels": [
"ANALYSIS"
],
"start": 4897,
"text": "Though the independent corroboration is not the rule but as the place of seizure is a public place, examination of independent witness is necessary to make the judgment free from any criticism."
}
},
{
"from_name": null,
"id": "a9f706ac7d664174aebb9ebe81b85123",
"to_name": null,
"type": null,
"value": {
"end": 5194,
"labels": [
"ANALYSIS"
],
"start": 5091,
"text": "The plea of the defence is that a false case has been foisted against him only for statistical purpose."
}
},
{
"from_name": null,
"id": "e0bb0508479e46529ee4ade8507afb59",
"to_name": null,
"type": null,
"value": {
"end": 5425,
"labels": [
"ANALYSIS"
],
"start": 5195,
"text": "There is no material on record to show the exact place of seizure as no sketch map is prepared or proved by the prosecution in this case to establish that the seizure was from the exclusive and conscious possession of the accused."
}
},
{
"from_name": null,
"id": "39f1f83a50b343828e822209436eeae2",
"to_name": null,
"type": null,
"value": {
"end": 5546,
"labels": [
"ANALYSIS"
],
"start": 5426,
"text": "More so the SI of Excise neither produced the seized liquor before the court nor sent the same for chemical examination."
}
},
{
"from_name": null,
"id": "36fd59bce2dd4ed2b74a3bbf3db4ecd4",
"to_name": null,
"type": null,
"value": {
"end": 5622,
"labels": [
"ANALYSIS"
],
"start": 5547,
"text": "Further, independent seizure witness did not support the factum of seizure."
}
},
{
"from_name": null,
"id": "5904d602e44f4d2a8ad3fa974ebfd01b",
"to_name": null,
"type": null,
"value": {
"end": 5779,
"labels": [
"ANALYSIS"
],
"start": 5623,
"text": "In such premises I hold that the prosecution failed to prove the factum of seizure from the possession of the accused for want of independent corroboration."
}
},
{
"from_name": null,
"id": "92824841a670418eaeb733145b33a079",
"to_name": null,
"type": null,
"value": {
"end": 5893,
"labels": [
"ANALYSIS"
],
"start": 5780,
"text": "Hence the prosecution failed to establish the seizure from the exclusive and conscious possession of the accused."
}
},
{
"from_name": null,
"id": "96dd902dda88469091fab18223adb7eb",
"to_name": null,
"type": null,
"value": {
"end": 5911,
"labels": [
"ANALYSIS"
],
"start": 5895,
"text": "8. "
}
},
{
"from_name": null,
"id": "f6a4e7697dba498e8e44dacdb1ddfdaa",
"to_name": null,
"type": null,
"value": {
"end": 6034,
"labels": [
"ANALYSIS"
],
"start": 5911,
"text": "With regard to nature of seized article whether it is liquor or not. P.W. 2 stated that the seized article is I.D. liquor ."
}
},
{
"from_name": null,
"id": "d4721171fe784e14bab8fd9d9696234c",
"to_name": null,
"type": null,
"value": {
"end": 6239,
"labels": [
"ANALYSIS"
],
"start": 6035,
"text": "No document is filed or proved on behalf of prosecution to establish that P.W. 2 is competent enough to opine on the subject of liquor, spirit or intoxicant being an expert U/s. 45 of Indian Evidence Act."
}
},
{
"from_name": null,
"id": "bc21a161f5a4473e800593c619865b97",
"to_name": null,
"type": null,
"value": {
"end": 6304,
"labels": [
"ANALYSIS"
],
"start": 6240,
"text": "No distillery training certificate has been filed on his behalf."
}
},
{
"from_name": null,
"id": "018ac573e85048db8b543666d4ab0616",
"to_name": null,
"type": null,
"value": {
"end": 6477,
"labels": [
"ANALYSIS"
],
"start": 6305,
"text": "Further this witness has admittedly stated in cross-examination that he had not sent the seized article or samples for chemical examination which is one of the surest test."
}
},
{
"from_name": null,
"id": "85a83b7fc4b34f10b5e5cb5a1fd72890",
"to_name": null,
"type": null,
"value": {
"end": 6568,
"labels": [
"ANALYSIS"
],
"start": 6478,
"text": "Hence, I hold that prosecution failed to establish that the seized article is I.D. liquor."
}
},
{
"from_name": null,
"id": "38a850707b4245e1b097213ade36a51f",
"to_name": null,
"type": null,
"value": {
"end": 6952,
"labels": [
"RATIO"
],
"start": 6570,
"text": "9. In view of the whole discussions in foregoing paragraphs, since the prosecution failed to establish that the seizure is from the exclusive and conscious possession of the accused, I hold that prosecution failed to establish the charge leveled against the accused person for commission of offence U/s.47(a)(i) of Bihar & Orissa Excise Act beyond all reasonable doubt."
}
},
{
"from_name": null,
"id": "5289f16cfbf04602bd4c35f97df703ea",
"to_name": null,
"type": null,
"value": {
"end": 7025,
"labels": [
"RPC"
],
"start": 6953,
"text": "Hence, I acquit him therefrom under the provisions of Sec.248(1) Cr.P.C."
}
},
{
"from_name": null,
"id": "c038b055cee74473bb4a376003dc38a1",
"to_name": null,
"type": null,
"value": {
"end": 7081,
"labels": [
"RPC"
],
"start": 7026,
"text": "He be set at liberty and discharged from his bail bond."
}
},
{
"from_name": null,
"id": "9432c7ad8c1743949726ffa63f7e23e3",
"to_name": null,
"type": null,
"value": {
"end": 7117,
"labels": [
"RPC"
],
"start": 7083,
"text": "Enter the case as mistake of fact."
}
},
{
"from_name": null,
"id": "1560df81c15742f6994992ee247e2475",
"to_name": null,
"type": null,
"value": {
"end": 7322,
"labels": [
"RPC"
],
"start": 7117,
"text": "\n The seized liquor kept at Excise Malkhana, Sundargarh be destroyed after four months expiry of appeal period, if no appeal is preferred and in case of appeal subject to the orders of the appellate court."
}
},
{
"from_name": null,
"id": "ba5412eda52c44a982183d048656d71a",
"to_name": null,
"type": null,
"value": {
"end": 7397,
"labels": [
"NONE"
],
"start": 7322,
"text": "\n S.D.J.M.,Sundargarh.\n 08.05.2015"
}
},
{
"from_name": null,
"id": "bbcd5674f17e44278ba4007ac2cbf96c",
"to_name": null,
"type": null,
"value": {
"end": 7609,
"labels": [
"NONE"
],
"start": 7398,
"text": "The judgment is transcribed and typed to my dictation, corrected by me and pronounced in the open court on this the 8th day of May, 2015 and given under my hand and seal of the court.\n S.D.J.M. Sundargarh.\n List"
}
},
{
"from_name": null,
"id": "6ba2306745b74f49ae12d94bd368e2ed",
"to_name": null,
"type": null,
"value": {
"end": 7627,
"labels": [
"NONE"
],
"start": 7610,
"text": "of P.Ws.examined:"
}
},
{
"from_name": null,
"id": "57d5c46aab444a0bb3ec3e2314e48cf6",
"to_name": null,
"type": null,
"value": {
"end": 7634,
"labels": [
"NONE"
],
"start": 7628,
"text": "P.W. 1"
}
},
{
"from_name": null,
"id": "bcb5391d46304be8ad6537be7ca43634",
"to_name": null,
"type": null,
"value": {
"end": 7733,
"labels": [
"NONE"
],
"start": 7635,
"text": " Anup Tirkey P.W.2. Indrajeet Sahoo P.W.3. Rabindralal Munda List of D.Ws examined: N i l."
}
},
{
"from_name": null,
"id": "55569564e71d430a9716f5488178ea9d",
"to_name": null,
"type": null,
"value": {
"end": 7956,
"labels": [
"NONE"
],
"start": 7735,
"text": "List of Exts.marked for the complnt.\n Ext.1 Signature of PW 1.\n Ext.1/1 Seizure list Ext.1/2 Signature of PW 2.\n Ext.1/3. Tested blue lit mus paper.\n Ext. 2. Hydrometer test chart.\n Ext.2/1. Signature of PW 1."
}
},
{
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"labels": [
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],
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"text": "\n Ext.1/4"
}
},
{
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"end": 7986,
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],
"start": 7966,
"text": " Signature of PW 3."
}
},
{
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"start": 7988,
"text": "List of Exts.marked for the defence: N i l.\n S.D.J.M., Sundargarh."
}
}
]
}
] | 4,119 | {
"text": "IN THE COURT OF THE SUB DIVISIONAL JUDICIAL MAGISTRATE,\n SUNDARGARH.\n\n DISTRICT: SUNDARGARH.\n\nPRESENT:\n\n Sri C. Gachhayat, LL.M.\n S.D.J.M.,Sundargarh.\n\n 2(a) CC CASE No. 280 of 2013\n Trial No. 269 of 2014\n\n Date of argument : 02.05.2015\n Date of Judgment : 08.05.2015\n\nState of Odisha. ......... Prosecution.\n -vrs.-\n\n1. Victor Toppo, aged about 62 years,\n Son of Late Lukash Toppo,\n Resident of Village- Handipani,\n PS. Kinjirkela, Dist. Sundargarh.\n ......... Accused person.\n\n Offence U/s.47(a)(i) Bihar & Orissa Excise Act..\n\nCounsel for the State : Sri B.K.Tappo, APP\nCounsel for the Defence :Sri S.K.Purohit and associates,\n\n Advocate.\n\n J U D G M E N T\n1. Accused person stands charged for the offence U/s. 47(a) (i) of Bihar & Orissa Excise Act for illegal possession of I.D. liquor.\n2. The story of the prosecution in brief is that on 18.12.2013 at about 9.30 a.m. while the S.I. of Excise, Sadar charge was performing patrolling duty along with staff at Handipani area found that the accused was coming on the road by holding a plastic jerry cane in his hand. On suspicion the SI of Excise detained him and on search, recovered three litres of ID liquor containing in a plastic jerry cane from the possession of the accused in presence of witnesses. Thereafter he conducted blue litmus test, smell test, hydrometer test and from above tests and his prolonged service experience, he ascertained that the seized article was I.D. liquor. Then the S.I. of Excise has enquired into the matter and after completion of his inquiry submitted final PR. against the accused person U/s. 47(a)(i) of Bihar & Orissa Excise Act suggesting his trial.\n 3. The plea of the accused person is one of complete denial and false implication only for statistical purpose.\n 4. The points for determination of this case are as follows: I) Whether on 18.12.2013 at about 9.30 a.m. on the road at Handipani, the accused was in exclusive and conscious possession of one plastic jerry cane containing three litres of ID liquor without any authority?\n (ii) Whether the seized article is I.D. liquor or not?\n 5. To prove its case, prosecution has examined only three witnesses. Out of whom P.W. 2 is the S.I. of Excise, Sadar charge and P.W. 3 is the accompanying Excise constable. Pw 1 is the cited independent seizure witness to the alleged occurrence. Prosecution proved certain documents marked as Ext. 1 & Ext. 2. On the other hand, no oral or documentary evidence adduced on behalf of accused person in his defence.\n 6. On analysis of the evidence on record P.W. 2 the S.I. of Excise deposed that on 18.12.2013, while she was performing patrolling duty at Handipani area found that the accused was coming on the road by holding one plastic jerry cane, so on suspicion he detained the accused Victor Toppo and on search recovered three litres of ID liquor from the possession of the accused. According to this witness he had conducted blue litmus paper test which turned into red in colour, conducted hydrometer test and thereafter prepared the seizure list.\n Another official witness PW 3 ( Excise constable) like wise supported the version of P.W 2 in respect of patrolling and seizure of the liquor from the possession of the accused. Specific version of both the witnesses is that seizure was conducted by the S.I. of Excise in presence of the witnesses.\n Hence, it is necessary to testify the testimony of the official witnesses from independent source for the sake of corroboration. P.W.1, the independent seizure witness in evidence did not support the version of P.W. 2 at all in respect of factum of seizure. According to him nothing was seized in his presence by any Excise staff and he put his signature marked as Ext.1 on the seizure list. Hence there is discrepancy between the testimony of independent seizure witness and the official witnesses.\n 7. To prove an offence U/s.47(a)(i) of Bihar & Orissa Excise Act, it is the bounden duty of prosecution to establish that the seizure was from the exclusive and conscious possession of the accused. But in this case the seizure witness did not support the factum of seizure at all.\n Further the S.I. of Excise PW 2 in cross-examination admitted that he had not known the accused prior to the incident. The spot is a village road. He further stated that there are many houses near the spot but she does not know the name of the house owner. He further deposed that he has not produced the seized articles before the court nor he sent the same for chemical examination. Though the independent corroboration is not the rule but as the place of seizure is a public place, examination of independent witness is necessary to make the judgment free from any criticism. The plea of the defence is that a false case has been foisted against him only for statistical purpose. There is no material on record to show the exact place of seizure as no sketch map is prepared or proved by the prosecution in this case to establish that the seizure was from the exclusive and conscious possession of the accused. More so the SI of Excise neither produced the seized liquor before the court nor sent the same for chemical examination. Further, independent seizure witness did not support the factum of seizure. In such premises I hold that the prosecution failed to prove the factum of seizure from the possession of the accused for want of independent corroboration. Hence the prosecution failed to establish the seizure from the exclusive and conscious possession of the accused.\n 8. With regard to nature of seized article whether it is liquor or not. P.W. 2 stated that the seized article is I.D. liquor . No document is filed or proved on behalf of prosecution to establish that P.W. 2 is competent enough to opine on the subject of liquor, spirit or intoxicant being an expert U/s. 45 of Indian Evidence Act. No distillery training certificate has been filed on his behalf. Further this witness has admittedly stated in cross-examination that he had not sent the seized article or samples for chemical examination which is one of the surest test. Hence, I hold that prosecution failed to establish that the seized article is I.D. liquor.\n 9. In view of the whole discussions in foregoing paragraphs, since the prosecution failed to establish that the seizure is from the exclusive and conscious possession of the accused, I hold that prosecution failed to establish the charge leveled against the accused person for commission of offence U/s.47(a)(i) of Bihar & Orissa Excise Act beyond all reasonable doubt. Hence, I acquit him therefrom under the provisions of Sec.248(1) Cr.P.C. He be set at liberty and discharged from his bail bond.\n Enter the case as mistake of fact.\n The seized liquor kept at Excise Malkhana, Sundargarh be destroyed after four months expiry of appeal period, if no appeal is preferred and in case of appeal subject to the orders of the appellate court.\n S.D.J.M.,Sundargarh.\n 08.05.2015 The judgment is transcribed and typed to my dictation, corrected by me and pronounced in the open court on this the 8th day of May, 2015 and given under my hand and seal of the court.\n S.D.J.M. Sundargarh.\n List of P.Ws.examined: P.W. 1 Anup Tirkey P.W.2. Indrajeet Sahoo P.W.3. Rabindralal Munda List of D.Ws examined: N i l.\n List of Exts.marked for the complnt.\n Ext.1 Signature of PW 1.\n Ext.1/1 Seizure list Ext.1/2 Signature of PW 2.\n Ext.1/3. Tested blue lit mus paper.\n Ext. 2. Hydrometer test chart.\n Ext.2/1. Signature of PW 1.\n Ext.1/4 Signature of PW 3.\n List of Exts.marked for the defence: N i l.\n S.D.J.M., Sundargarh.\n "
} |
{
"group": "Criminal"
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"text": "IN THE COURT OF THE S.D.J.M., PANPOSH AT ROURKELA."
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"text": "\n DISTRICT- SUNDARGARH."
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"text": "\n\n Present :"
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"end": 254,
"labels": [
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],
"start": 122,
"text": "Sri Amaresh Nayak,M.A, LL.M.,\n S.D.J.M., Panposh.\n\n G.R. Case No. 1286/17\n Trial."
}
},
{
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"start": 255,
"text": "No.266/2017"
}
},
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"start": 266,
"text": "\n\n S T A T E\n\n Vrs.\n\n 1.Iswar Das, aged about 42 years,\n "
}
},
{
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"start": 400,
"text": "S/o-Srikanta Das, resident of\n Shanti Colony, Orampada, P.S-Uditnagar,\n Dist-"
}
},
{
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"id": "c4ad6903ebf549ecaed4dcc45e9d69da",
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"text": "Sundargarh."
}
},
{
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"labels": [
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"start": 542,
"text": "2.Rahul Pradhan @ Dolu,"
}
},
{
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"text": "aged about 27 years"
}
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"text": ", S/o-\n "
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"value": {
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"labels": [
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"start": 610,
"text": "Prasanta Pradhan, resident of Revenue Colony,\n Uditnagar, P.S-Uditnagar, Dist-Sundargarh."
}
},
{
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"text": "...Accused persons."
}
},
{
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],
"start": 789,
"text": "\n\nOffences U/s 457/380/411 of Indian Penal Code"
}
},
{
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"start": 838,
"text": "Counsel for Prosecution :"
}
},
{
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"value": {
"end": 1064,
"labels": [
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],
"start": 871,
"text": "Shri J.B.Sunani,\n A.P.P., Rourkela.\n\nCounsel for Defence : Shri K.C. Parida & Assts.\n Adv., Rourkela.\nDate of Argument"
}
},
{
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"id": "9cac783c75ae49c8840be4d1ca5d3d56",
"to_name": null,
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"value": {
"end": 1128,
"labels": [
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],
"start": 1065,
"text": " :\n 03.01.2018\nDate of Judgment"
}
},
{
"from_name": null,
"id": "f8c1dfb110724991ab04f0e29af42705",
"to_name": null,
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"value": {
"end": 1155,
"labels": [
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],
"start": 1129,
"text": " : 16.01.2018"
}
},
{
"from_name": null,
"id": "4446ca80c3564652ba04d37340e8aef8",
"to_name": null,
"type": null,
"value": {
"end": 1203,
"labels": [
"PREAMBLE"
],
"start": 1188,
"text": "J U D G M E N T"
}
},
{
"from_name": null,
"id": "7a0b8ed2ebe74509833c79c6f32a769e",
"to_name": null,
"type": null,
"value": {
"end": 1309,
"labels": [
"FAC"
],
"start": 1205,
"text": "The accused persons stands charged for the offences punishable U/s 457/380/411 of the Indian Penal Code."
}
},
{
"from_name": null,
"id": "e619a2685baf46a1b19018f54df97405",
"to_name": null,
"type": null,
"value": {
"end": 1650,
"labels": [
"FAC"
],
"start": 1309,
"text": "\n 2. The prosecution case in nut shell is as follows :- On 20.08.2017 at about 12.45 P.M the complainant Shri Ramesh Bal who is President of Rourkela Bar Association, Rourkela Court reported that on 19.08.2017 night some unknown culprits broke open the door of Old Bar Association Hall No.03 and committed theft of one TV and some chairs.\n "
}
},
{
"from_name": null,
"id": "26100d40dc924caeb589814168a6bf81",
"to_name": null,
"type": null,
"value": {
"end": 1775,
"labels": [
"FAC"
],
"start": 1650,
"text": "On his report IIC, Uditnagar P.S registered P.S case No.172/2017 and directed S.I of Police, D.Rout to take up investigation."
}
},
{
"from_name": null,
"id": "9dbe23fb2e4347bb83e8e4a8603d21f7",
"to_name": null,
"type": null,
"value": {
"end": 1857,
"labels": [
"FAC"
],
"start": 1776,
"text": "On completion of investigation submitted charge sheet against the accused person."
}
},
{
"from_name": null,
"id": "43264f8e06234a379a1bb954204b70b6",
"to_name": null,
"type": null,
"value": {
"end": 1915,
"labels": [
"FAC"
],
"start": 1857,
"text": "\n 3. The accused pleaded innocence and false implication."
}
},
{
"from_name": null,
"id": "1e454786d779485787f1d81ee95a4f23",
"to_name": null,
"type": null,
"value": {
"end": 2521,
"labels": [
"ISSUE"
],
"start": 1915,
"text": "\n 4. The points for determination in this case are as follows:- (I) Whether on 19.08.2017 night accused persons broke open the door the Old Bar Association Hall No.3 of Rourkela Bar Association with an intent to commit an offence ?\n (II) Whether on the said date, time and place, accused persons committed theft of one TV and some chairs from the Old Bar Association, Rourkela Hall No.03 by breaking open the door of the said room ?\n (III)Whether the on the said date, time and place accused persons dishonestly receive the stolen property having reason to believe that the same to be stolen property ?"
}
},
{
"from_name": null,
"id": "db4b5342b3f2463dbe7aa87534746b44",
"to_name": null,
"type": null,
"value": {
"end": 2527,
"labels": [
"ANALYSIS"
],
"start": 2521,
"text": "\n 5. "
}
},
{
"from_name": null,
"id": "8103bbe6b85a4b5a8db37d0abcde43cd",
"to_name": null,
"type": null,
"value": {
"end": 2591,
"labels": [
"ANALYSIS"
],
"start": 2527,
"text": "In support of its case prosecution has examined eight witnesses."
}
},
{
"from_name": null,
"id": "3be127f9ffde45dbb332784d30a4119b",
"to_name": null,
"type": null,
"value": {
"end": 2752,
"labels": [
"ANALYSIS"
],
"start": 2592,
"text": "P.W.1, P.W.2, P.W.3 and P.W.5 are independent occurrence witnesses, P.W.4 is the informant, P.W.6 is the I.O, P.W.7 and P.W.8 are independent seizure witnesses."
}
},
{
"from_name": null,
"id": "e5b8309b49154551a9fef5b95a92ce3a",
"to_name": null,
"type": null,
"value": {
"end": 2798,
"labels": [
"ANALYSIS"
],
"start": 2753,
"text": "Defence examined none in support of its plea."
}
},
{
"from_name": null,
"id": "0eb3b4ee3deb47e58570e00f134d7b13",
"to_name": null,
"type": null,
"value": {
"end": 3046,
"labels": [
"ANALYSIS"
],
"start": 2798,
"text": "\n 6. P.W.4 is the informant in this case who deposed in his evidence that on 20.08.2017 at about 10 A.M, he got information from one Advocate namely Pabitra Jena that some person had broken the door of Room No.03 of Old Bar Association, Uditnagar."
}
},
{
"from_name": null,
"id": "84eade9b15ff4ec092135e8d1315cf57",
"to_name": null,
"type": null,
"value": {
"end": 3204,
"labels": [
"ANALYSIS"
],
"start": 3047,
"text": "P.W.4 stated that on getting such information he visited the spot and found that the lock of the door was broken and one T.V and some chairs are stolen away."
}
},
{
"from_name": null,
"id": "0aeaf1e59bde4ad1a9bef41f15c38c42",
"to_name": null,
"type": null,
"value": {
"end": 3314,
"labels": [
"ANALYSIS"
],
"start": 3205,
"text": "P.W.4 further deposed that police seized the stolen items and gave it in zima to him by executing a zimanama."
}
},
{
"from_name": null,
"id": "356cb28f72a94ae284c0e911e7935499",
"to_name": null,
"type": null,
"value": {
"end": 3407,
"labels": [
"ANALYSIS"
],
"start": 3315,
"text": "P.W.4 admitted the F.I.R which is marked as Ext.1 and his signature on it marked as Ext.1/1."
}
},
{
"from_name": null,
"id": "ec35a0dd76054cb0ba54a15b95026626",
"to_name": null,
"type": null,
"value": {
"end": 3508,
"labels": [
"ANALYSIS"
],
"start": 3408,
"text": "P.W.4 also admitted the zimanama which is marked as Ext.2 and his signature on it marked as Ext.2/1."
}
},
{
"from_name": null,
"id": "552cf8a296824ef8b1d65c0456b01288",
"to_name": null,
"type": null,
"value": {
"end": 3611,
"labels": [
"ANALYSIS"
],
"start": 3509,
"text": "I.O. recovered the stolen items and the same was handed over to the informant by executing a zimanama."
}
},
{
"from_name": null,
"id": "37a10a7feaa6408daa37edd7009a42d6",
"to_name": null,
"type": null,
"value": {
"end": 3714,
"labels": [
"ANALYSIS"
],
"start": 3612,
"text": "P.W.4 who is the informant of this case did not whisper a single word implicating the accused persons."
}
},
{
"from_name": null,
"id": "fcd9deb70a9e4ba3a040570158f15dc8",
"to_name": null,
"type": null,
"value": {
"end": 3917,
"labels": [
"ANALYSIS"
],
"start": 3716,
"text": "7. P.W.6 is the I.O of this case who deposed before this court that on 20.08.2017 during course of investigation he examined the complainant and other witnesses, visited the spot and prepared spot map."
}
},
{
"from_name": null,
"id": "220f2c0e30da42f5be89ccf67e920f2d",
"to_name": null,
"type": null,
"value": {
"end": 4013,
"labels": [
"ANALYSIS"
],
"start": 3918,
"text": "P.W.6 admitted the spot map which is marked as Ext.3 and his signature on it marked as Ext.3/1."
}
},
{
"from_name": null,
"id": "4c143a3a9fb841bc85543230f396fbf5",
"to_name": null,
"type": null,
"value": {
"end": 4287,
"labels": [
"ANALYSIS"
],
"start": 4014,
"text": "P.W.6 deposed that on 21.08.2017, he received information that the suspect is moving at Shitalpada and he proceeded to spot and apprehended the accused Rahul Pradhan and on interrogation he confessed his guilt and stated that he had committed theft of one TV and chair etc."
}
},
{
"from_name": null,
"id": "c12a0604f51146d68e098dc6e469b2e6",
"to_name": null,
"type": null,
"value": {
"end": 4458,
"labels": [
"ANALYSIS"
],
"start": 4288,
"text": "P.W.6 deposed that he had recorded the statement U/sec.27 Indian Evidence Act of accused Rahul Pradhan which is marked as Ext.4 and his signature on it marked as Ext.4/1."
}
},
{
"from_name": null,
"id": "53e709fc5ba54589b4897ae480ec4312",
"to_name": null,
"type": null,
"value": {
"end": 4697,
"labels": [
"ANALYSIS"
],
"start": 4459,
"text": "P.W.6 deposed that accused lead him to place of concealment and seized 5 nos. of plastic moulded chair and one TV set up box and one iron Sabala and prepared seizure list which is marked as Ext.5 and his signature on it marked as Ext.5/1."
}
},
{
"from_name": null,
"id": "a670bd13a10c49a1974853c239cc0f10",
"to_name": null,
"type": null,
"value": {
"end": 5021,
"labels": [
"ANALYSIS"
],
"start": 4698,
"text": "P.W.6 deposed that on further interrogation accused confessed that he had given the stolen TV to one Ishwar Das of Shanti colony, Oram Pada and accordingly I.O proceeded to the house of Ishwar Das and seized the stolen Samsung TV and prepared seizure list which is marked as Ext.6 and his signature on it marked as Ext.6/1."
}
},
{
"from_name": null,
"id": "b964d2dbc38c41e2a102ee518780869c",
"to_name": null,
"type": null,
"value": {
"end": 5252,
"labels": [
"ANALYSIS"
],
"start": 5022,
"text": "P.W.6 deposed that on 31.08.2017 he gave the seized Samsung TV, 5 nos. of plastic moulded chairs, one set up box to the complainant in zima by executing a zimanma which is marked as Ext.2 and his signature on it marked as Ext.2/2."
}
},
{
"from_name": null,
"id": "51b2d2acdf28410a87a68e4f8866211a",
"to_name": null,
"type": null,
"value": {
"end": 5510,
"labels": [
"ANALYSIS"
],
"start": 5253,
"text": "On perusal of the statement recorded by P.W.6 U/sec.27 Indian Evidence Act regarding leading to discovery of the stolen items, it is revealed that the same was made in presence of three independent witnesses namely Chalu Oram, Adison Surin and Munna Sharma."
}
},
{
"from_name": null,
"id": "b25fbbac8f0a4654ba0bc1f804e5d297",
"to_name": null,
"type": null,
"value": {
"end": 5602,
"labels": [
"ANALYSIS"
],
"start": 5511,
"text": "The witnesses have been examined by the prosecution as P.W.7, P.W.8 and P.W.5 respectively."
}
},
{
"from_name": null,
"id": "72adb48321184ca09641c99b6d697291",
"to_name": null,
"type": null,
"value": {
"end": 5754,
"labels": [
"ANALYSIS"
],
"start": 5603,
"text": "But the evidence of P.W.5, P.W.7 and P.W.8 creates lots of doubt as it has absolutely no incoherence with the facts mentioned by P.W.6 in his evidence."
}
},
{
"from_name": null,
"id": "a3533e1ee7b84ba1bf7256c76ec69cc7",
"to_name": null,
"type": null,
"value": {
"end": 5951,
"labels": [
"ANALYSIS"
],
"start": 5755,
"text": "P.W.5 stated in his evidence that on 20.08.2017 at about 10.30 A.M he saw that the door of the Old Bar Association at Uditnagar was broken and found that the TV, setup box and chairs were missing."
}
},
{
"from_name": null,
"id": "4ea8e8d9f3c34c5e9c277e66ad1bed1b",
"to_name": null,
"type": null,
"value": {
"end": 6067,
"labels": [
"ANALYSIS"
],
"start": 5952,
"text": "P.W.7 and P.W.8 stated that they donot know anything about this case and nothing has been seized in their presence."
}
},
{
"from_name": null,
"id": "b27bedef827c4c39888f06a96bd77498",
"to_name": null,
"type": null,
"value": {
"end": 6160,
"labels": [
"ANALYSIS"
],
"start": 6068,
"text": "P.W.7 admitted his signatures which are marked as Ext.4/2, Ext.5/2 and P.W.6/2 respectively."
}
},
{
"from_name": null,
"id": "bf8186a10a2044a88fceafcde31ce1a3",
"to_name": null,
"type": null,
"value": {
"end": 6253,
"labels": [
"ANALYSIS"
],
"start": 6161,
"text": "P.W.8 admitted his signatures which are marked as Ext.4/3, Ext.5/3 and Ext.6/3 respectively."
}
},
{
"from_name": null,
"id": "6273a390b79c4ef4a09f34ecd925a9a4",
"to_name": null,
"type": null,
"value": {
"end": 6484,
"labels": [
"ANALYSIS"
],
"start": 6254,
"text": "P.W.5, P.W.7 and P.W.8 have not whisper a single word with regard to leading to discovery given by the accused for recovery of the stolen items which is alleged to have been seized after being discovered being lead by the accused."
}
},
{
"from_name": null,
"id": "8fc8313226814e0f88cfc0a2442c7c98",
"to_name": null,
"type": null,
"value": {
"end": 6588,
"labels": [
"ANALYSIS"
],
"start": 6484,
"text": "\nHence I do not find the evidence of P.W.5, P.W.7 and P.W.8 in any way supporting the evidence of P.W.6."
}
},
{
"from_name": null,
"id": "49d911c527db44fbbd7e94a275cd0475",
"to_name": null,
"type": null,
"value": {
"end": 6668,
"labels": [
"ANALYSIS"
],
"start": 6589,
"text": "There is enough contradiction in the evidence of P.W.5, P.W.7, P.W.8 and P.W.6."
}
},
{
"from_name": null,
"id": "d4c18c1bff3a41aeaedf17f134aa1963",
"to_name": null,
"type": null,
"value": {
"end": 6819,
"labels": [
"ANALYSIS"
],
"start": 6669,
"text": "It also creates reasonable doubt with regard to the statement marked as Ext.4 i.e. the statement of the accused recorded U/sec.27 Indian Evidence Act."
}
},
{
"from_name": null,
"id": "652af0f8d5294b43a916863faaf7544f",
"to_name": null,
"type": null,
"value": {
"end": 7007,
"labels": [
"ANALYSIS"
],
"start": 6819,
"text": "\n Since the vital witnesses i.e P.W.5, P.W.7 and P.W.8 have not mentioned anything regarding leading to discovery , this court can not relay solely on the evidence of P.W.6 in this regard."
}
},
{
"from_name": null,
"id": "2fb5a97f89e54382806d16286ee3c006",
"to_name": null,
"type": null,
"value": {
"end": 7154,
"labels": [
"ANALYSIS"
],
"start": 7008,
"text": "P.W.1stated in his evidence that on 19.08.2017 he closed the Room No.03 of Old Rourkela Bar Association office at about 5 P.M and locked the same."
}
},
{
"from_name": null,
"id": "385f773008724a00ad94c9deb5cc78fa",
"to_name": null,
"type": null,
"value": {
"end": 7298,
"labels": [
"ANALYSIS"
],
"start": 7156,
"text": "On the next day i.e. on 20.08.2017 at about 10 A.M he went to Old Bar Association Office and found that the lock of the Room No.10 was broken."
}
},
{
"from_name": null,
"id": "987014a9dbe24455aea5e7ea618e388f",
"to_name": null,
"type": null,
"value": {
"end": 7423,
"labels": [
"ANALYSIS"
],
"start": 7299,
"text": "He further deposed that he went inside the room and found that one Samsung TV and 5 nos. of plastic chairs were stolen away."
}
},
{
"from_name": null,
"id": "fc1a77ad043c4b3d89720914a4173db9",
"to_name": null,
"type": null,
"value": {
"end": 7681,
"labels": [
"ANALYSIS"
],
"start": 7424,
"text": "P.W.2 and P.W.3 stated in their evidence that 20.08.2017 at about 9.30 A.M on receipt of intimation from P.W.1 regarding broken of door lock of Old Bar Association, they went inside the Room No.03 and fond that TV and 5 nos. of chairs have been stolen away."
}
},
{
"from_name": null,
"id": "ac2ef137d59f4af298d277048b802632",
"to_name": null,
"type": null,
"value": {
"end": 7867,
"labels": [
"ANALYSIS"
],
"start": 7682,
"text": "The evidence of P.W-1, P.W-2 and P.W-3 only proves the fact of the alleged theft but the involvement of the present accused persons is not established from the evidence adduced by them "
}
},
{
"from_name": null,
"id": "61b06116e8b046058701f8ee241e1e1a",
"to_name": null,
"type": null,
"value": {
"end": 8009,
"labels": [
"RATIO"
],
"start": 7867,
"text": "9. In such state of evidence this court finds that there is insufficient material to hold the accused persons guilty of the alleged offences."
}
},
{
"from_name": null,
"id": "6ef043376ffd4076bad561adb77514fb",
"to_name": null,
"type": null,
"value": {
"end": 8174,
"labels": [
"RPC"
],
"start": 8010,
"text": "In the result, the accused persons are held not guilty of the offences punishable U/s 457/380/411 of I.P.C and are acquitted therefrom as per section 248(1) Cr.P.C."
}
},
{
"from_name": null,
"id": "7e36bc00eae646a4ae20ef424a8532ec",
"to_name": null,
"type": null,
"value": {
"end": 8223,
"labels": [
"RPC"
],
"start": 8175,
"text": "The accused persons be set at liberty forthwith."
}
},
{
"from_name": null,
"id": "fe6540124a6945188afafff15f071bce",
"to_name": null,
"type": null,
"value": {
"end": 8259,
"labels": [
"RPC"
],
"start": 8225,
"text": "Enter the case as mistake of fact."
}
},
{
"from_name": null,
"id": "5ee73d2a530247a0a45a0c596ec0cdfc",
"to_name": null,
"type": null,
"value": {
"end": 8349,
"labels": [
"NONE"
],
"start": 8259,
"text": "\n Status of accused persons- Accused persons are present in the court in custody as UTP.\n "
}
},
{
"from_name": null,
"id": "d50abf7da59b4f6493c6785f174833be",
"to_name": null,
"type": null,
"value": {
"end": 8458,
"labels": [
"NONE"
],
"start": 8349,
"text": "Pronounced the judgment in the open court on this the 16th day of January, 2018, under my seal and signature."
}
},
{
"from_name": null,
"id": "a9cdf2455f8444219e129f79c3136dfb",
"to_name": null,
"type": null,
"value": {
"end": 8479,
"labels": [
"NONE"
],
"start": 8458,
"text": "\n S.D.J.M.,Panposh.\n "
}
},
{
"from_name": null,
"id": "87178d36db5344a9a410f62083adc1b6",
"to_name": null,
"type": null,
"value": {
"end": 8525,
"labels": [
"NONE"
],
"start": 8479,
"text": "Dictated in official laptop & corrected by me."
}
},
{
"from_name": null,
"id": "94a85c8f6b354cee87b949c7e2bf0afd",
"to_name": null,
"type": null,
"value": {
"end": 8545,
"labels": [
"NONE"
],
"start": 8525,
"text": "\n S.D.J.M., Panposh."
}
},
{
"from_name": null,
"id": "8cc7dd923ec34b7f8237ad18857aea8b",
"to_name": null,
"type": null,
"value": {
"end": 8591,
"labels": [
"NONE"
],
"start": 8547,
"text": "List of witnesses for prosecution :- P.W.1 :"
}
},
{
"from_name": null,
"id": "71e65ac1656143949c920dc106df1435",
"to_name": null,
"type": null,
"value": {
"end": 8630,
"labels": [
"NONE"
],
"start": 8592,
"text": "Johan Tirkey P.W.2: Pabitra Kumar Jena"
}
},
{
"from_name": null,
"id": "39fa483611644b9eaddcc9fc75ef53d7",
"to_name": null,
"type": null,
"value": {
"end": 8727,
"labels": [
"NONE"
],
"start": 8631,
"text": "P.W.3: Arun Kumar Patra P.W.4: Ramesh Chandra Bal P.W.5: Muna Sharma P.W.6: Dileswar Rout P.W.7:"
}
},
{
"from_name": null,
"id": "48b8b4ca294f431c9acc635ed8f87686",
"to_name": null,
"type": null,
"value": {
"end": 8738,
"labels": [
"NONE"
],
"start": 8728,
"text": "Chulu Oram"
}
},
{
"from_name": null,
"id": "1ff9f958be15480ca16a1664b9f63caf",
"to_name": null,
"type": null,
"value": {
"end": 8789,
"labels": [
"NONE"
],
"start": 8739,
"text": "P.W.8:Adison Surin List of witnesses for Defence :"
}
},
{
"from_name": null,
"id": "8b9791db141d4d2d9becb8e69caded93",
"to_name": null,
"type": null,
"value": {
"end": 9040,
"labels": [
"NONE"
],
"start": 8789,
"text": "- -None- List the Exhibits marked for Prosecution :- Ext.1 F.I.R Ext.1/1 Signature of P.W.4 on Ext.1 Ext.1/2 Signature of IIC on Ext.1 Ext.2 Zimanama.\nExt.2/1 Signature of P.W.1 on Ext.2.\nExt.2/2 Signature of P.W.6 on Ext.2 Ext.3 Spot map"
}
},
{
"from_name": null,
"id": "9208f8c4baf340c49c6e2d367f713b7b",
"to_name": null,
"type": null,
"value": {
"end": 9048,
"labels": [
"NONE"
],
"start": 9041,
"text": "Ext.3/1"
}
},
{
"from_name": null,
"id": "5e1bb2cef90a4afa888b4fb4c0db05e1",
"to_name": null,
"type": null,
"value": {
"end": 9122,
"labels": [
"NONE"
],
"start": 9049,
"text": " Signature of P.W.6 on Ext.3 Ext.4 Statement of U/sec.27 Evidence Act."
}
},
{
"from_name": null,
"id": "395e0ed90db140ae981c2241d29f8b69",
"to_name": null,
"type": null,
"value": {
"end": 9462,
"labels": [
"NONE"
],
"start": 9123,
"text": "Ext.4/1 Signature of P.W.6 on Ext.4 Ext.4/2 Signature of P.W.7 on Ext.4 Ext.4/3 Signature of P.W.8 on Ext.4 Ext.5 Seizure list Ext.5/1 Signature of P.W.6 on Ext.5 Ext.5/2 Signature of P.W.8 on Ext.5 Ext.6 Seizure list Ext.6/1 Signature of P.W.6 on Ext.6 Ext.6/2 Signature of P.W.7 on Ext.6 Ext.6/3 Signature of P.W.8 on Ext.6"
}
},
{
"from_name": null,
"id": "43ebcf251c3b484eab89e7a3a1254bdc",
"to_name": null,
"type": null,
"value": {
"end": 9527,
"labels": [
"NONE"
],
"start": 9463,
"text": "List of Exhibits marked for Defence :- -NIL- S.D.J.M.,Panposh.\n "
}
}
]
}
] | 4,220 | {
"text": "IN THE COURT OF THE S.D.J.M., PANPOSH AT ROURKELA.\n DISTRICT- SUNDARGARH.\n\n Present : Sri Amaresh Nayak,M.A, LL.M.,\n S.D.J.M., Panposh.\n\n G.R. Case No. 1286/17\n Trial. No.266/2017\n\n S T A T E\n\n Vrs.\n\n 1.Iswar Das, aged about 42 years,\n S/o-Srikanta Das, resident of\n Shanti Colony, Orampada, P.S-Uditnagar,\n Dist-Sundargarh.\n\n 2.Rahul Pradhan @ Dolu, aged about 27 years, S/o-\n Prasanta Pradhan, resident of Revenue Colony,\n Uditnagar, P.S-Uditnagar, Dist-Sundargarh.\n\n ...Accused persons.\n\nOffences U/s 457/380/411 of Indian Penal Code\n\nCounsel for Prosecution : Shri J.B.Sunani,\n A.P.P., Rourkela.\n\nCounsel for Defence : Shri K.C. Parida & Assts.\n Adv., Rourkela.\nDate of Argument :\n 03.01.2018\nDate of Judgment : 16.01.2018\n\n J U D G M E N T\n The accused persons stands charged for the offences punishable U/s 457/380/411 of the Indian Penal Code.\n 2. The prosecution case in nut shell is as follows :- On 20.08.2017 at about 12.45 P.M the complainant Shri Ramesh Bal who is President of Rourkela Bar Association, Rourkela Court reported that on 19.08.2017 night some unknown culprits broke open the door of Old Bar Association Hall No.03 and committed theft of one TV and some chairs.\n On his report IIC, Uditnagar P.S registered P.S case No.172/2017 and directed S.I of Police, D.Rout to take up investigation. On completion of investigation submitted charge sheet against the accused person.\n 3. The accused pleaded innocence and false implication.\n 4. The points for determination in this case are as follows:- (I) Whether on 19.08.2017 night accused persons broke open the door the Old Bar Association Hall No.3 of Rourkela Bar Association with an intent to commit an offence ?\n (II) Whether on the said date, time and place, accused persons committed theft of one TV and some chairs from the Old Bar Association, Rourkela Hall No.03 by breaking open the door of the said room ?\n (III)Whether the on the said date, time and place accused persons dishonestly receive the stolen property having reason to believe that the same to be stolen property ?\n 5. In support of its case prosecution has examined eight witnesses. P.W.1, P.W.2, P.W.3 and P.W.5 are independent occurrence witnesses, P.W.4 is the informant, P.W.6 is the I.O, P.W.7 and P.W.8 are independent seizure witnesses. Defence examined none in support of its plea.\n 6. P.W.4 is the informant in this case who deposed in his evidence that on 20.08.2017 at about 10 A.M, he got information from one Advocate namely Pabitra Jena that some person had broken the door of Room No.03 of Old Bar Association, Uditnagar. P.W.4 stated that on getting such information he visited the spot and found that the lock of the door was broken and one T.V and some chairs are stolen away. P.W.4 further deposed that police seized the stolen items and gave it in zima to him by executing a zimanama. P.W.4 admitted the F.I.R which is marked as Ext.1 and his signature on it marked as Ext.1/1. P.W.4 also admitted the zimanama which is marked as Ext.2 and his signature on it marked as Ext.2/1. I.O. recovered the stolen items and the same was handed over to the informant by executing a zimanama. P.W.4 who is the informant of this case did not whisper a single word implicating the accused persons.\n 7. P.W.6 is the I.O of this case who deposed before this court that on 20.08.2017 during course of investigation he examined the complainant and other witnesses, visited the spot and prepared spot map. P.W.6 admitted the spot map which is marked as Ext.3 and his signature on it marked as Ext.3/1. P.W.6 deposed that on 21.08.2017, he received information that the suspect is moving at Shitalpada and he proceeded to spot and apprehended the accused Rahul Pradhan and on interrogation he confessed his guilt and stated that he had committed theft of one TV and chair etc. P.W.6 deposed that he had recorded the statement U/sec.27 Indian Evidence Act of accused Rahul Pradhan which is marked as Ext.4 and his signature on it marked as Ext.4/1. P.W.6 deposed that accused lead him to place of concealment and seized 5 nos. of plastic moulded chair and one TV set up box and one iron Sabala and prepared seizure list which is marked as Ext.5 and his signature on it marked as Ext.5/1. P.W.6 deposed that on further interrogation accused confessed that he had given the stolen TV to one Ishwar Das of Shanti colony, Oram Pada and accordingly I.O proceeded to the house of Ishwar Das and seized the stolen Samsung TV and prepared seizure list which is marked as Ext.6 and his signature on it marked as Ext.6/1. P.W.6 deposed that on 31.08.2017 he gave the seized Samsung TV, 5 nos. of plastic moulded chairs, one set up box to the complainant in zima by executing a zimanma which is marked as Ext.2 and his signature on it marked as Ext.2/2. On perusal of the statement recorded by P.W.6 U/sec.27 Indian Evidence Act regarding leading to discovery of the stolen items, it is revealed that the same was made in presence of three independent witnesses namely Chalu Oram, Adison Surin and Munna Sharma. The witnesses have been examined by the prosecution as P.W.7, P.W.8 and P.W.5 respectively. But the evidence of P.W.5, P.W.7 and P.W.8 creates lots of doubt as it has absolutely no incoherence with the facts mentioned by P.W.6 in his evidence. P.W.5 stated in his evidence that on 20.08.2017 at about 10.30 A.M he saw that the door of the Old Bar Association at Uditnagar was broken and found that the TV, setup box and chairs were missing. P.W.7 and P.W.8 stated that they donot know anything about this case and nothing has been seized in their presence. P.W.7 admitted his signatures which are marked as Ext.4/2, Ext.5/2 and P.W.6/2 respectively. P.W.8 admitted his signatures which are marked as Ext.4/3, Ext.5/3 and Ext.6/3 respectively. P.W.5, P.W.7 and P.W.8 have not whisper a single word with regard to leading to discovery given by the accused for recovery of the stolen items which is alleged to have been seized after being discovered being lead by the accused.\nHence I do not find the evidence of P.W.5, P.W.7 and P.W.8 in any way supporting the evidence of P.W.6. There is enough contradiction in the evidence of P.W.5, P.W.7, P.W.8 and P.W.6. It also creates reasonable doubt with regard to the statement marked as Ext.4 i.e. the statement of the accused recorded U/sec.27 Indian Evidence Act.\n Since the vital witnesses i.e P.W.5, P.W.7 and P.W.8 have not mentioned anything regarding leading to discovery , this court can not relay solely on the evidence of P.W.6 in this regard. P.W.1stated in his evidence that on 19.08.2017 he closed the Room No.03 of Old Rourkela Bar Association office at about 5 P.M and locked the same.\n On the next day i.e. on 20.08.2017 at about 10 A.M he went to Old Bar Association Office and found that the lock of the Room No.10 was broken. He further deposed that he went inside the room and found that one Samsung TV and 5 nos. of plastic chairs were stolen away. P.W.2 and P.W.3 stated in their evidence that 20.08.2017 at about 9.30 A.M on receipt of intimation from P.W.1 regarding broken of door lock of Old Bar Association, they went inside the Room No.03 and fond that TV and 5 nos. of chairs have been stolen away. The evidence of P.W-1, P.W-2 and P.W-3 only proves the fact of the alleged theft but the involvement of the present accused persons is not established from the evidence adduced by them 9. In such state of evidence this court finds that there is insufficient material to hold the accused persons guilty of the alleged offences. In the result, the accused persons are held not guilty of the offences punishable U/s 457/380/411 of I.P.C and are acquitted therefrom as per section 248(1) Cr.P.C. The accused persons be set at liberty forthwith.\n Enter the case as mistake of fact.\n Status of accused persons- Accused persons are present in the court in custody as UTP.\n Pronounced the judgment in the open court on this the 16th day of January, 2018, under my seal and signature.\n S.D.J.M.,Panposh.\n Dictated in official laptop & corrected by me.\n S.D.J.M., Panposh.\n List of witnesses for prosecution :- P.W.1 : Johan Tirkey P.W.2: Pabitra Kumar Jena P.W.3: Arun Kumar Patra P.W.4: Ramesh Chandra Bal P.W.5: Muna Sharma P.W.6: Dileswar Rout P.W.7: Chulu Oram P.W.8:Adison Surin List of witnesses for Defence :- -None- List the Exhibits marked for Prosecution :- Ext.1 F.I.R Ext.1/1 Signature of P.W.4 on Ext.1 Ext.1/2 Signature of IIC on Ext.1 Ext.2 Zimanama.\nExt.2/1 Signature of P.W.1 on Ext.2.\nExt.2/2 Signature of P.W.6 on Ext.2 Ext.3 Spot map Ext.3/1 Signature of P.W.6 on Ext.3 Ext.4 Statement of U/sec.27 Evidence Act.\nExt.4/1 Signature of P.W.6 on Ext.4 Ext.4/2 Signature of P.W.7 on Ext.4 Ext.4/3 Signature of P.W.8 on Ext.4 Ext.5 Seizure list Ext.5/1 Signature of P.W.6 on Ext.5 Ext.5/2 Signature of P.W.8 on Ext.5 Ext.6 Seizure list Ext.6/1 Signature of P.W.6 on Ext.6 Ext.6/2 Signature of P.W.7 on Ext.6 Ext.6/3 Signature of P.W.8 on Ext.6 List of Exhibits marked for Defence :- -NIL- S.D.J.M.,Panposh.\n "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
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"value": {
"end": 41,
"labels": [
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],
"start": 0,
"text": "IN THE HIGH COURT OF JUDICATURE AT BOMBAY"
}
},
{
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"id": "a1d45628802a44cd85bbea29d7f1bc27",
"to_name": null,
"type": null,
"value": {
"end": 81,
"labels": [
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],
"start": 41,
"text": "\n NAGPUR BENCH : NAGPUR"
}
},
{
"from_name": null,
"id": "71887e5ceebc441b916f6c70e9fc37bc",
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"text": "\n\n CRIMINAL APPEAL NO.67 OF 2015"
}
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"text": "\n WITH\n\n CRIMINAL APPEAL NO. 48 OF 2016\n ...\n\n"
}
},
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"text": "CRIMINAL APPEAL NO.67 OF 2015"
}
},
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"start": 287,
"text": "\n\nThe State of Maharashtra,\nthrough the Police Station Officer,\nGhuggus Police Station,\nTahsil and District Chandrapur."
}
},
{
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"start": 407,
"text": " .. APPELLANT"
}
},
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"end": 797,
"labels": [
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],
"start": 432,
"text": "\n\n .. Versus ..\n\nSurajprasad @ Rajkumar s/o\nShivcharan Roy, aged about 49 years,\nOccupation: Driver, R/o Sukaluthana,\nTahs. and District Chhindwara (M.P.)\npresently Opposite Bank of India,\nChandrapur, Tah. and District\nChandrapur. .. RESPONDENT\n\nMr.S.M. Ukey, Additional Public Prosecutor for Appellant."
}
},
{
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"start": 797,
"text": "\nMr. R.P. Thote, Advocate (Appointed) for Respondent."
}
},
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"text": "\n\n ...."
}
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"labels": [
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],
"start": 886,
"text": "CRIMINAL APPEAL NO.48 OF 2016\nSurajprasad @ Rajkumar s/o\nShivcharan Roy, aged about 50 years,\nOccupation: Driver, R/o Sukaluthana,\nTahsil and District Chhindwara (M.P.)\npresently Opposite Bank of India,\n\nChandrapur, Tah. and District\nChandrapur."
}
},
{
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"start": 1163,
"text": ".. APPELLANT\n\n .. VERSUS..\n\n"
}
},
{
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"id": "980954f351b3496f914b742605f7c7c0",
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"start": 1221,
"text": "The State of Maharashtra,"
}
},
{
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"start": 1246,
"text": "\nthrough Police Station Officer,\nPolice Station, Ghuggus,"
}
},
{
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"text": "\nTah. and District Chandrapur"
}
},
{
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"id": "bce44a78c62b4af7a9e9deb2cfaca27e",
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"end": 1363,
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"start": 1332,
"text": ". .. RESPONDENT\n\n"
}
},
{
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"value": {
"end": 1414,
"labels": [
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],
"start": 1363,
"text": "Mr. R.P. Thote, Advocate (Appointed) for Appellant."
}
},
{
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"id": "fdfca130716f4cedb23e3692634e61b7",
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"labels": [
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],
"start": 1414,
"text": "\nMr.S.M. Ukey, Additional Public Prosecutor for Respondent."
}
},
{
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"start": 1473,
"text": "\n\n ...."
}
},
{
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"id": "10d760de86004940a0eb4d85198bdb93",
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"end": 1529,
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],
"start": 1522,
"text": "\n\nCORAM"
}
},
{
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"id": "d118faff5876435ba88863a0eab53bee",
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"value": {
"end": 1591,
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"start": 1554,
"text": ": R.K. Deshpande & Manish Pitale, JJ."
}
},
{
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"id": "96f89d9b189e448b89ae16197680b152",
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"end": 1654,
"labels": [
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"start": 1591,
"text": "\nRESERVED ON : August 08, 2017\nPRONOUNCED ON : August 11, 2017."
}
},
{
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"id": "a68741071e5d414791f1000e323d5817",
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"value": {
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],
"start": 1656,
"text": "JUDGMENT"
}
},
{
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"value": {
"end": 1689,
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],
"start": 1664,
"text": " (per Manish Pitale, J. )"
}
},
{
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"value": {
"end": 1739,
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"start": 1690,
"text": "By this judgment we are disposing of two appeals."
}
},
{
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"value": {
"end": 2293,
"labels": [
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"start": 1739,
"text": "\nCriminal Appeal No. 48 of 2016 has been filed by the accused challenging the judgment and order dated 18.12.2014 passed by the Special Court, Chandrapur in Special (Child) Case No. 8 of 2013, whereby the accused-appellant has been convicted under Section 376(2)(f)(i) of the Indian Penal Code ( \"IPC\") read with Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (\"POCSO Act\") and sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs.1,000/- and in default to suffer rigorous imprisonment for 3 months."
}
},
{
"from_name": null,
"id": "a2c92af0d8a14864914a5dc4c1dd1daa",
"to_name": null,
"type": null,
"value": {
"end": 2537,
"labels": [
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],
"start": 2294,
"text": "Criminal Appeal No.67 of 2015 has been filed by the State praying for enhancement of punishment, claiming that the sentence imposed on the accused of rigorous imprisonment for 10 years is inadequate, in the facts and circumstances of the case."
}
},
{
"from_name": null,
"id": "97edf859a1f641cf8b14a6373cde376b",
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"type": null,
"value": {
"end": 2833,
"labels": [
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],
"start": 2537,
"text": "\n 2. The prosecution case is that on 14.07.2013 the accused, stepfather of the victim/complainant (hereinafter referred to as \"the prosecutrix\"), came to his house at about 1 p.m. and gave to Rs.10/- to the prosecutrix and Rs.2/- each to her brothers for purchasing snacks from the grocery shop."
}
},
{
"from_name": null,
"id": "155304d63c784eebac240e17ce401026",
"to_name": null,
"type": null,
"value": {
"end": 2974,
"labels": [
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],
"start": 2834,
"text": "The children, including the prosecutrix, returned home at about 2.30 p.m., when the accused asked his sons to go and play outside the house."
}
},
{
"from_name": null,
"id": "9d735b2f4557455cb6e9caa0d09ddd57",
"to_name": null,
"type": null,
"value": {
"end": 3104,
"labels": [
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],
"start": 2976,
"text": "3. The accused then called the prosecutrix inside the house, closing the door from inside and he put her on a mat on the floor."
}
},
{
"from_name": null,
"id": "3f99175810574f8fbc48dd4f9647bd8c",
"to_name": null,
"type": null,
"value": {
"end": 3162,
"labels": [
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],
"start": 3105,
"text": "He then removed her slack and knicker and threatened her."
}
},
{
"from_name": null,
"id": "14c258e7efd0414f95bef12939e5c6fb",
"to_name": null,
"type": null,
"value": {
"end": 3290,
"labels": [
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],
"start": 3163,
"text": "The accused laid the prosecutrix on the mat and upon removing his pant, he inserted his penis in the vagina of the prosecutrix."
}
},
{
"from_name": null,
"id": "676fac75798642759c61592c8eda2619",
"to_name": null,
"type": null,
"value": {
"end": 3386,
"labels": [
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],
"start": 3291,
"text": "Due to pain, she started weeping, upon which her mother came to the house and knocked the door."
}
},
{
"from_name": null,
"id": "cf24edccf85f4cf6b0bf23a4dfc3becd",
"to_name": null,
"type": null,
"value": {
"end": 3519,
"labels": [
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],
"start": 3386,
"text": "\n The accused wore his clothes, opened the door and after quarreling with the mother of the prosecutrix, he left the house.\n 4. "
}
},
{
"from_name": null,
"id": "6b4773e375b6478cb4e523953be87293",
"to_name": null,
"type": null,
"value": {
"end": 3643,
"labels": [
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],
"start": 3519,
"text": "The mother (PW2) and a neighbor Vandana (PW4) claimed to have seen the aforesaid incident from gap in the door of the house."
}
},
{
"from_name": null,
"id": "59dd22806589483daa0a4f6f69f14c12",
"to_name": null,
"type": null,
"value": {
"end": 3653,
"labels": [
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],
"start": 3645,
"text": "5. "
}
},
{
"from_name": null,
"id": "27da0c3b39e84fae8baf184aacfec9e3",
"to_name": null,
"type": null,
"value": {
"end": 4006,
"labels": [
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],
"start": 3653,
"text": "The prosecutrix went along with her mother to the Police Station and lodged an oral report on the same day i.e. on 14.07.2013, pursuant to which first information report (FIR Exh.20) was registered on the same day against the accused for having committed the offences under Sections 376(2)(f) and 506 of the I.P.C. and Sections 4 and 6 of the POCSO Act."
}
},
{
"from_name": null,
"id": "45a0adb2c5e04390ad557c10b96e16b0",
"to_name": null,
"type": null,
"value": {
"end": 4195,
"labels": [
"FAC"
],
"start": 4006,
"text": "\n The allegation by the prosecutrix, being a minor, of rape against her own stepfather was a serious matter and the investigating authority immediately referred her for medical examination."
}
},
{
"from_name": null,
"id": "334074dbd0414935897bea4f48ef8227",
"to_name": null,
"type": null,
"value": {
"end": 4335,
"labels": [
"FAC"
],
"start": 4195,
"text": "\n 6. The prosecutrix was medically examined by the Medical Officer Dr. Dipti (PW9) on 14.07.2013 at the General Hospital in Chandrapur."
}
},
{
"from_name": null,
"id": "ad737283dbc44d5d866ea77fe5501a91",
"to_name": null,
"type": null,
"value": {
"end": 4540,
"labels": [
"FAC"
],
"start": 4336,
"text": "The said doctor issued a medical certificate (Exh.45) certifying that there was redness present on labia majora, labia minora all over and that hymen was freshly torn at the 3, 9 and 6 'O' clock position."
}
},
{
"from_name": null,
"id": "b7e29de609674e6ea2069f6220d8dc6b",
"to_name": null,
"type": null,
"value": {
"end": 4657,
"labels": [
"FAC"
],
"start": 4540,
"text": "\n 7. The Investigating Officer arrested the accused and seized his clothes and they were sent for chemical analysis."
}
},
{
"from_name": null,
"id": "46f6f562f3264b9b9bbcd60492bafba9",
"to_name": null,
"type": null,
"value": {
"end": 4793,
"labels": [
"FAC"
],
"start": 4658,
"text": "It is relevant to mention here that the accused was also medically examined and it was found that he was capable of sexual intercourse."
}
},
{
"from_name": null,
"id": "e237bbd1496e468297d9f4986a24bea4",
"to_name": null,
"type": null,
"value": {
"end": 4958,
"labels": [
"FAC"
],
"start": 4793,
"text": "\n 8. In order to prove its case, the prosecution examined 10 witnesses, of whom PW2 (mother of the prosecutrix) and PW3 (neighbor) are eyewitnesses to the incident."
}
},
{
"from_name": null,
"id": "05f9cb7bccfd463e98607fab6fc96e1d",
"to_name": null,
"type": null,
"value": {
"end": 5124,
"labels": [
"FAC"
],
"start": 4959,
"text": "PW5 is the Headmistress of the School, who has proved the date of birth of the prosecutrix as 8.8.2003 to show that she was aged 9 years on the date of the incident."
}
},
{
"from_name": null,
"id": "aaa93b4fa7fa467c8a747fe7501fbb5e",
"to_name": null,
"type": null,
"value": {
"end": 5248,
"labels": [
"FAC"
],
"start": 5125,
"text": "PW8 is the Investigating Officer and PW9 is the Doctor who had examined the prosecutrix and issued the medical certificate."
}
},
{
"from_name": null,
"id": "f3e8f2d2d7b244e2a8b7a6045919c002",
"to_name": null,
"type": null,
"value": {
"end": 5366,
"labels": [
"RLC"
],
"start": 5248,
"text": "\n 9. The Special Court considered the case of the prosecution as well as the defence raised on behalf of the accused."
}
},
{
"from_name": null,
"id": "ed9fe36745a64f0ebb6387e9687c8b5f",
"to_name": null,
"type": null,
"value": {
"end": 5536,
"labels": [
"RLC"
],
"start": 5367,
"text": "It found that the prosecution had been able to prove its case beyond reasonable doubt and that there was sufficient material on record to prove the guilt of the accused."
}
},
{
"from_name": null,
"id": "a8649d61bbdc4251b9cb1c589919a5dc",
"to_name": null,
"type": null,
"value": {
"end": 5619,
"labels": [
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],
"start": 5537,
"text": "On this basis, the Special Court convicted and sentenced the accused as aforesaid."
}
},
{
"from_name": null,
"id": "1cb7ba4a8327474bb41038d00d4976d3",
"to_name": null,
"type": null,
"value": {
"end": 5775,
"labels": [
"FAC"
],
"start": 5619,
"text": "\n 10. As stated above, the accused as well as the State have filed appeals before this court against the aforesaid judgment and order of the Special Court."
}
},
{
"from_name": null,
"id": "7bc46dd1d0bd48019a1a78908c7a94cd",
"to_name": null,
"type": null,
"value": {
"end": 5849,
"labels": [
"ANALYSIS"
],
"start": 5776,
"text": "The two appeals are being considered and decided by this common judgment."
}
},
{
"from_name": null,
"id": "be07acd61c0b4038805ec4394e8f6da7",
"to_name": null,
"type": null,
"value": {
"end": 5892,
"labels": [
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],
"start": 5849,
"text": "\n As Regards Criminal Appeal No.48 of 2016."
}
},
{
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"id": "e24250ed0d1f48bab7064b0a2494b55b",
"to_name": null,
"type": null,
"value": {
"end": 6142,
"labels": [
"ARG_PETITIONER"
],
"start": 5892,
"text": "\n 11. In support of the appeal filed by the accused/appellant, Mr. R.P. Thote, learned counsel submitted that there were contradictions in the evidence and material on record and that the Special Court erred in convicting and sentencing the accused."
}
},
{
"from_name": null,
"id": "08f4f9f140a3487f8f912d92bd089250",
"to_name": null,
"type": null,
"value": {
"end": 6854,
"labels": [
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],
"start": 6143,
"text": "He contended that the version of the prosecutrix was not corroborated by other witnesses, that there was no evidence to prove penetration in the instant case to constitute the offence of rape as defined in Section 375 of the Indian Penal Code, that the prosecutrix herself had stated in her deposition that her mother had brushed her vagina by finger before taking her to the hospital for medical examination, thereby explaining the redness on parts of vagina and further that the accused was falsely implicated because the mother of the prosecutrix, i.e. wife of the accused, used to regularly fight and quarrel with him and that it was at her behest that the prosecutrix had launched a false case against him."
}
},
{
"from_name": null,
"id": "6fcd8ee360954ce1a2c9cecae19fb774",
"to_name": null,
"type": null,
"value": {
"end": 7140,
"labels": [
"ARG_PETITIONER"
],
"start": 6855,
"text": "The learned counsel for the accused/appellant also contended that the chemical analysis reports (Exhs. 39 and 40) showed that neither blood nor semen was detected on the clothes of the accused or the vaginal swab, thereby showing that the allegation of rape made against him was false."
}
},
{
"from_name": null,
"id": "559f99a11c9945b780b9b301f4b80cff",
"to_name": null,
"type": null,
"value": {
"end": 7434,
"labels": [
"ARG_RESPONDENT"
],
"start": 7140,
"text": "\n 12. As against this, Mr. S.M. Ukey, learned Additional Public Prosecutor appearing for the respondent/State submitted that there was ample evidence and material on record to prove the case against the accused and that the Special Court was justified in convicting and sentencing the accused."
}
},
{
"from_name": null,
"id": "5a041f2858264dd99238208891766f0a",
"to_name": null,
"type": null,
"value": {
"end": 7578,
"labels": [
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],
"start": 7435,
"text": "The learned A.P.P. for the respondent/State heavily relied upon the evidence of PW2, PW3 (prosecutrix), PW4 and PW9 to support his contentions."
}
},
{
"from_name": null,
"id": "babf7df3c8c241eebb617bbd3740b440",
"to_name": null,
"type": null,
"value": {
"end": 7913,
"labels": [
"ARG_RESPONDENT"
],
"start": 7579,
"text": "On the question of the requirement of penetration in respect of offence of rape as defined in Section 375 of the I.P.C., the learned A.P.P. for the respondent/State relied upon judgments of the Hon'ble Supreme Court in the case of State of U.P. .vs. Babul Nath (1994) 6 Supreme Court Cases 29 and in the case of Aman Kumar and another"
}
},
{
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"id": "d7db5713ae4c44bb9e6d2abc8636f93f",
"to_name": null,
"type": null,
"value": {
"end": 7975,
"labels": [
"ARG_RESPONDENT"
],
"start": 7914,
"text": ".vs. State of Haryana (2004) 4 Supreme Court Cases 379.\n 13."
}
},
{
"from_name": null,
"id": "e789f5b20b734a3ca8d92ce47174d06f",
"to_name": null,
"type": null,
"value": {
"end": 8043,
"labels": [
"ANALYSIS"
],
"start": 7976,
"text": " We have heard the learned counsel for the parties at length."
}
},
{
"from_name": null,
"id": "8a3145ac198f43ee92366a152d47d75d",
"to_name": null,
"type": null,
"value": {
"end": 8242,
"labels": [
"STA"
],
"start": 8044,
"text": "A perusal of Section 375 of the I.P.C. would show that one of the most important facets in the definition of rape is penetration into parts of the body of a woman as specified in the said provision."
}
},
{
"from_name": null,
"id": "84a06336f4884d9c95fc299711c65e45",
"to_name": null,
"type": null,
"value": {
"end": 8451,
"labels": [
"ANALYSIS"
],
"start": 8243,
"text": "Thus, it becomes necessary to examine the evidence and material on record to come to a finding as to whether there was penetration in the instant case for the offence of rape to be proved against the accused."
}
},
{
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"id": "36f96ad4b5e24c25b045f9bd95363491",
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"value": {
"end": 8705,
"labels": [
"ANALYSIS"
],
"start": 8452,
"text": "In order to do that, it would be advantageous to understand the position of law, as laid down by the Hon'ble Supreme Court with regard to the question of penetration in the context of the offence of rape, defined in Section 375 of the Indian Penal Code."
}
},
{
"from_name": null,
"id": "11b45b62685443ec9f649896bbb55aca",
"to_name": null,
"type": null,
"value": {
"end": 8840,
"labels": [
"PRE_RELIED"
],
"start": 8705,
"text": "\n 14. In its judgment in the case of State of U.P. .vs.\n Babul Nath (supra), the Hon'ble Supreme Court has held as follows:- \"8."
}
},
{
"from_name": null,
"id": "9e410d49669e4860a2cde035975de729",
"to_name": null,
"type": null,
"value": {
"end": 9072,
"labels": [
"PRE_RELIED"
],
"start": 8841,
"text": "It may here be noticed that Section 375 of the IPC defines rape and the Explanation to Section 375 reads as follows: \"Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.\"\n "
}
},
{
"from_name": null,
"id": "4d42a0b7b1584492920845de01be8f47",
"to_name": null,
"type": null,
"value": {
"end": 9259,
"labels": [
"ANALYSIS"
],
"start": 9072,
"text": "From the Explanation reproduced above it is distinctly clear that ingredients which are essential for proving a charge of rape are the accomplishment of the act with force and resistance."
}
},
{
"from_name": null,
"id": "6937ebf00fa14e369585057dfb635e0f",
"to_name": null,
"type": null,
"value": {
"end": 9481,
"labels": [
"ANALYSIS"
],
"start": 9260,
"text": "To constitute the offence of rape neither Section 375 of IPC nor the Explanation attached thereto require that there should necessarily be complete penetration of the penis into the private part of the victim/prosecutrix."
}
},
{
"from_name": null,
"id": "50c819fcd2844ed3941ebeb6f1bc2122",
"to_name": null,
"type": null,
"value": {
"end": 9662,
"labels": [
"ANALYSIS"
],
"start": 9482,
"text": "In other words to constitute the offence of rape it is not at all necessary that there should be complete penetration of the male organ with emission of semen and rupture of hymen."
}
},
{
"from_name": null,
"id": "47c6a2685f9844308b51bf03e309ebf7",
"to_name": null,
"type": null,
"value": {
"end": 9944,
"labels": [
"ANALYSIS"
],
"start": 9663,
"text": "Even partial or slightest penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim would be quite enough for the purpose of Sections 375 and 376 of IPC."
}
},
{
"from_name": null,
"id": "a4d41b655f3648f5b6b8644e799b840a",
"to_name": null,
"type": null,
"value": {
"end": 10096,
"labels": [
"ANALYSIS"
],
"start": 9945,
"text": "That being so it is quite possible to commit legally the offence of rape even without causing any injury to the genitals or leaving any seminal stains."
}
},
{
"from_name": null,
"id": "5eb9dd058c704b889598e22b6f83c8fe",
"to_name": null,
"type": null,
"value": {
"end": 10410,
"labels": [
"ANALYSIS"
],
"start": 10097,
"text": "But in the present case before us as noticed above there is more than enough evidence positively showing that there was sexual activity on the victim and she was subjected to sexual assault without which she would not have sustained injuries of the nature found on her private part by the doctor who examined her."
}
},
{
"from_name": null,
"id": "eab2c9eec0fd4788ba28ac89697a08d5",
"to_name": null,
"type": null,
"value": {
"end": 10647,
"labels": [
"PRE_RELIED"
],
"start": 10411,
"text": "\"\n 15. It has been further held by the Hon'ble Supreme Court in the case of Aman Kumar and another .vs. State of Haryana (supra) as follows:- \"7. .........The rupture of hymen is by no means necessary to constitute the offence of rape."
}
},
{
"from_name": null,
"id": "dc015850bcc74e838989401a1d51d2e2",
"to_name": null,
"type": null,
"value": {
"end": 10777,
"labels": [
"PRE_RELIED"
],
"start": 10648,
"text": "Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary."
}
},
{
"from_name": null,
"id": "76462046da23400b85239c38243a670c",
"to_name": null,
"type": null,
"value": {
"end": 10860,
"labels": [
"PRE_RELIED"
],
"start": 10778,
"text": "Vulva penetration with or without violence is as much rape as vaginal penetration."
}
},
{
"from_name": null,
"id": "f65fa1016f97433bb7978bf3590759ed",
"to_name": null,
"type": null,
"value": {
"end": 10965,
"labels": [
"PRE_RELIED"
],
"start": 10861,
"text": "The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact."
}
},
{
"from_name": null,
"id": "5dc4292703e7466a865500af12fa0329",
"to_name": null,
"type": null,
"value": {
"end": 11010,
"labels": [
"PRE_RELIED"
],
"start": 10966,
"text": "The actus reus is complete with penetration."
}
},
{
"from_name": null,
"id": "3e1d30b70eda45e488a3ee579f71d174",
"to_name": null,
"type": null,
"value": {
"end": 11183,
"labels": [
"PRE_RELIED"
],
"start": 11011,
"text": "It is well settled that the prosecutrix cannot be considered as accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence of rape."
}
},
{
"from_name": null,
"id": "3aae0d91a87e41d1940a80a8fce05aa3",
"to_name": null,
"type": null,
"value": {
"end": 11263,
"labels": [
"PRE_RELIED"
],
"start": 11184,
"text": "In examination of genital organs, state of hymen offers the most reliable clue."
}
},
{
"from_name": null,
"id": "ce47b90203dc447a805659e406e4c70c",
"to_name": null,
"type": null,
"value": {
"end": 11397,
"labels": [
"PRE_RELIED"
],
"start": 11263,
"text": "\nWhile examining the hymen, certain anatomical characteristics should be remembered before assigning any significance to the findings."
}
},
{
"from_name": null,
"id": "267484226a8649a49b1614374bd0891a",
"to_name": null,
"type": null,
"value": {
"end": 11449,
"labels": [
"PRE_RELIED"
],
"start": 11398,
"text": "The shape and the texture of the hymen is variable."
}
},
{
"from_name": null,
"id": "49b568e9791845368b221a5436f2de4a",
"to_name": null,
"type": null,
"value": {
"end": 11511,
"labels": [
"PRE_RELIED"
],
"start": 11449,
"text": "\nThis variation, sometimes permits penetration without injury."
}
},
{
"from_name": null,
"id": "b5ce719cb545466896cc99d83aa241d2",
"to_name": null,
"type": null,
"value": {
"end": 11598,
"labels": [
"PRE_RELIED"
],
"start": 11512,
"text": "This is possible because of the peculiar shape of the orifice or increased elasticity."
}
},
{
"from_name": null,
"id": "c60f992f72c3415bab4fe50e574f6ab4",
"to_name": null,
"type": null,
"value": {
"end": 11710,
"labels": [
"PRE_RELIED"
],
"start": 11599,
"text": "On the other hand, sometimes the hymen may be more firm, less elastic and gets stretched and lacerated earlier."
}
},
{
"from_name": null,
"id": "8c0fc0e322834225a85b16cf311daf24",
"to_name": null,
"type": null,
"value": {
"end": 11829,
"labels": [
"PRE_RELIED"
],
"start": 11711,
"text": "Thus a relatively less forceful penetration may not give rise to injuries ordinarily possible with a forceful attempt."
}
},
{
"from_name": null,
"id": "cd2e4df43b7743b0871e29f5d72f649a",
"to_name": null,
"type": null,
"value": {
"end": 11929,
"labels": [
"PRE_RELIED"
],
"start": 11829,
"text": "\nThe anatomical feature with regard to hymen which merits consideration is its anatomical situation."
}
},
{
"from_name": null,
"id": "33b73cc6ab0c4f4e9944a3c4401ca373",
"to_name": null,
"type": null,
"value": {
"end": 12034,
"labels": [
"PRE_RELIED"
],
"start": 11930,
"text": "Next to hymen in positive importance, but more than that in frequency, are the injuries on labia majora."
}
},
{
"from_name": null,
"id": "f79ae954af08486b874915ac2ffb60b0",
"to_name": null,
"type": null,
"value": {
"end": 12110,
"labels": [
"PRE_RELIED"
],
"start": 12035,
"text": "These, viz. labia majora are the first to be encountered by the male organ."
}
},
{
"from_name": null,
"id": "14061b73dea84d309f820c8b9a6bf815",
"to_name": null,
"type": null,
"value": {
"end": 12240,
"labels": [
"PRE_RELIED"
],
"start": 12111,
"text": "They are subjected to blunt forceful blows, depending on the vigour and force used by the accused and counteracted by the victim."
}
},
{
"from_name": null,
"id": "ccac2c4925f64877a7b301c056c1849f",
"to_name": null,
"type": null,
"value": {
"end": 12362,
"labels": [
"PRE_RELIED"
],
"start": 12241,
"text": "Further, examination of the females for marks of injuries elsewhere on the body forms a very important piece of evidence."
}
},
{
"from_name": null,
"id": "d27dfeb0530c4978b9d1035d406343a0",
"to_name": null,
"type": null,
"value": {
"end": 12517,
"labels": [
"PRE_RELIED"
],
"start": 12363,
"text": "To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen."
}
},
{
"from_name": null,
"id": "724d53ceb5fd4dca84d62b4d36ed521b",
"to_name": null,
"type": null,
"value": {
"end": 12691,
"labels": [
"PRE_RELIED"
],
"start": 12518,
"text": "Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law."
}
},
{
"from_name": null,
"id": "b12e8db548ff48e7af7d7452356798ff",
"to_name": null,
"type": null,
"value": {
"end": 12783,
"labels": [
"PRE_RELIED"
],
"start": 12692,
"text": "The depth of penetration is immaterial in an offence punishable under Section 376 IPC.\n 16."
}
},
{
"from_name": null,
"id": "abf638524d8c45edb0da93fd8394ee8c",
"to_name": null,
"type": null,
"value": {
"end": 13048,
"labels": [
"ANALYSIS"
],
"start": 12785,
"text": "The aforesaid position of law and a perusal of Section 375 of the I.P.C. would show that in order to constitute the offence of rape, it is not at all necessary that there should be complete penetration of the male organ with emission of semen or rupture of hymen."
}
},
{
"from_name": null,
"id": "3153dc2fdd6047159e752c2ce4f740a8",
"to_name": null,
"type": null,
"value": {
"end": 13279,
"labels": [
"ANALYSIS"
],
"start": 13049,
"text": "It has been held that even a partial or slightest penetration of the male organ within the labia majora or the vulva without any emission of semen, would be quite enough for the purpose of Sections 375 and 376 of the I.P.C.\n 17. "
}
},
{
"from_name": null,
"id": "6bc870b2c8164fda8db73f2a0ee2ab3e",
"to_name": null,
"type": null,
"value": {
"end": 13626,
"labels": [
"ANALYSIS"
],
"start": 13279,
"text": "Applying the said position of law to the facts of the present case, it would be evident that the accused has indeed committed rape on the prosecutrix and that he is liable for conviction under Section 376(2)(f) (i) of the I.P.C. , being a relative of the prosecutrix and the fact that she was less than 16 years of age at the time of the incident."
}
},
{
"from_name": null,
"id": "39a0226a9ec84c47a7e5e1a371b812f1",
"to_name": null,
"type": null,
"value": {
"end": 13895,
"labels": [
"ANALYSIS"
],
"start": 13627,
"text": "The fact that there has been penetration in the instant case is clear from the medical evidence wherein the Doctor (PW9) has found that there is redness all over the various parts of vagina and that hymen has suffered fresh rupture at the 3,6 and 9 'O' clock position."
}
},
{
"from_name": null,
"id": "421400bfb0914903a68fd8c61a6714a0",
"to_name": null,
"type": null,
"value": {
"end": 14071,
"labels": [
"ANALYSIS"
],
"start": 13896,
"text": "In fact the Doctor has deposed on the basis of examination of the prosecutrix on the very day of the incident that there was sexual intercourse committed with the prosecutrix."
}
},
{
"from_name": null,
"id": "12c506b31c544591b76104a0484c9a42",
"to_name": null,
"type": null,
"value": {
"end": 14279,
"labels": [
"ANALYSIS"
],
"start": 14072,
"text": "Thus, there is no substance in the contention raised by the learned counsel for the accused- appellant that in the absence of penetration, there was no rape committed on the prosecutrtix in the present case."
}
},
{
"from_name": null,
"id": "0658c7c89d214859972fe436a635b03e",
"to_name": null,
"type": null,
"value": {
"end": 14445,
"labels": [
"ANALYSIS"
],
"start": 14279,
"text": "\n 18. The contention raised on behalf of the learned counsel for the accused-appellant that the evidence of the prosecutrix was not corroborated, cannot be accepted."
}
},
{
"from_name": null,
"id": "7434c06bae2f4ac7b68b4bf21f16c31f",
"to_name": null,
"type": null,
"value": {
"end": 14630,
"labels": [
"ANALYSIS"
],
"start": 14446,
"text": "An analysis of the evidence on record would show that there were two eyewitnesses to the incident i.e. PW2 Tarabai Roy (mother of the prosecutrix) and PW4 Vandana Chaudhari (neighbor)."
}
},
{
"from_name": null,
"id": "c341962876ee41e0aa5d97b42ca5712b",
"to_name": null,
"type": null,
"value": {
"end": 14848,
"labels": [
"ANALYSIS"
],
"start": 14630,
"text": "\n PW2 (mother of prosecutrix) stated in her deposition that when she returned home and found the door of the house closed from inside, she knocked on the door and at that time PW4 (neighbour) was also accompanying her."
}
},
{
"from_name": null,
"id": "604aae16c7eb454e96dbb812fde36468",
"to_name": null,
"type": null,
"value": {
"end": 15011,
"labels": [
"ANALYSIS"
],
"start": 14849,
"text": "As the accused did not open the door, PW2 stated that she saw from the gap in the door that the prosecutrix was lying on the mat and the accused was lying on her."
}
},
{
"from_name": null,
"id": "3a35e49ca8394d91a01b8386165661ec",
"to_name": null,
"type": null,
"value": {
"end": 15133,
"labels": [
"ANALYSIS"
],
"start": 15012,
"text": "The slack and knicker of the prosecutrix was lying outside and that the accused did not have his full pant on his person."
}
},
{
"from_name": null,
"id": "514dd6c630bd42fa9b4cc680486d64f6",
"to_name": null,
"type": null,
"value": {
"end": 15226,
"labels": [
"ANALYSIS"
],
"start": 15134,
"text": "PW2 then deposed that she shouted, upon which the accused wore his pant and opened the door."
}
},
{
"from_name": null,
"id": "87d497ae8413496ba52e7664c4045092",
"to_name": null,
"type": null,
"value": {
"end": 15268,
"labels": [
"ANALYSIS"
],
"start": 15227,
"text": "He quarreled with her and left the house."
}
},
{
"from_name": null,
"id": "3d5872c2c2e949739dc81ff908a06ba7",
"to_name": null,
"type": null,
"value": {
"end": 15437,
"labels": [
"ANALYSIS"
],
"start": 15268,
"text": "\n 19. Similarly PW4 (neighbour) stated in her deposition that she along with PW2 saw the incident and that the accused was found establishing sex with his own daughter."
}
},
{
"from_name": null,
"id": "694eeaabf2054c9480c845397616ef43",
"to_name": null,
"type": null,
"value": {
"end": 15513,
"labels": [
"ANALYSIS"
],
"start": 15438,
"text": "The other details were stated by PW4 in the same manner as narrated by PW2."
}
},
{
"from_name": null,
"id": "bfd14220534147cfbf014da624bdc2a0",
"to_name": null,
"type": null,
"value": {
"end": 15629,
"labels": [
"ANALYSIS"
],
"start": 15514,
"text": "The version of the said two eyewitnesses fully corroborates the narration of the incident given by the prosecutrix."
}
},
{
"from_name": null,
"id": "74f999bba16041e6af8cc450f01d3224",
"to_name": null,
"type": null,
"value": {
"end": 15713,
"labels": [
"ANALYSIS"
],
"start": 15630,
"text": "In the cross-examination, the version of the said eyewitnesses has not been shaken."
}
},
{
"from_name": null,
"id": "e13bcb8eedaa4e80a94f15e8294eefb2",
"to_name": null,
"type": null,
"value": {
"end": 15831,
"labels": [
"ANALYSIS"
],
"start": 15714,
"text": "Even otherwise, in the case of proving the offence of rape uncorroborated testimony of the prosecutrix is sufficient."
}
},
{
"from_name": null,
"id": "9dcbf1a15f2346a799a75ac7b8cfb37f",
"to_name": null,
"type": null,
"value": {
"end": 16392,
"labels": [
"PRE_RELIED"
],
"start": 15832,
"text": "It has been held by the Hon'ble Supreme Court in the case of State of Himachal Pradesh .vs. Raghubir Singh (1993) 2 Supreme Court Cases 622 that there is no legal compulsion to look for corroboration of the evidence of the prosecutrix before recording an order of conviction and that conviction can be recorded on the sole testimony of the prosecutrix.\n 20. In the instant case, not only is the evidence of the prosecutrix sufficient to prove the guilt of the accused, the evidence of the two aforesaid eyewitnesses fully supports the case of the prosecution."
}
},
{
"from_name": null,
"id": "39781bb3eb144e8ea23529283e7426b6",
"to_name": null,
"type": null,
"value": {
"end": 16668,
"labels": [
"ANALYSIS"
],
"start": 16393,
"text": "Apart from this, the medical evidence on record shows that there was injury to the vagina of the prosecutrix and that the hymen was found freshly torn, thereby proving that she had suffered forcible sexual intercourse amounting to rape, at the hands of the accused-appellant."
}
},
{
"from_name": null,
"id": "05bc106a15404fbdb2bafa2829b0635a",
"to_name": null,
"type": null,
"value": {
"end": 17001,
"labels": [
"ANALYSIS"
],
"start": 16668,
"text": "\n 21. The contention raised by the learned counsel for the accused-appellant that the version of the prosecution and the medical evidence was rendered suspicious due to the statement of the prosecutrix in cross-examination that before being taken to the hospital for medical examination, her mother by finger had brushed her vagina."
}
},
{
"from_name": null,
"id": "b539473ac40c42a9879ccfbe9fe6196f",
"to_name": null,
"type": null,
"value": {
"end": 17172,
"labels": [
"ANALYSIS"
],
"start": 17002,
"text": "It was sought to be suggested by the learned counsel for the accused-appellant that the redness found on the vagina during medical examination was due to the said reason."
}
},
{
"from_name": null,
"id": "001f5426ed7a453d81c8c3cab9e7a68c",
"to_name": null,
"type": null,
"value": {
"end": 17413,
"labels": [
"ANALYSIS"
],
"start": 17173,
"text": "The said contention deserves to be rejected because the detailed medical certificate (Exh.45) showing redness on various parts of vagina and tearing of the hymen clearly point towards forcible sexual intercourse suffered by the prosecutrix."
}
},
{
"from_name": null,
"id": "8d722f985e574a1b80b3460c67d56002",
"to_name": null,
"type": null,
"value": {
"end": 17612,
"labels": [
"ANALYSIS"
],
"start": 17414,
"text": "The Doctor (PW9) who examined the prosecutrix, entered the witness box and gave details of the injuries suffered by the prosecutrix, clearly stating that in her opinion there was sexual intercourse."
}
},
{
"from_name": null,
"id": "da3288605f2c4600a62ca5892a7231a3",
"to_name": null,
"type": null,
"value": {
"end": 17701,
"labels": [
"ANALYSIS"
],
"start": 17613,
"text": "Hence the said contention of the learned counsel for the accused- appellant is rejected."
}
},
{
"from_name": null,
"id": "f4c82ac4b93b4212b53eb608be638c88",
"to_name": null,
"type": null,
"value": {
"end": 17901,
"labels": [
"ANALYSIS"
],
"start": 17701,
"text": "\n 22. The further contention raised on behalf of the accused that he had been falsely implicated by the mother of the prosecutrix as she used to have regular quarrels with him, is also unsustainable."
}
},
{
"from_name": null,
"id": "9ed32a8c3c49411097ced06b36b62748",
"to_name": null,
"type": null,
"value": {
"end": 18083,
"labels": [
"ANALYSIS"
],
"start": 17902,
"text": "We find it difficult to believe that a mother would use her own daughter as a tool to falsely implicate her husband, only because there was some matrimonial discord between the two."
}
},
{
"from_name": null,
"id": "a690bef7414448d8927c76e952768267",
"to_name": null,
"type": null,
"value": {
"end": 18233,
"labels": [
"ANALYSIS"
],
"start": 18083,
"text": "\n 23. In view of the above, it is clear that the Special Court has correctly appreciated the facts on record, while convicting the accused/appellant."
}
},
{
"from_name": null,
"id": "d0195050e4c74f4ba3081b49b5a9e246",
"to_name": null,
"type": null,
"value": {
"end": 18458,
"labels": [
"ANALYSIS"
],
"start": 18234,
"text": "The Special Court has correctly found that offence under Section 376(2)(f)(i) of the I.P.C. read with Sections 4 and 6 of the POCSO Act stood proved, because the prosecutrix was only 9 years old when the incident took place."
}
},
{
"from_name": null,
"id": "900c2d7d055045cf9015db932cc24f7c",
"to_name": null,
"type": null,
"value": {
"end": 18573,
"labels": [
"ANALYSIS"
],
"start": 18458,
"text": "\n 24. The facts that have been proved on record show that the prosecutrix was a minor at the time of the incident."
}
},
{
"from_name": null,
"id": "f1122e92269a4503b90f6480c5d56285",
"to_name": null,
"type": null,
"value": {
"end": 18704,
"labels": [
"ANALYSIS"
],
"start": 18574,
"text": "PW5, Headmistress of the school where the prosecutrix was studying, proved that the date of birth of the prosecutrix was 8.8.2003."
}
},
{
"from_name": null,
"id": "27d5984811284d83839decb42244d1c3",
"to_name": null,
"type": null,
"value": {
"end": 18860,
"labels": [
"ANALYSIS"
],
"start": 18705,
"text": "This fact was proved on the basis of the school record thereby clearly establishing that the prosecutrix was only 9 years old when the incident took place."
}
},
{
"from_name": null,
"id": "6cc69e72458e41a68e890c87c2770da8",
"to_name": null,
"type": null,
"value": {
"end": 19074,
"labels": [
"RATIO"
],
"start": 18861,
"text": "Thus, being a minor the requirements for applying the provisions of the POCSO Act were clearly satisfied in the present case and, therefore, the findings given by the Special Court do not deserve any interference."
}
},
{
"from_name": null,
"id": "fdf52d791516458eb0ea8fb35f773e7d",
"to_name": null,
"type": null,
"value": {
"end": 19233,
"labels": [
"RPC"
],
"start": 19075,
"text": "Accordingly, we confirm the order of the Special court of conviction under the said provisions passed against the accused-appellant and we dismiss the appeal."
}
},
{
"from_name": null,
"id": "5351574e122a424c9188f632f18316c1",
"to_name": null,
"type": null,
"value": {
"end": 19283,
"labels": [
"ANALYSIS"
],
"start": 19235,
"text": "AS REGARDS CRIMINAL APPEAL NO.67 OF 2015.\n 25. "
}
},
{
"from_name": null,
"id": "2e67dd8667ba4b7fa00c2d78c51956c9",
"to_name": null,
"type": null,
"value": {
"end": 19384,
"labels": [
"ANALYSIS"
],
"start": 19283,
"text": "This appeal has been filed by the State praying for enhancement of sentence imposed upon the accused."
}
},
{
"from_name": null,
"id": "f113b0be13b541e8997d66929fc75711",
"to_name": null,
"type": null,
"value": {
"end": 19729,
"labels": [
"ARG_RESPONDENT"
],
"start": 19385,
"text": "It is the case of the State that the minimum sentence of rigorous imprisonment for 10 years imposed by the Special Court against the accused is not sufficient and that in the facts and circumstances of the case, he ought to be sentenced for life imprisonment under Section 376(2)(f)(i) of the I.P.C. read with Sections 4 and 6 of the POCSO Act."
}
},
{
"from_name": null,
"id": "e7adf98ae09b46ffa52c292eff409567",
"to_name": null,
"type": null,
"value": {
"end": 19914,
"labels": [
"ARG_RESPONDENT"
],
"start": 19729,
"text": "\n 26. The learned counsel for the State submits that the accused has committed a heinous crime against the prosecutrix as she was a minor aged only 9 years at the time of the incident."
}
},
{
"from_name": null,
"id": "a70f6e466a1b45f89d977e575910dd9c",
"to_name": null,
"type": null,
"value": {
"end": 20099,
"labels": [
"ARG_RESPONDENT"
],
"start": 19915,
"text": "The accused being the stepfather of the prosecutrix and a person in a position of trust and authority over her has committed a reprehensible act, which deserves the maximum punishment."
}
},
{
"from_name": null,
"id": "9ba07c95ddff4a248115cb7d87911dfa",
"to_name": null,
"type": null,
"value": {
"end": 20256,
"labels": [
"ARG_PETITIONER"
],
"start": 20100,
"text": "Reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of Shyam Narain .vs. State (NCT of Delhi (2013) 7 Supreme Court Cases 77."
}
},
{
"from_name": null,
"id": "86763e52a3924576b6f13c8555a5cf1c",
"to_name": null,
"type": null,
"value": {
"end": 20416,
"labels": [
"ARG_PETITIONER"
],
"start": 20263,
"text": "As against this, the learned counsel for the accused has submitted that the Special Court has correctly imposed the minimum sentence in the present case."
}
},
{
"from_name": null,
"id": "61480696c3cc472ca46558142a4a492a",
"to_name": null,
"type": null,
"value": {
"end": 20726,
"labels": [
"PRE_RELIED"
],
"start": 20416,
"text": "\n 28. In order to decide whether the quantum of sentence imposed by the Special Court is sufficient and whether enhancement is necessary, it would be relevant to appreciate the position of law in this regard laid down by the Hon'ble Supreme Court in the case of Shyam Narain .vs. State (NCT of Delhi) (supra)."
}
},
{
"from_name": null,
"id": "3fbdb94efdf841dabf4778ae665bc167",
"to_name": null,
"type": null,
"value": {
"end": 20787,
"labels": [
"PRE_RELIED"
],
"start": 20727,
"text": "The relevant portions of the judgment read as follows:- \"14."
}
},
{
"from_name": null,
"id": "be57a62beee34f649c4faa1f6b073cbe",
"to_name": null,
"type": null,
"value": {
"end": 20874,
"labels": [
"PRE_RELIED"
],
"start": 20788,
"text": "Primarily it is to be borne in mind that sentencing for any offence has a social goal."
}
},
{
"from_name": null,
"id": "817e269e6eec472985cf7a2c18d3bb97",
"to_name": null,
"type": null,
"value": {
"end": 21002,
"labels": [
"PRE_RELIED"
],
"start": 20874,
"text": "\nSentence is to be imposed regard being had to the nature of the offence and the manner in which the offence has been committed."
}
},
{
"from_name": null,
"id": "b87bfefc41c74fb0a916b97a0930d4cc",
"to_name": null,
"type": null,
"value": {
"end": 21223,
"labels": [
"PRE_RELIED"
],
"start": 21003,
"text": "The fundamental purpose of imposition of sentence is based on the principle that the accused must realise that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric."
}
},
{
"from_name": null,
"id": "2378c466d15c4adaa552cfe811f7b368",
"to_name": null,
"type": null,
"value": {
"end": 21394,
"labels": [
"PRE_RELIED"
],
"start": 21224,
"text": "The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes."
}
},
{
"from_name": null,
"id": "bf2975e16ffc46a58d6787c31f47a9a6",
"to_name": null,
"type": null,
"value": {
"end": 21420,
"labels": [
"PRE_RELIED"
],
"start": 21395,
"text": "It serves as a deterrent."
}
},
{
"from_name": null,
"id": "5efd5bff5a48402fb9f70308d33242d2",
"to_name": null,
"type": null,
"value": {
"end": 21658,
"labels": [
"PRE_RELIED"
],
"start": 21421,
"text": "True it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view."
}
},
{
"from_name": null,
"id": "93d427790a1449b9bf5f2c4de2eeb04f",
"to_name": null,
"type": null,
"value": {
"end": 21895,
"labels": [
"PRE_RELIED"
],
"start": 21659,
"text": "While carrying out this complex exercise, it is obligatory on the part of the Court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim."
}
},
{
"from_name": null,
"id": "3293c85832194dc6acb8d8a9d7ef8dfc",
"to_name": null,
"type": null,
"value": {
"end": 21904,
"labels": [
"PRE_RELIED"
],
"start": 21895,
"text": "\n........"
}
},
{
"from_name": null,
"id": "f1d292a4d9f2485bbaae508c01f87194",
"to_name": null,
"type": null,
"value": {
"end": 22103,
"labels": [
"PRE_RELIED"
],
"start": 21906,
"text": "26. It is seemly to note that the legislature, while prescribing a minimum sentence for a term which shall not be less than ten years, has also provided that the sentence may be extended upto life."
}
},
{
"from_name": null,
"id": "6033d3724f5b485f8753b1b53e764bea",
"to_name": null,
"type": null,
"value": {
"end": 22179,
"labels": [
"PRE_RELIED"
],
"start": 22104,
"text": "The legislature, in its wisdom, has left it to the discretion of the Court."
}
},
{
"from_name": null,
"id": "3e52513dfad44ce8b4d720d3059c956f",
"to_name": null,
"type": null,
"value": {
"end": 22326,
"labels": [
"PRE_RELIED"
],
"start": 22180,
"text": "Almost for the last three decades, this Court has been expressing its agony and distress pertaining to the increased rate of crimes against women."
}
},
{
"from_name": null,
"id": "effe6df540e44f8d9b6aa58efe25492e",
"to_name": null,
"type": null,
"value": {
"end": 22489,
"labels": [
"PRE_RELIED"
],
"start": 22327,
"text": "The eight year old girl, who was supposed to spend time in cheerfulness, was dealt with animal passion and her dignity and purity of physical frame was shattered."
}
},
{
"from_name": null,
"id": "c365b5904dec48a0ba34b2dd0be7a9f6",
"to_name": null,
"type": null,
"value": {
"end": 22567,
"labels": [
"PRE_RELIED"
],
"start": 22490,
"text": "The plight of the child and the shock suffered by her can be well visualised."
}
},
{
"from_name": null,
"id": "4c8d1f729d85437f9a2abd1ad0597298",
"to_name": null,
"type": null,
"value": {
"end": 22675,
"labels": [
"PRE_RELIED"
],
"start": 22567,
"text": "\nThe torment on the child has the potentiality to corrode the poise and equanimity of any civilized society."
}
},
{
"from_name": null,
"id": "88057fa57f7143b4aebcd707dda37f2f",
"to_name": null,
"type": null,
"value": {
"end": 22776,
"labels": [
"PRE_RELIED"
],
"start": 22676,
"text": "The age old wise saying that \"child is a gift of the providence\" enters into the realm of absurdity."
}
},
{
"from_name": null,
"id": "d5e3177165554f66a2befcb51f3467c3",
"to_name": null,
"type": null,
"value": {
"end": 22875,
"labels": [
"PRE_RELIED"
],
"start": 22777,
"text": "The young girl, with efflux of time, would grow with traumatic experience, an unforgettable shame."
}
},
{
"from_name": null,
"id": "0cf627e0b3a3482b8c853f5fd52df241",
"to_name": null,
"type": null,
"value": {
"end": 23050,
"labels": [
"PRE_RELIED"
],
"start": 22876,
"text": "She shall always be haunted by the memory replete with heavy crush of disaster constantly echoing the chill air of the past forcing her to a state of nightmarish melancholia."
}
},
{
"from_name": null,
"id": "42e57dc23aef456583978c683017ecc6",
"to_name": null,
"type": null,
"value": {
"end": 23124,
"labels": [
"PRE_RELIED"
],
"start": 23051,
"text": "She may not be able to assert the honour of a woman for no fault of hers."
}
},
{
"from_name": null,
"id": "60d989a42ede44219808ae02f112c4f0",
"to_name": null,
"type": null,
"value": {
"end": 23225,
"labels": [
"PRE_RELIED"
],
"start": 23124,
"text": "\n 27. Respect for reputation of women in the society shows the basic civility of a civilised society."
}
},
{
"from_name": null,
"id": "24eabbc6e6364988b09b21c5758eda98",
"to_name": null,
"type": null,
"value": {
"end": 23332,
"labels": [
"PRE_RELIED"
],
"start": 23226,
"text": "No member of society can afford to conceive the idea that he can create a hollow in the honour of a woman."
}
},
{
"from_name": null,
"id": "6de8f360568641fb902ef10fa606aa43",
"to_name": null,
"type": null,
"value": {
"end": 23390,
"labels": [
"PRE_RELIED"
],
"start": 23333,
"text": "Such thinking is not only lamentable but also deplorable."
}
},
{
"from_name": null,
"id": "aad72d406d8f4d60969822ec1fe49c76",
"to_name": null,
"type": null,
"value": {
"end": 23565,
"labels": [
"PRE_RELIED"
],
"start": 23391,
"text": "It would not be an exaggeration to say that the thought of sullying the physical frame of a woman is the demolition of the accepted civilized norm, i.e., \"physical morality\"."
}
},
{
"from_name": null,
"id": "a985bcbfa8394b0a91657942c7b479a6",
"to_name": null,
"type": null,
"value": {
"end": 23608,
"labels": [
"PRE_RELIED"
],
"start": 23566,
"text": "In such a sphere, impetuosity has no room."
}
},
{
"from_name": null,
"id": "6d880e7e5e744fc298251788c76d7dbe",
"to_name": null,
"type": null,
"value": {
"end": 23646,
"labels": [
"PRE_RELIED"
],
"start": 23609,
"text": "The youthful excitement has no place."
}
},
{
"from_name": null,
"id": "34304245a23e4ba98a7f2c4bf7e72579",
"to_name": null,
"type": null,
"value": {
"end": 23950,
"labels": [
"PRE_RELIED"
],
"start": 23647,
"text": "It should be paramount in everyone's mind that, on one hand, the society as a whole cannot preach from the pulpit about social, economic and political equality of the sexes and, on the other, some perverted members of the same society dehumanize the woman by attacking her body and ruining her chastity."
}
},
{
"from_name": null,
"id": "42fae91580d440c0a653152366d564f9",
"to_name": null,
"type": null,
"value": {
"end": 24082,
"labels": [
"PRE_RELIED"
],
"start": 23951,
"text": "It is an assault on the individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men."
}
},
{
"from_name": null,
"id": "57a3e47e1f7049ae9fd440468899fd48",
"to_name": null,
"type": null,
"value": {
"end": 24141,
"labels": [
"PRE_RELIED"
],
"start": 24083,
"text": "Rape is a monstrous burial of her dignity in the darkness."
}
},
{
"from_name": null,
"id": "2847174338d243d08d32b8f92d938fad",
"to_name": null,
"type": null,
"value": {
"end": 24293,
"labels": [
"PRE_RELIED"
],
"start": 24142,
"text": "It is a crime against the holy body of a woman and the soul of the society and such a crime is aggravated by the manner in which it has been committed."
}
},
{
"from_name": null,
"id": "ae2f622458cc41c6b6ed25165c4502a0",
"to_name": null,
"type": null,
"value": {
"end": 24535,
"labels": [
"PRE_RELIED"
],
"start": 24294,
"text": "We have emphasised on the manner because, in the present case, the victim is an eight year old girl who possibly would be deprived of the dreams of \"Spring of Life\" and might be psychologically compelled to remain in the \"Torment of Winter\"."
}
},
{
"from_name": null,
"id": "e6aa6754fadf41719fc310fd4a41a443",
"to_name": null,
"type": null,
"value": {
"end": 24591,
"labels": [
"PRE_RELIED"
],
"start": 24536,
"text": "When she suffers, the collective at large also suffers."
}
},
{
"from_name": null,
"id": "7041c9363656466e9a9eafc6550a7ad0",
"to_name": null,
"type": null,
"value": {
"end": 24690,
"labels": [
"PRE_RELIED"
],
"start": 24592,
"text": "Such a singular crime creates an atmosphere of fear which is historically abhorred by the society."
}
},
{
"from_name": null,
"id": "3ec52735c6ba483899e3f9bd978e9800",
"to_name": null,
"type": null,
"value": {
"end": 24818,
"labels": [
"PRE_RELIED"
],
"start": 24691,
"text": "It demands just punishment from the court and to such a demand, the courts of law are bound to respond within legal parameters."
}
},
{
"from_name": null,
"id": "86fd4b51c6f1413fb6f8764fdffbd195",
"to_name": null,
"type": null,
"value": {
"end": 24974,
"labels": [
"PRE_RELIED"
],
"start": 24819,
"text": "It is a demand for justice and the award of punishment has to be in consonance with the legislative command and the discretion vested in the court.\"\n 29. "
}
},
{
"from_name": null,
"id": "0a567e8dd0434c6daa41da0f665fabbf",
"to_name": null,
"type": null,
"value": {
"end": 25152,
"labels": [
"ANALYSIS"
],
"start": 24974,
"text": "In the earlier part of this common judgment we have already found that the conviction of the accused for the afore- mentioned offences as imposed by the Special Court is correct."
}
},
{
"from_name": null,
"id": "ceca2e80f7574b90a6db74f27dea57d6",
"to_name": null,
"type": null,
"value": {
"end": 25339,
"labels": [
"ANALYSIS"
],
"start": 25153,
"text": "Having found the accused guilty of the charges leveled against him, we have given our thoughtful consideration to the aspect of enhancement of sentence, as prayed by the appellant-State."
}
},
{
"from_name": null,
"id": "5b6ab10dbf15475885adc6a122bef4af",
"to_name": null,
"type": null,
"value": {
"end": 25583,
"labels": [
"ANALYSIS"
],
"start": 25340,
"text": "A perusal of the judgment and order of the Special Court would show that while discussing the aspect of imposition of sentence on the accused, the Special Court found as follows:- \"Certainly, victim is unfortunate step daughter of the accused."
}
},
{
"from_name": null,
"id": "b715081eddff442385a813011af19080",
"to_name": null,
"type": null,
"value": {
"end": 25635,
"labels": [
"ANALYSIS"
],
"start": 25584,
"text": "She was aged about 9 years on the date of incident."
}
},
{
"from_name": null,
"id": "8b6282b95edb4f0ebb5948cc2d0c0de0",
"to_name": null,
"type": null,
"value": {
"end": 25663,
"labels": [
"ANALYSIS"
],
"start": 25636,
"text": "She was school going child."
}
},
{
"from_name": null,
"id": "9a4076e88bb04845a3cb468d93c8a28d",
"to_name": null,
"type": null,
"value": {
"end": 25721,
"labels": [
"ANALYSIS"
],
"start": 25664,
"text": "She was leading her life under the protection of accused."
}
},
{
"from_name": null,
"id": "2a51134aa4eb48c6836eb6580181a445",
"to_name": null,
"type": null,
"value": {
"end": 25790,
"labels": [
"ANALYSIS"
],
"start": 25722,
"text": "But he himself has breached the trust of the victim, rather society."
}
},
{
"from_name": null,
"id": "1794f98e610c4a04a535029409ea730c",
"to_name": null,
"type": null,
"value": {
"end": 25933,
"labels": [
"ANALYSIS"
],
"start": 25791,
"text": "It was the duty of the accused to give nutritious food, proper education, care and protection to develop victim as a member of better society."
}
},
{
"from_name": null,
"id": "0393205c20d5480f931e7d97d21d6f15",
"to_name": null,
"type": null,
"value": {
"end": 25981,
"labels": [
"ANALYSIS"
],
"start": 25934,
"text": "However, accused has committed heinous offence."
}
},
{
"from_name": null,
"id": "8a387c4d965e4ad0966e5f76ec006229",
"to_name": null,
"type": null,
"value": {
"end": 26057,
"labels": [
"ANALYSIS"
],
"start": 25982,
"text": "If the accused is shown leniency, it will give wrong signal in the society."
}
},
{
"from_name": null,
"id": "def26d90970c4a0ea11f9dc7493ad25f",
"to_name": null,
"type": null,
"value": {
"end": 26156,
"labels": [
"ANALYSIS"
],
"start": 26058,
"text": "So, he has to be dealt with deterrently so as to prevent others to commit such heinous offence.\"\n "
}
},
{
"from_name": null,
"id": "1446c759d946457a80eef97cdbebed9c",
"to_name": null,
"type": null,
"value": {
"end": 26405,
"labels": [
"ANALYSIS"
],
"start": 26156,
"text": "Thus, it is evident that the Special Court had found that the accused did not deserve any leniency in the matter of imposing sentence upon him for having committed offences under Section 376 (2)(f)(i) of the I.P.C. and Sections 4 and 6 of POCSO Act."
}
},
{
"from_name": null,
"id": "5b1db25598d24fc1920b68e40bbe6181",
"to_name": null,
"type": null,
"value": {
"end": 26697,
"labels": [
"RATIO"
],
"start": 26405,
"text": "\n 30. Applying the law as laid down by the Hon'ble Supreme Court, it would be evident that having given the aforesaid findings even on the question of sentence against the accused, the Special Court clearly fell in error in awarding the minimum sentence of rigorous imprisonment of 10 years."
}
},
{
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"id": "0b892186aafe45c093040152fe51592e",
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"end": 26902,
"labels": [
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],
"start": 26698,
"text": "We are of the opinion that in the facts and circumstances of the present case, the accused has committed a barbaric act of raping his own stepdaughter who was only 9 years old at the time of the incident."
}
},
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"end": 27183,
"labels": [
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"start": 26903,
"text": "The accused was supposed to take care of the prosecutrix and he has not only blatantly violated the trust that the prosecutrix had in him, but he has virtually destroyed the life of the prosecutrix and scarred her physically, mentally and psychologically for the rest of her life."
}
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"end": 27428,
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],
"start": 27183,
"text": "\n In this situation, we find that the appropriate punishment to be imposed on the accused would be to enhance the sentence to rigorous imprisonment for life as provided under Section 376(2) (f)(i) of the I.P.C. and Sections 4 and 6 of POCSO Act."
}
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"text": "\n Accordingly, the appeal filed by the State stands allowed and the accused is sentenced to suffer imprisonment for life."
}
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"start": 27549,
"text": "\n 31. The fees of the learned counsel appointed for the accused-appellant are quantified at Rs.5,000/- (Rs. Five Thousand) for each appeal."
}
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"start": 27697,
"text": "\n (Manish Pitale, J. ) (R.K. Deshpande, J.) ..."
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"text": "\n halwai/p.s."
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] | 4,101 | {
"text": "IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n NAGPUR BENCH : NAGPUR\n\n CRIMINAL APPEAL NO.67 OF 2015\n WITH\n\n CRIMINAL APPEAL NO. 48 OF 2016\n ...\n\nCRIMINAL APPEAL NO.67 OF 2015\n\nThe State of Maharashtra,\nthrough the Police Station Officer,\nGhuggus Police Station,\nTahsil and District Chandrapur. .. APPELLANT\n\n .. Versus ..\n\nSurajprasad @ Rajkumar s/o\nShivcharan Roy, aged about 49 years,\nOccupation: Driver, R/o Sukaluthana,\nTahs. and District Chhindwara (M.P.)\npresently Opposite Bank of India,\nChandrapur, Tah. and District\nChandrapur. .. RESPONDENT\n\nMr.S.M. Ukey, Additional Public Prosecutor for Appellant.\nMr. R.P. Thote, Advocate (Appointed) for Respondent.\n\n ....\nCRIMINAL APPEAL NO.48 OF 2016\nSurajprasad @ Rajkumar s/o\nShivcharan Roy, aged about 50 years,\nOccupation: Driver, R/o Sukaluthana,\nTahsil and District Chhindwara (M.P.)\npresently Opposite Bank of India,\n\nChandrapur, Tah. and District\nChandrapur. .. APPELLANT\n\n .. VERSUS..\n\nThe State of Maharashtra,\nthrough Police Station Officer,\nPolice Station, Ghuggus,\nTah. and District Chandrapur. .. RESPONDENT\n\nMr. R.P. Thote, Advocate (Appointed) for Appellant.\nMr.S.M. Ukey, Additional Public Prosecutor for Respondent.\n\n ....\n\nCORAM : R.K. Deshpande & Manish Pitale, JJ.\nRESERVED ON : August 08, 2017\nPRONOUNCED ON : August 11, 2017.\n\nJUDGMENT (per Manish Pitale, J. ) By this judgment we are disposing of two appeals.\nCriminal Appeal No. 48 of 2016 has been filed by the accused challenging the judgment and order dated 18.12.2014 passed by the Special Court, Chandrapur in Special (Child) Case No. 8 of 2013, whereby the accused-appellant has been convicted under Section 376(2)(f)(i) of the Indian Penal Code ( \"IPC\") read with Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (\"POCSO Act\") and sentenced to suffer rigorous imprisonment for 10 years and to pay fine of Rs.1,000/- and in default to suffer rigorous imprisonment for 3 months. Criminal Appeal No.67 of 2015 has been filed by the State praying for enhancement of punishment, claiming that the sentence imposed on the accused of rigorous imprisonment for 10 years is inadequate, in the facts and circumstances of the case.\n 2. The prosecution case is that on 14.07.2013 the accused, stepfather of the victim/complainant (hereinafter referred to as \"the prosecutrix\"), came to his house at about 1 p.m. and gave to Rs.10/- to the prosecutrix and Rs.2/- each to her brothers for purchasing snacks from the grocery shop. The children, including the prosecutrix, returned home at about 2.30 p.m., when the accused asked his sons to go and play outside the house.\n 3. The accused then called the prosecutrix inside the house, closing the door from inside and he put her on a mat on the floor. He then removed her slack and knicker and threatened her. The accused laid the prosecutrix on the mat and upon removing his pant, he inserted his penis in the vagina of the prosecutrix. Due to pain, she started weeping, upon which her mother came to the house and knocked the door.\n The accused wore his clothes, opened the door and after quarreling with the mother of the prosecutrix, he left the house.\n 4. The mother (PW2) and a neighbor Vandana (PW4) claimed to have seen the aforesaid incident from gap in the door of the house.\n 5. The prosecutrix went along with her mother to the Police Station and lodged an oral report on the same day i.e. on 14.07.2013, pursuant to which first information report (FIR Exh.20) was registered on the same day against the accused for having committed the offences under Sections 376(2)(f) and 506 of the I.P.C. and Sections 4 and 6 of the POCSO Act.\n The allegation by the prosecutrix, being a minor, of rape against her own stepfather was a serious matter and the investigating authority immediately referred her for medical examination.\n 6. The prosecutrix was medically examined by the Medical Officer Dr. Dipti (PW9) on 14.07.2013 at the General Hospital in Chandrapur. The said doctor issued a medical certificate (Exh.45) certifying that there was redness present on labia majora, labia minora all over and that hymen was freshly torn at the 3, 9 and 6 'O' clock position.\n 7. The Investigating Officer arrested the accused and seized his clothes and they were sent for chemical analysis. It is relevant to mention here that the accused was also medically examined and it was found that he was capable of sexual intercourse.\n 8. In order to prove its case, the prosecution examined 10 witnesses, of whom PW2 (mother of the prosecutrix) and PW3 (neighbor) are eyewitnesses to the incident. PW5 is the Headmistress of the School, who has proved the date of birth of the prosecutrix as 8.8.2003 to show that she was aged 9 years on the date of the incident. PW8 is the Investigating Officer and PW9 is the Doctor who had examined the prosecutrix and issued the medical certificate.\n 9. The Special Court considered the case of the prosecution as well as the defence raised on behalf of the accused. It found that the prosecution had been able to prove its case beyond reasonable doubt and that there was sufficient material on record to prove the guilt of the accused. On this basis, the Special Court convicted and sentenced the accused as aforesaid.\n 10. As stated above, the accused as well as the State have filed appeals before this court against the aforesaid judgment and order of the Special Court. The two appeals are being considered and decided by this common judgment.\n As Regards Criminal Appeal No.48 of 2016.\n 11. In support of the appeal filed by the accused/appellant, Mr. R.P. Thote, learned counsel submitted that there were contradictions in the evidence and material on record and that the Special Court erred in convicting and sentencing the accused. He contended that the version of the prosecutrix was not corroborated by other witnesses, that there was no evidence to prove penetration in the instant case to constitute the offence of rape as defined in Section 375 of the Indian Penal Code, that the prosecutrix herself had stated in her deposition that her mother had brushed her vagina by finger before taking her to the hospital for medical examination, thereby explaining the redness on parts of vagina and further that the accused was falsely implicated because the mother of the prosecutrix, i.e. wife of the accused, used to regularly fight and quarrel with him and that it was at her behest that the prosecutrix had launched a false case against him. The learned counsel for the accused/appellant also contended that the chemical analysis reports (Exhs. 39 and 40) showed that neither blood nor semen was detected on the clothes of the accused or the vaginal swab, thereby showing that the allegation of rape made against him was false.\n 12. As against this, Mr. S.M. Ukey, learned Additional Public Prosecutor appearing for the respondent/State submitted that there was ample evidence and material on record to prove the case against the accused and that the Special Court was justified in convicting and sentencing the accused. The learned A.P.P. for the respondent/State heavily relied upon the evidence of PW2, PW3 (prosecutrix), PW4 and PW9 to support his contentions. On the question of the requirement of penetration in respect of offence of rape as defined in Section 375 of the I.P.C., the learned A.P.P. for the respondent/State relied upon judgments of the Hon'ble Supreme Court in the case of State of U.P. .vs. Babul Nath (1994) 6 Supreme Court Cases 29 and in the case of Aman Kumar and another .vs. State of Haryana (2004) 4 Supreme Court Cases 379.\n 13. We have heard the learned counsel for the parties at length. A perusal of Section 375 of the I.P.C. would show that one of the most important facets in the definition of rape is penetration into parts of the body of a woman as specified in the said provision. Thus, it becomes necessary to examine the evidence and material on record to come to a finding as to whether there was penetration in the instant case for the offence of rape to be proved against the accused. In order to do that, it would be advantageous to understand the position of law, as laid down by the Hon'ble Supreme Court with regard to the question of penetration in the context of the offence of rape, defined in Section 375 of the Indian Penal Code.\n 14. In its judgment in the case of State of U.P. .vs.\n Babul Nath (supra), the Hon'ble Supreme Court has held as follows:- \"8. It may here be noticed that Section 375 of the IPC defines rape and the Explanation to Section 375 reads as follows: \"Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.\"\n From the Explanation reproduced above it is distinctly clear that ingredients which are essential for proving a charge of rape are the accomplishment of the act with force and resistance. To constitute the offence of rape neither Section 375 of IPC nor the Explanation attached thereto require that there should necessarily be complete penetration of the penis into the private part of the victim/prosecutrix. In other words to constitute the offence of rape it is not at all necessary that there should be complete penetration of the male organ with emission of semen and rupture of hymen. Even partial or slightest penetration of the male organ within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim would be quite enough for the purpose of Sections 375 and 376 of IPC. That being so it is quite possible to commit legally the offence of rape even without causing any injury to the genitals or leaving any seminal stains. But in the present case before us as noticed above there is more than enough evidence positively showing that there was sexual activity on the victim and she was subjected to sexual assault without which she would not have sustained injuries of the nature found on her private part by the doctor who examined her. \"\n 15. It has been further held by the Hon'ble Supreme Court in the case of Aman Kumar and another .vs. State of Haryana (supra) as follows:- \"7. .........The rupture of hymen is by no means necessary to constitute the offence of rape. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration with or without violence is as much rape as vaginal penetration. The statute merely requires evidence of penetration, and this may occur with the hymen remaining intact. The actus reus is complete with penetration. It is well settled that the prosecutrix cannot be considered as accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence of rape. In examination of genital organs, state of hymen offers the most reliable clue.\nWhile examining the hymen, certain anatomical characteristics should be remembered before assigning any significance to the findings. The shape and the texture of the hymen is variable.\nThis variation, sometimes permits penetration without injury. This is possible because of the peculiar shape of the orifice or increased elasticity. On the other hand, sometimes the hymen may be more firm, less elastic and gets stretched and lacerated earlier. Thus a relatively less forceful penetration may not give rise to injuries ordinarily possible with a forceful attempt.\nThe anatomical feature with regard to hymen which merits consideration is its anatomical situation. Next to hymen in positive importance, but more than that in frequency, are the injuries on labia majora. These, viz. labia majora are the first to be encountered by the male organ. They are subjected to blunt forceful blows, depending on the vigour and force used by the accused and counteracted by the victim. Further, examination of the females for marks of injuries elsewhere on the body forms a very important piece of evidence. To constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva or pudendum with or without emission of semen is sufficient to constitute the offence of rape as defined in the law. The depth of penetration is immaterial in an offence punishable under Section 376 IPC.\n 16. The aforesaid position of law and a perusal of Section 375 of the I.P.C. would show that in order to constitute the offence of rape, it is not at all necessary that there should be complete penetration of the male organ with emission of semen or rupture of hymen. It has been held that even a partial or slightest penetration of the male organ within the labia majora or the vulva without any emission of semen, would be quite enough for the purpose of Sections 375 and 376 of the I.P.C.\n 17. Applying the said position of law to the facts of the present case, it would be evident that the accused has indeed committed rape on the prosecutrix and that he is liable for conviction under Section 376(2)(f) (i) of the I.P.C. , being a relative of the prosecutrix and the fact that she was less than 16 years of age at the time of the incident. The fact that there has been penetration in the instant case is clear from the medical evidence wherein the Doctor (PW9) has found that there is redness all over the various parts of vagina and that hymen has suffered fresh rupture at the 3,6 and 9 'O' clock position. In fact the Doctor has deposed on the basis of examination of the prosecutrix on the very day of the incident that there was sexual intercourse committed with the prosecutrix. Thus, there is no substance in the contention raised by the learned counsel for the accused- appellant that in the absence of penetration, there was no rape committed on the prosecutrtix in the present case.\n 18. The contention raised on behalf of the learned counsel for the accused-appellant that the evidence of the prosecutrix was not corroborated, cannot be accepted. An analysis of the evidence on record would show that there were two eyewitnesses to the incident i.e. PW2 Tarabai Roy (mother of the prosecutrix) and PW4 Vandana Chaudhari (neighbor).\n PW2 (mother of prosecutrix) stated in her deposition that when she returned home and found the door of the house closed from inside, she knocked on the door and at that time PW4 (neighbour) was also accompanying her. As the accused did not open the door, PW2 stated that she saw from the gap in the door that the prosecutrix was lying on the mat and the accused was lying on her. The slack and knicker of the prosecutrix was lying outside and that the accused did not have his full pant on his person. PW2 then deposed that she shouted, upon which the accused wore his pant and opened the door. He quarreled with her and left the house.\n 19. Similarly PW4 (neighbour) stated in her deposition that she along with PW2 saw the incident and that the accused was found establishing sex with his own daughter. The other details were stated by PW4 in the same manner as narrated by PW2. The version of the said two eyewitnesses fully corroborates the narration of the incident given by the prosecutrix. In the cross-examination, the version of the said eyewitnesses has not been shaken. Even otherwise, in the case of proving the offence of rape uncorroborated testimony of the prosecutrix is sufficient. It has been held by the Hon'ble Supreme Court in the case of State of Himachal Pradesh .vs. Raghubir Singh (1993) 2 Supreme Court Cases 622 that there is no legal compulsion to look for corroboration of the evidence of the prosecutrix before recording an order of conviction and that conviction can be recorded on the sole testimony of the prosecutrix.\n 20. In the instant case, not only is the evidence of the prosecutrix sufficient to prove the guilt of the accused, the evidence of the two aforesaid eyewitnesses fully supports the case of the prosecution. Apart from this, the medical evidence on record shows that there was injury to the vagina of the prosecutrix and that the hymen was found freshly torn, thereby proving that she had suffered forcible sexual intercourse amounting to rape, at the hands of the accused-appellant.\n 21. The contention raised by the learned counsel for the accused-appellant that the version of the prosecution and the medical evidence was rendered suspicious due to the statement of the prosecutrix in cross-examination that before being taken to the hospital for medical examination, her mother by finger had brushed her vagina. It was sought to be suggested by the learned counsel for the accused-appellant that the redness found on the vagina during medical examination was due to the said reason. The said contention deserves to be rejected because the detailed medical certificate (Exh.45) showing redness on various parts of vagina and tearing of the hymen clearly point towards forcible sexual intercourse suffered by the prosecutrix. The Doctor (PW9) who examined the prosecutrix, entered the witness box and gave details of the injuries suffered by the prosecutrix, clearly stating that in her opinion there was sexual intercourse. Hence the said contention of the learned counsel for the accused- appellant is rejected.\n 22. The further contention raised on behalf of the accused that he had been falsely implicated by the mother of the prosecutrix as she used to have regular quarrels with him, is also unsustainable. We find it difficult to believe that a mother would use her own daughter as a tool to falsely implicate her husband, only because there was some matrimonial discord between the two.\n 23. In view of the above, it is clear that the Special Court has correctly appreciated the facts on record, while convicting the accused/appellant. The Special Court has correctly found that offence under Section 376(2)(f)(i) of the I.P.C. read with Sections 4 and 6 of the POCSO Act stood proved, because the prosecutrix was only 9 years old when the incident took place.\n 24. The facts that have been proved on record show that the prosecutrix was a minor at the time of the incident. PW5, Headmistress of the school where the prosecutrix was studying, proved that the date of birth of the prosecutrix was 8.8.2003. This fact was proved on the basis of the school record thereby clearly establishing that the prosecutrix was only 9 years old when the incident took place. Thus, being a minor the requirements for applying the provisions of the POCSO Act were clearly satisfied in the present case and, therefore, the findings given by the Special Court do not deserve any interference. Accordingly, we confirm the order of the Special court of conviction under the said provisions passed against the accused-appellant and we dismiss the appeal.\n AS REGARDS CRIMINAL APPEAL NO.67 OF 2015.\n 25. This appeal has been filed by the State praying for enhancement of sentence imposed upon the accused. It is the case of the State that the minimum sentence of rigorous imprisonment for 10 years imposed by the Special Court against the accused is not sufficient and that in the facts and circumstances of the case, he ought to be sentenced for life imprisonment under Section 376(2)(f)(i) of the I.P.C. read with Sections 4 and 6 of the POCSO Act.\n 26. The learned counsel for the State submits that the accused has committed a heinous crime against the prosecutrix as she was a minor aged only 9 years at the time of the incident. The accused being the stepfather of the prosecutrix and a person in a position of trust and authority over her has committed a reprehensible act, which deserves the maximum punishment. Reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of Shyam Narain .vs. State (NCT of Delhi (2013) 7 Supreme Court Cases 77.\n 27. As against this, the learned counsel for the accused has submitted that the Special Court has correctly imposed the minimum sentence in the present case.\n 28. In order to decide whether the quantum of sentence imposed by the Special Court is sufficient and whether enhancement is necessary, it would be relevant to appreciate the position of law in this regard laid down by the Hon'ble Supreme Court in the case of Shyam Narain .vs. State (NCT of Delhi) (supra). The relevant portions of the judgment read as follows:- \"14. Primarily it is to be borne in mind that sentencing for any offence has a social goal.\nSentence is to be imposed regard being had to the nature of the offence and the manner in which the offence has been committed. The fundamental purpose of imposition of sentence is based on the principle that the accused must realise that the crime committed by him has not only created a dent in his life but also a concavity in the social fabric. The purpose of just punishment is designed so that the individuals in the society which ultimately constitute the collective do not suffer time and again for such crimes. It serves as a deterrent. True it is, on certain occasions, opportunities may be granted to the convict for reforming himself but it is equally true that the principle of proportionality between an offence committed and the penalty imposed are to be kept in view. While carrying out this complex exercise, it is obligatory on the part of the Court to see the impact of the offence on the society as a whole and its ramifications on the immediate collective as well as its repercussions on the victim.\n........\n 26. It is seemly to note that the legislature, while prescribing a minimum sentence for a term which shall not be less than ten years, has also provided that the sentence may be extended upto life. The legislature, in its wisdom, has left it to the discretion of the Court. Almost for the last three decades, this Court has been expressing its agony and distress pertaining to the increased rate of crimes against women. The eight year old girl, who was supposed to spend time in cheerfulness, was dealt with animal passion and her dignity and purity of physical frame was shattered. The plight of the child and the shock suffered by her can be well visualised.\nThe torment on the child has the potentiality to corrode the poise and equanimity of any civilized society. The age old wise saying that \"child is a gift of the providence\" enters into the realm of absurdity. The young girl, with efflux of time, would grow with traumatic experience, an unforgettable shame. She shall always be haunted by the memory replete with heavy crush of disaster constantly echoing the chill air of the past forcing her to a state of nightmarish melancholia. She may not be able to assert the honour of a woman for no fault of hers.\n 27. Respect for reputation of women in the society shows the basic civility of a civilised society. No member of society can afford to conceive the idea that he can create a hollow in the honour of a woman. Such thinking is not only lamentable but also deplorable. It would not be an exaggeration to say that the thought of sullying the physical frame of a woman is the demolition of the accepted civilized norm, i.e., \"physical morality\". In such a sphere, impetuosity has no room. The youthful excitement has no place. It should be paramount in everyone's mind that, on one hand, the society as a whole cannot preach from the pulpit about social, economic and political equality of the sexes and, on the other, some perverted members of the same society dehumanize the woman by attacking her body and ruining her chastity. It is an assault on the individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men. Rape is a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a woman and the soul of the society and such a crime is aggravated by the manner in which it has been committed. We have emphasised on the manner because, in the present case, the victim is an eight year old girl who possibly would be deprived of the dreams of \"Spring of Life\" and might be psychologically compelled to remain in the \"Torment of Winter\". When she suffers, the collective at large also suffers. Such a singular crime creates an atmosphere of fear which is historically abhorred by the society. It demands just punishment from the court and to such a demand, the courts of law are bound to respond within legal parameters. It is a demand for justice and the award of punishment has to be in consonance with the legislative command and the discretion vested in the court.\"\n 29. In the earlier part of this common judgment we have already found that the conviction of the accused for the afore- mentioned offences as imposed by the Special Court is correct. Having found the accused guilty of the charges leveled against him, we have given our thoughtful consideration to the aspect of enhancement of sentence, as prayed by the appellant-State. A perusal of the judgment and order of the Special Court would show that while discussing the aspect of imposition of sentence on the accused, the Special Court found as follows:- \"Certainly, victim is unfortunate step daughter of the accused. She was aged about 9 years on the date of incident. She was school going child. She was leading her life under the protection of accused. But he himself has breached the trust of the victim, rather society. It was the duty of the accused to give nutritious food, proper education, care and protection to develop victim as a member of better society. However, accused has committed heinous offence. If the accused is shown leniency, it will give wrong signal in the society. So, he has to be dealt with deterrently so as to prevent others to commit such heinous offence.\"\n Thus, it is evident that the Special Court had found that the accused did not deserve any leniency in the matter of imposing sentence upon him for having committed offences under Section 376 (2)(f)(i) of the I.P.C. and Sections 4 and 6 of POCSO Act.\n 30. Applying the law as laid down by the Hon'ble Supreme Court, it would be evident that having given the aforesaid findings even on the question of sentence against the accused, the Special Court clearly fell in error in awarding the minimum sentence of rigorous imprisonment of 10 years. We are of the opinion that in the facts and circumstances of the present case, the accused has committed a barbaric act of raping his own stepdaughter who was only 9 years old at the time of the incident. The accused was supposed to take care of the prosecutrix and he has not only blatantly violated the trust that the prosecutrix had in him, but he has virtually destroyed the life of the prosecutrix and scarred her physically, mentally and psychologically for the rest of her life.\n In this situation, we find that the appropriate punishment to be imposed on the accused would be to enhance the sentence to rigorous imprisonment for life as provided under Section 376(2) (f)(i) of the I.P.C. and Sections 4 and 6 of POCSO Act.\n Accordingly, the appeal filed by the State stands allowed and the accused is sentenced to suffer imprisonment for life.\n 31. The fees of the learned counsel appointed for the accused-appellant are quantified at Rs.5,000/- (Rs. Five Thousand) for each appeal.\n (Manish Pitale, J. ) (R.K. Deshpande, J.) ...\n halwai/p.s.\n "
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"value": {
"end": 611,
"labels": [
"PREAMBLE"
],
"start": 591,
"text": "\nDEVARABEESANAHALLI,"
}
},
{
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"id": "ba15674732984ce180de0b46a6715bff",
"to_name": null,
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"value": {
"end": 630,
"labels": [
"PREAMBLE"
],
"start": 611,
"text": "\nBANGALORE-560 103."
}
},
{
"from_name": null,
"id": "694ce1925a4c4b6a9b4e4af881251bc3",
"to_name": null,
"type": null,
"value": {
"end": 760,
"labels": [
"PREAMBLE"
],
"start": 630,
"text": "\n\n(RESPONDENT SERVED & UNREPRESENTED.)\n\n THIS I.T.A IS FILED UNDER SECTION 260-A OF INCOME\nTAX ACT 1961, PRAYING TO DECIDE"
}
},
{
"from_name": null,
"id": "60f3c7e9cdf3481db55d211ef0fc2969",
"to_name": null,
"type": null,
"value": {
"end": 1215,
"labels": [
"PREAMBLE"
],
"start": 761,
"text": "THE FOREGOING\nQUESTION OF LAW AND OR SUCH OTHER QUESTIONS OF LAW\nAS MAY BE FORMULATED BY THE HON'BLE COURT AS\nDEEMED FIT AND SET ASIDE THE APPELLATE ORDER DATED\n26/05/2015 PASSED BY THE ITAT, `A' BENCH, BENGALURU, IN\nAPPEAL PROCEEDINGS NO. I.T(TP)A NO.1048/BANG/2011\nANNEXURE A, AS SOUGHT FOR IN THIS APPEAL; AND TO\nGRANT SUCH OTHER RELIEF AS DEEMED FIT, IN THE\nINTEREST OF JUSTICE.\n\n M/"
}
},
{
"from_name": null,
"id": "c69ff4b83299492b88225b8dfc44d9ad",
"to_name": null,
"type": null,
"value": {
"end": 1229,
"labels": [
"PREAMBLE"
],
"start": 1215,
"text": "s.LSI Research"
}
},
{
"from_name": null,
"id": "7d5c39641fe74f5f85c6e357cfe0e7d6",
"to_name": null,
"type": null,
"value": {
"end": 1246,
"labels": [
"PREAMBLE"
],
"start": 1230,
"text": "(India) P. Ltd.,"
}
},
{
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"id": "42f2eec1af794edb8769fd4963e39641",
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"type": null,
"value": {
"end": 1303,
"labels": [
"PREAMBLE"
],
"start": 1246,
"text": "\n 2/13"
}
},
{
"from_name": null,
"id": "8dd56f6002a14b53b51a5f706ccf497e",
"to_name": null,
"type": null,
"value": {
"end": 1438,
"labels": [
"PREAMBLE"
],
"start": 1314,
"text": "THIS I.T.A. COMING ON FOR ORDERS, THIS DAY S.\nSUJATHA J. DELIVERED THE FOLLOWING:-\n\n JUDGMENT"
}
},
{
"from_name": null,
"id": "a2a843cb35824924bf7e5f5cd1e4ebc1",
"to_name": null,
"type": null,
"value": {
"end": 1488,
"labels": [
"NONE"
],
"start": 1438,
"text": "\nMr.E.I.Sanmathi, Adv. for Appellants - Revenue 1."
}
},
{
"from_name": null,
"id": "f9037a2d0db3497e98ccbc814f721502",
"to_name": null,
"type": null,
"value": {
"end": 1826,
"labels": [
"FAC"
],
"start": 1489,
"text": "The Appellants-Revenue have filed this appeal u/s.260A of the Income Tax Act, 1961, raising purportedly certain substantial questions of law arising from the order of the ITAT, Bangalore Bench `A', Bangalore, dated 26.05.2015 passed in IT(TP)A No.1048/Bang/2011 (M/s.LSI Research (India) P.Ltd., vs. Income-tax Officer ) for A.Y.2007-08."
}
},
{
"from_name": null,
"id": "87e515c6e0be4f918710701c2de57166",
"to_name": null,
"type": null,
"value": {
"end": 1993,
"labels": [
"ISSUE"
],
"start": 1826,
"text": "\n 2. This appeal has been admitted on 10.08.2016 to consider the following substantial questions of law framed by the learned counsel for the Appellants- Revenue:- \"1."
}
},
{
"from_name": null,
"id": "3fb2fb6f29454d669d5a204cd974769a",
"to_name": null,
"type": null,
"value": {
"end": 2690,
"labels": [
"ISSUE"
],
"start": 1994,
"text": "Whether on the facts and in the circumstances of the case, the Tribunal is justified in allowing the assessee's appeal directing the assessing officer to exclusion of the companies such as Accel Transmatics Ltd., Celestial Labs Ltd, KALS Information Systems Ltd, Ishir Infotech M/s.LSI Research (India) P. Ltd., 3/13 Ltd, Lucid Software Ltd, Infosys Technologies Ltd, Wipro Ltd, Tata Elxsi Ltd, E-Zest Solutions Ltd, Thirdware Solutions Ltd(Segment), Persistent System Ltd, Quintegra Solutions Ltd, Helios & Matheson Information Technology Ltd, from the comparables companies selected by the TPO that they are functionally different from the assessee when the materials on record proved contrary?"
}
},
{
"from_name": null,
"id": "5e2aa63042b64e1395a0c1b520f0669e",
"to_name": null,
"type": null,
"value": {
"end": 3052,
"labels": [
"ISSUE"
],
"start": 2690,
"text": "\n 2. Whether on the facts and in the circumstances of the case, the Tribunal is justified in allowing the assessee's appeal directing the assessing officer to exclusion of the companies such as M/s.Infosys Technologies Ltd., Wipro Ltd., and Tata Elxsi from the 14 comparables companies selected by the TPO that they are functionally different from the assessee?\""
}
},
{
"from_name": null,
"id": "f1541183786a4d77a8d04a11dc038786",
"to_name": null,
"type": null,
"value": {
"end": 3331,
"labels": [
"ARG_PETITIONER"
],
"start": 3052,
"text": "\n 3. In so far as the first substantial question of law raised by the Revenue is concerned, learned counsel for the Revenue submitted that the learned ITAT in its Order dated 26.05.2015 has given the findings, the relevant portion of which is quoted below for ready reference:- \""
}
},
{
"from_name": null,
"id": "37bbe7a20d864a8582eef9e04acd4d00",
"to_name": null,
"type": null,
"value": {
"end": 3621,
"labels": [
"RLC"
],
"start": 3331,
"text": "14. In the appeal filed by the said assessee, vis-a-vis the comparability of various M/s.LSI Research (India) P. Ltd., 4/13 companies mentioned in the above list, it was held by the Tribunal at paras 18 to 30, as under : xxxxxxxxxxxxx Avani Cimcon Technologies Ltd.\n xxxxxxxxxxx 41."
}
},
{
"from_name": null,
"id": "c32bc6c5b6014ed08a68f2cef5cdc21c",
"to_name": null,
"type": null,
"value": {
"end": 3768,
"labels": [
"RLC"
],
"start": 3622,
"text": "We have given a careful consideration to the submissions made on behalf of the Assessee and are of the view that the same deserves to be accepted."
}
},
{
"from_name": null,
"id": "93d0d29e62cc4d56b41c8c5bf252d426",
"to_name": null,
"type": null,
"value": {
"end": 3871,
"labels": [
"RLC"
],
"start": 3769,
"text": "The reasons given by the Assessee for excluding this company as comparable are found to be acceptable."
}
},
{
"from_name": null,
"id": "c39780d3e6fa44ceb56be45c44f4f193",
"to_name": null,
"type": null,
"value": {
"end": 4005,
"labels": [
"RLC"
],
"start": 3872,
"text": "The decision of ITAT (Mumbai) in the case of Telcordia Technologies Pvt. Ltd. v. ACIT (supra) also supports the plea of the assessee."
}
},
{
"from_name": null,
"id": "ca2c28c7aaf3460cb40ad5893c60f910",
"to_name": null,
"type": null,
"value": {
"end": 4090,
"labels": [
"RLC"
],
"start": 4006,
"text": "We therefore accept the plea of the Assessee to reject this company as a comparable."
}
},
{
"from_name": null,
"id": "55adb6b57ccc4215b930d90fff0beb03",
"to_name": null,
"type": null,
"value": {
"end": 4130,
"labels": [
"RLC"
],
"start": 4090,
"text": "\n (c) Celestial Labs Ltd.\n xxxxxxxxx 45."
}
},
{
"from_name": null,
"id": "bde12c049459489592e2713fcb88d111",
"to_name": null,
"type": null,
"value": {
"end": 4296,
"labels": [
"RLC"
],
"start": 4131,
"text": "From the material available on record, it transpires that the TPO has accepted that up to AY 06-07 this company was classified as a Research and Development company."
}
},
{
"from_name": null,
"id": "fb4a935f05d14097baa45e18e01f3616",
"to_name": null,
"type": null,
"value": {
"end": 4526,
"labels": [
"RLC"
],
"start": 4297,
"text": "According to the TPO in AY 07-08 this company has been classified as software development service provider in the Capitaline/Prowess database as M/s.LSI Research (India) P. Ltd., 5/13 well as in the annual report of this company."
}
},
{
"from_name": null,
"id": "e9bf49e6d8a845fb93f37a9e3b84cb53",
"to_name": null,
"type": null,
"value": {
"end": 4705,
"labels": [
"RLC"
],
"start": 4527,
"text": "The TPO has relied on the response from this company to a notice u/s.133(6) of the Act in which it has said that it is in the business of providing software development services."
}
},
{
"from_name": null,
"id": "a6bee8e8ecd84cbea2bdb4c9ac5e895c",
"to_name": null,
"type": null,
"value": {
"end": 5018,
"labels": [
"RLC"
],
"start": 4706,
"text": "The Assessee in reply to the proposal of the AO to treat this as a comparable has pointed out that this company provides software products/services as well as bioinformatics services and that the segmental data for each activity is not available and therefore this company should not be treated as comparable."
}
},
{
"from_name": null,
"id": "e43cd572d1614afeb884b920b26f4fee",
"to_name": null,
"type": null,
"value": {
"end": 5250,
"labels": [
"RLC"
],
"start": 5018,
"text": "\n Besides the above, the Assessee has point out to several references in the annual report for 31.3.2007 highlighting the fact that this company was develops biotechnology products and provides related software development services."
}
},
{
"from_name": null,
"id": "6223afd2414b4ffbae3b87739a6aa642",
"to_name": null,
"type": null,
"value": {
"end": 5324,
"labels": [
"RLC"
],
"start": 5250,
"text": "\n The TPO called for segmental data at the entity level from this company."
}
},
{
"from_name": null,
"id": "3cb1b54741a24e36a4cb9cf9a7a12cef",
"to_name": null,
"type": null,
"value": {
"end": 5393,
"labels": [
"RLC"
],
"start": 5325,
"text": "The TPO also called for description of software development process."
}
},
{
"from_name": null,
"id": "b916f2e67f0146dfa9ae71544d0ce1d7",
"to_name": null,
"type": null,
"value": {
"end": 5607,
"labels": [
"RLC"
],
"start": 5394,
"text": "In response to the request of the TPO this company in its reply dated 29.3.2010 has given details of employees working in software development but it is not clear as to whether any segmental data was given or not."
}
},
{
"from_name": null,
"id": "78afbb01d7504d70bb02781217094334",
"to_name": null,
"type": null,
"value": {
"end": 5785,
"labels": [
"RLC"
],
"start": 5608,
"text": "Besides the above there is no other detail in the TPO's order as to the nature of software development services performed by the M/s.LSI Research (India) P. Ltd., 6/13 Assessee."
}
},
{
"from_name": null,
"id": "16ca1e546c5b45c782c6336ef3f61e9a",
"to_name": null,
"type": null,
"value": {
"end": 5986,
"labels": [
"RLC"
],
"start": 5786,
"text": "Celestial labs had come out with a public issue of shares and in that connection issued Draft Red Herring Prospectus (DRHP) in which the business of this company was explained as to clinical research."
}
},
{
"from_name": null,
"id": "fdad55f365b44273ae861ff8d5735d43",
"to_name": null,
"type": null,
"value": {
"end": 6235,
"labels": [
"RLC"
],
"start": 5987,
"text": "The TPO wanted to know as to whether the primary business of this company is software development services as indicated in the annual report for FY 06-07 or clinical research and manufacture of bio products and other products as stated in the DRHP."
}
},
{
"from_name": null,
"id": "d9e00a2cf5ed4df6b00ecdb9658467b4",
"to_name": null,
"type": null,
"value": {
"end": 6327,
"labels": [
"RLC"
],
"start": 6236,
"text": "There is no reference to any reply by Celestial labs to the above clarification of the TPO."
}
},
{
"from_name": null,
"id": "355204dfcf8641fa9a2e84f83eeaf88d",
"to_name": null,
"type": null,
"value": {
"end": 6624,
"labels": [
"RLC"
],
"start": 6328,
"text": "The TPO without any basis has however concluded that the business mentioned in the DRHP are the services or businesses that would be started by utilizing the funds garnered though the Initial Public Offer (IPO) and thus in no way connected with business operations of the company during FY 06-07."
}
},
{
"from_name": null,
"id": "23a6fb3e5b5f4241a7ee6be6abde3287",
"to_name": null,
"type": null,
"value": {
"end": 6970,
"labels": [
"RLC"
],
"start": 6625,
"text": "We are of the view that in the light of the submissions made by the Assessee and the fact that this company was basically/admittedly in clinical research and manufacture of bio products and other products, there is no clear basis on which the TPO concluded that this company was mainly in the business of providing software development services."
}
},
{
"from_name": null,
"id": "0f4a5e0767764acca923db8caa646558",
"to_name": null,
"type": null,
"value": {
"end": 7121,
"labels": [
"RLC"
],
"start": 6971,
"text": "We therefore accept the M/s.LSI Research (India) P. Ltd., 7/13 plea of the Assessee that this company ought not to have been considered as comparable."
}
},
{
"from_name": null,
"id": "92905752445e4094bab70a412d1817a1",
"to_name": null,
"type": null,
"value": {
"end": 7177,
"labels": [
"RLC"
],
"start": 7121,
"text": "\n (d) KALS Information Systems Ltd.\n xxxxxxxxxxxxxxx 47."
}
},
{
"from_name": null,
"id": "a5523debf3c24fbb8d51b30241026240",
"to_name": null,
"type": null,
"value": {
"end": 7265,
"labels": [
"RLC"
],
"start": 7178,
"text": "We have given a careful consideration to the submission made on behalf of the Assessee."
}
},
{
"from_name": null,
"id": "f0cb740e8dc5485c99d2be3825e53ab1",
"to_name": null,
"type": null,
"value": {
"end": 7387,
"labels": [
"RLC"
],
"start": 7266,
"text": "We find that the TPO has drawn conclusions on the basis of information obtained by issue of notice u/s.133(6) of the Act."
}
},
{
"from_name": null,
"id": "72be4c56347f4766ba42c7a89bda25d0",
"to_name": null,
"type": null,
"value": {
"end": 7618,
"labels": [
"RLC"
],
"start": 7388,
"text": "This information which was not available in public domain could not have been used by the TPO, when the same is contrary to the annual report of this company as highlighted by the Assessee in its letter dated 21.6.2010 to the TPO."
}
},
{
"from_name": null,
"id": "cb22ebba281e41d89fb45ae144f46db9",
"to_name": null,
"type": null,
"value": {
"end": 7854,
"labels": [
"RLC"
],
"start": 7619,
"text": "We also find that in the decision referred to by the learned counsel for the Assessee, the Mumbai Bench of ITAT has held that this company was developing software products and not purely or mainly software development service provider."
}
},
{
"from_name": null,
"id": "2a6e649b2f8e4728b41f040c0689da58",
"to_name": null,
"type": null,
"value": {
"end": 7936,
"labels": [
"RLC"
],
"start": 7855,
"text": "We therefore accept the plea of the Assessee that this company is not comparable."
}
},
{
"from_name": null,
"id": "9b0fad179d01439f93f04bf03d41e18d",
"to_name": null,
"type": null,
"value": {
"end": 8025,
"labels": [
"RLC"
],
"start": 7938,
"text": "4. For other comparable companies, the learned Tribunal has given the similar findings."
}
},
{
"from_name": null,
"id": "3d24421978cd47878703ccc48936cd3f",
"to_name": null,
"type": null,
"value": {
"end": 8065,
"labels": [
"RLC"
],
"start": 8025,
"text": "\n M/s.LSI Research (India) P. Ltd., 8/13"
}
},
{
"from_name": null,
"id": "899f9102d6674d5487f0e6ef45c1b43f",
"to_name": null,
"type": null,
"value": {
"end": 8343,
"labels": [
"ARG_PETITIONER"
],
"start": 8065,
"text": " 5. In so far as the second substantial question of law raised by the Revenue is concerned, learned counsel for the Revenue submitted that the learned ITAT in its Order dated 26.05.2015 has given the findings, the relevant portion of which is quoted below for ready reference:- "
}
},
{
"from_name": null,
"id": "0d76567e3d0546a8ad094800273d78af",
"to_name": null,
"type": null,
"value": {
"end": 8819,
"labels": [
"RLC"
],
"start": 8343,
"text": "\" 24. As far as comparable companies listed at Sl.No.10, 24 & 26 of the final list of comparable companies chosen by the TPO viz., M/S.Infosys Technologies Limited, Tata Elxsi Ltd. (Seg.) & Wipro Limited are concerned, this Tribunal in the case of M/S.Curam Software International Pvt.Ltd. Vs. ITO ITA No.1280/Bang/2012 for AY 08-09 order dated 31.7.2013 has held that the aforesaid companies are not comparable companies in the case of software development services provider."
}
},
{
"from_name": null,
"id": "f87ba8181c414e56b744279b4ecd13e1",
"to_name": null,
"type": null,
"value": {
"end": 9033,
"labels": [
"RLC"
],
"start": 8819,
"text": "\n The following were the relevant observations in the case of M/S.Curam Software International Pvt.Ltd.(supra): \"12. (4) Infosys Technologies Ltd.\n xxxxxxxxxxxx M/s.LSI Research (India) P. Ltd., 9/13 12.4"
}
},
{
"from_name": null,
"id": "8412ae445ef447aca67d355a694bd43d",
"to_name": null,
"type": null,
"value": {
"end": 9130,
"labels": [
"RLC"
],
"start": 9034,
"text": "We have heard the rival submissions and perused and carefully considered the material on record."
}
},
{
"from_name": null,
"id": "1bbbcb4b60644839b81bcf5dc09702ff",
"to_name": null,
"type": null,
"value": {
"end": 9471,
"labels": [
"RLC"
],
"start": 9131,
"text": "We find that the assessee has brought on record sufficient evidence to establish that this company is functionally dis- similar and different from the assessee and hence is not comparable and the finding rendered in the case of Trilogy E-Business Software India Pvt. Ltd. (supra) for Assessment Year 2007-08 is applicable to this year also."
}
},
{
"from_name": null,
"id": "fbb9c180937f4838b5ca8f2d6f31ced9",
"to_name": null,
"type": null,
"value": {
"end": 9655,
"labels": [
"RLC"
],
"start": 9472,
"text": "The argument put forth by assessee's is that Infosys Technologies Ltd is not functionally comparable since it owns significant intangible and has huge revenues from software products."
}
},
{
"from_name": null,
"id": "b65ebdb9e1294cdaa47025658e20b733",
"to_name": null,
"type": null,
"value": {
"end": 9763,
"labels": [
"RLC"
],
"start": 9655,
"text": "\nIt is also seen that the break up of revenue from software services and software products is not available."
}
},
{
"from_name": null,
"id": "867c439de5a247d693bf361af6bf9c43",
"to_name": null,
"type": null,
"value": {
"end": 9875,
"labels": [
"RLC"
],
"start": 9764,
"text": "In this view of the matter, we hold that this company ought to be omitted from the set of comparable companies."
}
},
{
"from_name": null,
"id": "0fd3435aaa1a49e8975e21b407012e4e",
"to_name": null,
"type": null,
"value": {
"end": 9902,
"labels": [
"RLC"
],
"start": 9876,
"text": "It is ordered accordingly."
}
},
{
"from_name": null,
"id": "29ac3599942b41af9ee4e7af520a259a",
"to_name": null,
"type": null,
"value": {
"end": 9931,
"labels": [
"RLC"
],
"start": 9902,
"text": "\n 13.0 (5) Wipro Limited 13.1"
}
},
{
"from_name": null,
"id": "a39ea536b1934c1aa62d4d5edda1cbd0",
"to_name": null,
"type": null,
"value": {
"end": 9985,
"labels": [
"RLC"
],
"start": 9932,
"text": "This company was selected as a comparable by the TPO."
}
},
{
"from_name": null,
"id": "7b014d0a53e2435eba52ab2495157b03",
"to_name": null,
"type": null,
"value": {
"end": 10202,
"labels": [
"RLC"
],
"start": 9986,
"text": "Before the TPO, the assessee had objected to the inclusion of this company in the list of comparables or several grounds like functional dis-similarity, brand M/s.LSI Research (India) P. Ltd., 10/13 value, size, etc."
}
},
{
"from_name": null,
"id": "4729d569cb7f48119c312e1675132313",
"to_name": null,
"type": null,
"value": {
"end": 10318,
"labels": [
"RLC"
],
"start": 10203,
"text": "The TPO, however, brushed aside the objections of the assessee and included this company in the set of comparables."
}
},
{
"from_name": null,
"id": "11ced469328848369cd44bd311b29882",
"to_name": null,
"type": null,
"value": {
"end": 10676,
"labels": [
"RLC"
],
"start": 10320,
"text": "13.2 Before us, the assessee contended that this company is functionally not comparable to the assessee for several reasons, which are as under : (i) This company owns significant intangibles in the nature of customer related intangibles and technology related intangibles and quoted extracts from the Annual Report of this company in the submissions made."
}
},
{
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"id": "88d3f54da876467db71768eda313fe92",
"to_name": null,
"type": null,
"value": {
"end": 10901,
"labels": [
"RLC"
],
"start": 10676,
"text": "\n (ii) The TPO had adopted the consolidated financial statements for comparability purposes and for computing the margins, which contradicts the TPO's own filter of rejecting companies with consolidated financial statements\"."
}
},
{
"from_name": null,
"id": "d743e0e698394121a6d44f83d9898061",
"to_name": null,
"type": null,
"value": {
"end": 11058,
"labels": [
"PRE_RELIED"
],
"start": 10903,
"text": "6. However, this Court in a recent judgment in ITA No.536/2015 C/w ITA No.537/2015 delivered on 25.06.2018 (Prl. Commissioner of Income Tax & Anr. Vs. M/s."
}
},
{
"from_name": null,
"id": "ae83b3dc790545ddb22bca0c12dc3c72",
"to_name": null,
"type": null,
"value": {
"end": 11069,
"labels": [
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],
"start": 11059,
"text": "Softbrands"
}
},
{
"from_name": null,
"id": "484abe4ef685475d893c213734340eca",
"to_name": null,
"type": null,
"value": {
"end": 11079,
"labels": [
"PRE_RELIED"
],
"start": 11070,
"text": "India Pvt"
}
},
{
"from_name": null,
"id": "b1f72dfa95eb4951a1350eab50e63d5d",
"to_name": null,
"type": null,
"value": {
"end": 11087,
"labels": [
"PRE_RELIED"
],
"start": 11079,
"text": ". Ltd.,)"
}
},
{
"from_name": null,
"id": "8492a53c53af442a860e7a6b8d7ace85",
"to_name": null,
"type": null,
"value": {
"end": 11398,
"labels": [
"PRE_RELIED"
],
"start": 11088,
"text": "has held that in these type of cases, unless an ex-facie perversity M/s.LSI Research (India) P. Ltd., 11/13 in the findings of the learned Income Tax Appellate Tribunal is established by the appellant, the appeal at the instance of an assessee or the Revenue under Section 260-A of the Act is not maintainable."
}
},
{
"from_name": null,
"id": "4741b5db0f5346ff959ee3e9222ed325",
"to_name": null,
"type": null,
"value": {
"end": 11496,
"labels": [
"PRE_RELIED"
],
"start": 11398,
"text": "\n The relevant portion of the said judgment is quoted below for ready reference: \" Conclusion: 55."
}
},
{
"from_name": null,
"id": "c7941d3d05b94240b1622ed58c478e06",
"to_name": null,
"type": null,
"value": {
"end": 11627,
"labels": [
"PRE_RELIED"
],
"start": 11497,
"text": "A substantial quantum of international trade and transactions depends upon the fair and quick judicial dispensation in such cases."
}
},
{
"from_name": null,
"id": "e4bdf904109f42898d1cf9e862032fde",
"to_name": null,
"type": null,
"value": {
"end": 12258,
"labels": [
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],
"start": 11628,
"text": "Had it been a case of substantial question of interpretation of provisions of Double Taxation Avoidance Treaties (DTAA), interpretation of provisions of the Income Tax Act or Overriding Effect of the Treaties over the Domestic Legislations or the questions like Treaty Shopping, Base Erosion and Profit Shifting (BEPS), Transfer of Shares in Tax Havens (like in the case of Vodafone etc.), if based on relevant facts, such substantial questions of law could be raised before the High Court under Section 260-A of the Act, the Courts could have embarked upon such exercise of framing and answering such substantial question of law."
}
},
{
"from_name": null,
"id": "3644e269d2b649659b0439f7462d19a3",
"to_name": null,
"type": null,
"value": {
"end": 12586,
"labels": [
"PRE_RELIED"
],
"start": 12259,
"text": "On M/s.LSI Research (India) P. Ltd., 12/13 the other hand, the appeals of the present tenor as to whether the comparables have been rightly picked up or not, Filters for arriving at the correct list of comparables have been rightly applied or not, do not in our considered opinion, give rise to any substantial question of law."
}
},
{
"from_name": null,
"id": "9f59515dcd424483bb781915b43f31f9",
"to_name": null,
"type": null,
"value": {
"end": 12951,
"labels": [
"PRE_RELIED"
],
"start": 12586,
"text": "\n 56. We are therefore of the considered opinion that the present appeals filed by the Revenue do not give rise to any substantial question of law and the suggested substantial questions of law do not meet the requirements of Section 260-A of the Act and thus the appeals filed by the Revenue are found to be devoid of merit and the same are liable to be dismissed."
}
},
{
"from_name": null,
"id": "afae32c2ea52420cadd8eaab8f6158c5",
"to_name": null,
"type": null,
"value": {
"end": 13382,
"labels": [
"PRE_RELIED"
],
"start": 12951,
"text": "\n 57. We make it clear that the same yardsticks and parameters will have to be applied, even if such appeals are filed by the Assessees, because, there may be cases where the Tribunal giving its own reasons and findings has found certain comparables to be good comparables to arrive at an `Arm's Length Price' in the case of the assessees with which the assessees may not be satisfied and have filed such appeals before this Court."
}
},
{
"from_name": null,
"id": "e2c39cdde8854d4384edbbd806896ae0",
"to_name": null,
"type": null,
"value": {
"end": 13624,
"labels": [
"PRE_RELIED"
],
"start": 13383,
"text": "Therefore we clarify that mere dissatisfaction with the findings of facts arrived at by the learned Tribunal is not M/s.LSI Research (India) P. Ltd., 13/13 at all a sufficient reason to invoke Section 260-A of the Act before this Court.\n 58."
}
},
{
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"id": "57b84984b3ca40dcaf27f8ce3b4809d1",
"to_name": null,
"type": null,
"value": {
"end": 13709,
"labels": [
"PRE_RELIED"
],
"start": 13625,
"text": "The appeals filed by the Revenue are therefore dismissed with no order as to costs.\""
}
},
{
"from_name": null,
"id": "51dbc81fa19b4632a41eabf091d33d1b",
"to_name": null,
"type": null,
"value": {
"end": 13875,
"labels": [
"RPC"
],
"start": 13709,
"text": "\n 7. Having heard the learned counsel for the Appellants-Revenue, we are therefore of the opinion that no substantial question of law arises in the present case also."
}
},
{
"from_name": null,
"id": "409660bded81485c966034427c801e09",
"to_name": null,
"type": null,
"value": {
"end": 13977,
"labels": [
"RPC"
],
"start": 13876,
"text": "The appeal filed by the Appellants-Revenue is liable to be dismissed and it is dismissed accordingly."
}
},
{
"from_name": null,
"id": "8cf9ecc2389b4e089a6682c828a7115e",
"to_name": null,
"type": null,
"value": {
"end": 13987,
"labels": [
"RPC"
],
"start": 13977,
"text": "\nNo costs."
}
},
{
"from_name": null,
"id": "fef1b9bb5c924ef0b87f5e3a3cec9b19",
"to_name": null,
"type": null,
"value": {
"end": 14054,
"labels": [
"NONE"
],
"start": 13987,
"text": "\n Copy of this order be sent to the Respondent- Assessee forthwith."
}
},
{
"from_name": null,
"id": "03f56830a545467bb02b5a1cddf4d279",
"to_name": null,
"type": null,
"value": {
"end": 14082,
"labels": [
"NONE"
],
"start": 14054,
"text": "\n Sd/- JUDGE Sd/- JUDGE Srl."
}
}
]
}
] | 4,271 | {
"text": " 1/13\n\nIN THE HIGH COURT OF KARNATAKA, BENGALURU\n\n DATED THIS THE 20TH DAY OF JULY 2018\n\n PRESENT\n\nTHE HON'BLE Dr.JUSTICE VINEET KOTHARI\n\n AND\n\n THE HON'BLE Mrs.JUSTICE S.SUJATHA\n\n I.T.A.No.671/2015\n\nBETWEEN:\n\n1. PRINCIPAL COMMISSIONER OF INCOME TAX-4,\n C.R.BUILDING, QUEENS ROAD,\n BANGALORE-560 001.\n\n2. THE INCOME TAX OFFICER, ...APPELLANTS\n WARD 11(2), BANGALORE.\n\n(By Mr.E.I.SANMATHI, ADV.)\n\nAND:\n\nM/S. LSI RESEARCH (INDIA) P.LTD, ...RESPONDENT\nGLOBAL TECHNOLOGY PARK BLOCK C,\nMARATHAHALLI OUTER RING ROAD,\nDEVARABEESANAHALLI,\nBANGALORE-560 103.\n\n(RESPONDENT SERVED & UNREPRESENTED.)\n\n THIS I.T.A IS FILED UNDER SECTION 260-A OF INCOME\nTAX ACT 1961, PRAYING TO DECIDE THE FOREGOING\nQUESTION OF LAW AND OR SUCH OTHER QUESTIONS OF LAW\nAS MAY BE FORMULATED BY THE HON'BLE COURT AS\nDEEMED FIT AND SET ASIDE THE APPELLATE ORDER DATED\n26/05/2015 PASSED BY THE ITAT, `A' BENCH, BENGALURU, IN\nAPPEAL PROCEEDINGS NO. I.T(TP)A NO.1048/BANG/2011\nANNEXURE A, AS SOUGHT FOR IN THIS APPEAL; AND TO\nGRANT SUCH OTHER RELIEF AS DEEMED FIT, IN THE\nINTEREST OF JUSTICE.\n\n M/s.LSI Research (India) P. Ltd.,\n 2/13\n\n THIS I.T.A. COMING ON FOR ORDERS, THIS DAY S.\nSUJATHA J. DELIVERED THE FOLLOWING:-\n\n JUDGMENT\nMr.E.I.Sanmathi, Adv. for Appellants - Revenue 1. The Appellants-Revenue have filed this appeal u/s.260A of the Income Tax Act, 1961, raising purportedly certain substantial questions of law arising from the order of the ITAT, Bangalore Bench `A', Bangalore, dated 26.05.2015 passed in IT(TP)A No.1048/Bang/2011 (M/s.LSI Research (India) P.Ltd., vs. Income-tax Officer ) for A.Y.2007-08.\n 2. This appeal has been admitted on 10.08.2016 to consider the following substantial questions of law framed by the learned counsel for the Appellants- Revenue:- \"1. Whether on the facts and in the circumstances of the case, the Tribunal is justified in allowing the assessee's appeal directing the assessing officer to exclusion of the companies such as Accel Transmatics Ltd., Celestial Labs Ltd, KALS Information Systems Ltd, Ishir Infotech M/s.LSI Research (India) P. Ltd., 3/13 Ltd, Lucid Software Ltd, Infosys Technologies Ltd, Wipro Ltd, Tata Elxsi Ltd, E-Zest Solutions Ltd, Thirdware Solutions Ltd(Segment), Persistent System Ltd, Quintegra Solutions Ltd, Helios & Matheson Information Technology Ltd, from the comparables companies selected by the TPO that they are functionally different from the assessee when the materials on record proved contrary?\n 2. Whether on the facts and in the circumstances of the case, the Tribunal is justified in allowing the assessee's appeal directing the assessing officer to exclusion of the companies such as M/s.Infosys Technologies Ltd., Wipro Ltd., and Tata Elxsi from the 14 comparables companies selected by the TPO that they are functionally different from the assessee?\"\n 3. In so far as the first substantial question of law raised by the Revenue is concerned, learned counsel for the Revenue submitted that the learned ITAT in its Order dated 26.05.2015 has given the findings, the relevant portion of which is quoted below for ready reference:- \"14. In the appeal filed by the said assessee, vis-a-vis the comparability of various M/s.LSI Research (India) P. Ltd., 4/13 companies mentioned in the above list, it was held by the Tribunal at paras 18 to 30, as under : xxxxxxxxxxxxx Avani Cimcon Technologies Ltd.\n xxxxxxxxxxx 41. We have given a careful consideration to the submissions made on behalf of the Assessee and are of the view that the same deserves to be accepted. The reasons given by the Assessee for excluding this company as comparable are found to be acceptable. The decision of ITAT (Mumbai) in the case of Telcordia Technologies Pvt. Ltd. v. ACIT (supra) also supports the plea of the assessee. We therefore accept the plea of the Assessee to reject this company as a comparable.\n (c) Celestial Labs Ltd.\n xxxxxxxxx 45. From the material available on record, it transpires that the TPO has accepted that up to AY 06-07 this company was classified as a Research and Development company. According to the TPO in AY 07-08 this company has been classified as software development service provider in the Capitaline/Prowess database as M/s.LSI Research (India) P. Ltd., 5/13 well as in the annual report of this company. The TPO has relied on the response from this company to a notice u/s.133(6) of the Act in which it has said that it is in the business of providing software development services. The Assessee in reply to the proposal of the AO to treat this as a comparable has pointed out that this company provides software products/services as well as bioinformatics services and that the segmental data for each activity is not available and therefore this company should not be treated as comparable.\n Besides the above, the Assessee has point out to several references in the annual report for 31.3.2007 highlighting the fact that this company was develops biotechnology products and provides related software development services.\n The TPO called for segmental data at the entity level from this company. The TPO also called for description of software development process. In response to the request of the TPO this company in its reply dated 29.3.2010 has given details of employees working in software development but it is not clear as to whether any segmental data was given or not. Besides the above there is no other detail in the TPO's order as to the nature of software development services performed by the M/s.LSI Research (India) P. Ltd., 6/13 Assessee. Celestial labs had come out with a public issue of shares and in that connection issued Draft Red Herring Prospectus (DRHP) in which the business of this company was explained as to clinical research. The TPO wanted to know as to whether the primary business of this company is software development services as indicated in the annual report for FY 06-07 or clinical research and manufacture of bio products and other products as stated in the DRHP. There is no reference to any reply by Celestial labs to the above clarification of the TPO. The TPO without any basis has however concluded that the business mentioned in the DRHP are the services or businesses that would be started by utilizing the funds garnered though the Initial Public Offer (IPO) and thus in no way connected with business operations of the company during FY 06-07. We are of the view that in the light of the submissions made by the Assessee and the fact that this company was basically/admittedly in clinical research and manufacture of bio products and other products, there is no clear basis on which the TPO concluded that this company was mainly in the business of providing software development services. We therefore accept the M/s.LSI Research (India) P. Ltd., 7/13 plea of the Assessee that this company ought not to have been considered as comparable.\n (d) KALS Information Systems Ltd.\n xxxxxxxxxxxxxxx 47. We have given a careful consideration to the submission made on behalf of the Assessee. We find that the TPO has drawn conclusions on the basis of information obtained by issue of notice u/s.133(6) of the Act. This information which was not available in public domain could not have been used by the TPO, when the same is contrary to the annual report of this company as highlighted by the Assessee in its letter dated 21.6.2010 to the TPO. We also find that in the decision referred to by the learned counsel for the Assessee, the Mumbai Bench of ITAT has held that this company was developing software products and not purely or mainly software development service provider. We therefore accept the plea of the Assessee that this company is not comparable.\n 4. For other comparable companies, the learned Tribunal has given the similar findings.\n M/s.LSI Research (India) P. Ltd., 8/13 5. In so far as the second substantial question of law raised by the Revenue is concerned, learned counsel for the Revenue submitted that the learned ITAT in its Order dated 26.05.2015 has given the findings, the relevant portion of which is quoted below for ready reference:- \" 24. As far as comparable companies listed at Sl.No.10, 24 & 26 of the final list of comparable companies chosen by the TPO viz., M/S.Infosys Technologies Limited, Tata Elxsi Ltd. (Seg.) & Wipro Limited are concerned, this Tribunal in the case of M/S.Curam Software International Pvt.Ltd. Vs. ITO ITA No.1280/Bang/2012 for AY 08-09 order dated 31.7.2013 has held that the aforesaid companies are not comparable companies in the case of software development services provider.\n The following were the relevant observations in the case of M/S.Curam Software International Pvt.Ltd.(supra): \"12. (4) Infosys Technologies Ltd.\n xxxxxxxxxxxx M/s.LSI Research (India) P. Ltd., 9/13 12.4 We have heard the rival submissions and perused and carefully considered the material on record. We find that the assessee has brought on record sufficient evidence to establish that this company is functionally dis- similar and different from the assessee and hence is not comparable and the finding rendered in the case of Trilogy E-Business Software India Pvt. Ltd. (supra) for Assessment Year 2007-08 is applicable to this year also.\nThe argument put forth by assessee's is that Infosys Technologies Ltd is not functionally comparable since it owns significant intangible and has huge revenues from software products.\nIt is also seen that the break up of revenue from software services and software products is not available. In this view of the matter, we hold that this company ought to be omitted from the set of comparable companies. It is ordered accordingly.\n 13.0 (5) Wipro Limited 13.1 This company was selected as a comparable by the TPO. Before the TPO, the assessee had objected to the inclusion of this company in the list of comparables or several grounds like functional dis-similarity, brand M/s.LSI Research (India) P. Ltd., 10/13 value, size, etc. The TPO, however, brushed aside the objections of the assessee and included this company in the set of comparables.\n 13.2 Before us, the assessee contended that this company is functionally not comparable to the assessee for several reasons, which are as under : (i) This company owns significant intangibles in the nature of customer related intangibles and technology related intangibles and quoted extracts from the Annual Report of this company in the submissions made.\n (ii) The TPO had adopted the consolidated financial statements for comparability purposes and for computing the margins, which contradicts the TPO's own filter of rejecting companies with consolidated financial statements\".\n 6. However, this Court in a recent judgment in ITA No.536/2015 C/w ITA No.537/2015 delivered on 25.06.2018 (Prl. Commissioner of Income Tax & Anr. Vs. M/s. Softbrands India Pvt. Ltd.,) has held that in these type of cases, unless an ex-facie perversity M/s.LSI Research (India) P. Ltd., 11/13 in the findings of the learned Income Tax Appellate Tribunal is established by the appellant, the appeal at the instance of an assessee or the Revenue under Section 260-A of the Act is not maintainable.\n The relevant portion of the said judgment is quoted below for ready reference: \" Conclusion: 55. A substantial quantum of international trade and transactions depends upon the fair and quick judicial dispensation in such cases. Had it been a case of substantial question of interpretation of provisions of Double Taxation Avoidance Treaties (DTAA), interpretation of provisions of the Income Tax Act or Overriding Effect of the Treaties over the Domestic Legislations or the questions like Treaty Shopping, Base Erosion and Profit Shifting (BEPS), Transfer of Shares in Tax Havens (like in the case of Vodafone etc.), if based on relevant facts, such substantial questions of law could be raised before the High Court under Section 260-A of the Act, the Courts could have embarked upon such exercise of framing and answering such substantial question of law. On M/s.LSI Research (India) P. Ltd., 12/13 the other hand, the appeals of the present tenor as to whether the comparables have been rightly picked up or not, Filters for arriving at the correct list of comparables have been rightly applied or not, do not in our considered opinion, give rise to any substantial question of law.\n 56. We are therefore of the considered opinion that the present appeals filed by the Revenue do not give rise to any substantial question of law and the suggested substantial questions of law do not meet the requirements of Section 260-A of the Act and thus the appeals filed by the Revenue are found to be devoid of merit and the same are liable to be dismissed.\n 57. We make it clear that the same yardsticks and parameters will have to be applied, even if such appeals are filed by the Assessees, because, there may be cases where the Tribunal giving its own reasons and findings has found certain comparables to be good comparables to arrive at an `Arm's Length Price' in the case of the assessees with which the assessees may not be satisfied and have filed such appeals before this Court. Therefore we clarify that mere dissatisfaction with the findings of facts arrived at by the learned Tribunal is not M/s.LSI Research (India) P. Ltd., 13/13 at all a sufficient reason to invoke Section 260-A of the Act before this Court.\n 58. The appeals filed by the Revenue are therefore dismissed with no order as to costs.\"\n 7. Having heard the learned counsel for the Appellants-Revenue, we are therefore of the opinion that no substantial question of law arises in the present case also. The appeal filed by the Appellants-Revenue is liable to be dismissed and it is dismissed accordingly.\nNo costs.\n Copy of this order be sent to the Respondent- Assessee forthwith.\n Sd/- JUDGE Sd/- JUDGE Srl.\n"
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"id": "ba6d0357356943cb9be0e2b8abc32392",
"to_name": "text",
"type": "labels",
"value": {
"end": 1291,
"labels": [
"PREAMBLE"
],
"start": 1284,
"text": "DATED :"
}
},
{
"from_name": "label",
"id": "eb3af4dfaf6a42909ac18af31b6a19f6",
"to_name": "text",
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"value": {
"end": 1311,
"labels": [
"PREAMBLE"
],
"start": 1292,
"text": "23rd NOVEMBER, 2017"
}
},
{
"from_name": "label",
"id": "7f3246dcc96b47f3a56a92c19ecdc933",
"to_name": "text",
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"value": {
"end": 1396,
"labels": [
"PREAMBLE"
],
"start": 1311,
"text": ".\n\n\n (( 2 ))\n\nORAL JUDGMENT (PER RAVINDRA V. GHUGE, J.):"
}
},
{
"from_name": "label",
"id": "a2bf7acfd3364de0aed2743ce7626806",
"to_name": "text",
"type": "labels",
"value": {
"end": 1702,
"labels": [
"FAC"
],
"start": 1397,
"text": "1. In both these appeals, the appellant Central Excise & Customs Department, (hereinafter referred to as the Revenue Department), seeks to challenge the order dated 4.12.2007, and 4.3.2008, passed by the Customs, Excise & Service Tax Appellate Tribunal (CESTAT), West Zone, Bench at Mumbai in two cases."
}
},
{
"from_name": "label",
"id": "4cb1ac5fff7e4dbfbe02c88849561c87",
"to_name": "text",
"type": "labels",
"value": {
"end": 2087,
"labels": [
"FAC"
],
"start": 1702,
"text": "\n The prayers put forth by the appellant are almost identical, except the dates of the order and the amount mentioned in the demand notice and penalty under Rule 173-Q.\n 2. Learned counsel for the respondent assessee is aggrieved by the lodging of these appeals in this Court, for the reason that, these appeals are not maintainable under Section 35-G of the Central Excise Act, 1944."
}
},
{
"from_name": "label",
"id": "82271c8c85ee4e5d936739b22dcd369b",
"to_name": "text",
"type": "labels",
"value": {
"end": 2350,
"labels": [
"FAC"
],
"start": 2088,
"text": "It is contended that, this Court does not have jurisdiction to entertain these appeals, and notwithstanding the fact that the appeals have been admitted, jurisdiction cannot vest in this Court when such jurisdiction is not specifically prescribed by the Statute."
}
},
{
"from_name": "label",
"id": "ec4d9392df1a47218582e9c33318d241",
"to_name": "text",
"type": "labels",
"value": {
"end": 2460,
"labels": [
"NONE"
],
"start": 2350,
"text": "\n 3. Prayer clauses (B) and (C) set out in both the appeals read as under : (( 3 )) FIRST APPEAL NO.2860/2008"
}
},
{
"from_name": "label",
"id": "e1b7c46e7d2a43719cc5fc0031df0a66",
"to_name": "text",
"type": "labels",
"value": {
"end": 2578,
"labels": [
"NONE"
],
"start": 2461,
"text": "(B) The order dated 4.12.2007, passed by learned CESTAT, Mumbai bearing No.A/900/WZB/C-II/EB may kindly be set aside."
}
},
{
"from_name": "label",
"id": "39b7c6b829a5469abcb85339816cedf9",
"to_name": "text",
"type": "labels",
"value": {
"end": 2913,
"labels": [
"NONE"
],
"start": 2578,
"text": "\n (C) That, the order passed by the learned Assistant Commissioner, Central Excise & Customs, Aurangabad Division-II vide Order-in-Original No.434/DMD/97, dated 31.10.1997 may kindly be confirmed by upholding the demand of Rs.17,37,276=82 ps. and also to impose penalty of Rs.2,00,000/- under Rule 173-Q.\n FIRST APPEAL NO.3869/2008 (B)"
}
},
{
"from_name": "label",
"id": "7cbdc4b57c8d44e694958898eeaf4462",
"to_name": "text",
"type": "labels",
"value": {
"end": 3024,
"labels": [
"NONE"
],
"start": 2914,
"text": "The order dated 4.3.2008, passed by learned CESTAT, Mumbai bearing No.A/317/08/C-I/EB may kindly be set aside."
}
},
{
"from_name": "label",
"id": "4ce800238e2744da9713f509d8ea68f7",
"to_name": "text",
"type": "labels",
"value": {
"end": 3321,
"labels": [
"NONE"
],
"start": 3026,
"text": "(C) That, the order passed by the learned Assistant Commissioner, Central Excise & Customs, Aurangabad Division-II vide Order-in-Original No.164/1999, dated 29.7.1999 may kindly be confirmed by upholding the demand of Rs.6,52,354/- and also to impose penalty of Rs.50,000/- under Rule 173-Q.\n 4."
}
},
{
"from_name": "label",
"id": "9d7fcd86bc004963914d2fa86cfc8c5e",
"to_name": "text",
"type": "labels",
"value": {
"end": 3554,
"labels": [
"NONE"
],
"start": 3322,
"text": " Considering the pleadings of the litigating sides, we called upon the learned Advocates to state as to whether they (( 4 )) would prefer to address the Court on the jurisdiction issue prior to dealing with the merits of the matter."
}
},
{
"from_name": "label",
"id": "7ff1a7a32f3149db9f134666734759e6",
"to_name": "text",
"type": "labels",
"value": {
"end": 3816,
"labels": [
"FAC"
],
"start": 3555,
"text": "Learned counsel have stated that, they would address the Court on the jurisdiction aspect, and in the event this Court can exercise jurisdiction in these appeals, the said appeals could then be posted to a convenient date for hearing them on their merits.\n 5. "
}
},
{
"from_name": "label",
"id": "1745ecb902274fe7952a0e86352cec9e",
"to_name": "text",
"type": "labels",
"value": {
"end": 4329,
"labels": [
"FAC"
],
"start": 3816,
"text": "Having considered the strenuous submissions of the learned Advocates for the respective sides, we find that, the following factors are germane to this case :- (a) The respondent is a pharmaceutical Company, engaged in the manufacturing of goods, falling under CH-30 of the Central excise Tariff Act, 1985.\n (b) On 1.3.1994, the respondent assessee had claimed exemption from paying the tax on the product under Notification No.6/1994, dated 1.3.1994 and as amended by the Notification No.114/1994, dated 3.6.1994."
}
},
{
"from_name": "label",
"id": "63b75d5c73664c89816329ae88f11149",
"to_name": "text",
"type": "labels",
"value": {
"end": 4547,
"labels": [
"FAC"
],
"start": 4329,
"text": "\n (c) The exemption claimed was with regard to a material manufactured by product name Lidocaine Tropical Aerosol (USP), used as an anesthetic and specially restricted to surgery and used in hospitals and dispensaries."
}
},
{
"from_name": "label",
"id": "215d7b3a77f44a50b66226277a5915a0",
"to_name": "text",
"type": "labels",
"value": {
"end": 4938,
"labels": [
"FAC"
],
"start": 4547,
"text": "\n (d) The respondent has allegedly fraudulently claimed the (( 5 )) exemption since the said material was being used in the manufacturing of a spray, which carried the brand names like 'Climax', 'Numic' and 'Stud'.\n (e) The labels applied to the above products on the cans while being sold, indicate that, the said material is to be used as a stimulant for the purposes of sexual activities."
}
},
{
"from_name": "label",
"id": "7d1d1633345641a8831cf69497258893",
"to_name": "text",
"type": "labels",
"value": {
"end": 5292,
"labels": [
"FAC"
],
"start": 4938,
"text": "\n (f) Exemption in the taxes on anesthetic material is specially prescribed by legislation so as to ensure that the said product used for the purposes of administering anesthesia by anesthetists, would lead to reducing the cost of the product, and as such, consequently would reduce the cost of medical treatment and the financial burden on the patients."
}
},
{
"from_name": "label",
"id": "9595edb45a9f4f388518a39d6a36928e",
"to_name": "text",
"type": "labels",
"value": {
"end": 5451,
"labels": [
"FAC"
],
"start": 5292,
"text": "\n (g) If the said material is to be used as a sex stimulant and not for any surgery, the respondent needs to be deprived of the concessions/ exemption granted."
}
},
{
"from_name": "label",
"id": "301b771104ba4d87bb4ceb3fd4b76926",
"to_name": "text",
"type": "labels",
"value": {
"end": 5625,
"labels": [
"FAC"
],
"start": 5451,
"text": "\n (h) By the first order dated 31.10.1997, the Assistant Commissioner of Central Excise & Customs, Aurangabad confirmed the demand pursuant to the show-cause- notices issued."
}
},
{
"from_name": "label",
"id": "ac6763071f704bd9bc6f74c4b451d956",
"to_name": "text",
"type": "labels",
"value": {
"end": 5905,
"labels": [
"FAC"
],
"start": 5625,
"text": "\n (i) The order dated 31.10.1997 reads as under : FIRST APPEAL NO.2860/2008 I) I confirm the demand of Rs.17,37,276=82 as mentioned in the above Show Cause Notices (( 6 )) after denying noticee the exemption notifications as mentioned in Show Cause Notices dated 31.10.1994.\n II)"
}
},
{
"from_name": "label",
"id": "1bac64d7de3c44929736ffad66a0ee27",
"to_name": "text",
"type": "labels",
"value": {
"end": 6054,
"labels": [
"FAC"
],
"start": 5906,
"text": "I impose a penalty of Rs.2,00,000/- under Rule 173-Q of Central Excise Rules, 1944 for availing the inadmissible benefit of exemption notifications."
}
},
{
"from_name": "label",
"id": "26c9c125bbe745b2a1499b303f0416ef",
"to_name": "text",
"type": "labels",
"value": {
"end": 6199,
"labels": [
"FAC"
],
"start": 6054,
"text": "\n FIRST APPEAL NO.3869/2008 I hereby confirm duty liability of Rs.6,52,354/- and order recovery of the same under Section 11A of C.Ex. Act, 1944."
}
},
{
"from_name": "label",
"id": "25df4ec8aa8340fa854b2f80879e618c",
"to_name": "text",
"type": "labels",
"value": {
"end": 6277,
"labels": [
"FAC"
],
"start": 6199,
"text": "\n I also impose a penalty of Rs.50,000/- under Rule 173Q of C.Ex. Rules, 1944."
}
},
{
"from_name": "label",
"id": "519b1325a5554d14bcb4632eb1cf3179",
"to_name": "text",
"type": "labels",
"value": {
"end": 6367,
"labels": [
"FAC"
],
"start": 6277,
"text": "\n I also order to recover the interest on the said amount under Section 11AA of CEA, 1944."
}
},
{
"from_name": "label",
"id": "a9ca38c282f5481fbcddc806d843e0f5",
"to_name": "text",
"type": "labels",
"value": {
"end": 6555,
"labels": [
"FAC"
],
"start": 6367,
"text": "\n (j) In the appeal preferred by the respondent before the Commissioner of Appeals, Central Excise, Mumbai, by order dated 27.12.2000/ 29.11.2002, the appeal of the respondent was allowed."
}
},
{
"from_name": "label",
"id": "0b9b8f0c4e4d4e9999247f910e1dcd3c",
"to_name": "text",
"type": "labels",
"value": {
"end": 6722,
"labels": [
"FAC"
],
"start": 6555,
"text": "\n (k) In the appeal before CESTAT, filed by the appellant Department, the Tribunal has rejected the said appeal, by judgment dated 4.12.2007 and 4.3.2008.\n (( 7 )) 6."
}
},
{
"from_name": "label",
"id": "b9bade9fcbe241388825db9b8ce5cbf1",
"to_name": "text",
"type": "labels",
"value": {
"end": 6836,
"labels": [
"FAC"
],
"start": 6724,
"text": "We are, therefore, required to consider the effect and the impact of the impugned orders passed by the Tribunal."
}
},
{
"from_name": "label",
"id": "9dee55773816420fa90d53f96748b030",
"to_name": "text",
"type": "labels",
"value": {
"end": 7010,
"labels": [
"ARG_RESPONDENT"
],
"start": 6837,
"text": "The contention of Shri Godsay, learned Advocate for the respondent is that, a plain reading of Section 35-G of the 1944 Act, would indicate that, this appeal is not tenable."
}
},
{
"from_name": "label",
"id": "01edc3e690d04f4281ee63a0f53cf526",
"to_name": "text",
"type": "labels",
"value": {
"end": 7241,
"labels": [
"ARG_RESPONDENT"
],
"start": 7011,
"text": "He has placed reliance upon the judgment delivered by the learned Division Bench of the Allahabad High Court in the case of Commissioner of Cus.\n & C. Ex. Vs. ECO Products (I) P. Ltd., reported in 2015 (315) E.L.T. 561 (All.).\n 7."
}
},
{
"from_name": "label",
"id": "462025558e03439f99d7bc67126bbf48",
"to_name": "text",
"type": "labels",
"value": {
"end": 7453,
"labels": [
"ARG_PETITIONER"
],
"start": 7243,
"text": "Learned counsel Shri Ladda, appearing on behalf of the appellant Department submits that, there can be no dispute that Section 35, was earlier omitted by the introduction of the National Tax Tribunal Act, 2005."
}
},
{
"from_name": "label",
"id": "800cfce18f4b4330b80d8e12ec67b16c",
"to_name": "text",
"type": "labels",
"value": {
"end": 7644,
"labels": [
"ARG_PETITIONER"
],
"start": 7454,
"text": "Subsequently, the said Act itself was held to be unconstitutional by the Hon'ble Apex Court in the matter of Madras Bar Association Vs. Union of India (UOI) reported in (2015) AIR (SC) 1571."
}
},
{
"from_name": "label",
"id": "1a7c6b79f6794a2fb081a46841dbea24",
"to_name": "text",
"type": "labels",
"value": {
"end": 7802,
"labels": [
"ARG_PETITIONER"
],
"start": 7645,
"text": "He, however, submits that, though Section35-G has been reintroduced, it would not affect this appeal, and the jurisdiction of this Court would not be ousted."
}
},
{
"from_name": "label",
"id": "0e088d61c48c436f89e33b224737797a",
"to_name": "text",
"type": "labels",
"value": {
"end": 8015,
"labels": [
"ARG_PETITIONER"
],
"start": 7803,
"text": "He relies upon an order passed by the learned Division Bench of this Court at Bombay in the matter of J.V. Gokul & Co.\n (Pvt.) Ltd. Vs. Union of India, reported in 2017(01) LCX0038, in support of his contentions."
}
},
{
"from_name": "label",
"id": "0e5b157f5c5a4685a74de63862c25788",
"to_name": "text",
"type": "labels",
"value": {
"end": 8027,
"labels": [
"STA"
],
"start": 8015,
"text": "\n (( 8 )) 8."
}
},
{
"from_name": "label",
"id": "2e809b8f3af0403c9ecfcf73964e437c",
"to_name": "text",
"type": "labels",
"value": {
"end": 8229,
"labels": [
"STA"
],
"start": 8028,
"text": " For better understanding, while dealing with the jurisdictional objection of the respondent, it would be advantageous to refer to Section 35-G, which permits the filing of an appeal in the High Court."
}
},
{
"from_name": "label",
"id": "c2e0bc6b64354443983b69af0fc047b9",
"to_name": "text",
"type": "labels",
"value": {
"end": 8447,
"labels": [
"STA"
],
"start": 8230,
"text": "Section 35-G reads as under :- \"35-G. Appeal to High Court : [Omitted by the National Tax Tribunal Act, 2005 (49 of 2005), Section 30 and Schedule, Part VII (w.e.f.\n 28.12.2005)] Explanation : 1. . . . . . .\n 2."
}
},
{
"from_name": "label",
"id": "fe44722890be485a8145392b262a3bec",
"to_name": "text",
"type": "labels",
"value": {
"end": 8937,
"labels": [
"STA"
],
"start": 8448,
"text": "Prior to its omission, S.35-G read as under : \"35-G. Appeal to High Court : (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law."
}
},
{
"from_name": "label",
"id": "4b48c7e6703449b2a815ab29ee650dbc",
"to_name": "text",
"type": "labels",
"value": {
"end": 9304,
"labels": [
"STA"
],
"start": 8937,
"text": "\n 9. The underlined portion of Section 35-G leads to a plain and simple meaning that an appeal, challenging an order passed by the Tribunal and relating to, amongst other things, the determination of any question having a relation to the rate of the duty of excise or to the value of the goods, for purpose of assessment, would not be maintainable before this Court."
}
},
{
"from_name": "label",
"id": "40c9de2ed08044a488274d12521b9c1b",
"to_name": "text",
"type": "labels",
"value": {
"end": 9319,
"labels": [
"ARG_PETITIONER"
],
"start": 9304,
"text": "\n (( 9 )) 10. "
}
},
{
"from_name": "label",
"id": "c3b8012efb984d0a8742dbf2c461af75",
"to_name": "text",
"type": "labels",
"value": {
"end": 9527,
"labels": [
"ARG_PETITIONER"
],
"start": 9319,
"text": "Learned counsel for the appellant specifically submits that, the case before this Court is as regards whether exemption granted to the respondent under a misrepresentation, has led to payment of lesser taxes."
}
},
{
"from_name": "label",
"id": "727903b88f3b4bbd8dc3b00035f06afc",
"to_name": "text",
"type": "labels",
"value": {
"end": 9869,
"labels": [
"ARG_PETITIONER"
],
"start": 9528,
"text": "It is further contended by the appellant that, if this Court holds that the respondent has acquired exemption by misrepresentation, by terming the product as being one which should be used exclusively for the purposes of surgery and medical procedures, the appellant would succeed in recovering higher taxes with penalty from the respondent."
}
},
{
"from_name": "label",
"id": "f089aedf7d71451fbf428f31b4a8d844",
"to_name": "text",
"type": "labels",
"value": {
"end": 10114,
"labels": [
"ANALYSIS"
],
"start": 9869,
"text": "\n 11. In the backdrop of these submissions, we find that, a decision on the merits of these appeals, if is to be delivered by us, would lead to the determination of a question in relation to the rate of duty of excise as against the respondent."
}
},
{
"from_name": "label",
"id": "638393b9a83140db8d8b22d177625f0b",
"to_name": "text",
"type": "labels",
"value": {
"end": 10363,
"labels": [
"ANALYSIS"
],
"start": 10115,
"text": "As such, if the appellant succeeds, the Department would succeed in raising the taxes on the product at issue and would, therefore, recover more taxes at a higher rate of duty of excise on the product, which was granted exemption by the Department."
}
},
{
"from_name": "label",
"id": "324c686407a14aec8c2001f140d1c726",
"to_name": "text",
"type": "labels",
"value": {
"end": 10505,
"labels": [
"PRE_NOT_RELIED"
],
"start": 10363,
"text": "\n 12. We have considered the order passed by the learned Division Bench of this Court in the matter of J.V. Gokul & Co.\n (Pvt.) Ltd. (supra)."
}
},
{
"from_name": "label",
"id": "821c59cdeb694ec4b6f7efcca09131dd",
"to_name": "text",
"type": "labels",
"value": {
"end": 10702,
"labels": [
"PRE_NOT_RELIED"
],
"start": 10506,
"text": "We do not find that Section 35-G of the (( 10 )) Central Excise Act or any other provision, similar or identical to Section 35-G under the Customs Act, having been considered by the learned Bench."
}
},
{
"from_name": "label",
"id": "8b58d7c285b74cb39892791be87c73ac",
"to_name": "text",
"type": "labels",
"value": {
"end": 10889,
"labels": [
"PRE_RELIED"
],
"start": 10702,
"text": "\n 13. Insofar as the view taken by the learned Division Bench of the Allahabad High Court in ECO Products (I) P. Ltd.\n (supra) is concerned, paragraphs 57, 58 and 59 read as under : \"57."
}
},
{
"from_name": "label",
"id": "fee0f22ae5b44377ab1c423855f8bac1",
"to_name": "text",
"type": "labels",
"value": {
"end": 11221,
"labels": [
"PRE_RELIED"
],
"start": 10890,
"text": "Now the submission of Sri Kesarwani that right of appeal under Section 35-G of the Act being statutory remedy and a substantive right, should be interpreted liberally while that portion of this Section which excludes the right of appeal to the High Court has to be construed strictly and in a restrictive sense is to be considered."
}
},
{
"from_name": "label",
"id": "79993aff02c548f5bc28a1d126dd46f3",
"to_name": "text",
"type": "labels",
"value": {
"end": 11335,
"labels": [
"ANALYSIS"
],
"start": 11221,
"text": "\n 58. There is no dispute that right of appeal is a statutory right given under Sections 35-G and 35-L of the Act."
}
},
{
"from_name": "label",
"id": "e33de798905b42fd882c31ba2e6dc9e8",
"to_name": "text",
"type": "labels",
"value": {
"end": 11509,
"labels": [
"ANALYSIS"
],
"start": 11336,
"text": "The scheme of the Act as delineated by Sections 35- G and 35-L indicates that subject matter of appeal before the High Court and the Apex Court have been clearly demarcated."
}
},
{
"from_name": "label",
"id": "a9829a71b2cc4096acdac6cea0ef63c3",
"to_name": "text",
"type": "labels",
"value": {
"end": 11636,
"labels": [
"ANALYSIS"
],
"start": 11510,
"text": "The right of appeal has been granted to the assessee or revenue before the High Court and the Apex Court on different grounds."
}
},
{
"from_name": "label",
"id": "775aa03a33b84b4191032b9550b7996c",
"to_name": "text",
"type": "labels",
"value": {
"end": 11903,
"labels": [
"ANALYSIS"
],
"start": 11637,
"text": "There is no question of giving any restrictive interpretation to the exclusionary clause under Section 35-G since the category which was excluded from the appeal before the High Court under Section 35-G of the Act is expressly included under Section 35-L of the Act."
}
},
{
"from_name": "label",
"id": "6841cd36dea240e1aa615f9695a81150",
"to_name": "text",
"type": "labels",
"value": {
"end": 12144,
"labels": [
"ANALYSIS"
],
"start": 11904,
"text": "The demarcation of the subject matter of appeal before this Court and the Apex Court was with some object and purpose and when the words in sections are plain and unambiguous, the plain and literal (( 11 )) interpretation has to be adopted."
}
},
{
"from_name": "label",
"id": "566a5f137a1046c98912ba20399743aa",
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"value": {
"end": 12477,
"labels": [
"PRE_RELIED"
],
"start": 12145,
"text": "It is useful to refer to paragraph 44 of the judgment of the Karnataka High Court in the case of Commissioner of Central Excise, Mangalore Vs. Mangalore Refineries & Petrochemicals Ltd.\n(supra) where the Karnataka High Court has noticed the intention behind the bifurcation of jurisdiction between the Apex Court and the High Court."
}
},
{
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"id": "c0a84fde8f514f84aa708d2148e08fda",
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"value": {
"end": 12571,
"labels": [
"PRE_RELIED"
],
"start": 12478,
"text": "Following was laid down by the Karnataka High Court in paragraph 44, which is as under : \"44."
}
},
{
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"id": "25825e3c2140402dbfe6146c65aa3b19",
"to_name": "text",
"type": "labels",
"value": {
"end": 12893,
"labels": [
"PRE_RELIED"
],
"start": 12572,
"text": "The intention behind this bifurcation of jurisdiction between the Apex Court and the High Court seems to be that more often than not, any decision on these aforesaid aspects nor only affects the interest of the manufacturers who are parties thereto, but also to the manufacturers of those products throughout the country."
}
},
{
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"id": "219e3bd774494d8d98501150297916b2",
"to_name": "text",
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"value": {
"end": 13113,
"labels": [
"PRE_RELIED"
],
"start": 12894,
"text": "In a country governed by Parliamentary legislation because of the territorial bifurcation in forming states and because of the divergent opinion which is possible, the excise duty payable would vary from place to place."
}
},
{
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"id": "a63c9559a3bf4e24aab87d5222862067",
"to_name": "text",
"type": "labels",
"value": {
"end": 13347,
"labels": [
"PRE_RELIED"
],
"start": 13114,
"text": "In order to bring uniformity in the levy of excise duty throughout the country and consequently to see that the country's finance is not affected, the Parliament has vested the jurisdiction to decide the disputes with the Apex Court."
}
},
{
"from_name": "label",
"id": "c362fdced52c49c3bac550a019ce2e3c",
"to_name": "text",
"type": "labels",
"value": {
"end": 13472,
"labels": [
"PRE_RELIED"
],
"start": 13348,
"text": "Therefore, we see a duty policy underlining this bifurcation of the jurisdiction between the Apex Court and the High Courts."
}
},
{
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"id": "4cd2a95926f04769944e2e5f41cf0503",
"to_name": "text",
"type": "labels",
"value": {
"end": 13829,
"labels": [
"PRE_RELIED"
],
"start": 13473,
"text": "All other matters other than what is set out above, which relates to the individual manufacturers and all disputes based on assessment orders which have attained finality, such as the benefits to which they are entitled to, refunds, duty drawbacks, rebates, etc., which relate to a particular manufacturer falls within the jurisdiction of the High Courts.\""
}
},
{
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"id": "c9d408a20b6041cebdc3346549fa6179",
"to_name": "text",
"type": "labels",
"value": {
"end": 13843,
"labels": [
"PRE_RELIED"
],
"start": 13829,
"text": "\n (( 12 )) 59."
}
},
{
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"id": "4f409dde4f2745d2a8304ec41f22da3f",
"to_name": "text",
"type": "labels",
"value": {
"end": 14317,
"labels": [
"PRE_RELIED"
],
"start": 13844,
"text": "In view of the foregoing discussions, we are of the view that since the question raised in the appeal relates to eligibility of the goods manufactured by the assessee for exemption under Notification No.1/93-C.E., dated 28.2.1993 and goods were manufactured without payment of duty and no assessment had taken place, the proceedings initiated under Section 11-A were for determination of duty liability in which the eligibility of the said goods for exemption was disputed."
}
},
{
"from_name": "label",
"id": "8b1efb3757b64332a6f253d057c4c973",
"to_name": "text",
"type": "labels",
"value": {
"end": 14472,
"labels": [
"PRE_RELIED"
],
"start": 14318,
"text": "The question of exemption is directly and proximately related to the rate of duty for the purposes of assessment of excise duty payable by the respondent."
}
},
{
"from_name": "label",
"id": "95d816b6826e4ff09cc5875bd7925905",
"to_name": "text",
"type": "labels",
"value": {
"end": 14628,
"labels": [
"PRE_RELIED"
],
"start": 14473,
"text": "The appeal on the said question is clearly excluded under Section 35-G and can be filed by the revenue before the Apex Court under Section 35-L of the Act."
}
},
{
"from_name": "label",
"id": "27268c6b6afc40d7a0b7ca78d2e95c57",
"to_name": "text",
"type": "labels",
"value": {
"end": 14832,
"labels": [
"PRE_RELIED"
],
"start": 14629,
"text": "Thus, the preliminary objection of the respondent regarding maintainability of appeal is upheld and Central Excise Appeal Defective No.402 of 2005 is held not maintainable under Section 35-G of the Act.\""
}
},
{
"from_name": "label",
"id": "60b081902acb465c8be3aea7ee66c1ed",
"to_name": "text",
"type": "labels",
"value": {
"end": 15287,
"labels": [
"RATIO"
],
"start": 14832,
"text": "\n 14. Considering the above, and in the light of the specific pleadings of the appellant, and the submissions of the litigating sides, we find that the issue which we are called upon to adjudicate, would lead to a decision (if the appellant succeeds) determining the question of the rate of duty of excise, on the goods, which the respondent sells to the consumers, and the assertion of the appellant that the exemption granted cannot be made applicable."
}
},
{
"from_name": "label",
"id": "09a2a513e5e24613b86fdabba4095313",
"to_name": "text",
"type": "labels",
"value": {
"end": 15464,
"labels": [
"RATIO"
],
"start": 15288,
"text": "This would lead to permitting the appellant to impose higher rate of duty of excise on the value of the goods, in (( 13 )) relation to which the impugned order has been passed."
}
},
{
"from_name": "label",
"id": "1fd18df86d224b68899a7e9bd24e99d9",
"to_name": "text",
"type": "labels",
"value": {
"end": 15607,
"labels": [
"RATIO"
],
"start": 15464,
"text": "\n 15. We, therefore, find that, as the subject matter of both these appeals are squarely covered by the prohibition flowing from Section 35-G."
}
},
{
"from_name": "label",
"id": "aaffc194be0c468884c6491c31618b36",
"to_name": "text",
"type": "labels",
"value": {
"end": 15671,
"labels": [
"RPC"
],
"start": 15608,
"text": "Both these appeals would not be maintainable before this Court."
}
},
{
"from_name": "label",
"id": "2adc9e89632d49958cca6787d8579ec6",
"to_name": "text",
"type": "labels",
"value": {
"end": 15755,
"labels": [
"RPC"
],
"start": 15672,
"text": "Consequentially, both these appeals are dismissed on the ground of maintainability."
}
},
{
"from_name": "label",
"id": "8ce36d6801a74714a4b449475c36d88d",
"to_name": "text",
"type": "labels",
"value": {
"end": 15930,
"labels": [
"ARG_PETITIONER"
],
"start": 15755,
"text": "\n 16. At this juncture, learned counsel for the appellants prays that, liberty may be granted to the appellants to approach the Hon'ble Apex Court for filing a proper appeal."
}
},
{
"from_name": "label",
"id": "9119a82f124f4bb3a070c05fac6e7d46",
"to_name": "text",
"type": "labels",
"value": {
"end": 16052,
"labels": [
"RATIO"
],
"start": 15931,
"text": "We find that, the appellant would have a statutory right to approach the Hon'ble Apex Court in the light of Section 35-L."
}
},
{
"from_name": "label",
"id": "e7702ec821774c3abbd14a778ea46bfd",
"to_name": "text",
"type": "labels",
"value": {
"end": 16282,
"labels": [
"RATIO"
],
"start": 16053,
"text": "Naturally, the appellant would be canvassing the point of limitation, keeping in view the time spent by the appellant in this Court from 30.6.2008/ 26.8.2008, when the appeals were instituted, till the passing of the order today."
}
},
{
"from_name": "label",
"id": "23e5f10e9132411abe7f6c00bcf3a57a",
"to_name": "text",
"type": "labels",
"value": {
"end": 16386,
"labels": [
"RPC"
],
"start": 16283,
"text": "On that count, the period of pendency of these appeals would be a good ground for condonation of delay."
}
},
{
"from_name": "label",
"id": "aa18417cbcfb431b889b3009003de7f7",
"to_name": "text",
"type": "labels",
"value": {
"end": 16467,
"labels": [
"NONE"
],
"start": 16386,
"text": "\n ( SUNIL K. KOTWAL ) ( RAVINDRA V. GHUGE ) JUDGE JUDGE fmp/"
}
}
]
}
] | 1,747 | {
"text": " (( 1 ))\n\nIN THE HIGH COURT OF JUDICATURE AT BOMBAY,\n BENCH AT AURANGABAD\n\n FIRST APPEAL NO.2860 OF 2008\n\nCommissioner of Central Excise & ... APPELLANT\nCustoms, Town Centre, N-5,\nCIDCO, Aurangabad\n\nVERSUS\n\nM/s Midas Care Pharma Pvt. Ltd ... RESPONDENT\nB-16, M.I.D.C. Area, Waluj,\nAurangabad\n\n .....\nShri D.S. Ladda, Advocate for appellant\nShri S.M. Godsay, Advocate for respondent\n\n .....\n\n WITH\n\n FIRST APPEAL NO.3869 OF 2008\n\nCommissioner of Central Excise &\n\nCustoms, Town Centre, N-5,\n\nCIDCO, Aurangabad ... APPELLANT\n RESPONDENT\nVERSUS\n\nM/s Midas Care Pharma Pvt. Ltd\n\nB-16, M.I.D.C. Area, Waluj,\n\nAurangabad ...\n\n .....\nShri D.S. Ladda, Advocate for appellant\nShri S.M. Godsay, Advocate for respondent\n\n .....\n\n CORAM: RAVINDRA .V. GHUGE AND\n SUNIL K. KOTWAL, JJ.\n\n DATED : 23rd NOVEMBER, 2017.\n\n\n (( 2 ))\n\nORAL JUDGMENT (PER RAVINDRA V. GHUGE, J.): 1. In both these appeals, the appellant Central Excise & Customs Department, (hereinafter referred to as the Revenue Department), seeks to challenge the order dated 4.12.2007, and 4.3.2008, passed by the Customs, Excise & Service Tax Appellate Tribunal (CESTAT), West Zone, Bench at Mumbai in two cases.\n The prayers put forth by the appellant are almost identical, except the dates of the order and the amount mentioned in the demand notice and penalty under Rule 173-Q.\n 2. Learned counsel for the respondent assessee is aggrieved by the lodging of these appeals in this Court, for the reason that, these appeals are not maintainable under Section 35-G of the Central Excise Act, 1944. It is contended that, this Court does not have jurisdiction to entertain these appeals, and notwithstanding the fact that the appeals have been admitted, jurisdiction cannot vest in this Court when such jurisdiction is not specifically prescribed by the Statute.\n 3. Prayer clauses (B) and (C) set out in both the appeals read as under : (( 3 )) FIRST APPEAL NO.2860/2008 (B) The order dated 4.12.2007, passed by learned CESTAT, Mumbai bearing No.A/900/WZB/C-II/EB may kindly be set aside.\n (C) That, the order passed by the learned Assistant Commissioner, Central Excise & Customs, Aurangabad Division-II vide Order-in-Original No.434/DMD/97, dated 31.10.1997 may kindly be confirmed by upholding the demand of Rs.17,37,276=82 ps. and also to impose penalty of Rs.2,00,000/- under Rule 173-Q.\n FIRST APPEAL NO.3869/2008 (B) The order dated 4.3.2008, passed by learned CESTAT, Mumbai bearing No.A/317/08/C-I/EB may kindly be set aside.\n (C) That, the order passed by the learned Assistant Commissioner, Central Excise & Customs, Aurangabad Division-II vide Order-in-Original No.164/1999, dated 29.7.1999 may kindly be confirmed by upholding the demand of Rs.6,52,354/- and also to impose penalty of Rs.50,000/- under Rule 173-Q.\n 4. Considering the pleadings of the litigating sides, we called upon the learned Advocates to state as to whether they (( 4 )) would prefer to address the Court on the jurisdiction issue prior to dealing with the merits of the matter. Learned counsel have stated that, they would address the Court on the jurisdiction aspect, and in the event this Court can exercise jurisdiction in these appeals, the said appeals could then be posted to a convenient date for hearing them on their merits.\n 5. Having considered the strenuous submissions of the learned Advocates for the respective sides, we find that, the following factors are germane to this case :- (a) The respondent is a pharmaceutical Company, engaged in the manufacturing of goods, falling under CH-30 of the Central excise Tariff Act, 1985.\n (b) On 1.3.1994, the respondent assessee had claimed exemption from paying the tax on the product under Notification No.6/1994, dated 1.3.1994 and as amended by the Notification No.114/1994, dated 3.6.1994.\n (c) The exemption claimed was with regard to a material manufactured by product name Lidocaine Tropical Aerosol (USP), used as an anesthetic and specially restricted to surgery and used in hospitals and dispensaries.\n (d) The respondent has allegedly fraudulently claimed the (( 5 )) exemption since the said material was being used in the manufacturing of a spray, which carried the brand names like 'Climax', 'Numic' and 'Stud'.\n (e) The labels applied to the above products on the cans while being sold, indicate that, the said material is to be used as a stimulant for the purposes of sexual activities.\n (f) Exemption in the taxes on anesthetic material is specially prescribed by legislation so as to ensure that the said product used for the purposes of administering anesthesia by anesthetists, would lead to reducing the cost of the product, and as such, consequently would reduce the cost of medical treatment and the financial burden on the patients.\n (g) If the said material is to be used as a sex stimulant and not for any surgery, the respondent needs to be deprived of the concessions/ exemption granted.\n (h) By the first order dated 31.10.1997, the Assistant Commissioner of Central Excise & Customs, Aurangabad confirmed the demand pursuant to the show-cause- notices issued.\n (i) The order dated 31.10.1997 reads as under : FIRST APPEAL NO.2860/2008 I) I confirm the demand of Rs.17,37,276=82 as mentioned in the above Show Cause Notices (( 6 )) after denying noticee the exemption notifications as mentioned in Show Cause Notices dated 31.10.1994.\n II) I impose a penalty of Rs.2,00,000/- under Rule 173-Q of Central Excise Rules, 1944 for availing the inadmissible benefit of exemption notifications.\n FIRST APPEAL NO.3869/2008 I hereby confirm duty liability of Rs.6,52,354/- and order recovery of the same under Section 11A of C.Ex. Act, 1944.\n I also impose a penalty of Rs.50,000/- under Rule 173Q of C.Ex. Rules, 1944.\n I also order to recover the interest on the said amount under Section 11AA of CEA, 1944.\n (j) In the appeal preferred by the respondent before the Commissioner of Appeals, Central Excise, Mumbai, by order dated 27.12.2000/ 29.11.2002, the appeal of the respondent was allowed.\n (k) In the appeal before CESTAT, filed by the appellant Department, the Tribunal has rejected the said appeal, by judgment dated 4.12.2007 and 4.3.2008.\n (( 7 )) 6. We are, therefore, required to consider the effect and the impact of the impugned orders passed by the Tribunal. The contention of Shri Godsay, learned Advocate for the respondent is that, a plain reading of Section 35-G of the 1944 Act, would indicate that, this appeal is not tenable. He has placed reliance upon the judgment delivered by the learned Division Bench of the Allahabad High Court in the case of Commissioner of Cus.\n & C. Ex. Vs. ECO Products (I) P. Ltd., reported in 2015 (315) E.L.T. 561 (All.).\n 7. Learned counsel Shri Ladda, appearing on behalf of the appellant Department submits that, there can be no dispute that Section 35, was earlier omitted by the introduction of the National Tax Tribunal Act, 2005. Subsequently, the said Act itself was held to be unconstitutional by the Hon'ble Apex Court in the matter of Madras Bar Association Vs. Union of India (UOI) reported in (2015) AIR (SC) 1571. He, however, submits that, though Section35-G has been reintroduced, it would not affect this appeal, and the jurisdiction of this Court would not be ousted. He relies upon an order passed by the learned Division Bench of this Court at Bombay in the matter of J.V. Gokul & Co.\n (Pvt.) Ltd. Vs. Union of India, reported in 2017(01) LCX0038, in support of his contentions.\n (( 8 )) 8. For better understanding, while dealing with the jurisdictional objection of the respondent, it would be advantageous to refer to Section 35-G, which permits the filing of an appeal in the High Court. Section 35-G reads as under :- \"35-G. Appeal to High Court : [Omitted by the National Tax Tribunal Act, 2005 (49 of 2005), Section 30 and Schedule, Part VII (w.e.f.\n 28.12.2005)] Explanation : 1. . . . . . .\n 2. Prior to its omission, S.35-G read as under : \"35-G. Appeal to High Court : (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law.\n 9. The underlined portion of Section 35-G leads to a plain and simple meaning that an appeal, challenging an order passed by the Tribunal and relating to, amongst other things, the determination of any question having a relation to the rate of the duty of excise or to the value of the goods, for purpose of assessment, would not be maintainable before this Court.\n (( 9 )) 10. Learned counsel for the appellant specifically submits that, the case before this Court is as regards whether exemption granted to the respondent under a misrepresentation, has led to payment of lesser taxes. It is further contended by the appellant that, if this Court holds that the respondent has acquired exemption by misrepresentation, by terming the product as being one which should be used exclusively for the purposes of surgery and medical procedures, the appellant would succeed in recovering higher taxes with penalty from the respondent.\n 11. In the backdrop of these submissions, we find that, a decision on the merits of these appeals, if is to be delivered by us, would lead to the determination of a question in relation to the rate of duty of excise as against the respondent. As such, if the appellant succeeds, the Department would succeed in raising the taxes on the product at issue and would, therefore, recover more taxes at a higher rate of duty of excise on the product, which was granted exemption by the Department.\n 12. We have considered the order passed by the learned Division Bench of this Court in the matter of J.V. Gokul & Co.\n (Pvt.) Ltd. (supra). We do not find that Section 35-G of the (( 10 )) Central Excise Act or any other provision, similar or identical to Section 35-G under the Customs Act, having been considered by the learned Bench.\n 13. Insofar as the view taken by the learned Division Bench of the Allahabad High Court in ECO Products (I) P. Ltd.\n (supra) is concerned, paragraphs 57, 58 and 59 read as under : \"57. Now the submission of Sri Kesarwani that right of appeal under Section 35-G of the Act being statutory remedy and a substantive right, should be interpreted liberally while that portion of this Section which excludes the right of appeal to the High Court has to be construed strictly and in a restrictive sense is to be considered.\n 58. There is no dispute that right of appeal is a statutory right given under Sections 35-G and 35-L of the Act. The scheme of the Act as delineated by Sections 35- G and 35-L indicates that subject matter of appeal before the High Court and the Apex Court have been clearly demarcated. The right of appeal has been granted to the assessee or revenue before the High Court and the Apex Court on different grounds. There is no question of giving any restrictive interpretation to the exclusionary clause under Section 35-G since the category which was excluded from the appeal before the High Court under Section 35-G of the Act is expressly included under Section 35-L of the Act. The demarcation of the subject matter of appeal before this Court and the Apex Court was with some object and purpose and when the words in sections are plain and unambiguous, the plain and literal (( 11 )) interpretation has to be adopted. It is useful to refer to paragraph 44 of the judgment of the Karnataka High Court in the case of Commissioner of Central Excise, Mangalore Vs. Mangalore Refineries & Petrochemicals Ltd.\n(supra) where the Karnataka High Court has noticed the intention behind the bifurcation of jurisdiction between the Apex Court and the High Court. Following was laid down by the Karnataka High Court in paragraph 44, which is as under : \"44. The intention behind this bifurcation of jurisdiction between the Apex Court and the High Court seems to be that more often than not, any decision on these aforesaid aspects nor only affects the interest of the manufacturers who are parties thereto, but also to the manufacturers of those products throughout the country. In a country governed by Parliamentary legislation because of the territorial bifurcation in forming states and because of the divergent opinion which is possible, the excise duty payable would vary from place to place. In order to bring uniformity in the levy of excise duty throughout the country and consequently to see that the country's finance is not affected, the Parliament has vested the jurisdiction to decide the disputes with the Apex Court. Therefore, we see a duty policy underlining this bifurcation of the jurisdiction between the Apex Court and the High Courts. All other matters other than what is set out above, which relates to the individual manufacturers and all disputes based on assessment orders which have attained finality, such as the benefits to which they are entitled to, refunds, duty drawbacks, rebates, etc., which relate to a particular manufacturer falls within the jurisdiction of the High Courts.\"\n (( 12 )) 59. In view of the foregoing discussions, we are of the view that since the question raised in the appeal relates to eligibility of the goods manufactured by the assessee for exemption under Notification No.1/93-C.E., dated 28.2.1993 and goods were manufactured without payment of duty and no assessment had taken place, the proceedings initiated under Section 11-A were for determination of duty liability in which the eligibility of the said goods for exemption was disputed. The question of exemption is directly and proximately related to the rate of duty for the purposes of assessment of excise duty payable by the respondent. The appeal on the said question is clearly excluded under Section 35-G and can be filed by the revenue before the Apex Court under Section 35-L of the Act. Thus, the preliminary objection of the respondent regarding maintainability of appeal is upheld and Central Excise Appeal Defective No.402 of 2005 is held not maintainable under Section 35-G of the Act.\"\n 14. Considering the above, and in the light of the specific pleadings of the appellant, and the submissions of the litigating sides, we find that the issue which we are called upon to adjudicate, would lead to a decision (if the appellant succeeds) determining the question of the rate of duty of excise, on the goods, which the respondent sells to the consumers, and the assertion of the appellant that the exemption granted cannot be made applicable. This would lead to permitting the appellant to impose higher rate of duty of excise on the value of the goods, in (( 13 )) relation to which the impugned order has been passed.\n 15. We, therefore, find that, as the subject matter of both these appeals are squarely covered by the prohibition flowing from Section 35-G. Both these appeals would not be maintainable before this Court. Consequentially, both these appeals are dismissed on the ground of maintainability.\n 16. At this juncture, learned counsel for the appellants prays that, liberty may be granted to the appellants to approach the Hon'ble Apex Court for filing a proper appeal. We find that, the appellant would have a statutory right to approach the Hon'ble Apex Court in the light of Section 35-L. Naturally, the appellant would be canvassing the point of limitation, keeping in view the time spent by the appellant in this Court from 30.6.2008/ 26.8.2008, when the appeals were instituted, till the passing of the order today. On that count, the period of pendency of these appeals would be a good ground for condonation of delay.\n ( SUNIL K. KOTWAL ) ( RAVINDRA V. GHUGE ) JUDGE JUDGE fmp/ "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "e8867f7499f8450caee4437101a9bbb1",
"to_name": null,
"type": null,
"value": {
"end": 140,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nCOMMISSIONER OF INCOME TAX, DELHI CENTRAL\n\nVs.\n\nRESPONDENT:\nMODI SPINNING AND WEAVING MILLS CO. LTD.\n\nDATE OF JUDGMENT26/10/1990"
}
},
{
"from_name": null,
"id": "4390bf0e1ea14ab19530badae84a2ceb",
"to_name": null,
"type": null,
"value": {
"end": 511,
"labels": [
"PREAMBLE"
],
"start": 140,
"text": "\n\nBENCH:\nPUNCHHI, M.M.\nBENCH:\nPUNCHHI, M.M.\nAGRAWAL, S.C. (J)\n\nCITATION: 1990 SCC Supl. (2) 461\n 1991 AIR 2033\n JT 1991 (1) 29\n\nACT:\n Income Tax Act, 1922--Section 10(2)(vib), Proviso (b)\n\nand CBDT Circular dated October 14, 1965 Explanations (a),\n(b) and (c) Allowance of development rebate on plant and\nmachinery--Entitlement to by assessee.\n\nHEADNOTE:"
}
},
{
"from_name": null,
"id": "ed1bbc53da0b4ca6b991b842b2b68309",
"to_name": null,
"type": null,
"value": {
"end": 850,
"labels": [
"PREAMBLE"
],
"start": 519,
"text": "In Commissioner of Income Tax, Madras v. Veeraswami\n\nNainar & 9rs., 55 ITR 35, the Madras High Court took the\nview that the development rebate reserved should be made at\nthe time of making up the Profits and Loss Account, and this\nwas affirmed by this Court in Indian Overseas Bank's Ltd. v.\nCommissioner of Income Tax, 77 ITR 512."
}
},
{
"from_name": null,
"id": "e17a709c31754dc9b04a017f23f5a07e",
"to_name": null,
"type": null,
"value": {
"end": 1032,
"labels": [
"PREAMBLE"
],
"start": 851,
"text": "A distinction was\ndrawn between development rebate reserve and other reserves\ncreateable under the Companies Act and the Income Tax Act\nand it was required to be separately created."
}
},
{
"from_name": null,
"id": "375fd50fcb954d2990741a694aa8dbdc",
"to_name": null,
"type": null,
"value": {
"end": 1197,
"labels": [
"PREAMBLE"
],
"start": 1032,
"text": "\n\n Consequent to this decision it was noticed that an\nimportant circuit of the Central Board of Direct Taxes dated\nOctober, 4, 1965 was unwittingly mowed down."
}
},
{
"from_name": null,
"id": "329377e26fd746b5aca4bc6fc06681cf",
"to_name": null,
"type": null,
"value": {
"end": 1365,
"labels": [
"PREAMBLE"
],
"start": 1198,
"text": "This circular\ngave the Board's Explanation three paragraphs (a), (b) and\n(c) regarding the position for creation statutory reserve\nfor allowance of development rebate."
}
},
{
"from_name": null,
"id": "7e8f660f8e1042568fcd6165cd8e0106",
"to_name": null,
"type": null,
"value": {
"end": 1578,
"labels": [
"PREAMBLE"
],
"start": 1374,
"text": "A spate of litigation ensued and some of the taxing\nauthorities, relying on the Indian Overseas Bank's case in\nsome cases, took revitional and rectificatory actions, and\nthese reached various High Courts."
}
},
{
"from_name": null,
"id": "115f63441ae14017a7c0f2083f7c2b83",
"to_name": null,
"type": null,
"value": {
"end": 1834,
"labels": [
"PREAMBLE"
],
"start": 1578,
"text": "\n\n The Gujarat High Court in Surat Textiles Mills Ltd. v.\nCommissioner of Income-tax Gujarat, 80 I.T.R. 1 opted for\nthe narrow view in assuming that all the 3 Explanations\ncontained in the 1965 Circular stood wiped out by Indian\nOverseas Bank's case."
}
},
{
"from_name": null,
"id": "3c68d966054e47bf9cd192fec1dab43b",
"to_name": null,
"type": null,
"value": {
"end": 2050,
"labels": [
"PREAMBLE"
],
"start": 1834,
"text": "\n\n The Central Board of Direct Taxes, therefore, took the\nstep of withdrawing in the year 1972 the Circular dated\nOctober 14, 1965 to the extent it stood superseded by deci-\nsion in Indian Overseas Bank's case."
}
},
{
"from_name": null,
"id": "0e1bd01a274a4ba592cb95cb8efe2a81",
"to_name": null,
"type": null,
"value": {
"end": 2289,
"labels": [
"PREAMBLE"
],
"start": 2051,
"text": "Other High Courts,\nhowever, took a broader view to the effect that Explanation\ncontained in para (a) only was done away with by this\nCourt's decision in Indian Overseas Bank's case and that\ncontained in paras (b) and (c) were still alive."
}
},
{
"from_name": null,
"id": "f8c8f0779e844a44a3900f6081c23b00",
"to_name": null,
"type": null,
"value": {
"end": 2642,
"labels": [
"PREAMBLE"
],
"start": 2289,
"text": "\n On account of the aforesaid difference of opinion, it\nwas represented to the Board that the earlier instructions\n\ndated October 14, 1965 represented the correct position of\nlaw and that the withdrawal to the extent it was presumed to\nbe overruled by the decision in Indian Overseas Bank's case\nhad created unnecessary hardships to the assessees."
}
},
{
"from_name": null,
"id": "e50b0c92db1d4bf08ca0b1a8bfb225bd",
"to_name": null,
"type": null,
"value": {
"end": 3015,
"labels": [
"PREAMBLE"
],
"start": 2642,
"text": "\n\n In the instant appeal the question, whether the respond-\nentassessee was entitled to allowance rebate on the plant\nand machinery after 1.1.1958, after due compliance with the\nprovisions of proviso (b) to section 10(2)(vib) of the\nIncome Tax Act, 1922 was answered by the Division Bench of\nthe Allahabad High Court in favour of the assessee and\nagainst the Revenue."
}
},
{
"from_name": null,
"id": "ff7ef4cbc66b4da39c3a9f079c26ad4c",
"to_name": null,
"type": null,
"value": {
"end": 3051,
"labels": [
"PREAMBLE"
],
"start": 3015,
"text": "\nThe Revenue appealed to this Court."
}
},
{
"from_name": null,
"id": "c55d4335c9a8493789b14a86dd796291",
"to_name": null,
"type": null,
"value": {
"end": 3103,
"labels": [
"PREAMBLE"
],
"start": 3051,
"text": "\nDismissing the appeal, this Court,\n\n HELD: 1."
}
},
{
"from_name": null,
"id": "beb85e01e6444c64ac9b4a4160b7217e",
"to_name": null,
"type": null,
"value": {
"end": 3191,
"labels": [
"PREAMBLE"
],
"start": 3104,
"text": "The Board itself had clarified the matter by\nCircular No. 189 dated 30th January, 1986."
}
},
{
"from_name": null,
"id": "aadc53fb29dc427c8fc3ad3ce020daf9",
"to_name": null,
"type": null,
"value": {
"end": 3210,
"labels": [
"PREAMBLE"
],
"start": 3192,
"text": "It states to have\n"
}
},
{
"from_name": null,
"id": "335267347d5643d6b0437807613ffa6a",
"to_name": null,
"type": null,
"value": {
"end": 3265,
"labels": [
"PREAMBLE"
],
"start": 3210,
"text": "re-examined the issue involved coming to the view that\n"
}
},
{
"from_name": null,
"id": "b5f23096f2c34d039914e8b62d357da1",
"to_name": null,
"type": null,
"value": {
"end": 3407,
"labels": [
"PREAMBLE"
],
"start": 3265,
"text": "except the clarification contained in Explanation para (a)\nwhich stood superseded by the decision of this Court in\nIndian Overseas Bank's case"
}
},
{
"from_name": null,
"id": "454e1a7db9f24524ab46c7085fa3c2ee",
"to_name": null,
"type": null,
"value": {
"end": 3468,
"labels": [
"PREAMBLE"
],
"start": 3407,
"text": ", the clarification given in\nparagraphs (b) and (c) hold good"
}
},
{
"from_name": null,
"id": "df6aff208d4c4291a402387a76264887",
"to_name": null,
"type": null,
"value": {
"end": 3487,
"labels": [
"PREAMBLE"
],
"start": 3468,
"text": ". [465D]\n\n 2."
}
},
{
"from_name": null,
"id": "c5e46fd4178e4e0c9c1ac4fc5e53a37b",
"to_name": null,
"type": null,
"value": {
"end": 3621,
"labels": [
"PREAMBLE"
],
"start": 3488,
"text": "The Board itself has opted for the broader view\nexpressed in the matter in the,Tata Iron and Steel Compa-\nnies' case and other cases."
}
},
{
"from_name": null,
"id": "8524db37980e4239ae6d531ec261d7bc",
"to_name": null,
"type": null,
"value": {
"end": 3708,
"labels": [
"PREAMBLE"
],
"start": 3622,
"text": "There is, therefore, no reason\nto do the exercise of taking any side of the two views."
}
},
{
"from_name": null,
"id": "a147cc3fc5d240aaaee517ec1655c794",
"to_name": null,
"type": null,
"value": {
"end": 3726,
"labels": [
"PREAMBLE"
],
"start": 3708,
"text": "\n[465E]\n\n 3."
}
},
{
"from_name": null,
"id": "f8e970db8a2e4bd0b8e0331e7dda607c",
"to_name": null,
"type": null,
"value": {
"end": 3869,
"labels": [
"PREAMBLE"
],
"start": 3727,
"text": "It is undisputed that the Board's view is not only\nvalid under the new Income Tax Act of 1961, but to the\nIndian income-Tax Act, 1922 as well."
}
},
{
"from_name": null,
"id": "de5618c1098a49489d396388ed948229",
"to_name": null,
"type": null,
"value": {
"end": 3974,
"labels": [
"PREAMBLE"
],
"start": 3870,
"text": "[465F]\n\n Commissioner of Income Tax, Madras v. Veeraswami Nainar\nand Ors., 55 I.T.R. 35, affirmed."
}
},
{
"from_name": null,
"id": "074aaf773a2e45efa132de136be5251c",
"to_name": null,
"type": null,
"value": {
"end": 4381,
"labels": [
"PREAMBLE"
],
"start": 3974,
"text": "\n\n Indian Overseas Bank Ltd. v. Commissioner of Income Tax,\n77 I.T.R. 512, followed.\n\n Surat Textile Mills Ltd. v. Commissioner of Income-Tax\nGujarat, 80 I.T.R. 1, overruled.\nVeerabhadra Iron Foundary & Anr. v. Commissioner of IncomeTax, 69 I.T.R. 425; Tata Iron and Steel Co. Ltd. v.N. C\nUpadhyaya, 96 I.T.R. 1 and The Commissioner of Income Tax v.\nSardar Singh, 86ITR 387, approved.\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "96fa23c2a9b740ef9071fe97353211d9",
"to_name": null,
"type": null,
"value": {
"end": 4418,
"labels": [
"NONE"
],
"start": 4381,
"text": "\n CIVIL APPELLATE JURISDICTION:"
}
},
{
"from_name": null,
"id": "ac686b8e75e64d59abef6dd48dea8a7a",
"to_name": null,
"type": null,
"value": {
"end": 4448,
"labels": [
"NONE"
],
"start": 4419,
"text": "Civil Appeal No. 330 of 1976."
}
},
{
"from_name": null,
"id": "5ec6a6333eff488c84148b7bd70d814d",
"to_name": null,
"type": null,
"value": {
"end": 4629,
"labels": [
"NONE"
],
"start": 4456,
"text": "From the Judgment and Order dated 13.3.1972 of the Allahabad High Court in ITR No. 457 of 1968.\n V. Gauri Shankar, S. Rajappa and Ms. A. Subhashini for the petitioner."
}
},
{
"from_name": null,
"id": "e779c0e136cd4870a332189a2a22b102",
"to_name": null,
"type": null,
"value": {
"end": 4753,
"labels": [
"NONE"
],
"start": 4629,
"text": "\n Harish N. Salve, A.T. Patra, Ms. Bina Gupta, Ms. Monika Mohil, Rajiv Shakhdhar and Praveen Kumar for the Respondent."
}
},
{
"from_name": null,
"id": "ceea26047e9240498f1c0746e23cb18d",
"to_name": null,
"type": null,
"value": {
"end": 5045,
"labels": [
"RLC"
],
"start": 4753,
"text": "\nThe following Order of the Court was delivered: This appeal is directed against the Judgment dated 13.3.1972 made by a Division Bench of the Allahabad High Court in Income Tax Reference No. 457 of 1968 deciding the following question of law in favour of the assessee and against the Revenue."
}
},
{
"from_name": null,
"id": "a74d7ce1bdf94ce7b9c36af34402d7de",
"to_name": null,
"type": null,
"value": {
"end": 5352,
"labels": [
"ISSUE"
],
"start": 5045,
"text": "\n\"Whether on the facts and in the circumstances of the case the assessee can be said to have complied with the provi- sions of proviso (b) to section 10(2)(vib) of the Income Tax Act, 1922 and was, therefore, entitled to allowance of development rebate on the plant and machinery installed after 1.1. 1958.\""
}
},
{
"from_name": null,
"id": "eb49f9b890ca4078b68ccad4381868ce",
"to_name": null,
"type": null,
"value": {
"end": 5460,
"labels": [
"NONE"
],
"start": 5352,
"text": "\n It would be unnecessary to detail out facts which led to the framing of the question and the answer given."
}
},
{
"from_name": null,
"id": "440c213d800c497e96978d226c6bf762",
"to_name": null,
"type": null,
"value": {
"end": 5573,
"labels": [
"FAC"
],
"start": 5461,
"text": "The dis- pute centered around the timing of the creation of the reserve known as the development rebate reserve."
}
},
{
"from_name": null,
"id": "caf4c06509aa4352b43d7b207faa8454",
"to_name": null,
"type": null,
"value": {
"end": 5796,
"labels": [
"PRE_RELIED"
],
"start": 5574,
"text": "In Commis- sioner of Income Tax, Madras v. Veeraswami Nainar & Ors., 55 ITR p. 35, the Madras High Court took the view that develop- ment rebate reserve should be made at the time of making up the Profits and Loss Account."
}
},
{
"from_name": null,
"id": "346f03a7305e4e2d90995d60cc78e80d",
"to_name": null,
"type": null,
"value": {
"end": 5909,
"labels": [
"PRE_RELIED"
],
"start": 5797,
"text": "This view was affirmed by this Court in Indian Overseas Bank's Ltd. v. Commissioner of Income Tax, 77 ITR 5 12.."
}
},
{
"from_name": null,
"id": "814c7527d3184bcebfa254a085906160",
"to_name": null,
"type": null,
"value": {
"end": 5965,
"labels": [
"PRE_RELIED"
],
"start": 5910,
"text": "Both cases arose under the Indian Income Tax Act, 1922."
}
},
{
"from_name": null,
"id": "44a07dcda28b48b4ac16dfc7d328ac00",
"to_name": null,
"type": null,
"value": {
"end": 6146,
"labels": [
"ANALYSIS"
],
"start": 5966,
"text": "Distinction was drawn between develop- ment rebate reserve and other reserves creatable under the Companies Act and the Income Tax Act and it was required to be separately created."
}
},
{
"from_name": null,
"id": "73886a8b761c4d5ab80c21c76193fbf7",
"to_name": null,
"type": null,
"value": {
"end": 6310,
"labels": [
"ANALYSIS"
],
"start": 6147,
"text": "On appearance of the Indian Overseas Bank's case on the scene it appears that animportant circular of the Central Board of Direct Taxes was unwittingly mowed down."
}
},
{
"from_name": null,
"id": "0a9af6ef4fdc48c1935be667284b6655",
"to_name": null,
"type": null,
"value": {
"end": 6466,
"labels": [
"ANALYSIS"
],
"start": 6311,
"text": "That circular was of October 4, 1965 and stands reproduced in circular No. 189 dated 30th Janu- ary, 1976 at page 90 in 102 Income Tax Reports (Statutes).\n"
}
},
{
"from_name": null,
"id": "3c26580c58f24ac09dd15ce80ae0e102",
"to_name": null,
"type": null,
"value": {
"end": 7555,
"labels": [
"ANALYSIS"
],
"start": 6466,
"text": "The Board's Explanation with regard to the position for creation of statutory reserve for allowance of development rebate was in these terms: (a) In the case of certain industrial undertakings, particularly those in which there is Government participa- tion either by way of capital, loan or guarantee, and where there are certain obligations by law or agreement about the maintenance of reserve for development purposes, the devel- opment rebate reserve may be treated as included in the said reserve though not specifically created as a development rebate reserve.\n (b) In a case where the total income computed before allowing the development rebate is a loss there was no legal obligation to create any statutory reserve in that year as no development rebate would actually be allowed in that year.\n (c) Where there was no deliberate contravention of the provisions, the Income-tax Officer may condone genuine deficiencies subject to the same being made good by the assessee though operation of adequate additional reserve in the current year books in which the assessment is framed.\n "
}
},
{
"from_name": null,
"id": "ba6d7bf146cc4cbd81d372e669ab082a",
"to_name": null,
"type": null,
"value": {
"end": 7711,
"labels": [
"ANALYSIS"
],
"start": 7555,
"text": "This led to a spate of litigation, pressing the Indian Overseas Bank's case some taxing authorities in some cases took revisional and rectificatory actions."
}
},
{
"from_name": null,
"id": "b0e4b844d8c84e4a9fe4a3bf0c2dd3c9",
"to_name": null,
"type": null,
"value": {
"end": 7746,
"labels": [
"ANALYSIS"
],
"start": 7712,
"text": "These reached various High Courts."
}
},
{
"from_name": null,
"id": "509473398dfb44f8a070536079425a91",
"to_name": null,
"type": null,
"value": {
"end": 8037,
"labels": [
"PRE_RELIED"
],
"start": 7747,
"text": "The Gujarat High Court in Surat Textile Mills Ltd. v. Commissioner of Income-tax Gujarat, 80 I.T.R.P. 1 opted for what may be called a narrow view in assuming that besides Explanation (a) reproduced above explanations (b) and (c) as well too stood wiped out by Indian Overseas Bank's case.."
}
},
{
"from_name": null,
"id": "a6b3b311a8af44eaa0e577e785f52082",
"to_name": null,
"type": null,
"value": {
"end": 8355,
"labels": [
"ANALYSIS"
],
"start": 8038,
"text": "In these circumstances the Central Board of Direct Taxes took the step of withdrawing in the year 1972 the Circular dated October 14, 1965 to the extent it stood superseded by decision in Indian Overseas Bank's case and the judgment of the Gujarat High Court in Surat Textile Mills Ltd. v. Commissioner of Income Tax."
}
},
{
"from_name": null,
"id": "e4522e7e40f3437a9fc5ef2aae9fde6f",
"to_name": null,
"type": null,
"value": {
"end": 8414,
"labels": [
"ANALYSIS"
],
"start": 8357,
"text": "Other High Courts took what may be called a broader view."
}
},
{
"from_name": null,
"id": "3526cfccf3fd4a7b837f3d3084f28628",
"to_name": null,
"type": null,
"value": {
"end": 8595,
"labels": [
"ANALYSIS"
],
"start": 8415,
"text": "The trend of reasoning in those cases was that expla- nation (a) only was done away with by this Court in Indian Overseas Bank's case but explanations (b) and (c) were still alive."
}
},
{
"from_name": null,
"id": "116b49a48cc54b5eb20f6001164ea4d8",
"to_name": null,
"type": null,
"value": {
"end": 8840,
"labels": [
"PRE_RELIED"
],
"start": 8596,
"text": "In this connection Veerabha-dra Iron Foundary & Anr. v. Commissioner of Income Tax, 69 I.T.R. 425; Tata Iron and Steel Co. Ltd. v.N.C. Upadhyaya, 96 I.T.R.p. 1 and The Commissioner of Income Tax v. Sardar Singh, 86 ITR 387 (Punjab) may be seen."
}
},
{
"from_name": null,
"id": "4113cf5589ff40909bff63f5fbb6cca5",
"to_name": null,
"type": null,
"value": {
"end": 9175,
"labels": [
"ANALYSIS"
],
"start": 8840,
"text": "\n In the face of such difference of opinion, it was repre- sented to the Board that earlier instructions dated October 14, 1965 represented the correct position of law and that the withdrawal to the extent it was presumed to be overruled by this Court in Indian Overseas Bank's case had created unnecessary hardship to the assessees.\n "
}
},
{
"from_name": null,
"id": "d8a10291dc2b4e5ba37e4c3192f6c01e",
"to_name": null,
"type": null,
"value": {
"end": 9431,
"labels": [
"ANALYSIS"
],
"start": 9175,
"text": "It appears that the instant case, out of which this appeal has arisen, was decided by the Allahabad High Court taking the broader view, Special leave was sought by the Revenue from this Court on the question of resolving the conflict between the two views."
}
},
{
"from_name": null,
"id": "1e4a74682357491d9a81ea8bc5040986",
"to_name": null,
"type": null,
"value": {
"end": 9590,
"labels": [
"ANALYSIS"
],
"start": 9432,
"text": "Leave was granted at a time when the Board itself had clarified the matter vide Circular No. 189 dated 30th January, 1986 of which hint has been left earlier."
}
},
{
"from_name": null,
"id": "598eded528ec4af78214f37016a3043c",
"to_name": null,
"type": null,
"value": {
"end": 9885,
"labels": [
"ANALYSIS"
],
"start": 9591,
"text": "The Board states to have re-examined the issue involved coming to the view that except the clarification given in paragraph (a) above, which stood superseded by the decision of this Court in Indian Overseas Bank's case, the clarifications given in paragraphs (b) and (c) quoted above hold good."
}
},
{
"from_name": null,
"id": "392183c5f57b47dc882773bc35374c36",
"to_name": null,
"type": null,
"value": {
"end": 10081,
"labels": [
"RATIO"
],
"start": 9886,
"text": "It can thus legitimately be stated that the Board has itself opted for the view expressed in Tara Iron and Steel Companies' case and other cases of the kind taking the broader view in the matter."
}
},
{
"from_name": null,
"id": "9495041884f04374b253efdb44fd8764",
"to_name": null,
"type": null,
"value": {
"end": 10298,
"labels": [
"RATIO"
],
"start": 10082,
"text": "When the Board has itself opted for that view and that view is being followed by Income Tax authorities concerned, we see no reason to do the exercise of taking any side of the two views and leave the matter at that."
}
},
{
"from_name": null,
"id": "688661403cbd4c40b729ffbcfac42993",
"to_name": null,
"type": null,
"value": {
"end": 10440,
"labels": [
"RATIO"
],
"start": 10299,
"text": "It is undisputed that the Board's view is not only valid under the new Income Tax Act of 1961 but to the Indian Income Tax Act, 1922 as well."
}
},
{
"from_name": null,
"id": "ac45b67df8004cf69faf33382b5a1472",
"to_name": null,
"type": null,
"value": {
"end": 10543,
"labels": [
"RPC"
],
"start": 10440,
"text": "\n For the foregoing discussions this appeal fails and the judgment of the High Court is left untouched."
}
},
{
"from_name": null,
"id": "4a1d045eb4f448f2b5d2871231cd2691",
"to_name": null,
"type": null,
"value": {
"end": 10614,
"labels": [
"RPC"
],
"start": 10544,
"text": "In the circum- stances of the case there will be no order as to costs."
}
},
{
"from_name": null,
"id": "05555d22661c4e9eb3f50ba4b352829b",
"to_name": null,
"type": null,
"value": {
"end": 10656,
"labels": [
"RPC"
],
"start": 10616,
"text": "V.P.R. "
}
},
{
"from_name": null,
"id": "55990be08c2a4f9a95ac102406e416ad",
"to_name": null,
"type": null,
"value": {
"end": 10675,
"labels": [
"RPC"
],
"start": 10656,
"text": "Appeal dis- missed."
}
}
]
}
] | 4,158 | {
"text": "PETITIONER:\nCOMMISSIONER OF INCOME TAX, DELHI CENTRAL\n\nVs.\n\nRESPONDENT:\nMODI SPINNING AND WEAVING MILLS CO. LTD.\n\nDATE OF JUDGMENT26/10/1990\n\nBENCH:\nPUNCHHI, M.M.\nBENCH:\nPUNCHHI, M.M.\nAGRAWAL, S.C. (J)\n\nCITATION: 1990 SCC Supl. (2) 461\n 1991 AIR 2033\n JT 1991 (1) 29\n\nACT:\n Income Tax Act, 1922--Section 10(2)(vib), Proviso (b)\n\nand CBDT Circular dated October 14, 1965 Explanations (a),\n(b) and (c) Allowance of development rebate on plant and\nmachinery--Entitlement to by assessee.\n\nHEADNOTE:\n In Commissioner of Income Tax, Madras v. Veeraswami\n\nNainar & 9rs., 55 ITR 35, the Madras High Court took the\nview that the development rebate reserved should be made at\nthe time of making up the Profits and Loss Account, and this\nwas affirmed by this Court in Indian Overseas Bank's Ltd. v.\nCommissioner of Income Tax, 77 ITR 512. A distinction was\ndrawn between development rebate reserve and other reserves\ncreateable under the Companies Act and the Income Tax Act\nand it was required to be separately created.\n\n Consequent to this decision it was noticed that an\nimportant circuit of the Central Board of Direct Taxes dated\nOctober, 4, 1965 was unwittingly mowed down. This circular\ngave the Board's Explanation three paragraphs (a), (b) and\n(c) regarding the position for creation statutory reserve\nfor allowance of development rebate.\n\n A spate of litigation ensued and some of the taxing\nauthorities, relying on the Indian Overseas Bank's case in\nsome cases, took revitional and rectificatory actions, and\nthese reached various High Courts.\n\n The Gujarat High Court in Surat Textiles Mills Ltd. v.\nCommissioner of Income-tax Gujarat, 80 I.T.R. 1 opted for\nthe narrow view in assuming that all the 3 Explanations\ncontained in the 1965 Circular stood wiped out by Indian\nOverseas Bank's case.\n\n The Central Board of Direct Taxes, therefore, took the\nstep of withdrawing in the year 1972 the Circular dated\nOctober 14, 1965 to the extent it stood superseded by deci-\nsion in Indian Overseas Bank's case. Other High Courts,\nhowever, took a broader view to the effect that Explanation\ncontained in para (a) only was done away with by this\nCourt's decision in Indian Overseas Bank's case and that\ncontained in paras (b) and (c) were still alive.\n On account of the aforesaid difference of opinion, it\nwas represented to the Board that the earlier instructions\n\ndated October 14, 1965 represented the correct position of\nlaw and that the withdrawal to the extent it was presumed to\nbe overruled by the decision in Indian Overseas Bank's case\nhad created unnecessary hardships to the assessees.\n\n In the instant appeal the question, whether the respond-\nentassessee was entitled to allowance rebate on the plant\nand machinery after 1.1.1958, after due compliance with the\nprovisions of proviso (b) to section 10(2)(vib) of the\nIncome Tax Act, 1922 was answered by the Division Bench of\nthe Allahabad High Court in favour of the assessee and\nagainst the Revenue.\nThe Revenue appealed to this Court.\nDismissing the appeal, this Court,\n\n HELD: 1. The Board itself had clarified the matter by\nCircular No. 189 dated 30th January, 1986. It states to have\nre-examined the issue involved coming to the view that\nexcept the clarification contained in Explanation para (a)\nwhich stood superseded by the decision of this Court in\nIndian Overseas Bank's case, the clarification given in\nparagraphs (b) and (c) hold good. [465D]\n\n 2. The Board itself has opted for the broader view\nexpressed in the matter in the,Tata Iron and Steel Compa-\nnies' case and other cases. There is, therefore, no reason\nto do the exercise of taking any side of the two views.\n[465E]\n\n 3. It is undisputed that the Board's view is not only\nvalid under the new Income Tax Act of 1961, but to the\nIndian income-Tax Act, 1922 as well. [465F]\n\n Commissioner of Income Tax, Madras v. Veeraswami Nainar\nand Ors., 55 I.T.R. 35, affirmed.\n\n Indian Overseas Bank Ltd. v. Commissioner of Income Tax,\n77 I.T.R. 512, followed.\n\n Surat Textile Mills Ltd. v. Commissioner of Income-Tax\nGujarat, 80 I.T.R. 1, overruled.\nVeerabhadra Iron Foundary & Anr. v. Commissioner of IncomeTax, 69 I.T.R. 425; Tata Iron and Steel Co. Ltd. v.N. C\nUpadhyaya, 96 I.T.R. 1 and The Commissioner of Income Tax v.\nSardar Singh, 86ITR 387, approved.\n\nJUDGMENT:\n CIVIL APPELLATE JURISDICTION: Civil Appeal No. 330 of 1976.\n From the Judgment and Order dated 13.3.1972 of the Allahabad High Court in ITR No. 457 of 1968.\n V. Gauri Shankar, S. Rajappa and Ms. A. Subhashini for the petitioner.\n Harish N. Salve, A.T. Patra, Ms. Bina Gupta, Ms. Monika Mohil, Rajiv Shakhdhar and Praveen Kumar for the Respondent.\nThe following Order of the Court was delivered: This appeal is directed against the Judgment dated 13.3.1972 made by a Division Bench of the Allahabad High Court in Income Tax Reference No. 457 of 1968 deciding the following question of law in favour of the assessee and against the Revenue.\n\"Whether on the facts and in the circumstances of the case the assessee can be said to have complied with the provi- sions of proviso (b) to section 10(2)(vib) of the Income Tax Act, 1922 and was, therefore, entitled to allowance of development rebate on the plant and machinery installed after 1.1. 1958.\"\n It would be unnecessary to detail out facts which led to the framing of the question and the answer given. The dis- pute centered around the timing of the creation of the reserve known as the development rebate reserve. In Commis- sioner of Income Tax, Madras v. Veeraswami Nainar & Ors., 55 ITR p. 35, the Madras High Court took the view that develop- ment rebate reserve should be made at the time of making up the Profits and Loss Account. This view was affirmed by this Court in Indian Overseas Bank's Ltd. v. Commissioner of Income Tax, 77 ITR 5 12.. Both cases arose under the Indian Income Tax Act, 1922. Distinction was drawn between develop- ment rebate reserve and other reserves creatable under the Companies Act and the Income Tax Act and it was required to be separately created. On appearance of the Indian Overseas Bank's case on the scene it appears that animportant circular of the Central Board of Direct Taxes was unwittingly mowed down. That circular was of October 4, 1965 and stands reproduced in circular No. 189 dated 30th Janu- ary, 1976 at page 90 in 102 Income Tax Reports (Statutes).\nThe Board's Explanation with regard to the position for creation of statutory reserve for allowance of development rebate was in these terms: (a) In the case of certain industrial undertakings, particularly those in which there is Government participa- tion either by way of capital, loan or guarantee, and where there are certain obligations by law or agreement about the maintenance of reserve for development purposes, the devel- opment rebate reserve may be treated as included in the said reserve though not specifically created as a development rebate reserve.\n (b) In a case where the total income computed before allowing the development rebate is a loss there was no legal obligation to create any statutory reserve in that year as no development rebate would actually be allowed in that year.\n (c) Where there was no deliberate contravention of the provisions, the Income-tax Officer may condone genuine deficiencies subject to the same being made good by the assessee though operation of adequate additional reserve in the current year books in which the assessment is framed.\n This led to a spate of litigation, pressing the Indian Overseas Bank's case some taxing authorities in some cases took revisional and rectificatory actions. These reached various High Courts. The Gujarat High Court in Surat Textile Mills Ltd. v. Commissioner of Income-tax Gujarat, 80 I.T.R.P. 1 opted for what may be called a narrow view in assuming that besides Explanation (a) reproduced above explanations (b) and (c) as well too stood wiped out by Indian Overseas Bank's case.. In these circumstances the Central Board of Direct Taxes took the step of withdrawing in the year 1972 the Circular dated October 14, 1965 to the extent it stood superseded by decision in Indian Overseas Bank's case and the judgment of the Gujarat High Court in Surat Textile Mills Ltd. v. Commissioner of Income Tax.\n Other High Courts took what may be called a broader view. The trend of reasoning in those cases was that expla- nation (a) only was done away with by this Court in Indian Overseas Bank's case but explanations (b) and (c) were still alive. In this connection Veerabha-dra Iron Foundary & Anr. v. Commissioner of Income Tax, 69 I.T.R. 425; Tata Iron and Steel Co. Ltd. v.N.C. Upadhyaya, 96 I.T.R.p. 1 and The Commissioner of Income Tax v. Sardar Singh, 86 ITR 387 (Punjab) may be seen.\n In the face of such difference of opinion, it was repre- sented to the Board that earlier instructions dated October 14, 1965 represented the correct position of law and that the withdrawal to the extent it was presumed to be overruled by this Court in Indian Overseas Bank's case had created unnecessary hardship to the assessees.\n It appears that the instant case, out of which this appeal has arisen, was decided by the Allahabad High Court taking the broader view, Special leave was sought by the Revenue from this Court on the question of resolving the conflict between the two views. Leave was granted at a time when the Board itself had clarified the matter vide Circular No. 189 dated 30th January, 1986 of which hint has been left earlier. The Board states to have re-examined the issue involved coming to the view that except the clarification given in paragraph (a) above, which stood superseded by the decision of this Court in Indian Overseas Bank's case, the clarifications given in paragraphs (b) and (c) quoted above hold good. It can thus legitimately be stated that the Board has itself opted for the view expressed in Tara Iron and Steel Companies' case and other cases of the kind taking the broader view in the matter. When the Board has itself opted for that view and that view is being followed by Income Tax authorities concerned, we see no reason to do the exercise of taking any side of the two views and leave the matter at that. It is undisputed that the Board's view is not only valid under the new Income Tax Act of 1961 but to the Indian Income Tax Act, 1922 as well.\n For the foregoing discussions this appeal fails and the judgment of the High Court is left untouched. In the circum- stances of the case there will be no order as to costs.\n V.P.R. Appeal dis- missed.\n "
} |
{
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} | [
{
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{
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],
"start": 0,
"text": " IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n ORDINARY ORIGINAL CIVIL JURISDICTION\n\n INCOME TAX APPEAL NO.5615 OF 2010\n\nThe Commissioner of Income Tax-12, ...Appellant."
}
},
{
"from_name": null,
"id": "6304f05d5f214d3e9af667f2d586cdfe",
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"value": {
"end": 231,
"labels": [
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],
"start": 191,
"text": "\nAayakar Bhavan, M.K.Road, ..."
}
},
{
"from_name": null,
"id": "f2e2e5ed8912477ab1dcb48920e7394c",
"to_name": null,
"type": null,
"value": {
"end": 242,
"labels": [
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],
"start": 231,
"text": "Respondent."
}
},
{
"from_name": null,
"id": "91a2201bb3424bd89c5bb6554945dad4",
"to_name": null,
"type": null,
"value": {
"end": 259,
"labels": [
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],
"start": 242,
"text": "\nMumbai- 400 020."
}
},
{
"from_name": null,
"id": "16980b6b8bb64586b539602caee1f396",
"to_name": null,
"type": null,
"value": {
"end": 455,
"labels": [
"PREAMBLE"
],
"start": 276,
"text": "Vs.\n\nM/s.Fernhill Laboratories and\nIndustrial Establishment,\nFernill House, 254,\nPerin Nariman Street,Fort,\nMumbai-400 001.\nPan No.AAAFF0209Q.\n\nMr. Suresh Kumar for the Appellant."
}
},
{
"from_name": null,
"id": "c34f1ccb191a4941bc98dc39752547de",
"to_name": null,
"type": null,
"value": {
"end": 524,
"labels": [
"PREAMBLE"
],
"start": 455,
"text": "\n\nMr. K.B. Bhujle along with Mr. Padmanabh Bhujle for the\nRespondent."
}
},
{
"from_name": null,
"id": "f2b52bf51fd943a693b9d4f438b2c754",
"to_name": null,
"type": null,
"value": {
"end": 622,
"labels": [
"PREAMBLE"
],
"start": 531,
"text": "CORAM : S.J.VAZIFDAR &\n M.S. SANKLECHA, JJ.\n\n DATE : 12th June, 2012"
}
},
{
"from_name": null,
"id": "2a68fe42dc984b0bac2eff1a0e1613b0",
"to_name": null,
"type": null,
"value": {
"end": 638,
"labels": [
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],
"start": 624,
"text": "ORAL JUDGMENT "
}
},
{
"from_name": null,
"id": "afa89234797341f383d391e296b851d1",
"to_name": null,
"type": null,
"value": {
"end": 665,
"labels": [
"NONE"
],
"start": 638,
"text": ": ( Per M.S. SANKLECHA, J.)"
}
},
{
"from_name": null,
"id": "42c538475d5f44008fa2b9478b06f859",
"to_name": null,
"type": null,
"value": {
"end": 917,
"labels": [
"FAC"
],
"start": 666,
"text": "This is an appeal by the Revenue under Section 260A of the Income Tax Act, 1961 (hereinafter referred to as the \"said Act\") challenging the order dated 6/7/2009 passed by Income Tax Appellate Tribunal (hereinafter referred to as \"the Tribunal).\n 2) "
}
},
{
"from_name": null,
"id": "cacacd048d724f47983be5c30e6f4bea",
"to_name": null,
"type": null,
"value": {
"end": 1262,
"labels": [
"ISSUE"
],
"start": 917,
"text": "In this appeal, the Revenue has formulated the following questions as substantial questions of law: a) Whether on the facts and circumstances of the case and in law, the Tribunal was correct in confirming the order of CIT(A) in holding that the receipt of Rs.15,20,00,000/- on account of consideration for trade mark and design were not taxable?"
}
},
{
"from_name": null,
"id": "899fb2c193b246c8a77a3b5a53c4967c",
"to_name": null,
"type": null,
"value": {
"end": 1605,
"labels": [
"ISSUE"
],
"start": 1262,
"text": "\n b) Whether on the facts and circumstance of the case and in law, the Tribunal was correct in confirming the order of CIT (A) in holding that the provisions for the computation of capital gains in the case of the assessee will fail, since there was no specific provision in the Act about the cost of acquisition of such self generated assets?"
}
},
{
"from_name": null,
"id": "28dee18e692d4500a06d43243d0772b8",
"to_name": null,
"type": null,
"value": {
"end": 2165,
"labels": [
"ISSUE"
],
"start": 1605,
"text": "\n c) Whether on the facts and circumstance of the case and in law, the Tribunal was correct in holding that the sale proceeds in respect of self generated assets like trade mark or brand name associated with a business cannot be taxed in the A.Y. 1999-2000 as the amendment to Section-55(2) of the Act became effective only from 1/4/2002 without appreciating the fact that in the absence of specific provision in the Act, specifying how the cost of self generated assets should be calculated, the cost of such self generated assets are always deemed to be NIL?"
}
},
{
"from_name": null,
"id": "f34174e15d954e40a0a4683432ce244e",
"to_name": null,
"type": null,
"value": {
"end": 2282,
"labels": [
"ISSUE"
],
"start": 2165,
"text": "\n 3. To bring out the real controversy between the parties the question of law arising in the present appeal is re-"
}
},
{
"from_name": null,
"id": "3c7bcd4382224175b56e25a9f94dd3dc",
"to_name": null,
"type": null,
"value": {
"end": 2593,
"labels": [
"ISSUE"
],
"start": 2282,
"text": "framed as under: Whether on the facts and circumstances of the case and in law was the Tribunal justified in holding that the consideration received by the respondent on transfer of trade mark and design are not chargeable to capital gains tax in view of the fact that the transfer took place prior to 1/4/2002?"
}
},
{
"from_name": null,
"id": "2d10c53c712a48d78879ef23b60960d4",
"to_name": null,
"type": null,
"value": {
"end": 2667,
"labels": [
"FAC"
],
"start": 2593,
"text": "\n 4. The appeal is admitted on the aforesaid re- framed question of law."
}
},
{
"from_name": null,
"id": "69996e9bf5484c4a98f46db4f99282ef",
"to_name": null,
"type": null,
"value": {
"end": 2813,
"labels": [
"NONE"
],
"start": 2668,
"text": "However, at the request of the Advocates for the appellant and the Advocate for the respondent, the appeal itself is taken up for final disposal."
}
},
{
"from_name": null,
"id": "92965a2860414a788e2bca3088e5a4a5",
"to_name": null,
"type": null,
"value": {
"end": 2888,
"labels": [
"FAC"
],
"start": 2813,
"text": "\n 5) Briefly, the facts leading to the present appeal are as under: a) "
}
},
{
"from_name": null,
"id": "6c26e7e2f6e646d6b001477b590ee8eb",
"to_name": null,
"type": null,
"value": {
"end": 2948,
"labels": [
"FAC"
],
"start": 2888,
"text": "The respondent-assessee was the owner of trade mark \"Colin\"."
}
},
{
"from_name": null,
"id": "96f605ddcfac4ae8a6b9ff5b74e17cf7",
"to_name": null,
"type": null,
"value": {
"end": 3404,
"labels": [
"FAC"
],
"start": 2949,
"text": "On 21/10/1998 the respondent- assessee under an agreement sold to M/s. Reckitt & Colman ltd. the following rights: i) Transfer of ownership and assignment Rs.1500 lakhs of the trade mark. Rs. 50 lakhs Rs.20 lakhs ii) Transfer of ownership in the goodwill Rs.200 lakhs of the relating to the trade mark iii) Transfer of ownership and and assignment of the designs iv) Transfer of ownership and assignment of technical know how b) "
}
},
{
"from_name": null,
"id": "96351463a4fe459aa801f5382d74b37d",
"to_name": null,
"type": null,
"value": {
"end": 3513,
"labels": [
"FAC"
],
"start": 3404,
"text": "The respondent filed its return of income for the Assessment Year 1999-2000 (previous year ending 31/3/1999)."
}
},
{
"from_name": null,
"id": "f6bdef09213a4e879bb44dda5e6698ea",
"to_name": null,
"type": null,
"value": {
"end": 3739,
"labels": [
"FAC"
],
"start": 3514,
"text": "However, the respondent did not offer to tax on the amount of Rs.15.00crores received on account of trade mark and Rs.20.00lakhs on account of sale of design on the ground that they are capital receipts not chargeable to tax."
}
},
{
"from_name": null,
"id": "7d6245e3d79440bd9c0f97815343201a",
"to_name": null,
"type": null,
"value": {
"end": 3949,
"labels": [
"FAC"
],
"start": 3739,
"text": "\n c) On 30/3/2005, the Assessing Officer by Order for the Assessment Year 1999-2000 held that the sale of trade mark as well as the sale of design aggregating to Rs.15.20crores is liable to capital gains tax."
}
},
{
"from_name": null,
"id": "3ed0637fe7a8470a8672299ff7874d25",
"to_name": null,
"type": null,
"value": {
"end": 4052,
"labels": [
"FAC"
],
"start": 3949,
"text": "\n d) Being aggrieved by the order dated 30/3/2005, the respondent preferred an appeal to the CIT (A)."
}
},
{
"from_name": null,
"id": "3a0117730c924954b8794e4422d0cad9",
"to_name": null,
"type": null,
"value": {
"end": 4320,
"labels": [
"FAC"
],
"start": 4053,
"text": "By an order dated 6/3/2006, the CIT (A) allowed the respondent's appeal by inter alia holding that the consideration received on transfer of trademark and design aggregating to Rs.15.20 crores are not chargeable to capital gains tax as they are self generated assest."
}
},
{
"from_name": null,
"id": "89fb0238ca6149b6bab14f854d84f83d",
"to_name": null,
"type": null,
"value": {
"end": 4570,
"labels": [
"FAC"
],
"start": 4320,
"text": "\n This conclusion was reached on the principles laid down by the Apex Court in the matter of CIT V/s. B.C. Srinivasa Shetty reported in 128 ITR Page 294.\n e) Being aggrieved by the order of CIT (A) the appellant preferred an appeal to the Tribunal."
}
},
{
"from_name": null,
"id": "402ea87d89c24cd1bbc5af5e5ecb7950",
"to_name": null,
"type": null,
"value": {
"end": 4770,
"labels": [
"FAC"
],
"start": 4571,
"text": "On 6/7/2009 the Tribunal by its order held that it was an admitted fact that the trade mark \"Colin\" belonging to the Respondent/Assessee was a self generated asset and consequently its costs was Nil."
}
},
{
"from_name": null,
"id": "5848b7579d994541b57b4dd1ba45f415",
"to_name": null,
"type": null,
"value": {
"end": 4987,
"labels": [
"FAC"
],
"start": 4771,
"text": "In view thereof it was not possible to compute the capital gains under Section 48 of the said Act resulting in the charge of tax also failing as held by the Apex Court in the matter of B. C. Srinivasa Shetty (supra)."
}
},
{
"from_name": null,
"id": "68db13f4e44049d7aa8b8360a9fd7684",
"to_name": null,
"type": null,
"value": {
"end": 5176,
"labels": [
"FAC"
],
"start": 4988,
"text": "Further, the Tribunal also held that the trade mark became chargeable to tax with effect from 1/4/2002 by virtue of amendment to Section-55(2)(a) of the said Act with effect from 1/4/2002."
}
},
{
"from_name": null,
"id": "9ac2591360cf4fb29f51298c2ee515d0",
"to_name": null,
"type": null,
"value": {
"end": 5257,
"labels": [
"FAC"
],
"start": 5177,
"text": "However, the aforesaid amendment according to the Tribunal was only prospective."
}
},
{
"from_name": null,
"id": "f59e47e8e7924b54a9b33c1e4eab60b7",
"to_name": null,
"type": null,
"value": {
"end": 5377,
"labels": [
"FAC"
],
"start": 5259,
"text": "f) Being aggrieved by the order of the Tribunal dated 6/7/2009 the revenue-appellant is in appeal before this Court."
}
},
{
"from_name": null,
"id": "6ab45311dd0343a4bec3b31ab8a23b84",
"to_name": null,
"type": null,
"value": {
"end": 5539,
"labels": [
"ARG_PETITIONER"
],
"start": 5377,
"text": "\n 6. In support of the appeal Mr. Suresh Kumar, Advocate for the Appellant submits that the sale of trademark and designs would be subject to capital gains tax."
}
},
{
"from_name": null,
"id": "63147b5f13874e8b8993fcd71ccebd1f",
"to_name": null,
"type": null,
"value": {
"end": 5648,
"labels": [
"ARG_PETITIONER"
],
"start": 5540,
"text": "This is so, as according to him the cost of acquisition of such self generated assets is to be taken as Nil."
}
},
{
"from_name": null,
"id": "ec5e6a63be5d4227be17089aef3b1691",
"to_name": null,
"type": null,
"value": {
"end": 5763,
"labels": [
"ARG_PETITIONER"
],
"start": 5648,
"text": "\n Consequently, the entire consideration received by the Respondent-Assessee would be subject to capital gains tax."
}
},
{
"from_name": null,
"id": "df60b3a9be18444eba8702da139507a0",
"to_name": null,
"type": null,
"value": {
"end": 6158,
"labels": [
"ARG_PETITIONER"
],
"start": 5764,
"text": "The amendment to Section 55(2) of the said Act with effect from 1/4/2002 introducing trade marks amongst the capital asset whose cost of acquisition in case of self generated being taken at nil would not make any difference as even for the period prior to 1/4/2002 the costs of acquisition of self generated assets like trademark has to be taken as Nil for the purpose of computing capital tax."
}
},
{
"from_name": null,
"id": "f6e53b0e3dbb43a6900676509c6ab7e4",
"to_name": null,
"type": null,
"value": {
"end": 6706,
"labels": [
"ARG_RESPONDENT"
],
"start": 6158,
"text": "\n 7. On the other hand, Mr. K.B. Bhujale appearing for the Respondent submits that i) that the costs of self generated assets such as trademark are not liable to capital gains tax prior to 1/4/2002 as computation provision itself falls resulting in failure of the charging provision as held by the Supreme Court in the matter of B.\n C. Srinivasa Sheety (supra), ii) the sale of trademark was made chargeable to capital gains tax only with effect from 1/4/2002 consequent to the amendment made to Section 55(2) of the said Act by Finance Act,2001."
}
},
{
"from_name": null,
"id": "56a1a4e28ccc424d9c614bcc5108eecc",
"to_name": null,
"type": null,
"value": {
"end": 7195,
"labels": [
"ARG_RESPONDENT"
],
"start": 6707,
"text": "The amendment to Section 55(2) of the said Act with effect from 1/4/2002 declaring that the costs of acquisition of self generated trademark will be Nil is not retrospective and would be effective only in respect of sales of Trade Marks post 1/4/2002 and iii) in any view of the matter the sale of design by the respondent-assessee is not subject to capital gains tax as the cost of acquisition of self generated designs have not been defraud under Section- 55 of the said Act even today."
}
},
{
"from_name": null,
"id": "6df7062009e44b6aa76527c41530431e",
"to_name": null,
"type": null,
"value": {
"end": 7243,
"labels": [
"NONE"
],
"start": 7202,
"text": "We have considered the rival submissions."
}
},
{
"from_name": null,
"id": "940148d9e29a4886bc203da3351d0447",
"to_name": null,
"type": null,
"value": {
"end": 7330,
"labels": [
"ANALYSIS"
],
"start": 7243,
"text": "\n Section 45 of the Act is a charging section for the purpose of levying capital gains."
}
},
{
"from_name": null,
"id": "ed2187d0dd754661ac5c5c56a394b657",
"to_name": null,
"type": null,
"value": {
"end": 7438,
"labels": [
"ANALYSIS"
],
"start": 7331,
"text": "However to impose the charge, parliament has enacted provision to compute profits or gains under that head."
}
},
{
"from_name": null,
"id": "4967cc41187f43888e98e945557d490d",
"to_name": null,
"type": null,
"value": {
"end": 7698,
"labels": [
"STA"
],
"start": 7439,
"text": "Section 48 of the said Act provides the manner in which the income chargeable under the head capital gains is to be computed i.e. by deducting costs of acquisition of the capital asset from the full consideration received on the transfer of the capital asset."
}
},
{
"from_name": null,
"id": "318bdaa434e54cd1ad5f0de49ca1d961",
"to_name": null,
"type": null,
"value": {
"end": 7918,
"labels": [
"PRE_RELIED"
],
"start": 7699,
"text": "The Supreme Court in the matter of B. C. Srinivasa Shetty (supra) was dealing with the issue whether the transfer of the goodwill by partnership firm can give rise to a capital gain tax under Section 45 of the said Act."
}
},
{
"from_name": null,
"id": "22d689e0f3b645749896e6b8c33cf521",
"to_name": null,
"type": null,
"value": {
"end": 8103,
"labels": [
"PRE_RELIED"
],
"start": 7919,
"text": "The Apex Court held that where the cost of acquisition of the capital asset is nil then the computation provision fails and the transfer of goodwill not give rise to capital gains tax."
}
},
{
"from_name": null,
"id": "97e7c0240d6c4387bf4b7a1b2942e895",
"to_name": null,
"type": null,
"value": {
"end": 8351,
"labels": [
"PRE_RELIED"
],
"start": 8104,
"text": "Prior to the amendment made to Section 55(2) by the Finance Act, 2001 effective from 1/4/2002 by adding the words \"trade mark or brand name associated with the business\" self generated assets such as trademark did not have any cost of acquisition."
}
},
{
"from_name": null,
"id": "d484a835ff734bfc81ecb11d76f1ba40",
"to_name": null,
"type": null,
"value": {
"end": 8546,
"labels": [
"PRE_RELIED"
],
"start": 8352,
"text": "Therefore for the period under consideration the computation provision under Section 48 of the said Act fails resulting in such transfer of trade marks not being chargeable to capital gains tax."
}
},
{
"from_name": null,
"id": "e279c9ab5aaa412881aec1a7dd80e9f3",
"to_name": null,
"type": null,
"value": {
"end": 8856,
"labels": [
"ANALYSIS"
],
"start": 8548,
"text": "Consequent to amendment made to Section 55(2) with effect from 1/4/2002 by which the words trade mark or brand name associated with the business was introduced into it, the computation provision becomes workable and the consideration received for the sale of trade mark would be subject to capital gains tax."
}
},
{
"from_name": null,
"id": "9b18f926865f45eaa47f198e915e87b2",
"to_name": null,
"type": null,
"value": {
"end": 8971,
"labels": [
"ANALYSIS"
],
"start": 8857,
"text": "However, for the period prior to 1/4/2002 the sale of self generated trademark is not liable to capital gains tax."
}
},
{
"from_name": null,
"id": "da27abe872b44740b5410cba20623812",
"to_name": null,
"type": null,
"value": {
"end": 9730,
"labels": [
"ANALYSIS"
],
"start": 8972,
"text": "In fact, when the amendment was made to Section 55 by Finance Act, 2001 the Central Board of Excise and Customs had issued a circular bearing No.14/2001 explaining the provision of the Finance Act, 2011 relating to direct taxes provided as under: \"42- Providing for cost of acquisition of certain intangible capital asserts under section 55 42.1 Under the existing provisions of sub- section (2) of section 55 of the Income tax Act, the cost of acquisition of an intangible capital asset, being goodwill of a business or a right to manufacture, produce or process any article or thing, tenancy rights, stage carriage permits or loom hours, is the purchase price in case the asset is purchased by the assessee from a previous owner, and nil in any other case."
}
},
{
"from_name": null,
"id": "ee92486cc3084f6a82ad505e3b06af00",
"to_name": null,
"type": null,
"value": {
"end": 10007,
"labels": [
"ANALYSIS"
],
"start": 9732,
"text": "It was pointed out that certain similar self generated intangible assets like brand name or a trademark may not be considered to form part of the goodwill of a business and consequently it may not be possible to compute capital gains arising from the transfer of such assets."
}
},
{
"from_name": null,
"id": "7826f5262ce144c68060fb5e975b56f6",
"to_name": null,
"type": null,
"value": {
"end": 10306,
"labels": [
"ANALYSIS"
],
"start": 10007,
"text": "\n 42.2- The Act has therefore amended clause (a) of sub-section (2) to provide that the cost of acquisition in relation to trademark or brand name associated with a business shall also be taken to be the purchase price in case the asset is purchased from a previous owner and nil in any other case."
}
},
{
"from_name": null,
"id": "d89022f0a2f248eb8423110d138b425b",
"to_name": null,
"type": null,
"value": {
"end": 10669,
"labels": [
"ANALYSIS"
],
"start": 10306,
"text": "\n 42.3- This amendment will take effect from 1st April, 2002, and will, accordingly, apply in relation to the assessment year 2002-2003 and subsequent years.\"\n 9. From the above circular, it would be clear that the amendment bringing self generated intangible assets such as trademark to capital gains tax only with effect from Assessments Year 2002-03 onwards."
}
},
{
"from_name": null,
"id": "d1c9142e37b04556b9dbe32b66b9e09f",
"to_name": null,
"type": null,
"value": {
"end": 10787,
"labels": [
"ANALYSIS"
],
"start": 10670,
"text": "In this case, we are concerned with Assessment Year 1999-2000 and therefore, the amendment would not have any effect."
}
},
{
"from_name": null,
"id": "fc4261bdb8e642f3b71d063b17035c77",
"to_name": null,
"type": null,
"value": {
"end": 11039,
"labels": [
"PRE_RELIED"
],
"start": 10788,
"text": "Further as held by the Supreme Court in the matter of Dy. CIT v/s. Core Health Care ltd. reported in 298 ITR 194 that a provision introduced with effect from a particular date would not have retrospective effect unless it is expressly stated to be so."
}
},
{
"from_name": null,
"id": "0ade089c59634ee595969bacfedd22d6",
"to_name": null,
"type": null,
"value": {
"end": 11170,
"labels": [
"ANALYSIS"
],
"start": 11040,
"text": "Consequently, the sale of self generated trade marks during the Assessment year 1999-2000 are not chargeable to capital gains tax."
}
},
{
"from_name": null,
"id": "a26fe987a2474fbb8ea01c273166f97c",
"to_name": null,
"type": null,
"value": {
"end": 11523,
"labels": [
"RATIO"
],
"start": 11171,
"text": "So far as the sale of self generated designs (i.e. not acquired) the same is also not chargeable to capital gains tax not only for the reasons applicable to trade marks but for the fact that even till this date, no amendment has been made to Section 55(2) of the said Act defining cost of acquisition of design as in the case of trademark goodwill etc."
}
},
{
"from_name": null,
"id": "910ea89db829472faed5ef5879f1a7df",
"to_name": null,
"type": null,
"value": {
"end": 11692,
"labels": [
"RPC"
],
"start": 11523,
"text": "\n 10. In the circumstances, the aforesaid re-framed question is answered in the affirmative i.e. in favour of the respondent/assessee and against the appellant/revenue."
}
},
{
"from_name": null,
"id": "d73dd3b486b84ead9dbfb85c2378c3b7",
"to_name": null,
"type": null,
"value": {
"end": 11740,
"labels": [
"RPC"
],
"start": 11692,
"text": "\n 11. Appeal is disposed of in the above terms."
}
},
{
"from_name": null,
"id": "aaf49e73a1874004a775b7497116e693",
"to_name": null,
"type": null,
"value": {
"end": 11762,
"labels": [
"RPC"
],
"start": 11741,
"text": "No order as to costs."
}
},
{
"from_name": null,
"id": "3cc6940716014a6db0ca99988ed464a5",
"to_name": null,
"type": null,
"value": {
"end": 11811,
"labels": [
"NONE"
],
"start": 11762,
"text": "\n ( M.S. SANKLECHA, J. ) ( S.J. VAZIFDAR,J.)"
}
}
]
}
] | 4,133 | {
"text": " IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n ORDINARY ORIGINAL CIVIL JURISDICTION\n\n INCOME TAX APPEAL NO.5615 OF 2010\n\nThe Commissioner of Income Tax-12, ...Appellant.\nAayakar Bhavan, M.K.Road, ...Respondent.\nMumbai- 400 020.\n\n Vs.\n\nM/s.Fernhill Laboratories and\nIndustrial Establishment,\nFernill House, 254,\nPerin Nariman Street,Fort,\nMumbai-400 001.\nPan No.AAAFF0209Q.\n\nMr. Suresh Kumar for the Appellant.\n\nMr. K.B. Bhujle along with Mr. Padmanabh Bhujle for the\nRespondent.\n\n CORAM : S.J.VAZIFDAR &\n M.S. SANKLECHA, JJ.\n\n DATE : 12th June, 2012\n\nORAL JUDGMENT : ( Per M.S. SANKLECHA, J.) This is an appeal by the Revenue under Section 260A of the Income Tax Act, 1961 (hereinafter referred to as the \"said Act\") challenging the order dated 6/7/2009 passed by Income Tax Appellate Tribunal (hereinafter referred to as \"the Tribunal).\n 2) In this appeal, the Revenue has formulated the following questions as substantial questions of law: a) Whether on the facts and circumstances of the case and in law, the Tribunal was correct in confirming the order of CIT(A) in holding that the receipt of Rs.15,20,00,000/- on account of consideration for trade mark and design were not taxable?\n b) Whether on the facts and circumstance of the case and in law, the Tribunal was correct in confirming the order of CIT (A) in holding that the provisions for the computation of capital gains in the case of the assessee will fail, since there was no specific provision in the Act about the cost of acquisition of such self generated assets?\n c) Whether on the facts and circumstance of the case and in law, the Tribunal was correct in holding that the sale proceeds in respect of self generated assets like trade mark or brand name associated with a business cannot be taxed in the A.Y. 1999-2000 as the amendment to Section-55(2) of the Act became effective only from 1/4/2002 without appreciating the fact that in the absence of specific provision in the Act, specifying how the cost of self generated assets should be calculated, the cost of such self generated assets are always deemed to be NIL?\n 3. To bring out the real controversy between the parties the question of law arising in the present appeal is re-framed as under: Whether on the facts and circumstances of the case and in law was the Tribunal justified in holding that the consideration received by the respondent on transfer of trade mark and design are not chargeable to capital gains tax in view of the fact that the transfer took place prior to 1/4/2002?\n 4. The appeal is admitted on the aforesaid re- framed question of law. However, at the request of the Advocates for the appellant and the Advocate for the respondent, the appeal itself is taken up for final disposal.\n 5) Briefly, the facts leading to the present appeal are as under: a) The respondent-assessee was the owner of trade mark \"Colin\". On 21/10/1998 the respondent- assessee under an agreement sold to M/s. Reckitt & Colman ltd. the following rights: i) Transfer of ownership and assignment Rs.1500 lakhs of the trade mark. Rs. 50 lakhs Rs.20 lakhs ii) Transfer of ownership in the goodwill Rs.200 lakhs of the relating to the trade mark iii) Transfer of ownership and and assignment of the designs iv) Transfer of ownership and assignment of technical know how b) The respondent filed its return of income for the Assessment Year 1999-2000 (previous year ending 31/3/1999). However, the respondent did not offer to tax on the amount of Rs.15.00crores received on account of trade mark and Rs.20.00lakhs on account of sale of design on the ground that they are capital receipts not chargeable to tax.\n c) On 30/3/2005, the Assessing Officer by Order for the Assessment Year 1999-2000 held that the sale of trade mark as well as the sale of design aggregating to Rs.15.20crores is liable to capital gains tax.\n d) Being aggrieved by the order dated 30/3/2005, the respondent preferred an appeal to the CIT (A). By an order dated 6/3/2006, the CIT (A) allowed the respondent's appeal by inter alia holding that the consideration received on transfer of trademark and design aggregating to Rs.15.20 crores are not chargeable to capital gains tax as they are self generated assest.\n This conclusion was reached on the principles laid down by the Apex Court in the matter of CIT V/s. B.C. Srinivasa Shetty reported in 128 ITR Page 294.\n e) Being aggrieved by the order of CIT (A) the appellant preferred an appeal to the Tribunal. On 6/7/2009 the Tribunal by its order held that it was an admitted fact that the trade mark \"Colin\" belonging to the Respondent/Assessee was a self generated asset and consequently its costs was Nil. In view thereof it was not possible to compute the capital gains under Section 48 of the said Act resulting in the charge of tax also failing as held by the Apex Court in the matter of B. C. Srinivasa Shetty (supra). Further, the Tribunal also held that the trade mark became chargeable to tax with effect from 1/4/2002 by virtue of amendment to Section-55(2)(a) of the said Act with effect from 1/4/2002. However, the aforesaid amendment according to the Tribunal was only prospective.\n f) Being aggrieved by the order of the Tribunal dated 6/7/2009 the revenue-appellant is in appeal before this Court.\n 6. In support of the appeal Mr. Suresh Kumar, Advocate for the Appellant submits that the sale of trademark and designs would be subject to capital gains tax. This is so, as according to him the cost of acquisition of such self generated assets is to be taken as Nil.\n Consequently, the entire consideration received by the Respondent-Assessee would be subject to capital gains tax. The amendment to Section 55(2) of the said Act with effect from 1/4/2002 introducing trade marks amongst the capital asset whose cost of acquisition in case of self generated being taken at nil would not make any difference as even for the period prior to 1/4/2002 the costs of acquisition of self generated assets like trademark has to be taken as Nil for the purpose of computing capital tax.\n 7. On the other hand, Mr. K.B. Bhujale appearing for the Respondent submits that i) that the costs of self generated assets such as trademark are not liable to capital gains tax prior to 1/4/2002 as computation provision itself falls resulting in failure of the charging provision as held by the Supreme Court in the matter of B.\n C. Srinivasa Sheety (supra), ii) the sale of trademark was made chargeable to capital gains tax only with effect from 1/4/2002 consequent to the amendment made to Section 55(2) of the said Act by Finance Act,2001. The amendment to Section 55(2) of the said Act with effect from 1/4/2002 declaring that the costs of acquisition of self generated trademark will be Nil is not retrospective and would be effective only in respect of sales of Trade Marks post 1/4/2002 and iii) in any view of the matter the sale of design by the respondent-assessee is not subject to capital gains tax as the cost of acquisition of self generated designs have not been defraud under Section- 55 of the said Act even today.\n 8. We have considered the rival submissions.\n Section 45 of the Act is a charging section for the purpose of levying capital gains. However to impose the charge, parliament has enacted provision to compute profits or gains under that head. Section 48 of the said Act provides the manner in which the income chargeable under the head capital gains is to be computed i.e. by deducting costs of acquisition of the capital asset from the full consideration received on the transfer of the capital asset. The Supreme Court in the matter of B. C. Srinivasa Shetty (supra) was dealing with the issue whether the transfer of the goodwill by partnership firm can give rise to a capital gain tax under Section 45 of the said Act. The Apex Court held that where the cost of acquisition of the capital asset is nil then the computation provision fails and the transfer of goodwill not give rise to capital gains tax. Prior to the amendment made to Section 55(2) by the Finance Act, 2001 effective from 1/4/2002 by adding the words \"trade mark or brand name associated with the business\" self generated assets such as trademark did not have any cost of acquisition. Therefore for the period under consideration the computation provision under Section 48 of the said Act fails resulting in such transfer of trade marks not being chargeable to capital gains tax.\n Consequent to amendment made to Section 55(2) with effect from 1/4/2002 by which the words trade mark or brand name associated with the business was introduced into it, the computation provision becomes workable and the consideration received for the sale of trade mark would be subject to capital gains tax. However, for the period prior to 1/4/2002 the sale of self generated trademark is not liable to capital gains tax. In fact, when the amendment was made to Section 55 by Finance Act, 2001 the Central Board of Excise and Customs had issued a circular bearing No.14/2001 explaining the provision of the Finance Act, 2011 relating to direct taxes provided as under: \"42- Providing for cost of acquisition of certain intangible capital asserts under section 55 42.1 Under the existing provisions of sub- section (2) of section 55 of the Income tax Act, the cost of acquisition of an intangible capital asset, being goodwill of a business or a right to manufacture, produce or process any article or thing, tenancy rights, stage carriage permits or loom hours, is the purchase price in case the asset is purchased by the assessee from a previous owner, and nil in any other case.\n It was pointed out that certain similar self generated intangible assets like brand name or a trademark may not be considered to form part of the goodwill of a business and consequently it may not be possible to compute capital gains arising from the transfer of such assets.\n 42.2- The Act has therefore amended clause (a) of sub-section (2) to provide that the cost of acquisition in relation to trademark or brand name associated with a business shall also be taken to be the purchase price in case the asset is purchased from a previous owner and nil in any other case.\n 42.3- This amendment will take effect from 1st April, 2002, and will, accordingly, apply in relation to the assessment year 2002-2003 and subsequent years.\"\n 9. From the above circular, it would be clear that the amendment bringing self generated intangible assets such as trademark to capital gains tax only with effect from Assessments Year 2002-03 onwards. In this case, we are concerned with Assessment Year 1999-2000 and therefore, the amendment would not have any effect. Further as held by the Supreme Court in the matter of Dy. CIT v/s. Core Health Care ltd. reported in 298 ITR 194 that a provision introduced with effect from a particular date would not have retrospective effect unless it is expressly stated to be so. Consequently, the sale of self generated trade marks during the Assessment year 1999-2000 are not chargeable to capital gains tax. So far as the sale of self generated designs (i.e. not acquired) the same is also not chargeable to capital gains tax not only for the reasons applicable to trade marks but for the fact that even till this date, no amendment has been made to Section 55(2) of the said Act defining cost of acquisition of design as in the case of trademark goodwill etc.\n 10. In the circumstances, the aforesaid re-framed question is answered in the affirmative i.e. in favour of the respondent/assessee and against the appellant/revenue.\n 11. Appeal is disposed of in the above terms. No order as to costs.\n ( M.S. SANKLECHA, J. ) ( S.J. VAZIFDAR,J.) "
} |
{
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"text": "IN THE SUPREME COURT OF INDIA\n\n "
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"start": 185,
"text": "CRIMINAL APPEAL NO. 949 OF 2018\n(Arising out of Special Leave Petition (Criminal) No.9816 of 2017)\n\nSurinder Kumar Khanna ......Appellant\n Versus ...... Respondent\n\nIntelligence Officer Directorate\nof Revenue Intelligence\n\n J U D G M E N T"
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"text": "\n Uday Umesh Lalit, J.\n 1."
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"text": "Special Leave to Appeal granted.\n 2."
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"text": "This appeal challenges the correctness of Judgment and Order dated 21.12.2016 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No.798 of 2014 by which the High Court affirmed the conviction of the appellant for the offences punishable under Section 21(c) read with Section 29 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (`NDPC Act', for short)."
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"text": "3. According to the Prosecution:- a. On a specific information that narcotic drugs were going to be transported from Jammu side to Chandigarh via Hoshiarpur in a white colour Indica car bearing registration no.PB-02AJ-7288, the officers of Directorate of Revenue Intelligence (for short `DRI') laid picket at toll barrier at Hoshiarpur-Garhshankar road."
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"text": "At 10:35 hours, they intercepted an Indica car of white colour which was coming from Hoshiarpur side bearing registration No.PB-02AJ-7288."
}
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],
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"text": "The car was being driven by one Raj Kumar @ Raju whereas one Surinder Pal Singh was sitting next to him."
}
},
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"text": "To ensure safe search of the car and personal search of occupants, the car was taken to the office of Superintendent, Central Excise Range, Model Town, Hoshiarpur."
}
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"text": "The officers of DRI served notice under Section 50 of the NDPS Act upon said Raj Kumar @ Raju and Surinder Pal Singh."
}
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"text": "\n b."
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"text": "As desired by said suspects, their personal searches and that of the car were conducted in the presence of independent witnesses and Shri SJS Chugh, Senior Intelligence Officer."
}
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"text": "Personal searches of the suspects did not result in recovery of any incriminating material."
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"text": "\n However, when the car was searched, four packets wrapped with yellowish adhesive tapes were found concealed in the door of dickey of the car."
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"text": "The gross weight of those four packets came to 4.300 kg."
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"text": "c. Each of those packets was containing white colour granules/powder which gave a very pungent smell."
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"text": "The pinch of each packet was tested, which showed the presence of heroin."
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"text": "The recovered heroin weighing 3.990 kgs was valued at Rs.19,95,000/-."
}
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"text": "Those four packets were taken into possession."
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"text": "Two representative samples of 5 gms each were taken out from each of the packets as per rules."
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"text": "Indica car was also seized by the officers of DRI."
}
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"text": "Statements of both the suspects were recorded."
}
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"text": "From their statements, it transpired that four packets of heroin had been taken from one Mr.\nGoldy r/o Vijaypur, Jammu and those packets were to be delivered to a person of African origin near PGI Chandigarh.\nd."
}
},
{
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"end": 3190,
"labels": [
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"start": 3047,
"text": "Initially a complaint under Sections 21, 22, 23, 28, 29 and 60 of the NDPS Act was lodged against said Raj Kumar @ Raju and Surinder Pal Singh."
}
},
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"start": 3191,
"text": "During investigation, the involvement of the present appellant in the drug racket was said to have been made out."
}
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"text": "\nAfter the appellant was arrested, a supplementary complaint was presented against him and the matter was taken up with the main complaint."
}
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{
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"end": 3622,
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"start": 3444,
"text": "After hearing arguments, charges were framed against said Raj Kumar @ Raju and Surinder Pal Singh and the appellant for the offences under Sections 21, 29 and 60 of the NDPS Act."
}
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"text": "4. The prosecution, in support of its case examined four witnesses."
}
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"text": "After hearing submissions, the trial court convicted and sentenced all three accused."
}
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"text": "The appellant was convicted under Section 21(c) read with Section 29 of the NDPS Act and was sentenced to undergo rigorous imprisonment for 12 years and to pay a fine of Rs.1 lakh, in default whereof to undergo further rigorous imprisonment for three years."
}
},
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"text": "Similar orders for conviction and sentence were recorded against other two accused namely Raj Kumar @ Raju and Surinder Pal Singh."
}
},
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"end": 4377,
"labels": [
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],
"start": 4167,
"text": "All three convicted accused preferred appeals; namely Criminal Appeal No.D-955-DB-2013 was filed by Raj Kumar @ Raju and Surinder Pal Singh while Criminal Appeal No.D-798-DB-2014 was preferred by the appellant."
}
},
{
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"end": 4435,
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"text": "Both these appeals were heard together by the High Court."
}
},
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"end": 4605,
"labels": [
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"start": 4435,
"text": "\n 5. As regards the appellant, it was observed by the High Court that he was specifically named by co-accused Raj Kumar @ Raju and Surinder Pal Singh in their statements."
}
},
{
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"end": 4709,
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"start": 4606,
"text": "Apart from such statements nothing was produced on record to indicate the involvement of the appellant."
}
},
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"text": "The High Court however found that the case against the appellant was made out."
}
},
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"end": 4962,
"labels": [
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],
"start": 4789,
"text": "It was observed: \"Offence of abetment under Section 29 of NDPS Act stood established against accused Surinder Kumar Khanna, showing that he was involved in drug trafficking."
}
},
{
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"end": 5060,
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],
"start": 4963,
"text": "He was specifically named by accused Raj Kumar @ Raju and Surinder Pal Singh in their statements."
}
},
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"end": 5452,
"labels": [
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],
"start": 5061,
"text": "Such statements of accused Raj Kumar @ Raju and Surinder Pal Singh recorded under Section 67 of the NDPS Act are admissible in evidence and are not hit by Section 25 of the Evidence Act because the officers of DRI, who had apprehended Raj Kumar @ Raju and Surinder Pal Singh, traveling in an Indica car and effecting recovery from them do not come within the definition of police officers.\"."
}
},
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"end": 5718,
"labels": [
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],
"start": 5454,
"text": "The High Court thus affirmed the order of conviction as recorded against the appellant but reduced the sentence to rigorous imprisonment for a period of 10 years and to pay fine of Rs.1 lakh, in default whereof to undergo further rigorous imprisonment for 1 years."
}
},
{
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"end": 5836,
"labels": [
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],
"start": 5719,
"text": "Similar orders of sentence were passed in respect of other co-accused namely Raj Kumar @ Raju and Surinder Pal Singh."
}
},
{
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"end": 6257,
"labels": [
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],
"start": 5838,
"text": "6. In this appeal challenging the correctness of the conviction and sentence rendered as against the appellant, it was submitted by Mr. Jayant Bhushan, learned Senior Advocate that apart from the so called statements of co-accused Raj Kumar @ Raju and Surinder Pal Singh there was nothing against the appellant and that he was neither arrested at the site nor was the contraband material in any way associated with him."
}
},
{
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"labels": [
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],
"start": 6258,
"text": "Mr. Maninder Singh, learned Additional Solicitor General appearing for the respondent however supported the judgment of conviction and sentence rendered against the appellant."
}
},
{
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"labels": [
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"start": 6434,
"text": "He placed on record call data reports showing that around the time when the co-accused was arrested, the appellant was in touch with a person named Chaudhary from Dubai."
}
},
{
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"id": "c07e12e203aa40968ce0642f5db7163e",
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"end": 6787,
"labels": [
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],
"start": 6604,
"text": "The learned Additional Solicitor General however fairly accepted that apart from the statements of the co- accused there was nothing to link the appellant with said convicted accused."
}
},
{
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"end": 6936,
"labels": [
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],
"start": 6787,
"text": "\n The call data reports also did not indicate that around the time when co- accused were apprehended, the appellant was in touch with either of them."
}
},
{
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"end": 7095,
"labels": [
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],
"start": 6936,
"text": "\n 7. For the present purposes, we will proceed on the footing that the statements of co-accused were recorded under and in terms of Section 67 of the NDPS Act."
}
},
{
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"end": 7277,
"labels": [
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],
"start": 7096,
"text": "As regards such statements, a bench of two Judges of this Court after referring to and relying upon the earlier Judgments, observed in Kanhaiyalal v. Union of India1, as under: \"45."
}
},
{
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"end": 7826,
"labels": [
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"start": 7278,
"text": "Considering the provisions of Section 67 of the NDPS Act and the views expressed by this Court in Raj Kumar Karwal case2 with which we agree, that an officer vested with the powers of an officer in charge of a police station under Section 53 of the above Act is not a \"police officer\" within the meaning of Section 25 of the Evidence Act, it is clear that a statement made under Section 67 of the NDPS Act is not the same as a statement made under Section 161 of the 1 (2008) 4 SCC 668 2 (1990) 2 SCC 409 Code, unless made under threat or coercion."
}
},
{
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"end": 8052,
"labels": [
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],
"start": 7827,
"text": "It is this vital difference, which allows a statement made under Section 67 of the NDPS Act to be used as a confession against the person making it and excludes it from the operation of Sections 24 to 27 of the Evidence Act.\""
}
},
{
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"id": "40c0033e2a8148e6825e8b12a029eea4",
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"end": 8275,
"labels": [
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],
"start": 8052,
"text": "\n 8. Later, another bench of two Judges of this Court in Tofan Singh v.\n State of Tamil Nadu3 was of the view that the matter required reconsideration and therefore, directed that the matter be placed before a larger bench."
}
},
{
"from_name": "label",
"id": "5790de06ef124fc0b53d5e761e363a35",
"to_name": "text",
"type": "labels",
"value": {
"end": 8329,
"labels": [
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],
"start": 8276,
"text": "It was observed in Tofan Singh (supra) as under: \"40."
}
},
{
"from_name": "label",
"id": "1db2e23ef79b4192addcb94c048c313c",
"to_name": "text",
"type": "labels",
"value": {
"end": 8425,
"labels": [
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],
"start": 8330,
"text": "In our view the aforesaid discussion necessitates a re-look into the ratio of Kanhaiyalal case."
}
},
{
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"id": "9e2542a4694a4e2f8a6ad432db5f4933",
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"type": "labels",
"value": {
"end": 8667,
"labels": [
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],
"start": 8426,
"text": "It is more so when this Court has already doubted the dicta in Kanhaiyalal in Nirmal Singh Pehlwan4 wherein after noticing both Kanhaiyalal as well as Noor Aga5, this Court observed thus: (Nirmal Singh Pehlwan case, SCC p. 302, para 15) \"15."
}
},
{
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"id": "c54ec0fb7c2443eca67190a12df5cf02",
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"type": "labels",
"value": {
"end": 8971,
"labels": [
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],
"start": 8668,
"text": "We also see that the Division Bench in Kanhaiyalal case had not examined the principles and the concepts underlying Section 25 of the Evidence Act, 1872 vis--vis Section 108 of the Customs Act and the powers of a Customs Officer who could investigate and bring for trial an accused in a narcotic matter."
}
},
{
"from_name": "label",
"id": "3f6f1fb27d4246f4a71cbbd686d0c05c",
"to_name": "text",
"type": "labels",
"value": {
"end": 9039,
"labels": [
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],
"start": 8972,
"text": "The said case relied exclusively on the judgment in Raj Kumar case."
}
},
{
"from_name": "label",
"id": "df9e69cdc574445486f3894ec878dc18",
"to_name": "text",
"type": "labels",
"value": {
"end": 9144,
"labels": [
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],
"start": 9040,
"text": "The latest judgment in point of time is Noor Aga case which has dealt very elaborately with this matter."
}
},
{
"from_name": "label",
"id": "06113dcc687a4db8959eab4fb9bf4b76",
"to_name": "text",
"type": "labels",
"value": {
"end": 9411,
"labels": [
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],
"start": 9145,
"text": "We thus feel it would be proper for us to follow the ratio of the judgment in Noor Aga case particularly as the provisions of Section 50 of the Act which are mandatory have also not been complied with.\"\n 3 (2013) 16 SCC 31 4 (2011) 12 SCC 298 5 (2008) 16 SCC 417 41."
}
},
{
"from_name": "label",
"id": "be6d6185cf524135bf2d197eea767282",
"to_name": "text",
"type": "labels",
"value": {
"end": 9655,
"labels": [
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],
"start": 9412,
"text": "For the aforesaid reasons, we are of the view that the matter needs to be referred to a larger Bench for reconsideration of the issue as to whether the officer investigating the matter under the NDPS Act would qualify as police officer or not."
}
},
{
"from_name": "label",
"id": "457072ee8e464cdea667ee9366c5319d",
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"end": 10171,
"labels": [
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],
"start": 9655,
"text": "\n 42. In this context, the other related issue viz. whether the statement recorded by the investigating officer under Section 67 of the Act can be treated as confessional statement or not, even if the officer is not treated as police officer also needs to be referred to the larger Bench, inasmuch as it is intermixed with a facet of the 1st issue as to whether such a statement is to be treated as statement under Section 161 of the Code or it partakes the character of statement under Section 164 of the Code.\"\n 9."
}
},
{
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"id": "615520006413496f9245ca6784a2e5dc",
"to_name": "text",
"type": "labels",
"value": {
"end": 10423,
"labels": [
"ANALYSIS"
],
"start": 10172,
"text": "Thus the issue whether statement recorded under Section 67 of the NDPS Act can be construed as a confessional statement even if the officer who recorded such statement was not to be treated as a police officer, has now been referred to a larger Bench."
}
},
{
"from_name": "label",
"id": "ffa7c2c0b3fb4c628717465ad15195a2",
"to_name": "text",
"type": "labels",
"value": {
"end": 10689,
"labels": [
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],
"start": 10423,
"text": "\n 10. Even if we are to proceed on the premise that such statement under Section 67 of the NDPS Act may amount to confession, in our view, certain additional features must be established before such a confessional statement could be relied upon against a co-accused."
}
},
{
"from_name": "label",
"id": "18f67eaf3d25495fbef3b52f07681613",
"to_name": "text",
"type": "labels",
"value": {
"end": 11087,
"labels": [
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],
"start": 10690,
"text": "It is noteworthy that unlike Section 15 of Terrorist and Disruptive Activities Act, 19876 which specifically makes confession of a co-accused admissible against other accused in certain eventualities; there is no such similar or identical provision in the NDPS Act making such confession admissible against a co- 6 Similarly: Section 18 of Maharashtra Control of Organised Crime Act, 1999 accused."
}
},
{
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"id": "4be2d4bd7aa841b7b14afe95dcc527f3",
"to_name": "text",
"type": "labels",
"value": {
"end": 11261,
"labels": [
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],
"start": 11088,
"text": "The matter therefore has to be seen in the light of the law laid down by this Court as regards general application of a confession of a co- accused as against other accused."
}
},
{
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"id": "3ef42cb5d7974f59ac55e515fa443e7f",
"to_name": "text",
"type": "labels",
"value": {
"end": 11634,
"labels": [
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],
"start": 11261,
"text": "\n 11. In Kashmira Singh v. State of Madhya Pradesh7, this Court relied upon the decision of the Privy Council in Bhuboni Sahu v. The King8 and laid down as under: \"Gurubachan's confession has played an important part in implicating the appellant, and the question at once arises, how far and in what way the confession of an accused person can be used against a co-accused?"
}
},
{
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"end": 11999,
"labels": [
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],
"start": 11635,
"text": "It is evident that it is not evidence in the ordinary sense of the term because, as the Privy Council say in Bhuboni Sahu v. The King \"It does not indeed come within the definition of\" 'evidence' contained in section 3 of the Evidence Act., It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross- examination.\""
}
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"text": "Their Lordships also point out that it is \"obviously evidence of a very weak type........."
}
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"text": "It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities.\"\n "
}
},
{
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],
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"text": "They stated in addition that such a confession cannot be made tile foundation of a conviction and can only be used in \"support of other evidence.\""
}
},
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"text": "In view of these remarks it would be pointless to cover the same ground, but we feel it is necessary to expound this further as misapprehension still exists."
}
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"text": "The question is, in what way can it be used in support of other evidence?"
}
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],
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"text": "Can it be used to fill in missing gaps?"
}
},
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"text": "Can it be used to corroborate an accomplice or, as in the present case, a witness who, though not an accomplice, is placed in the same category regarding credibility because the judge refuses to believe him except in so far as he is corroborated ?"
}
},
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"text": "\n 7 (1952) SCR 526 8 (1949) 76 Indian Appeal 147 at 155 In our opinion, the matter was put succinctly by Sir 'Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty9 where he said that such a confession can only be used to \"lend assurance to other evidence against a co-accused \"or, to put it in another way, as Reilly J. did in In re Periyaswami Moopan10 \"the provision goes no further than this--where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession de- scribed in section 30 may be thrown into the scale as an additional reason for believing that evidence.\""
}
},
{
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"end": 13585,
"labels": [
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],
"start": 13514,
"text": "\n Translating these observations into concrete terms they come to this."
}
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"end": 13820,
"labels": [
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],
"start": 13586,
"text": "The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it."
}
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"end": 13946,
"labels": [
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],
"start": 13821,
"text": "If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid."
}
},
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"labels": [
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"start": 13947,
"text": "But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction."
}
},
{
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"start": 14115,
"text": "In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.\"\n 12."
}
},
{
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"id": "07bc251a5d534df68a4240b9d35b908b",
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"end": 14768,
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"start": 14343,
"text": "The law laid down in Kashmira Singh (supra) was approved by a Constitution Bench of this Court in Hari Charan Kurmi and Jogia Hajam v. State of Bihar11 wherein it was observed: \"As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person."
}
},
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"end": 15417,
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"start": 14769,
"text": "In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, 9 [1911] I.L.R. 38 CAl. 559 at 588 10 [1931] I.L.R. 54 Mad. 75 at 77.\n11 (1964) 6 SCR 623 at 631-633 the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right."
}
},
{
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"end": 15586,
"labels": [
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],
"start": 15418,
"text": "As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerburty a confession can only be used to \"lend assurance to other evidence against a co-accused\"."
}
},
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"end": 15928,
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"start": 15587,
"text": "In re Periyaswami Moopan Reilly. J., observed that the provision of Section 30 goes not further than this: \"where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence\"."
}
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"start": 15929,
"text": "In Bhuboni Sahu v. King the Privy Council has expressed the same view."
}
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"text": "Sir John Beaumont who spoke for the Board, observed that \"a confession of a co-accused is obviously evidence of a very weak type."
}
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"text": "It does not indeed come within the definition of \"evidence\" contained in Section 3 of the Evidence Act."
}
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"text": "\nIt is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination."
}
},
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"labels": [
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"text": "It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities."
}
},
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"end": 16705,
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],
"start": 16477,
"text": "Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof."
}
},
{
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"labels": [
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"text": "\nClearly there must be other evidence."
}
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{
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"labels": [
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"start": 16744,
"text": "The confession is only one element in the consideration of all the facts proved the case; it can be put into the scale and weighed with the other evidence\"."
}
},
{
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"id": "ea11ca82495f46db90c711079ba4437e",
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"end": 17241,
"labels": [
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],
"start": 16901,
"text": "It would be noticed that as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense."
}
},
{
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"id": "fe08d42e36084001bf2c6135d3817d1c",
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"value": {
"end": 17433,
"labels": [
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],
"start": 17242,
"text": "Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act."
}
},
{
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"id": "117c92ee4d7d4bc9ac695b7cc0ed1fe3",
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"end": 17914,
"labels": [
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],
"start": 17434,
"text": "The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence."
}
},
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"value": {
"end": 17993,
"labels": [
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],
"start": 17915,
"text": "That, briefly stated, is the effect of the provisions contained in Section 30."
}
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{
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"end": 18190,
"labels": [
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],
"start": 17994,
"text": "The same view has been expressed by this Court in Kashmira Singh v.\n State of Madhya Pradesh where the decision of the Privy Council in Bhuboni Sahu case has been cited with approval.\"\n 13."
}
},
{
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"end": 18390,
"labels": [
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],
"start": 18191,
"text": "The law so laid down has always been followed by this Court except in cases where there is a specific provision in law making such confession of a co-accused admissible against another accused.12 14."
}
},
{
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"id": "4958f456f0de49a8b71bdfe7be044f0d",
"to_name": "text",
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"value": {
"end": 18567,
"labels": [
"ANALYSIS"
],
"start": 18391,
"text": "In the present case it is accepted that apart from the aforesaid statements of co-accused there is no material suggesting involvement of the appellant in the crime in question."
}
},
{
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"id": "0af4bdbd4e074dd98026eda141512cbe",
"to_name": "text",
"type": "labels",
"value": {
"end": 18687,
"labels": [
"RATIO"
],
"start": 18568,
"text": "We are thus left with only one piece of material that is the confessional statements of the co-accused as stated above."
}
},
{
"from_name": "label",
"id": "65ef6851f1ea40769b3b5aad9c74c2b2",
"to_name": "text",
"type": "labels",
"value": {
"end": 18947,
"labels": [
"RATIO"
],
"start": 18688,
"text": "On the touchstone of law laid down by this Court such a confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilized in order to lend assurance to the Court."
}
},
{
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"id": "a8289c1da4364317b21decf4ddd74339",
"to_name": "text",
"type": "labels",
"value": {
"end": 19096,
"labels": [
"RATIO"
],
"start": 18948,
"text": "In the absence of any substantive evidence it would be inappropriate to base the conviction of the appellant purely on the statements of co-accused."
}
},
{
"from_name": "label",
"id": "2f14c68a59c54953b54adb212c2f6862",
"to_name": "text",
"type": "labels",
"value": {
"end": 19184,
"labels": [
"RPC"
],
"start": 19097,
"text": "The appellant is therefore entitled to be acquitted of the charges leveled against him."
}
},
{
"from_name": "label",
"id": "1da92baca492488ab51d9c4c3e04098f",
"to_name": "text",
"type": "labels",
"value": {
"end": 19270,
"labels": [
"RPC"
],
"start": 19185,
"text": "We, therefore, accept this appeal, set aside the orders of conviction and sentence 12"
}
},
{
"from_name": "label",
"id": "ff0ce8357da943dc9e2d1bc07336d86d",
"to_name": "text",
"type": "labels",
"value": {
"end": 19363,
"labels": [
"RPC"
],
"start": 19271,
"text": "For example: State vs. Nalini, (1999) 5 SCC 253, paras 424 and 704 and acquit the appellant."
}
},
{
"from_name": "label",
"id": "ce784df062384fe2b885033717276d3b",
"to_name": "text",
"type": "labels",
"value": {
"end": 19474,
"labels": [
"RPC"
],
"start": 19364,
"text": "The appellant shall be released forthwith unless his custody is required in connection with any other offence."
}
},
{
"from_name": "label",
"id": "f9a1269e5ed14036b14e59b503d1e6f7",
"to_name": "text",
"type": "labels",
"value": {
"end": 19637,
"labels": [
"NONE"
],
"start": 19476,
"text": "..............................J.\n (Abhay Manohar Sapre) ..............................J.\n (Uday Umesh Lalit) New Delhi, July 31, 2018"
}
}
]
}
] | 1,748 | {
"text": " REPORTABLE\n IN THE SUPREME COURT OF INDIA\n\n CRIMINAL APPELLATE JURISDICTION\n\n CRIMINAL APPEAL NO. 949 OF 2018\n(Arising out of Special Leave Petition (Criminal) No.9816 of 2017)\n\nSurinder Kumar Khanna ......Appellant\n Versus ...... Respondent\n\nIntelligence Officer Directorate\nof Revenue Intelligence\n\n J U D G M E N T\n Uday Umesh Lalit, J.\n 1. Special Leave to Appeal granted.\n 2. This appeal challenges the correctness of Judgment and Order dated 21.12.2016 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No.798 of 2014 by which the High Court affirmed the conviction of the appellant for the offences punishable under Section 21(c) read with Section 29 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (`NDPC Act', for short).\n 3. According to the Prosecution:- a. On a specific information that narcotic drugs were going to be transported from Jammu side to Chandigarh via Hoshiarpur in a white colour Indica car bearing registration no.PB-02AJ-7288, the officers of Directorate of Revenue Intelligence (for short `DRI') laid picket at toll barrier at Hoshiarpur-Garhshankar road. At 10:35 hours, they intercepted an Indica car of white colour which was coming from Hoshiarpur side bearing registration No.PB-02AJ-7288. The car was being driven by one Raj Kumar @ Raju whereas one Surinder Pal Singh was sitting next to him. To ensure safe search of the car and personal search of occupants, the car was taken to the office of Superintendent, Central Excise Range, Model Town, Hoshiarpur. The officers of DRI served notice under Section 50 of the NDPS Act upon said Raj Kumar @ Raju and Surinder Pal Singh.\n b. As desired by said suspects, their personal searches and that of the car were conducted in the presence of independent witnesses and Shri SJS Chugh, Senior Intelligence Officer. Personal searches of the suspects did not result in recovery of any incriminating material.\n However, when the car was searched, four packets wrapped with yellowish adhesive tapes were found concealed in the door of dickey of the car. The gross weight of those four packets came to 4.300 kg.\nc. Each of those packets was containing white colour granules/powder which gave a very pungent smell. The pinch of each packet was tested, which showed the presence of heroin. The recovered heroin weighing 3.990 kgs was valued at Rs.19,95,000/-.\nThose four packets were taken into possession. Two representative samples of 5 gms each were taken out from each of the packets as per rules. Indica car was also seized by the officers of DRI. Statements of both the suspects were recorded. From their statements, it transpired that four packets of heroin had been taken from one Mr.\nGoldy r/o Vijaypur, Jammu and those packets were to be delivered to a person of African origin near PGI Chandigarh.\nd. Initially a complaint under Sections 21, 22, 23, 28, 29 and 60 of the NDPS Act was lodged against said Raj Kumar @ Raju and Surinder Pal Singh. During investigation, the involvement of the present appellant in the drug racket was said to have been made out.\nAfter the appellant was arrested, a supplementary complaint was presented against him and the matter was taken up with the main complaint. After hearing arguments, charges were framed against said Raj Kumar @ Raju and Surinder Pal Singh and the appellant for the offences under Sections 21, 29 and 60 of the NDPS Act.\n 4. The prosecution, in support of its case examined four witnesses. After hearing submissions, the trial court convicted and sentenced all three accused. The appellant was convicted under Section 21(c) read with Section 29 of the NDPS Act and was sentenced to undergo rigorous imprisonment for 12 years and to pay a fine of Rs.1 lakh, in default whereof to undergo further rigorous imprisonment for three years. Similar orders for conviction and sentence were recorded against other two accused namely Raj Kumar @ Raju and Surinder Pal Singh. All three convicted accused preferred appeals; namely Criminal Appeal No.D-955-DB-2013 was filed by Raj Kumar @ Raju and Surinder Pal Singh while Criminal Appeal No.D-798-DB-2014 was preferred by the appellant. Both these appeals were heard together by the High Court.\n 5. As regards the appellant, it was observed by the High Court that he was specifically named by co-accused Raj Kumar @ Raju and Surinder Pal Singh in their statements. Apart from such statements nothing was produced on record to indicate the involvement of the appellant. The High Court however found that the case against the appellant was made out. It was observed: \"Offence of abetment under Section 29 of NDPS Act stood established against accused Surinder Kumar Khanna, showing that he was involved in drug trafficking. He was specifically named by accused Raj Kumar @ Raju and Surinder Pal Singh in their statements. Such statements of accused Raj Kumar @ Raju and Surinder Pal Singh recorded under Section 67 of the NDPS Act are admissible in evidence and are not hit by Section 25 of the Evidence Act because the officers of DRI, who had apprehended Raj Kumar @ Raju and Surinder Pal Singh, traveling in an Indica car and effecting recovery from them do not come within the definition of police officers.\".\n The High Court thus affirmed the order of conviction as recorded against the appellant but reduced the sentence to rigorous imprisonment for a period of 10 years and to pay fine of Rs.1 lakh, in default whereof to undergo further rigorous imprisonment for 1 years. Similar orders of sentence were passed in respect of other co-accused namely Raj Kumar @ Raju and Surinder Pal Singh.\n 6. In this appeal challenging the correctness of the conviction and sentence rendered as against the appellant, it was submitted by Mr. Jayant Bhushan, learned Senior Advocate that apart from the so called statements of co-accused Raj Kumar @ Raju and Surinder Pal Singh there was nothing against the appellant and that he was neither arrested at the site nor was the contraband material in any way associated with him. Mr. Maninder Singh, learned Additional Solicitor General appearing for the respondent however supported the judgment of conviction and sentence rendered against the appellant. He placed on record call data reports showing that around the time when the co-accused was arrested, the appellant was in touch with a person named Chaudhary from Dubai. The learned Additional Solicitor General however fairly accepted that apart from the statements of the co- accused there was nothing to link the appellant with said convicted accused.\n The call data reports also did not indicate that around the time when co- accused were apprehended, the appellant was in touch with either of them.\n 7. For the present purposes, we will proceed on the footing that the statements of co-accused were recorded under and in terms of Section 67 of the NDPS Act. As regards such statements, a bench of two Judges of this Court after referring to and relying upon the earlier Judgments, observed in Kanhaiyalal v. Union of India1, as under: \"45. Considering the provisions of Section 67 of the NDPS Act and the views expressed by this Court in Raj Kumar Karwal case2 with which we agree, that an officer vested with the powers of an officer in charge of a police station under Section 53 of the above Act is not a \"police officer\" within the meaning of Section 25 of the Evidence Act, it is clear that a statement made under Section 67 of the NDPS Act is not the same as a statement made under Section 161 of the 1 (2008) 4 SCC 668 2 (1990) 2 SCC 409 Code, unless made under threat or coercion. It is this vital difference, which allows a statement made under Section 67 of the NDPS Act to be used as a confession against the person making it and excludes it from the operation of Sections 24 to 27 of the Evidence Act.\"\n 8. Later, another bench of two Judges of this Court in Tofan Singh v.\n State of Tamil Nadu3 was of the view that the matter required reconsideration and therefore, directed that the matter be placed before a larger bench. It was observed in Tofan Singh (supra) as under: \"40. In our view the aforesaid discussion necessitates a re-look into the ratio of Kanhaiyalal case. It is more so when this Court has already doubted the dicta in Kanhaiyalal in Nirmal Singh Pehlwan4 wherein after noticing both Kanhaiyalal as well as Noor Aga5, this Court observed thus: (Nirmal Singh Pehlwan case, SCC p. 302, para 15) \"15. We also see that the Division Bench in Kanhaiyalal case had not examined the principles and the concepts underlying Section 25 of the Evidence Act, 1872 vis--vis Section 108 of the Customs Act and the powers of a Customs Officer who could investigate and bring for trial an accused in a narcotic matter. The said case relied exclusively on the judgment in Raj Kumar case. The latest judgment in point of time is Noor Aga case which has dealt very elaborately with this matter. We thus feel it would be proper for us to follow the ratio of the judgment in Noor Aga case particularly as the provisions of Section 50 of the Act which are mandatory have also not been complied with.\"\n 3 (2013) 16 SCC 31 4 (2011) 12 SCC 298 5 (2008) 16 SCC 417 41. For the aforesaid reasons, we are of the view that the matter needs to be referred to a larger Bench for reconsideration of the issue as to whether the officer investigating the matter under the NDPS Act would qualify as police officer or not.\n 42. In this context, the other related issue viz. whether the statement recorded by the investigating officer under Section 67 of the Act can be treated as confessional statement or not, even if the officer is not treated as police officer also needs to be referred to the larger Bench, inasmuch as it is intermixed with a facet of the 1st issue as to whether such a statement is to be treated as statement under Section 161 of the Code or it partakes the character of statement under Section 164 of the Code.\"\n 9. Thus the issue whether statement recorded under Section 67 of the NDPS Act can be construed as a confessional statement even if the officer who recorded such statement was not to be treated as a police officer, has now been referred to a larger Bench.\n 10. Even if we are to proceed on the premise that such statement under Section 67 of the NDPS Act may amount to confession, in our view, certain additional features must be established before such a confessional statement could be relied upon against a co-accused. It is noteworthy that unlike Section 15 of Terrorist and Disruptive Activities Act, 19876 which specifically makes confession of a co-accused admissible against other accused in certain eventualities; there is no such similar or identical provision in the NDPS Act making such confession admissible against a co- 6 Similarly: Section 18 of Maharashtra Control of Organised Crime Act, 1999 accused. The matter therefore has to be seen in the light of the law laid down by this Court as regards general application of a confession of a co- accused as against other accused.\n 11. In Kashmira Singh v. State of Madhya Pradesh7, this Court relied upon the decision of the Privy Council in Bhuboni Sahu v. The King8 and laid down as under: \"Gurubachan's confession has played an important part in implicating the appellant, and the question at once arises, how far and in what way the confession of an accused person can be used against a co-accused? It is evident that it is not evidence in the ordinary sense of the term because, as the Privy Council say in Bhuboni Sahu v. The King \"It does not indeed come within the definition of\" 'evidence' contained in section 3 of the Evidence Act., It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross- examination.\" Their Lordships also point out that it is \"obviously evidence of a very weak type......... It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities.\"\n They stated in addition that such a confession cannot be made tile foundation of a conviction and can only be used in \"support of other evidence.\" In view of these remarks it would be pointless to cover the same ground, but we feel it is necessary to expound this further as misapprehension still exists. The question is, in what way can it be used in support of other evidence? Can it be used to fill in missing gaps? Can it be used to corroborate an accomplice or, as in the present case, a witness who, though not an accomplice, is placed in the same category regarding credibility because the judge refuses to believe him except in so far as he is corroborated ?\n 7 (1952) SCR 526 8 (1949) 76 Indian Appeal 147 at 155 In our opinion, the matter was put succinctly by Sir 'Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbutty9 where he said that such a confession can only be used to \"lend assurance to other evidence against a co-accused \"or, to put it in another way, as Reilly J. did in In re Periyaswami Moopan10 \"the provision goes no further than this--where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession de- scribed in section 30 may be thrown into the scale as an additional reason for believing that evidence.\"\n Translating these observations into concrete terms they come to this. The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.\"\n 12. The law laid down in Kashmira Singh (supra) was approved by a Constitution Bench of this Court in Hari Charan Kurmi and Jogia Hajam v. State of Bihar11 wherein it was observed: \"As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, 9 [1911] I.L.R. 38 CAl. 559 at 588 10 [1931] I.L.R. 54 Mad. 75 at 77.\n11 (1964) 6 SCR 623 at 631-633 the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerburty a confession can only be used to \"lend assurance to other evidence against a co-accused\". In re Periyaswami Moopan Reilly. J., observed that the provision of Section 30 goes not further than this: \"where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence\". In Bhuboni Sahu v. King the Privy Council has expressed the same view. Sir John Beaumont who spoke for the Board, observed that \"a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of \"evidence\" contained in Section 3 of the Evidence Act.\nIt is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof.\nClearly there must be other evidence. The confession is only one element in the consideration of all the facts proved the case; it can be put into the scale and weighed with the other evidence\". It would be noticed that as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by Section 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in Section 30. The same view has been expressed by this Court in Kashmira Singh v.\n State of Madhya Pradesh where the decision of the Privy Council in Bhuboni Sahu case has been cited with approval.\"\n 13. The law so laid down has always been followed by this Court except in cases where there is a specific provision in law making such confession of a co-accused admissible against another accused.12 14. In the present case it is accepted that apart from the aforesaid statements of co-accused there is no material suggesting involvement of the appellant in the crime in question. We are thus left with only one piece of material that is the confessional statements of the co-accused as stated above. On the touchstone of law laid down by this Court such a confessional statement of a co-accused cannot by itself be taken as a substantive piece of evidence against another co-accused and can at best be used or utilized in order to lend assurance to the Court. In the absence of any substantive evidence it would be inappropriate to base the conviction of the appellant purely on the statements of co-accused. The appellant is therefore entitled to be acquitted of the charges leveled against him. We, therefore, accept this appeal, set aside the orders of conviction and sentence 12 For example: State vs. Nalini, (1999) 5 SCC 253, paras 424 and 704 and acquit the appellant. The appellant shall be released forthwith unless his custody is required in connection with any other offence.\n ..............................J.\n (Abhay Manohar Sapre) ..............................J.\n (Uday Umesh Lalit) New Delhi, July 31, 2018 "
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"text": "Criminal Appeal no. 358 of 1999 is filed by the State challenging the judgment and order of acquittal passed by the Additional Sessions Judge, Biloli, Dist. Nanded in Sessions Case no.61 of 1996, thereby acquitting the respondent nos.1 to 13 i.e. original accused nos. 1 to 13 for the offences punishable under Sections 148, 307 read with section 149, Section 337 read with section 149, Section 323 read with section 149 of Indian Penal Code (for short \"I.P.C.\") and Section 37(1) read with section 135 of the Bombay Police Act."
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"text": "\n Criminal Appeal No. 337 of 1999 is filed by original accused nos.1 Kondiba S/o Gunda Aswale, accused no.4 Pundlik S/o Kondiba Aswale, accused no.6 Shivaji S/o Bhimrao Patil, accused no.7 Tanaji S/o Ramchandra Patil and accused no.9 Vijay S/o Ramchandra Patil, challenging the judgment and order dated 7th August, 1999, passed by the Additional Sessions Judge, Biloli, District Nanded in Sessions Case No.61 of 1996, thereby convicting them for the offences punishable under Sections 143, 147, 325 read with section 149 of I.P.C.\n 2. The prosecution case in nutshell, is as under:"
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"text": "A) Informant Sopanrao (PW1) resides with his wife Inderbai (PW2), daughter Rukminibai (PW3) and two sons, namely, Dhanaji (PW4) and Pundlik (PW5) at village Yedur."
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"text": "All accused nos. 1 to 13 are also residing at village Yedur where an informant is residing."
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"text": "On the previous day of incident, the quarrel took place in between the informant's daughter Rukmini and one woman i.e. relative of accused no.1 Kondiba, at the river side, and therefore, informant Sopanrao had accosted the aforesaid woman, who is relative of accused no.1 Kondiba."
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"text": "\n B) On the next day of the aforesaid quarrel i.e. on 27th December, 1993 at 8:00 a.m., the informant came out side his house and proceeded to his field."
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"text": "At that time, accused no.1 Kondiba pelted one stone, which hit on head of informant Sopanrao."
}
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"text": "The accused no.1 asked the informant as to why he quarreled with the woman, who is his relative."
}
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"text": "Thereupon, accused no.1 Kondiba asked other persons to beat the informant."
}
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],
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"text": "Accused no.6 Shivaji Bhimrao Patil and accused no.7 Tanaji Ramchandra Patil, thereupon beat informant Sopanrao by means of an iron pipes on his legs, head, stomach and back, and therefore, the informant fell down."
}
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],
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"text": "Rest of the accused assaulted informant Sopanrao by means of stones, iron pipes and sticks."
}
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{
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"id": "b34d04b26dd8435db35db7c0d6293d29",
"to_name": "text",
"type": "labels",
"value": {
"end": 5049,
"labels": [
"FAC"
],
"start": 4967,
"text": "Informant Sopanrao sustained bleeding injuries on his different parts of the body."
}
},
{
"from_name": "label",
"id": "6858c3a6346d440a9daab2c8269ec132",
"to_name": "text",
"type": "labels",
"value": {
"end": 5207,
"labels": [
"FAC"
],
"start": 5050,
"text": "The informant's wife, daughter and two sons on receiving information of the said incident, rushed to the place of incident and tried to rescue the informant."
}
},
{
"from_name": "label",
"id": "3bd0d27901b64d0485e8fe7d79488ded",
"to_name": "text",
"type": "labels",
"value": {
"end": 5309,
"labels": [
"FAC"
],
"start": 5208,
"text": "At that time, the accused persons also assaulted the informant's wife (PW2) and two sons PW4 and PW5."
}
},
{
"from_name": "label",
"id": "fad46500f2504c53a73dcec19834df3b",
"to_name": "text",
"type": "labels",
"value": {
"end": 5448,
"labels": [
"FAC"
],
"start": 5310,
"text": "The other persons of the village, namely Bhaurao, Shamrao, Laxman, Vithal, Gyanoba and Arjun Malgonda intervened and pacified the quarrel."
}
},
{
"from_name": "label",
"id": "9f268c0c1f16435e89dd55ba95655ab0",
"to_name": "text",
"type": "labels",
"value": {
"end": 5591,
"labels": [
"FAC"
],
"start": 5450,
"text": "C) Informant Sopanrao was thereafter taken to the Police Station, Markhel and he lodged a report (Exh.31) on 27th December, 1993 at 2 p.m.\n "
}
},
{
"from_name": "label",
"id": "c727a33675284119b7221d0d42f20a2b",
"to_name": "text",
"type": "labels",
"value": {
"end": 5698,
"labels": [
"FAC"
],
"start": 5591,
"text": "On the basis of the said report, the crime was registered at Police Station, Markhel."
}
},
{
"from_name": "label",
"id": "6093a1785bde485682228e57c2f0d121",
"to_name": "text",
"type": "labels",
"value": {
"end": 5790,
"labels": [
"FAC"
],
"start": 5698,
"text": "\n Thereafter, the informant was referred to Civil Hospital at Degloor for medical treatment."
}
},
{
"from_name": "label",
"id": "ccdf11b7cc644d2d94e5919520966c83",
"to_name": "text",
"type": "labels",
"value": {
"end": 5909,
"labels": [
"FAC"
],
"start": 5791,
"text": "The informant's wife (PW2) and two sons (PW4) and (PW5) were also referred to the same Hospital for medical treatment."
}
},
{
"from_name": "label",
"id": "638b5dc4201a40ab8ee777ad6aa8e698",
"to_name": "text",
"type": "labels",
"value": {
"end": 6058,
"labels": [
"FAC"
],
"start": 5910,
"text": "Dr. Venakt Malshetwar (PW10) examined the aforesaid persons and he found in all 10 injuries over different parts of the body of informant Sopanrao."
}
},
{
"from_name": "label",
"id": "dc82a7a7c09e4beb9188cecc35d6ca17",
"to_name": "text",
"type": "labels",
"value": {
"end": 6173,
"labels": [
"FAC"
],
"start": 6059,
"text": "He also found fracture to the lower end of the left femur with swelling over left knee joint of informantSopanrao."
}
},
{
"from_name": "label",
"id": "03159b608e95486391b663d681deb3ee",
"to_name": "text",
"type": "labels",
"value": {
"end": 6259,
"labels": [
"FAC"
],
"start": 6174,
"text": "He thereafter referred the informant to Civil Hospital, Nanded for further treatment."
}
},
{
"from_name": "label",
"id": "25453bdc897e415990503313efe678ae",
"to_name": "text",
"type": "labels",
"value": {
"end": 6349,
"labels": [
"FAC"
],
"start": 6260,
"text": "He also found injuries over different parts of the body of informant's wife and two sons."
}
},
{
"from_name": "label",
"id": "6a04fb89d03949c7891798fcaaf281c9",
"to_name": "text",
"type": "labels",
"value": {
"end": 6465,
"labels": [
"FAC"
],
"start": 6350,
"text": "He accordingly issued certificate (Exh. Nos. 63 to 66) in respect of the informant and the aforesaid three persons."
}
},
{
"from_name": "label",
"id": "1c7da7d259684808bd33ce2b8e5c3db0",
"to_name": "text",
"type": "labels",
"value": {
"end": 6560,
"labels": [
"FAC"
],
"start": 6465,
"text": "\n He received Xray plates, as regard the fracture found by him over the femur of the informant."
}
},
{
"from_name": "label",
"id": "2b6a046d077546f89e22823181307590",
"to_name": "text",
"type": "labels",
"value": {
"end": 6685,
"labels": [
"FAC"
],
"start": 6561,
"text": "On examination of that Xray plate, he found that, there was a fracture of the lower end of left femur of informant Sopanrao."
}
},
{
"from_name": "label",
"id": "2ea4350387744146b9232d7ff58cbee7",
"to_name": "text",
"type": "labels",
"value": {
"end": 6763,
"labels": [
"FAC"
],
"start": 6686,
"text": "He accordingly issued second certificate Exh.67 as regard to the said injury."
}
},
{
"from_name": "label",
"id": "1b1f2416aa0a463581c95636132c3c62",
"to_name": "text",
"type": "labels",
"value": {
"end": 7028,
"labels": [
"FAC"
],
"start": 6765,
"text": "D) Mirza Rahamutula Baig, the Police Sub Inspector (PW11) prepared spot panchnama Exh. 49, seized the blood stained clothes of informant Sopanrao, arrested the accused and seized weapons used by them, namely sticks and pipes in commission of the aforesaid crime."
}
},
{
"from_name": "label",
"id": "ac6911842e8b4a6eb43ffc5cddde8979",
"to_name": "text",
"type": "labels",
"value": {
"end": 7113,
"labels": [
"FAC"
],
"start": 7029,
"text": " He also prepared seizure panchnama in respect of seizure of the cloths and weapons."
}
},
{
"from_name": "label",
"id": "c6c0052777f848b9b9620b3aa458b0f0",
"to_name": "text",
"type": "labels",
"value": {
"end": 7209,
"labels": [
"FAC"
],
"start": 7114,
"text": "He also recorded statements of other witnesses from 27th December, 1993 to 29th December, 1993."
}
},
{
"from_name": "label",
"id": "47ddc3d0d272479db5d1b581e55f3dd9",
"to_name": "text",
"type": "labels",
"value": {
"end": 7516,
"labels": [
"FAC"
],
"start": 7210,
"text": "He on completion of an investigation filed charge sheet against accused nos. 1 to 13 for the offences punishable under sections 143, 147, 148, 337, 325, 323 r/w Section 149 of I.P.C. and under section 37(1) r/w Section 135 of the Bombay Police Act in the Court of Judicial Magistrate, First Class, Degloor."
}
},
{
"from_name": "label",
"id": "7be99003107b4eb9b3784e098ca847ee",
"to_name": "text",
"type": "labels",
"value": {
"end": 7765,
"labels": [
"FAC"
],
"start": 7518,
"text": "E) Thereafter, the application (Exh.81) was made by the A.P.P. before Judicial Magistrate, First Class, Degloor for addition of offence punishable under Section 307 of I.P.C. in the charge sheet and for committal of case to the Court of Sessions."
}
},
{
"from_name": "label",
"id": "3b228c3580094a96a4a96748a72f3f3d",
"to_name": "text",
"type": "labels",
"value": {
"end": 7842,
"labels": [
"FAC"
],
"start": 7766,
"text": "The Judicial Magistrate, First Class, Degloor rejected the said application."
}
},
{
"from_name": "label",
"id": "5c86586c22d44cfe82479f3157cc3232",
"to_name": "text",
"type": "labels",
"value": {
"end": 8258,
"labels": [
"FAC"
],
"start": 7842,
"text": "\n However, a revision petition No.32 of 1995 filed by the learned APP against the rejection of the said application, came to be allowed by the High Court on 8th May, 1996, and the High Court directed in the said revision petition that the offence under Section 307 of I.P.C. be added in the charge sheet, and the Magistrate shall proceed with the case in accordance with the provisions of Code of Criminal Procedure."
}
},
{
"from_name": "label",
"id": "671e85b4979a469fa9f727f08a11e8f7",
"to_name": "text",
"type": "labels",
"value": {
"end": 8324,
"labels": [
"FAC"
],
"start": 8259,
"text": "Accordingly, section 307 of I.P.C. was added in the charge sheet."
}
},
{
"from_name": "label",
"id": "8872a29abda14bb798a2382f02826609",
"to_name": "text",
"type": "labels",
"value": {
"end": 8477,
"labels": [
"FAC"
],
"start": 8325,
"text": "As the case was exclusively triable by the Court of Sessions, the Judicial Magistrate, First Class, Degloor committed the case to the Court of Sessions."
}
},
{
"from_name": "label",
"id": "11a388c27f8049dc89a81ddbd380be87",
"to_name": "text",
"type": "labels",
"value": {
"end": 8801,
"labels": [
"FAC"
],
"start": 8477,
"text": "\n F) The Sessions Court framed charge at Exh.13 against accused nos. 1 to 13 for the offences punishable under sections 143, 147, 148, 307 read with section 149 I.P.C., section 337 read with section 149 of I.P.C., section 323 read with section 149 of I.P.C. and under Section 37(1) r/w Section 135 of the Bombay Police Act."
}
},
{
"from_name": "label",
"id": "d2b370cb05814eb1be32fc7467fdb02b",
"to_name": "text",
"type": "labels",
"value": {
"end": 8938,
"labels": [
"FAC"
],
"start": 8802,
"text": "The charges were read over and explained to each of the accused in vernacular, to which they pleaded not guilty and claimed to be tried."
}
},
{
"from_name": "label",
"id": "b28d8b9885fd4770a44fa801779f67e9",
"to_name": "text",
"type": "labels",
"value": {
"end": 8985,
"labels": [
"FAC"
],
"start": 8939,
"text": "The defence of the accused is of total denial."
}
},
{
"from_name": "label",
"id": "0348b86038fd46a4ab41ee017b696bd3",
"to_name": "text",
"type": "labels",
"value": {
"end": 8991,
"labels": [
"FAC"
],
"start": 8985,
"text": "\n G) "
}
},
{
"from_name": "label",
"id": "3a475fa9d8e54e109585478d209fbd13",
"to_name": "text",
"type": "labels",
"value": {
"end": 9523,
"labels": [
"FAC"
],
"start": 8991,
"text": "The statements of the accused persons under Section 313 of the Code of Criminal Procedure were also recorded and the suggestions were given by the defense counsel to informant Sopanrao during the cross examination and the defence of the accused was that informant Sopanraro and his family members were proceeding on a Bullock Cart, and at that time, the said Bullock Cart was overturned, and the informant and his family members sustained injuries, however, the false case is filed against them due to politics in the village.\n 3. "
}
},
{
"from_name": "label",
"id": "40e8368819bf4e378a388553fb2bf85d",
"to_name": "text",
"type": "labels",
"value": {
"end": 9730,
"labels": [
"FAC"
],
"start": 9523,
"text": "After recording the evidence and conducting full fledged trial, the trial Court convicted accused nos.1, 4, 6, 7 and 9 for the offences punishable under sections 143, 147, 325 read with section 149 of I.P.C."
}
},
{
"from_name": "label",
"id": "726a4bb3072b462eb0650646abdc87ad",
"to_name": "text",
"type": "labels",
"value": {
"end": 10005,
"labels": [
"RLC"
],
"start": 9731,
"text": "The trial Court then acquitted all the accused persons for the offences punishable under sections 148, 307 read section 149, section 337 read with section 149, section 323 read with section 149 of the I.P.C.\n And section 37(1) read with section 135 of the Bombay Police Act."
}
},
{
"from_name": "label",
"id": "be6d9d09c88e447489834493261752c4",
"to_name": "text",
"type": "labels",
"value": {
"end": 10145,
"labels": [
"STA"
],
"start": 10006,
"text": "So also the trial Court acquitted accused nos. 2, 3, 5, 8 and 10 to 13 for the offences punishable under sections 143 and 147 of the I.P.C."
}
},
{
"from_name": "label",
"id": "7459c4f3aaff4e79babb45ed991904a3",
"to_name": "text",
"type": "labels",
"value": {
"end": 10381,
"labels": [
"STA"
],
"start": 10146,
"text": "Hence Criminal Appeal No. 358 of 1999 is filed by the State against the judgment and order of acquittal and Criminal Appeal No.337/1999 is filed by the original accused nos.1, 4, 6, 7 and 9 against the judgment and order of conviction."
}
},
{
"from_name": "label",
"id": "8bcbf645d1f34cb1bd8dfcd24c566f97",
"to_name": "text",
"type": "labels",
"value": {
"end": 11039,
"labels": [
"ANALYSIS"
],
"start": 10383,
"text": "4. While arguing the appeal filed by the State, the learned A.P.P. appearing for the State submits that, keeping in view the injuries sustained by informant Sopanrao and also the evidence of the prosecution witnesses, the trial Court ought to have convicted the accused for the offence punishable under section 307 read with section 34 of the I.P.C. He submits that, out of 13 accused, who were tried by the trial Court, the trial Court acquitted some of the accused, without appreciating the prosecution case that, there are overwhelming evidence of eye witnesses, which gets corroboration from the medical evidence and also recovery of pipes and sticks."
}
},
{
"from_name": "label",
"id": "0d60ddf7ff614d47ad95c70329db0d57",
"to_name": "text",
"type": "labels",
"value": {
"end": 11121,
"labels": [
"ANALYSIS"
],
"start": 11040,
"text": "Therefore, he submits that, the appeal filed by the State deserves to be allowed."
}
},
{
"from_name": "label",
"id": "3e24719ccd3d482586ffec34721913ce",
"to_name": "text",
"type": "labels",
"value": {
"end": 11369,
"labels": [
"ANALYSIS"
],
"start": 11121,
"text": "\n On the other hand, the learned counsel appearing for the original accused invites our attention to the evidence of the prosecution witnesses and submits that, the evidence of the prosecution witnesses suffers from contradictions and improvements."
}
},
{
"from_name": "label",
"id": "08a45ec8e1b547848e3a7684ce8194c0",
"to_name": "text",
"type": "labels",
"value": {
"end": 11547,
"labels": [
"ANALYSIS"
],
"start": 11370,
"text": "It is submitted that, the medical evidence clearly demonstrates that, an alleged incident has not taken place at one time and it appears that, there are more than one incidents."
}
},
{
"from_name": "label",
"id": "0058f4247b13458185496626610c90f9",
"to_name": "text",
"type": "labels",
"value": {
"end": 11754,
"labels": [
"ANALYSIS"
],
"start": 11548,
"text": "It is further submitted that, it is the case of the prosecution that, there were number of persons gathered at the spot and in that background, it was not possible for the witnesses to identify the accused."
}
},
{
"from_name": "label",
"id": "0f572261096a4c3e81ad40c2c520e009",
"to_name": "text",
"type": "labels",
"value": {
"end": 11805,
"labels": [
"ANALYSIS"
],
"start": 11755,
"text": "In such a mob, there can be a mistake in identity."
}
},
{
"from_name": "label",
"id": "b0f66909323644f8baf14409d47ac2bc",
"to_name": "text",
"type": "labels",
"value": {
"end": 12054,
"labels": [
"ANALYSIS"
],
"start": 11806,
"text": "An overt act attributed qua each of the accused and also an alleged injuries sustained by Sopanrao and other witnesses do not disclose any grievous injuries, which is sufficient in ordinary course to cause death of Sopanrao and any other witnesses."
}
},
{
"from_name": "label",
"id": "20d3b49b8eb8404885324806e81bc490",
"to_name": "text",
"type": "labels",
"value": {
"end": 12276,
"labels": [
"ANALYSIS"
],
"start": 12055,
"text": "It is submitted that, the trial Court, after taking into consideration the entire evidence on record, has extended the benefit of doubt and acquitted them for an offence punishable under section 307 read with 34 of I.P.C."
}
},
{
"from_name": "label",
"id": "33884dc4911542769ed87c72c54c96af",
"to_name": "text",
"type": "labels",
"value": {
"end": 12413,
"labels": [
"ANALYSIS"
],
"start": 12277,
"text": "It is submitted that, in first place, an alleged incident had never taken place and the witnesses have suffered injuries in an accident."
}
},
{
"from_name": "label",
"id": "c87e50a6376b46d88ed11b2f277cbdea",
"to_name": "text",
"type": "labels",
"value": {
"end": 12798,
"labels": [
"ANALYSIS"
],
"start": 12414,
"text": "Secondly, even if, without admitting but assuming that, such incident had taken place, keeping in view the number of persons gathered at the spot of incident and an alleged weapons used by the accused, there is every possibility of mistake in identity by the prosecution witnesses, and therefore, in such a situation the benefit of doubt deserves to be given in favour of the accused."
}
},
{
"from_name": "label",
"id": "a285560b80dd4e7ca95644ef4027e6e4",
"to_name": "text",
"type": "labels",
"value": {
"end": 13094,
"labels": [
"ANALYSIS"
],
"start": 12799,
"text": "It is submitted that, after proper scrutiny of the evidence, the trial Court has taken a plausible view and acquitted 8 accused from all the charges levelled against them and in fact the said benefit ought to have been extended even in favour of the appellants in Criminal Appeal no.337 of 1999."
}
},
{
"from_name": "label",
"id": "48a301850d26435bb2d6c9361bde68db",
"to_name": "text",
"type": "labels",
"value": {
"end": 13260,
"labels": [
"ANALYSIS"
],
"start": 13095,
"text": "The seizure of the alleged weapons is made after 3 months and 11 days of the incident, therefore, it create doubt in the prosecution case of seizure of such weapons."
}
},
{
"from_name": "label",
"id": "e475f931d2f7413db779d1527bfa4735",
"to_name": "text",
"type": "labels",
"value": {
"end": 13457,
"labels": [
"ANALYSIS"
],
"start": 13260,
"text": "\nSopanrao (PW1) has never stated in his evidence that, the injuries are caused in the said incident, and his mere contention is that, the accused assaulted him by means of sticks, stones and pipes."
}
},
{
"from_name": "label",
"id": "2106dbdfbf014850beaf5b575baff034",
"to_name": "text",
"type": "labels",
"value": {
"end": 13565,
"labels": [
"ANALYSIS"
],
"start": 13458,
"text": "There are discrepancies as regards the age of the injuries, which are brought on record by the prosecution."
}
},
{
"from_name": "label",
"id": "4afc3c7e91154b41a382347e6a2a4c4f",
"to_name": "text",
"type": "labels",
"value": {
"end": 13690,
"labels": [
"ANALYSIS"
],
"start": 13566,
"text": "Wheel marks of the bullock cart were appearing over the body of Sopanrao, and therefore, the said supports the defence plea."
}
},
{
"from_name": "label",
"id": "e73ebe2366144a85a3f531bcda7b78a3",
"to_name": "text",
"type": "labels",
"value": {
"end": 13860,
"labels": [
"ANALYSIS"
],
"start": 13691,
"text": "The reasonings and findings given by the trial Court are not based on the evidence of the prosecution witnesses and those are contrary to the evidence brought on record."
}
},
{
"from_name": "label",
"id": "e6a640a0e9074da2868fbe71cbbb289f",
"to_name": "text",
"type": "labels",
"value": {
"end": 14001,
"labels": [
"ANALYSIS"
],
"start": 13861,
"text": "The prosecution examined only interested witnesses and left out independent witnesses, who could have thrown the light on the real incident."
}
},
{
"from_name": "label",
"id": "e3868990f6ce40aabece204411e7f7ab",
"to_name": "text",
"type": "labels",
"value": {
"end": 14063,
"labels": [
"ANALYSIS"
],
"start": 14002,
"text": "The ocular evidence is not supported by the medical evidence."
}
},
{
"from_name": "label",
"id": "d023f9b9bf4f4144805a4ffe20bdfe84",
"to_name": "text",
"type": "labels",
"value": {
"end": 14220,
"labels": [
"ANALYSIS"
],
"start": 14064,
"text": "There is no specific role attributed to the appellants original accused in Criminal appeal no. 337 of 1999 by the informant in the first information report."
}
},
{
"from_name": "label",
"id": "747ef96ebd794742939aa491ae49b7ae",
"to_name": "text",
"type": "labels",
"value": {
"end": 14352,
"labels": [
"ANALYSIS"
],
"start": 14221,
"text": "It is submitted that, belatedly the supplementary statement of Sopanrao was recorded and he falsely implicated some of the accused."
}
},
{
"from_name": "label",
"id": "9709b74ba44547e4a6d5b93422fe1297",
"to_name": "text",
"type": "labels",
"value": {
"end": 14509,
"labels": [
"ANALYSIS"
],
"start": 14353,
"text": "The sum and substance of the arguments of the learned counsel appearing for the accused is that, in first place, the incident as alleged had never happened."
}
},
{
"from_name": "label",
"id": "a7f89004034049e1bc30bc3e0354fda0",
"to_name": "text",
"type": "labels",
"value": {
"end": 14586,
"labels": [
"ANALYSIS"
],
"start": 14510,
"text": "Secondly, the prosecution has tried to suppress the genesis of the incident."
}
},
{
"from_name": "label",
"id": "c670d917872e4cfeaaf54cdfd6942873",
"to_name": "text",
"type": "labels",
"value": {
"end": 14693,
"labels": [
"ANALYSIS"
],
"start": 14587,
"text": "In support of said contentions, he placed reliance in the case of State of M.P. V/s Mishrilal and others1."
}
},
{
"from_name": "label",
"id": "213b0ad7d6b64abfa721724ff581d7d9",
"to_name": "text",
"type": "labels",
"value": {
"end": 14829,
"labels": [
"ANALYSIS"
],
"start": 14694,
"text": "It is the case of the prosecution that, informant Sopanrao and other prosecution witnesses have sustained the injuries in an accident."
}
},
{
"from_name": "label",
"id": "82e8e1f6ab234ec5b3924976f5520fe6",
"to_name": "text",
"type": "labels",
"value": {
"end": 15030,
"labels": [
"ANALYSIS"
],
"start": 14830,
"text": "Without admitting but assuming that, the incident had taken place, the medical report, and in particular, the age of the injuries clearly shows 1 2015 1 JLJ 153 that, there was more than one incident."
}
},
{
"from_name": "label",
"id": "f33e5aa04aed4246b6c6dce3c928fee6",
"to_name": "text",
"type": "labels",
"value": {
"end": 15098,
"labels": [
"ANALYSIS"
],
"start": 15031,
"text": "However, the prosecution has suppressed the other incident, if any."
}
},
{
"from_name": "label",
"id": "443ff01fdce444b68817a284eb3d5898",
"to_name": "text",
"type": "labels",
"value": {
"end": 15308,
"labels": [
"ANALYSIS"
],
"start": 15099,
"text": "It is submitted that, there was no motive or intention to assault Sopanrao and other prosecution witnesses, as it is apparent from the prosecution case that, the accused were not possessing any deadly weapons."
}
},
{
"from_name": "label",
"id": "138059f6055643e9af6b9189aca5e1ef",
"to_name": "text",
"type": "labels",
"value": {
"end": 15482,
"labels": [
"ANALYSIS"
],
"start": 15309,
"text": "In support of aforesaid contentions learned counsel pressed into service an exposition of law in the case of Krishnegowda and ors V/s State of Karnataka by Arkalgud Police2."
}
},
{
"from_name": "label",
"id": "ac4ff9f7dcc04529ae35bc4f8f81b3d1",
"to_name": "text",
"type": "labels",
"value": {
"end": 15708,
"labels": [
"ANALYSIS"
],
"start": 15483,
"text": "Therefore, relying upon the grounds taken in the appeal memo, the learned counsel submits that, the incident had taken place 20 years back, and therefore, the benefit of doubt deserves to be extended in favour of the accused."
}
},
{
"from_name": "label",
"id": "e3922c359c394d33804cb5be2c6689a6",
"to_name": "text",
"type": "labels",
"value": {
"end": 15845,
"labels": [
"ANALYSIS"
],
"start": 15708,
"text": "\nHe submits that, the appeal filed by the appellants original accused may be allowed and the appeal filed by the State may be dismissed."
}
},
{
"from_name": "label",
"id": "5471e1c104994079acdd1a1347ea0b60",
"to_name": "text",
"type": "labels",
"value": {
"end": 16241,
"labels": [
"ANALYSIS"
],
"start": 15845,
"text": "\n Without prejudice to arguments already 2 2017 Supreme (SC) 289 advanced, by way of alternate submission, he argued that, in case this Court is not inclined to entertain the appeal filed by original accused, in that case, the benefit under the provisions of Probation of Offenders Act, 1958 may be extended in favour of them, since there are no previous criminal antecedents against the accused."
}
},
{
"from_name": "label",
"id": "1a8def6c48be47b98e632efa79ee2ac6",
"to_name": "text",
"type": "labels",
"value": {
"end": 16253,
"labels": [
"ANALYSIS"
],
"start": 16243,
"text": "5. "
}
},
{
"from_name": "label",
"id": "7378805019774b9390f6138bc4357cb0",
"to_name": "text",
"type": "labels",
"value": {
"end": 16547,
"labels": [
"ANALYSIS"
],
"start": 16253,
"text": "We have heard the learned A.P.P.\n appearing for the appellant/State in Criminal Appeal No.358/1999 and the learned counsel appearing for the appellants/original accused in Criminal Appeal No.337/1999 and the respondents/original accused in Criminal Appeal No.358/1999 at length."
}
},
{
"from_name": "label",
"id": "8f7eedbc3c974c4e95309740e55a8d09",
"to_name": "text",
"type": "labels",
"value": {
"end": 16659,
"labels": [
"ANALYSIS"
],
"start": 16548,
"text": "With their able assistance, we have carefully perused the entire evidence brought on record by the prosecution."
}
},
{
"from_name": "label",
"id": "5bfcde439bc24665a55024029e6571b8",
"to_name": "text",
"type": "labels",
"value": {
"end": 16671,
"labels": [
"FAC"
],
"start": 16661,
"text": "6. "
}
},
{
"from_name": "label",
"id": "35c12d92b12f41eeb30f00471fede74d",
"to_name": "text",
"type": "labels",
"value": {
"end": 16797,
"labels": [
"FAC"
],
"start": 16671,
"text": "It would be relevant to discuss the evidence of the prosecution witnesses, who claimed that, they have witnessed the incident."
}
},
{
"from_name": "label",
"id": "82ce95847ddd4f98b858625bb9b1a5cf",
"to_name": "text",
"type": "labels",
"value": {
"end": 16939,
"labels": [
"FAC"
],
"start": 16798,
"text": "Sopanrao Vithalrao Sherekar in his deposition stated that, Kondiba Gunda (accused no.1) pelted stone on his back, which caused injury to him."
}
},
{
"from_name": "label",
"id": "8ce87755a5834af3857f54e61d9a1733",
"to_name": "text",
"type": "labels",
"value": {
"end": 17420,
"labels": [
"FAC"
],
"start": 16940,
"text": "He further stated that, Gopal (accused no.2) gave blow with pipe on his chest, Pundlik (accused no.4) gave pipe blow on his left thigh, Vithal (accused no.5) gave blow of pipe on his waist, Shivaji (accused no.6) pelted stone on his left knee joint and also hit stone on his right shoulder, Tanaji (accused no.7) hit water pipe on his head, Gopal (accused no.8) hit with pipe on left side of his back and gave blow on his neck and Vijay (accused no.9) gave pipe blow on his chest."
}
},
{
"from_name": "label",
"id": "db45b18d93a94ee3b7ce8fe2f0eea9db",
"to_name": "text",
"type": "labels",
"value": {
"end": 17674,
"labels": [
"FAC"
],
"start": 17421,
"text": "He further stated that, Anant (accused no.10) gave pipe blow on his back, Mohan (accused no.11) beat with stick on left side ribs, Kondiba Mohan (accused no.12) beat him with stick on right thigh and Bhagwan (accused no.13) hit stone on his right wrist."
}
},
{
"from_name": "label",
"id": "07aec83d98134554ae4cfbfed3ab4c53",
"to_name": "text",
"type": "labels",
"value": {
"end": 17852,
"labels": [
"FAC"
],
"start": 17675,
"text": "So far role and overt act attributed to Kondiba Gunda by Sopanrao (PW1) is concerned, it gets corroboration from the evidence of Inderbai (PW2), Dhanaji (PW4) and Pundlik (PW5)."
}
},
{
"from_name": "label",
"id": "22cbbe4a05cc446e9df75cdd9f8baf6f",
"to_name": "text",
"type": "labels",
"value": {
"end": 18031,
"labels": [
"FAC"
],
"start": 17853,
"text": "So far role played and overt act attributed to Pundlik by Sopanrao (PW1) is concerned, it gets corroboration from the evidence of Inderbai (PW2), Dhanaji (PW4) and Pundlik (PW5)."
}
},
{
"from_name": "label",
"id": "2e1720f531764765aa80822d073161f8",
"to_name": "text",
"type": "labels",
"value": {
"end": 18210,
"labels": [
"FAC"
],
"start": 18032,
"text": "So far role played and overt act attributed to Shivaji by Sopanrao (PW1) is concerned, it gets corroboration from the evidence of Inderbai (PW2), Dhanaji (PW4) and Pundlik (PW5)."
}
},
{
"from_name": "label",
"id": "eec502886146464e943659386e8ac2a9",
"to_name": "text",
"type": "labels",
"value": {
"end": 18388,
"labels": [
"FAC"
],
"start": 18211,
"text": "So far role played and overt act attributed to Tanaji by Sopanrao (PW1) is concerned, it gets corroboration from the evidence of Inderbai (PW2), Dhanaji (PW4) and Pundlik (PW5)."
}
},
{
"from_name": "label",
"id": "1033acf0b47547dcb65c99baa5657bcb",
"to_name": "text",
"type": "labels",
"value": {
"end": 18565,
"labels": [
"FAC"
],
"start": 18389,
"text": "So far role played and overt act attributed to Vijay by Sopanrao (PW1) is concerned, it gets corroboration from the evidence of Inderbai (PW2), Dhanaji (PW4) and Pundlik (PW5)."
}
},
{
"from_name": "label",
"id": "f50ceb2e66d64d43ad99f83f3a4fc980",
"to_name": "text",
"type": "labels",
"value": {
"end": 18912,
"labels": [
"ANALYSIS"
],
"start": 18565,
"text": "\n 7. So far as the other accused are concerned, though Sopanrao (PW1) attributed overt acts qua each of them, in view of the omissions, contradictions and improvements in the evidence of other witnesses, there is no sufficient corroboration to his version, and therefore, the trial Court has rightly extended the benefit of doubt in their favour."
}
},
{
"from_name": "label",
"id": "6c770825716946fdb6c793f835901ff3",
"to_name": "text",
"type": "labels",
"value": {
"end": 19382,
"labels": [
"ANALYSIS"
],
"start": 18912,
"text": "\n 8. We have also carefully perused the evidence of Inderbai (PW2), Dhanaji (PW4) and Pundlik (PW5), and upon close scrutiny of their evidence, in our considered view the said evidence so far as accused no.1 Kondiba Gunda, accused no.4 Pundlik, accused no.6 Shivaji, accused no.7 Tanaji and accused no.9 Vijay for their conviction for the offences punishable under sections 143, 147, 325 read with section 149 of I.P.C. is concerned, the same deserves acceptance.\n "
}
},
{
"from_name": "label",
"id": "1cf5fd302632429b85b6ffecfcee1b2d",
"to_name": "text",
"type": "labels",
"value": {
"end": 19499,
"labels": [
"ANALYSIS"
],
"start": 19382,
"text": "The trial Court keeping in view the evidence of eye witnesses and medical evidence reached to the correct conclusion."
}
},
{
"from_name": "label",
"id": "16f5f2a4ce494f4c828f4aeef0dafa05",
"to_name": "text",
"type": "labels",
"value": {
"end": 19582,
"labels": [
"ANALYSIS"
],
"start": 19500,
"text": "In this respect, there is discussion in the impugned judgment in para no.68.\n 9. "
}
},
{
"from_name": "label",
"id": "020a127f34e94e128c2d18f76f3be484",
"to_name": "text",
"type": "labels",
"value": {
"end": 19852,
"labels": [
"ANALYSIS"
],
"start": 19582,
"text": "Upon perusal of the crossexamination of Sopanrao and other prosecution witnesses, we do not find any material discrepancies, improvements or omissions, which would nullify the substantive evidence of the eye witnesses, which gets corroboration from the medical evidence."
}
},
{
"from_name": "label",
"id": "a62b474feda942f8af6c148b28137fc3",
"to_name": "text",
"type": "labels",
"value": {
"end": 19955,
"labels": [
"ANALYSIS"
],
"start": 19852,
"text": "\n However, we find from the prelude of the incident that, the said incident arose on the trifle ground."
}
},
{
"from_name": "label",
"id": "f4734f872aa4412094bde54ece180c13",
"to_name": "text",
"type": "labels",
"value": {
"end": 20097,
"labels": [
"ANALYSIS"
],
"start": 19956,
"text": "Accused persons did not come prepared with an intention to cause grievous injuries on vital parts of Sopanrao or other prosecution witnesses."
}
},
{
"from_name": "label",
"id": "c247e68bb8d546329904f0e55060d085",
"to_name": "text",
"type": "labels",
"value": {
"end": 20314,
"labels": [
"ANALYSIS"
],
"start": 20098,
"text": "The medical evidence unequivocally indicates that, the injuries suffered by Sopanrao and other witnesses do not indicate that, the accused intended commission of murder of Sopanrao or any other prosecution witnesses."
}
},
{
"from_name": "label",
"id": "3e013ae502d4403798ff281f4a8f6490",
"to_name": "text",
"type": "labels",
"value": {
"end": 20646,
"labels": [
"ANALYSIS"
],
"start": 20315,
"text": "Therefore, in our considered opinion, the trial Court, after appreciation of the evidence in its proper perspective, has reached to the correct conclusion that, there cannot be conviction for the offence punishable under Section 307 read with 34 of I.P.C. In that view of the matter, the appeal filed by the State stands dismissed."
}
},
{
"from_name": "label",
"id": "939efe47757c40508431f57c81ae2a22",
"to_name": "text",
"type": "labels",
"value": {
"end": 20728,
"labels": [
"ANALYSIS"
],
"start": 20646,
"text": "\n 10. The conviction of the appellants in Appeal No.337 of 1999 stands confirmed."
}
},
{
"from_name": "label",
"id": "94e0c3a4dfb84965aac8e9fd8b5cf951",
"to_name": "text",
"type": "labels",
"value": {
"end": 21110,
"labels": [
"ANALYSIS"
],
"start": 20729,
"text": "However, so far sentencing part is concerned, we find considerable force in the arguments of the learned counsel appearing for the appellantsoriginal accused that, the incident had taken place on 27th December, 1993 i.e. 24 years back and there is no criminal antecedents to the credit of four accused i.e. appellants in appeal no.337 of 1999, who are convicted by the trial Court."
}
},
{
"from_name": "label",
"id": "35e7bd9772c14c59ae1200ac470f4dca",
"to_name": "text",
"type": "labels",
"value": {
"end": 21312,
"labels": [
"ANALYSIS"
],
"start": 21111,
"text": "Upon careful perusal of the impugned judgment, it appears that, there was prayer by the accused before the trial Court to extend benefit of provisions of the Probation of Offenders Act in their favour."
}
},
{
"from_name": "label",
"id": "f87eb7eb7e0b4f24a2f73122f321dab8",
"to_name": "text",
"type": "labels",
"value": {
"end": 21429,
"labels": [
"RLC"
],
"start": 21312,
"text": "\n However, the trial Court rejected the said prayer by assigning reasons in paras 70 and 71 of the impugned judgment."
}
},
{
"from_name": "label",
"id": "2a7d012bb0b64a648090af988f414183",
"to_name": "text",
"type": "labels",
"value": {
"end": 21483,
"labels": [
"RLC"
],
"start": 21430,
"text": "In our opinion, the said reasons are not sustainable."
}
},
{
"from_name": "label",
"id": "430bf90e24a24a5393c957b00745685c",
"to_name": "text",
"type": "labels",
"value": {
"end": 21632,
"labels": [
"RLC"
],
"start": 21484,
"text": "The provisions of sections 3 and 4 of the Probation of Offenders Act reads thus : \"3. Power of Court to release certain offenders after admonition.-"
}
},
{
"from_name": "label",
"id": "de3bc559225241eb8fde4e4300d5ec71",
"to_name": "text",
"type": "labels",
"value": {
"end": 22477,
"labels": [
"RLC"
],
"start": 21633,
"text": "When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4, release him after due admonition."
}
},
{
"from_name": "label",
"id": "137accc79105408ebe32ea9d78bb0829",
"to_name": "text",
"type": "labels",
"value": {
"end": 22492,
"labels": [
"RLC"
],
"start": 22477,
"text": "\n Explanation.-"
}
},
{
"from_name": "label",
"id": "419234647ea14d2d983facde4729cd8e",
"to_name": "text",
"type": "labels",
"value": {
"end": 22724,
"labels": [
"RLC"
],
"start": 22493,
"text": "For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4.\n4. Power of Court to release certain offenders on probation of good conduct.-"
}
},
{
"from_name": "label",
"id": "83975087275843d3a89feace17a07d26",
"to_name": "text",
"type": "labels",
"value": {
"end": 23766,
"labels": [
"STA"
],
"start": 22725,
"text": "(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the Court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or in which the offender is likely to live during the period for which he enters into the bond."
}
},
{
"from_name": "label",
"id": "50072e17557d47c893e00ef5b7d28031",
"to_name": "text",
"type": "labels",
"value": {
"end": 23937,
"labels": [
"STA"
],
"start": 23766,
"text": "\n(2) Before making any order under sub-section (1), the Court shall take into consideration the report, if any, of the probation officer concerned in relation to the case."
}
},
{
"from_name": "label",
"id": "8b18ebaa89ac4f6aa10920a33afca283",
"to_name": "text",
"type": "labels",
"value": {
"end": 24955,
"labels": [
"STA"
],
"start": 23937,
"text": "\n (3) When an order under sub-section (1) is made, the Court may, if it is of opinion that in the interests of the offender and of the pubic it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender.\n (4) The Court making a supervision order under sub- section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the Court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender."
}
},
{
"from_name": "label",
"id": "a330da9e893d4dd998173f18220aaef0",
"to_name": "text",
"type": "labels",
"value": {
"end": 25240,
"labels": [
"STA"
],
"start": 24955,
"text": "\n (5) The Court making a supervision order under sub- section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.\""
}
},
{
"from_name": "label",
"id": "ba975bd7313a425082ad94183a7bb3c7",
"to_name": "text",
"type": "labels",
"value": {
"end": 25779,
"labels": [
"RATIO"
],
"start": 25240,
"text": "\n 11. Keeping in view the aim and object of the Probation of Offenders Act, we are of the opinion that, in the peculiar facts and circumstances of this case, when the entire incident had taken place on trifle ground and the accused never intended to cause grievous injuries on the vital part of Sopanrao and the contention of the learned counsel appearing for the appellants that, there are no criminal antecedents of the accused, in the peculiar facts of this case, we are inclined to invoke the provisions of Probation of Offenders Act."
}
},
{
"from_name": "label",
"id": "c39b961e1df94716b0dd3f421fa76e92",
"to_name": "text",
"type": "labels",
"value": {
"end": 26397,
"labels": [
"RATIO"
],
"start": 25780,
"text": "However, to ascertain whether the appellants accused are involved in any other crime, they have been convicted under any other offence or their conduct after release is not worthy to entertain their prayer for release them on probation of good conduct, we feel it appropriate to direct the District Probation Officer, District Nanded to make inquiry of appellants/accused nos. 4, 6, 7 and 9 except the appellant no.1 accused no.1, who died during the pendency of this Appeal, within five weeks from today on the aforesaid aspects and submit report to this Court immediately on expiry of five weeks period from today."
}
},
{
"from_name": "label",
"id": "ef72661773ba4307834c145ef3188cc1",
"to_name": "text",
"type": "labels",
"value": {
"end": 26612,
"labels": [
"RPC"
],
"start": 26398,
"text": "Depending upon the report of the District Probation Officer, this Court will consider the prayer of the appellants accused nos. 4, 6, 7 and 9 to take lenient view, and to release them on probation of good conduct."
}
},
{
"from_name": "label",
"id": "6b3170b4be2145ac8610ef81df5ea664",
"to_name": "text",
"type": "labels",
"value": {
"end": 26862,
"labels": [
"RPC"
],
"start": 26613,
"text": "Till such report is received by this Court and this Court passes further appropriate orders on the said report, the impugned judgment and order assailed in Criminal Appeal No.337 of 1999, so far sentencing part is concerned, shall not be acted upon."
}
},
{
"from_name": "label",
"id": "b674376216c44833a38a765cf8b348e6",
"to_name": "text",
"type": "labels",
"value": {
"end": 26915,
"labels": [
"NONE"
],
"start": 26862,
"text": "\n [S.M. GAVHANE, J.] [S.S. SHINDE, J.] SGA"
}
}
]
}
] | 1,792 | {
"text": "IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n BENCH AT AURANGABAD\n\nCRIMINAL APPEAL NO. 358 OF 1999\n\nThe State of Maharashtra, APPELLANT\nThrough Police Station,\nMarkhel, Tq. Degloor,\nDist. Nanded.\n\n VERSUS\n\n1. Kondiba S/o Gunda Aswale\n (Appeal abated as per Court's\n order dated 27.09.2007)\n\n2. Gopal S/o Kondiba Aswale,\n Age : 28 yrs.,\n\n3. Namdev S/o Kondiba Aswale,\n Age : 28 yrs.,\n\n4. Pundlik S/o Kondiba Aswale,\n Age : 30 yrs.,\n\n5. Vithal S/o Kondiba Aswale,\n Age : 28 yrs.,\n\n6. Shivaji S/o Bhimrao Patil,\n Age : 38 yrs.,\n\n7. Tanaji S/o Ramchandra Patil,\n Age : 24 yrs.,\n\n8. Gopal S/o Ramchandra Patil,\n Age : 24 yrs.,\n\n9. Vijay S/o Ramchandra Patil,\n Age : 24 yrs.,\n\n10. Anant S/o Ramchandra Patil,\n Age : 25 yrs.,\n\n11. Mohan S/o Gangaram Patil,\n Age : 55 yrs.,\n\n12. Kondiba S/o Mohan Kere,\n Age : 25 yrs.,\n\n13. Bhagwan S/o Dnyanoba Patil,\n Age : 42 yrs.,\n\n All R/o Yedur (Bk.) Tq. Degloor.\n RESPONDENTS\n\n WITH\n\n CRIMINAL APPEAL NO. 337 OF 1999\n\n1. Kondiba S/o Gunda Aswale,\n (Abated as per Court's\n order dated 27.09.2007)\n (in Appeal No.358/1999)\n\n2. Pundlik S/o Kondiba Aswale,\n Age : 33 yrs.,\n\n3. Shivaji S/o Bhimrao Patil,\n Age : 41 yrs.,\n\n4. Tanaji S/o Ramchandra Patil,\n Age : 27 yrs.,\n\n5. Vijay S/o Ramchandra Patil,\n Age : 27 yrs.,\n\n All. Occ : Agri., R/o. Yedur (Bk)\n Tq. Degloor, Dist. Nanded.\n\n APPELLANTS\n\n VERSUS\n\n\nThe State of Maharashtra,\nThrough Police Station, Markhel,\nTq. Degloor, District : Nanded.\n\n RESPONDENT\n ...\nMr. R.V. Dasalkar, APP for appellantState in\nAppeal No.358 of 1999.\nMr. U.B. Deshmukh, Advocate for appellant no.3 and\nholding for Mr. V.D. Salunke for appelalnts in\nAppeal No.337 of 1999.\nMr. U.B. Deshmukh, Advocate holding for Mr. S.J.\nSalunke, Advocate for Respondent Nos.2 to 13 in\nAppeal No.358 of 1999\nRespondent No.1 abated in Appeal No. 358 of\n1999.\n\n ...\n\n CORAM: S.S. SHINDE AND\n S.M. GAVHANE, JJ.\n\n DATE OF RESERVING JUDGMENT : 16TH JUNE,2017.\n DATE OF PRONOUNCING JUDGMENT: 23rd JUNE, 2017.\n JUDGMENT (PER S.S. SHINDE, J.): Criminal Appeal no. 358 of 1999 is filed by the State challenging the judgment and order of acquittal passed by the Additional Sessions Judge, Biloli, Dist. Nanded in Sessions Case no.61 of 1996, thereby acquitting the respondent nos.1 to 13 i.e. original accused nos. 1 to 13 for the offences punishable under Sections 148, 307 read with section 149, Section 337 read with section 149, Section 323 read with section 149 of Indian Penal Code (for short \"I.P.C.\") and Section 37(1) read with section 135 of the Bombay Police Act.\n Criminal Appeal No. 337 of 1999 is filed by original accused nos.1 Kondiba S/o Gunda Aswale, accused no.4 Pundlik S/o Kondiba Aswale, accused no.6 Shivaji S/o Bhimrao Patil, accused no.7 Tanaji S/o Ramchandra Patil and accused no.9 Vijay S/o Ramchandra Patil, challenging the judgment and order dated 7th August, 1999, passed by the Additional Sessions Judge, Biloli, District Nanded in Sessions Case No.61 of 1996, thereby convicting them for the offences punishable under Sections 143, 147, 325 read with section 149 of I.P.C.\n 2. The prosecution case in nutshell, is as under: A) Informant Sopanrao (PW1) resides with his wife Inderbai (PW2), daughter Rukminibai (PW3) and two sons, namely, Dhanaji (PW4) and Pundlik (PW5) at village Yedur. All accused nos. 1 to 13 are also residing at village Yedur where an informant is residing. On the previous day of incident, the quarrel took place in between the informant's daughter Rukmini and one woman i.e. relative of accused no.1 Kondiba, at the river side, and therefore, informant Sopanrao had accosted the aforesaid woman, who is relative of accused no.1 Kondiba.\n B) On the next day of the aforesaid quarrel i.e. on 27th December, 1993 at 8:00 a.m., the informant came out side his house and proceeded to his field. At that time, accused no.1 Kondiba pelted one stone, which hit on head of informant Sopanrao. The accused no.1 asked the informant as to why he quarreled with the woman, who is his relative. Thereupon, accused no.1 Kondiba asked other persons to beat the informant. Accused no.6 Shivaji Bhimrao Patil and accused no.7 Tanaji Ramchandra Patil, thereupon beat informant Sopanrao by means of an iron pipes on his legs, head, stomach and back, and therefore, the informant fell down. Rest of the accused assaulted informant Sopanrao by means of stones, iron pipes and sticks. Informant Sopanrao sustained bleeding injuries on his different parts of the body. The informant's wife, daughter and two sons on receiving information of the said incident, rushed to the place of incident and tried to rescue the informant. At that time, the accused persons also assaulted the informant's wife (PW2) and two sons PW4 and PW5. The other persons of the village, namely Bhaurao, Shamrao, Laxman, Vithal, Gyanoba and Arjun Malgonda intervened and pacified the quarrel.\n C) Informant Sopanrao was thereafter taken to the Police Station, Markhel and he lodged a report (Exh.31) on 27th December, 1993 at 2 p.m.\n On the basis of the said report, the crime was registered at Police Station, Markhel.\n Thereafter, the informant was referred to Civil Hospital at Degloor for medical treatment. The informant's wife (PW2) and two sons (PW4) and (PW5) were also referred to the same Hospital for medical treatment. Dr. Venakt Malshetwar (PW10) examined the aforesaid persons and he found in all 10 injuries over different parts of the body of informant Sopanrao. He also found fracture to the lower end of the left femur with swelling over left knee joint of informantSopanrao. He thereafter referred the informant to Civil Hospital, Nanded for further treatment. He also found injuries over different parts of the body of informant's wife and two sons. He accordingly issued certificate (Exh. Nos. 63 to 66) in respect of the informant and the aforesaid three persons.\n He received Xray plates, as regard the fracture found by him over the femur of the informant. On examination of that Xray plate, he found that, there was a fracture of the lower end of left femur of informant Sopanrao. He accordingly issued second certificate Exh.67 as regard to the said injury.\n D) Mirza Rahamutula Baig, the Police Sub Inspector (PW11) prepared spot panchnama Exh. 49, seized the blood stained clothes of informant Sopanrao, arrested the accused and seized weapons used by them, namely sticks and pipes in commission of the aforesaid crime. He also prepared seizure panchnama in respect of seizure of the cloths and weapons. He also recorded statements of other witnesses from 27th December, 1993 to 29th December, 1993. He on completion of an investigation filed charge sheet against accused nos. 1 to 13 for the offences punishable under sections 143, 147, 148, 337, 325, 323 r/w Section 149 of I.P.C. and under section 37(1) r/w Section 135 of the Bombay Police Act in the Court of Judicial Magistrate, First Class, Degloor.\n E) Thereafter, the application (Exh.81) was made by the A.P.P. before Judicial Magistrate, First Class, Degloor for addition of offence punishable under Section 307 of I.P.C. in the charge sheet and for committal of case to the Court of Sessions. The Judicial Magistrate, First Class, Degloor rejected the said application.\n However, a revision petition No.32 of 1995 filed by the learned APP against the rejection of the said application, came to be allowed by the High Court on 8th May, 1996, and the High Court directed in the said revision petition that the offence under Section 307 of I.P.C. be added in the charge sheet, and the Magistrate shall proceed with the case in accordance with the provisions of Code of Criminal Procedure. Accordingly, section 307 of I.P.C. was added in the charge sheet. As the case was exclusively triable by the Court of Sessions, the Judicial Magistrate, First Class, Degloor committed the case to the Court of Sessions.\n F) The Sessions Court framed charge at Exh.13 against accused nos. 1 to 13 for the offences punishable under sections 143, 147, 148, 307 read with section 149 I.P.C., section 337 read with section 149 of I.P.C., section 323 read with section 149 of I.P.C. and under Section 37(1) r/w Section 135 of the Bombay Police Act. The charges were read over and explained to each of the accused in vernacular, to which they pleaded not guilty and claimed to be tried. The defence of the accused is of total denial.\n G) The statements of the accused persons under Section 313 of the Code of Criminal Procedure were also recorded and the suggestions were given by the defense counsel to informant Sopanrao during the cross examination and the defence of the accused was that informant Sopanraro and his family members were proceeding on a Bullock Cart, and at that time, the said Bullock Cart was overturned, and the informant and his family members sustained injuries, however, the false case is filed against them due to politics in the village.\n 3. After recording the evidence and conducting full fledged trial, the trial Court convicted accused nos.1, 4, 6, 7 and 9 for the offences punishable under sections 143, 147, 325 read with section 149 of I.P.C. The trial Court then acquitted all the accused persons for the offences punishable under sections 148, 307 read section 149, section 337 read with section 149, section 323 read with section 149 of the I.P.C.\n And section 37(1) read with section 135 of the Bombay Police Act. So also the trial Court acquitted accused nos. 2, 3, 5, 8 and 10 to 13 for the offences punishable under sections 143 and 147 of the I.P.C. Hence Criminal Appeal No. 358 of 1999 is filed by the State against the judgment and order of acquittal and Criminal Appeal No.337/1999 is filed by the original accused nos.1, 4, 6, 7 and 9 against the judgment and order of conviction.\n 4. While arguing the appeal filed by the State, the learned A.P.P. appearing for the State submits that, keeping in view the injuries sustained by informant Sopanrao and also the evidence of the prosecution witnesses, the trial Court ought to have convicted the accused for the offence punishable under section 307 read with section 34 of the I.P.C. He submits that, out of 13 accused, who were tried by the trial Court, the trial Court acquitted some of the accused, without appreciating the prosecution case that, there are overwhelming evidence of eye witnesses, which gets corroboration from the medical evidence and also recovery of pipes and sticks. Therefore, he submits that, the appeal filed by the State deserves to be allowed.\n On the other hand, the learned counsel appearing for the original accused invites our attention to the evidence of the prosecution witnesses and submits that, the evidence of the prosecution witnesses suffers from contradictions and improvements. It is submitted that, the medical evidence clearly demonstrates that, an alleged incident has not taken place at one time and it appears that, there are more than one incidents. It is further submitted that, it is the case of the prosecution that, there were number of persons gathered at the spot and in that background, it was not possible for the witnesses to identify the accused. In such a mob, there can be a mistake in identity. An overt act attributed qua each of the accused and also an alleged injuries sustained by Sopanrao and other witnesses do not disclose any grievous injuries, which is sufficient in ordinary course to cause death of Sopanrao and any other witnesses. It is submitted that, the trial Court, after taking into consideration the entire evidence on record, has extended the benefit of doubt and acquitted them for an offence punishable under section 307 read with 34 of I.P.C. It is submitted that, in first place, an alleged incident had never taken place and the witnesses have suffered injuries in an accident. Secondly, even if, without admitting but assuming that, such incident had taken place, keeping in view the number of persons gathered at the spot of incident and an alleged weapons used by the accused, there is every possibility of mistake in identity by the prosecution witnesses, and therefore, in such a situation the benefit of doubt deserves to be given in favour of the accused. It is submitted that, after proper scrutiny of the evidence, the trial Court has taken a plausible view and acquitted 8 accused from all the charges levelled against them and in fact the said benefit ought to have been extended even in favour of the appellants in Criminal Appeal no.337 of 1999. The seizure of the alleged weapons is made after 3 months and 11 days of the incident, therefore, it create doubt in the prosecution case of seizure of such weapons.\nSopanrao (PW1) has never stated in his evidence that, the injuries are caused in the said incident, and his mere contention is that, the accused assaulted him by means of sticks, stones and pipes. There are discrepancies as regards the age of the injuries, which are brought on record by the prosecution. Wheel marks of the bullock cart were appearing over the body of Sopanrao, and therefore, the said supports the defence plea. The reasonings and findings given by the trial Court are not based on the evidence of the prosecution witnesses and those are contrary to the evidence brought on record. The prosecution examined only interested witnesses and left out independent witnesses, who could have thrown the light on the real incident. The ocular evidence is not supported by the medical evidence. There is no specific role attributed to the appellants original accused in Criminal appeal no. 337 of 1999 by the informant in the first information report. It is submitted that, belatedly the supplementary statement of Sopanrao was recorded and he falsely implicated some of the accused. The sum and substance of the arguments of the learned counsel appearing for the accused is that, in first place, the incident as alleged had never happened. Secondly, the prosecution has tried to suppress the genesis of the incident. In support of said contentions, he placed reliance in the case of State of M.P. V/s Mishrilal and others1. It is the case of the prosecution that, informant Sopanrao and other prosecution witnesses have sustained the injuries in an accident. Without admitting but assuming that, the incident had taken place, the medical report, and in particular, the age of the injuries clearly shows 1 2015 1 JLJ 153 that, there was more than one incident. However, the prosecution has suppressed the other incident, if any. It is submitted that, there was no motive or intention to assault Sopanrao and other prosecution witnesses, as it is apparent from the prosecution case that, the accused were not possessing any deadly weapons. In support of aforesaid contentions learned counsel pressed into service an exposition of law in the case of Krishnegowda and ors V/s State of Karnataka by Arkalgud Police2. Therefore, relying upon the grounds taken in the appeal memo, the learned counsel submits that, the incident had taken place 20 years back, and therefore, the benefit of doubt deserves to be extended in favour of the accused.\nHe submits that, the appeal filed by the appellants original accused may be allowed and the appeal filed by the State may be dismissed.\n Without prejudice to arguments already 2 2017 Supreme (SC) 289 advanced, by way of alternate submission, he argued that, in case this Court is not inclined to entertain the appeal filed by original accused, in that case, the benefit under the provisions of Probation of Offenders Act, 1958 may be extended in favour of them, since there are no previous criminal antecedents against the accused.\n 5. We have heard the learned A.P.P.\n appearing for the appellant/State in Criminal Appeal No.358/1999 and the learned counsel appearing for the appellants/original accused in Criminal Appeal No.337/1999 and the respondents/original accused in Criminal Appeal No.358/1999 at length. With their able assistance, we have carefully perused the entire evidence brought on record by the prosecution.\n 6. It would be relevant to discuss the evidence of the prosecution witnesses, who claimed that, they have witnessed the incident. Sopanrao Vithalrao Sherekar in his deposition stated that, Kondiba Gunda (accused no.1) pelted stone on his back, which caused injury to him. He further stated that, Gopal (accused no.2) gave blow with pipe on his chest, Pundlik (accused no.4) gave pipe blow on his left thigh, Vithal (accused no.5) gave blow of pipe on his waist, Shivaji (accused no.6) pelted stone on his left knee joint and also hit stone on his right shoulder, Tanaji (accused no.7) hit water pipe on his head, Gopal (accused no.8) hit with pipe on left side of his back and gave blow on his neck and Vijay (accused no.9) gave pipe blow on his chest. He further stated that, Anant (accused no.10) gave pipe blow on his back, Mohan (accused no.11) beat with stick on left side ribs, Kondiba Mohan (accused no.12) beat him with stick on right thigh and Bhagwan (accused no.13) hit stone on his right wrist. So far role and overt act attributed to Kondiba Gunda by Sopanrao (PW1) is concerned, it gets corroboration from the evidence of Inderbai (PW2), Dhanaji (PW4) and Pundlik (PW5). So far role played and overt act attributed to Pundlik by Sopanrao (PW1) is concerned, it gets corroboration from the evidence of Inderbai (PW2), Dhanaji (PW4) and Pundlik (PW5). So far role played and overt act attributed to Shivaji by Sopanrao (PW1) is concerned, it gets corroboration from the evidence of Inderbai (PW2), Dhanaji (PW4) and Pundlik (PW5). So far role played and overt act attributed to Tanaji by Sopanrao (PW1) is concerned, it gets corroboration from the evidence of Inderbai (PW2), Dhanaji (PW4) and Pundlik (PW5). So far role played and overt act attributed to Vijay by Sopanrao (PW1) is concerned, it gets corroboration from the evidence of Inderbai (PW2), Dhanaji (PW4) and Pundlik (PW5).\n 7. So far as the other accused are concerned, though Sopanrao (PW1) attributed overt acts qua each of them, in view of the omissions, contradictions and improvements in the evidence of other witnesses, there is no sufficient corroboration to his version, and therefore, the trial Court has rightly extended the benefit of doubt in their favour.\n 8. We have also carefully perused the evidence of Inderbai (PW2), Dhanaji (PW4) and Pundlik (PW5), and upon close scrutiny of their evidence, in our considered view the said evidence so far as accused no.1 Kondiba Gunda, accused no.4 Pundlik, accused no.6 Shivaji, accused no.7 Tanaji and accused no.9 Vijay for their conviction for the offences punishable under sections 143, 147, 325 read with section 149 of I.P.C. is concerned, the same deserves acceptance.\n The trial Court keeping in view the evidence of eye witnesses and medical evidence reached to the correct conclusion. In this respect, there is discussion in the impugned judgment in para no.68.\n 9. Upon perusal of the crossexamination of Sopanrao and other prosecution witnesses, we do not find any material discrepancies, improvements or omissions, which would nullify the substantive evidence of the eye witnesses, which gets corroboration from the medical evidence.\n However, we find from the prelude of the incident that, the said incident arose on the trifle ground. Accused persons did not come prepared with an intention to cause grievous injuries on vital parts of Sopanrao or other prosecution witnesses. The medical evidence unequivocally indicates that, the injuries suffered by Sopanrao and other witnesses do not indicate that, the accused intended commission of murder of Sopanrao or any other prosecution witnesses. Therefore, in our considered opinion, the trial Court, after appreciation of the evidence in its proper perspective, has reached to the correct conclusion that, there cannot be conviction for the offence punishable under Section 307 read with 34 of I.P.C. In that view of the matter, the appeal filed by the State stands dismissed.\n 10. The conviction of the appellants in Appeal No.337 of 1999 stands confirmed. However, so far sentencing part is concerned, we find considerable force in the arguments of the learned counsel appearing for the appellantsoriginal accused that, the incident had taken place on 27th December, 1993 i.e. 24 years back and there is no criminal antecedents to the credit of four accused i.e. appellants in appeal no.337 of 1999, who are convicted by the trial Court. Upon careful perusal of the impugned judgment, it appears that, there was prayer by the accused before the trial Court to extend benefit of provisions of the Probation of Offenders Act in their favour.\n However, the trial Court rejected the said prayer by assigning reasons in paras 70 and 71 of the impugned judgment. In our opinion, the said reasons are not sustainable. The provisions of sections 3 and 4 of the Probation of Offenders Act reads thus : \"3. Power of Court to release certain offenders after admonition.- When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4, release him after due admonition.\n Explanation.- For the purposes of this section, previous conviction against a person shall include any previous order made against him under this section or section 4.\n4. Power of Court to release certain offenders on probation of good conduct.- (1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the Court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the Court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period not exceeding three years, as the Court may direct, and in the meantime to keep the peace and be of good behaviour: Provided that the Court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or in which the offender is likely to live during the period for which he enters into the bond.\n(2) Before making any order under sub-section (1), the Court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.\n (3) When an order under sub-section (1) is made, the Court may, if it is of opinion that in the interests of the offender and of the pubic it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order impose such conditions as it deems necessary for the due supervision of the offender.\n (4) The Court making a supervision order under sub- section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the Court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.\n (5) The Court making a supervision order under sub- section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.\"\n 11. Keeping in view the aim and object of the Probation of Offenders Act, we are of the opinion that, in the peculiar facts and circumstances of this case, when the entire incident had taken place on trifle ground and the accused never intended to cause grievous injuries on the vital part of Sopanrao and the contention of the learned counsel appearing for the appellants that, there are no criminal antecedents of the accused, in the peculiar facts of this case, we are inclined to invoke the provisions of Probation of Offenders Act. However, to ascertain whether the appellants accused are involved in any other crime, they have been convicted under any other offence or their conduct after release is not worthy to entertain their prayer for release them on probation of good conduct, we feel it appropriate to direct the District Probation Officer, District Nanded to make inquiry of appellants/accused nos. 4, 6, 7 and 9 except the appellant no.1 accused no.1, who died during the pendency of this Appeal, within five weeks from today on the aforesaid aspects and submit report to this Court immediately on expiry of five weeks period from today. Depending upon the report of the District Probation Officer, this Court will consider the prayer of the appellants accused nos. 4, 6, 7 and 9 to take lenient view, and to release them on probation of good conduct. Till such report is received by this Court and this Court passes further appropriate orders on the said report, the impugned judgment and order assailed in Criminal Appeal No.337 of 1999, so far sentencing part is concerned, shall not be acted upon.\n [S.M. GAVHANE, J.] [S.S. SHINDE, J.] SGA "
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{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "be184b861ff94b68b47308f54dfd8745",
"to_name": null,
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"value": {
"end": 129,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n DATED THIS THE 29TH DAY OF JANUARY, 2015\n BEFORE"
}
},
{
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"id": "271d30a753fb431a87660e2de935ad0e",
"to_name": null,
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"end": 1152,
"labels": [
"PREAMBLE"
],
"start": 129,
"text": "\n THE HON'BLE MR.JUSTICE B.S.PATIL\n W.P.No.39377/2014 (T-IT)\n\nBETWEEN\n\nMR.DEVICHAND KOTHARI (HUF) ... PETITIONER\nS/O SHA POONAMCHAND GALBAJI,\nAGED ABOUT 44 YEARS,\nR/AT NO.1, OMKAR VIHAR,\nSHARDHANAND BHAWAN ROAD,\nV.V.PURAM,\nBANGALORE-560 004.\n\n(By Sri.HARISH V.S., ADV.FOR DNS LAW HOUSE)\n\nAND\n\nINCOME TAX OFFICER ... RESPONDENT\nWARD 9 (3), 3RD FLOOR,\nJEEVAN SAMPIGE, LIC BUILDING,\nSAMPIGE ROAD, MALLESHWARAM,\nBANGALORE-560 003.\n\n(By Sri. DILIP, ADV. FOR Sri K V ARAVIND, ADV.)\n\n THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227\nOF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE\nIMPUGNED ASSESSMENT ORDER PASSED BY THE RESPONDENT U/S.143(3) R.W SECTION 147 OF THE INCOME TAXACT, 1961, DATED 30.06.2014 FOR THE ASSESSMENT YEAR 2008-09 I.E., ANNX-C AND CONSEQUENTIAL NOTICE OF DEMAND ISSUED BY THE RESPONDENT, DTD 30.06.2014 FOR THE ASSESSMENT YEAR 2009-10 I.E., ANNX-D.\n THIS PETITION COMING ON FOR PRELIMINARY HEARING-B GROUP THIS DAY, THE COURT MADE THE FOLLOWING:"
}
},
{
"from_name": null,
"id": "b0f25c7367594630a74d615d5cc14bda",
"to_name": null,
"type": null,
"value": {
"end": 1161,
"labels": [
"PREAMBLE"
],
"start": 1153,
"text": "ORDER 1."
}
},
{
"from_name": null,
"id": "a298e884991045dfb34c616917e5c1c3",
"to_name": null,
"type": null,
"value": {
"end": 1516,
"labels": [
"FAC"
],
"start": 1162,
"text": "Petitioner is calling in question assessment order dated 30.06.2014 passed by the respondent Income Tax Officer exercising powers under Section 143(3) read with Section 147 of the Income Tax Act, 1961 (for short, `the Act'), for the assessment year 2008-09 vide Annexure-C and the consequential demand notice dated 30.06.2014 issued vide Annexure-D.\n 2."
}
},
{
"from_name": null,
"id": "a678c711e2b245a4b0b704d84d1e0f57",
"to_name": null,
"type": null,
"value": {
"end": 1704,
"labels": [
"FAC"
],
"start": 1517,
"text": "Facts leading to this writ petition briefly stated are, that petitioner submitted his return of income for the assessment year 2008-09 on 14.09.2008 declaring his income at Rs.2,92,710/-."
}
},
{
"from_name": null,
"id": "63891827976c4c85af4ceb84e79c1598",
"to_name": null,
"type": null,
"value": {
"end": 1734,
"labels": [
"FAC"
],
"start": 1705,
"text": "The said return was accepted."
}
},
{
"from_name": null,
"id": "3211a2bbbddb46e4b92b387548e09b6d",
"to_name": null,
"type": null,
"value": {
"end": 1840,
"labels": [
"FAC"
],
"start": 1735,
"text": "Subsequently, notice under Section 148 of the Act was issued on 30.06.2014 for re-opening the assessment."
}
},
{
"from_name": null,
"id": "3dfd5e07a0754b3082eba79c52c3bb7c",
"to_name": null,
"type": null,
"value": {
"end": 1973,
"labels": [
"FAC"
],
"start": 1841,
"text": "In response, petitioner requested the respondent that the return filed earlier could be treated as return in response to the notice."
}
},
{
"from_name": null,
"id": "a75dd8f49e4044928b33c1c7e751e5c1",
"to_name": null,
"type": null,
"value": {
"end": 2215,
"labels": [
"FAC"
],
"start": 1974,
"text": "Thereafter, respondent concluded the assessment on 30.06.2014 by adding a sum of Rs.5,71,950/- which is stated to be the amount pertaining to certain shares purchased by the petitioner out of the income that had allegedly escaped assessment."
}
},
{
"from_name": null,
"id": "151ce54a421f4667b66cf67778860348",
"to_name": null,
"type": null,
"value": {
"end": 2280,
"labels": [
"FAC"
],
"start": 2216,
"text": "Accordingly, tax and interest has been levied by the respondent."
}
},
{
"from_name": null,
"id": "0062f82bfcd442fe979f442cc0d8673c",
"to_name": null,
"type": null,
"value": {
"end": 2339,
"labels": [
"FAC"
],
"start": 2281,
"text": "It is this order that is challenged in this writ petition."
}
},
{
"from_name": null,
"id": "f3a844e31be84a32bb63e17b4d476c9c",
"to_name": null,
"type": null,
"value": {
"end": 2619,
"labels": [
"ARG_PETITIONER"
],
"start": 2339,
"text": "\n 3. Learned Counsel for the petitioner invites the attention of the court to the representation/application filed by him on 31.01.2014 before the respondent requesting to issue copy of the sworn statement of one Mr. Mukesh Choksi on the basis whereof, proceedings were re-opened."
}
},
{
"from_name": null,
"id": "a19f6c52ea20406694073c2bb7e42d5b",
"to_name": null,
"type": null,
"value": {
"end": 2760,
"labels": [
"ARG_PETITIONER"
],
"start": 2620,
"text": "It transpires that a search had been conducted by the income tax authorities at Mumbai on M/s. Mahasagar Securities and Mukesh Choksi Group."
}
},
{
"from_name": null,
"id": "4725fd5ce95f4e5c87fa1f987c5a59ba",
"to_name": null,
"type": null,
"value": {
"end": 3208,
"labels": [
"ARG_PETITIONER"
],
"start": 2761,
"text": "At that time, Mr. Mukesh Choksi had admitted to have made accommodation entries in his books to enable the clients to declare speculation profit/loss, shorter gains, etc., and had identified the petitioner herein and certain others as some of the beneficiaries of the fraudulent entries/transactions by giving a sworn statement in that regard and it is based on the said sworn statement of Mukesh Choksi, respondent has re- opened the proceedings."
}
},
{
"from_name": null,
"id": "b7602e8b05704fd59da5c64365d5b089",
"to_name": null,
"type": null,
"value": {
"end": 3394,
"labels": [
"ARG_PETITIONER"
],
"start": 3209,
"text": "It is in this background, petitioner had made a request to the respondent on 31.01.2014 to provide a copy of the sworn statement, so that petitioner could take further course of action."
}
},
{
"from_name": null,
"id": "11dbbc3b03484ca19abbb672dab68a48",
"to_name": null,
"type": null,
"value": {
"end": 3525,
"labels": [
"ANALYSIS"
],
"start": 3394,
"text": "\n 4. It is not in dispute that petitioner was not furnished with the copy of the statement said to have been made by Mukesh Choksi."
}
},
{
"from_name": null,
"id": "340dd24beead4494a6c0c259ba29edb3",
"to_name": null,
"type": null,
"value": {
"end": 3589,
"labels": [
"ANALYSIS"
],
"start": 3526,
"text": "Petitioner was not aware of the contents of the said statement."
}
},
{
"from_name": null,
"id": "cb7e567b0b4241f186edc8a97f150039",
"to_name": null,
"type": null,
"value": {
"end": 3792,
"labels": [
"ANALYSIS"
],
"start": 3590,
"text": "However, he filed objections contending inter alia that it was not known how a statement made by third party could be made applicable and made basis for the proceedings that were sought to be initiated."
}
},
{
"from_name": null,
"id": "ac3899b6076b4e669e73bcbf6801dd1d",
"to_name": null,
"type": null,
"value": {
"end": 4030,
"labels": [
"ANALYSIS"
],
"start": 3793,
"text": "He also points out by way of objection that in the absence of specific allegations made against the petitioner in the so-called sworn statement, the same could not have been made basis to pass the assessment order against the petitioner."
}
},
{
"from_name": null,
"id": "fc3d20e89daa4572b3cf16cc55940a4b",
"to_name": null,
"type": null,
"value": {
"end": 4278,
"labels": [
"ANALYSIS"
],
"start": 4030,
"text": "\n 5. Despite such objections raised, respondent has proceeded to pass the impugned order holding that an amount of Rs.5,71,950/- which reflected the sale proceeds of shares was required to be brought to tax under the head `Other Sources of Income'."
}
},
{
"from_name": null,
"id": "913f094f294d4b5b9d6a7439dce821b0",
"to_name": null,
"type": null,
"value": {
"end": 4445,
"labels": [
"ANALYSIS"
],
"start": 4279,
"text": "It is this amount which according to the findings recorded by the respondent was attributed to the petitioner in the so-called sworn statement given by Mukesh Choksi."
}
},
{
"from_name": null,
"id": "97a5fc7dcf30431d8fc4bb3fac6c64e4",
"to_name": null,
"type": null,
"value": {
"end": 4821,
"labels": [
"ANALYSIS"
],
"start": 4445,
"text": "\n 6. Thus, it is apparent that without furnishing a copy of the statement stated to have been given by Mukesh Choksi and without notifying the petitioner regarding basis of the transaction that petitioner is said to have entered into with Mukesh Choksi, respondent has passed the impugned order.\nThe entire basis for the impugned order is the sworn statement of Mukesh Choksi."
}
},
{
"from_name": null,
"id": "5a5d375d11284a56bfd3a72a2b9af1ca",
"to_name": null,
"type": null,
"value": {
"end": 5030,
"labels": [
"ANALYSIS"
],
"start": 4822,
"text": "Unless petitioner is given opportunity to have his say in the mater with regard to the said statement and its contents, it cannot be said that petitioner was given an opportunity of being heard in the matter."
}
},
{
"from_name": null,
"id": "66fbfc48b7854efca21439db6d3bacaa",
"to_name": null,
"type": null,
"value": {
"end": 5177,
"labels": [
"ANALYSIS"
],
"start": 5031,
"text": "Hence, it has to be held that the impugned order is passed without providing any fair and reasonable opportunity of being heard to the petitioner."
}
},
{
"from_name": null,
"id": "aaff896f05414960be6bec64b5d830c5",
"to_name": null,
"type": null,
"value": {
"end": 5827,
"labels": [
"ARG_PETITIONER"
],
"start": 5177,
"text": "\n 7. In fact, learned Counsel for the petitioner places reliance on the judgment of the Division Bench of the Delhi High Court in the case of Mr. Ashok Mittal Vs Assistant Commissioner of Income Tax and another in WP(C) No.1452/2013, wherein also petitioner therein had specifically objected for the assessment proceedings stating that he had no transaction with either Mukesh Choksi or any other related companies, but the Assessing Officer had solely proceeded on the basis of the statement and the list provided without there being any other information or details furnished to the petitioner though petitioner therein had sought for such details."
}
},
{
"from_name": null,
"id": "b41e8d6698d2419eab6d32c803017277",
"to_name": null,
"type": null,
"value": {
"end": 6047,
"labels": [
"ARG_PETITIONER"
],
"start": 5828,
"text": "The High Court of Delhi has held that there was absence of fair and reasonable opportunity and such an assessment order could not be sustained and could be interfered with under Article 226 of the Constitution of India."
}
},
{
"from_name": null,
"id": "e4f773c7cf214f72ab03a4ea2d071619",
"to_name": null,
"type": null,
"value": {
"end": 6544,
"labels": [
"RATIO"
],
"start": 6047,
"text": "\n 8. In the light of the facts and circumstances as adverted to above and as the petitioner has been denied an opportunity of fair hearing by providing copy of the statement and related details regarding the alleged share amount, I am of the view that the matter requires to be re-considered by the respondent by providing fair and reasonable opportunity of hearing to the petitioner and by furnishing the details/copy of the statement based on which the impugned assessment order has been passed."
}
},
{
"from_name": null,
"id": "b68c5f253c474283879b8ea8788fc075",
"to_name": null,
"type": null,
"value": {
"end": 6594,
"labels": [
"RPC"
],
"start": 6546,
"text": "9. In the result, this writ petition is allowed."
}
},
{
"from_name": null,
"id": "a3445c54692b4ee4995288432eed2c47",
"to_name": null,
"type": null,
"value": {
"end": 6625,
"labels": [
"RPC"
],
"start": 6595,
"text": "The impugned order is quashed."
}
},
{
"from_name": null,
"id": "26f56808ced34bea96ad621d8a399a8d",
"to_name": null,
"type": null,
"value": {
"end": 6744,
"labels": [
"RPC"
],
"start": 6626,
"text": "The matter is remitted for fresh consideration in accordance with law and in the light of the observations made above."
}
},
{
"from_name": null,
"id": "6dd51798cc734d6a9ce692f212253933",
"to_name": null,
"type": null,
"value": {
"end": 6759,
"labels": [
"NONE"
],
"start": 6744,
"text": "\n Sd/- JUDGE KK"
}
}
]
}
] | 4,108 | {
"text": "IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n DATED THIS THE 29TH DAY OF JANUARY, 2015\n BEFORE\n THE HON'BLE MR.JUSTICE B.S.PATIL\n W.P.No.39377/2014 (T-IT)\n\nBETWEEN\n\nMR.DEVICHAND KOTHARI (HUF) ... PETITIONER\nS/O SHA POONAMCHAND GALBAJI,\nAGED ABOUT 44 YEARS,\nR/AT NO.1, OMKAR VIHAR,\nSHARDHANAND BHAWAN ROAD,\nV.V.PURAM,\nBANGALORE-560 004.\n\n(By Sri.HARISH V.S., ADV.FOR DNS LAW HOUSE)\n\nAND\n\nINCOME TAX OFFICER ... RESPONDENT\nWARD 9 (3), 3RD FLOOR,\nJEEVAN SAMPIGE, LIC BUILDING,\nSAMPIGE ROAD, MALLESHWARAM,\nBANGALORE-560 003.\n\n(By Sri. DILIP, ADV. FOR Sri K V ARAVIND, ADV.)\n\n THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227\nOF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE\nIMPUGNED ASSESSMENT ORDER PASSED BY THE RESPONDENT U/S.143(3) R.W SECTION 147 OF THE INCOME TAXACT, 1961, DATED 30.06.2014 FOR THE ASSESSMENT YEAR 2008-09 I.E., ANNX-C AND CONSEQUENTIAL NOTICE OF DEMAND ISSUED BY THE RESPONDENT, DTD 30.06.2014 FOR THE ASSESSMENT YEAR 2009-10 I.E., ANNX-D.\n THIS PETITION COMING ON FOR PRELIMINARY HEARING-B GROUP THIS DAY, THE COURT MADE THE FOLLOWING: ORDER 1. Petitioner is calling in question assessment order dated 30.06.2014 passed by the respondent Income Tax Officer exercising powers under Section 143(3) read with Section 147 of the Income Tax Act, 1961 (for short, `the Act'), for the assessment year 2008-09 vide Annexure-C and the consequential demand notice dated 30.06.2014 issued vide Annexure-D.\n 2. Facts leading to this writ petition briefly stated are, that petitioner submitted his return of income for the assessment year 2008-09 on 14.09.2008 declaring his income at Rs.2,92,710/-. The said return was accepted. Subsequently, notice under Section 148 of the Act was issued on 30.06.2014 for re-opening the assessment. In response, petitioner requested the respondent that the return filed earlier could be treated as return in response to the notice. Thereafter, respondent concluded the assessment on 30.06.2014 by adding a sum of Rs.5,71,950/- which is stated to be the amount pertaining to certain shares purchased by the petitioner out of the income that had allegedly escaped assessment. Accordingly, tax and interest has been levied by the respondent. It is this order that is challenged in this writ petition.\n 3. Learned Counsel for the petitioner invites the attention of the court to the representation/application filed by him on 31.01.2014 before the respondent requesting to issue copy of the sworn statement of one Mr. Mukesh Choksi on the basis whereof, proceedings were re-opened. It transpires that a search had been conducted by the income tax authorities at Mumbai on M/s. Mahasagar Securities and Mukesh Choksi Group. At that time, Mr. Mukesh Choksi had admitted to have made accommodation entries in his books to enable the clients to declare speculation profit/loss, shorter gains, etc., and had identified the petitioner herein and certain others as some of the beneficiaries of the fraudulent entries/transactions by giving a sworn statement in that regard and it is based on the said sworn statement of Mukesh Choksi, respondent has re- opened the proceedings. It is in this background, petitioner had made a request to the respondent on 31.01.2014 to provide a copy of the sworn statement, so that petitioner could take further course of action.\n 4. It is not in dispute that petitioner was not furnished with the copy of the statement said to have been made by Mukesh Choksi. Petitioner was not aware of the contents of the said statement. However, he filed objections contending inter alia that it was not known how a statement made by third party could be made applicable and made basis for the proceedings that were sought to be initiated. He also points out by way of objection that in the absence of specific allegations made against the petitioner in the so-called sworn statement, the same could not have been made basis to pass the assessment order against the petitioner.\n 5. Despite such objections raised, respondent has proceeded to pass the impugned order holding that an amount of Rs.5,71,950/- which reflected the sale proceeds of shares was required to be brought to tax under the head `Other Sources of Income'. It is this amount which according to the findings recorded by the respondent was attributed to the petitioner in the so-called sworn statement given by Mukesh Choksi.\n 6. Thus, it is apparent that without furnishing a copy of the statement stated to have been given by Mukesh Choksi and without notifying the petitioner regarding basis of the transaction that petitioner is said to have entered into with Mukesh Choksi, respondent has passed the impugned order.\nThe entire basis for the impugned order is the sworn statement of Mukesh Choksi. Unless petitioner is given opportunity to have his say in the mater with regard to the said statement and its contents, it cannot be said that petitioner was given an opportunity of being heard in the matter. Hence, it has to be held that the impugned order is passed without providing any fair and reasonable opportunity of being heard to the petitioner.\n 7. In fact, learned Counsel for the petitioner places reliance on the judgment of the Division Bench of the Delhi High Court in the case of Mr. Ashok Mittal Vs Assistant Commissioner of Income Tax and another in WP(C) No.1452/2013, wherein also petitioner therein had specifically objected for the assessment proceedings stating that he had no transaction with either Mukesh Choksi or any other related companies, but the Assessing Officer had solely proceeded on the basis of the statement and the list provided without there being any other information or details furnished to the petitioner though petitioner therein had sought for such details. The High Court of Delhi has held that there was absence of fair and reasonable opportunity and such an assessment order could not be sustained and could be interfered with under Article 226 of the Constitution of India.\n 8. In the light of the facts and circumstances as adverted to above and as the petitioner has been denied an opportunity of fair hearing by providing copy of the statement and related details regarding the alleged share amount, I am of the view that the matter requires to be re-considered by the respondent by providing fair and reasonable opportunity of hearing to the petitioner and by furnishing the details/copy of the statement based on which the impugned assessment order has been passed.\n 9. In the result, this writ petition is allowed. The impugned order is quashed. The matter is remitted for fresh consideration in accordance with law and in the light of the observations made above.\n Sd/- JUDGE KK "
} |
{
"group": "Tax"
} | [
{
"result": [
{
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"value": {
"end": 49,
"labels": [
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],
"start": 0,
"text": "$~\n* IN THE HIGH COURT OF DELHI AT NEW DELHI"
}
},
{
"from_name": null,
"id": "95331b8378f647d6a938879990da32f5",
"to_name": null,
"type": null,
"value": {
"end": 70,
"labels": [
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],
"start": 49,
"text": "\n\n+ ITA 187/2020"
}
},
{
"from_name": null,
"id": "3b67c6fe57914d6489edde16366dad2d",
"to_name": null,
"type": null,
"value": {
"end": 122,
"labels": [
"PREAMBLE"
],
"start": 70,
"text": "\n\n THE PR. COMMISSIONER OF INCOME TAX -9 ....."
}
},
{
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"id": "74ec7c8ed0014d8490c9d6e97fd5f0c3",
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"type": null,
"value": {
"end": 154,
"labels": [
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],
"start": 123,
"text": "Appellant\n "
}
},
{
"from_name": null,
"id": "4153e99b4d8142b48c27662e3990cdc9",
"to_name": null,
"type": null,
"value": {
"end": 232,
"labels": [
"PREAMBLE"
],
"start": 154,
"text": "Through Mr. Ruchir Bhatia, Sr. Standing\n Counsel"
}
},
{
"from_name": null,
"id": "baa75cbd1c7b4dcc8ef78c63db23ac48",
"to_name": null,
"type": null,
"value": {
"end": 295,
"labels": [
"PREAMBLE"
],
"start": 233,
"text": "with Ms. Madhura M.N.,\n Advocates"
}
},
{
"from_name": null,
"id": "c712e38e15284c52b28f0b98ee1ef283",
"to_name": null,
"type": null,
"value": {
"end": 365,
"labels": [
"PREAMBLE"
],
"start": 295,
"text": "\n versus\n\n VALVOLINE CUMMINS PVT. LTD. "
}
},
{
"from_name": null,
"id": "872fc758100747818ff1204d509c111a",
"to_name": null,
"type": null,
"value": {
"end": 401,
"labels": [
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],
"start": 365,
"text": "..... Respondent\n "
}
},
{
"from_name": null,
"id": "319ba15c0dec47eca60beb293aa90539",
"to_name": null,
"type": null,
"value": {
"end": 567,
"labels": [
"PREAMBLE"
],
"start": 401,
"text": "Through Mr. Neeraj Jain with Mr. Aniket D.\n Agarwal, Advocates\n\n\n% Date of Decision: 13th March, 2020"
}
},
{
"from_name": null,
"id": "30ca63024cbc451bb80efde74a032334",
"to_name": null,
"type": null,
"value": {
"end": 679,
"labels": [
"PREAMBLE"
],
"start": 567,
"text": "\n\nCORAM:\nHON'BLE MR. JUSTICE MANMOHAN\nHON'BLE MR. JUSTICE SANJEEV NARULA\n\n JUDGMENT"
}
},
{
"from_name": null,
"id": "9e03257ef22c4f48843f993c4ab9bfaa",
"to_name": null,
"type": null,
"value": {
"end": 692,
"labels": [
"NONE"
],
"start": 679,
"text": "\n MANMOHAN, J"
}
},
{
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"id": "2b47a7ca2f3e4e0fa800a0fc7ca60fda",
"to_name": null,
"type": null,
"value": {
"end": 719,
"labels": [
"NONE"
],
"start": 692,
"text": ": (Oral) CM APPL. 9279/2020"
}
},
{
"from_name": null,
"id": "f18f99055e624de7abb6b0aeb93ab366",
"to_name": null,
"type": null,
"value": {
"end": 816,
"labels": [
"RPC"
],
"start": 720,
"text": "Keeping in view the averments in the application, delay in re-filing the appeal stands condoned."
}
},
{
"from_name": null,
"id": "7f58581a62c34fd6ad94d1dbc5b19873",
"to_name": null,
"type": null,
"value": {
"end": 872,
"labels": [
"RPC"
],
"start": 816,
"text": "\n Accordingly, the present application is allowed."
}
},
{
"from_name": null,
"id": "d742fd03b1704fcdbf108100f624f024",
"to_name": null,
"type": null,
"value": {
"end": 886,
"labels": [
"NONE"
],
"start": 872,
"text": "\nITA 187/2020 "
}
},
{
"from_name": null,
"id": "903d47ddd87f4ebab3aab21df2c23bce",
"to_name": null,
"type": null,
"value": {
"end": 1141,
"labels": [
"FAC"
],
"start": 886,
"text": "1. Present appeal has been filed by the revenue under Section 260A of the Income Tax Act, 1961 challenging the order dated 26 th November, 2018 passed by the Income Tax Appellate Tribunal in ITA No.527/Del/2016 for the Assessment Year 2011-12.\n2. "
}
},
{
"from_name": null,
"id": "a9b6da156f6849ecad0252d7ff1ff3d0",
"to_name": null,
"type": null,
"value": {
"end": 1306,
"labels": [
"FAC"
],
"start": 1141,
"text": "Admittedly, the present case is covered by the Assessee’ own case decided by a coordinate Bench of this Court for the Assessment Year 2010- 2011 in ITA No. 158/2016."
}
},
{
"from_name": null,
"id": "bc77bf87b3bd4c0b93da3d10b29c8170",
"to_name": null,
"type": null,
"value": {
"end": 1647,
"labels": [
"FAC"
],
"start": 1307,
"text": "The relevant portion of the order in ITA No.\n158/2016 is reproduced hereinbelow:- “1. This is an appeal filed by the Assessee under Section 260A of the Income Tax Act, 1961 („Act‟) challenging the order dated 31stMarch, 2015 passed by the Income Tax Appellate Tribunal („ITAT‟) in ITA No.608/Del/2015 for the Assessment Year („AY‟) 2010-11."
}
},
{
"from_name": null,
"id": "41eb7f076e264fd387822239d11cd582",
"to_name": null,
"type": null,
"value": {
"end": 2302,
"labels": [
"ISSUE"
],
"start": 1647,
"text": "\n 2. While admitting the appeal on 19 th February 2016, the following question was framed for determination by this Court: “Whether in light of the decision in Maruti Suzuki Ltd. v.\n CIT (2016) 381 ITR 117 (Del) the ITAT was justified in holding that there was an international transaction between the Assessee and its Associated Enterprise with regard to advertising, marketing and publicity (AMP) expenses and in remanding the matter to the Assessing Officer/Transfer Pricing Officer for determining the arms length price of such transaction for the purposes of transfer pricing adjustment?” xxxx xxxx xxxx xxxx 9."
}
},
{
"from_name": null,
"id": "005882154e8e48f58c655784d5cceb92",
"to_name": null,
"type": null,
"value": {
"end": 2628,
"labels": [
"RLC"
],
"start": 2303,
"text": "The Assessee drew the attention of the ITAT to the decision of this Court in Sony Ericsson India Pvt. Ltd. v. CIT (2015) 374 ITR 118 (Del) whereby the Court had declared that the BLT had no statutory mandate and considering the excess expenditure beyond the bright line as an international transaction was „unwarranted‟.\n 10."
}
},
{
"from_name": null,
"id": "552e7429690e4ab99244cfa164d36f7b",
"to_name": null,
"type": null,
"value": {
"end": 2688,
"labels": [
"RLC"
],
"start": 2629,
"text": "In para 5 of the impugned order, the ITAT noted as under: “"
}
},
{
"from_name": null,
"id": "552cba5581ba4673aa3e4f090a17e24e",
"to_name": null,
"type": null,
"value": {
"end": 2939,
"labels": [
"RLC"
],
"start": 2688,
"text": "5. On enquiry from the Bench, Ld. Counsel of the assessee submitted that the facts and figures required for coming to the conclusion pleaded by him were not available on record and an opportunity may be given to him to present the same before the TPO."
}
},
{
"from_name": null,
"id": "1aef344c8e6e49a1bc0b6283f4912426",
"to_name": null,
"type": null,
"value": {
"end": 3057,
"labels": [
"RLC"
],
"start": 2940,
"text": "He further submitted that the Revenue is also required to verify the fresh data to be submitted by the assessee.” 11."
}
},
{
"from_name": null,
"id": "693e956d33ad4a208c62e13440e28dc2",
"to_name": null,
"type": null,
"value": {
"end": 3257,
"labels": [
"RLC"
],
"start": 3058,
"text": "Ultimately, the ITAT stated that it had, in view of the submissions of the counsel of both sides, “no other option, but to set aside the issuein dispute to the file of the AO/TPO on the above issue.”"
}
},
{
"from_name": null,
"id": "79944e5b6d074ea3b2dafaf74ee39fbe",
"to_name": null,
"type": null,
"value": {
"end": 3336,
"labels": [
"RLC"
],
"start": 3258,
"text": "Further, the AO/TPO was directed to follow the binding judgment of this Court."
}
},
{
"from_name": null,
"id": "129f8deb955f4d78a16ae3c32d1ba3ec",
"to_name": null,
"type": null,
"value": {
"end": 3652,
"labels": [
"ARG_PETITIONER"
],
"start": 3338,
"text": "12. It is the submission of Mr. Vohra that, as explained by this Court in Sony Ericsson India Pvt. Ltd. (supra) and later in Maruti Suzuki India Limited v. CIT (2016) 328 ITR 210 (Del), a basic requirement had to be fulfilled prior to commencing the exercise of determining the ALP of an international transaction."
}
},
{
"from_name": null,
"id": "18aa393c8616482382ab924fd4eeace3",
"to_name": null,
"type": null,
"value": {
"end": 3818,
"labels": [
"ARG_PETITIONER"
],
"start": 3659,
"text": "The Revenue had to discharge its onus of showing that there was an international transaction involving the Assessee and its AE with regard to the AMP expenses."
}
},
{
"from_name": null,
"id": "e4a4e1c21d2b4d4ab40cac3b8194db34",
"to_name": null,
"type": null,
"value": {
"end": 3961,
"labels": [
"ARG_PETITIONER"
],
"start": 3819,
"text": "If the Revenue failed to discharge this onus then the question of the further step of determining the ALP of such AMP expenses does not arise."
}
},
{
"from_name": null,
"id": "644dfd4019d8457390f24f13ad667615",
"to_name": null,
"type": null,
"value": {
"end": 4058,
"labels": [
"ARG_PETITIONER"
],
"start": 3963,
"text": "13. Mr Vohra submitted that there was in fact no concession made by the Assessee on this score."
}
},
{
"from_name": null,
"id": "c69eddfaa7b84270bb3ebf8ac8dd4e95",
"to_name": null,
"type": null,
"value": {
"end": 4232,
"labels": [
"ARG_PETITIONER"
],
"start": 4059,
"text": "He submitted that the ITAT ought not to have remanded the matter to the TPO as the material on record before the ITAT was sufficient to arrive at a conclusion on this issue."
}
},
{
"from_name": null,
"id": "ac6d7400647e43b3b72cbeb2564db18d",
"to_name": null,
"type": null,
"value": {
"end": 4446,
"labels": [
"ARG_RESPONDENT"
],
"start": 4232,
"text": "\n 14. Mr. Sanjay Kumar, on the other hand, submitted that it was the Assessee‟s own case before the ITAT that in the absence of facts and figures the matter should be sent back to the TPO for a fresh determination."
}
},
{
"from_name": null,
"id": "48903a34b36d4174aaae53086ee12a4f",
"to_name": null,
"type": null,
"value": {
"end": 4630,
"labels": [
"ARG_RESPONDENT"
],
"start": 4447,
"text": "He further submitted that when the TPO decided the issue in the present case, he did not have the benefit of the decision of this Court in Sony Ericsson India Pvt. Ltd.\n (supra)."
}
},
{
"from_name": null,
"id": "e7d2f8deb7224a05b9e6c314ca64701d",
"to_name": null,
"type": null,
"value": {
"end": 4884,
"labels": [
"ARG_RESPONDENT"
],
"start": 4631,
"text": "He also submitted that if the matter went back to the TPO he would have to examine the issue afresh, de hors the BLT, and this was the reason why the entire matter, and not just the issue regarding determination of ALP, ought to be sent back to the TPO."
}
},
{
"from_name": null,
"id": "71a1cbc137b64ef8b6f46fece0f3bccb",
"to_name": null,
"type": null,
"value": {
"end": 5067,
"labels": [
"ARG_RESPONDENT"
],
"start": 4885,
"text": "Mr. Sanjay Kumar also placed reliance on this decision of this Court in Le Passage to India Tour & Travels (P) Ltd. v.\n The Deputy Commissioner of Income Tax (2017) 391 ITR 207."
}
},
{
"from_name": null,
"id": "36f15747144648c89d8de9128fad63c2",
"to_name": null,
"type": null,
"value": {
"end": 5275,
"labels": [
"ANALYSIS"
],
"start": 5067,
"text": "\n 15. The decision in Le Passage to India Tour & Travels (P) Ltd.\n (supra) turned on the fact that there was no determination by the TPO in the first place whether there was an international transaction."
}
},
{
"from_name": null,
"id": "5e9d0c9524b049db863f06c57d4ee8c9",
"to_name": null,
"type": null,
"value": {
"end": 5404,
"labels": [
"ANALYSIS"
],
"start": 5276,
"text": "In the present case, however, the TPO did apply his mind to the existence of an international transaction involving AMP expense."
}
},
{
"from_name": null,
"id": "a7675824c24a48c9a123f02fb9c640c8",
"to_name": null,
"type": null,
"value": {
"end": 5572,
"labels": [
"ANALYSIS"
],
"start": 5405,
"text": "The only ground on which the conclusion was reached by the TPO was that the AMP expenditure incurred by the Assessee was in excess of that incurred by the comparables."
}
},
{
"from_name": null,
"id": "fed16c7446d34dd8af06219f9ce434c3",
"to_name": null,
"type": null,
"value": {
"end": 5628,
"labels": [
"ANALYSIS"
],
"start": 5572,
"text": "\n His conclusion was not based on any other factor."
}
},
{
"from_name": null,
"id": "0cd979fac82d4faf8a7ad7a4980c994f",
"to_name": null,
"type": null,
"value": {
"end": 5756,
"labels": [
"ANALYSIS"
],
"start": 5629,
"text": "In other words, it was not as if the conclusion arrived by the TPO was based on two or three grounds, one of which was the BLT."
}
},
{
"from_name": null,
"id": "9c0be44421494ea19f62f67c69b5c7dc",
"to_name": null,
"type": null,
"value": {
"end": 6005,
"labels": [
"PRE_RELIED"
],
"start": 5758,
"text": "16. This Court in Sony Ericsson India Pvt. Ltd. (supra) categorically found that the BLT was not an appropriate yardstick for determining the existence of an international transaction or for that matter for calculating the ALP of such transaction."
}
},
{
"from_name": null,
"id": "5b50feb3f7324e1bb42ecbd78f69cd56",
"to_name": null,
"type": null,
"value": {
"end": 6186,
"labels": [
"PRE_NOT_RELIED"
],
"start": 6006,
"text": "The decision of the Full Bench of the ITAT in L.G.\n Electronics India Pvt. Ltd. v. ACIT (2013) 22 ITR (Trib.) 1 which sought to make BLT the basis was set aside by this Court."
}
},
{
"from_name": null,
"id": "1a4c5378c5c84fdd91dbf08f7865ab3f",
"to_name": null,
"type": null,
"value": {
"end": 6454,
"labels": [
"ANALYSIS"
],
"start": 6186,
"text": "\n 17. Once the BLT has been declared by this Court in Sony Ericsson India Pvt. Ltd. (supra) to no longer be a valid basis for determining the existence of or the ALP of an international transaction involving AMP expenses, the order of the TPO was unsustainable in law."
}
},
{
"from_name": null,
"id": "f1e9c8beae624f6381709d66dc1906e4",
"to_name": null,
"type": null,
"value": {
"end": 6677,
"labels": [
"ANALYSIS"
],
"start": 6455,
"text": "The mere fact that the Assessee was permitted to use the brand name „Valvoline‟ will not automatically lead to an inference that any expense that the Assessee incurred towards AMP was only to enhance the brand „Valvoline‟."
}
},
{
"from_name": null,
"id": "371048c0f5d8416cb3688a932adf2819",
"to_name": null,
"type": null,
"value": {
"end": 6907,
"labels": [
"ANALYSIS"
],
"start": 6678,
"text": "The onus was on the Revenue to show the existence of any arrangement or agreement on the basis of which it could be inferred that the AMP expense incurred by the Assessee was not for its own benefit but for the benefit of its AE."
}
},
{
"from_name": null,
"id": "dcfe7b3f4ccd47a4aa1e898336a389bb",
"to_name": null,
"type": null,
"value": {
"end": 6994,
"labels": [
"ANALYSIS"
],
"start": 6908,
"text": "That factual foundation has been unable to be laid by the Revenue in the present case."
}
},
{
"from_name": null,
"id": "ff9fb949a67f4fb5b72601ecd48e93c8",
"to_name": null,
"type": null,
"value": {
"end": 7145,
"labels": [
"ANALYSIS"
],
"start": 6995,
"text": "On the basis of the existing record, the TPO has found no basis other than by applying the BLT, to discern the existence of international transaction."
}
},
{
"from_name": null,
"id": "060164b1e5d3429fade7d78827ce0ad2",
"to_name": null,
"type": null,
"value": {
"end": 7256,
"labels": [
"ANALYSIS"
],
"start": 7146,
"text": "Therefore, no purpose will be served if the matter is remanded to the TPO, or even the ITAT, for this purpose."
}
},
{
"from_name": null,
"id": "370a26096f9a493c98dfcd8f1b41e517",
"to_name": null,
"type": null,
"value": {
"end": 7712,
"labels": [
"PRE_RELIED"
],
"start": 7258,
"text": "18. This Court has in similar circumstances in a series of decisions including Maruti Suzuki Ltd. (supra); Bausch & Lomb Eye care (India) Pvt. Ltd. v. Additional CIT (2016) 381 ITR 227 (Del) and Honda Siel Power Products Ltd. v. Dy. CIT (2016) 237 Taxman 304 emphasized the importance of the Revenue having to first discharge the initial burden upon it with regard to showing the existence of an international transaction between the Assessee and the AE."
}
},
{
"from_name": null,
"id": "d5afa8e20fcd479aa2c82bd8ca3e89a8",
"to_name": null,
"type": null,
"value": {
"end": 8079,
"labels": [
"RATIO"
],
"start": 7712,
"text": "\n 19. For the aforementioned reasons, this Court is of the view that the ITAT was not justified in remanding the matter to the AO/TPO for determining the ALP of the alleged international transaction involving AMP expenses, when in fact, the Revenue was unable to show that there existed an international transaction between the Assessee and its AE in the first place."
}
},
{
"from_name": null,
"id": "2dcf2dcb2307473887b06a8eb67c95aa",
"to_name": null,
"type": null,
"value": {
"end": 8218,
"labels": [
"RPC"
],
"start": 8081,
"text": "20. The question framed by this Court is, accordingly, answered in the negative, i.e., in favour of the Assessee and against the Revenue."
}
},
{
"from_name": null,
"id": "cc1a61de792b4d2181654bcea56ab28d",
"to_name": null,
"type": null,
"value": {
"end": 8264,
"labels": [
"RPC"
],
"start": 8219,
"text": "The appeal is, accordingly, allowed.” 3. "
}
},
{
"from_name": null,
"id": "b8abba0b6aa04ff69211d9ff341cfa15",
"to_name": null,
"type": null,
"value": {
"end": 8418,
"labels": [
"RPC"
],
"start": 8264,
"text": "Keeping in view the aforesaid judgment of the Division Bench of this Court, no substantial question of law arises for consideration in the present appeal."
}
},
{
"from_name": null,
"id": "d9032ae369fa4b5ba46b08b72e0ba8fc",
"to_name": null,
"type": null,
"value": {
"end": 8468,
"labels": [
"RPC"
],
"start": 8419,
"text": "Accordingly, the present appeal stands dismissed."
}
},
{
"from_name": null,
"id": "ae4e66ca8ff1400c866335a51ca73de0",
"to_name": null,
"type": null,
"value": {
"end": 8517,
"labels": [
"NONE"
],
"start": 8468,
"text": "\n MANMOHAN, J SANJEEV NARULA, J MARCH 13, 2020/rn"
}
}
]
}
] | 4,254 | {
"text": "$~\n* IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n+ ITA 187/2020\n\n THE PR. COMMISSIONER OF INCOME TAX -9 ..... Appellant\n Through Mr. Ruchir Bhatia, Sr. Standing\n Counsel with Ms. Madhura M.N.,\n Advocates\n versus\n\n VALVOLINE CUMMINS PVT. LTD. ..... Respondent\n Through Mr. Neeraj Jain with Mr. Aniket D.\n Agarwal, Advocates\n\n\n% Date of Decision: 13th March, 2020\n\nCORAM:\nHON'BLE MR. JUSTICE MANMOHAN\nHON'BLE MR. JUSTICE SANJEEV NARULA\n\n JUDGMENT\n MANMOHAN, J: (Oral) CM APPL. 9279/2020 Keeping in view the averments in the application, delay in re-filing the appeal stands condoned.\n Accordingly, the present application is allowed.\nITA 187/2020 1. Present appeal has been filed by the revenue under Section 260A of the Income Tax Act, 1961 challenging the order dated 26 th November, 2018 passed by the Income Tax Appellate Tribunal in ITA No.527/Del/2016 for the Assessment Year 2011-12.\n2. Admittedly, the present case is covered by the Assessee’ own case decided by a coordinate Bench of this Court for the Assessment Year 2010- 2011 in ITA No. 158/2016. The relevant portion of the order in ITA No.\n158/2016 is reproduced hereinbelow:- “1. This is an appeal filed by the Assessee under Section 260A of the Income Tax Act, 1961 („Act‟) challenging the order dated 31stMarch, 2015 passed by the Income Tax Appellate Tribunal („ITAT‟) in ITA No.608/Del/2015 for the Assessment Year („AY‟) 2010-11.\n 2. While admitting the appeal on 19 th February 2016, the following question was framed for determination by this Court: “Whether in light of the decision in Maruti Suzuki Ltd. v.\n CIT (2016) 381 ITR 117 (Del) the ITAT was justified in holding that there was an international transaction between the Assessee and its Associated Enterprise with regard to advertising, marketing and publicity (AMP) expenses and in remanding the matter to the Assessing Officer/Transfer Pricing Officer for determining the arms length price of such transaction for the purposes of transfer pricing adjustment?” xxxx xxxx xxxx xxxx 9. The Assessee drew the attention of the ITAT to the decision of this Court in Sony Ericsson India Pvt. Ltd. v. CIT (2015) 374 ITR 118 (Del) whereby the Court had declared that the BLT had no statutory mandate and considering the excess expenditure beyond the bright line as an international transaction was „unwarranted‟.\n 10. In para 5 of the impugned order, the ITAT noted as under: “5. On enquiry from the Bench, Ld. Counsel of the assessee submitted that the facts and figures required for coming to the conclusion pleaded by him were not available on record and an opportunity may be given to him to present the same before the TPO. He further submitted that the Revenue is also required to verify the fresh data to be submitted by the assessee.” 11. Ultimately, the ITAT stated that it had, in view of the submissions of the counsel of both sides, “no other option, but to set aside the issuein dispute to the file of the AO/TPO on the above issue.” Further, the AO/TPO was directed to follow the binding judgment of this Court.\n 12. It is the submission of Mr. Vohra that, as explained by this Court in Sony Ericsson India Pvt. Ltd. (supra) and later in Maruti Suzuki India Limited v. CIT (2016) 328 ITR 210 (Del), a basic requirement had to be fulfilled prior to commencing the exercise of determining the ALP of an international transaction.\n The Revenue had to discharge its onus of showing that there was an international transaction involving the Assessee and its AE with regard to the AMP expenses. If the Revenue failed to discharge this onus then the question of the further step of determining the ALP of such AMP expenses does not arise.\n 13. Mr Vohra submitted that there was in fact no concession made by the Assessee on this score. He submitted that the ITAT ought not to have remanded the matter to the TPO as the material on record before the ITAT was sufficient to arrive at a conclusion on this issue.\n 14. Mr. Sanjay Kumar, on the other hand, submitted that it was the Assessee‟s own case before the ITAT that in the absence of facts and figures the matter should be sent back to the TPO for a fresh determination. He further submitted that when the TPO decided the issue in the present case, he did not have the benefit of the decision of this Court in Sony Ericsson India Pvt. Ltd.\n (supra). He also submitted that if the matter went back to the TPO he would have to examine the issue afresh, de hors the BLT, and this was the reason why the entire matter, and not just the issue regarding determination of ALP, ought to be sent back to the TPO. Mr. Sanjay Kumar also placed reliance on this decision of this Court in Le Passage to India Tour & Travels (P) Ltd. v.\n The Deputy Commissioner of Income Tax (2017) 391 ITR 207.\n 15. The decision in Le Passage to India Tour & Travels (P) Ltd.\n (supra) turned on the fact that there was no determination by the TPO in the first place whether there was an international transaction. In the present case, however, the TPO did apply his mind to the existence of an international transaction involving AMP expense. The only ground on which the conclusion was reached by the TPO was that the AMP expenditure incurred by the Assessee was in excess of that incurred by the comparables.\n His conclusion was not based on any other factor. In other words, it was not as if the conclusion arrived by the TPO was based on two or three grounds, one of which was the BLT.\n 16. This Court in Sony Ericsson India Pvt. Ltd. (supra) categorically found that the BLT was not an appropriate yardstick for determining the existence of an international transaction or for that matter for calculating the ALP of such transaction. The decision of the Full Bench of the ITAT in L.G.\n Electronics India Pvt. Ltd. v. ACIT (2013) 22 ITR (Trib.) 1 which sought to make BLT the basis was set aside by this Court.\n 17. Once the BLT has been declared by this Court in Sony Ericsson India Pvt. Ltd. (supra) to no longer be a valid basis for determining the existence of or the ALP of an international transaction involving AMP expenses, the order of the TPO was unsustainable in law. The mere fact that the Assessee was permitted to use the brand name „Valvoline‟ will not automatically lead to an inference that any expense that the Assessee incurred towards AMP was only to enhance the brand „Valvoline‟. The onus was on the Revenue to show the existence of any arrangement or agreement on the basis of which it could be inferred that the AMP expense incurred by the Assessee was not for its own benefit but for the benefit of its AE. That factual foundation has been unable to be laid by the Revenue in the present case. On the basis of the existing record, the TPO has found no basis other than by applying the BLT, to discern the existence of international transaction. Therefore, no purpose will be served if the matter is remanded to the TPO, or even the ITAT, for this purpose.\n 18. This Court has in similar circumstances in a series of decisions including Maruti Suzuki Ltd. (supra); Bausch & Lomb Eye care (India) Pvt. Ltd. v. Additional CIT (2016) 381 ITR 227 (Del) and Honda Siel Power Products Ltd. v. Dy. CIT (2016) 237 Taxman 304 emphasized the importance of the Revenue having to first discharge the initial burden upon it with regard to showing the existence of an international transaction between the Assessee and the AE.\n 19. For the aforementioned reasons, this Court is of the view that the ITAT was not justified in remanding the matter to the AO/TPO for determining the ALP of the alleged international transaction involving AMP expenses, when in fact, the Revenue was unable to show that there existed an international transaction between the Assessee and its AE in the first place.\n 20. The question framed by this Court is, accordingly, answered in the negative, i.e., in favour of the Assessee and against the Revenue. The appeal is, accordingly, allowed.” 3. Keeping in view the aforesaid judgment of the Division Bench of this Court, no substantial question of law arises for consideration in the present appeal. Accordingly, the present appeal stands dismissed.\n MANMOHAN, J SANJEEV NARULA, J MARCH 13, 2020/rn "
} |
{
"group": "Criminal"
} | [
{
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"text": "IN THE GAUHATI"
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"text": "\n(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM & ARUNACHAL PRADESH)\n\n\n "
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},
{
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"start": 143,
"text": "Criminal Revision Petition No. 35 of 2008\n Sri Raj Kumar Gupta and 12 others\n ----- Accused/"
}
},
{
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"text": "petitioners\n "
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"start": 373,
"text": "\n\n The Union of India (NF Railway)\n ----- Respondent/Opposite Party.\n\n BEFORE\n Hon’ble Mr. Justice Hitesh Kumar Sarma"
}
},
{
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"text": " : Mr. BM Choudhury, Ms. N Borah,"
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},
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"text": ": Standing Counsel, NF Railway."
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"text": "\n\n Date of hearing and Judgment & Order :: 7th of September, 2017."
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],
"start": 979,
"text": "This revision petition is filed, under Section 397, read with Section 401 of the Code of Criminal Procedure, against the judgment and order dated 30-11-2007, passed by the learned Additional District and Sessions Judge (FTC) No. 2, Kamrup, Guwahati, in Criminal Appeal No. 89/2005, dismissing the criminal appeal and upholding the judgment and order, dated 26-07-2005, passed by learned Special Railway Magistrate, Guwahati, in CR Case No. 122C/1999, convicting the accused-petitioner No. 1, under Section 3 of the Railway Properties (Unlawful Possession) Act, 1966 (hereinafter referred to as ‘the RPUP Act’) and sentencing him to suffer rigorous imprisonment for 1 (one) year and to pay a fine of Rs.\n 5,000/-, in default, to suffer further simple imprisonment for 3 (three) months."
}
},
{
"from_name": null,
"id": "88b327e08088495c921af05bee17b653",
"to_name": null,
"type": null,
"value": {
"end": 1906,
"labels": [
"FAC"
],
"start": 1769,
"text": "The accused-petitioner Nos. 2 to 12 were sentenced to pay a fine of Rs. 500/- and in default, simple imprisonment for 1 (one) month each."
}
},
{
"from_name": null,
"id": "2572576335ba4f74b4694c2b67d15187",
"to_name": null,
"type": null,
"value": {
"end": 2008,
"labels": [
"NONE"
],
"start": 1906,
"text": "\n 2. I have heard Mr. BM Choudhury, learned counsel appearing on behalf of accused-petitioners."
}
},
{
"from_name": null,
"id": "42d6d59eccb744edbd763a85c4f973f7",
"to_name": null,
"type": null,
"value": {
"end": 2042,
"labels": [
"NONE"
],
"start": 2009,
"text": "None appears for the NF Railways."
}
},
{
"from_name": null,
"id": "949349ae19b34c89af085631cefebbf9",
"to_name": null,
"type": null,
"value": {
"end": 2172,
"labels": [
"NONE"
],
"start": 2043,
"text": "I have perused the judgments aforesaid as well as the records of the learned trial Court including the evidence of the witnesses."
}
},
{
"from_name": null,
"id": "30e968ea2be94307b9ff2cc289c683ff",
"to_name": null,
"type": null,
"value": {
"end": 2184,
"labels": [
"FAC"
],
"start": 2174,
"text": "3. "
}
},
{
"from_name": null,
"id": "08c6c35820b6480b8697de8a0f8e059b",
"to_name": null,
"type": null,
"value": {
"end": 2547,
"labels": [
"FAC"
],
"start": 2184,
"text": "The prosecution case, in brief, is that the complainant, Sri Bilal Hussain, ASI of Railway Protection Force/RPAN lodged an FIR alleging, inter alia, that on 25-10-1999, while he conducted a surprise check at Rangapara Railway Station Yard, he found a truck bearing registration No. AR-01-3846 with some CST-9 Pot railway properties along with the accused-persons."
}
},
{
"from_name": null,
"id": "ccd902e2abcb4b40acbcc4ebf8d9b639",
"to_name": null,
"type": null,
"value": {
"end": 2689,
"labels": [
"FAC"
],
"start": 2548,
"text": "On the basis of such fact, FIR was lodged and after investigation was made, prosecution report was submitted against the accused petitioners."
}
},
{
"from_name": null,
"id": "8c48ecc8546a4e55aad55b7640a38b05",
"to_name": null,
"type": null,
"value": {
"end": 2809,
"labels": [
"FAC"
],
"start": 2690,
"text": "The learned Railway Magistrate framed a formal charge against the accused-petitioners, under Section 3 of the RPUP Act."
}
},
{
"from_name": null,
"id": "c34ba8b736ef428bad856b258d60254c",
"to_name": null,
"type": null,
"value": {
"end": 3000,
"labels": [
"ISSUE"
],
"start": 2809,
"text": "\n 4. Now, the question is: Whether the accused-petitioners unlawfully possessed the Railway properties, i.e. CST-9 Pot and as such committed offence, under Section 3 of the RPUP Act."
}
},
{
"from_name": null,
"id": "35758b889c504febb8f04110b4ed34a6",
"to_name": null,
"type": null,
"value": {
"end": 3092,
"labels": [
"FAC"
],
"start": 3000,
"text": "\n 5. To substantiate the accusation, the prosecution examined as many as 8 witnesses."
}
},
{
"from_name": null,
"id": "10a46212f005482ab33f012be3a35cb1",
"to_name": null,
"type": null,
"value": {
"end": 3128,
"labels": [
"FAC"
],
"start": 3093,
"text": "The defence examined two witnesses."
}
},
{
"from_name": null,
"id": "df76e737e3ac47d88a158133a5a82af7",
"to_name": null,
"type": null,
"value": {
"end": 3250,
"labels": [
"FAC"
],
"start": 3129,
"text": "In his statement, under Section 313 of the Cr.P.C., the accused-petitioners denied the accusations levelled against them."
}
},
{
"from_name": null,
"id": "5f8cb91abc394206bb3ecbb931873400",
"to_name": null,
"type": null,
"value": {
"end": 3585,
"labels": [
"FAC"
],
"start": 3250,
"text": "\n 6. The complainant, Billal Hussain, was examined as PW1, who deposed that on 25-10-1998, he along with some other Railway Police, went for conducting surprise visit at Rangapara RPF Post, and found a truck bearing No. AP-01-3846 along with the accused-petitioners, who were carrying away CST-9 Pot without any valid documents."
}
},
{
"from_name": null,
"id": "2eca7b81961342fb9ce0fed7edafeeb3",
"to_name": null,
"type": null,
"value": {
"end": 3943,
"labels": [
"FAC"
],
"start": 3586,
"text": "The truck was seized along with the materials loaded and accused persons were arrested and thereafter, he lodged the FIR, vide Ext. 1.\n 7. PW2, Keshov Ch. Swargiary, is found to have deposed that the aforesaid materials were loaded in the truck by the accused-petitioners, on instructions of accused-petitioner, Raj Kr. Gupta, who was the Contractor."
}
},
{
"from_name": null,
"id": "5ec94b3cb98945f5ba65d2f0814a9780",
"to_name": null,
"type": null,
"value": {
"end": 4056,
"labels": [
"FAC"
],
"start": 3943,
"text": "\nSince he could not produce any valid documents, the materials were seized and the accused persons were arrested."
}
},
{
"from_name": null,
"id": "244f18a7ae3a4d8f816755e519f8349d",
"to_name": null,
"type": null,
"value": {
"end": 4179,
"labels": [
"FAC"
],
"start": 4056,
"text": "\n 8. PW3, Ganesh Kr. Das, is the person, in whose custody the aforesaid seized materials were kept by the informant."
}
},
{
"from_name": null,
"id": "6d2d133e69024845af160b1d4ca2a23a",
"to_name": null,
"type": null,
"value": {
"end": 4238,
"labels": [
"FAC"
],
"start": 4180,
"text": "No evidence is led by PW4 against the accused-petitioners."
}
},
{
"from_name": null,
"id": "d32c841f7f424573844bdfc6c0c5efe5",
"to_name": null,
"type": null,
"value": {
"end": 4250,
"labels": [
"FAC"
],
"start": 4240,
"text": "9. "
}
},
{
"from_name": null,
"id": "9da9ebcb1dcd453b9ea1f941e5536cdd",
"to_name": null,
"type": null,
"value": {
"end": 4379,
"labels": [
"FAC"
],
"start": 4250,
"text": "The evidence of PW5 is that the truck was seized with 223 numbers of CST-9 Pot, vide Ext. 2, and he was a witness of the seizure."
}
},
{
"from_name": null,
"id": "f609ffd287b54959b407f46407a60d66",
"to_name": null,
"type": null,
"value": {
"end": 4391,
"labels": [
"FAC"
],
"start": 4381,
"text": "10. "
}
},
{
"from_name": null,
"id": "41711aab0fd4461383cc4bd07e4bfa92",
"to_name": null,
"type": null,
"value": {
"end": 4463,
"labels": [
"FAC"
],
"start": 4391,
"text": "PW6, Kumud Ch. Das, deposed that the challan was seized vide Ext. 4.\n 11"
}
},
{
"from_name": null,
"id": "d351cf608aa14a19aba6e54549dd777d",
"to_name": null,
"type": null,
"value": {
"end": 4701,
"labels": [
"FAC"
],
"start": 4463,
"text": ". PW7, Raisuddin Ahmed, is the Investigating Officer, who seized the materials as already deposed as the accused persons could not produce any document for procuring the materials from the Railways and for loading them in the truck."
}
},
{
"from_name": null,
"id": "f038e12199a24c79b1654530afe36c92",
"to_name": null,
"type": null,
"value": {
"end": 4756,
"labels": [
"FAC"
],
"start": 4701,
"text": "\n 12. PW8 has not implicated the accused persons."
}
},
{
"from_name": null,
"id": "6da828811d134774bbf4d9c78f87931f",
"to_name": null,
"type": null,
"value": {
"end": 4803,
"labels": [
"ANALYSIS"
],
"start": 4756,
"text": "\n 13. The defence examined two witnesses."
}
},
{
"from_name": null,
"id": "dd8127679b6949848dc8060e9e5cb79e",
"to_name": null,
"type": null,
"value": {
"end": 5135,
"labels": [
"ANALYSIS"
],
"start": 4804,
"text": "The evidence of the defence is that the materials were loaded in the truck and for that they had valid document, which the learned trial Court did not believe; therefore, found taking away of materials by loading in the truck and holding the same to have been stolen, as such in the unlawful possession of the accused- petitioners."
}
},
{
"from_name": null,
"id": "d4b13f8807b44a3ead28a3e255519f44",
"to_name": null,
"type": null,
"value": {
"end": 5396,
"labels": [
"ANALYSIS"
],
"start": 5136,
"text": "The evidence on record makes it clear, particularly, the Ext.4, that there was a challan, issued to the accused-contractor, Raj Kr. Gupta, to take the materials from the godown for replacement of the slippers of the Railway track as he got a contract therefor."
}
},
{
"from_name": null,
"id": "1bb7c2ac6d884635bbf1bd82af452c40",
"to_name": null,
"type": null,
"value": {
"end": 5813,
"labels": [
"ANALYSIS"
],
"start": 5397,
"text": "What this Court notices, on examination of Ext. 4, is that while the first page of the challan was filled up with the particular of materials to be lifted, the fourth page thereof was left blank to be filled up at a later point of time, although signature of the competent authority of Railway Department was there with impression that it will be filled in after lifting of materials from the godown of the Railways."
}
},
{
"from_name": null,
"id": "aacb65db11d24f05bb9d0b33a19e4fe6",
"to_name": null,
"type": null,
"value": {
"end": 6031,
"labels": [
"ANALYSIS"
],
"start": 5814,
"text": "But it does not necessarily mean that the accused-contractor did not have the valid authority to lift the materials from the Railway Department since his contract was for replacement of slippers of the Railway tracks."
}
},
{
"from_name": null,
"id": "c5bc6109ed584f3f9e0dee8c31093141",
"to_name": null,
"type": null,
"value": {
"end": 6248,
"labels": [
"ANALYSIS"
],
"start": 6031,
"text": "\n 14. It appears from the seizure list that the materials seized were all not mentioned in the challan and some of the materials were found to have been lifted without their names being mentioned in the challan."
}
},
{
"from_name": null,
"id": "287929fd3e3042d7a768d85a8798c95c",
"to_name": null,
"type": null,
"value": {
"end": 6376,
"labels": [
"ANALYSIS"
],
"start": 6248,
"text": "\nTherefore, the materials, which were lifted without there being specific mention in the challan, were lifted without authority."
}
},
{
"from_name": null,
"id": "0eb1060b7a7f45fb85adb7d23b98c83a",
"to_name": null,
"type": null,
"value": {
"end": 6533,
"labels": [
"RATIO"
],
"start": 6376,
"text": "\n 15. That being so, the accused-petitioner, Raj Kumar Gupta, who lifted the materials, is found guilty of the offence under Section 3 of the RPUP Act."
}
},
{
"from_name": null,
"id": "ee18405e18a8482d9d2e90cd431334dd",
"to_name": null,
"type": null,
"value": {
"end": 6721,
"labels": [
"RATIO"
],
"start": 6534,
"text": "So far as the remaining accused-petitioner Nos. 2 to 13 are concerned, they were all labourers engaged by the accused-petitioner No.\n1, contractor, for loading the materials in the truck."
}
},
{
"from_name": null,
"id": "bd4d7553f7a24610a6a7704dcd4929aa",
"to_name": null,
"type": null,
"value": {
"end": 6983,
"labels": [
"RATIO"
],
"start": 6722,
"text": "They did not commit theft of the articles and as such it was not in their unlawful possession, and if at all, it was in the possession of any of the accused-petitioners, it was Raj Kr. Gupta, at whose instance the materials were lifted for loading in the truck."
}
},
{
"from_name": null,
"id": "6f7e7c6a113e4fa4a6e61e129c947d4d",
"to_name": null,
"type": null,
"value": {
"end": 7094,
"labels": [
"RPC"
],
"start": 6984,
"text": "Therefore, in the considered view of this Court, the revision petitioner Nos. 2 to 13 deserve to be acquitted."
}
},
{
"from_name": null,
"id": "83582d5fcd82433c87c8910141c2feaa",
"to_name": null,
"type": null,
"value": {
"end": 7216,
"labels": [
"RPC"
],
"start": 7094,
"text": "\n 16. In the result, the petitioner Nos. 2 to 13 of this petition are acquitted of the charge levelled against them."
}
},
{
"from_name": null,
"id": "fe77bc2c51f84181ad6e4d439cbde014",
"to_name": null,
"type": null,
"value": {
"end": 7582,
"labels": [
"RPC"
],
"start": 7216,
"text": "\n 17. So far as the accused-revision petitioner No. 1, Raj Kumar Gupta is concerned, he has been convicted under Section 3 of the Railway Properties (Unlawful Possession) Act, 1966 and sentenced to suffer rigorous imprisonment for 1 (one) year and to pay a fine of Rs. 5,000/-, in default, to suffer further simple imprisonment for 3 (three) months."
}
},
{
"from_name": null,
"id": "b0aaeebc24e7431a99c82aa0570f053c",
"to_name": null,
"type": null,
"value": {
"end": 7942,
"labels": [
"RPC"
],
"start": 7583,
"text": "In the considered view of this Court, considering the facts and circumstances of the case, while upholding the conviction of the accused-revision petitioner No.1, Raj Kumar Gupta, he is sentenced to pay a fine of Rs.\n3,000/-, in default, to suffer further simple imprisonment for 1 (one) months 18. Accordingly, this revision petition is partly allowed."
}
},
{
"from_name": null,
"id": "7ab50e5fb34d432a85269a5da40d65fd",
"to_name": null,
"type": null,
"value": {
"end": 8017,
"labels": [
"RPC"
],
"start": 7942,
"text": "\n 19. Send down the LCR along with a copy of this judgment and order."
}
},
{
"from_name": null,
"id": "87fc729674e04a09b3be0897666596d6",
"to_name": null,
"type": null,
"value": {
"end": 8029,
"labels": [
"NONE"
],
"start": 8017,
"text": "\n JUDGE Paul"
}
}
]
}
] | 4,145 | {
"text": " IN THE GAUHATI HIGH COURT\n(THE HIGH COURT OF ASSAM: NAGALAND: MIZORAM & ARUNACHAL PRADESH)\n\n\n Criminal Revision Petition No. 35 of 2008\n Sri Raj Kumar Gupta and 12 others\n ----- Accused/petitioners\n – VERSUS –\n\n The Union of India (NF Railway)\n ----- Respondent/Opposite Party.\n\n BEFORE\n Hon’ble Mr. Justice Hitesh Kumar Sarma\n\n Advocate for the petitioners : Mr. BM Choudhury, Ms. N Borah,\n Advocates.\n\n Advocate for Respondent : Standing Counsel, NF Railway.\n\n Date of hearing and Judgment & Order :: 7th of September, 2017.\n\n\n JUDGMENT & ORDER (oral) This revision petition is filed, under Section 397, read with Section 401 of the Code of Criminal Procedure, against the judgment and order dated 30-11-2007, passed by the learned Additional District and Sessions Judge (FTC) No. 2, Kamrup, Guwahati, in Criminal Appeal No. 89/2005, dismissing the criminal appeal and upholding the judgment and order, dated 26-07-2005, passed by learned Special Railway Magistrate, Guwahati, in CR Case No. 122C/1999, convicting the accused-petitioner No. 1, under Section 3 of the Railway Properties (Unlawful Possession) Act, 1966 (hereinafter referred to as ‘the RPUP Act’) and sentencing him to suffer rigorous imprisonment for 1 (one) year and to pay a fine of Rs.\n 5,000/-, in default, to suffer further simple imprisonment for 3 (three) months. The accused-petitioner Nos. 2 to 12 were sentenced to pay a fine of Rs. 500/- and in default, simple imprisonment for 1 (one) month each.\n 2. I have heard Mr. BM Choudhury, learned counsel appearing on behalf of accused-petitioners. None appears for the NF Railways. I have perused the judgments aforesaid as well as the records of the learned trial Court including the evidence of the witnesses.\n 3. The prosecution case, in brief, is that the complainant, Sri Bilal Hussain, ASI of Railway Protection Force/RPAN lodged an FIR alleging, inter alia, that on 25-10-1999, while he conducted a surprise check at Rangapara Railway Station Yard, he found a truck bearing registration No. AR-01-3846 with some CST-9 Pot railway properties along with the accused-persons. On the basis of such fact, FIR was lodged and after investigation was made, prosecution report was submitted against the accused petitioners. The learned Railway Magistrate framed a formal charge against the accused-petitioners, under Section 3 of the RPUP Act.\n 4. Now, the question is: Whether the accused-petitioners unlawfully possessed the Railway properties, i.e. CST-9 Pot and as such committed offence, under Section 3 of the RPUP Act.\n 5. To substantiate the accusation, the prosecution examined as many as 8 witnesses. The defence examined two witnesses. In his statement, under Section 313 of the Cr.P.C., the accused-petitioners denied the accusations levelled against them.\n 6. The complainant, Billal Hussain, was examined as PW1, who deposed that on 25-10-1998, he along with some other Railway Police, went for conducting surprise visit at Rangapara RPF Post, and found a truck bearing No. AP-01-3846 along with the accused-petitioners, who were carrying away CST-9 Pot without any valid documents. The truck was seized along with the materials loaded and accused persons were arrested and thereafter, he lodged the FIR, vide Ext. 1.\n 7. PW2, Keshov Ch. Swargiary, is found to have deposed that the aforesaid materials were loaded in the truck by the accused-petitioners, on instructions of accused-petitioner, Raj Kr. Gupta, who was the Contractor.\nSince he could not produce any valid documents, the materials were seized and the accused persons were arrested.\n 8. PW3, Ganesh Kr. Das, is the person, in whose custody the aforesaid seized materials were kept by the informant. No evidence is led by PW4 against the accused-petitioners.\n 9. The evidence of PW5 is that the truck was seized with 223 numbers of CST-9 Pot, vide Ext. 2, and he was a witness of the seizure.\n 10. PW6, Kumud Ch. Das, deposed that the challan was seized vide Ext. 4.\n 11. PW7, Raisuddin Ahmed, is the Investigating Officer, who seized the materials as already deposed as the accused persons could not produce any document for procuring the materials from the Railways and for loading them in the truck.\n 12. PW8 has not implicated the accused persons.\n 13. The defence examined two witnesses. The evidence of the defence is that the materials were loaded in the truck and for that they had valid document, which the learned trial Court did not believe; therefore, found taking away of materials by loading in the truck and holding the same to have been stolen, as such in the unlawful possession of the accused- petitioners. The evidence on record makes it clear, particularly, the Ext.4, that there was a challan, issued to the accused-contractor, Raj Kr. Gupta, to take the materials from the godown for replacement of the slippers of the Railway track as he got a contract therefor. What this Court notices, on examination of Ext. 4, is that while the first page of the challan was filled up with the particular of materials to be lifted, the fourth page thereof was left blank to be filled up at a later point of time, although signature of the competent authority of Railway Department was there with impression that it will be filled in after lifting of materials from the godown of the Railways. But it does not necessarily mean that the accused-contractor did not have the valid authority to lift the materials from the Railway Department since his contract was for replacement of slippers of the Railway tracks.\n 14. It appears from the seizure list that the materials seized were all not mentioned in the challan and some of the materials were found to have been lifted without their names being mentioned in the challan.\nTherefore, the materials, which were lifted without there being specific mention in the challan, were lifted without authority.\n 15. That being so, the accused-petitioner, Raj Kumar Gupta, who lifted the materials, is found guilty of the offence under Section 3 of the RPUP Act. So far as the remaining accused-petitioner Nos. 2 to 13 are concerned, they were all labourers engaged by the accused-petitioner No.\n1, contractor, for loading the materials in the truck. They did not commit theft of the articles and as such it was not in their unlawful possession, and if at all, it was in the possession of any of the accused-petitioners, it was Raj Kr. Gupta, at whose instance the materials were lifted for loading in the truck. Therefore, in the considered view of this Court, the revision petitioner Nos. 2 to 13 deserve to be acquitted.\n 16. In the result, the petitioner Nos. 2 to 13 of this petition are acquitted of the charge levelled against them.\n 17. So far as the accused-revision petitioner No. 1, Raj Kumar Gupta is concerned, he has been convicted under Section 3 of the Railway Properties (Unlawful Possession) Act, 1966 and sentenced to suffer rigorous imprisonment for 1 (one) year and to pay a fine of Rs. 5,000/-, in default, to suffer further simple imprisonment for 3 (three) months. In the considered view of this Court, considering the facts and circumstances of the case, while upholding the conviction of the accused-revision petitioner No.1, Raj Kumar Gupta, he is sentenced to pay a fine of Rs.\n3,000/-, in default, to suffer further simple imprisonment for 1 (one) months 18. Accordingly, this revision petition is partly allowed.\n 19. Send down the LCR along with a copy of this judgment and order.\n JUDGE Paul "
} |
{
"group": "Tax"
} | [
{
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"value": {
"end": 52,
"labels": [
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],
"start": 0,
"text": "$~26\n* IN THE HIGH COURT OF DELHI AT NEW DELHI"
}
},
{
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"id": "6d010bb61a8a43c19e6ee9d1043ffad9",
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"value": {
"end": 122,
"labels": [
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],
"start": 96,
"text": "Decided on: 15th May, 2017"
}
},
{
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"id": "37cfdb87ac654fd987d5f6ac6b8ac170",
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"value": {
"end": 197,
"labels": [
"ANALYSIS"
],
"start": 122,
"text": "\n+ W.P. (CRL.) 1021/2013\n\n DEPARTMENT OF CUSTOMS "
}
},
{
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"id": "1097d8d9896944e1a33f60f921af2695",
"to_name": null,
"type": null,
"value": {
"end": 231,
"labels": [
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],
"start": 197,
"text": "..... Petitioners\n "
}
},
{
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"id": "6238617acbf342b580984fd6ee002d5f",
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"type": null,
"value": {
"end": 550,
"labels": [
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],
"start": 231,
"text": "Through: Mr. Satish Aggarwala, Advocate with\n Ms. Pooja Bhaskar, Advocate\n\n versus\n\n RAM MOHAN GULATI & ORS. ..... Respondents\n Through: Respondents in person.\n\nCORAM:\nHON'BLE MR. JUSTICE R.K.GAUBA\n\n ORDER (ORAL) "
}
},
{
"from_name": null,
"id": "c71122d8384d4fdca2739a883586228e",
"to_name": null,
"type": null,
"value": {
"end": 859,
"labels": [
"FAC"
],
"start": 550,
"text": "1. The department of customs (petitioner), had statedly seized “worn clothes” from seven godowns in March, 2007 and in the wake of investigation carried out filed a criminal complaint, pending in the court of Additional Chief Metropolitan Magistrate (ACMM), New Delhi, on 03.07.2008 against four persons."
}
},
{
"from_name": null,
"id": "ca7aaa634f4b4e6ba0debbd76f5b4f97",
"to_name": null,
"type": null,
"value": {
"end": 1007,
"labels": [
"FAC"
],
"start": 860,
"text": "An application was moved on 04.07.2011 praying for an inventory to be prepared of the seized items under Section 110 (1B) of the Customs Act, 1962."
}
},
{
"from_name": null,
"id": "7797f11b8a20440e8a08b23c48f520a1",
"to_name": null,
"type": null,
"value": {
"end": 1094,
"labels": [
"FAC"
],
"start": 1008,
"text": "The said application addressed to the ACMM was made over to a Metropolitan Magistrate."
}
},
{
"from_name": null,
"id": "2e838ce37f5d4b85a7b8efc87a6ce211",
"to_name": null,
"type": null,
"value": {
"end": 1430,
"labels": [
"FAC"
],
"start": 1095,
"text": "By order dated 26.03.2013, the Metropolitan Magistrate dismissed it giving liberty to the applicant (the petitioner) to pursue the matter in an appropriate forum referring in this context to the judgment dated 21.02.2013 of a learned Single Judge of this Court in Crl.M.C. 526/2013 titled Directorate of Revenue Intelligence vs. State."
}
},
{
"from_name": null,
"id": "68f2e5a672c24d5aa9e84e46da8e680a",
"to_name": null,
"type": null,
"value": {
"end": 1572,
"labels": [
"FAC"
],
"start": 1430,
"text": "\nIt is the said order of the Metropolitan Magistrate which is sought to be assailed by the Department of Customs through the petition at hand."
}
},
{
"from_name": null,
"id": "1b6c488a006a4fbf86cd1d9bfee1b245",
"to_name": null,
"type": null,
"value": {
"end": 2628,
"labels": [
"STA"
],
"start": 1572,
"text": "\n 2. Section 110 of the Customs Act, 1962 reads as under:- 110. Seizure of goods, documents and things. – (1) If the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods;: Provided that where it is not practicable to seize any such goods, the proper officer may serve on the owner of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer.\n (1A) The Central Government may, having regard to the perishable or hazardous nature of any goods, depreciation in the value of the goods with the passage of time, constraints of storage space for the goods or any other relevant considerations, by notification in the Official Gazette, specify the goods or class of goods which shall, as soon as may be after its seizure under sub-section (1), be disposed of by the proper officer in such manner as the Central Government may, from time to time, determine after following the procedure hereinafter specified."
}
},
{
"from_name": null,
"id": "6751ecfc08d64030ae7e8a774a6b637f",
"to_name": null,
"type": null,
"value": {
"end": 3995,
"labels": [
"STA"
],
"start": 2628,
"text": "\n (1B) Where any goods, being goods specified under sub- section (1A), have been seized by a proper officer under sub- section (1), he shall prepare an inventory of such goods containing such details relating to their description, quality, quantity, mark, numbers, country of origin and other particulars as the proper officer may consider relevant to the identity of the goods in any proceedings under this Act and shall make an application to a Magistrate for the purpose of – (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of the Magistrate, photographs of such goods, and certifying such photographs as true; or (c) allowing to draw representative samples of such goods, in the presence of the Magistrate, and certifying the correctness of any list of samples so drawn.\n (1C) Where an application is made under sub-section (1B), the Magistrate shall, as soon as may be, allow the application.\n (2) Where any goods are seized under sub-section (1) and no notice in respect thereof is given under clause (a) of section 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized: Provided that the aforesaid period of six months may, on sufficient cause being shown, be extended by the Commissioner of Customs for a period not exceeding six months."
}
},
{
"from_name": null,
"id": "d90c9cad9b474b8fbd69f160071fa7e4",
"to_name": null,
"type": null,
"value": {
"end": 4143,
"labels": [
"STA"
],
"start": 3995,
"text": "\n (3) The proper officer may seize any documents or things which, in his opinion, will be useful for, or relevant to, any proceeding under this Act."
}
},
{
"from_name": null,
"id": "1b80b4561ad147aba8abefbe5cf18079",
"to_name": null,
"type": null,
"value": {
"end": 4346,
"labels": [
"STA"
],
"start": 4143,
"text": "\n (4) The person from whose custody any documents are seized under sub-section (3) shall be entitled to make copies thereof or take extracts therefrom in the presence of an officer of customs.” 3. "
}
},
{
"from_name": null,
"id": "586f8fb10cd74e648650d8dcfa127f28",
"to_name": null,
"type": null,
"value": {
"end": 4520,
"labels": [
"ANALYSIS"
],
"start": 4346,
"text": "Noticeably, the seizure of goods, documents or things under Section 110 of the Customs Act, 1962 is made by a proper officer who is duly empowered to take such action in law."
}
},
{
"from_name": null,
"id": "d17d977723cd4208ae7cb2ae4e4217cd",
"to_name": null,
"type": null,
"value": {
"end": 4805,
"labels": [
"ANALYSIS"
],
"start": 4521,
"text": "At the time of seizure, the said proper officer is expected to prepare an inventory of the goods seized, such inventory to contain all requisite details including their description, quality, quantity, marks, numbers, country of origin and other particulars relevant to their identity."
}
},
{
"from_name": null,
"id": "9cfe783caf3b4d41bd4116490f9c178f",
"to_name": null,
"type": null,
"value": {
"end": 5052,
"labels": [
"ANALYSIS"
],
"start": 4806,
"text": "The provisions contained in sub-Section (1B) and (IC) of the Section 110 of the Customs Act, 1962 enjoin upon the Magistrate before whom an application thereunder is made to allow the same as soon as possible, he having three courses open to him."
}
},
{
"from_name": null,
"id": "971f1a00667045d8a0371baffa18689a",
"to_name": null,
"type": null,
"value": {
"end": 5357,
"labels": [
"ANALYSIS"
],
"start": 5053,
"text": "He can either certify the correctness of the inventory so prepared or have photographs of the seized goods taken in his presence and certify such photographs as true or he may allow representative samples to be drawn in his presence and, thereafter, certify the correctness of list of samples thus drawn."
}
},
{
"from_name": null,
"id": "e67231911bef4dafbc114e82da409608",
"to_name": null,
"type": null,
"value": {
"end": 5436,
"labels": [
"ANALYSIS"
],
"start": 5357,
"text": "\n 4. The expression “Magistrate” is not defined in the Customs Act, 1962."
}
},
{
"from_name": null,
"id": "7b728fc3b2534f9da0b61b8ec6dd5fed",
"to_name": null,
"type": null,
"value": {
"end": 5562,
"labels": [
"ANALYSIS"
],
"start": 5437,
"text": "It, therefore, has to be understood with reference to the nature of the proceedings entrusted by the afore-quoted provisions."
}
},
{
"from_name": null,
"id": "f5d13c71e9e34b989f5f1e87356c1e6d",
"to_name": null,
"type": null,
"value": {
"end": 5769,
"labels": [
"STA"
],
"start": 5562,
"text": "\n 5. For present purposes, Section 3(4) of the Code of Criminal Procedure, 1973 (Cr.P.C.) provides the necessary guidelines, it reads thus:- “3. Construction of references.- (1) In this Code, - XXX (4)"
}
},
{
"from_name": null,
"id": "6d033f90c73847caa32fec599e9bbb39",
"to_name": null,
"type": null,
"value": {
"end": 6521,
"labels": [
"STA"
],
"start": 5770,
"text": "Where, under any law, other than this Code, the function exercisable by a Magistrate relate to matters- (a) which involve the appreciation or sifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any Court, they shall, subject to the provisions of this Code, be exercisable by a Judicial Magistrate; or (b) which are administrative or executive in nature, such as, the granting of a license, the suspension or cancellation of a license, sanctioning a prosecution or withdrawing from a prosecution, they shall, subject as aforesaid, be exercisable by an Executive Magistrate.”"
}
},
{
"from_name": null,
"id": "57e1d51130f146a0ab3bc3007c73e102",
"to_name": null,
"type": null,
"value": {
"end": 6530,
"labels": [
"ANALYSIS"
],
"start": 6522,
"text": "6. "
}
},
{
"from_name": null,
"id": "8c1100c670224713a494e20bd575bbfa",
"to_name": null,
"type": null,
"value": {
"end": 6833,
"labels": [
"ANALYSIS"
],
"start": 6530,
"text": "There can be no doubt as to the fact that the proceedings of the above nature are not adjudicatory so as to involve appreciation or sifting of evidence or formulating any decision which might expose any person to any punishment or penalty or detention in custody or to put him on trial before any court."
}
},
{
"from_name": null,
"id": "c36b5824dca04684acbf457c62a8a57b",
"to_name": null,
"type": null,
"value": {
"end": 6971,
"labels": [
"ANALYSIS"
],
"start": 6834,
"text": "The preparation of an inventory at the time of seizure is a step in investigation by the customs authorities under the Customs Act, 1962."
}
},
{
"from_name": null,
"id": "65478f20d64048d8b68b5fa3ea1e2d5b",
"to_name": null,
"type": null,
"value": {
"end": 7399,
"labels": [
"ANALYSIS"
],
"start": 6972,
"text": "The objective of the proceedings envisaged in sub-Section (1B) and sub-Section (1C) of Section 110 is to have reconfirmation of the correctness of such inventory and, if possible, to de-burden the investigating agency of the responsibility of retaining the entire goods thus seized and, instead, to preserve only what is absolutely necessary which may be in the form of photographs of the goods or their representative samples."
}
},
{
"from_name": null,
"id": "cd09033ec8c34a85aae838d0ba98eadd",
"to_name": null,
"type": null,
"value": {
"end": 7547,
"labels": [
"ANALYSIS"
],
"start": 7400,
"text": "This is clear, inter alia, from the further provisions contained in other clauses of Section 110 as also by Section 110-A of the Customs Act, 1962."
}
},
{
"from_name": null,
"id": "e56596400b8a4970b88b1026b1a139c4",
"to_name": null,
"type": null,
"value": {
"end": 8421,
"labels": [
"PRE_RELIED"
],
"start": 7547,
"text": "\n 7. In above view of the matter, the exercise of certification of the correctness of the inventory or taking of photographs of the seized goods or drawing representative samples can be nothing but an exercise which is administrative or executive in nature within the meaning of clause (b) of sub-Section (4) of Section 3 Cr.P.C.\nTherefore, the word “Magistrate” appearing in Section 110 (IB) and (1C) of the Customs Act, 1962 must be interpreted so as to be read as a reference to an Executive Magistrate and not to a Judicial Magistrate or a Metropolitan Magistrate.\n 8. A view to above effect taken by Gujarat High Court in Assistant Collector of Customs vs. Surender Praggar Gosain & Anr., (1988) 1 GLR 421 was adopted by a learned Single Judge of this court in Crl.M.C. No.526/2013, titled Directorate of Revenue Intelligence vs.\nState, decided on 21.02.2013."
}
},
{
"from_name": null,
"id": "01384aecd03b41dcbee17b7f9091f67e",
"to_name": null,
"type": null,
"value": {
"end": 8781,
"labels": [
"PRE_RELIED"
],
"start": 8421,
"text": " A contrary view taken by another learned Single Judge of this court in Crl. Misc. (Main) No.2484/1998, titled Department of Customs vs. Parvinder Kaur, decided on 24.08.2000 was apparently per incuriam and does not commend to be the correct approach for the reason the matter was not examined there in light of provision contained in Section 3(4) Cr.P.C."
}
},
{
"from_name": null,
"id": "c62ef03212e347a1b591c84ec7141f77",
"to_name": null,
"type": null,
"value": {
"end": 8883,
"labels": [
"RPC"
],
"start": 8791,
"text": "For the foregoing reasons, the petition is devoid of substance and is accordingly dismissed."
}
},
{
"from_name": null,
"id": "72087398ce46486ea2b7e8e38ae626d6",
"to_name": null,
"type": null,
"value": {
"end": 8914,
"labels": [
"NONE"
],
"start": 8883,
"text": "\n R.K.GAUBA, J.\nMAY 15, 2017 vk"
}
}
]
}
] | 4,203 | {
"text": "$~26\n* IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n Decided on: 15th May, 2017\n+ W.P. (CRL.) 1021/2013\n\n DEPARTMENT OF CUSTOMS ..... Petitioners\n Through: Mr. Satish Aggarwala, Advocate with\n Ms. Pooja Bhaskar, Advocate\n\n versus\n\n RAM MOHAN GULATI & ORS. ..... Respondents\n Through: Respondents in person.\n\nCORAM:\nHON'BLE MR. JUSTICE R.K.GAUBA\n\n ORDER (ORAL) 1. The department of customs (petitioner), had statedly seized “worn clothes” from seven godowns in March, 2007 and in the wake of investigation carried out filed a criminal complaint, pending in the court of Additional Chief Metropolitan Magistrate (ACMM), New Delhi, on 03.07.2008 against four persons. An application was moved on 04.07.2011 praying for an inventory to be prepared of the seized items under Section 110 (1B) of the Customs Act, 1962. The said application addressed to the ACMM was made over to a Metropolitan Magistrate. By order dated 26.03.2013, the Metropolitan Magistrate dismissed it giving liberty to the applicant (the petitioner) to pursue the matter in an appropriate forum referring in this context to the judgment dated 21.02.2013 of a learned Single Judge of this Court in Crl.M.C. 526/2013 titled Directorate of Revenue Intelligence vs. State.\nIt is the said order of the Metropolitan Magistrate which is sought to be assailed by the Department of Customs through the petition at hand.\n 2. Section 110 of the Customs Act, 1962 reads as under:- 110. Seizure of goods, documents and things. – (1) If the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods;: Provided that where it is not practicable to seize any such goods, the proper officer may serve on the owner of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer.\n (1A) The Central Government may, having regard to the perishable or hazardous nature of any goods, depreciation in the value of the goods with the passage of time, constraints of storage space for the goods or any other relevant considerations, by notification in the Official Gazette, specify the goods or class of goods which shall, as soon as may be after its seizure under sub-section (1), be disposed of by the proper officer in such manner as the Central Government may, from time to time, determine after following the procedure hereinafter specified.\n (1B) Where any goods, being goods specified under sub- section (1A), have been seized by a proper officer under sub- section (1), he shall prepare an inventory of such goods containing such details relating to their description, quality, quantity, mark, numbers, country of origin and other particulars as the proper officer may consider relevant to the identity of the goods in any proceedings under this Act and shall make an application to a Magistrate for the purpose of – (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of the Magistrate, photographs of such goods, and certifying such photographs as true; or (c) allowing to draw representative samples of such goods, in the presence of the Magistrate, and certifying the correctness of any list of samples so drawn.\n (1C) Where an application is made under sub-section (1B), the Magistrate shall, as soon as may be, allow the application.\n (2) Where any goods are seized under sub-section (1) and no notice in respect thereof is given under clause (a) of section 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized: Provided that the aforesaid period of six months may, on sufficient cause being shown, be extended by the Commissioner of Customs for a period not exceeding six months.\n (3) The proper officer may seize any documents or things which, in his opinion, will be useful for, or relevant to, any proceeding under this Act.\n (4) The person from whose custody any documents are seized under sub-section (3) shall be entitled to make copies thereof or take extracts therefrom in the presence of an officer of customs.” 3. Noticeably, the seizure of goods, documents or things under Section 110 of the Customs Act, 1962 is made by a proper officer who is duly empowered to take such action in law. At the time of seizure, the said proper officer is expected to prepare an inventory of the goods seized, such inventory to contain all requisite details including their description, quality, quantity, marks, numbers, country of origin and other particulars relevant to their identity. The provisions contained in sub-Section (1B) and (IC) of the Section 110 of the Customs Act, 1962 enjoin upon the Magistrate before whom an application thereunder is made to allow the same as soon as possible, he having three courses open to him. He can either certify the correctness of the inventory so prepared or have photographs of the seized goods taken in his presence and certify such photographs as true or he may allow representative samples to be drawn in his presence and, thereafter, certify the correctness of list of samples thus drawn.\n 4. The expression “Magistrate” is not defined in the Customs Act, 1962. It, therefore, has to be understood with reference to the nature of the proceedings entrusted by the afore-quoted provisions.\n 5. For present purposes, Section 3(4) of the Code of Criminal Procedure, 1973 (Cr.P.C.) provides the necessary guidelines, it reads thus:- “3. Construction of references.- (1) In this Code, - XXX (4) Where, under any law, other than this Code, the function exercisable by a Magistrate relate to matters- (a) which involve the appreciation or sifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any Court, they shall, subject to the provisions of this Code, be exercisable by a Judicial Magistrate; or (b) which are administrative or executive in nature, such as, the granting of a license, the suspension or cancellation of a license, sanctioning a prosecution or withdrawing from a prosecution, they shall, subject as aforesaid, be exercisable by an Executive Magistrate.” 6. There can be no doubt as to the fact that the proceedings of the above nature are not adjudicatory so as to involve appreciation or sifting of evidence or formulating any decision which might expose any person to any punishment or penalty or detention in custody or to put him on trial before any court. The preparation of an inventory at the time of seizure is a step in investigation by the customs authorities under the Customs Act, 1962. The objective of the proceedings envisaged in sub-Section (1B) and sub-Section (1C) of Section 110 is to have reconfirmation of the correctness of such inventory and, if possible, to de-burden the investigating agency of the responsibility of retaining the entire goods thus seized and, instead, to preserve only what is absolutely necessary which may be in the form of photographs of the goods or their representative samples. This is clear, inter alia, from the further provisions contained in other clauses of Section 110 as also by Section 110-A of the Customs Act, 1962.\n 7. In above view of the matter, the exercise of certification of the correctness of the inventory or taking of photographs of the seized goods or drawing representative samples can be nothing but an exercise which is administrative or executive in nature within the meaning of clause (b) of sub-Section (4) of Section 3 Cr.P.C.\nTherefore, the word “Magistrate” appearing in Section 110 (IB) and (1C) of the Customs Act, 1962 must be interpreted so as to be read as a reference to an Executive Magistrate and not to a Judicial Magistrate or a Metropolitan Magistrate.\n 8. A view to above effect taken by Gujarat High Court in Assistant Collector of Customs vs. Surender Praggar Gosain & Anr., (1988) 1 GLR 421 was adopted by a learned Single Judge of this court in Crl.M.C. No.526/2013, titled Directorate of Revenue Intelligence vs.\nState, decided on 21.02.2013. A contrary view taken by another learned Single Judge of this court in Crl. Misc. (Main) No.2484/1998, titled Department of Customs vs. Parvinder Kaur, decided on 24.08.2000 was apparently per incuriam and does not commend to be the correct approach for the reason the matter was not examined there in light of provision contained in Section 3(4) Cr.P.C.\n 9. For the foregoing reasons, the petition is devoid of substance and is accordingly dismissed.\n R.K.GAUBA, J.\nMAY 15, 2017 vk "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "2046f702ce5843eab28d0fa5b067d905",
"to_name": null,
"type": null,
"value": {
"end": 81,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "IN THE HIGH COURT OF JUDICATURE OF BOMBAY\n BENCH AT AURANGABAD"
}
},
{
"from_name": null,
"id": "ca825f3d510d45188bd69941583a7da9",
"to_name": null,
"type": null,
"value": {
"end": 159,
"labels": [
"PREAMBLE"
],
"start": 81,
"text": "\n\nCRIMINAL WRIT PETITION NO. 733 OF 2013\n\nSmt. Savitrabai Sureshchandra Khatod"
}
},
{
"from_name": null,
"id": "39ff23ac48974cb99c260d972bbd76e8",
"to_name": null,
"type": null,
"value": {
"end": 477,
"labels": [
"PREAMBLE"
],
"start": 161,
"text": "..PETITIONER\nAge : Major, Occ : Household,\nR/o Khatod Complex, Nirala Bazar,\nAurangabad, Dist. Aurangabad.\n\n VERSUS\n\nThe State of Maharashtra\nThrough the Police Station,\nKranti Chowk, Aurangabad.\n\n ..RESPONDENT\n\n ...\nAdvocate for Petitioner :"
}
},
{
"from_name": null,
"id": "0150e2a194424d5196bae6458d765c2c",
"to_name": null,
"type": null,
"value": {
"end": 498,
"labels": [
"PREAMBLE"
],
"start": 478,
"text": "Mr. Kalani Pravin N."
}
},
{
"from_name": null,
"id": "fc7a10e4b168491c9b5de51e3f031972",
"to_name": null,
"type": null,
"value": {
"end": 700,
"labels": [
"PREAMBLE"
],
"start": 506,
"text": "APP for Respondent : Mr. K.S. Patil\n ...\n\n CORAM : ABHAY M. THIPSAY, J.\n Dated: September 24, 2013\n ...\n\nORAL JUDGMENT"
}
},
{
"from_name": null,
"id": "bf0e4195f0bb44eba1855fbddf6e8824",
"to_name": null,
"type": null,
"value": {
"end": 708,
"labels": [
"NONE"
],
"start": 700,
"text": " : Rule."
}
},
{
"from_name": null,
"id": "65b72ee6c0f94fe29002b4d944a3784d",
"to_name": null,
"type": null,
"value": {
"end": 752,
"labels": [
"FAC"
],
"start": 709,
"text": "By consent, Rule made returnable forthwith."
}
},
{
"from_name": null,
"id": "b2c24dc534ea41c08a694db93aacac47",
"to_name": null,
"type": null,
"value": {
"end": 778,
"labels": [
"FAC"
],
"start": 753,
"text": "By consent heard finally."
}
},
{
"from_name": null,
"id": "13f80ac364fb446db089ecba123d545d",
"to_name": null,
"type": null,
"value": {
"end": 1034,
"labels": [
"FAC"
],
"start": 780,
"text": "2. The petitioner has filed a complaint in the Court of Chief Judicial Magistrate, Aurangabad against four persons alleging commission of offences punishable under Section 406 of Indian Penal Code (IPC), Section 409 of IPC and Section 420 of IPC by them."
}
},
{
"from_name": null,
"id": "f666b853626544678ee7e84912215f91",
"to_name": null,
"type": null,
"value": {
"end": 1194,
"labels": [
"FAC"
],
"start": 1035,
"text": "In the complaint, the petitioner prayed that an order under Section 156(3) of the Code of Criminal Procedure (Hereinafter referred to as \"the Code\") be passed."
}
},
{
"from_name": null,
"id": "ccf8bef8d8c1447cb68f85e5e4bd5c40",
"to_name": null,
"type": null,
"value": {
"end": 1555,
"labels": [
"FAC"
],
"start": 1195,
"text": "The learned Magistrate, after considering the avernments in the complaint, came to the conclusion that it was not proper to direct investigation into the matter as contemplated under Section 156(3) of the Code but, it would be sufficient, if the complaint is proceeded further by examining the complainant on oath as contemplated under Section 200 of the Code."
}
},
{
"from_name": null,
"id": "22bb0cf3850544378d7004d62099122e",
"to_name": null,
"type": null,
"value": {
"end": 1706,
"labels": [
"FAC"
],
"start": 1555,
"text": "\n The petitioner was not happy with this view of the Magistrate and challenged the Magistrate's order by approaching the Court of Sessions in Revision."
}
},
{
"from_name": null,
"id": "b80d430e87aa4635954dca95a24b0f69",
"to_name": null,
"type": null,
"value": {
"end": 2310,
"labels": [
"RLC"
],
"start": 1707,
"text": "The Additional Sessions Judge, Aurangabad, who heard the Revision, found the order passed by the Magistrate to be proper and dismissed the Revision.\n Being aggrieved thereby the petitioner has approached this Court invoking its constitutional jurisdiction and praying that the orders passed by the Chief Judicial Magistrate and by the Additional Sessions Judge be set aside; and that a direction may be given to the Police to register a crime and commence the investigation.\n 3. I have heard Mr. P.N. Kalani, the learned counsel for the petitioner and Mr. K.S. Patil, the learned A.P.P. for Respondent."
}
},
{
"from_name": null,
"id": "71f3af6372404bbb9bd23d20ab444964",
"to_name": null,
"type": null,
"value": {
"end": 2536,
"labels": [
"FAC"
],
"start": 2311,
"text": "The learned A.P.P. has shown to me the papers made available to him by the Police in connection with the complaint that had been filed with the Inspector of Police, Kranti Chowk Police Station by the petitioner on 28.12.2012."
}
},
{
"from_name": null,
"id": "babc17092ee34f85a5d17e17f8c8b2cd",
"to_name": null,
"type": null,
"value": {
"end": 2793,
"labels": [
"ARG_PETITIONER"
],
"start": 2536,
"text": "\n 4. The contention of the learned counsel for the petitioner is that since the complaint/report made by the petitioner disclosed the commission of a cognizable offence, it was incumbent on the Police to have registered a crime and commenced investigation."
}
},
{
"from_name": null,
"id": "5f29858b1a454a6ea43ed72d1df1fe12",
"to_name": null,
"type": null,
"value": {
"end": 2973,
"labels": [
"ARG_PETITIONER"
],
"start": 2794,
"text": "That, since the police did not do it, it was incumbent on the Magistrate, on the prayer of the petitioner to that effect, to direct investigation under Section 156(3) of the Code."
}
},
{
"from_name": null,
"id": "4086b7755be64b0baba08e5ae44d8c18",
"to_name": null,
"type": null,
"value": {
"end": 3183,
"labels": [
"ARG_PETITIONER"
],
"start": 2974,
"text": "According to him, the reasons given by the learned Magistrate, as also by the Additional Sessions Judge in holding that there was no necessity of ordering investigation into the matter are not proper or legal."
}
},
{
"from_name": null,
"id": "e3fd5d0f68e14413ad63e36debe96dab",
"to_name": null,
"type": null,
"value": {
"end": 3311,
"labels": [
"ANALYSIS"
],
"start": 3183,
"text": "\n 5. With the assistance of the learned counsel for the petitioner, I have gone through the Petition and the Annexures thereto."
}
},
{
"from_name": null,
"id": "b67a9810b0704d458b05263eed0c9619",
"to_name": null,
"type": null,
"value": {
"end": 3470,
"labels": [
"ANALYSIS"
],
"start": 3312,
"text": "I have gone through the complaint/report lodged by the petitioner with Kranti Chowk Police Station and also the complaint lodged by her before the Magistrate."
}
},
{
"from_name": null,
"id": "779c879b299b4ca6bd1d4d2482a44651",
"to_name": null,
"type": null,
"value": {
"end": 3581,
"labels": [
"ANALYSIS"
],
"start": 3470,
"text": "\n 6. It is true that entire reasonings adopted by the Chief Judicial Magistrate cannot be accepted as correct."
}
},
{
"from_name": null,
"id": "9eb763baa5d04e4f8f06a557eec8cf87",
"to_name": null,
"type": null,
"value": {
"end": 3864,
"labels": [
"PRE_NOT_RELIED"
],
"start": 3582,
"text": "Particularly, there is substance in the contention of the learned counsel for the petitioner that the Chief Judicial Magistrate's interpretation of the observations made in the case of Popatbhai Panchambhai Bhutani V/s State of Maharashtra ( 2010 All M.R.(Cri.) 244) is not correct."
}
},
{
"from_name": null,
"id": "d216a93555874f7785435fd861336ea5",
"to_name": null,
"type": null,
"value": {
"end": 4182,
"labels": [
"ANALYSIS"
],
"start": 3865,
"text": "It appears that the Chief Judicial Magistrate was of the view that an order for investigation, as contemplated in Section 156(3) of the Code, should not be passed unless the aggrieved person has approached a superior officer of the police against the refusal by the Incharge of the Police Station to register a crime."
}
},
{
"from_name": null,
"id": "7a74623bf5234b51ad378fc75813e610",
"to_name": null,
"type": null,
"value": {
"end": 4241,
"labels": [
"PRE_NOT_RELIED"
],
"start": 4183,
"text": "The decision in Popatbhai's case (supra) no where says so."
}
},
{
"from_name": null,
"id": "e46876b32a3a41b78e2f21f53ffe0806",
"to_name": null,
"type": null,
"value": {
"end": 4485,
"labels": [
"PRE_NOT_RELIED"
],
"start": 4242,
"text": "All that it says is that, ordinarily, the Police should be approached first; and this approaching of police is meant to be approaching the Inspector of Police of the concerned Police Station with a report of commission of a cognizable offence."
}
},
{
"from_name": null,
"id": "4998cefc9e61437c8ebe7e23830efd9e",
"to_name": null,
"type": null,
"value": {
"end": 4849,
"labels": [
"ANALYSIS"
],
"start": 4486,
"text": "In case of refusal to register a crime on the basis of such report by the Officer Incharge of a Police Station, the superior officer of the police, may or may not be approached by the informant; and approaching such a superior officer cannot be said to be a condition precedent for approaching the Magistrate for seeking an order under Section 156(3) of the Code."
}
},
{
"from_name": null,
"id": "0d8345033269453780c797961f2ad029",
"to_name": null,
"type": null,
"value": {
"end": 5191,
"labels": [
"ANALYSIS"
],
"start": 4850,
"text": "As a matter of fact, the decision clearly lays down that there is no legal bar for approaching a Magistrate directly i.e. even without invoking provisions of Section 154 of the Code but, it has been laid down that normally a person should invoke the provisions of Section 154 of the Code before taking recourse to the powers of a Magistrate."
}
},
{
"from_name": null,
"id": "3b82674ae7e94b0c81c537e02e345dfc",
"to_name": null,
"type": null,
"value": {
"end": 5583,
"labels": [
"ANALYSIS"
],
"start": 5192,
"text": "Thus, ordinarily, a report should be made to the officer Incharge of the police station before approaching a Magistrate but, this requirement cannot be further stretched to mean that in case of refusal by an officer incharge of a police station, a superior officer of the police must necessarily be approached before a Magistrate is approached for an order under Section 156 (3) of the Code."
}
},
{
"from_name": null,
"id": "0bb80921dce94056b08eb2546b550271",
"to_name": null,
"type": null,
"value": {
"end": 5793,
"labels": [
"ANALYSIS"
],
"start": 5583,
"text": "\n 7. Be that as it may, in the instant case, there appears to be civil dispute pending between the petitioner and the persons against whom the complaint was lodged with the police and before the Magistrate."
}
},
{
"from_name": null,
"id": "6f4d3055caef4aa892781262539088b9",
"to_name": null,
"type": null,
"value": {
"end": 6103,
"labels": [
"ANALYSIS"
],
"start": 5794,
"text": "I have carefully gone through the letter dated 28.12.2012 addressed by the petitioner to the Inspector of Police, Kranti Chowk Police Station and I am unable to hold that it is such, that the police were bound to treat it as the `first information of commission of a cognizable offence' and register the same."
}
},
{
"from_name": null,
"id": "a36aff77b54a4ca6be764a9cd5e99792",
"to_name": null,
"type": null,
"value": {
"end": 6112,
"labels": [
"ANALYSIS"
],
"start": 6105,
"text": "8. "
}
},
{
"from_name": null,
"id": "abfbc73f71d64c209220129687b15452",
"to_name": null,
"type": null,
"value": {
"end": 6311,
"labels": [
"ANALYSIS"
],
"start": 6112,
"text": "It is not that the Magistrate has come to the conclusion that there is no case for proceeding against the persons against whom the complaint is lodged and he is considering that aspect of the matter."
}
},
{
"from_name": null,
"id": "695f35040d264788b1d6bf93625a48d0",
"to_name": null,
"type": null,
"value": {
"end": 6438,
"labels": [
"ANALYSIS"
],
"start": 6312,
"text": "He has kept the matter for examination of the complainant i.e. the petitioner under the provisions of Section 200 of the Code."
}
},
{
"from_name": null,
"id": "d7d3ac24715644dd9b02a20fd2e636af",
"to_name": null,
"type": null,
"value": {
"end": 6649,
"labels": [
"ANALYSIS"
],
"start": 6439,
"text": "The petitioner's contention that the Magistrate was obliged to order an investigation, and that he could not have decided to proceed in accordance with the provisions of Chapter XV of the Code, is unreasonable."
}
},
{
"from_name": null,
"id": "cda68907994f4944b2de69f846ee5336",
"to_name": null,
"type": null,
"value": {
"end": 6811,
"labels": [
"RATIO"
],
"start": 6649,
"text": "\n 9. This is not a case where there is any patent illegality or perversity in the order passed by the learned Magistrate, or by the Additional Sessions Judge."
}
},
{
"from_name": null,
"id": "94544f80044e43899cc18b6c6d3e184e",
"to_name": null,
"type": null,
"value": {
"end": 6943,
"labels": [
"RATIO"
],
"start": 6812,
"text": "Consequently, there is no case for invocation of the constitutional jurisdiction of this Court which is of an extraordinary nature."
}
},
{
"from_name": null,
"id": "1ab80bc9b94a49d88635f3df8b383dc1",
"to_name": null,
"type": null,
"value": {
"end": 6977,
"labels": [
"RPC"
],
"start": 6943,
"text": "\n 10. The petition is dismissed."
}
},
{
"from_name": null,
"id": "e32b46c776024642ba1ae7406743a807",
"to_name": null,
"type": null,
"value": {
"end": 7004,
"labels": [
"RPC"
],
"start": 6977,
"text": "\n 11. Rule is discharged."
}
},
{
"from_name": null,
"id": "926ab7969ea741e7918cf298743900dd",
"to_name": null,
"type": null,
"value": {
"end": 7033,
"labels": [
"NONE"
],
"start": 7004,
"text": "\n Sd/ ( ABHAY M. THIPSAY, J.)"
}
},
{
"from_name": null,
"id": "b687d23f9b35484189d3ab8b8a3d2b3b",
"to_name": null,
"type": null,
"value": {
"end": 7042,
"labels": [
"NONE"
],
"start": 7034,
"text": "*** sga/"
}
}
]
}
] | 4,114 | {
"text": "IN THE HIGH COURT OF JUDICATURE OF BOMBAY\n BENCH AT AURANGABAD\n\nCRIMINAL WRIT PETITION NO. 733 OF 2013\n\nSmt. Savitrabai Sureshchandra Khatod ..PETITIONER\nAge : Major, Occ : Household,\nR/o Khatod Complex, Nirala Bazar,\nAurangabad, Dist. Aurangabad.\n\n VERSUS\n\nThe State of Maharashtra\nThrough the Police Station,\nKranti Chowk, Aurangabad.\n\n ..RESPONDENT\n\n ...\nAdvocate for Petitioner : Mr. Kalani Pravin N.\n\n APP for Respondent : Mr. K.S. Patil\n ...\n\n CORAM : ABHAY M. THIPSAY, J.\n Dated: September 24, 2013\n ...\n\nORAL JUDGMENT : Rule. By consent, Rule made returnable forthwith. By consent heard finally.\n 2. The petitioner has filed a complaint in the Court of Chief Judicial Magistrate, Aurangabad against four persons alleging commission of offences punishable under Section 406 of Indian Penal Code (IPC), Section 409 of IPC and Section 420 of IPC by them. In the complaint, the petitioner prayed that an order under Section 156(3) of the Code of Criminal Procedure (Hereinafter referred to as \"the Code\") be passed. The learned Magistrate, after considering the avernments in the complaint, came to the conclusion that it was not proper to direct investigation into the matter as contemplated under Section 156(3) of the Code but, it would be sufficient, if the complaint is proceeded further by examining the complainant on oath as contemplated under Section 200 of the Code.\n The petitioner was not happy with this view of the Magistrate and challenged the Magistrate's order by approaching the Court of Sessions in Revision. The Additional Sessions Judge, Aurangabad, who heard the Revision, found the order passed by the Magistrate to be proper and dismissed the Revision.\n Being aggrieved thereby the petitioner has approached this Court invoking its constitutional jurisdiction and praying that the orders passed by the Chief Judicial Magistrate and by the Additional Sessions Judge be set aside; and that a direction may be given to the Police to register a crime and commence the investigation.\n 3. I have heard Mr. P.N. Kalani, the learned counsel for the petitioner and Mr. K.S. Patil, the learned A.P.P. for Respondent. The learned A.P.P. has shown to me the papers made available to him by the Police in connection with the complaint that had been filed with the Inspector of Police, Kranti Chowk Police Station by the petitioner on 28.12.2012.\n 4. The contention of the learned counsel for the petitioner is that since the complaint/report made by the petitioner disclosed the commission of a cognizable offence, it was incumbent on the Police to have registered a crime and commenced investigation. That, since the police did not do it, it was incumbent on the Magistrate, on the prayer of the petitioner to that effect, to direct investigation under Section 156(3) of the Code. According to him, the reasons given by the learned Magistrate, as also by the Additional Sessions Judge in holding that there was no necessity of ordering investigation into the matter are not proper or legal.\n 5. With the assistance of the learned counsel for the petitioner, I have gone through the Petition and the Annexures thereto. I have gone through the complaint/report lodged by the petitioner with Kranti Chowk Police Station and also the complaint lodged by her before the Magistrate.\n 6. It is true that entire reasonings adopted by the Chief Judicial Magistrate cannot be accepted as correct. Particularly, there is substance in the contention of the learned counsel for the petitioner that the Chief Judicial Magistrate's interpretation of the observations made in the case of Popatbhai Panchambhai Bhutani V/s State of Maharashtra ( 2010 All M.R.(Cri.) 244) is not correct. It appears that the Chief Judicial Magistrate was of the view that an order for investigation, as contemplated in Section 156(3) of the Code, should not be passed unless the aggrieved person has approached a superior officer of the police against the refusal by the Incharge of the Police Station to register a crime. The decision in Popatbhai's case (supra) no where says so. All that it says is that, ordinarily, the Police should be approached first; and this approaching of police is meant to be approaching the Inspector of Police of the concerned Police Station with a report of commission of a cognizable offence. In case of refusal to register a crime on the basis of such report by the Officer Incharge of a Police Station, the superior officer of the police, may or may not be approached by the informant; and approaching such a superior officer cannot be said to be a condition precedent for approaching the Magistrate for seeking an order under Section 156(3) of the Code. As a matter of fact, the decision clearly lays down that there is no legal bar for approaching a Magistrate directly i.e. even without invoking provisions of Section 154 of the Code but, it has been laid down that normally a person should invoke the provisions of Section 154 of the Code before taking recourse to the powers of a Magistrate. Thus, ordinarily, a report should be made to the officer Incharge of the police station before approaching a Magistrate but, this requirement cannot be further stretched to mean that in case of refusal by an officer incharge of a police station, a superior officer of the police must necessarily be approached before a Magistrate is approached for an order under Section 156 (3) of the Code.\n 7. Be that as it may, in the instant case, there appears to be civil dispute pending between the petitioner and the persons against whom the complaint was lodged with the police and before the Magistrate. I have carefully gone through the letter dated 28.12.2012 addressed by the petitioner to the Inspector of Police, Kranti Chowk Police Station and I am unable to hold that it is such, that the police were bound to treat it as the `first information of commission of a cognizable offence' and register the same.\n 8. It is not that the Magistrate has come to the conclusion that there is no case for proceeding against the persons against whom the complaint is lodged and he is considering that aspect of the matter. He has kept the matter for examination of the complainant i.e. the petitioner under the provisions of Section 200 of the Code. The petitioner's contention that the Magistrate was obliged to order an investigation, and that he could not have decided to proceed in accordance with the provisions of Chapter XV of the Code, is unreasonable.\n 9. This is not a case where there is any patent illegality or perversity in the order passed by the learned Magistrate, or by the Additional Sessions Judge. Consequently, there is no case for invocation of the constitutional jurisdiction of this Court which is of an extraordinary nature.\n 10. The petition is dismissed.\n 11. Rule is discharged.\n Sd/ ( ABHAY M. THIPSAY, J.) *** sga/ "
} |
{
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"start": 40,
"text": "IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\nDATED THIS THE 2nd DAY OF JANUARY 2017\n\n BEFORE\n\nTHE HON'BLE MRS.JUSTICE RATHNAKALA\n\nCRIMINAL REVISION PETITION NO.473/2012\n C/W\n\nCRIMINAL REVISION PETITION NO.480/2012\n\nIN CRL.RP. NO.473/2012\n\nBETWEEN:\n\n1."
}
},
{
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"start": 347,
"text": "Smt.Shylaja"
}
},
{
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"value": {
"end": 496,
"labels": [
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"start": 358,
"text": "\n W/o V.Somanna\n R/o No.967, II Main Road\n Vijayanagar\n Bangalore-560 040.\n\n2. Sri.V.Somanna, ...PETITIONERS"
}
},
{
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"id": "b58035810c544abf88a051c70425d75b",
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"value": {
"end": 535,
"labels": [
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"start": 496,
"text": "\n S/o Late Veeranna\n Major in age"
}
},
{
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"id": "971ca7607c404fddaed942b49d0b974f",
"to_name": "text",
"type": "labels",
"value": {
"end": 898,
"labels": [
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],
"start": 540,
"text": "Minister for Housing,\n Government of Karnataka\n R/o No.967, II Main Road\n Vijaynagar\n Bangalore-560 040.\n\n(By Sri C.V.Nagesh, Sr.Adv. for\nSri.Murthy Dayanand Naik, Adv. for\nPetitioner No.1.;\nSri.H.S.Chandramouli, Adv. for\nPetitioner No.2)\n\nIN CRL.R.P. NO.480/2012\n\nD.Lingaiah\nS/o Late Devegowda\n\nAged about 67 years ...PETITIONER"
}
},
{
"from_name": "label",
"id": "362bcd06d72c49a3b27dae0d55a82227",
"to_name": "text",
"type": "labels",
"value": {
"end": 916,
"labels": [
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],
"start": 898,
"text": "\nResiding at No.75"
}
},
{
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"id": "adf156769199413e908cfdbcb6a34832",
"to_name": "text",
"type": "labels",
"value": {
"end": 935,
"labels": [
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],
"start": 916,
"text": "\nMariyappanahapalya"
}
},
{
"from_name": "label",
"id": "fde9e2f4cb1449a1994340bd5ac16bea",
"to_name": "text",
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"value": {
"end": 975,
"labels": [
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],
"start": 935,
"text": "\nBangalore University\nBangalore-560 056."
}
},
{
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"id": "32890c0ccf1946c1b27da2e62a6c8178",
"to_name": "text",
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"end": 1008,
"labels": [
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],
"start": 977,
"text": "(By Sri.Hareesh Bhandary, Adv.)"
}
},
{
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"to_name": "text",
"type": "labels",
"value": {
"end": 1245,
"labels": [
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],
"start": 1008,
"text": "\n\nAND:\n\n1. The Superintendent of Police\n Lokayukta, Bangalore Urban\n M.S.Building\n Bangalore.\n\n2. Ravi Krishna Reddy\n\n S/o Krishna Reddy V.\n\n R/o No.400, 23rd Main\n\n BTM Layout, 2nd Stage\n\n Bangalore-560 076."
}
},
{
"from_name": "label",
"id": "6b63e5182cb04d3cb8a769e5f8715ea8",
"to_name": "text",
"type": "labels",
"value": {
"end": 2343,
"labels": [
"PREAMBLE"
],
"start": 1258,
"text": "...RESPONDENTS\n\n (COMMON)\n\n(By Sri.B.S.Prasad, Spl.PP for R-1/Lokayukta;\n\nSri.P.N.Hegde, Adv. For R-2)\n\n CRL.R.P.NO.473/2012 is filed under Section 397(1)\nread with Section 401 of Cr.P.C. praying to set aside the order\ndated 13.4.2012 passed by the Special Judge, Prevention of\nCorruption Act, Bangalore Urban in P.C.R.No.25/2011 taking\ncognizance of the offence and issuing summons to the\naccused No.2 and 3/petitioners herein and further be pleased\nto dismiss the complaint filed by the respondent No.2 against\nthe petitioners in Spl.C.C.No.46/2012 (PCR No.25/2011) on\nthe file of the XXIII Addl.C.C. and Spl.Judge for Prevention of\nCorruption Act.\n\n CRL.R.P.NO.480/2012 is filed under Section 397(1) of\nCr.P.C. praying to set aside the order dated 13.4.2012 passed\nby the XXIII Addl.City Civil and Special Judge for Prevention\nof Corruption Act, Bangalore Urban in Spl.C.C.No.46/2012\n\n(PCR No.25/2011) and further be pleased to dismiss the\ncomplaint against the petitioner/accused No.4.\n\n These Criminal Revision Petitions"
}
},
{
"from_name": "label",
"id": "f7f9ed448fd64409a7eb56cb4d03d5e5",
"to_name": "text",
"type": "labels",
"value": {
"end": 2508,
"labels": [
"PREAMBLE"
],
"start": 2344,
"text": "having been reserved\non 01.12.2016 and coming on for pronouncement of orders\nthis day, the Court made the following:\n\n O R D E R\n "
}
},
{
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"id": "a8ec4a519d3e47e5b05ef175dc568ad0",
"to_name": "text",
"type": "labels",
"value": {
"end": 2725,
"labels": [
"FAC"
],
"start": 2508,
"text": "The Revision Petitioners being arrayed as accused persons in a private complaint filed by respondent No.2 are challenging the order of the Special Judge in taking cognizance of the offence and issuing summons to them."
}
},
{
"from_name": "label",
"id": "b213be736f2e483e82d75547727697b5",
"to_name": "text",
"type": "labels",
"value": {
"end": 2815,
"labels": [
"FAC"
],
"start": 2725,
"text": "\n 2. Briefly stated, the second respondent filed a complaint against four accused persons."
}
},
{
"from_name": "label",
"id": "67c999e7ba4a4db7a21f6aac3dd45812",
"to_name": "text",
"type": "labels",
"value": {
"end": 2912,
"labels": [
"FAC"
],
"start": 2816,
"text": "The First accused is the Former Deputy Chief Minister/Chief Minister of Government of Karnataka."
}
},
{
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"id": "98614b755fed440e92d3ff9737e09151",
"to_name": "text",
"type": "labels",
"value": {
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"labels": [
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],
"start": 2913,
"text": "The second accused is the wife of third accused, who is MLC and Former Minster of Government of Karnataka and the fourth accused is the landlord of the immovable properties,"
}
},
{
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"id": "1cec59c229824efc8f9e493b1780dd3a",
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"end": 3147,
"labels": [
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],
"start": 3087,
"text": "the de-notification of which was challenged in the complaint"
}
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"end": 3259,
"labels": [
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],
"start": 3147,
"text": ". The learned Special Judge referred the matter for investigation to the first respondent/Lokayukta Police."
}
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"end": 3415,
"labels": [
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"start": 3260,
"text": "After investigation, the Investigating Officer submitted `B' Final Report since there was no evidence/documentary proof in support of complaint allegation."
}
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"labels": [
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"text": "The learned Special Judge rejected the final report and took cognizance in respect of the offences under Sections 406, 409, 420, 463, 464, 468, 471 read with Section 120B of the Indian Penal Code, Sections 13(1)(c) and (d) read with Section 13(2) of the Prevention of Corruption Act (`the Act' for short) and Sections 3, 4 and 5 read with Section 9 of the Karnataka Land (Restriction and Transfer) Act, 1991 (`the K.L.R.T.Act' for short)."
}
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"end": 3990,
"labels": [
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],
"start": 3854,
"text": "\n 3. Sri.C.V.Nagesh, learned Senior Counsel appearing on behalf of the petitioners submits that the final report was filed on 21.3.2012."
}
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"end": 4102,
"labels": [
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"start": 3991,
"text": "On the same day, complainant filed a memo and he was heard on 21.3.2012 and the matter was posted to 29.3.2012."
}
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"end": 4164,
"labels": [
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],
"start": 4103,
"text": "On 29.3.2012 the matter was reserved for orders on 13.4.2012."
}
},
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"end": 4238,
"labels": [
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"start": 4165,
"text": "However, the complainant got the case advanced to 5.4.2012 and was heard."
}
},
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"end": 4403,
"labels": [
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],
"start": 4239,
"text": "On 13.4.2012, the learned Special Judge rejected the final report and took cognizance against the petitioners and others and issued summons returnable by 30.4.2012."
}
},
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"end": 4541,
"labels": [
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],
"start": 4404,
"text": "The learned Judge has not followed the mandatory procedure envisaged under Sections 200 and 202 of the Code, in directly issuing summons."
}
},
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"end": 4735,
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],
"start": 4542,
"text": "Since the complainant had filed a protest application, same had to be treated as private complaint and the mandatory procedure contemplated at Chapter-V of the Code ought to have been followed."
}
},
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"end": 4846,
"labels": [
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],
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"text": "The discussion in the body of the impugned order does not reflect that the learned Judge has taken cognizance."
}
},
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"labels": [
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"start": 4847,
"text": "As such, very reference of the complaint for investigation was bad in law since the complainant had not obtained prior sanction under Section 19 of the Act and Section 197 of the Code."
}
},
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"end": 5148,
"labels": [
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],
"start": 5032,
"text": "Petitioner No.2 is a \"public servant\"\nfalling under the definition of Section 2(c) of the Act and Section 21 of IPC."
}
},
{
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"labels": [
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],
"start": 5149,
"text": "Thus the entire proceedings is vitiated."
}
},
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"end": 5284,
"labels": [
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],
"start": 5190,
"text": "Even otherwise, the complaint allegations do not make out any offence against the petitioners."
}
},
{
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"end": 5339,
"labels": [
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],
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"text": "They are in no way connected to the crime in question."
}
},
{
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"end": 5403,
"labels": [
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],
"start": 5340,
"text": "The complaint allegations are absurd and inherently improbable."
}
},
{
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"value": {
"end": 5481,
"labels": [
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],
"start": 5404,
"text": "The impugned order is passed in a mechanical way without application of mind."
}
},
{
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"value": {
"end": 5674,
"labels": [
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],
"start": 5482,
"text": "Hence, the continuation of proceedings would be an abuse of process of the Court and the petitioners will have to unnecessarily undergo the ordeal of facing the trial before the Special Court."
}
},
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"value": {
"end": 5995,
"labels": [
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],
"start": 5676,
"text": "Learned Senior Counsel continues to submit that as per law enunciated in Vasanti Dubey vs- State of Madhya Pradesh ([2012] 2 SCC 731), it is only after holding an enquiry, the learned Trial Court would have formed an opinion as to whether the complainant has made out a case for the purpose of proceeding in the matter."
}
},
{
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"value": {
"end": 6309,
"labels": [
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],
"start": 5996,
"text": "The impugned order is passed without proper application of judicial mind, thus, against the principles laid down by the Apex Court in Sunil Bharti Mittal vs- Central Bureau of Investigation reported in (2015) 4 SCC 609 and M/s.GHCL Employees Stock Option Trust vs- M/s.India Infoline Limited ((2013) 4 SCC 505).\n "
}
},
{
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"id": "637a65365c1e49988343ac49271c2b85",
"to_name": "text",
"type": "labels",
"value": {
"end": 6439,
"labels": [
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],
"start": 6309,
"text": "The documents collected by the Investigating Officer during the course of his investigation is not looked into by the trial court."
}
},
{
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"value": {
"end": 6570,
"labels": [
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],
"start": 6440,
"text": "In the gazette notification itself, the fourth accused Lingaiah's name is notified and award is also passed in favour of Lingaiah."
}
},
{
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"id": "8ea5e7cd2877408f89435235a319de21",
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"value": {
"end": 6694,
"labels": [
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],
"start": 6571,
"text": "As per the status reports of the BDA, several structures have come up over the land in Sy.Nos.77 and 78 of Nagadevanahalli."
}
},
{
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"id": "d8ac4af932fc4e81a3b8b104e5d24a05",
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"value": {
"end": 6857,
"labels": [
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],
"start": 6694,
"text": "\nSome of the structures are also regularized by the authority concerned and a Trust is also running educational institutions in the structure standing on the land."
}
},
{
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"id": "be7c217ee9bc4b11aa837bfbee0da3b0",
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"value": {
"end": 6914,
"labels": [
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],
"start": 6858,
"text": "B.D.A. has not been able to take possession of the land."
}
},
{
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"id": "a11c0ed6231e4cb5988d6899312764d7",
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"value": {
"end": 7098,
"labels": [
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],
"start": 6915,
"text": "The investigation material also indicates that, large extent of land in Sy.Nos.77 and 78 of Nagadevanahalli is already de-notified and the land in question cannot be availed by B.D.A."
}
},
{
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"id": "b37adadddf8f40c48ad5437bb798b30a",
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"value": {
"end": 7312,
"labels": [
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],
"start": 7099,
"text": "Since the possession of the land continued with the applicant, the Government in its wisdom and in exercise of power clothed upon it under Section 48 of the Land Acquisition Act ordered denotification of the land."
}
},
{
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"id": "e4ede3e5173e4091af8df2d175389cb3",
"to_name": "text",
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"value": {
"end": 7384,
"labels": [
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],
"start": 7313,
"text": "Said order of denotification so far is not challenged before any forum."
}
},
{
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"id": "1b14b27a818e4e508e07ca66d7407a9b",
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"value": {
"end": 7668,
"labels": [
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],
"start": 7385,
"text": "There was no illegality on the part of the land owner in continuing his efforts for an order of denotification, since his name was borne in the revenue records and the preliminary notification, till issuance of notification under Section 16(2) of Bangalore Development Authority Act."
}
},
{
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"value": {
"end": 7761,
"labels": [
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],
"start": 7669,
"text": "The De- notification Committee is not a Statutory Committee, it is only a recommending body."
}
},
{
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"id": "ad01c19bcfea44ed9dc31e117b95a64d",
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"value": {
"end": 7930,
"labels": [
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],
"start": 7762,
"text": "The Trial Court itself has observed that there was absolutely no legal impediment for the authority to exercise its powers under Section 48 of the Land Acquisition Act."
}
},
{
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"id": "c225320c205f482f84c259e73292f187",
"to_name": "text",
"type": "labels",
"value": {
"end": 8236,
"labels": [
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],
"start": 7931,
"text": "On identical allegations, the cognizance taken by the Special Judge was quashed by this Court in exercise of power under Section 482 of the Code of Criminal Procedure (`the Code' for short) in Criminal Petition No.7274/2012 and connected cases D.D. 18.12.2015 (Sri.Hamed Ali vs- Kabbalegowda and another)."
}
},
{
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"id": "f1656c46009f470785db75a4796de531",
"to_name": "text",
"type": "labels",
"value": {
"end": 8564,
"labels": [
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],
"start": 8237,
"text": "To make out an offence under Section 13(2) of the Act for violation of the provisions of Section 13(1)(d) of the Act, there must be material indicating demand or request for a valuable thing or a pecuniary advantage by the Public Servant, as held by the Apex Court, in A.Subair vs- State of Kerala reported in [2009] 6 SCC 587."
}
},
{
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"id": "2fd4c9d6f5144aa9a62a1d76ff905336",
"to_name": "text",
"type": "labels",
"value": {
"end": 8676,
"labels": [
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],
"start": 8565,
"text": "The vital fact is, in the complaint, there was no allegation of demand and acceptance of illegal gratification."
}
},
{
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"id": "dd5352bbe0e44a9b967ff03758dd8484",
"to_name": "text",
"type": "labels",
"value": {
"end": 8834,
"labels": [
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],
"start": 8677,
"text": "Even the ingredients of Sections 406 and 420 of IPC are lacking in the case on hand (placing reliance on Common Causes vs- Union of India ([1999] 6 SCC 667)."
}
},
{
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"id": "f9d2ac436a624020a9839c624aa72a2c",
"to_name": "text",
"type": "labels",
"value": {
"end": 9313,
"labels": [
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],
"start": 8836,
"text": "Learned Senior Counsel further submits that in view of the following judgments of the Apex Court, issuance of summons cannot be termed as an Interlocutory Order within the meaning of Section 19(3)(c) of the Act or Section 397(2) of the Code: i) Bhaskar Industries Ltd. vs Bhiwani Denim and Apparels Ltd. And Others (2001 SCC (Crl.) 1254); ii) Urmila Devi vs- Yudhvir Singh ([2013] 15 SCC 624); and iii) Prabhu Chawla vs- State of Rajasthan and Another (AIR 2016 SC 4245)."
}
},
{
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"id": "c930479ff66249039beb2dc7a59e40af",
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"type": "labels",
"value": {
"end": 9422,
"labels": [
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],
"start": 9315,
"text": "The petitioners are not challenging in these revision petitions the Order directing framing of the charges."
}
},
{
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"id": "dc1e4c87984f438681d91c9ff1da45c2",
"to_name": "text",
"type": "labels",
"value": {
"end": 9692,
"labels": [
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],
"start": 9422,
"text": "\nHence, the order of the learned Special Judge dated 13.4.2012 in P.C.R.No.25/2011 in taking cognizance of the offence and issuing summons to the accused persons since challenged, these revision petitions are maintainable and the impugned order deserves to be set aside."
}
},
{
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"id": "ee8816e1ae964479af64bf7ec18b9ba2",
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"value": {
"end": 10054,
"labels": [
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],
"start": 9692,
"text": "\n 4. Sri.B.S.Prasad, learned Special Public Prosecutor for Lokayuktha though does not support the order of the Special Judge, has a technical objection to the maintainability of the petition in view of the bar enumerated in Section 19(3)(c) of the P.C. Act restricting revision jurisdiction against any interlocutory order passed in the proceeding under the Act."
}
},
{
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"end": 10241,
"labels": [
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],
"start": 10054,
"text": "\n 5. Sri.P.N.Hegde, learned Counsel appearing for R- 2/complainant in reply submits, first accused is the Former Chief Minister of Government of Karnataka between 30.5.2008 and 31.7.2011."
}
},
{
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"id": "ecb75e80d42f47afb2c05ac084de130b",
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"value": {
"end": 10322,
"labels": [
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],
"start": 10242,
"text": "The third accused was earlier an MLA elected on Indian National Congress ticket."
}
},
{
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"id": "704f4e50fad64093b2d04c93fbdc0403",
"to_name": "text",
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"value": {
"end": 10489,
"labels": [
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],
"start": 10323,
"text": "He resigned from the membership w.e.f. 4.4.2009 and joined Bharatiya Janata Party and was inducted into the Council of Ministers headed by first accused on 18.6.2009."
}
},
{
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"id": "c87db26336624db6a054ec958a33e576",
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"type": "labels",
"value": {
"end": 10592,
"labels": [
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],
"start": 10490,
"text": "In the by-election he suffered defeat, thus, had to resign from the Council of Ministers on 31.8.2009."
}
},
{
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"id": "af4c52ff31534112851c2cb6942e0d5e",
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"type": "labels",
"value": {
"end": 10711,
"labels": [
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],
"start": 10593,
"text": "He was elected to upper house of the Legislature on 24.6.2010 and was inducted to the Cabinet headed by first accused."
}
},
{
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"id": "375b43ed4f144f2d966d2e1f9d0d3bd9",
"to_name": "text",
"type": "labels",
"value": {
"end": 10756,
"labels": [
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],
"start": 10712,
"text": "Second accused is the wife of third accused."
}
},
{
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"id": "28dcafc4ff7d4d969a6543049261bd2e",
"to_name": "text",
"type": "labels",
"value": {
"end": 10864,
"labels": [
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],
"start": 10757,
"text": "She is the President of VSS Educational Group of Institutions and the Trustee of the VSS Educational Trust."
}
},
{
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"id": "02b8c42b74da4119ab996ea7b228f040",
"to_name": "text",
"type": "labels",
"value": {
"end": 11035,
"labels": [
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],
"start": 10865,
"text": "The fourth accused was the absolute owner of the properties bearing Sy.No.77 measuring 1 acre 30 guntas and another property bearing Sy.No.78 measuring 2 acres 10 guntas."
}
},
{
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"id": "a8ddadbb7b53418082cf268f0b84fe49",
"to_name": "text",
"type": "labels",
"value": {
"end": 11167,
"labels": [
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],
"start": 11036,
"text": "A preliminary notification was passed on 2.2.1989 by the Bangalore Development Authority for the formation of Jnanabharathi Layout."
}
},
{
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"id": "d1f5d8cce91044d9ac64fb5c9fab068d",
"to_name": "text",
"type": "labels",
"value": {
"end": 11250,
"labels": [
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],
"start": 11168,
"text": "The above said properties belonging to the father of fourth accused were notified."
}
},
{
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"id": "4021a601092d4ec4b2ea974eba80e2b4",
"to_name": "text",
"type": "labels",
"value": {
"end": 11373,
"labels": [
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],
"start": 11251,
"text": "Objections were filed by the fourth accused and his brother to the preliminary notification for the proposed acquisitions."
}
},
{
"from_name": "label",
"id": "bc0d122f73eb4d7bbea0186c88410388",
"to_name": "text",
"type": "labels",
"value": {
"end": 11495,
"labels": [
"ARG_RESPONDENT"
],
"start": 11374,
"text": "There was a family partition in respect of the above properties and those properties fell to the share of fourth accused."
}
},
{
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"id": "686b766890714ee2a473bb6e0d540a0b",
"to_name": "text",
"type": "labels",
"value": {
"end": 11553,
"labels": [
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],
"start": 11496,
"text": "A memorandum of partition was entered into on 28.10.1993."
}
},
{
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"id": "cf13f7d4ff164e80a9376ee0e111b158",
"to_name": "text",
"type": "labels",
"value": {
"end": 11606,
"labels": [
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],
"start": 11554,
"text": "A final notification came to be issued on 19.1.1994."
}
},
{
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"id": "a298b5d99d53423d8695ba25a3179fbc",
"to_name": "text",
"type": "labels",
"value": {
"end": 11721,
"labels": [
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],
"start": 11607,
"text": "Some properties belonging to the father of fourth accused along with the above mentioned properties were notified."
}
},
{
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"id": "043506dbc2b94ab1b1537ca1790a3b83",
"to_name": "text",
"type": "labels",
"value": {
"end": 11824,
"labels": [
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],
"start": 11722,
"text": "Again there was a protest memo by the fourth accused and his brothers seeking to drop the proceedings."
}
},
{
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"id": "33bdd45423004a49ba2a7c9b4b9a93e4",
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"value": {
"end": 12067,
"labels": [
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],
"start": 11825,
"text": "In furtherance of the final notification, the possession of the land is taken over on 26.8.1997 and is handed over to the Engineering Section of BDA on 15.9.1997; award is passed and the compensation is deposited in the RD account of the BDA."
}
},
{
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"id": "87b6381ff1b942fca639a08ded6702b5",
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"value": {
"end": 12146,
"labels": [
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],
"start": 12068,
"text": "A notification under Section 16(2) of the L.A.Act is also issued on 25.6.1998."
}
},
{
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"id": "67e68911bbc2411791bc17df92aa2d31",
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"value": {
"end": 12200,
"labels": [
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],
"start": 12147,
"text": "The fourth accused was well aware of the above facts."
}
},
{
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"id": "4e6a5e8931cc41af988e113ee2b9afca",
"to_name": "text",
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"value": {
"end": 12343,
"labels": [
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],
"start": 12201,
"text": "Sections 3 and 4 of the Karnataka Land (Restriction on Transfer) Act, 1991 creates a bar for the land owners from disposing of notified lands."
}
},
{
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"id": "84a47928f89a4168884e4dec8db18049",
"to_name": "text",
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"value": {
"end": 12419,
"labels": [
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],
"start": 12344,
"text": "Still he has executed the sale deed on 4.9.2004 and handed over possession."
}
},
{
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"id": "a49e38c8d6c74e33901f3ec87f916e7c",
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"value": {
"end": 12612,
"labels": [
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],
"start": 12420,
"text": "On the same day, vacant site Nos.47, 48 and 49 carved out of Sy.Nos.77 and 78 are sold out to second accused by a separate registered sale deed for consideration and possession is handed over."
}
},
{
"from_name": "label",
"id": "4a33d717026a452e8e44e30c3adaf083",
"to_name": "text",
"type": "labels",
"value": {
"end": 12747,
"labels": [
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],
"start": 12613,
"text": "After the alienation, fourth accused had no right to make any representation to the Principal Secretary, Urban Development Department."
}
},
{
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"id": "f07320e476374ddd894d4c4cdc0dad08",
"to_name": "text",
"type": "labels",
"value": {
"end": 13102,
"labels": [
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],
"start": 12747,
"text": "\nUntil the first accused assumed office, the land was not de-notified, however, on the first accused taking charge as the Chief Minister of the State, the fourth accused gave one more representation on 6.6.2009 to the Principal Secretary, Urban Development Department to drop 22 guntas of land in Sy.Nos.77 and 78, which he had sold to the second accused."
}
},
{
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"id": "1b1a967aec3f42ef965a71863e8b2765",
"to_name": "text",
"type": "labels",
"value": {
"end": 13361,
"labels": [
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],
"start": 13103,
"text": "The Principal Secretary, Urban Development Department in his note dated 20.6.2009 expressed his opinion that prayer sought for cannot be considered as per law since the property has already been vested with the BDA and the process of acquisition is complete."
}
},
{
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"id": "62280ad227354a2abd587de957d90d37",
"to_name": "text",
"type": "labels",
"value": {
"end": 13591,
"labels": [
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],
"start": 13362,
"text": "But the first accused ignored the opinion of the Senior Officer and overruled the decision of the Principal Secretary and ordered for de-notification of 22 guntas of the land in Sy.Nos.77 and 78 in the name of the fourth accused."
}
},
{
"from_name": "label",
"id": "e9973f8d398b43338416991e7c293000",
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"value": {
"end": 13689,
"labels": [
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],
"start": 13592,
"text": "When the second accused purchased the lands in question, buildings were not existing on the same."
}
},
{
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"id": "88de8d6c470a47479bc1c752f27d0825",
"to_name": "text",
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"value": {
"end": 14072,
"labels": [
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],
"start": 13690,
"text": "In the Assets and Liabilities Statement for the year 2009-10, the third accused submitted to the Registrar, Karnataka Lokayukta, since he was the then sitting MLC had declared that, site Nos.47, 48 and 49 in Sy.No.78 measuring 21178 sq.ft.\nworth Rs.28,35,314/- is leased out and vacant plot No.50 measuring 2490 sq.ft. stands in the name of second accused in the same survey number."
}
},
{
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"id": "f28012f0ed0c4f4cbe669b71379bd221",
"to_name": "text",
"type": "labels",
"value": {
"end": 14131,
"labels": [
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],
"start": 14073,
"text": "There was no mention of any building standing on the land."
}
},
{
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"id": "5eb5bf07f93b4205af55c00691689733",
"to_name": "text",
"type": "labels",
"value": {
"end": 14351,
"labels": [
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],
"start": 14132,
"text": "But the fourth accused in his application stated that there were buildings over the said properties and he is in possession of the same at the time of passing the de-notification order of the lands by the first accused."
}
},
{
"from_name": "label",
"id": "1661608b14884110bb788b240deba439",
"to_name": "text",
"type": "labels",
"value": {
"end": 14548,
"labels": [
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],
"start": 14353,
"text": "Learned Counsel continues to submit that the second accused filed her self-assessment of property tax in respect of the properties situated in Sy.Nos.77 and 78 to the BBMP for the year 2007-2008."
}
},
{
"from_name": "label",
"id": "da1fbe8b92d5403c89b855b2bcd055a8",
"to_name": "text",
"type": "labels",
"value": {
"end": 14823,
"labels": [
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],
"start": 14549,
"text": "In her self- assessment of property tax for the year 2008-2009, for the first time, she declared the total built up area of the building as 26620 sq.ft. consisting of five floors in the lands purchased by her and declared that the said land was constructed in the year 2004."
}
},
{
"from_name": "label",
"id": "d344e320ef1f479481936000765e469f",
"to_name": "text",
"type": "labels",
"value": {
"end": 14896,
"labels": [
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],
"start": 14824,
"text": "That establishes the fact that, vacant land was leased to third parties."
}
},
{
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"id": "0787b78e73a343d6a8aef2284754da04",
"to_name": "text",
"type": "labels",
"value": {
"end": 15051,
"labels": [
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],
"start": 14897,
"text": "No building plan for construction of the building was obtained from the authorities and the land was already in possession of BDA for formation of layout."
}
},
{
"from_name": "label",
"id": "812a98cdcc1045e881f7e2a0be89eab6",
"to_name": "text",
"type": "labels",
"value": {
"end": 15186,
"labels": [
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],
"start": 15052,
"text": "Thus, both the second and third accused have violated the regulations and illegally constructed the building by using political power."
}
},
{
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"id": "d3d94a20f39c40ad83063b438a27fafe",
"to_name": "text",
"type": "labels",
"value": {
"end": 15299,
"labels": [
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],
"start": 15187,
"text": "Second and fourth accused by using their political influence got the land de-notified through the first accused."
}
},
{
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"id": "a3ee05c6baa549f7987b73fd81d9eaef",
"to_name": "text",
"type": "labels",
"value": {
"end": 15460,
"labels": [
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],
"start": 15300,
"text": "The first accused in order to make unlawful gain to his supporters/second accused, conspired with the co-accused and floated all existing rules and regulations."
}
},
{
"from_name": "label",
"id": "70c97c6049714e54a864f0bc6429e2c3",
"to_name": "text",
"type": "labels",
"value": {
"end": 16246,
"labels": [
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],
"start": 15461,
"text": "The Investigating Officer after investigation has filed the final report on following counts: a) The fourth accused sold the land in favour of the second accused without disclosing the acquisition of the said land for the formation of layout; b) The second accused purchased the land without knowing the acquisition proceedings; c) Physical possession of the land since was not taken over by BDA, the possession remained with accused No.4; d) As per Section 27 of BDA Act, 1976, the scheme will lapse if the authority fails to execute the scheme substantially within a period of five years from the date of the publication in the official gazette.\n e) Issuance of notification under Section 16(2) of Land Acquisition Act is not sufficient unless physical possession is taken."
}
},
{
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"id": "57d0036c4e5246b988f85e021c4d5cd6",
"to_name": "text",
"type": "labels",
"value": {
"end": 16357,
"labels": [
"ARG_RESPONDENT"
],
"start": 16247,
"text": "The remaining land in survey number is de- notified in favour of Housing Cooperative Society on two occasions."
}
},
{
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"id": "f68c0ad01f1a4e8191c24aa431ff8bc4",
"to_name": "text",
"type": "labels",
"value": {
"end": 16684,
"labels": [
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],
"start": 16357,
"text": "\n f) The former Chief Ministers had ordered for de-notification/to take needful action and the second accused after purchasing the land started institutions; g) There is no evidence of third accused participating in the process of de- notification; h) The SPP gave his opinion that it is a fit circumstance to file B report."
}
},
{
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"id": "6f515897f6fd4b89856294e2f5256853",
"to_name": "text",
"type": "labels",
"value": {
"end": 16745,
"labels": [
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],
"start": 16684,
"text": "\n But the above reasons assigned by the I.O. are not tenable."
}
},
{
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"id": "b78fe748649b4126b4de8b2958117429",
"to_name": "text",
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"value": {
"end": 16853,
"labels": [
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],
"start": 16746,
"text": "The fourth accused despite selling the land continued to maintain that he is in possession of the property."
}
},
{
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"id": "825a91f10ff74f9da2910e28bd4c40f8",
"to_name": "text",
"type": "labels",
"value": {
"end": 17005,
"labels": [
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],
"start": 16854,
"text": "Non-execution of the scheme under Section 27 of the BDA Act for a small piece of land does not fall within the definition of Section 27 of the BDA Act."
}
},
{
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"id": "5d6331ca1c8141aa8b6ccd54817b47cb",
"to_name": "text",
"type": "labels",
"value": {
"end": 17116,
"labels": [
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],
"start": 17006,
"text": "It is not within the jurisdiction of the I.O. to opine the manner in which possession taken is right or wrong."
}
},
{
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"id": "a0ada822c1004f69ad0659756e4cefdf",
"to_name": "text",
"type": "labels",
"value": {
"end": 17271,
"labels": [
"ARG_RESPONDENT"
],
"start": 17117,
"text": "Subsequent to the final notification, mahazar was drawn, possession was taken over, award was passed and notification under Section 16(2) was also issued."
}
},
{
"from_name": "label",
"id": "68bdf70ea4f74c528f41398bd8ab7600",
"to_name": "text",
"type": "labels",
"value": {
"end": 17441,
"labels": [
"ARG_RESPONDENT"
],
"start": 17272,
"text": "The land was handed over to the Engineering Section of BDA for formation of sites, but on account of pendency of the litigations, the officials could not form the sites."
}
},
{
"from_name": "label",
"id": "0fff2f1f47ba4e5b980e72aadff1dda6",
"to_name": "text",
"type": "labels",
"value": {
"end": 17533,
"labels": [
"ARG_RESPONDENT"
],
"start": 17442,
"text": "De-notification of the adjacent land is not a ground for de-notifying the land in question."
}
},
{
"from_name": "label",
"id": "8f0c14a7b3204eb78309a6fa8a8ad0f2",
"to_name": "text",
"type": "labels",
"value": {
"end": 17640,
"labels": [
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],
"start": 17533,
"text": "\nThe circumstances under which those lands were de- notified is totally different from the one in the hand."
}
},
{
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"id": "87e83a2a8a5c474f85df009c9d042fa5",
"to_name": "text",
"type": "labels",
"value": {
"end": 17899,
"labels": [
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],
"start": 17641,
"text": "Any order of the Government needs to be issued and published in the name of the Governor of the State authenticated by the Under Secretary to the concerned Department in terms of business transaction rules once former Chief Minister had de-notified the land."
}
},
{
"from_name": "label",
"id": "6c47a760fa754993824baed667a5398a",
"to_name": "text",
"type": "labels",
"value": {
"end": 17970,
"labels": [
"ARG_RESPONDENT"
],
"start": 17900,
"text": "But, de- notification in question did not culminate into formal order."
}
},
{
"from_name": "label",
"id": "cb92ae8f8bd44412b490b2088da7dc3f",
"to_name": "text",
"type": "labels",
"value": {
"end": 18100,
"labels": [
"ARG_RESPONDENT"
],
"start": 17971,
"text": "The effort of former Chief Minister in de-notifying the land is not a ground for the subsequent Chief Minister to float the rule."
}
},
{
"from_name": "label",
"id": "745154f4da7d44c1ae5b07d01d857b50",
"to_name": "text",
"type": "labels",
"value": {
"end": 18253,
"labels": [
"ARG_RESPONDENT"
],
"start": 18101,
"text": "In the last representation of the accused made in the year 2009, for the first time, he disclosed the name of the purchaser as Shylaja, wife of Somanna."
}
},
{
"from_name": "label",
"id": "1cb9bf6aa2154f928674be38d470c836",
"to_name": "text",
"type": "labels",
"value": {
"end": 18367,
"labels": [
"ARG_RESPONDENT"
],
"start": 18254,
"text": "That leaves no room for the I.O. to hold that the third accused had no role in getting the property de- notified."
}
},
{
"from_name": "label",
"id": "3f3931132c7f424b88338730d5a45463",
"to_name": "text",
"type": "labels",
"value": {
"end": 18527,
"labels": [
"ARG_RESPONDENT"
],
"start": 18368,
"text": "The way the I.O. framed questionnaire discloses that he made up his mind to file final report in the form of `B' right from the beginning of the investigation."
}
},
{
"from_name": "label",
"id": "f5d108809cb14c908ed61e591fd17b6f",
"to_name": "text",
"type": "labels",
"value": {
"end": 18651,
"labels": [
"ARG_RESPONDENT"
],
"start": 18527,
"text": "\nInvolving or obtaining opinion from the Public Prosecutor is not provided either under the Code or under the Police Manual."
}
},
{
"from_name": "label",
"id": "07d23425123541d6923e0558fccf3e90",
"to_name": "text",
"type": "labels",
"value": {
"end": 18755,
"labels": [
"ARG_RESPONDENT"
],
"start": 18652,
"text": "The I.O. was not right in seeking opinion from the Public Prosecutor to arrive at the final conclusion."
}
},
{
"from_name": "label",
"id": "bb2c3b667eb84ea390b7bbd2705f9cf6",
"to_name": "text",
"type": "labels",
"value": {
"end": 19012,
"labels": [
"ARG_RESPONDENT"
],
"start": 18755,
"text": "\nThe material collected by the I.O. is sufficient to hold that the accused are guilty of the offences and rightly the Special Judge rejected the `B' final report and has taken cognizance of the offences and the revision petitions are liable to be dismissed."
}
},
{
"from_name": "label",
"id": "087d6cb8d58b42e8ada375f28ac38346",
"to_name": "text",
"type": "labels",
"value": {
"end": 19286,
"labels": [
"ISSUE"
],
"start": 19012,
"text": "\n 6. In the light of the above rival submissions and on perusal of the lower court records, the point that arises for my consideration is: \"Whether the order of the Special Judge in taking cognizance of the alleged offence and issuing summons to the petitioners is illegal?\""
}
},
{
"from_name": "label",
"id": "7c41fdba1194466e914086eb890fe58b",
"to_name": "text",
"type": "labels",
"value": {
"end": 19555,
"labels": [
"ANALYSIS"
],
"start": 19286,
"text": "\n 7. The attack on these revision petitions at the first stroke is on the maintainability of the revision petitions in view of special bar contemplated under Section 19 sub-section (3) (c) of the Act, which reads thus: \"19. Previous sanction necessary for prosecution.-"
}
},
{
"from_name": "label",
"id": "4d9d4577a3664d0a954d351f3097408b",
"to_name": "text",
"type": "labels",
"value": {
"end": 19973,
"labels": [
"ANALYSIS"
],
"start": 19556,
"text": "(1) . . . .\n (2) . . . . . .\n (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) . . . .\n (b) . . . .\n (c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.\""
}
},
{
"from_name": "label",
"id": "b90cf3e1aeac4059967d0c018cbc3466",
"to_name": "text",
"type": "labels",
"value": {
"end": 20148,
"labels": [
"ANALYSIS"
],
"start": 19975,
"text": "8. A Special Judge is appointed by the Government in exercise of the power under Section 3 of the Act and jurisdiction of Special Judge is regulated by Section 4 of the Act."
}
},
{
"from_name": "label",
"id": "11ea6cff1c5b4b2bb3e4ef12f0ddebe8",
"to_name": "text",
"type": "labels",
"value": {
"end": 20305,
"labels": [
"PRE_RELIED"
],
"start": 20149,
"text": "The position of a Special Judge is that of a Magistrate as settled by the Apex Court in A.R.ANTULAY vs- RAMDAS SRINIWAS NAYAK AND ANOTHER (AIR 1984 SC 718)."
}
},
{
"from_name": "label",
"id": "9d7b17a9a5a44fad938b02c99b3fa579",
"to_name": "text",
"type": "labels",
"value": {
"end": 20621,
"labels": [
"PRE_RELIED"
],
"start": 20305,
"text": "\n 9. In Rajendra Kumar Sitaram Pande & Others vs- Uttam & Another reported in AIR 1999 S.C. 1028, the Apex Court observed thus: \" ....... it would not be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar under sub- section (2) of section 397 would apply."
}
},
{
"from_name": "label",
"id": "01b49b4b9d1e461abd887efca1e77661",
"to_name": "text",
"type": "labels",
"value": {
"end": 20803,
"labels": [
"PRE_RELIED"
],
"start": 20622,
"text": "On the other hand, it must be held to be intermediate or quasi final and, therefore, the revisional jurisdiction under section 397 could be exercised against the same. . . . .\"\n 10."
}
},
{
"from_name": "label",
"id": "479ccfc45ee24230b3c7fcce0861600f",
"to_name": "text",
"type": "labels",
"value": {
"end": 21170,
"labels": [
"PRE_RELIED"
],
"start": 20804,
"text": "Yet, in another judgment, in the case of Urmila Devi vs- Yudhvir Singh [(2013) 15 SCC 624], on a survey of earlier judgments covering the controversy, the legal position was asserted to the effect that the revisional jurisdiction under Section 397 of the Code is available to the aggrieved party challenging the order of the Magistrate directing issuance of summons."
}
},
{
"from_name": "label",
"id": "622d149f51d74d619ca95bb709f9778f",
"to_name": "text",
"type": "labels",
"value": {
"end": 21386,
"labels": [
"ANALYSIS"
],
"start": 21170,
"text": "\n 11. By virtue of Section 27 of the Act, the High Court exercises appellate and revisional jurisdiction over the Special Court as if it is a Sessions Court trying the cases within the local limits of the High Court."
}
},
{
"from_name": "label",
"id": "e01ece7d27894507a8e5f138804863af",
"to_name": "text",
"type": "labels",
"value": {
"end": 21721,
"labels": [
"ANALYSIS"
],
"start": 21387,
"text": "That being so, in the light of the legal position cited supra, the bar contemplated by sub-section (3) of Section 19 of the Act pertaining to interlocutory order in an enquiry, trial, appeal or proceedings under the Act, definitely has no application, to challenge the process ordered by the Special Judge against the accused persons."
}
},
{
"from_name": "label",
"id": "c53d85e44eb64cfa88a3058c6b0cea68",
"to_name": "text",
"type": "labels",
"value": {
"end": 21827,
"labels": [
"ANALYSIS"
],
"start": 21722,
"text": "Hence, there cannot be any room to entertain the doubt about the maintainability of the present petition."
}
},
{
"from_name": "label",
"id": "3dff1e8caa7248ad9ff264e793b585f6",
"to_name": "text",
"type": "labels",
"value": {
"end": 22222,
"labels": [
"ANALYSIS"
],
"start": 21827,
"text": "\n 12. Now reverting back to the case of the revision petitioners, they are assailing the order of the Special Judge basically, on the cognizance taken in the absence of previous sanction from the State Government; secondly on the ground that process is issued directly without holding enquiry as enumerated by Section 200 of the Code and thirdly, it is an order without application of mind.\n 13."
}
},
{
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"text": "As per the complaint allegation, at the time of lodging the complaint, the first accused is the former Chief Minister and the third accused/second petitioner of Crl.R.P.No.473/2012 is a former Minister for Housing between 18.6.2009 and 31.8.2009."
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"text": "He was re-elected on 24.6.2010."
}
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"text": "The de-notification is ordered by the first accused on 25.9.2009."
}
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"text": "Admittedly, the complaint is without the back up of previous sanction."
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"text": "Cognizance taken without previous sanction is barred (as per (2012)3 SCC 64 Subramanian Swamy Vs Manmohan Singh & others and N.K.Ganguly Vs C.B.I (2016) 2 SCC 143)."
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"text": "It is also the law that if on the date of taking cognizance accused continues to be a public servant but in a different capacity or is holding a different office than the one alleged to have been abused (as per Abhay Singh Chautala Vs C.B.I (2011)7 SCC 14)), sanction is not a pre-requirement."
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"text": "Though the Special Judge has not dwelled upon requirement of previous sanction under Section 19 of the Act or otherwise, it may be conveniently assumed that cognizance taken and process issued is not hit by Section 19(1) of the P.C. Act."
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"text": "Thus the first ground urged by the revision petitioners gets diffused."
}
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"text": "\n 14. Much reliance is placed on the judgment of Vasanti Dubey's case (supra) which highlighted the requirement of an independent enquiry before taking cognizance and issuing process under Section 200 of the Code."
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"text": "In India Carat (Pvt.) Ltd. vs- State of Karnataka (1989(2) SCC 132), three Judges' Bench of the Apex Court had dealt in detail the power of the Magistrate under Sections 90(1)(b), 200, 202 and 204 of IPC, as under: \" 16."
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"text": "The position is, therefore, now well settled"
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"end": 24126,
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"start": 23886,
"text": "that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused."
}
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"text": "The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused."
}
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"start": 24339,
"text": "\nSection 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion that the investigation has made out a case against the accused."
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"text": "The Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused."
}
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"start": 24851,
"text": "The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also."
}
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"start": 25096,
"text": "The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him.\"\n 15."
}
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"end": 25604,
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"start": 25338,
"text": "While laying down the law regarding requirement of an independent enquiry prior to issue of process in Vasanti Dubey's case (supra), the facts and circumstances of the said case was not distinguished from India Carat (supra), there was no reference to the said case."
}
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"end": 25741,
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"start": 25605,
"text": "Thus, the judgment of India Carat (supra), which is by Larger Bench of the Apex Court, holds over the judgment of Vasanti Dubey (supra)."
}
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"text": "Same legal position is reiterated by the Apex Court in its later judgment i.e., State of Orissa vs- Habibullah Khan [(2003) 12 SCC 129] and it was observed that the Magistrate can take into account the statements of the witnesses examined by the Police during investigation and take cognizance of the offence complained of and order the issue of process to the accused."
}
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"start": 26112,
"text": "In that view of the matter, the second ground on which these revisions are brought finds no support."
}
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"end": 26422,
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"start": 26212,
"text": "\n 16. Thus we arrive at the third ground, i.e., non- application of mind of the Special Judge and the order not disclosing his satisfaction about existence of a prima facie case to issue summons to the accused."
}
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"end": 26540,
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"start": 26422,
"text": "\n The very scheme of the Act is to provide punishment for the offence of bribery and corruption among public servants."
}
},
{
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"id": "2606551546f94b408f1ba41761275d0a",
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"value": {
"end": 26752,
"labels": [
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"start": 26541,
"text": "While Section 7 deals with public servants taking gratification other than legal remuneration in respect of official act, Section 13 envisages punishment for the offence of criminal misconduct of public servant."
}
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{
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"id": "35668f4305b4493eb88fcdb57cd84eb7",
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"value": {
"end": 26916,
"labels": [
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],
"start": 26753,
"text": "Sections 10 and 11 contemplate punishment for abetment of offence defined under Sections 8 and 9 of Act respectively and receiving valuables without consideration."
}
},
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"id": "edb4c0eebaef47d0a52147b63af187e3",
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"value": {
"end": 27098,
"labels": [
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],
"start": 26917,
"text": "By Sections 8 and 9 of the Act, others (whoever) taking gratification to influence public servant/for exercise of personal influence with public servant are brought to justice.\n 17."
}
},
{
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"id": "ab4e1a9b32054fb4a0146f39cdc5d592",
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"value": {
"end": 27181,
"labels": [
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],
"start": 27099,
"text": "The intriguing question is, under what category, revision petitioners herein fall?"
}
},
{
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"id": "2a8fb6934a0d488bad5d929c62c79aaa",
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"value": {
"end": 27466,
"labels": [
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],
"start": 27182,
"text": "To say that the second petitioner of Crl.R.P.No.473/2012 has not acted under the capacity of a public servant at the time of alleged offence and previous sanction is not warranted to take cognizance against him, then he falls under either of the category of Section 8 or 9 of the Act."
}
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{
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"value": {
"end": 27546,
"labels": [
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],
"start": 27467,
"text": "The two petitioners of Cr.R.P.No.473/2012, as such are not the public servants."
}
},
{
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"id": "222c7972bd9346089324634f1df0b916",
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"end": 27729,
"labels": [
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],
"start": 27547,
"text": "Then it follows that unless the ingredients of Section 8 or 9 of the Act is satisfied from the acts alleged against them, they cannot be prosecuted before the forum of Special Court."
}
},
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"value": {
"end": 28151,
"labels": [
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],
"start": 27729,
"text": "\n 18. The learned Special Judge in the body of his order has not made endeavour to record his satisfaction as to the existence of a prima facie case in respect of the offences for which he issued summons i.e., Sections 406, 409, 420, 463, 464, 468, 471 r/w Section 120-B of IPC, Section 13(1)(c) & d (i) r/w section 13(2) of Act, Sections 3, 4 and 5 r/w Section 91 of the Karnataka Land (Restriction on Transfer) Act 1991."
}
},
{
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"id": "c46cd9e6d7844e5487880f824e30374f",
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"value": {
"end": 28369,
"labels": [
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],
"start": 28152,
"text": "The entire exercise of the Special Judge was only to reject the `C' Final Report submitted by the Investigating Officer with an omnibus observation that the documents collected by the I.O.\ncorroborates the allegation."
}
},
{
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"id": "afd4995bd3c347718f94c4e5ccf9a11c",
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"end": 28637,
"labels": [
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],
"start": 28370,
"text": "Even if that were to be so, the learned Sessions Judge was obliged to reason out how the acts alleged against the petitioners herein fall within the four corners of the offences under the Act, K.L.R.T.Act and Indian Penal Code in respect of which summons was ordered."
}
},
{
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"value": {
"end": 28872,
"labels": [
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],
"start": 28637,
"text": "\n 19. In Pepsi Food Limited Vs. Judicial Magistrate reported in 1998(5) SCC 749 the Hon'ble Supreme Court highlighted the importance of the stage, the Magistrate issues summons to the accused persons in respect of the alleged offences."
}
},
{
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"value": {
"end": 28991,
"labels": [
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],
"start": 28873,
"text": "Para-28 relevant for the moment reads as follows: \"28. Summoning of an accused in a criminal case is a serious matter."
}
},
{
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"id": "1f9a56db5aed4d97a79752e2a08003bd",
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"value": {
"end": 29053,
"labels": [
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],
"start": 28992,
"text": "Criminal law cannot be set into motion as a matter of course."
}
},
{
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"id": "64d32a26d79b44aaa0c08c830e3b6a2a",
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"value": {
"end": 29202,
"labels": [
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],
"start": 29054,
"text": "It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion."
}
},
{
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"id": "44367329a5a842f585e0c84a9b475487",
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"value": {
"end": 29351,
"labels": [
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],
"start": 29203,
"text": "The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto."
}
},
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"id": "fe14cb1c41ab4433b5c419ca21bd5eda",
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"value": {
"end": 29579,
"labels": [
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],
"start": 29352,
"text": "He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused."
}
},
{
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"id": "3ebf31b5d28f4b4f9c2b640a2cc1be94",
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"value": {
"end": 29713,
"labels": [
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],
"start": 29580,
"text": "It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused."
}
},
{
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"id": "f8c445aa45824be993bd8053f7eee42e",
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"value": {
"end": 30031,
"labels": [
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],
"start": 29714,
"text": "The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused\".\n 20."
}
},
{
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"id": "1b638eb0c3a8427fa68c3e53d2e36e67",
"to_name": "text",
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"value": {
"end": 30325,
"labels": [
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],
"start": 30032,
"text": "In M/s GHCL Employees Stock Option Trust's case (supra), the omission on the part of the Magistrate for not recording his satisfaction in his order issuing summons about the prima facie case against the accused and the role played by them in their official capacity was strongly taken note of."
}
},
{
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"id": "fc34e871c6ed4c558e46c376ee9e8bf0",
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"value": {
"end": 30582,
"labels": [
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],
"start": 30325,
"text": "\n 21. In Sunil Bharathi Mittal's case (supra) at para.48 it was held thus: \"48. Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence."
}
},
{
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"id": "7714491748c347d2968cf4fe44fed71c",
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"value": {
"end": 30818,
"labels": [
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],
"start": 30583,
"text": "It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect."
}
},
{
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"id": "4f17cdbcea834baaba19fd6f606db6b3",
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"value": {
"end": 30905,
"labels": [
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],
"start": 30819,
"text": "When he does so & decides to issue process, he shall be said to have taken cognizance."
}
},
{
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"id": "72889347532c4aeeb98469aae210d430",
"to_name": "text",
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"end": 31136,
"labels": [
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],
"start": 30906,
"text": "At the stage of taking cognizance, the only consideration before the court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not.\"\n 22."
}
},
{
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"id": "b2d2027264864f5c81b1b59ab982b785",
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"value": {
"end": 31286,
"labels": [
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],
"start": 31137,
"text": "In the case of Mehmood Ul Rehman vs.\nKhazir Mohammad Tunda and Others reported in (2015) 12 SCC 420, it was observed at para Nos.21 and 22 thus: \"21."
}
},
{
"from_name": "label",
"id": "f1499b4a23374f94aad014881173c602",
"to_name": "text",
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"value": {
"end": 31467,
"labels": [
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],
"start": 31287,
"text": "Under Section 190(1)(b) CrPC, the Magistrate has the advantage of a police report and under Section 190(1)(c) CrPC, he has the information or knowledge of commission of an offence."
}
},
{
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"id": "1f1bf6ee3e2b46ceb80e8d6adf02c8c0",
"to_name": "text",
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"value": {
"end": 31537,
"labels": [
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],
"start": 31468,
"text": "But under Section 190(1)(a) CrPC, he has only a complaint before him."
}
},
{
"from_name": "label",
"id": "c08fe8ad6cbe44df963b16a4539c2aaf",
"to_name": "text",
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"value": {
"end": 31621,
"labels": [
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],
"start": 31538,
"text": "The Code hence specifies that \"a complaint of facts which constitute such offence\"."
}
},
{
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"id": "84e1be2c2bfd4938a3de953e2d247558",
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"value": {
"end": 31789,
"labels": [
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],
"start": 31622,
"text": "Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a) CrPC."
}
},
{
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"id": "b84eff300fe84923aa266e7b208fd307",
"to_name": "text",
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"value": {
"end": 31838,
"labels": [
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],
"start": 31789,
"text": "\n The complaint is simply to be rejected."
}
},
{
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"id": "67af7c4140f846548e68f19814d72a7d",
"to_name": "text",
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"value": {
"end": 32196,
"labels": [
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],
"start": 31838,
"text": "\n 22. The steps taken by the Magistrate under Section 190(1)(a) CrPC followed by Section 204 CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the Court."
}
},
{
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"to_name": "text",
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"value": {
"end": 32444,
"labels": [
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],
"start": 32197,
"text": "The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court."
}
},
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"end": 32530,
"labels": [
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],
"start": 32445,
"text": "No doubt, no formal order or a speaking order is required to be passed at that stage."
}
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"end": 32713,
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"start": 32531,
"text": "The Code of Criminal Procedure requires speaking order to be passed under Section 203 Cr.P.C. when the complaint is dismissed and that too the reasons need to be stated only briefly."
}
},
{
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"end": 32882,
"labels": [
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],
"start": 32714,
"text": "In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course."
}
},
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"end": 33340,
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],
"start": 32883,
"text": "There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 CrPC, by issuing process for appearance."
}
},
{
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"end": 33428,
"labels": [
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],
"start": 33340,
"text": "\nThe application of mind is best demonstrated by disclosure of mind on the satisfaction."
}
},
{
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"end": 33666,
"labels": [
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],
"start": 33429,
"text": "If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 CrPC, the High Court under Section 482 CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court."
}
},
{
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"end": 33807,
"labels": [
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],
"start": 33667,
"text": "To be called to appear before the criminal court as an accused is serious matter affecting one's dignity, self-respect and image in society."
}
},
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"id": "b47e54b5946545b68b840f19e022e265",
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"end": 33889,
"labels": [
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],
"start": 33808,
"text": "Hence, the process of criminal court shall not be made a weapon of harassment\"\n ."
}
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"end": 33901,
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"start": 33889,
"text": "\n 23."
}
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"end": 33990,
"labels": [
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],
"start": 33902,
"text": "The jurisdiction of a Special Judge under the Act is controlled by Section 4 of the Act."
}
},
{
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"id": "8b67adba1ee546af83b8ffbf442e9be6",
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"value": {
"end": 34142,
"labels": [
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],
"start": 33991,
"text": "The Special Judge gets jurisdiction to try the offences notified by the Government for a particular area under sub-section (1) of Section 3 of the Act."
}
},
{
"from_name": "label",
"id": "154d08235371435d943b1864b4e0d3cd",
"to_name": "text",
"type": "labels",
"value": {
"end": 34265,
"labels": [
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],
"start": 34143,
"text": "In addition to that, Sub-Section (3) of Section 4 enables him to try other offences apart from the offences under the Act."
}
},
{
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"id": "a55504ee10554c40b3246930b9922a82",
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"type": "labels",
"value": {
"end": 34533,
"labels": [
"STA"
],
"start": 34266,
"text": "Relevant Sub-Section reads thus: \"4(3) When trying any case, a special Judge may also try any offence, other than an offence specified in Section 3, with which the accused may, under the Code of Criminal Procedure, 1973(2 of 1974), be charged at the same trial.\"\n 24."
}
},
{
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"id": "cf150a6240374587b58c4e568bcfc133",
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"end": 34790,
"labels": [
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],
"start": 34534,
"text": "Thus, it is clear that unless any out of many other acts alleged against an accused falls within the description of the offence contemplated under the Act, a Special Judge does not get jurisdiction to try the offences under IPC or any other allied statute."
}
},
{
"from_name": "label",
"id": "4bd5b91edfe8434988fd49384c55c358",
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"value": {
"end": 34870,
"labels": [
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],
"start": 34791,
"text": "Unfortunately, learned Special Judge did not address this aspect of the matter."
}
},
{
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"id": "4f411d854a20445db97008a5f0fc2ce3",
"to_name": "text",
"type": "labels",
"value": {
"end": 34967,
"labels": [
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],
"start": 34871,
"text": "There is no indication of application of his mind as to what offence the alleged acts amount to."
}
},
{
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"id": "b8d0c927633647529000b33d4ac3d127",
"to_name": "text",
"type": "labels",
"value": {
"end": 35151,
"labels": [
"ANALYSIS"
],
"start": 34968,
"text": "He gets jurisdiction to try offences under I.P.C. if only ingredients of any of the offences under Sections 7 to 11 and 13 of the Act is attracted as against the revision petitioners."
}
},
{
"from_name": "label",
"id": "aac73985c5bd48a1861c37a8a1f58540",
"to_name": "text",
"type": "labels",
"value": {
"end": 35288,
"labels": [
"ANALYSIS"
],
"start": 35151,
"text": "\nHe has not expressed his satisfaction that for violation of provisions of K.L.R.T Act, Special Court is the right forum for prosecution."
}
},
{
"from_name": "label",
"id": "72f522ce17fd4029a3f50f4f7d0dacaf",
"to_name": "text",
"type": "labels",
"value": {
"end": 35336,
"labels": [
"ANALYSIS"
],
"start": 35289,
"text": "That cloths the impugned order with illegality."
}
},
{
"from_name": "label",
"id": "8a32edabc9664fe0902325835d80f207",
"to_name": "text",
"type": "labels",
"value": {
"end": 35678,
"labels": [
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],
"start": 35336,
"text": "\n 25. In Urmila Devi's case (supra), it was declared by the Apex Court that such an order of a Magistrate deciding to issue process or summons to an accused in exercise of his power under Sections 200 to 204 of the Code can always be the subject matter of challenge under inherent jurisdiction of the High Court under Section 482 of the Code."
}
},
{
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"id": "cb7c4d8d83aa42c4b2061f9e7bf50125",
"to_name": "text",
"type": "labels",
"value": {
"end": 35901,
"labels": [
"ANALYSIS"
],
"start": 35678,
"text": "\n 26. Still, it is for the Special Judge, being the primary Authority to discharge his function in accordance with the requirement of law, but not for this Court to take over the matter from the province of the Trial Court."
}
},
{
"from_name": "label",
"id": "94e5aead6067445fa6e829361d644263",
"to_name": "text",
"type": "labels",
"value": {
"end": 36144,
"labels": [
"ANALYSIS"
],
"start": 35902,
"text": "The revisional power of this Court is to see that justice is done in accordance with the recognized rules of Criminal Jurisprudence and the subordinate courts do not exceed their jurisdiction or abuse the powers vested in them under the Code."
}
},
{
"from_name": "label",
"id": "7cbe89119e914ab4a7eec4d76a26120d",
"to_name": "text",
"type": "labels",
"value": {
"end": 36493,
"labels": [
"RATIO"
],
"start": 36145,
"text": "In that view of the matter, it suffices for the present to set aside the order impugned with a direction to the court below to firstly ascertain from the complaint and evidentiary material collected by the Investigating Officer as to the jurisdiction of the Special Court to entertain the complaint, and then to take the matter to its logical end.\n"
}
},
{
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"id": "da15d6d0f4854629869dd8eae6a812c8",
"to_name": "text",
"type": "labels",
"value": {
"end": 36645,
"labels": [
"ANALYSIS"
],
"start": 36493,
"text": "It is also for the Special Judge to record his satisfaction from the record before him as to what offences are made out to issue summons to the accused."
}
},
{
"from_name": "label",
"id": "5f0d2f9f43054252bb8bc6843a3a049e",
"to_name": "text",
"type": "labels",
"value": {
"end": 36682,
"labels": [
"RPC"
],
"start": 36645,
"text": "\n The Revision Petitions are allowed."
}
},
{
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"id": "a4cbd54ae41e4a0ba1fd140492ee8381",
"to_name": "text",
"type": "labels",
"value": {
"end": 37118,
"labels": [
"RPC"
],
"start": 36683,
"text": "The order dated 13.4.2012 in Special C.C.No.46/2012 (PCR No.25/2011) passed by the Special Judge thereby taking cognizance and issuing summons to the revision petitioners in respect of the offences under Sections 406, 409, 420, 463, 464, 468, 471 read with Section 120-B of the Indian Penal Code, Sections 13(1)(c) and (d) read with Section 13(2) of the Act and Sections 3, 4 and 5 read with Section 9 of the K.L.R.T.Act, is set aside."
}
},
{
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"id": "abac1f2d2d9c458db7400b9f8e27664e",
"to_name": "text",
"type": "labels",
"value": {
"end": 37222,
"labels": [
"RPC"
],
"start": 37119,
"text": "The learned Special Judge is directed to re-consider the matter in the light of the observations supra."
}
},
{
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"id": "e2bf07e15c1840a281facf99b1941d29",
"to_name": "text",
"type": "labels",
"value": {
"end": 37244,
"labels": [
"NONE"
],
"start": 37222,
"text": "\n Sd/- JUDGE KNM/DVR/-"
}
}
]
}
] | 1,766 | {
"text": " \n\nIN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\nDATED THIS THE 2nd DAY OF JANUARY 2017\n\n BEFORE\n\nTHE HON'BLE MRS.JUSTICE RATHNAKALA\n\nCRIMINAL REVISION PETITION NO.473/2012\n C/W\n\nCRIMINAL REVISION PETITION NO.480/2012\n\nIN CRL.RP. NO.473/2012\n\nBETWEEN:\n\n1. Smt.Shylaja\n W/o V.Somanna\n R/o No.967, II Main Road\n Vijayanagar\n Bangalore-560 040.\n\n2. Sri.V.Somanna, ...PETITIONERS\n S/o Late Veeranna\n Major in age\n Minister for Housing,\n Government of Karnataka\n R/o No.967, II Main Road\n Vijaynagar\n Bangalore-560 040.\n\n(By Sri C.V.Nagesh, Sr.Adv. for\nSri.Murthy Dayanand Naik, Adv. for\nPetitioner No.1.;\nSri.H.S.Chandramouli, Adv. for\nPetitioner No.2)\n\nIN CRL.R.P. NO.480/2012\n\nD.Lingaiah\nS/o Late Devegowda\n\nAged about 67 years ...PETITIONER\nResiding at No.75\nMariyappanahapalya\nBangalore University\nBangalore-560 056.\n\n(By Sri.Hareesh Bhandary, Adv.)\n\nAND:\n\n1. The Superintendent of Police\n Lokayukta, Bangalore Urban\n M.S.Building\n Bangalore.\n\n2. Ravi Krishna Reddy\n\n S/o Krishna Reddy V.\n\n R/o No.400, 23rd Main\n\n BTM Layout, 2nd Stage\n\n Bangalore-560 076. ...RESPONDENTS\n\n (COMMON)\n\n(By Sri.B.S.Prasad, Spl.PP for R-1/Lokayukta;\n\nSri.P.N.Hegde, Adv. For R-2)\n\n CRL.R.P.NO.473/2012 is filed under Section 397(1)\nread with Section 401 of Cr.P.C. praying to set aside the order\ndated 13.4.2012 passed by the Special Judge, Prevention of\nCorruption Act, Bangalore Urban in P.C.R.No.25/2011 taking\ncognizance of the offence and issuing summons to the\naccused No.2 and 3/petitioners herein and further be pleased\nto dismiss the complaint filed by the respondent No.2 against\nthe petitioners in Spl.C.C.No.46/2012 (PCR No.25/2011) on\nthe file of the XXIII Addl.C.C. and Spl.Judge for Prevention of\nCorruption Act.\n\n CRL.R.P.NO.480/2012 is filed under Section 397(1) of\nCr.P.C. praying to set aside the order dated 13.4.2012 passed\nby the XXIII Addl.City Civil and Special Judge for Prevention\nof Corruption Act, Bangalore Urban in Spl.C.C.No.46/2012\n\n(PCR No.25/2011) and further be pleased to dismiss the\ncomplaint against the petitioner/accused No.4.\n\n These Criminal Revision Petitions having been reserved\non 01.12.2016 and coming on for pronouncement of orders\nthis day, the Court made the following:\n\n O R D E R\n The Revision Petitioners being arrayed as accused persons in a private complaint filed by respondent No.2 are challenging the order of the Special Judge in taking cognizance of the offence and issuing summons to them.\n 2. Briefly stated, the second respondent filed a complaint against four accused persons. The First accused is the Former Deputy Chief Minister/Chief Minister of Government of Karnataka. The second accused is the wife of third accused, who is MLC and Former Minster of Government of Karnataka and the fourth accused is the landlord of the immovable properties, the de-notification of which was challenged in the complaint. The learned Special Judge referred the matter for investigation to the first respondent/Lokayukta Police. After investigation, the Investigating Officer submitted `B' Final Report since there was no evidence/documentary proof in support of complaint allegation. The learned Special Judge rejected the final report and took cognizance in respect of the offences under Sections 406, 409, 420, 463, 464, 468, 471 read with Section 120B of the Indian Penal Code, Sections 13(1)(c) and (d) read with Section 13(2) of the Prevention of Corruption Act (`the Act' for short) and Sections 3, 4 and 5 read with Section 9 of the Karnataka Land (Restriction and Transfer) Act, 1991 (`the K.L.R.T.Act' for short).\n 3. Sri.C.V.Nagesh, learned Senior Counsel appearing on behalf of the petitioners submits that the final report was filed on 21.3.2012. On the same day, complainant filed a memo and he was heard on 21.3.2012 and the matter was posted to 29.3.2012. On 29.3.2012 the matter was reserved for orders on 13.4.2012. However, the complainant got the case advanced to 5.4.2012 and was heard. On 13.4.2012, the learned Special Judge rejected the final report and took cognizance against the petitioners and others and issued summons returnable by 30.4.2012. The learned Judge has not followed the mandatory procedure envisaged under Sections 200 and 202 of the Code, in directly issuing summons. Since the complainant had filed a protest application, same had to be treated as private complaint and the mandatory procedure contemplated at Chapter-V of the Code ought to have been followed. The discussion in the body of the impugned order does not reflect that the learned Judge has taken cognizance. As such, very reference of the complaint for investigation was bad in law since the complainant had not obtained prior sanction under Section 19 of the Act and Section 197 of the Code. Petitioner No.2 is a \"public servant\"\nfalling under the definition of Section 2(c) of the Act and Section 21 of IPC. Thus the entire proceedings is vitiated. Even otherwise, the complaint allegations do not make out any offence against the petitioners. They are in no way connected to the crime in question. The complaint allegations are absurd and inherently improbable. The impugned order is passed in a mechanical way without application of mind. Hence, the continuation of proceedings would be an abuse of process of the Court and the petitioners will have to unnecessarily undergo the ordeal of facing the trial before the Special Court.\n Learned Senior Counsel continues to submit that as per law enunciated in Vasanti Dubey vs- State of Madhya Pradesh ([2012] 2 SCC 731), it is only after holding an enquiry, the learned Trial Court would have formed an opinion as to whether the complainant has made out a case for the purpose of proceeding in the matter. The impugned order is passed without proper application of judicial mind, thus, against the principles laid down by the Apex Court in Sunil Bharti Mittal vs- Central Bureau of Investigation reported in (2015) 4 SCC 609 and M/s.GHCL Employees Stock Option Trust vs- M/s.India Infoline Limited ((2013) 4 SCC 505).\n The documents collected by the Investigating Officer during the course of his investigation is not looked into by the trial court. In the gazette notification itself, the fourth accused Lingaiah's name is notified and award is also passed in favour of Lingaiah. As per the status reports of the BDA, several structures have come up over the land in Sy.Nos.77 and 78 of Nagadevanahalli.\nSome of the structures are also regularized by the authority concerned and a Trust is also running educational institutions in the structure standing on the land. B.D.A. has not been able to take possession of the land. The investigation material also indicates that, large extent of land in Sy.Nos.77 and 78 of Nagadevanahalli is already de-notified and the land in question cannot be availed by B.D.A. Since the possession of the land continued with the applicant, the Government in its wisdom and in exercise of power clothed upon it under Section 48 of the Land Acquisition Act ordered denotification of the land. Said order of denotification so far is not challenged before any forum. There was no illegality on the part of the land owner in continuing his efforts for an order of denotification, since his name was borne in the revenue records and the preliminary notification, till issuance of notification under Section 16(2) of Bangalore Development Authority Act. The De- notification Committee is not a Statutory Committee, it is only a recommending body. The Trial Court itself has observed that there was absolutely no legal impediment for the authority to exercise its powers under Section 48 of the Land Acquisition Act. On identical allegations, the cognizance taken by the Special Judge was quashed by this Court in exercise of power under Section 482 of the Code of Criminal Procedure (`the Code' for short) in Criminal Petition No.7274/2012 and connected cases D.D. 18.12.2015 (Sri.Hamed Ali vs- Kabbalegowda and another). To make out an offence under Section 13(2) of the Act for violation of the provisions of Section 13(1)(d) of the Act, there must be material indicating demand or request for a valuable thing or a pecuniary advantage by the Public Servant, as held by the Apex Court, in A.Subair vs- State of Kerala reported in [2009] 6 SCC 587. The vital fact is, in the complaint, there was no allegation of demand and acceptance of illegal gratification. Even the ingredients of Sections 406 and 420 of IPC are lacking in the case on hand (placing reliance on Common Causes vs- Union of India ([1999] 6 SCC 667).\n Learned Senior Counsel further submits that in view of the following judgments of the Apex Court, issuance of summons cannot be termed as an Interlocutory Order within the meaning of Section 19(3)(c) of the Act or Section 397(2) of the Code: i) Bhaskar Industries Ltd. vs Bhiwani Denim and Apparels Ltd. And Others (2001 SCC (Crl.) 1254); ii) Urmila Devi vs- Yudhvir Singh ([2013] 15 SCC 624); and iii) Prabhu Chawla vs- State of Rajasthan and Another (AIR 2016 SC 4245).\n The petitioners are not challenging in these revision petitions the Order directing framing of the charges.\nHence, the order of the learned Special Judge dated 13.4.2012 in P.C.R.No.25/2011 in taking cognizance of the offence and issuing summons to the accused persons since challenged, these revision petitions are maintainable and the impugned order deserves to be set aside.\n 4. Sri.B.S.Prasad, learned Special Public Prosecutor for Lokayuktha though does not support the order of the Special Judge, has a technical objection to the maintainability of the petition in view of the bar enumerated in Section 19(3)(c) of the P.C. Act restricting revision jurisdiction against any interlocutory order passed in the proceeding under the Act.\n 5. Sri.P.N.Hegde, learned Counsel appearing for R- 2/complainant in reply submits, first accused is the Former Chief Minister of Government of Karnataka between 30.5.2008 and 31.7.2011. The third accused was earlier an MLA elected on Indian National Congress ticket. He resigned from the membership w.e.f. 4.4.2009 and joined Bharatiya Janata Party and was inducted into the Council of Ministers headed by first accused on 18.6.2009. In the by-election he suffered defeat, thus, had to resign from the Council of Ministers on 31.8.2009.\nHe was elected to upper house of the Legislature on 24.6.2010 and was inducted to the Cabinet headed by first accused. Second accused is the wife of third accused. She is the President of VSS Educational Group of Institutions and the Trustee of the VSS Educational Trust. The fourth accused was the absolute owner of the properties bearing Sy.No.77 measuring 1 acre 30 guntas and another property bearing Sy.No.78 measuring 2 acres 10 guntas. A preliminary notification was passed on 2.2.1989 by the Bangalore Development Authority for the formation of Jnanabharathi Layout. The above said properties belonging to the father of fourth accused were notified. Objections were filed by the fourth accused and his brother to the preliminary notification for the proposed acquisitions. There was a family partition in respect of the above properties and those properties fell to the share of fourth accused. A memorandum of partition was entered into on 28.10.1993. A final notification came to be issued on 19.1.1994. Some properties belonging to the father of fourth accused along with the above mentioned properties were notified. Again there was a protest memo by the fourth accused and his brothers seeking to drop the proceedings. In furtherance of the final notification, the possession of the land is taken over on 26.8.1997 and is handed over to the Engineering Section of BDA on 15.9.1997; award is passed and the compensation is deposited in the RD account of the BDA. A notification under Section 16(2) of the L.A.Act is also issued on 25.6.1998. The fourth accused was well aware of the above facts. Sections 3 and 4 of the Karnataka Land (Restriction on Transfer) Act, 1991 creates a bar for the land owners from disposing of notified lands. Still he has executed the sale deed on 4.9.2004 and handed over possession. On the same day, vacant site Nos.47, 48 and 49 carved out of Sy.Nos.77 and 78 are sold out to second accused by a separate registered sale deed for consideration and possession is handed over. After the alienation, fourth accused had no right to make any representation to the Principal Secretary, Urban Development Department.\nUntil the first accused assumed office, the land was not de-notified, however, on the first accused taking charge as the Chief Minister of the State, the fourth accused gave one more representation on 6.6.2009 to the Principal Secretary, Urban Development Department to drop 22 guntas of land in Sy.Nos.77 and 78, which he had sold to the second accused. The Principal Secretary, Urban Development Department in his note dated 20.6.2009 expressed his opinion that prayer sought for cannot be considered as per law since the property has already been vested with the BDA and the process of acquisition is complete. But the first accused ignored the opinion of the Senior Officer and overruled the decision of the Principal Secretary and ordered for de-notification of 22 guntas of the land in Sy.Nos.77 and 78 in the name of the fourth accused. When the second accused purchased the lands in question, buildings were not existing on the same. In the Assets and Liabilities Statement for the year 2009-10, the third accused submitted to the Registrar, Karnataka Lokayukta, since he was the then sitting MLC had declared that, site Nos.47, 48 and 49 in Sy.No.78 measuring 21178 sq.ft.\nworth Rs.28,35,314/- is leased out and vacant plot No.50 measuring 2490 sq.ft. stands in the name of second accused in the same survey number. There was no mention of any building standing on the land. But the fourth accused in his application stated that there were buildings over the said properties and he is in possession of the same at the time of passing the de-notification order of the lands by the first accused.\n Learned Counsel continues to submit that the second accused filed her self-assessment of property tax in respect of the properties situated in Sy.Nos.77 and 78 to the BBMP for the year 2007-2008. In her self- assessment of property tax for the year 2008-2009, for the first time, she declared the total built up area of the building as 26620 sq.ft. consisting of five floors in the lands purchased by her and declared that the said land was constructed in the year 2004. That establishes the fact that, vacant land was leased to third parties. No building plan for construction of the building was obtained from the authorities and the land was already in possession of BDA for formation of layout. Thus, both the second and third accused have violated the regulations and illegally constructed the building by using political power. Second and fourth accused by using their political influence got the land de-notified through the first accused. The first accused in order to make unlawful gain to his supporters/second accused, conspired with the co-accused and floated all existing rules and regulations. The Investigating Officer after investigation has filed the final report on following counts: a) The fourth accused sold the land in favour of the second accused without disclosing the acquisition of the said land for the formation of layout; b) The second accused purchased the land without knowing the acquisition proceedings; c) Physical possession of the land since was not taken over by BDA, the possession remained with accused No.4; d) As per Section 27 of BDA Act, 1976, the scheme will lapse if the authority fails to execute the scheme substantially within a period of five years from the date of the publication in the official gazette.\n e) Issuance of notification under Section 16(2) of Land Acquisition Act is not sufficient unless physical possession is taken. The remaining land in survey number is de- notified in favour of Housing Cooperative Society on two occasions.\n f) The former Chief Ministers had ordered for de-notification/to take needful action and the second accused after purchasing the land started institutions; g) There is no evidence of third accused participating in the process of de- notification; h) The SPP gave his opinion that it is a fit circumstance to file B report.\n But the above reasons assigned by the I.O. are not tenable. The fourth accused despite selling the land continued to maintain that he is in possession of the property. Non-execution of the scheme under Section 27 of the BDA Act for a small piece of land does not fall within the definition of Section 27 of the BDA Act. It is not within the jurisdiction of the I.O. to opine the manner in which possession taken is right or wrong. Subsequent to the final notification, mahazar was drawn, possession was taken over, award was passed and notification under Section 16(2) was also issued. The land was handed over to the Engineering Section of BDA for formation of sites, but on account of pendency of the litigations, the officials could not form the sites. De-notification of the adjacent land is not a ground for de-notifying the land in question.\nThe circumstances under which those lands were de- notified is totally different from the one in the hand. Any order of the Government needs to be issued and published in the name of the Governor of the State authenticated by the Under Secretary to the concerned Department in terms of business transaction rules once former Chief Minister had de-notified the land. But, de- notification in question did not culminate into formal order. The effort of former Chief Minister in de-notifying the land is not a ground for the subsequent Chief Minister to float the rule. In the last representation of the accused made in the year 2009, for the first time, he disclosed the name of the purchaser as Shylaja, wife of Somanna. That leaves no room for the I.O. to hold that the third accused had no role in getting the property de- notified. The way the I.O. framed questionnaire discloses that he made up his mind to file final report in the form of `B' right from the beginning of the investigation.\nInvolving or obtaining opinion from the Public Prosecutor is not provided either under the Code or under the Police Manual. The I.O. was not right in seeking opinion from the Public Prosecutor to arrive at the final conclusion.\nThe material collected by the I.O. is sufficient to hold that the accused are guilty of the offences and rightly the Special Judge rejected the `B' final report and has taken cognizance of the offences and the revision petitions are liable to be dismissed.\n 6. In the light of the above rival submissions and on perusal of the lower court records, the point that arises for my consideration is: \"Whether the order of the Special Judge in taking cognizance of the alleged offence and issuing summons to the petitioners is illegal?\"\n 7. The attack on these revision petitions at the first stroke is on the maintainability of the revision petitions in view of special bar contemplated under Section 19 sub-section (3) (c) of the Act, which reads thus: \"19. Previous sanction necessary for prosecution.- (1) . . . .\n (2) . . . . . .\n (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) . . . .\n (b) . . . .\n (c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.\"\n 8. A Special Judge is appointed by the Government in exercise of the power under Section 3 of the Act and jurisdiction of Special Judge is regulated by Section 4 of the Act. The position of a Special Judge is that of a Magistrate as settled by the Apex Court in A.R.ANTULAY vs- RAMDAS SRINIWAS NAYAK AND ANOTHER (AIR 1984 SC 718).\n 9. In Rajendra Kumar Sitaram Pande & Others vs- Uttam & Another reported in AIR 1999 S.C. 1028, the Apex Court observed thus: \" ....... it would not be appropriate to hold that an order directing issuance of process is purely interlocutory and, therefore, the bar under sub- section (2) of section 397 would apply. On the other hand, it must be held to be intermediate or quasi final and, therefore, the revisional jurisdiction under section 397 could be exercised against the same. . . . .\"\n 10. Yet, in another judgment, in the case of Urmila Devi vs- Yudhvir Singh [(2013) 15 SCC 624], on a survey of earlier judgments covering the controversy, the legal position was asserted to the effect that the revisional jurisdiction under Section 397 of the Code is available to the aggrieved party challenging the order of the Magistrate directing issuance of summons.\n 11. By virtue of Section 27 of the Act, the High Court exercises appellate and revisional jurisdiction over the Special Court as if it is a Sessions Court trying the cases within the local limits of the High Court. That being so, in the light of the legal position cited supra, the bar contemplated by sub-section (3) of Section 19 of the Act pertaining to interlocutory order in an enquiry, trial, appeal or proceedings under the Act, definitely has no application, to challenge the process ordered by the Special Judge against the accused persons. Hence, there cannot be any room to entertain the doubt about the maintainability of the present petition.\n 12. Now reverting back to the case of the revision petitioners, they are assailing the order of the Special Judge basically, on the cognizance taken in the absence of previous sanction from the State Government; secondly on the ground that process is issued directly without holding enquiry as enumerated by Section 200 of the Code and thirdly, it is an order without application of mind.\n 13. As per the complaint allegation, at the time of lodging the complaint, the first accused is the former Chief Minister and the third accused/second petitioner of Crl.R.P.No.473/2012 is a former Minister for Housing between 18.6.2009 and 31.8.2009. He was re-elected on 24.6.2010. The de-notification is ordered by the first accused on 25.9.2009. Admittedly, the complaint is without the back up of previous sanction. Cognizance taken without previous sanction is barred (as per (2012)3 SCC 64 Subramanian Swamy Vs Manmohan Singh & others and N.K.Ganguly Vs C.B.I (2016) 2 SCC 143). It is also the law that if on the date of taking cognizance accused continues to be a public servant but in a different capacity or is holding a different office than the one alleged to have been abused (as per Abhay Singh Chautala Vs C.B.I (2011)7 SCC 14)), sanction is not a pre-requirement. Though the Special Judge has not dwelled upon requirement of previous sanction under Section 19 of the Act or otherwise, it may be conveniently assumed that cognizance taken and process issued is not hit by Section 19(1) of the P.C. Act. Thus the first ground urged by the revision petitioners gets diffused.\n 14. Much reliance is placed on the judgment of Vasanti Dubey's case (supra) which highlighted the requirement of an independent enquiry before taking cognizance and issuing process under Section 200 of the Code. In India Carat (Pvt.) Ltd. vs- State of Karnataka (1989(2) SCC 132), three Judges' Bench of the Apex Court had dealt in detail the power of the Magistrate under Sections 90(1)(b), 200, 202 and 204 of IPC, as under: \" 16. The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused.\nSection 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him.\"\n 15. While laying down the law regarding requirement of an independent enquiry prior to issue of process in Vasanti Dubey's case (supra), the facts and circumstances of the said case was not distinguished from India Carat (supra), there was no reference to the said case. Thus, the judgment of India Carat (supra), which is by Larger Bench of the Apex Court, holds over the judgment of Vasanti Dubey (supra). Same legal position is reiterated by the Apex Court in its later judgment i.e., State of Orissa vs- Habibullah Khan [(2003) 12 SCC 129] and it was observed that the Magistrate can take into account the statements of the witnesses examined by the Police during investigation and take cognizance of the offence complained of and order the issue of process to the accused. In that view of the matter, the second ground on which these revisions are brought finds no support.\n 16. Thus we arrive at the third ground, i.e., non- application of mind of the Special Judge and the order not disclosing his satisfaction about existence of a prima facie case to issue summons to the accused.\n The very scheme of the Act is to provide punishment for the offence of bribery and corruption among public servants. While Section 7 deals with public servants taking gratification other than legal remuneration in respect of official act, Section 13 envisages punishment for the offence of criminal misconduct of public servant. Sections 10 and 11 contemplate punishment for abetment of offence defined under Sections 8 and 9 of Act respectively and receiving valuables without consideration. By Sections 8 and 9 of the Act, others (whoever) taking gratification to influence public servant/for exercise of personal influence with public servant are brought to justice.\n 17. The intriguing question is, under what category, revision petitioners herein fall? To say that the second petitioner of Crl.R.P.No.473/2012 has not acted under the capacity of a public servant at the time of alleged offence and previous sanction is not warranted to take cognizance against him, then he falls under either of the category of Section 8 or 9 of the Act. The two petitioners of Cr.R.P.No.473/2012, as such are not the public servants. Then it follows that unless the ingredients of Section 8 or 9 of the Act is satisfied from the acts alleged against them, they cannot be prosecuted before the forum of Special Court.\n 18. The learned Special Judge in the body of his order has not made endeavour to record his satisfaction as to the existence of a prima facie case in respect of the offences for which he issued summons i.e., Sections 406, 409, 420, 463, 464, 468, 471 r/w Section 120-B of IPC, Section 13(1)(c) & d (i) r/w section 13(2) of Act, Sections 3, 4 and 5 r/w Section 91 of the Karnataka Land (Restriction on Transfer) Act 1991. The entire exercise of the Special Judge was only to reject the `C' Final Report submitted by the Investigating Officer with an omnibus observation that the documents collected by the I.O.\ncorroborates the allegation. Even if that were to be so, the learned Sessions Judge was obliged to reason out how the acts alleged against the petitioners herein fall within the four corners of the offences under the Act, K.L.R.T.Act and Indian Penal Code in respect of which summons was ordered.\n 19. In Pepsi Food Limited Vs. Judicial Magistrate reported in 1998(5) SCC 749 the Hon'ble Supreme Court highlighted the importance of the stage, the Magistrate issues summons to the accused persons in respect of the alleged offences. Para-28 relevant for the moment reads as follows: \"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused\".\n 20. In M/s GHCL Employees Stock Option Trust's case (supra), the omission on the part of the Magistrate for not recording his satisfaction in his order issuing summons about the prima facie case against the accused and the role played by them in their official capacity was strongly taken note of.\n 21. In Sunil Bharathi Mittal's case (supra) at para.48 it was held thus: \"48. Sine qua non for taking cognizance of the offence is the application of mind by the Magistrate and his satisfaction that the allegations, if proved, would constitute an offence. It is, therefore, imperative that on a complaint or on a police report, the Magistrate is bound to consider the question as to whether the same discloses commission of an offence and is required to form such an opinion in this respect. When he does so & decides to issue process, he shall be said to have taken cognizance. At the stage of taking cognizance, the only consideration before the court remains to consider judiciously whether the material on which the prosecution proposes to prosecute the accused brings out a prima facie case or not.\"\n 22. In the case of Mehmood Ul Rehman vs.\nKhazir Mohammad Tunda and Others reported in (2015) 12 SCC 420, it was observed at para Nos.21 and 22 thus: \"21. Under Section 190(1)(b) CrPC, the Magistrate has the advantage of a police report and under Section 190(1)(c) CrPC, he has the information or knowledge of commission of an offence. But under Section 190(1)(a) CrPC, he has only a complaint before him. The Code hence specifies that \"a complaint of facts which constitute such offence\". Therefore, if the complaint, on the face of it, does not disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a) CrPC.\n The complaint is simply to be rejected.\n 22. The steps taken by the Magistrate under Section 190(1)(a) CrPC followed by Section 204 CrPC should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the Court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 Cr.P.C. when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 CrPC, if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 CrPC, by issuing process for appearance.\nThe application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 CrPC, the High Court under Section 482 CrPC is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one's dignity, self-respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment\"\n .\n 23. The jurisdiction of a Special Judge under the Act is controlled by Section 4 of the Act. The Special Judge gets jurisdiction to try the offences notified by the Government for a particular area under sub-section (1) of Section 3 of the Act. In addition to that, Sub-Section (3) of Section 4 enables him to try other offences apart from the offences under the Act. Relevant Sub-Section reads thus: \"4(3) When trying any case, a special Judge may also try any offence, other than an offence specified in Section 3, with which the accused may, under the Code of Criminal Procedure, 1973(2 of 1974), be charged at the same trial.\"\n 24. Thus, it is clear that unless any out of many other acts alleged against an accused falls within the description of the offence contemplated under the Act, a Special Judge does not get jurisdiction to try the offences under IPC or any other allied statute. Unfortunately, learned Special Judge did not address this aspect of the matter. There is no indication of application of his mind as to what offence the alleged acts amount to. He gets jurisdiction to try offences under I.P.C. if only ingredients of any of the offences under Sections 7 to 11 and 13 of the Act is attracted as against the revision petitioners.\nHe has not expressed his satisfaction that for violation of provisions of K.L.R.T Act, Special Court is the right forum for prosecution. That cloths the impugned order with illegality.\n 25. In Urmila Devi's case (supra), it was declared by the Apex Court that such an order of a Magistrate deciding to issue process or summons to an accused in exercise of his power under Sections 200 to 204 of the Code can always be the subject matter of challenge under inherent jurisdiction of the High Court under Section 482 of the Code.\n 26. Still, it is for the Special Judge, being the primary Authority to discharge his function in accordance with the requirement of law, but not for this Court to take over the matter from the province of the Trial Court. The revisional power of this Court is to see that justice is done in accordance with the recognized rules of Criminal Jurisprudence and the subordinate courts do not exceed their jurisdiction or abuse the powers vested in them under the Code. In that view of the matter, it suffices for the present to set aside the order impugned with a direction to the court below to firstly ascertain from the complaint and evidentiary material collected by the Investigating Officer as to the jurisdiction of the Special Court to entertain the complaint, and then to take the matter to its logical end.\nIt is also for the Special Judge to record his satisfaction from the record before him as to what offences are made out to issue summons to the accused.\n The Revision Petitions are allowed. The order dated 13.4.2012 in Special C.C.No.46/2012 (PCR No.25/2011) passed by the Special Judge thereby taking cognizance and issuing summons to the revision petitioners in respect of the offences under Sections 406, 409, 420, 463, 464, 468, 471 read with Section 120-B of the Indian Penal Code, Sections 13(1)(c) and (d) read with Section 13(2) of the Act and Sections 3, 4 and 5 read with Section 9 of the K.L.R.T.Act, is set aside. The learned Special Judge is directed to re-consider the matter in the light of the observations supra.\n Sd/- JUDGE KNM/DVR/- "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "9b6d3f4207f94cfd88f28ea1a51e7d8b",
"to_name": null,
"type": null,
"value": {
"end": 94,
"labels": [
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],
"start": 0,
"text": "PETITIONER:\nUNION OF INDIA & ORS.\n\nVs.\n\nRESPONDENT:\nSETH R. DALMIA\n\nDATE OF JUDGMENT27/02/1975"
}
},
{
"from_name": null,
"id": "a876fe761e2e486e9a853e6a369004c1",
"to_name": null,
"type": null,
"value": {
"end": 174,
"labels": [
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],
"start": 96,
"text": "BENCH:\nGUPTA, A.C.\nBENCH:\nGUPTA, A.C.\nCHANDRACHUD, Y.V.\nSARKARIA, RANJIT SINGH"
}
},
{
"from_name": null,
"id": "3f65609aa6474dd3983533a1375e51d2",
"to_name": null,
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"value": {
"end": 651,
"labels": [
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],
"start": 174,
"text": "\n\nCITATION: 1975 SCR (3) 735\n 1975 AIR 1017\n 1975 SCC (4) 16\n\nACT:\nIncome Tax Act 1961-Sec. 148.\nCentral Board of Direct Taxes (Regulation of Transaction of\nBusiness) Rules 1964--Rule 4--Whether approval, by Central\nGovernment of distribution of the business of board by\nChairman must be expressed in the shape of an order.\n\nHEADNOTE:\n6 notices were issued to the respondent under s. 148 of the\nIncome Tax Act for reopening the assessments for 3\nassessment years."
}
},
{
"from_name": null,
"id": "d413074232ba45ec9cd64569d81cfe0a",
"to_name": null,
"type": null,
"value": {
"end": 775,
"labels": [
"PREAMBLE"
],
"start": 652,
"text": "The notices recited that they. were\nissued after obtaining the necessary satisfaction of the\nCentral Board of Direct. Taxes"
}
},
{
"from_name": null,
"id": "b646fa855e1b40fa8e3e6f61447543bf",
"to_name": null,
"type": null,
"value": {
"end": 1017,
"labels": [
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],
"start": 776,
"text": "The respondent filed a writ\npetition in the High Court challenging the said notices\ninter alia on, the ground that sanction of the Central Board\nof Direct Taxes was not taken before the notices were issued\nas required by sec. 151 of the Act."
}
},
{
"from_name": null,
"id": "3b9b96e5f5c74fc9811888a37ba6956a",
"to_name": null,
"type": null,
"value": {
"end": 1122,
"labels": [
"PREAMBLE"
],
"start": 1018,
"text": "The High Court accepted\nthe said contention and did not decide the other grounds\nraised in the petition."
}
},
{
"from_name": null,
"id": "813b38db0c1e4131af5cc9206bfda7e8",
"to_name": null,
"type": null,
"value": {
"end": 1485,
"labels": [
"PREAMBLE"
],
"start": 1123,
"text": "The High Court held that on a\nreading of the affidavit made by J. P. Singh, Chairman of\nCentral Board of Direct Taxes it would appear that the work\nwhich had been done by the Chairman of the Central Board was\ntransferred to the Member of the Board and the approval of\nthe Secretary to the Government of India was obtained for\nthis transfer or allocation of work."
}
},
{
"from_name": null,
"id": "3fed7af3edbf4dea94d18e6add0ee97d",
"to_name": null,
"type": null,
"value": {
"end": 1613,
"labels": [
"PREAMBLE"
],
"start": 1486,
"text": "The High Court,\nhowever, found that the averments in the affidavit were not\nin line with the office notes in the relevant file."
}
},
{
"from_name": null,
"id": "ce35fd276d9a4b259337d0a1b658eb26",
"to_name": null,
"type": null,
"value": {
"end": 1844,
"labels": [
"PREAMBLE"
],
"start": 1614,
"text": "The\nHigh Court also held that as no formal order was passed\nchanging the allocation with the previous approval of the\nCentral Government, the sanction issued by Central Board of\nDirect Taxes was without jurisdiction and authority."
}
},
{
"from_name": null,
"id": "a7bbc188e55f43ca8a9dbdc1f0ab98a2",
"to_name": null,
"type": null,
"value": {
"end": 2279,
"labels": [
"PREAMBLE"
],
"start": 1844,
"text": "\nOn appeal by Special Leave it was contended before this\nCourt that r. 4 of the Central Board, of Direct Taxes\n(Regulation of Transaction of Business) Rules, 1954 provides\nthat the Chairman of the Central Board may with the previous\napproval of the Central Government distribute the business\nof the Board between himself and the other members and may\nspecify the cases or class of cases which shall' be\nconsidered jointly by the Board."
}
},
{
"from_name": null,
"id": "cc9a62a0e32a441bbc247d037183ab16",
"to_name": null,
"type": null,
"value": {
"end": 2568,
"labels": [
"PREAMBLE"
],
"start": 2280,
"text": "It was contended that J. P\nSingh in his affidavit clearly stated that on 30-3-1964 he\nsuggested to Narayan Rao, a member of the Central Board of\n\nDirect Taxes that lie should take up the work of according\nsanction of the Board under s. 151 of the Act which was\nbeing done by the Chairman."
}
},
{
"from_name": null,
"id": "a904537158b9477d90a242d83cbdf271",
"to_name": null,
"type": null,
"value": {
"end": 3360,
"labels": [
"PREAMBLE"
],
"start": 2569,
"text": "It was further stated in that\naffidavit that on June 18, 1964 he personally discussed the\nproposal with the Secretary to the Government of India, in,\nthe Ministry of Finance and that the Secretary approved the\nsaid proposal and that a note was made by him on 18th June,\n1964 to the effect that the matter was discussed with the\nSecretary and that it is just a minor internal\narrangement and no formal order was necessary.\nAllowing the appeal,\nHELD'. (1) The High Court erred in not taking note of the\naffidavit of P. G. Gandhi Under Secretary Central Board of\nDirect Taxes, in which it is stated that all assessment work\nof income tax was assigned to Narayan Rao with the approval\nof the Central Government. In view of the statements in the\nspecific affidavit of J. P. Singh and P. G. Gandhi"
}
},
{
"from_name": null,
"id": "e463beb3b75b44eba6729881d41f3219",
"to_name": null,
"type": null,
"value": {
"end": 3371,
"labels": [
"PREAMBLE"
],
"start": 3361,
"text": "it cannot\n"
}
},
{
"from_name": null,
"id": "6bfe9ad35425454bb9efda216d18eb7b",
"to_name": null,
"type": null,
"value": {
"end": 3455,
"labels": [
"PREAMBLE"
],
"start": 3371,
"text": "be said that the office notes were not in line with the\naverments in the affidavits."
}
},
{
"from_name": null,
"id": "b96855d24aed4b94812c586bf2957ab5",
"to_name": null,
"type": null,
"value": {
"end": 3578,
"labels": [
"PREAMBLE"
],
"start": 3456,
"text": "[739H; 740C]\n(2) It was not necessary to express the approval of the\nCentral Government formally in the shape of an order."
}
},
{
"from_name": null,
"id": "1f8d36f481e7404e95a3f61420ac4fdb",
"to_name": null,
"type": null,
"value": {
"end": 3681,
"labels": [
"PREAMBLE"
],
"start": 3579,
"text": "[741H]\nFonseca Private Limited and Others v. L. C. Gupta & Others,\n[1973] 1 S.C.C. 418, distinguished."
}
},
{
"from_name": null,
"id": "b7f401f02a464253a39c04d0f09ed9a4",
"to_name": null,
"type": null,
"value": {
"end": 3988,
"labels": [
"PREAMBLE"
],
"start": 3681,
"text": "In that case what was challenged was the order passed by an\nofficer who was not entitled to pass it under the rules of\nbusiness and the decision has no relevance on the question\nwhether on the circumstances of the present case, approval\nof the Central Government should have been recorded in a\nformal order."
}
},
{
"from_name": null,
"id": "f59b0898e8724e669cdda0d4eaa65813",
"to_name": null,
"type": null,
"value": {
"end": 4275,
"labels": [
"PREAMBLE"
],
"start": 3989,
"text": "[741C]\n(3) The distribution of the business of the Board by the\nChairman is not a sub-delegated legislation and need not be\nexpressed in a formal document; that the allocation of the\nbusiness and approval are matters of internal arrangement\nnot affecting any one's rights at that stage."
}
},
{
"from_name": null,
"id": "eb4a46ffaf764508b3dcac2faebb41bf",
"to_name": null,
"type": null,
"value": {
"end": 4496,
"labels": [
"PREAMBLE"
],
"start": 4276,
"text": "Since the\nappeals succeed on other grounds the Court did not go into\nthe question whether the provisions of the Central Board of\nDirect Taxes (Validation of Proceedings) Act, 1971 afforded\nprotection to the action taken."
}
},
{
"from_name": null,
"id": "ce0ba442da60420b8eab09dce6ad7bbf",
"to_name": null,
"type": null,
"value": {
"end": 4522,
"labels": [
"PREAMBLE"
],
"start": 4497,
"text": "[741E-F; 742E]\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "f43069e7a4b7437bb14039db9af5f39d",
"to_name": null,
"type": null,
"value": {
"end": 4595,
"labels": [
"NONE"
],
"start": 4522,
"text": "\nCVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1107-1112 (NI) of 1970."
}
},
{
"from_name": null,
"id": "44768576dfe440d1bf074efe268cd6bf",
"to_name": null,
"type": null,
"value": {
"end": 4725,
"labels": [
"NONE"
],
"start": 4595,
"text": "\nFrom the judgment and order dated the 24th March, 1970 of the Delhi High Court in Civil Writ Petition Nos. 663D and 668D of 1965."
}
},
{
"from_name": null,
"id": "5038a2f0a1bb466797616622b2a84af6",
"to_name": null,
"type": null,
"value": {
"end": 4791,
"labels": [
"NONE"
],
"start": 4725,
"text": "\nS. T. Desai, T. A. Ramchandran & S. P. Nayar, for the appellants."
}
},
{
"from_name": null,
"id": "552ceada09a9411fbe384b7cd19ecab9",
"to_name": null,
"type": null,
"value": {
"end": 4844,
"labels": [
"NONE"
],
"start": 4791,
"text": "\nL. M. Singhvi and Bishambar Lal, for the respondent."
}
},
{
"from_name": null,
"id": "6dcfb368c2824217ab375320168918cf",
"to_name": null,
"type": null,
"value": {
"end": 5184,
"labels": [
"FAC"
],
"start": 4844,
"text": "\nThe Judgment of the Court was delivered by GUPTA, J.-These six appeals by certificates granted by the High Court of Delhi arise out of six writ petitions filed by the respondent before us challenging the validity of six notices dated September 7, 1965 issued under sec. 148 of the Income-Tax Act, 1961 (hereinafter referred to as the Act)."
}
},
{
"from_name": null,
"id": "875ee7d4843045e5b5f9c80d353ae69b",
"to_name": null,
"type": null,
"value": {
"end": 5359,
"labels": [
"FAC"
],
"start": 5184,
"text": "\nThe, notices relate to the assessment years 1949-50, 1950-51 and 1951-52, the corresponding accounting years ending on the 30th September of 1948, 1949 and 1950 respectively."
}
},
{
"from_name": null,
"id": "fcfcb8596180478eb2e0ec9ba1e07769",
"to_name": null,
"type": null,
"value": {
"end": 5518,
"labels": [
"FAC"
],
"start": 5359,
"text": "\nThree of the notices were issued to the petitioner in his individual capacity and the other three were served on him as a member of an association of persons."
}
},
{
"from_name": null,
"id": "c567fc2e9db64136b14bb7eb629105a8",
"to_name": null,
"type": null,
"value": {
"end": 5672,
"labels": [
"FAC"
],
"start": 5519,
"text": "The petitioner had been assessed as an individual for the aforesaid assessment years in accordance with the provision& of the Indian Income-Tax Act 1922."
}
},
{
"from_name": null,
"id": "79e95c23a7d144d28c8a388fdeaf4bec",
"to_name": null,
"type": null,
"value": {
"end": 5853,
"labels": [
"FAC"
],
"start": 5673,
"text": "Thereafter a Commission known as Vivian Bose Commission was appointed to enquire into the affairs of various companies with which the appellant was alleged to have been associated."
}
},
{
"from_name": null,
"id": "a0e5fa9208ff4bfbae8215731fb5a8ce",
"to_name": null,
"type": null,
"value": {
"end": 6055,
"labels": [
"FAC"
],
"start": 5854,
"text": "On the facts disclosed in the report of enquiry, the Income-tax Officer, Special Investigation Circle A, New Delhi, issued the aforesaid two sets of notices to the petitioner under sec. 148 of the Act."
}
},
{
"from_name": null,
"id": "b32b09c49f24437194874d2d27b69e1a",
"to_name": null,
"type": null,
"value": {
"end": 6209,
"labels": [
"FAC"
],
"start": 6055,
"text": "\n The notices informed the petitioner that these were issued \"after obtaining the necessary satisfaction of the Central Board of Direct Taxes, New Delhi\"."
}
},
{
"from_name": null,
"id": "ecd22c489d91469a8e76508353e6d59f",
"to_name": null,
"type": null,
"value": {
"end": 6489,
"labels": [
"FAC"
],
"start": 6210,
"text": "This claim was ques- tioned by the petitioner in the High Court and one of the grounds on which the validity of the notices was challenged was that sanction of the Central Board of Direct Taxes had not been taken before the notices were issued as required by sec. 151 of the Act."
}
},
{
"from_name": null,
"id": "b260ba56610b4a35acc2e08049012499",
"to_name": null,
"type": null,
"value": {
"end": 6829,
"labels": [
"RLC"
],
"start": 6490,
"text": "The High Court accepting this contention queshed all the six notices served on the petitioner and by issuing a writ of Prohibition restrained the appeallants, the Union of India, the Central Board of Direct. Taxes, New Delhi, and the Income-tax Officer, Special Investigation Circle A, New Delhi, from taking any action upon these notices."
}
},
{
"from_name": null,
"id": "12fc814cb26242aebea73b4e77682a05",
"to_name": null,
"type": null,
"value": {
"end": 6970,
"labels": [
"RLC"
],
"start": 6830,
"text": "As the writ petitions succeeded on this ground, the High Court did not consider the other objections to the notices raised in the petitions."
}
},
{
"from_name": null,
"id": "371ceb37963840a3a02d82e21ffa195b",
"to_name": null,
"type": null,
"value": {
"end": 7036,
"labels": [
"FAC"
],
"start": 6971,
"text": "The pro, priety of that decision is in question in these appeals."
}
},
{
"from_name": null,
"id": "650219ac2cc440d680e72a1cdf058fd8",
"to_name": null,
"type": null,
"value": {
"end": 7746,
"labels": [
"STA"
],
"start": 7038,
"text": "The relevant part of sec. 151 of the Act reads as follows \"151. Sanction for issue of notice.-(I) No notice shall be issued under section 148 after the expiry of eight years from the end of the relevant assessment year, unless the Board is satisfied on the reasons recorded by the Income-tax Officer that it is a fit case for the issue of such notice.\n (2) x x x\"\n Section 4(1) of the Central Boards of Revenue Act, 1963 provides \"The Central Government may make rules for the purposes of regulating the transaction of business by each Board and every order made or act done in accordance with such rules shall be deemed to be the order or act, as the case may be, of the Board.\""
}
},
{
"from_name": null,
"id": "9c82c10763bb4f74acb4f6418ad5f367",
"to_name": null,
"type": null,
"value": {
"end": 7871,
"labels": [
"STA"
],
"start": 7747,
"text": "\"Board\" as defined in sec. 2 of this Act means the Central Board of Direct Taxes or the Central Board of Excise and Customs."
}
},
{
"from_name": null,
"id": "163ea92fe30c4df9b9083f0c054acf2c",
"to_name": null,
"type": null,
"value": {
"end": 8246,
"labels": [
"STA"
],
"start": 7872,
"text": "Rule 4 of the Central Board of Direct Taxes (Regulations of Transaction of Busi- ness) Rules, 1964 is in these terms : \"The Chairman may, by an order made with the previous approval of the Central Government, distribute the business of the Board among himself and the other Members and specify the cases or class of cases which shall be con- sidered jointly by the Board.\"\n "
}
},
{
"from_name": null,
"id": "aeb2edcff7f54b39bc9f2811c56998f0",
"to_name": null,
"type": null,
"value": {
"end": 8777,
"labels": [
"FAC"
],
"start": 8246,
"text": "What happened in this case was that the Income-tax Officer put up the case of the respondent to the Central Board of Direct Taxes by a comprehensive note prepared by him and Shri S. A. L. Narayana Row, the only Member of the Board besides the Chairman, on being satisfied on the reasons recorded by the income-tax Officer that for each of the assessment years in both capacities of the respondent a fit case had been made out for the issue of a notice under sec.\n 148 of the Act, the impugned notices were issued to the respondent."
}
},
{
"from_name": null,
"id": "352af913831347d685558422922020a8",
"to_name": null,
"type": null,
"value": {
"end": 9161,
"labels": [
"FAC"
],
"start": 8778,
"text": "In support of his case that sanction of the Board had not been obtained, the respondent relied on the Office Order dated January 1, 1964 annexed to the affidavit of shri p. G. Gandhi, Under Secretary Central Board of Direct Taxes, filed in answer to the writ petitions, which sets out the distribution of work between the Chairman and the Member of the Central Board of Direct Taxes."
}
},
{
"from_name": null,
"id": "622b91b7758f44beb5bee0f30ba3eb7e",
"to_name": null,
"type": null,
"value": {
"end": 9279,
"labels": [
"FAC"
],
"start": 9162,
"text": "In this document, entry No. 7 in thelist of work allotted to the Chairman reads : \"all assessment work ofincome-tax\"."
}
},
{
"from_name": null,
"id": "fc92adfaa8e54edb8e77b1e4fde05527",
"to_name": null,
"type": null,
"value": {
"end": 9469,
"labels": [
"FAC"
],
"start": 9279,
"text": "\nIt was contended that Shri Narayana Row had therefore no authority to deal with cases for reopening of assessments and assuch the impugned notices issued upon his satisfaction were invalid."
}
},
{
"from_name": null,
"id": "904655d544c240ec80ee91ceac693868",
"to_name": null,
"type": null,
"value": {
"end": 10013,
"labels": [
"FAC"
],
"start": 9470,
"text": "In paragraph 5 of the affidavit of Shri P. G. Gandhi, it is admitted that \"all assessment work of Income-tax\" I had been assigned to the Chairman under office order dated January 1, 1964 which included matters relating to the reopening of assessmentsunder sec. 34 of the Income-Tax Act, 1922 or under sec. 147 of the income-Tax Act, 1961, but the paragraph adds that \"later with the approval of the Central Government this item of work was assigned to the Member of the Board Shri S. A.\nL. Narayana Row who in this case accorded the sanction\"."
}
},
{
"from_name": null,
"id": "d4a5453e19e4420e94f2f8d168875e73",
"to_name": null,
"type": null,
"value": {
"end": 10268,
"labels": [
"FAC"
],
"start": 10013,
"text": "\nAn affidavit afirmed by Shri J. P. Singh who at the relevant time was the Chairman of the Central Board of Direct Taxes and ex-ofricio Additional Secretary to the Government of India in the Ministry of Finance, was also filed on behalf of the appellants."
}
},
{
"from_name": null,
"id": "dd1e5a7f93934fd6a0a72c4ecbf7122f",
"to_name": null,
"type": null,
"value": {
"end": 10411,
"labels": [
"FAC"
],
"start": 10269,
"text": "Paragraphs 3 to 7 of Shri Singh's affidavit state how Shri Narayana Row came to .deal with the cases relating to the reopening of assessments."
}
},
{
"from_name": null,
"id": "6c90f385b2574505b9dfeda8ce61da7b",
"to_name": null,
"type": null,
"value": {
"end": 10773,
"labels": [
"FAC"
],
"start": 10412,
"text": "These paragraphs read as follows : \"3. That on 30-3 641 suggested to Shri S. A.\n L. Narayana Row, the then Member of the Central Board of Direct Taxes that he should take up the work of according sanction of the Board under Section 151(1) for reopening of assessments under Section 147 of the Income- Tax Act, 1961 to which he consented."
}
},
{
"from_name": null,
"id": "f7674a077548423e8c0fbca381525a67",
"to_name": null,
"type": null,
"value": {
"end": 10897,
"labels": [
"STA"
],
"start": 10773,
"text": "\n 4. Rule 4 of the Central Board of Direct Taxes (Regulation of Transaction of Business) Rules, 1964"
}
},
{
"from_name": null,
"id": "a5a3591bb3e2449bbf131162ab1c4ea3",
"to_name": null,
"type": null,
"value": {
"end": 11069,
"labels": [
"STA"
],
"start": 10898,
"text": "envisaged that Chairman may by an order made with the previous approval of the Central Government distribute the business of the Board among himself and the other members."
}
},
{
"from_name": null,
"id": "b684c4c60cc143c8af2d65404260a36a",
"to_name": null,
"type": null,
"value": {
"end": 11411,
"labels": [
"FAC"
],
"start": 11069,
"text": "\n The approval regarding the transfer of work relating to sanction under section 151(1) of Income-Tax Act from the Chairman to the Member Central Board of Direct Taxes was accordingly referred to by me to the Secretary, Ministry of Finance (Department of Revenue & Expenditure) on 9-6-1964.\n 5."
}
},
{
"from_name": null,
"id": "b9b9b7a2531d4b0cbcd2be747fddc004",
"to_name": null,
"type": null,
"value": {
"end": 11710,
"labels": [
"FAC"
],
"start": 11412,
"text": "That on 18-6, 1964, 1 personally discussed the proposal regarding transfer of work from myself to the Member, Central Board of Direct Taxes with Shri V. T. Dehejia, the then Secretary of the Government of India, Ministry of Finance (Department of Revenue & Expenditure).\n 6."
}
},
{
"from_name": null,
"id": "d93ddf70b9554ffe8c53f0566fa9200f",
"to_name": null,
"type": null,
"value": {
"end": 11914,
"labels": [
"FAC"
],
"start": 11711,
"text": "That Shri V. T. Dehejia, the then Secretary to the of India, Ministry of Finance (Department of Expenditure) approved the said proposal to a note was made by me on 18-6- 1964.\n 7."
}
},
{
"from_name": null,
"id": "84d4ecbea7584f9fb117656e9c148668",
"to_name": null,
"type": null,
"value": {
"end": 12309,
"labels": [
"FAC"
],
"start": 11915,
"text": "That pursuant to the duty assigned to him under of the Income-Tax Act, 1961 in the aforesaid Rule 4 of the Central Board of Direct Taxes (Regulation of Transaction of Business) Rules 1964, Shri S. A. L. Narayana Row, Member, Central Board of Direct Taxes gave sanction for the reopening of the assessments under Section 147 of the Income- Tax Act, 1961 in the, aforesaid case on 11-8- 1965.\"The"
}
},
{
"from_name": null,
"id": "fb045bbeb1b24d35b2ddcb957a9b24b4",
"to_name": null,
"type": null,
"value": {
"end": 12618,
"labels": [
"FAC"
],
"start": 12310,
"text": "High Court observed that on a reading of the affidavit affirmed by Shri J. P. Singh \"it would appear that the work which had till then been done by the Chairman was to be transferred to the Member and approval of the Secretary to the Government of India was obtained for this transfer or allocation of work.\""
}
},
{
"from_name": null,
"id": "e0d1bcab33c34c9aba7164e7991b97b9",
"to_name": null,
"type": null,
"value": {
"end": 12860,
"labels": [
"FAC"
],
"start": 12619,
"text": "Thee High Court however found that the averments in the affidavit were \"not in line\" with the office notes in the relevant file which appears to have been made available to the learned Judges of the High Court who heard these writ petitions."
}
},
{
"from_name": null,
"id": "22a5b2f497f94796bea3d86276572a20",
"to_name": null,
"type": null,
"value": {
"end": 12939,
"labels": [
"ANALYSIS"
],
"start": 12861,
"text": "We have also looked into the copies of these office-notes which are on record."
}
},
{
"from_name": null,
"id": "9d2766991f1b4c4794a347e425d8fe35",
"to_name": null,
"type": null,
"value": {
"end": 13167,
"labels": [
"ANALYSIS"
],
"start": 12940,
"text": "It appears that on March 13, 1964 Shri I. P. Singh, Chair-man of the Board, recorded the following note : \"M(I&ED) may also consider whether he could take up the cases for sanction of reopening of assessments (old section 34).\""
}
},
{
"from_name": null,
"id": "b21e5ae3dcba4a52980dbf9c294a16c6",
"to_name": null,
"type": null,
"value": {
"end": 13384,
"labels": [
"ANALYSIS"
],
"start": 13167,
"text": "\nThis was obviously a note for consideration of the other Member of the Board who, on the next day, recorded his consent to this proposal in the following words \"I will take up, cases of reopening of assessment also.\""
}
},
{
"from_name": null,
"id": "abef37f37f3d4fdbae08e5c1f5c92847",
"to_name": null,
"type": null,
"value": {
"end": 13477,
"labels": [
"ANALYSIS"
],
"start": 13384,
"text": "\nBelow the sentence conveying Shri Row's assent to the proposal, the Chairman wrote \"Thanks\"."
}
},
{
"from_name": null,
"id": "4548706109854dd3b1c299cd8c5006df",
"to_name": null,
"type": null,
"value": {
"end": 13516,
"labels": [
"ANALYSIS"
],
"start": 13478,
"text": "The matter however did not rest there."
}
},
{
"from_name": null,
"id": "398daa91cdca4e189fb11b4a03f423f2",
"to_name": null,
"type": null,
"value": {
"end": 13867,
"labels": [
"ANALYSIS"
],
"start": 13517,
"text": "On May 14, 1964 the following note was put up by Shri B. B. Ghosh, Under Secretary \"Rule 4 of the Central Board of Direct Taxes (Regulation of Transaction of Business) Rules, 1964 envisage that Chairman may by an order made with the previous approval of the Central Government distribute the business of the Board among himself and the other Members."
}
},
{
"from_name": null,
"id": "9c9c61e01bce47b6b10c157ca4e9a782",
"to_name": null,
"type": null,
"value": {
"end": 13975,
"labels": [
"ANALYSIS"
],
"start": 13867,
"text": "\n Accordingly, the Office Order already issued in the matter will require amendment."
}
},
{
"from_name": null,
"id": "e18981fa2ddf49019125c8175cd94258",
"to_name": null,
"type": null,
"value": {
"end": 14018,
"labels": [
"ANALYSIS"
],
"start": 13976,
"text": "Draft D.O. is submitted for consideration."
}
},
{
"from_name": null,
"id": "15af602f2f86490184116c5bfc0ea996",
"to_name": null,
"type": null,
"value": {
"end": 14098,
"labels": [
"ANALYSIS"
],
"start": 14019,
"text": "We may also inform the Heads of Departments under the Board about the decision."
}
},
{
"from_name": null,
"id": "2d041fbe695f444b983ede5063480e05",
"to_name": null,
"type": null,
"value": {
"end": 14165,
"labels": [
"ANALYSIS"
],
"start": 14099,
"text": "Draft letter is submitted for approval.\"\n "
}
},
{
"from_name": null,
"id": "6543ecbdd88c41acba6327e05fce53a4",
"to_name": null,
"type": null,
"value": {
"end": 14240,
"labels": [
"ANALYSIS"
],
"start": 14165,
"text": "The last relevant note on this subject reads : \"Discussed with Secy. (R&E)."
}
},
{
"from_name": null,
"id": "92ed895a089d43e2a4430fd025751140",
"to_name": null,
"type": null,
"value": {
"end": 14281,
"labels": [
"ANALYSIS"
],
"start": 14241,
"text": "It is just a minor internal arrangement."
}
},
{
"from_name": null,
"id": "b86b855eb8ad4b5592515fd8dc7e4c4e",
"to_name": null,
"type": null,
"value": {
"end": 14312,
"labels": [
"ANALYSIS"
],
"start": 14282,
"text": "No formal order is necessary.\""
}
},
{
"from_name": null,
"id": "7ff5d80387264944a4f0b0bf64b26106",
"to_name": null,
"type": null,
"value": {
"end": 14376,
"labels": [
"ANALYSIS"
],
"start": 14312,
"text": "\nThis is signed by Shri J. P. Singh and bears the date 18-6- 64."
}
},
{
"from_name": null,
"id": "a5b2cd36447948408323edd2e618a6ba",
"to_name": null,
"type": null,
"value": {
"end": 14605,
"labels": [
"ANALYSIS"
],
"start": 14377,
"text": "The High Court held that as no formal order was passed \"changing the allocation with the previous approval of the Central Government, the sanction as granted by Shri 'S. A.\nL. Narayana Row is without jurisdiction and authority\"."
}
},
{
"from_name": null,
"id": "ec401a9e08474d639ebd82c275ab610d",
"to_name": null,
"type": null,
"value": {
"end": 14870,
"labels": [
"ANALYSIS"
],
"start": 14606,
"text": "It is not quite clear whether the High Court was not satisfied that Shri J. P. Singh's proposal for a change in the allocation of work was at all approved by the Government or that in the absence of a formal order to that effect the approval was of no consequence."
}
},
{
"from_name": null,
"id": "05fdcb55956d4cdda2a0b165bdfd4d6e",
"to_name": null,
"type": null,
"value": {
"end": 15118,
"labels": [
"ANALYSIS"
],
"start": 14871,
"text": "The High Court does not appear to, have taken any note of the affidavit 'of Shri P.\nG. Gandhi in paragraph 5 of which it is stated that all assessment work of Income-tax was assigned to Shri Narayana Row with the approval of the CentralGovernment."
}
},
{
"from_name": null,
"id": "f7d9852707f54df0b2c04b643134c2ec",
"to_name": null,
"type": null,
"value": {
"end": 15668,
"labels": [
"ANALYSIS"
],
"start": 15119,
"text": "From the affidavit of Shri J. P. Singh, the then Chairman of the Central Board of Direct Taxes, part of which we have extracted above, it appears that Shri Singh had referred to ,he Secretary, Ministry of Finance (Department of Revenue and Expenditure) the proposal for transfer of work relating to sanction under sec. 151 (1) of the Act from the Chairman to the Member of the Board, that Shri Singh personally discussed the matter with Shri V. T.\nDehejia who was then the Secretary, Ministry of Finance, and that Shri Dehejia approved the proposal."
}
},
{
"from_name": null,
"id": "bbc36f0e29ef4cf893679ea733886ff4",
"to_name": null,
"type": null,
"value": {
"end": 15789,
"labels": [
"ANALYSIS"
],
"start": 15669,
"text": "Shri J. P. Singh's affidavit adds that the note he made in the office file on June 18, 1964-\"Discussed with Secy. (R&E)."
}
},
{
"from_name": null,
"id": "c8342f27c4394092b0e11707394d50ad",
"to_name": null,
"type": null,
"value": {
"end": 15830,
"labels": [
"ANALYSIS"
],
"start": 15790,
"text": "It is just a minor internal arrangement."
}
},
{
"from_name": null,
"id": "bfe7a1a0a1a8476c92822c886d085031",
"to_name": null,
"type": null,
"value": {
"end": 15885,
"labels": [
"ANALYSIS"
],
"start": 15831,
"text": "No formal order is necessary.\"- refers to these facts."
}
},
{
"from_name": null,
"id": "e0f45b317f184accb3c2894742a4268c",
"to_name": null,
"type": null,
"value": {
"end": 16240,
"labels": [
"ANALYSIS"
],
"start": 15886,
"text": "In the face of the statements appearing in the affidavits of Shri J. P. Singh and Shri P.\nG. Gandhi that the work relating to the reopening of assessments was assigned to Shri Row with the previous approval' of the Central Government, it is difficult to see how it can, be said that the office notes were not in line with the averments in the affidavits."
}
},
{
"from_name": null,
"id": "3fa82062c892485282379b55fa3a9e65",
"to_name": null,
"type": null,
"value": {
"end": 16395,
"labels": [
"ANALYSIS"
],
"start": 16241,
"text": "The High Court did not disbelieve the statement of Shri J. P. Singh that he had discussed the proposal with Shri V. T. Dehejia, who approved the proposal."
}
},
{
"from_name": null,
"id": "e858d76e562f4aa9ac260374a545396b",
"to_name": null,
"type": null,
"value": {
"end": 16697,
"labels": [
"ANALYSIS"
],
"start": 16396,
"text": "to Possibly, the absence of a formal order expressing the approval led to the observation that Shri Singhs affidavit was not in line with the office notes and also the ultimate finding that the notices issued upon the satisfaction of the member of the Board was \"without juris- diction and authority\"."
}
},
{
"from_name": null,
"id": "f82640a9cab14f8281a684e13db5b549",
"to_name": null,
"type": null,
"value": {
"end": 17032,
"labels": [
"ARG_RESPONDENT"
],
"start": 16698,
"text": "Dr. Singhvi, learned counsel for the respondent, contended (1) that the material on record did not prove beyond doubt that the Central Government had approved-the proposal of the Chairman to alter the original distribution of work and (2) that in any event the law required the approval to be expressed in the shape of a formal order."
}
},
{
"from_name": null,
"id": "d85f083b5dcb4e6097cefe1335e86dc3",
"to_name": null,
"type": null,
"value": {
"end": 17309,
"labels": [
"ARG_RESPONDENT"
],
"start": 17033,
"text": "Referring to the office note of the Chairman dated June 18, 1964, Dr. Singhvi submitted that it was not clear from this note what exactly was considered unnecessary a formal order expressing the approval, or getting the proposed alteration approved by the Central Government ?"
}
},
{
"from_name": null,
"id": "ff4d2aa3495d4d619b852ee84bf98768",
"to_name": null,
"type": null,
"value": {
"end": 17717,
"labels": [
"ARG_RESPONDENT"
],
"start": 17310,
"text": "It was argued that as the suggested alteration was considered \"just a minor internal arrangement,\" it was likely that the Chairman thought that no prior approval of the Central Government was necessary before the altered arrangement was put into operation, in which case the notices would be invalid in view of Rule 4 of the Central Board of Direct Taxes (Regulation of Transaction of Business) Rules, 1964."
}
},
{
"from_name": null,
"id": "5e394e44e9c749de8d1a944a0a6476ec",
"to_name": null,
"type": null,
"value": {
"end": 17970,
"labels": [
"ANALYSIS"
],
"start": 17717,
"text": "\nHowever, it seems to us, when the note said \"no formal order is necessary\" it could not possibly mean that approval of the Central Government was unnecessary, and we have no doubt that it meant that no formal order conveying the approval was necessary."
}
},
{
"from_name": null,
"id": "e34988ff951148f8b6ced51b4db6f27d",
"to_name": null,
"type": null,
"value": {
"end": 18479,
"labels": [
"ANALYSIS"
],
"start": 17971,
"text": "Regarding the statements in the affidavits of Shri J. P. Singh and Shri P. G. Gandhi that all work relating to the reopening of assessments was assigned to Shri Narayana Row with the approval of the Central Government, Dr. Singhvi pointed out that these statements had been verified by Shri J. P. Singh as true to his knowledge \"derived from records in the possession of the Central Board of Direct Taxes\" and by Shri P. G. Gandhi as \"based on the information derived from record in possession of the Board\"."
}
},
{
"from_name": null,
"id": "304ef56db89b459b8bc5a77a04bb736a",
"to_name": null,
"type": null,
"value": {
"end": 18618,
"labels": [
"ANALYSIS"
],
"start": 18480,
"text": "It, was argued that as the records did not disclose any order of approval by the Central Government, the said statements were of no value."
}
},
{
"from_name": null,
"id": "7a07fd7af3864d97bf0dc598fcccfff2",
"to_name": null,
"type": null,
"value": {
"end": 18811,
"labels": [
"ANALYSIS"
],
"start": 18618,
"text": "It seems to us that the verification of the statements in Shri J. P. Singh's affidavit clearly suggests that the facts stated therein were true to his knowledge which the records also bear out."
}
},
{
"from_name": null,
"id": "35814083b073448c9ac16ff113a0e448",
"to_name": null,
"type": null,
"value": {
"end": 18955,
"labels": [
"ANALYSIS"
],
"start": 18812,
"text": "As stated already, the High Court did not question the truth of the facts stated in Shri Singh's affidavit, nor do we find any reason to do so."
}
},
{
"from_name": null,
"id": "4ce3ddba82124d52beeb23264e649104",
"to_name": null,
"type": null,
"value": {
"end": 19082,
"labels": [
"ANALYSIS"
],
"start": 18956,
"text": "We have no doubt that the office note made by Shri J. P. Singh on June 18, 1964 supports the statements made in his affidavit."
}
},
{
"from_name": null,
"id": "bf6ed8c3a2564392b3e6dd7677cf807b",
"to_name": null,
"type": null,
"value": {
"end": 19186,
"labels": [
"ISSUE"
],
"start": 19082,
"text": "\nThe next question is whether the approval should have been formally expressed in the shape of an order."
}
},
{
"from_name": null,
"id": "20b74997b2a9438f90fdc275a97716b5",
"to_name": null,
"type": null,
"value": {
"end": 19304,
"labels": [
"ANALYSIS"
],
"start": 19187,
"text": "On this question Dr. Singhvi referred to the decision of this Court in Fonseca (P) Ltd., & Ors. v. L. C. Gupta & Ors."
}
},
{
"from_name": null,
"id": "b1d3651b5d5742d5b892b77909d732a6",
"to_name": null,
"type": null,
"value": {
"end": 19537,
"labels": [
"ANALYSIS"
],
"start": 19305,
"text": "(1) In that case an order made by the Deputy Secretary to the Government of India, Ministry of Works and Housing, who was not empowered to make such an order under the Rules of Business, was held to be illegal, ineffective and void."
}
},
{
"from_name": null,
"id": "86d9e1fa8ef94e388add6c6087235f13",
"to_name": null,
"type": null,
"value": {
"end": 19586,
"labels": [
"ANALYSIS"
],
"start": 19538,
"text": "We do not think this decision has any relevance."
}
},
{
"from_name": null,
"id": "0f0ac0ff25354ca4a030f5a9d7006073",
"to_name": null,
"type": null,
"value": {
"end": 19927,
"labels": [
"ANALYSIS"
],
"start": 19587,
"text": "The authority of Mr. V. T. Dehejia, Secretary, Ministry of Finance (Department of Revenue and Expenditure) to approve the proposal for the Central Government was never questioned, nor the power of the Chairman to distribute the business of the Board between himself and the other Member with the previous approval of the Central Government."
}
},
{
"from_name": null,
"id": "b3ea3942764343dbb3d6d4f5fe5b4e81",
"to_name": null,
"type": null,
"value": {
"end": 20194,
"labels": [
"ANALYSIS"
],
"start": 19928,
"text": "We have already held that upon the material on record such approval appears to have been given Fonseca's case (supra) is hardly of any assistance on the question whether in this case the approval of the Central Government should have been recorded in a formal order."
}
},
{
"from_name": null,
"id": "0cf7f067117041158229a25753fe2283",
"to_name": null,
"type": null,
"value": {
"end": 20487,
"labels": [
"ANALYSIS"
],
"start": 20195,
"text": "Dr. Singhvi characterised the distribution of the business of the Board by the Chairman as sub delegated legislation and referred to a number of authorities to show that the law required publication of such subdelegated legislation which implied that it must be expressed in aformal document."
}
},
{
"from_name": null,
"id": "05e349bb41074d99afaa6fb32ccbc708",
"to_name": null,
"type": null,
"value": {
"end": 20632,
"labels": [
"ANALYSIS"
],
"start": 20488,
"text": "It was submitted that this was necessary to enable the persons affected by such sub delegated legilsation to ascertain what the legislation was."
}
},
{
"from_name": null,
"id": "bfdd7691c6004b95877275b285334be8",
"to_name": null,
"type": null,
"value": {
"end": 20740,
"labels": [
"ANALYSIS"
],
"start": 20632,
"text": "\nWe do not think that the distribution of York by the Chairman of the Board can be equated with legislation."
}
},
{
"from_name": null,
"id": "ea59f1c4482348d59f1cf71debf20dd2",
"to_name": null,
"type": null,
"value": {
"end": 20851,
"labels": [
"ANALYSIS"
],
"start": 20741,
"text": "The allocation of business and the approval are matters of internal arrangement not affecting anyone's rights."
}
},
{
"from_name": null,
"id": "35aeb48be1d64f2791d9e070e45946e1",
"to_name": null,
"type": null,
"value": {
"end": 20969,
"labels": [
"ANALYSIS"
],
"start": 20851,
"text": "\nInitially the Board consistng of the Chairman and the member had the jurisdiction to deal with he matter in question."
}
},
{
"from_name": null,
"id": "702d14f55a784cc5bb5185019a31b1d8",
"to_name": null,
"type": null,
"value": {
"end": 21295,
"labels": [
"ANALYSIS"
],
"start": 20969,
"text": "\nThereafter, in exercise of the power conferred by Rule 4 of the Central Board of Direct Taxes (Regulation of Transaction of Business) Rules, 1964 the Chairman with the approval of the Central Government distributed the business of the Board between himself and the member keeping all assessment work of Income-tax to himself."
}
},
{
"from_name": null,
"id": "bff1bb8e3b3f4f0280691b80cf073c90",
"to_name": null,
"type": null,
"value": {
"end": 21389,
"labels": [
"ANALYSIS"
],
"start": 21296,
"text": "Then, again with the approval of the Central Government, he assigned this work to the member."
}
},
{
"from_name": null,
"id": "45972cb38b5c45159e31c96aab5c5319",
"to_name": null,
"type": null,
"value": {
"end": 21578,
"labels": [
"ANALYSIS"
],
"start": 21389,
"text": "\nRule 4 of the central Board of Direct Taxes (Regulation of Transaction of Busiass) Rules, 1964 does not prescribe any special or particular manner in which the, approval is to be recorded."
}
},
{
"from_name": null,
"id": "12edf5232dff41dc9a38895cc8975dea",
"to_name": null,
"type": null,
"value": {
"end": 21654,
"labels": [
"ANALYSIS"
],
"start": 21579,
"text": "The approval given at hat stage does not touch the rights of the assessees."
}
},
{
"from_name": null,
"id": "aaf065cbf0cd48a98d1a6f89aca2a915",
"to_name": null,
"type": null,
"value": {
"end": 21717,
"labels": [
"ANALYSIS"
],
"start": 21655,
"text": "The fact that approval was given must of course be proved and."
}
},
{
"from_name": null,
"id": "406cf05f454f47f2a5d5a5066aa66bf1",
"to_name": null,
"type": null,
"value": {
"end": 21915,
"labels": [
"ANALYSIS"
],
"start": 21718,
"text": "in our view, that is been done in this case; no question of publication of the order (1) [1973] 1 SCC418.of allocation and the approval accorded to it by the Central Government can therefore arise."
}
},
{
"from_name": null,
"id": "7a70d12ecf7a44339cf13b3ceba8dfa4",
"to_name": null,
"type": null,
"value": {
"end": 22068,
"labels": [
"ANALYSIS"
],
"start": 21916,
"text": "The office file does not also disclose any formal order approving the original distribution of work as between the Chairman and the member of the Board."
}
},
{
"from_name": null,
"id": "7b5744fa291a45b683e879c733797d3a",
"to_name": null,
"type": null,
"value": {
"end": 22338,
"labels": [
"ANALYSIS"
],
"start": 22069,
"text": "It appears from the office note of January 1, 1964 that a draft showing the allocation of work was signed by Shri J. P. Singh and Shri V. T. Dehejia, Secretary of the Ministry of Finance (Department of Revenue and Expenditure) appended his signature below Shri Singh's."
}
},
{
"from_name": null,
"id": "973f72e419f64a3ba84773c7cc5e5db6",
"to_name": null,
"type": null,
"value": {
"end": 22428,
"labels": [
"ANALYSIS"
],
"start": 22339,
"text": "This shows clearly that a formal expression of the approval was not considered necessary."
}
},
{
"from_name": null,
"id": "ad2a4be6c3c649fab67657984ee01723",
"to_name": null,
"type": null,
"value": {
"end": 22723,
"labels": [
"ANALYSIS"
],
"start": 22429,
"text": "If there is no reason to doubt the truth of the statements made in Shri J. P. Singh's affidavit,. and we think there is none, then the leigalty of the impugned notices under sec. 148 of the Act cannot be challenged on the ground that they were issued upon the satisfaction of Shri Narayana Row."
}
},
{
"from_name": null,
"id": "d69259e58d0849d5a07850bf43f01e87",
"to_name": null,
"type": null,
"value": {
"end": 23256,
"labels": [
"ANALYSIS"
],
"start": 22723,
"text": "\nOn behalf of the appellants our attention was also drawn to the Central Board of Direct Taxes (Validation of Proceedings) Act, 1971 (No. 37 of 1971) which provides, inter alia, that no action taken by the Chairman and other members of the Board, either singly or jointly, without having been validly entrusted with the powers or duties in- that behalf in accordance with the provisions of the Central Boards of Revenue Act, 1963 or the rules made thereunder shall be deemed to be invalid or ever to have been invalid on that ground."
}
},
{
"from_name": null,
"id": "09e8414b3abb494593e9036e77949b1d",
"to_name": null,
"type": null,
"value": {
"end": 23443,
"labels": [
"RATIO"
],
"start": 23257,
"text": "As in our opinion the impugned notices were issued in due compliance with the requirements of Rule 4 of Central Board of Direct Taxes (Regulation of Transaction of Business) Rules, 1964."
}
},
{
"from_name": null,
"id": "5331a2bb2e4f4b93af950b4830487ccc",
"to_name": null,
"type": null,
"value": {
"end": 23544,
"labels": [
"RATIO"
],
"start": 23444,
"text": "we do not find it necessary to consider the provisions of this Act for the purpose of these appeals."
}
},
{
"from_name": null,
"id": "9a97d37b6bcf4ebc9a824e9d9085ee4e",
"to_name": null,
"type": null,
"value": {
"end": 23637,
"labels": [
"RPC"
],
"start": 23545,
"text": "The appeals are accordingly allowed and the Judgment and orders appealed from are set aside."
}
},
{
"from_name": null,
"id": "88f708a8f7a14056bedcab1fcb271e69",
"to_name": null,
"type": null,
"value": {
"end": 23762,
"labels": [
"RPC"
],
"start": 23638,
"text": "The High Court will now proceed to dispose of the writ petitions in accordance with law on the other grounds raised therein."
}
},
{
"from_name": null,
"id": "61e040f6af1341b8858d71765d785c33",
"to_name": null,
"type": null,
"value": {
"end": 23838,
"labels": [
"RPC"
],
"start": 23763,
"text": "The appellants will entitled to their costs in this Court- one hearing fee."
}
},
{
"from_name": null,
"id": "075d9327f86245a08d7d707ccf5358a4",
"to_name": null,
"type": null,
"value": {
"end": 23863,
"labels": [
"NONE"
],
"start": 23838,
"text": "\nP.H.P.\n Appeals allowed."
}
}
]
}
] | 4,150 | {
"text": "PETITIONER:\nUNION OF INDIA & ORS.\n\nVs.\n\nRESPONDENT:\nSETH R. DALMIA\n\nDATE OF JUDGMENT27/02/1975\n\nBENCH:\nGUPTA, A.C.\nBENCH:\nGUPTA, A.C.\nCHANDRACHUD, Y.V.\nSARKARIA, RANJIT SINGH\n\nCITATION: 1975 SCR (3) 735\n 1975 AIR 1017\n 1975 SCC (4) 16\n\nACT:\nIncome Tax Act 1961-Sec. 148.\nCentral Board of Direct Taxes (Regulation of Transaction of\nBusiness) Rules 1964--Rule 4--Whether approval, by Central\nGovernment of distribution of the business of board by\nChairman must be expressed in the shape of an order.\n\nHEADNOTE:\n6 notices were issued to the respondent under s. 148 of the\nIncome Tax Act for reopening the assessments for 3\nassessment years. The notices recited that they. were\nissued after obtaining the necessary satisfaction of the\nCentral Board of Direct. Taxes The respondent filed a writ\npetition in the High Court challenging the said notices\ninter alia on, the ground that sanction of the Central Board\nof Direct Taxes was not taken before the notices were issued\nas required by sec. 151 of the Act. The High Court accepted\nthe said contention and did not decide the other grounds\nraised in the petition. The High Court held that on a\nreading of the affidavit made by J. P. Singh, Chairman of\nCentral Board of Direct Taxes it would appear that the work\nwhich had been done by the Chairman of the Central Board was\ntransferred to the Member of the Board and the approval of\nthe Secretary to the Government of India was obtained for\nthis transfer or allocation of work. The High Court,\nhowever, found that the averments in the affidavit were not\nin line with the office notes in the relevant file. The\nHigh Court also held that as no formal order was passed\nchanging the allocation with the previous approval of the\nCentral Government, the sanction issued by Central Board of\nDirect Taxes was without jurisdiction and authority.\nOn appeal by Special Leave it was contended before this\nCourt that r. 4 of the Central Board, of Direct Taxes\n(Regulation of Transaction of Business) Rules, 1954 provides\nthat the Chairman of the Central Board may with the previous\napproval of the Central Government distribute the business\nof the Board between himself and the other members and may\nspecify the cases or class of cases which shall' be\nconsidered jointly by the Board. It was contended that J. P\nSingh in his affidavit clearly stated that on 30-3-1964 he\nsuggested to Narayan Rao, a member of the Central Board of\n\nDirect Taxes that lie should take up the work of according\nsanction of the Board under s. 151 of the Act which was\nbeing done by the Chairman. It was further stated in that\naffidavit that on June 18, 1964 he personally discussed the\nproposal with the Secretary to the Government of India, in,\nthe Ministry of Finance and that the Secretary approved the\nsaid proposal and that a note was made by him on 18th June,\n1964 to the effect that the matter was discussed with the\nSecretary and that it is just a minor internal\narrangement and no formal order was necessary.\nAllowing the appeal,\nHELD'. (1) The High Court erred in not taking note of the\naffidavit of P. G. Gandhi Under Secretary Central Board of\nDirect Taxes, in which it is stated that all assessment work\nof income tax was assigned to Narayan Rao with the approval\nof the Central Government. In view of the statements in the\nspecific affidavit of J. P. Singh and P. G. Gandhi it cannot\nbe said that the office notes were not in line with the\naverments in the affidavits. [739H; 740C]\n(2) It was not necessary to express the approval of the\nCentral Government formally in the shape of an order. [741H]\nFonseca Private Limited and Others v. L. C. Gupta & Others,\n[1973] 1 S.C.C. 418, distinguished.In that case what was challenged was the order passed by an\nofficer who was not entitled to pass it under the rules of\nbusiness and the decision has no relevance on the question\nwhether on the circumstances of the present case, approval\nof the Central Government should have been recorded in a\nformal order. [741C]\n(3) The distribution of the business of the Board by the\nChairman is not a sub-delegated legislation and need not be\nexpressed in a formal document; that the allocation of the\nbusiness and approval are matters of internal arrangement\nnot affecting any one's rights at that stage. Since the\nappeals succeed on other grounds the Court did not go into\nthe question whether the provisions of the Central Board of\nDirect Taxes (Validation of Proceedings) Act, 1971 afforded\nprotection to the action taken. [741E-F; 742E]\n\nJUDGMENT:\nCVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1107-1112 (NI) of 1970.\nFrom the judgment and order dated the 24th March, 1970 of the Delhi High Court in Civil Writ Petition Nos. 663D and 668D of 1965.\nS. T. Desai, T. A. Ramchandran & S. P. Nayar, for the appellants.\nL. M. Singhvi and Bishambar Lal, for the respondent.\nThe Judgment of the Court was delivered by GUPTA, J.-These six appeals by certificates granted by the High Court of Delhi arise out of six writ petitions filed by the respondent before us challenging the validity of six notices dated September 7, 1965 issued under sec. 148 of the Income-Tax Act, 1961 (hereinafter referred to as the Act).\nThe, notices relate to the assessment years 1949-50, 1950-51 and 1951-52, the corresponding accounting years ending on the 30th September of 1948, 1949 and 1950 respectively.\nThree of the notices were issued to the petitioner in his individual capacity and the other three were served on him as a member of an association of persons. The petitioner had been assessed as an individual for the aforesaid assessment years in accordance with the provision& of the Indian Income-Tax Act 1922. Thereafter a Commission known as Vivian Bose Commission was appointed to enquire into the affairs of various companies with which the appellant was alleged to have been associated. On the facts disclosed in the report of enquiry, the Income-tax Officer, Special Investigation Circle A, New Delhi, issued the aforesaid two sets of notices to the petitioner under sec. 148 of the Act.\n The notices informed the petitioner that these were issued \"after obtaining the necessary satisfaction of the Central Board of Direct Taxes, New Delhi\". This claim was ques- tioned by the petitioner in the High Court and one of the grounds on which the validity of the notices was challenged was that sanction of the Central Board of Direct Taxes had not been taken before the notices were issued as required by sec. 151 of the Act. The High Court accepting this contention queshed all the six notices served on the petitioner and by issuing a writ of Prohibition restrained the appeallants, the Union of India, the Central Board of Direct. Taxes, New Delhi, and the Income-tax Officer, Special Investigation Circle A, New Delhi, from taking any action upon these notices. As the writ petitions succeeded on this ground, the High Court did not consider the other objections to the notices raised in the petitions. The pro, priety of that decision is in question in these appeals.\n The relevant part of sec. 151 of the Act reads as follows \"151. Sanction for issue of notice.-(I) No notice shall be issued under section 148 after the expiry of eight years from the end of the relevant assessment year, unless the Board is satisfied on the reasons recorded by the Income-tax Officer that it is a fit case for the issue of such notice.\n (2) x x x\"\n Section 4(1) of the Central Boards of Revenue Act, 1963 provides \"The Central Government may make rules for the purposes of regulating the transaction of business by each Board and every order made or act done in accordance with such rules shall be deemed to be the order or act, as the case may be, of the Board.\" \"Board\" as defined in sec. 2 of this Act means the Central Board of Direct Taxes or the Central Board of Excise and Customs. Rule 4 of the Central Board of Direct Taxes (Regulations of Transaction of Busi- ness) Rules, 1964 is in these terms : \"The Chairman may, by an order made with the previous approval of the Central Government, distribute the business of the Board among himself and the other Members and specify the cases or class of cases which shall be con- sidered jointly by the Board.\"\n What happened in this case was that the Income-tax Officer put up the case of the respondent to the Central Board of Direct Taxes by a comprehensive note prepared by him and Shri S. A. L. Narayana Row, the only Member of the Board besides the Chairman, on being satisfied on the reasons recorded by the income-tax Officer that for each of the assessment years in both capacities of the respondent a fit case had been made out for the issue of a notice under sec.\n 148 of the Act, the impugned notices were issued to the respondent. In support of his case that sanction of the Board had not been obtained, the respondent relied on the Office Order dated January 1, 1964 annexed to the affidavit of shri p. G. Gandhi, Under Secretary Central Board of Direct Taxes, filed in answer to the writ petitions, which sets out the distribution of work between the Chairman and the Member of the Central Board of Direct Taxes. In this document, entry No. 7 in thelist of work allotted to the Chairman reads : \"all assessment work ofincome-tax\".\nIt was contended that Shri Narayana Row had therefore no authority to deal with cases for reopening of assessments and assuch the impugned notices issued upon his satisfaction were invalid. In paragraph 5 of the affidavit of Shri P. G. Gandhi, it is admitted that \"all assessment work of Income-tax\" I had been assigned to the Chairman under office order dated January 1, 1964 which included matters relating to the reopening of assessmentsunder sec. 34 of the Income-Tax Act, 1922 or under sec. 147 of the income-Tax Act, 1961, but the paragraph adds that \"later with the approval of the Central Government this item of work was assigned to the Member of the Board Shri S. A.\nL. Narayana Row who in this case accorded the sanction\".\nAn affidavit afirmed by Shri J. P. Singh who at the relevant time was the Chairman of the Central Board of Direct Taxes and ex-ofricio Additional Secretary to the Government of India in the Ministry of Finance, was also filed on behalf of the appellants. Paragraphs 3 to 7 of Shri Singh's affidavit state how Shri Narayana Row came to .deal with the cases relating to the reopening of assessments. These paragraphs read as follows : \"3. That on 30-3 641 suggested to Shri S. A.\n L. Narayana Row, the then Member of the Central Board of Direct Taxes that he should take up the work of according sanction of the Board under Section 151(1) for reopening of assessments under Section 147 of the Income- Tax Act, 1961 to which he consented.\n 4. Rule 4 of the Central Board of Direct Taxes (Regulation of Transaction of Business) Rules, 1964 envisaged that Chairman may by an order made with the previous approval of the Central Government distribute the business of the Board among himself and the other members.\n The approval regarding the transfer of work relating to sanction under section 151(1) of Income-Tax Act from the Chairman to the Member Central Board of Direct Taxes was accordingly referred to by me to the Secretary, Ministry of Finance (Department of Revenue & Expenditure) on 9-6-1964.\n 5. That on 18-6, 1964, 1 personally discussed the proposal regarding transfer of work from myself to the Member, Central Board of Direct Taxes with Shri V. T. Dehejia, the then Secretary of the Government of India, Ministry of Finance (Department of Revenue & Expenditure).\n 6. That Shri V. T. Dehejia, the then Secretary to the of India, Ministry of Finance (Department of Expenditure) approved the said proposal to a note was made by me on 18-6- 1964.\n 7. That pursuant to the duty assigned to him under of the Income-Tax Act, 1961 in the aforesaid Rule 4 of the Central Board of Direct Taxes (Regulation of Transaction of Business) Rules 1964, Shri S. A. L. Narayana Row, Member, Central Board of Direct Taxes gave sanction for the reopening of the assessments under Section 147 of the Income- Tax Act, 1961 in the, aforesaid case on 11-8- 1965.\"The High Court observed that on a reading of the affidavit affirmed by Shri J. P. Singh \"it would appear that the work which had till then been done by the Chairman was to be transferred to the Member and approval of the Secretary to the Government of India was obtained for this transfer or allocation of work.\" Thee High Court however found that the averments in the affidavit were \"not in line\" with the office notes in the relevant file which appears to have been made available to the learned Judges of the High Court who heard these writ petitions. We have also looked into the copies of these office-notes which are on record. It appears that on March 13, 1964 Shri I. P. Singh, Chair-man of the Board, recorded the following note : \"M(I&ED) may also consider whether he could take up the cases for sanction of reopening of assessments (old section 34).\"\nThis was obviously a note for consideration of the other Member of the Board who, on the next day, recorded his consent to this proposal in the following words \"I will take up, cases of reopening of assessment also.\"\nBelow the sentence conveying Shri Row's assent to the proposal, the Chairman wrote \"Thanks\". The matter however did not rest there. On May 14, 1964 the following note was put up by Shri B. B. Ghosh, Under Secretary \"Rule 4 of the Central Board of Direct Taxes (Regulation of Transaction of Business) Rules, 1964 envisage that Chairman may by an order made with the previous approval of the Central Government distribute the business of the Board among himself and the other Members.\n Accordingly, the Office Order already issued in the matter will require amendment. Draft D.O. is submitted for consideration. We may also inform the Heads of Departments under the Board about the decision. Draft letter is submitted for approval.\"\n The last relevant note on this subject reads : \"Discussed with Secy. (R&E). It is just a minor internal arrangement. No formal order is necessary.\"\nThis is signed by Shri J. P. Singh and bears the date 18-6- 64.\nThe High Court held that as no formal order was passed \"changing the allocation with the previous approval of the Central Government, the sanction as granted by Shri 'S. A.\nL. Narayana Row is without jurisdiction and authority\". It is not quite clear whether the High Court was not satisfied that Shri J. P. Singh's proposal for a change in the allocation of work was at all approved by the Government or that in the absence of a formal order to that effect the approval was of no consequence. The High Court does not appear to, have taken any note of the affidavit 'of Shri P.\nG. Gandhi in paragraph 5 of which it is stated that all assessment work of Income-tax was assigned to Shri Narayana Row with the approval of the CentralGovernment. From the affidavit of Shri J. P. Singh, the then Chairman of the Central Board of Direct Taxes, part of which we have extracted above, it appears that Shri Singh had referred to ,he Secretary, Ministry of Finance (Department of Revenue and Expenditure) the proposal for transfer of work relating to sanction under sec. 151 (1) of the Act from the Chairman to the Member of the Board, that Shri Singh personally discussed the matter with Shri V. T.\nDehejia who was then the Secretary, Ministry of Finance, and that Shri Dehejia approved the proposal. Shri J. P. Singh's affidavit adds that the note he made in the office file on June 18, 1964-\"Discussed with Secy. (R&E). It is just a minor internal arrangement. No formal order is necessary.\"- refers to these facts. In the face of the statements appearing in the affidavits of Shri J. P. Singh and Shri P.\nG. Gandhi that the work relating to the reopening of assessments was assigned to Shri Row with the previous approval' of the Central Government, it is difficult to see how it can, be said that the office notes were not in line with the averments in the affidavits. The High Court did not disbelieve the statement of Shri J. P. Singh that he had discussed the proposal with Shri V. T. Dehejia, who approved the proposal. to Possibly, the absence of a formal order expressing the approval led to the observation that Shri Singhs affidavit was not in line with the office notes and also the ultimate finding that the notices issued upon the satisfaction of the member of the Board was \"without juris- diction and authority\". Dr. Singhvi, learned counsel for the respondent, contended (1) that the material on record did not prove beyond doubt that the Central Government had approved-the proposal of the Chairman to alter the original distribution of work and (2) that in any event the law required the approval to be expressed in the shape of a formal order. Referring to the office note of the Chairman dated June 18, 1964, Dr. Singhvi submitted that it was not clear from this note what exactly was considered unnecessary a formal order expressing the approval, or getting the proposed alteration approved by the Central Government ? It was argued that as the suggested alteration was considered \"just a minor internal arrangement,\" it was likely that the Chairman thought that no prior approval of the Central Government was necessary before the altered arrangement was put into operation, in which case the notices would be invalid in view of Rule 4 of the Central Board of Direct Taxes (Regulation of Transaction of Business) Rules, 1964.\nHowever, it seems to us, when the note said \"no formal order is necessary\" it could not possibly mean that approval of the Central Government was unnecessary, and we have no doubt that it meant that no formal order conveying the approval was necessary. Regarding the statements in the affidavits of Shri J. P. Singh and Shri P. G. Gandhi that all work relating to the reopening of assessments was assigned to Shri Narayana Row with the approval of the Central Government, Dr. Singhvi pointed out that these statements had been verified by Shri J. P. Singh as true to his knowledge \"derived from records in the possession of the Central Board of Direct Taxes\" and by Shri P. G. Gandhi as \"based on the information derived from record in possession of the Board\". It, was argued that as the records did not disclose any order of approval by the Central Government, the said statements were of no value.It seems to us that the verification of the statements in Shri J. P. Singh's affidavit clearly suggests that the facts stated therein were true to his knowledge which the records also bear out. As stated already, the High Court did not question the truth of the facts stated in Shri Singh's affidavit, nor do we find any reason to do so. We have no doubt that the office note made by Shri J. P. Singh on June 18, 1964 supports the statements made in his affidavit.\nThe next question is whether the approval should have been formally expressed in the shape of an order. On this question Dr. Singhvi referred to the decision of this Court in Fonseca (P) Ltd., & Ors. v. L. C. Gupta & Ors. (1) In that case an order made by the Deputy Secretary to the Government of India, Ministry of Works and Housing, who was not empowered to make such an order under the Rules of Business, was held to be illegal, ineffective and void. We do not think this decision has any relevance. The authority of Mr. V. T. Dehejia, Secretary, Ministry of Finance (Department of Revenue and Expenditure) to approve the proposal for the Central Government was never questioned, nor the power of the Chairman to distribute the business of the Board between himself and the other Member with the previous approval of the Central Government. We have already held that upon the material on record such approval appears to have been given Fonseca's case (supra) is hardly of any assistance on the question whether in this case the approval of the Central Government should have been recorded in a formal order. Dr. Singhvi characterised the distribution of the business of the Board by the Chairman as sub delegated legislation and referred to a number of authorities to show that the law required publication of such subdelegated legislation which implied that it must be expressed in aformal document. It was submitted that this was necessary to enable the persons affected by such sub delegated legilsation to ascertain what the legislation was.\nWe do not think that the distribution of York by the Chairman of the Board can be equated with legislation. The allocation of business and the approval are matters of internal arrangement not affecting anyone's rights.\nInitially the Board consistng of the Chairman and the member had the jurisdiction to deal with he matter in question.\nThereafter, in exercise of the power conferred by Rule 4 of the Central Board of Direct Taxes (Regulation of Transaction of Business) Rules, 1964 the Chairman with the approval of the Central Government distributed the business of the Board between himself and the member keeping all assessment work of Income-tax to himself. Then, again with the approval of the Central Government, he assigned this work to the member.\nRule 4 of the central Board of Direct Taxes (Regulation of Transaction of Busiass) Rules, 1964 does not prescribe any special or particular manner in which the, approval is to be recorded. The approval given at hat stage does not touch the rights of the assessees. The fact that approval was given must of course be proved and. in our view, that is been done in this case; no question of publication of the order (1) [1973] 1 SCC418.of allocation and the approval accorded to it by the Central Government can therefore arise. The office file does not also disclose any formal order approving the original distribution of work as between the Chairman and the member of the Board. It appears from the office note of January 1, 1964 that a draft showing the allocation of work was signed by Shri J. P. Singh and Shri V. T. Dehejia, Secretary of the Ministry of Finance (Department of Revenue and Expenditure) appended his signature below Shri Singh's. This shows clearly that a formal expression of the approval was not considered necessary. If there is no reason to doubt the truth of the statements made in Shri J. P. Singh's affidavit,. and we think there is none, then the leigalty of the impugned notices under sec. 148 of the Act cannot be challenged on the ground that they were issued upon the satisfaction of Shri Narayana Row.\nOn behalf of the appellants our attention was also drawn to the Central Board of Direct Taxes (Validation of Proceedings) Act, 1971 (No. 37 of 1971) which provides, inter alia, that no action taken by the Chairman and other members of the Board, either singly or jointly, without having been validly entrusted with the powers or duties in- that behalf in accordance with the provisions of the Central Boards of Revenue Act, 1963 or the rules made thereunder shall be deemed to be invalid or ever to have been invalid on that ground. As in our opinion the impugned notices were issued in due compliance with the requirements of Rule 4 of Central Board of Direct Taxes (Regulation of Transaction of Business) Rules, 1964. we do not find it necessary to consider the provisions of this Act for the purpose of these appeals.\nThe appeals are accordingly allowed and the Judgment and orders appealed from are set aside. The High Court will now proceed to dispose of the writ petitions in accordance with law on the other grounds raised therein. The appellants will entitled to their costs in this Court- one hearing fee.\nP.H.P.\n Appeals allowed."
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"text": " TITLE SHEET FOR JUDGMENTS IN APPEALS IN THE COURT OF THE I ADDITIONAL DISTRICT JUDGE AT MYSORE Dated this the 12th day of July, 2013"
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"text": "Appellants: S.Pradeep, S/o V.Srinivasaiah, Respondents:"
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"text": " R/at No.6, 14th Cross, 6th Main, V.V.Mohalla, Mysore,"
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"text": "Since dead by legal representatives: 1. S.N.Jayashree, aged about 48 years, W/o Late S.Pradeep, 2. P.Pooja, aged about 22 years, D/o Late S.Pradeep, 3. P.Sanjana, aged about 19 years, D/o Late S.Pradeep, All are R/at D.No.593, Opposite to"
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"text": " Bharath Diagnostics, Irwin Road, Mysore"
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"text": ".\n ( By Sri.N.Nagaraj, Advocate ) -Vs- 1. H.S.Jayalakshmi, W/o Late K.S.Sambaiah, aged about 60 years, R/at No.42/Anjum 1st Main, 3rd Cross, Yadavagiri, Mysore-570 002.\n 2 2. V.Srinivasaiah, S/o S.Venkatappa, aged about 79 years, 3. Vanajakshi, W/o V.Srinivasaiah Aged about 73 years, R.2 & 3 are R/at No.6, 6th Main, 14th Cross, V.V.Mohalla, Mysore 2.\n ( R.1 by Sri.B.P.Yogamurthy, Advocate R.2 & 3 by Smt.M.S.Savithri, Advocate ) *** Date of institution of appeal: 14.02.2012 Nature of appeal: To set aside the Judgment and decree passed by learned Date on which the Judgment Principal Judge, Small Causes was pronounced: Court & Senior Civil Judge, Mysore in O.S.No.782/2006 dated 02.01.2012.\n 12.07.2013 Total Duration: Year/s Month/s Day/s 01 04 28"
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"text": "I Additional District Judge, Mysore."
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"text": "3 R.A. No.93/2012 JUDGMENT"
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"labels": [
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"text": "This is an appeal assailed against Judgment and decree passed by learned Principal Judge, Small Causes Court and Senior Civil Judge, Mysore in O.S.No.782/2006 dated 02.01.2012."
}
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{
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"labels": [
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"text": "The learned Trial Judge, by his impugned judgment, decreed the suit of the plaintiff filed for recovery of money of Rs.1,62,975/- along with interest."
}
},
{
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"labels": [
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],
"start": 1975,
"text": "2. Appellants herein were the defendants-1 to 3, respondent No.1 herein was the plaintiff and respondents-2 and 3 herein were the defendants-4 and 5 in the original proceedings."
}
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{
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"id": "05a6c57b1eb34a06afb39b3db33990c8",
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"labels": [
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],
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"text": "Parties will be referred to with reference to their ranks they held in the Trial Court for sake of convenience."
}
},
{
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"id": "aff30a8a73734f05a577a248b4fb38dd",
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"value": {
"end": 2421,
"labels": [
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],
"start": 2266,
"text": "3. Briefly stated case of the parties is narrated hereunder: Plaintiff filed suit for recovery of money due under Pronote executed by deceased defendant.\n "
}
},
{
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"id": "9f46e3d1df2442c7a1c3611fd8765b76",
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"labels": [
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"text": "The original borrower-S.Pradeep is no more."
}
},
{
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"value": {
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"labels": [
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],
"start": 2465,
"text": "Hence, the present suit is filed against his legal representatives."
}
},
{
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"labels": [
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],
"start": 2533,
"text": "On 13.09.2004, Sri.Pradeep approached the plaintiff for financial assistance of Rs.1,50,000/- for the purpose of construction of house and also for domestic use."
}
},
{
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"value": {
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"labels": [
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"text": "He agreed to repay the amount within 12 months with interest at the rate of 24% per annum."
}
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{
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"value": {
"end": 2962,
"labels": [
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],
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"text": "The plaintiff, on the same day, at his request, lent Rs.1,50,000/-, in consideration thereof, he executed Pronote for Rs.1,50,000/- undertaking to repay the same with interest."
}
},
{
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"labels": [
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],
"start": 2963,
"text": "On 10.01.2005, he had repaid Rs.20,000/- towards loan amount through his father."
}
},
{
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"labels": [
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],
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"text": "The same was endorsed on the overleaf of 4 the Pronote and Consideration Receipt."
}
},
{
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"id": "8665479b9bfd4a77bc8edeb227a23643",
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"value": {
"end": 3276,
"labels": [
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],
"start": 3126,
"text": "On 10.01.2005, said Pradeep issued a cheque bearing No.475312 for Rs.1,30,000/- drawn on H.D.F.C. Bank for the balance amount, as additional security."
}
},
{
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"labels": [
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],
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"text": "He had paid interest upto 30.06.2005."
}
},
{
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"value": {
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"labels": [
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],
"start": 3315,
"text": "However on 27.07.2005, he met with untimely death."
}
},
{
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"id": "204b0934d3fa4ce18b1022de9320a282",
"to_name": null,
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"value": {
"end": 3456,
"labels": [
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],
"start": 3366,
"text": "After his death, defendants-1 to 3, who are his legal heirs, had agreed to repay the loan."
}
},
{
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"id": "70fa0055974249a483c5d3c23b1f44b7",
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"type": null,
"value": {
"end": 3529,
"labels": [
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],
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"text": "But, inspite of several demands and notice, they failed to make payment."
}
},
{
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"id": "fb7c25d17256432e8d45278e074c8186",
"to_name": null,
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"value": {
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"labels": [
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],
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"text": "The plaintiff caused legal notice on the defendants."
}
},
{
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"labels": [
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],
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"text": "But the defendants sent evasive reply notice."
}
},
{
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"labels": [
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],
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"text": "\nPlaintiff was therefore constrained to file the suit."
}
},
{
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"labels": [
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],
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"text": "\n 4. On registration of suit, summons were issued to the defendants, who entered their appearance through their Counsels."
}
},
{
"from_name": null,
"id": "ed9363492b2d450aad78a23b13cb4ca0",
"to_name": null,
"type": null,
"value": {
"end": 3908,
"labels": [
"FAC"
],
"start": 3805,
"text": "Defendants-1 to 3 appeared through Sri.Nagaraj, while defendants-4 and 5 appeared through Smt.Savithri."
}
},
{
"from_name": null,
"id": "8e570b61eea849ad823b3ef8c7c636b5",
"to_name": null,
"type": null,
"value": {
"end": 3961,
"labels": [
"FAC"
],
"start": 3909,
"text": "Both of them have filed separate written statements."
}
},
{
"from_name": null,
"id": "fbad63e5838042aab073e61830e045c0",
"to_name": null,
"type": null,
"value": {
"end": 4078,
"labels": [
"FAC"
],
"start": 3961,
"text": "\n 5. Defendants-1 to 3, in their written statement, denied all the contentions raised by the plaintiff in her plaint."
}
},
{
"from_name": null,
"id": "dc7640d3f57449448f7eb94b94f9ce8a",
"to_name": null,
"type": null,
"value": {
"end": 4210,
"labels": [
"FAC"
],
"start": 4079,
"text": "They, interalia contended that deceased Pradeep was not a friend of plaintiff and there was no acquaintance or friendship with her."
}
},
{
"from_name": null,
"id": "2e702daa7bf54cc0bf1cd2d19b6ec18f",
"to_name": null,
"type": null,
"value": {
"end": 4603,
"labels": [
"FAC"
],
"start": 4211,
"text": "4th defendant-Srinivasaiah, the father of deceased Pradeep and the plaintiff were close associates and friends and they are jointly doing money lending business since a long time.\nDeceased Pradeep was working as a Superintending Engineer at O.N.G.C., Bombay, he was getting handsome salary and therefore, he had no necessity to raise loan from the private party, much less from the plaintiff."
}
},
{
"from_name": null,
"id": "c99ba83406474a6ea0b631399a429a1d",
"to_name": null,
"type": null,
"value": {
"end": 4693,
"labels": [
"FAC"
],
"start": 4604,
"text": "If at all he was in need of money, he would have raised loan from the Nationalised Banks."
}
},
{
"from_name": null,
"id": "f25ac926094f46499e81a36c0d394b4a",
"to_name": null,
"type": null,
"value": {
"end": 4824,
"labels": [
"FAC"
],
"start": 4693,
"text": "\nHe never received cash of Rs.1,50,000/- from the plaintiff nor 5 R.A. No.93/2012 did he execute Pronote or Consideration Receipt."
}
},
{
"from_name": null,
"id": "309fab3453d9451fb21dd3c267fb2142",
"to_name": null,
"type": null,
"value": {
"end": 4949,
"labels": [
"FAC"
],
"start": 4825,
"text": "4th defendant, taking undue advantage of his position, obtained blank cheque of his son and handed it over to the plaintiff."
}
},
{
"from_name": null,
"id": "393a1934c51b453c998408dd2dc33531",
"to_name": null,
"type": null,
"value": {
"end": 5101,
"labels": [
"FAC"
],
"start": 4950,
"text": "Deceased Pradeep had not repaid Rs.20,000/- towards interest nor had he instructed 4th defendant to subscribe his signature on the overleaf of Pronote."
}
},
{
"from_name": null,
"id": "a15cce4b40ca49fe9f94cf13310c8f6f",
"to_name": null,
"type": null,
"value": {
"end": 5171,
"labels": [
"FAC"
],
"start": 5102,
"text": "This is all created by 4th defendant in collusion with the plaintiff."
}
},
{
"from_name": null,
"id": "5c874097d40640fbaf308c05747ea66b",
"to_name": null,
"type": null,
"value": {
"end": 5224,
"labels": [
"FAC"
],
"start": 5172,
"text": "They would therefore pray for dismissal of the suit."
}
},
{
"from_name": null,
"id": "59fe0b45570944ea9cbc3251a9874821",
"to_name": null,
"type": null,
"value": {
"end": 5401,
"labels": [
"FAC"
],
"start": 5226,
"text": "6. Defendants-4 and 5, in their written statement, contended that after the death of Pradeep, defendants-1 to 3 became hostile towards defendants-4 and 5 and left their house."
}
},
{
"from_name": null,
"id": "50163a000db046f987fff4582c01e5df",
"to_name": null,
"type": null,
"value": {
"end": 5547,
"labels": [
"FAC"
],
"start": 5402,
"text": "5th defendant, being Class-I heir of deceased Pradeep, has filed suit for partition in O.S.No.112/2006, which is still pending for consideration."
}
},
{
"from_name": null,
"id": "bf41907685bf45bba24974ff1fc26e04",
"to_name": null,
"type": null,
"value": {
"end": 5634,
"labels": [
"FAC"
],
"start": 5548,
"text": "4th defendant is not a necessary party, as he has no share in the property of his son."
}
},
{
"from_name": null,
"id": "520766f71fb9434dbbc3ae81bfc7d3f9",
"to_name": null,
"type": null,
"value": {
"end": 5724,
"labels": [
"FAC"
],
"start": 5635,
"text": "5th defendant is not liable to pay loan borrowed by the deceased for his legal necessity."
}
},
{
"from_name": null,
"id": "57f61bc8f7814917b9f4f0c9f706f03a",
"to_name": null,
"type": null,
"value": {
"end": 5856,
"labels": [
"FAC"
],
"start": 5725,
"text": "It is relevant to mention here that defendants-4 and 5 have not denied the transaction between their son Pradeep and the plaintiff."
}
},
{
"from_name": null,
"id": "5b0903e11fca46aa9a27433ff2fc6625",
"to_name": null,
"type": null,
"value": {
"end": 6176,
"labels": [
"ISSUE"
],
"start": 5856,
"text": "\n 7. On the basis of above pleadings, the learned Trial Judge has framed the following Issues and Additional Issues: ISSUES 1) Whether the plaintiff proves that on 13.09.2004, the deceased defendant has borrowed the loan of Rs.1,50,000/- from her by executing the on demand pronote and consideration receipt as alleged ?"
}
},
{
"from_name": null,
"id": "a816c58775eb4659af0c1eff83a7643f",
"to_name": null,
"type": null,
"value": {
"end": 6260,
"labels": [
"ISSUE"
],
"start": 6176,
"text": "\n 6 2) Whether the plaintiff is entitled for the interest claimed ?\n 3) What order ?"
}
},
{
"from_name": null,
"id": "8277869a666646ec930f4aacd10c82d0",
"to_name": null,
"type": null,
"value": {
"end": 6626,
"labels": [
"ISSUE"
],
"start": 6262,
"text": "ADDITIONAL ISSUES 1) Whether defendants prove that plaintiff is money lender without having valid money lending licence ?\n 2) Whether defendants prove that plaintiff has obtained signature of Sri.V.Sreenivasaiah on blank form of pronote and consideration receipt as alleged ?\n 3) Whether defendants prove that suit is bad for non-joinder of necessary parties ?\n 8."
}
},
{
"from_name": null,
"id": "efc5281f184d4441b462da244b359b8b",
"to_name": null,
"type": null,
"value": {
"end": 6765,
"labels": [
"FAC"
],
"start": 6627,
"text": "Plaintiff, on her behalf, examined herself as P.W.1 and examined scribe and witnesses of Pronote cum Consideration Receipt as P.Ws.2 to 4."
}
},
{
"from_name": null,
"id": "71265d96f8004a0faa44a453772f9399",
"to_name": null,
"type": null,
"value": {
"end": 6827,
"labels": [
"FAC"
],
"start": 6766,
"text": "They have produced ten documents which are at Ex.P.1 to P.10."
}
},
{
"from_name": null,
"id": "c5be809ffbb24c0090bc95b3e86d4638",
"to_name": null,
"type": null,
"value": {
"end": 6905,
"labels": [
"FAC"
],
"start": 6828,
"text": "Defendant No.1 is examined as D.W.1, but no document is marked on her behalf."
}
},
{
"from_name": null,
"id": "ebb79421b8274fa59c85692a812a13a0",
"to_name": null,
"type": null,
"value": {
"end": 7124,
"labels": [
"FAC"
],
"start": 6907,
"text": "9. Learned Trial Judge, having regard to the oral and documentary evidence, decreed the suit of the plaintiff with cost and interest, recoverable out of the estate of the deceased Pradeep from defendants-1 to 3.\n 10."
}
},
{
"from_name": null,
"id": "db08d5973ebd4f44a5e5acd3cc674249",
"to_name": null,
"type": null,
"value": {
"end": 7264,
"labels": [
"FAC"
],
"start": 7125,
"text": "Appellants/defendants-1 to 3, felt aggrieved by the said Judgment and decree, preferred this appeal on the following amongst other grounds:"
}
},
{
"from_name": null,
"id": "726cb3efbbfd4c2e9982bbf2331c99aa",
"to_name": null,
"type": null,
"value": {
"end": 7526,
"labels": [
"FAC"
],
"start": 7265,
"text": "The learned Trial Judge erred in passing the impugned judgment and decree without considering the actual facts of the defendants' 7 R.A. No.93/2012 case and in decreeing the suit only against defendants-1 to 3 by deleting defendants-4 and 5 from the liability."
}
},
{
"from_name": null,
"id": "129ede92fee947299b2dc0061289ebb2",
"to_name": null,
"type": null,
"value": {
"end": 7697,
"labels": [
"FAC"
],
"start": 7526,
"text": "\n The learned Trial Judge has committed injustice in presuming the fact with regard to the identifying of signature of S.Pradeep in Ex.P.1 and P.1(a) by the 1st defendant."
}
},
{
"from_name": null,
"id": "b7d7159fdbde4fcfb13b37eba4416baa",
"to_name": null,
"type": null,
"value": {
"end": 7882,
"labels": [
"FAC"
],
"start": 7697,
"text": "\n The learned Trial Judge erred in not considering the fact that 4th defendant, in connivance of the plaintiff, fabricated Ex.P.1 to make liable the defendants-1 to 3 to clear the debt."
}
},
{
"from_name": null,
"id": "e6e313df6256485599de7503b027bf3d",
"to_name": null,
"type": null,
"value": {
"end": 8128,
"labels": [
"FAC"
],
"start": 7884,
"text": "The learned Trial Judge erred in not observing the fact that 4th defendant admitted that he has paid amount of Rs.20,000/- to the plaintiff as part of settlement towards loan amount and in this regard shara was made on the backside of Ex.P.1.\n "
}
},
{
"from_name": null,
"id": "8b6db2b85b464d0e9c60992dd1c05eb8",
"to_name": null,
"type": null,
"value": {
"end": 8245,
"labels": [
"FAC"
],
"start": 8128,
"text": "The learned Trial Judge wrongly appreciated the sworn testimony of P.W.3, who was a planted witness by 4th defendant."
}
},
{
"from_name": null,
"id": "6ce86f4716ff4f7ca4612b6a16e62522",
"to_name": null,
"type": null,
"value": {
"end": 8594,
"labels": [
"FAC"
],
"start": 8247,
"text": "Though Trial Court held that plaintiff has not given satisfactory evidence with regard to the alleged borrowal of money by deceased Pradeep for specific purpose and as such defendants-1 to 5 are not personally liable to repay the loan amount, it has erred in coming to the conclusion that the plaintiff is entitled for the recovery of loan amount."
}
},
{
"from_name": null,
"id": "634c684385c845319bae1a2e5409dfb9",
"to_name": null,
"type": null,
"value": {
"end": 8703,
"labels": [
"FAC"
],
"start": 8595,
"text": "The learned Trial Judge has no 8 definite stand in passing the impugned judgment, which relates to surmises."
}
},
{
"from_name": null,
"id": "626e3f28d2c04a289bd18a5ce40f5841",
"to_name": null,
"type": null,
"value": {
"end": 8917,
"labels": [
"FAC"
],
"start": 8703,
"text": "\n The learned Trial Judge has not considered the Citations placed by the defendants-1 to 3.\n The impugned judgment and decree of the Trial Court is opposed to law and against the principles of natural justice.\n 11."
}
},
{
"from_name": null,
"id": "268a50d429a1495881d910468b4e756b",
"to_name": null,
"type": null,
"value": {
"end": 9012,
"labels": [
"NONE"
],
"start": 8918,
"text": "Heard arguments of the learned Counsels appearing on behalf of the appellants and respondents."
}
},
{
"from_name": null,
"id": "2f10f24021a044718aff7fc91c2aee74",
"to_name": null,
"type": null,
"value": {
"end": 9325,
"labels": [
"ISSUE"
],
"start": 9014,
"text": "12. Points that arise for my consideration are: 1) Whether the finding of the Trial Court that the plaintiff proved that the deceased Pradeep borrowed loan of Rs.1,50,000/- from her by executing on-demand pronote and consideration receipt, is illegal and perverse, which warrants the interference of this Court?"
}
},
{
"from_name": null,
"id": "79d6e1585e89418bb9c480e684772265",
"to_name": null,
"type": null,
"value": {
"end": 9604,
"labels": [
"ISSUE"
],
"start": 9325,
"text": "\n 2) Whether the finding of the Trial Court that the defendants-1 to 3 failed to prove additional issue No.2 that the plaintiff has obtained signatures of Pradeep on blank pronote and consideration receipt, is illegal and perverse, which warrants the interference of this Court ?"
}
},
{
"from_name": null,
"id": "be9cac6bbce649e09c67fdd3a884e2f8",
"to_name": null,
"type": null,
"value": {
"end": 9750,
"labels": [
"ISSUE"
],
"start": 9604,
"text": "\n 3) Whether the Trial Court has committed error in not fastening liability on defendant No.5 along with defendants-1 to 3 to discharge the debt ?"
}
},
{
"from_name": null,
"id": "24c951a05b6941119c6896476fcd429c",
"to_name": null,
"type": null,
"value": {
"end": 9924,
"labels": [
"ISSUE"
],
"start": 9750,
"text": "\n 9 R.A. No.93/2012 4) Whether the judgment and decree of the Trial Court are illegal and perverse, which warrant the interference of this Court ?\n 5) What order or decree ?"
}
},
{
"from_name": null,
"id": "b090c4d227224684808d4184853271c5",
"to_name": null,
"type": null,
"value": {
"end": 10224,
"labels": [
"ANALYSIS"
],
"start": 9924,
"text": "\n 13. My answers to the above points are as follows: Point No.(1) : In the Negative, Point No.(2) : In the Negative, Point No.(3) : In the Affirmative, Point No.(4) : In the Negative, However, defendant No.5 is also made liable along with defendants-1 to 3 to discharge liability of deceased Pradeep,"
}
},
{
"from_name": null,
"id": "db5b52325d8a46b98d1f4df6bfe0e3cd",
"to_name": null,
"type": null,
"value": {
"end": 10294,
"labels": [
"ANALYSIS"
],
"start": 10225,
"text": "Point No.(5) : As per the final order, for the following: REASONS 14."
}
},
{
"from_name": null,
"id": "f47857aca3e74dbd8f05793fedb81f13",
"to_name": null,
"type": null,
"value": {
"end": 10312,
"labels": [
"ANALYSIS"
],
"start": 10295,
"text": "Points No.1 and 2"
}
},
{
"from_name": null,
"id": "2299ca39398b41a09a4157504d989b56",
"to_name": null,
"type": null,
"value": {
"end": 10418,
"labels": [
"ANALYSIS"
],
"start": 10312,
"text": ": As points No.1 and 2 are inter-linked, they are taken up together for consideration to avoid repetition."
}
},
{
"from_name": null,
"id": "13fdab2650634b3fb02db54dac46be8f",
"to_name": null,
"type": null,
"value": {
"end": 10568,
"labels": [
"FAC"
],
"start": 10418,
"text": "\n 15. As stated above, plaintiff in order to prove her case, has been examined herself as P.W.1 and defendant No.4 is examined on her behalf as P.W.2."
}
},
{
"from_name": null,
"id": "8f743c9317a549d697f5bc0f1ae82901",
"to_name": null,
"type": null,
"value": {
"end": 10686,
"labels": [
"FAC"
],
"start": 10569,
"text": "One Sri.M.K.Nagendra, one of the attestants to Ex.P.1-Pronote and P.1(a)-Consideration Receipt, is examined as P.W.3."
}
},
{
"from_name": null,
"id": "9aac7406a3df4e31a0ebd4106d366c88",
"to_name": null,
"type": null,
"value": {
"end": 10868,
"labels": [
"FAC"
],
"start": 10687,
"text": "Sri.Ashok M.Rao, who is Manager of H.D.F.C. Bank, Saraswathipuram Branch wherein deceased was holding an Account, is examined as P.W.4 to prove the genesis and origin of the cheque."
}
},
{
"from_name": null,
"id": "c7ee329231864290931c89eefd841237",
"to_name": null,
"type": null,
"value": {
"end": 10942,
"labels": [
"FAC"
],
"start": 10870,
"text": "10 16. P.W.1, in her chief-examination, reiterated the plaint averments."
}
},
{
"from_name": null,
"id": "e6cb02d7123343b88f404588c91a3c5d",
"to_name": null,
"type": null,
"value": {
"end": 10998,
"labels": [
"FAC"
],
"start": 10943,
"text": "She produced seven documents which are at Exs.P.1 to 7."
}
},
{
"from_name": null,
"id": "0e21050119834af69bfe01e9b4d0010f",
"to_name": null,
"type": null,
"value": {
"end": 11258,
"labels": [
"FAC"
],
"start": 10999,
"text": "Amongst them, Ex.P.1 is the on-demand pronote, Ex.P.2 is the cheque, Ex.P.3 is the legal notice issued by the plaintiff to defendants-1 to 3, Exs.P.4 to 6 are postal acknowledgements and Ex.P.7 is the reply notice of defendants- 1 to 3 to plaintiff's Counsel."
}
},
{
"from_name": null,
"id": "de304c87d1be4c08bb4115fc3ce976a8",
"to_name": null,
"type": null,
"value": {
"end": 11380,
"labels": [
"FAC"
],
"start": 11259,
"text": "In her cross-examination, it is elicited that her husband is a retired Sub-Registrar and a good friend of defendant No.4."
}
},
{
"from_name": null,
"id": "b1d4de33fa0b4a37b1c2749692d57b21",
"to_name": null,
"type": null,
"value": {
"end": 11475,
"labels": [
"FAC"
],
"start": 11381,
"text": "She admitted that deceased Pradeep was working as Superintending Engineer in O.N.G.C., Mumbai."
}
},
{
"from_name": null,
"id": "ddf0cff2547242169926d491f7fa1444",
"to_name": null,
"type": null,
"value": {
"end": 11591,
"labels": [
"FAC"
],
"start": 11475,
"text": "\nBut, she denied the suggestion that Exs.P.1 and 2 are created by this witness in collusion with P.W.2-Srinivasaiah."
}
},
{
"from_name": null,
"id": "41d1a4fd1206436ba79ea758017b2ce8",
"to_name": null,
"type": null,
"value": {
"end": 11652,
"labels": [
"FAC"
],
"start": 11591,
"text": "\n 17. P.W.2 is none else than the father of deceased Pradeep."
}
},
{
"from_name": null,
"id": "eba4393ff83044d2ab9958afc419fd27",
"to_name": null,
"type": null,
"value": {
"end": 11779,
"labels": [
"FAC"
],
"start": 11653,
"text": "He deposed that his son Pradeep borrowed Rs.1,50,000/- from the plaintiff for construction of house and also for domestic use."
}
},
{
"from_name": null,
"id": "949787e001bb4eb08fca2da5f3d9af58",
"to_name": null,
"type": null,
"value": {
"end": 11872,
"labels": [
"FAC"
],
"start": 11780,
"text": "On 13.09.2004, he received the said amount by executing a pronote and consideration receipt."
}
},
{
"from_name": null,
"id": "8c332fef010e472c85184206200a536e",
"to_name": null,
"type": null,
"value": {
"end": 11965,
"labels": [
"FAC"
],
"start": 11873,
"text": "He had agreed to repay the loan within 12 months with interest at the rate of 24% per annum."
}
},
{
"from_name": null,
"id": "353de2ff5e874353bb163992442e52a0",
"to_name": null,
"type": null,
"value": {
"end": 12064,
"labels": [
"FAC"
],
"start": 11966,
"text": "He further deposed that Pradeep had sent Rs.20,000/- and requested him to pay it to the plaintiff."
}
},
{
"from_name": null,
"id": "06614aeaaad244489b0960a2e267b3b4",
"to_name": null,
"type": null,
"value": {
"end": 12169,
"labels": [
"FAC"
],
"start": 12065,
"text": "He, on behalf of his son, paid the said amount to plaintiff and endorsed on the overleaf of the pronote."
}
},
{
"from_name": null,
"id": "2c3dff1d66cd4c7c99d79382aefdf403",
"to_name": null,
"type": null,
"value": {
"end": 12288,
"labels": [
"FAC"
],
"start": 12170,
"text": "He further stated that his son Pradeep issued cheque for Rs.1,30,000/- as security towards the arrears of loan amount."
}
},
{
"from_name": null,
"id": "b285cf9c1ab44a6088c497c9e3cb41fc",
"to_name": null,
"type": null,
"value": {
"end": 12430,
"labels": [
"FAC"
],
"start": 12289,
"text": "In cross-examination, it is elicited that deceased was not used to mingle with the public, he used to get loan from his own Company and Bank."
}
},
{
"from_name": null,
"id": "1bf3ddd89f324279afc2acc52d5e92da",
"to_name": null,
"type": null,
"value": {
"end": 12605,
"labels": [
"FAC"
],
"start": 12431,
"text": "But, he denied the suggestion that he had not borrowed loan from plaintiff and had not issued cheque towards the arrears and Exs.P.1 and 2 are concocted by himself and P.W.1."
}
},
{
"from_name": null,
"id": "c3a8307c40e4420ba3e757cf3773e6e3",
"to_name": null,
"type": null,
"value": {
"end": 12857,
"labels": [
"FAC"
],
"start": 12605,
"text": "\n 11 R.A. No.93/2012 18. P.W.3, corroborating the version of P.W.1, deposed that on 13.09.2004, deceased Pradeep borrowed Rs.1,50,000/- from the plaintiff, in his presence, executed an on-demand pronote agreeing to repay the said amount with interest."
}
},
{
"from_name": null,
"id": "c6858deace924cb0b27ec4824ad3f6a2",
"to_name": null,
"type": null,
"value": {
"end": 13079,
"labels": [
"FAC"
],
"start": 12857,
"text": "\n 19. P.W.4 is the Manager of Bank, who deposed that deceased was holding Account in his Bank and he could identify his signature on Account's Opening Form, Nomination Form and Requisition Form, which are at Exs.P.8 to 10."
}
},
{
"from_name": null,
"id": "ca11cf6795e844abbe64126ab9929ee6",
"to_name": null,
"type": null,
"value": {
"end": 13153,
"labels": [
"FAC"
],
"start": 13080,
"text": "He further stated that Ex.P.2-cheque was issued to Pradeep from his Bank."
}
},
{
"from_name": null,
"id": "1b7296a7040e4d7aba807a928a507c04",
"to_name": null,
"type": null,
"value": {
"end": 13241,
"labels": [
"FAC"
],
"start": 13154,
"text": "It is relevant to note here that this witness was not cross-examined by either parties."
}
},
{
"from_name": null,
"id": "913155e6a56a4d8dbb88352e2b9e6dcb",
"to_name": null,
"type": null,
"value": {
"end": 13344,
"labels": [
"FAC"
],
"start": 13241,
"text": "\n 20. D.W.1-Smt.Jayashree, in her chief-examination, reiterated the averments in the written statement."
}
},
{
"from_name": null,
"id": "b0b96d71f67a4b989139051e0aef2e02",
"to_name": null,
"type": null,
"value": {
"end": 13464,
"labels": [
"FAC"
],
"start": 13345,
"text": "In her cross- examination, when signatures found on Ex.P.1 and P.2 were confronted to her, she expressed her ignorance."
}
},
{
"from_name": null,
"id": "3d46a2d6e6ed418a86a0c9660b3b9fb2",
"to_name": null,
"type": null,
"value": {
"end": 13518,
"labels": [
"FAC"
],
"start": 13465,
"text": "She stated that she cannot identify those signatures."
}
},
{
"from_name": null,
"id": "da1a1cf98e1f4964b57dd6a53f203a14",
"to_name": null,
"type": null,
"value": {
"end": 13620,
"labels": [
"FAC"
],
"start": 13519,
"text": "It is further elicited that defendants-4 and 5 filed suit for partition against her and her children."
}
},
{
"from_name": null,
"id": "08f45d757c684baba722d297b40313aa",
"to_name": null,
"type": null,
"value": {
"end": 13712,
"labels": [
"FAC"
],
"start": 13621,
"text": "It is further elicited that 5th defendant had not obtained any service benefits of Pradeep."
}
},
{
"from_name": null,
"id": "e87f14d3421340e0a3fdda48e2249ead",
"to_name": null,
"type": null,
"value": {
"end": 13832,
"labels": [
"FAC"
],
"start": 13713,
"text": "She denied all the suggestions made to her by the learned Counsels appearing for plaintiff and defendants-4 and 5.\n 21."
}
},
{
"from_name": null,
"id": "4b966487d45b4f33979e502766a1a951",
"to_name": null,
"type": null,
"value": {
"end": 14086,
"labels": [
"ANALYSIS"
],
"start": 13833,
"text": "From the pleadings, oral and documentary evidence discussed supra, Court can make out the following facts, which are not controverted by the parties: \"Deceased Pradeep was working as Superintending Engineer at O.N.G.C., Bombay and was a Class-I Officer."
}
},
{
"from_name": null,
"id": "5d0cb972455d48c18851a39b8d7a0154",
"to_name": null,
"type": null,
"value": {
"end": 14145,
"labels": [
"ANALYSIS"
],
"start": 14087,
"text": "He was native of Mysore and often used to 12 visit Mysore."
}
},
{
"from_name": null,
"id": "9c7d7d9b3974450dbb631931367a3a6a",
"to_name": null,
"type": null,
"value": {
"end": 14253,
"labels": [
"ANALYSIS"
],
"start": 14146,
"text": "Defendant No.1 is his wife, defendants-2 and 3 are his daughters, while defendants-4 and 5 are his parents."
}
},
{
"from_name": null,
"id": "505cb7935c0c4b4f953591a411258f12",
"to_name": null,
"type": null,
"value": {
"end": 14293,
"labels": [
"ANALYSIS"
],
"start": 14254,
"text": "He unfortunately died while in service."
}
},
{
"from_name": null,
"id": "018a66c6282f429186e9174a308ffb33",
"to_name": null,
"type": null,
"value": {
"end": 14343,
"labels": [
"ANALYSIS"
],
"start": 14294,
"text": "Plaintiff is the wife of a retired Sub-Registrar."
}
},
{
"from_name": null,
"id": "bf2f64e59d0a474a8a940745091e8667",
"to_name": null,
"type": null,
"value": {
"end": 14424,
"labels": [
"ANALYSIS"
],
"start": 14344,
"text": "Defendant No.4 is retired Additional Deputy Commissioner in Revenue Department.\""
}
},
{
"from_name": null,
"id": "32a541b90f9840aeafbb520dbfabea27",
"to_name": null,
"type": null,
"value": {
"end": 14631,
"labels": [
"ANALYSIS"
],
"start": 14424,
"text": "\n 22. Now, the moot point that arises for consideration of this Court is, whether Ex.P.1 was executed by Pradeep in consideration of Rs.1,50,000/- borrowed for construction of his house and personal benefit."
}
},
{
"from_name": null,
"id": "5968c3b5ef2f4856875a8d02bd23d7da",
"to_name": null,
"type": null,
"value": {
"end": 14704,
"labels": [
"ANALYSIS"
],
"start": 14632,
"text": "In so far as purpose of loan is concerned, plaintiff failed to prove it."
}
},
{
"from_name": null,
"id": "ee9e03400e4e4082bf6c30772576c820",
"to_name": null,
"type": null,
"value": {
"end": 14877,
"labels": [
"ANALYSIS"
],
"start": 14705,
"text": "However, she by producing documents such as Exs.P.1 and 2 and by examining P.Ws.3 and 4, is able to prove that signatures found on Exs.P.1 and P.2 were of deceased Pradeep."
}
},
{
"from_name": null,
"id": "7e29358356084ac58bc687e640a756ab",
"to_name": null,
"type": null,
"value": {
"end": 15041,
"labels": [
"ANALYSIS"
],
"start": 14878,
"text": "On bare perusal of signatures on Exs.P.1 and 2 with the signatures on admitted documents-Exs.P.8 to 10, it could be easily inferred that they belong to one person."
}
},
{
"from_name": null,
"id": "195fd0b1b07c43e4b51f0d01bfab12c6",
"to_name": null,
"type": null,
"value": {
"end": 15130,
"labels": [
"ANALYSIS"
],
"start": 15042,
"text": "It seems, defendants-1 to 3 have not seriously disputed the signatures on Exs.P.1 and 2."
}
},
{
"from_name": null,
"id": "39d8c313d687455cb50712c549a7fa7c",
"to_name": null,
"type": null,
"value": {
"end": 15358,
"labels": [
"ANALYSIS"
],
"start": 15131,
"text": "As a matter of prelude, they in their reply notice which is marked at Ex.P.7 and in the written statement, contended that defendant No.4 obtained signatures of Pradeep on blank papers and converted them into valuable documents."
}
},
{
"from_name": null,
"id": "af8cc78e8c714d21ab38d621e619954a",
"to_name": null,
"type": null,
"value": {
"end": 15493,
"labels": [
"ANALYSIS"
],
"start": 15359,
"text": "But, this appears to be not true, because, even the handwriting found in Exs.P.1 and 9 appear to have been written by the same person."
}
},
{
"from_name": null,
"id": "a5d1923b4c9a45dc89b93e3f3619cfca",
"to_name": null,
"type": null,
"value": {
"end": 15808,
"labels": [
"ANALYSIS"
],
"start": 15493,
"text": "\nThis Court, by exercising its power conferred under Section 73 of Indian Evidence Act, compared the signatures found in Ex.P.1 with the signatures on Exs.P.8 to 10 and found that they are one and the same.\n 13 R.A. No.93/2012 23. D.W.1, by expressing her ignorance to signature of her husband, did not act fairly."
}
},
{
"from_name": null,
"id": "039665aca6d44224b2028abdbd8e5a11",
"to_name": null,
"type": null,
"value": {
"end": 15884,
"labels": [
"ANALYSIS"
],
"start": 15809,
"text": "She, being an educated lady, could have accepted or rejected the signature."
}
},
{
"from_name": null,
"id": "73568bc66eb747339e983db1adacab4f",
"to_name": null,
"type": null,
"value": {
"end": 15978,
"labels": [
"ANALYSIS"
],
"start": 15885,
"text": "She tried to play safe by expressing her ignorance, which cannot be appreciated by the Court."
}
},
{
"from_name": null,
"id": "a37ff354c7d44327889f7f93386ff584",
"to_name": null,
"type": null,
"value": {
"end": 16174,
"labels": [
"ANALYSIS"
],
"start": 15979,
"text": "P.W.4, in his evidence, clearly deposed that signatures found on Exs.P.8 to 10 were of deceased Pradeep and even cheque which is marked at Ex.P.2 was issued by his Bank in favour of the deceased."
}
},
{
"from_name": null,
"id": "1a90433eae0d43c3a9a9c9c94d147ac8",
"to_name": null,
"type": null,
"value": {
"end": 16233,
"labels": [
"ANALYSIS"
],
"start": 16175,
"text": "This evidence has remained unchallenged by the defendants."
}
},
{
"from_name": null,
"id": "b521266b84624c639770083e5d6071f6",
"to_name": null,
"type": null,
"value": {
"end": 16439,
"labels": [
"ANALYSIS"
],
"start": 16234,
"text": "Even if evidence of P.W.2 is ignored in view of their personal rivalry, nevertheless, evidence of P.Ws.1, 3 and 4 is sufficient to hold that signatures found on Ex.P.1 and P.2 were of the deceased Pradeep."
}
},
{
"from_name": null,
"id": "ef0f02df604a4f9f9e25eb468525168c",
"to_name": null,
"type": null,
"value": {
"end": 16650,
"labels": [
"ANALYSIS"
],
"start": 16440,
"text": "Although defendants-1 to 3 have raised several contentions that plaintiff, in collusion with defendant No.4, created these documents, nevertheless, there is no satisfactory evidence to substantiate their stand."
}
},
{
"from_name": null,
"id": "10eb1bc8f47e4ddaa05531a6d9a52dd7",
"to_name": null,
"type": null,
"value": {
"end": 16809,
"labels": [
"ANALYSIS"
],
"start": 16651,
"text": "Oral and documentary evidence produced by the plaintiff clearly establishes that signature which is marked at Ex.P.1(a) and in P.2 were of deceased S.Pradeep."
}
},
{
"from_name": null,
"id": "e1d735b54db74a509772165f4b22036b",
"to_name": null,
"type": null,
"value": {
"end": 16854,
"labels": [
"ANALYSIS"
],
"start": 16810,
"text": "Plaintiff has successfully proved this fact."
}
},
{
"from_name": null,
"id": "c6356cc20c994860a041aebaf685690e",
"to_name": null,
"type": null,
"value": {
"end": 17043,
"labels": [
"ANALYSIS"
],
"start": 16854,
"text": "\n 24. Once signatures on promissory note and consideration receipt are proved, plaintiff would get the benefit of presumption, as available under Section 118 of Negotiable Instruments' Act."
}
},
{
"from_name": null,
"id": "55e6a14919cb4caea812ea960d74578b",
"to_name": null,
"type": null,
"value": {
"end": 18545,
"labels": [
"STA"
],
"start": 17043,
"text": "\nSection 118 of Negotiable Instruments Act envisages that: \"Presumptions as to negotiable instruments.- Until the contrary is proved, the following presumptions shall be made:- (a) of consideration.- that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was 14 accepted, indorsed, negotiated or transferred, for consideration; (b) as to date.- that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance.- that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer.- that every transfer of a negotiable instrument was made before its maturity; (e) as to order of indorsement.- that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamps.- that a lost promissory note, bill or exchange or cheque was duly stamped; (g) that holder is a holder in due course.- that the holder of a negotiable instrument is a holder in due course: provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.\"\n 25."
}
},
{
"from_name": null,
"id": "4d54a4bfa1d04268914a4ca5fc024ca3",
"to_name": null,
"type": null,
"value": {
"end": 18681,
"labels": [
"ANALYSIS"
],
"start": 18546,
"text": "Burden shifts on the defendants-1 to 3 to rebut the legal presumption available in favour of the plaintiff by adducing cogent evidence."
}
},
{
"from_name": null,
"id": "df69d4b038134e99b0bd1b92a4d78dc0",
"to_name": null,
"type": null,
"value": {
"end": 18764,
"labels": [
"ANALYSIS"
],
"start": 18682,
"text": "But, defendants-1 to 3 failed to adduce any evidence which rebuts the presumption."
}
},
{
"from_name": null,
"id": "b9c0b4e684674d78bf00fa91256d1705",
"to_name": null,
"type": null,
"value": {
"end": 19013,
"labels": [
"ANALYSIS"
],
"start": 18765,
"text": "This Court has to therefore necessarily hold that plaintiff succeeded in proving the fact that deceased Pradeep borrowed a loan of Rs.1,50,000/- 15 R.A. No.93/2012 from her and executed on-demand pronote and consideration receipt dated 13.09.2004."
}
},
{
"from_name": null,
"id": "0be426deafe14576a2b843537384fc00",
"to_name": null,
"type": null,
"value": {
"end": 19158,
"labels": [
"ANALYSIS"
],
"start": 19013,
"text": "\n 26. Trial Court, having regard to this oral and documentary evidence, has answered issues-1 and 2 and additional issue No.2 in the affirmative."
}
},
{
"from_name": null,
"id": "fc5f1d574b784dca9ec3cd285a6e2ebe",
"to_name": null,
"type": null,
"value": {
"end": 19274,
"labels": [
"ANALYSIS"
],
"start": 19159,
"text": "On overall re-appreciation of entire evidence, I do not find any illegality or perversity in the impugned findings."
}
},
{
"from_name": null,
"id": "f8fbe81d65504c7e8a75968ca56e02c9",
"to_name": null,
"type": null,
"value": {
"end": 19332,
"labels": [
"ANALYSIS"
],
"start": 19274,
"text": "\nI have accordingly answered these points in the negative."
}
},
{
"from_name": null,
"id": "7459e91e03f747779e3e49c6d8933f89",
"to_name": null,
"type": null,
"value": {
"end": 19356,
"labels": [
"ANALYSIS"
],
"start": 19332,
"text": "\n 27. Points No.3 and 4:"
}
},
{
"from_name": null,
"id": "ea6adf948dd143c0b80aa27c8ab08687",
"to_name": null,
"type": null,
"value": {
"end": 19517,
"labels": [
"ANALYSIS"
],
"start": 19357,
"text": "In so far as liability to discharge loan is concerned, it appears, the learned Trial Judge has committed error in fastening liability only on defendants-1 to 3."
}
},
{
"from_name": null,
"id": "0efbda209cdd4af3b7436b5ee3451dfd",
"to_name": null,
"type": null,
"value": {
"end": 19619,
"labels": [
"ANALYSIS"
],
"start": 19518,
"text": "Admittedly, defendant No.5, the mother of deceased Pradeep, falls under the category of Class-I heir."
}
},
{
"from_name": null,
"id": "480750b84f464f8694c230a764ecf4c9",
"to_name": null,
"type": null,
"value": {
"end": 19710,
"labels": [
"ANALYSIS"
],
"start": 19620,
"text": "It may be true that at present, she has not received any service benefits of the deceased."
}
},
{
"from_name": null,
"id": "3abb53a8eeec45cfae8ec5b79bd43295",
"to_name": null,
"type": null,
"value": {
"end": 19806,
"labels": [
"ANALYSIS"
],
"start": 19711,
"text": "As per the evidence of D.W.1, defendants No.1 to 3 have also not yet received all the benefits."
}
},
{
"from_name": null,
"id": "de86c20aebba4a9c84e384c0b3c7b5a0",
"to_name": null,
"type": null,
"value": {
"end": 19855,
"labels": [
"ANALYSIS"
],
"start": 19807,
"text": "Certain benefits are yet to be received by them."
}
},
{
"from_name": null,
"id": "8b73767c60ca487c8577504e03a4d964",
"to_name": null,
"type": null,
"value": {
"end": 19937,
"labels": [
"ANALYSIS"
],
"start": 19856,
"text": "Defendant No.5, being the Class-I heir, can claim her share at any point of time."
}
},
{
"from_name": null,
"id": "7fd2f4297f9d4a04a6e36b0472af5779",
"to_name": null,
"type": null,
"value": {
"end": 20069,
"labels": [
"ANALYSIS"
],
"start": 19938,
"text": "Admittedly, defendant No.5 has filed suit against defendants-1 to 3 claiming her share in the property of her son-deceased Pradeep."
}
},
{
"from_name": null,
"id": "3579b0a4609c49528b027ac6c338e3a5",
"to_name": null,
"type": null,
"value": {
"end": 20189,
"labels": [
"ANALYSIS"
],
"start": 20070,
"text": "When she is claiming her right in the estate of deceased, she is also liable to discharge the loan borrowed by her son."
}
},
{
"from_name": null,
"id": "1eb4883fb2f741d986dd5a1808910285",
"to_name": null,
"type": null,
"value": {
"end": 20245,
"labels": [
"ANALYSIS"
],
"start": 20190,
"text": "Defendant No.5 cannot blow hot and cold simultaneously."
}
},
{
"from_name": null,
"id": "e6d433eea51b4f0388428f65f0c190b6",
"to_name": null,
"type": null,
"value": {
"end": 20353,
"labels": [
"ANALYSIS"
],
"start": 20246,
"text": "She cannot simply claim her right over the property and absolve from her liability to discharge legal debt."
}
},
{
"from_name": null,
"id": "b31f6c67cf6a4713b3f260a7b7361574",
"to_name": null,
"type": null,
"value": {
"end": 20454,
"labels": [
"ANALYSIS"
],
"start": 20353,
"text": "\nShe, along with defendants-1 to 3, is jointly and severally liable to discharge the debt of Pradeep."
}
},
{
"from_name": null,
"id": "02b49c864102434294c9332fc31be8d9",
"to_name": null,
"type": null,
"value": {
"end": 20543,
"labels": [
"ANALYSIS"
],
"start": 20455,
"text": "Judgment and decree of the learned Trial Judge to this extent are liable to be modified."
}
},
{
"from_name": null,
"id": "dd44c4a49d5245229a94962eab766958",
"to_name": null,
"type": null,
"value": {
"end": 20638,
"labels": [
"ANALYSIS"
],
"start": 20543,
"text": "\n 16 Accordingly, I have answered point No.3 in the affirmative and point No.4 in the negative."
}
},
{
"from_name": null,
"id": "15189bcde43f466da73c45b54fb1b628",
"to_name": null,
"type": null,
"value": {
"end": 20655,
"labels": [
"ANALYSIS"
],
"start": 20638,
"text": "\n 28. Point No.5:"
}
},
{
"from_name": null,
"id": "33f4c7eec2e34b169a68759ee06353b9",
"to_name": null,
"type": null,
"value": {
"end": 20855,
"labels": [
"RPC"
],
"start": 20656,
"text": "In the result and for the reasons stated above, I proceed to pass the following Order: ORDER Appeal filed by the appellants-1 to 3 under Order 41 Rule 1 r/w Section 96 of C.P.C., is hereby dismissed."
}
},
{
"from_name": null,
"id": "aaf9945cc700442d9ebfe17fde3ea3ae",
"to_name": null,
"type": null,
"value": {
"end": 20873,
"labels": [
"RPC"
],
"start": 20856,
"text": "No order as cost."
}
},
{
"from_name": null,
"id": "0e305e63d20e45618715bd37836c9bf8",
"to_name": null,
"type": null,
"value": {
"end": 21580,
"labels": [
"RPC"
],
"start": 20875,
"text": "Impugned Judgment and decree of the Trial Court in O.S.No.782/2006 dated 02.01.2012, stand confirmed, subject to following modification: The plaintiff is entitled to recover the suit claim of Rs.1,62,975/- along with interest at the rate of 7% per annum from the date of suit till its realisation, out of the estate of the deceased Pradeep from defendants-1 to 3 and 5.\n Suit against defendant No.4 which was dismissed by the Trial Court stands affirmed.\n Draw decree accordingly.\n Transmit copy of the Judgment along with L.C.R. to the Trial Court forthwith.\n (Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in the open Court on this the 12th day of July, 2013.)"
}
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"value": {
"end": 21596,
"labels": [
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"start": 21581,
"text": "( N.Rudramuni )"
}
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{
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"value": {
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"labels": [
"NONE"
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"start": 21597,
"text": "I Additional District Judge, Mysore."
}
},
{
"from_name": null,
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"value": {
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"labels": [
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"start": 21633,
"text": "\n 17 R.A. No.93/2012 Judgment pronounced in open Court (vide separate Judgment) ORDER Appeal filed by the appellants-1 to 3 under Order 41 Rule 1 r/w Section 96 of 18 C.P.C., is hereby dismissed."
}
},
{
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"id": "3177e50ae6b74c79abee063c9da3458d",
"to_name": null,
"type": null,
"value": {
"end": 21847,
"labels": [
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"start": 21830,
"text": "No order as cost."
}
},
{
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"start": 21847,
"text": "\n Impugned Judgment and decree of the Trial Court in O.S.No.782/2006 dated 02.01.2012, stand confirmed, subject to following modification: The plaintiff is entitled to recover the suit claim of Rs.1,62,975/- along with interest at the rate of 7% per annum from the date of suit till its realisation, out of the estate of the deceased Pradeep from defendants-1 to 3 and 5.\n Suit against defendant No.4 which was dismissed by the Trial Court stands affirmed.\n Draw decree accordingly.\n Transmit copy of the Judgment along with L.C.R. to the Trial Court forthwith.\n I Addl. District Judge, Mysore."
}
}
]
}
] | 4,112 | {
"text": " TITLE SHEET FOR JUDGMENTS IN APPEALS IN THE COURT OF THE I ADDITIONAL DISTRICT JUDGE AT MYSORE Dated this the 12th day of July, 2013 Present: Sri N.Rudramuni, B.Com., LL.M., I Addl. District Judge, Mysore.\n *** REGULAR APPEAL No.93/2012 Appellants: S.Pradeep, S/o V.Srinivasaiah, Respondents: R/at No.6, 14th Cross, 6th Main, V.V.Mohalla, Mysore, Since dead by legal representatives: 1. S.N.Jayashree, aged about 48 years, W/o Late S.Pradeep, 2. P.Pooja, aged about 22 years, D/o Late S.Pradeep, 3. P.Sanjana, aged about 19 years, D/o Late S.Pradeep, All are R/at D.No.593, Opposite to Bharath Diagnostics, Irwin Road, Mysore.\n ( By Sri.N.Nagaraj, Advocate ) -Vs- 1. H.S.Jayalakshmi, W/o Late K.S.Sambaiah, aged about 60 years, R/at No.42/Anjum 1st Main, 3rd Cross, Yadavagiri, Mysore-570 002.\n 2 2. V.Srinivasaiah, S/o S.Venkatappa, aged about 79 years, 3. Vanajakshi, W/o V.Srinivasaiah Aged about 73 years, R.2 & 3 are R/at No.6, 6th Main, 14th Cross, V.V.Mohalla, Mysore 2.\n ( R.1 by Sri.B.P.Yogamurthy, Advocate R.2 & 3 by Smt.M.S.Savithri, Advocate ) *** Date of institution of appeal: 14.02.2012 Nature of appeal: To set aside the Judgment and decree passed by learned Date on which the Judgment Principal Judge, Small Causes was pronounced: Court & Senior Civil Judge, Mysore in O.S.No.782/2006 dated 02.01.2012.\n 12.07.2013 Total Duration: Year/s Month/s Day/s 01 04 28 *** ( N.Rudramuni ) I Additional District Judge, Mysore.\n 3 R.A. No.93/2012 JUDGMENT This is an appeal assailed against Judgment and decree passed by learned Principal Judge, Small Causes Court and Senior Civil Judge, Mysore in O.S.No.782/2006 dated 02.01.2012. The learned Trial Judge, by his impugned judgment, decreed the suit of the plaintiff filed for recovery of money of Rs.1,62,975/- along with interest.\n 2. Appellants herein were the defendants-1 to 3, respondent No.1 herein was the plaintiff and respondents-2 and 3 herein were the defendants-4 and 5 in the original proceedings. Parties will be referred to with reference to their ranks they held in the Trial Court for sake of convenience.\n 3. Briefly stated case of the parties is narrated hereunder: Plaintiff filed suit for recovery of money due under Pronote executed by deceased defendant.\n The original borrower-S.Pradeep is no more. Hence, the present suit is filed against his legal representatives. On 13.09.2004, Sri.Pradeep approached the plaintiff for financial assistance of Rs.1,50,000/- for the purpose of construction of house and also for domestic use. He agreed to repay the amount within 12 months with interest at the rate of 24% per annum. The plaintiff, on the same day, at his request, lent Rs.1,50,000/-, in consideration thereof, he executed Pronote for Rs.1,50,000/- undertaking to repay the same with interest. On 10.01.2005, he had repaid Rs.20,000/- towards loan amount through his father. The same was endorsed on the overleaf of 4 the Pronote and Consideration Receipt. On 10.01.2005, said Pradeep issued a cheque bearing No.475312 for Rs.1,30,000/- drawn on H.D.F.C. Bank for the balance amount, as additional security. He had paid interest upto 30.06.2005. However on 27.07.2005, he met with untimely death. After his death, defendants-1 to 3, who are his legal heirs, had agreed to repay the loan. But, inspite of several demands and notice, they failed to make payment. The plaintiff caused legal notice on the defendants. But the defendants sent evasive reply notice.\nPlaintiff was therefore constrained to file the suit.\n 4. On registration of suit, summons were issued to the defendants, who entered their appearance through their Counsels. Defendants-1 to 3 appeared through Sri.Nagaraj, while defendants-4 and 5 appeared through Smt.Savithri. Both of them have filed separate written statements.\n 5. Defendants-1 to 3, in their written statement, denied all the contentions raised by the plaintiff in her plaint. They, interalia contended that deceased Pradeep was not a friend of plaintiff and there was no acquaintance or friendship with her.\n4th defendant-Srinivasaiah, the father of deceased Pradeep and the plaintiff were close associates and friends and they are jointly doing money lending business since a long time.\nDeceased Pradeep was working as a Superintending Engineer at O.N.G.C., Bombay, he was getting handsome salary and therefore, he had no necessity to raise loan from the private party, much less from the plaintiff. If at all he was in need of money, he would have raised loan from the Nationalised Banks.\nHe never received cash of Rs.1,50,000/- from the plaintiff nor 5 R.A. No.93/2012 did he execute Pronote or Consideration Receipt. 4th defendant, taking undue advantage of his position, obtained blank cheque of his son and handed it over to the plaintiff. Deceased Pradeep had not repaid Rs.20,000/- towards interest nor had he instructed 4th defendant to subscribe his signature on the overleaf of Pronote. This is all created by 4th defendant in collusion with the plaintiff. They would therefore pray for dismissal of the suit.\n 6. Defendants-4 and 5, in their written statement, contended that after the death of Pradeep, defendants-1 to 3 became hostile towards defendants-4 and 5 and left their house. 5th defendant, being Class-I heir of deceased Pradeep, has filed suit for partition in O.S.No.112/2006, which is still pending for consideration. 4th defendant is not a necessary party, as he has no share in the property of his son. 5th defendant is not liable to pay loan borrowed by the deceased for his legal necessity. It is relevant to mention here that defendants-4 and 5 have not denied the transaction between their son Pradeep and the plaintiff.\n 7. On the basis of above pleadings, the learned Trial Judge has framed the following Issues and Additional Issues: ISSUES 1) Whether the plaintiff proves that on 13.09.2004, the deceased defendant has borrowed the loan of Rs.1,50,000/- from her by executing the on demand pronote and consideration receipt as alleged ?\n 6 2) Whether the plaintiff is entitled for the interest claimed ?\n 3) What order ?\n ADDITIONAL ISSUES 1) Whether defendants prove that plaintiff is money lender without having valid money lending licence ?\n 2) Whether defendants prove that plaintiff has obtained signature of Sri.V.Sreenivasaiah on blank form of pronote and consideration receipt as alleged ?\n 3) Whether defendants prove that suit is bad for non-joinder of necessary parties ?\n 8. Plaintiff, on her behalf, examined herself as P.W.1 and examined scribe and witnesses of Pronote cum Consideration Receipt as P.Ws.2 to 4. They have produced ten documents which are at Ex.P.1 to P.10. Defendant No.1 is examined as D.W.1, but no document is marked on her behalf.\n 9. Learned Trial Judge, having regard to the oral and documentary evidence, decreed the suit of the plaintiff with cost and interest, recoverable out of the estate of the deceased Pradeep from defendants-1 to 3.\n 10. Appellants/defendants-1 to 3, felt aggrieved by the said Judgment and decree, preferred this appeal on the following amongst other grounds: The learned Trial Judge erred in passing the impugned judgment and decree without considering the actual facts of the defendants' 7 R.A. No.93/2012 case and in decreeing the suit only against defendants-1 to 3 by deleting defendants-4 and 5 from the liability.\n The learned Trial Judge has committed injustice in presuming the fact with regard to the identifying of signature of S.Pradeep in Ex.P.1 and P.1(a) by the 1st defendant.\n The learned Trial Judge erred in not considering the fact that 4th defendant, in connivance of the plaintiff, fabricated Ex.P.1 to make liable the defendants-1 to 3 to clear the debt.\n The learned Trial Judge erred in not observing the fact that 4th defendant admitted that he has paid amount of Rs.20,000/- to the plaintiff as part of settlement towards loan amount and in this regard shara was made on the backside of Ex.P.1.\n The learned Trial Judge wrongly appreciated the sworn testimony of P.W.3, who was a planted witness by 4th defendant.\n Though Trial Court held that plaintiff has not given satisfactory evidence with regard to the alleged borrowal of money by deceased Pradeep for specific purpose and as such defendants-1 to 5 are not personally liable to repay the loan amount, it has erred in coming to the conclusion that the plaintiff is entitled for the recovery of loan amount. The learned Trial Judge has no 8 definite stand in passing the impugned judgment, which relates to surmises.\n The learned Trial Judge has not considered the Citations placed by the defendants-1 to 3.\n The impugned judgment and decree of the Trial Court is opposed to law and against the principles of natural justice.\n 11. Heard arguments of the learned Counsels appearing on behalf of the appellants and respondents.\n 12. Points that arise for my consideration are: 1) Whether the finding of the Trial Court that the plaintiff proved that the deceased Pradeep borrowed loan of Rs.1,50,000/- from her by executing on-demand pronote and consideration receipt, is illegal and perverse, which warrants the interference of this Court?\n 2) Whether the finding of the Trial Court that the defendants-1 to 3 failed to prove additional issue No.2 that the plaintiff has obtained signatures of Pradeep on blank pronote and consideration receipt, is illegal and perverse, which warrants the interference of this Court ?\n 3) Whether the Trial Court has committed error in not fastening liability on defendant No.5 along with defendants-1 to 3 to discharge the debt ?\n 9 R.A. No.93/2012 4) Whether the judgment and decree of the Trial Court are illegal and perverse, which warrant the interference of this Court ?\n 5) What order or decree ?\n 13. My answers to the above points are as follows: Point No.(1) : In the Negative, Point No.(2) : In the Negative, Point No.(3) : In the Affirmative, Point No.(4) : In the Negative, However, defendant No.5 is also made liable along with defendants-1 to 3 to discharge liability of deceased Pradeep, Point No.(5) : As per the final order, for the following: REASONS 14. Points No.1 and 2: As points No.1 and 2 are inter-linked, they are taken up together for consideration to avoid repetition.\n 15. As stated above, plaintiff in order to prove her case, has been examined herself as P.W.1 and defendant No.4 is examined on her behalf as P.W.2. One Sri.M.K.Nagendra, one of the attestants to Ex.P.1-Pronote and P.1(a)-Consideration Receipt, is examined as P.W.3. Sri.Ashok M.Rao, who is Manager of H.D.F.C. Bank, Saraswathipuram Branch wherein deceased was holding an Account, is examined as P.W.4 to prove the genesis and origin of the cheque.\n 10 16. P.W.1, in her chief-examination, reiterated the plaint averments. She produced seven documents which are at Exs.P.1 to 7. Amongst them, Ex.P.1 is the on-demand pronote, Ex.P.2 is the cheque, Ex.P.3 is the legal notice issued by the plaintiff to defendants-1 to 3, Exs.P.4 to 6 are postal acknowledgements and Ex.P.7 is the reply notice of defendants- 1 to 3 to plaintiff's Counsel. In her cross-examination, it is elicited that her husband is a retired Sub-Registrar and a good friend of defendant No.4. She admitted that deceased Pradeep was working as Superintending Engineer in O.N.G.C., Mumbai.\nBut, she denied the suggestion that Exs.P.1 and 2 are created by this witness in collusion with P.W.2-Srinivasaiah.\n 17. P.W.2 is none else than the father of deceased Pradeep. He deposed that his son Pradeep borrowed Rs.1,50,000/- from the plaintiff for construction of house and also for domestic use. On 13.09.2004, he received the said amount by executing a pronote and consideration receipt. He had agreed to repay the loan within 12 months with interest at the rate of 24% per annum. He further deposed that Pradeep had sent Rs.20,000/- and requested him to pay it to the plaintiff. He, on behalf of his son, paid the said amount to plaintiff and endorsed on the overleaf of the pronote. He further stated that his son Pradeep issued cheque for Rs.1,30,000/- as security towards the arrears of loan amount. In cross-examination, it is elicited that deceased was not used to mingle with the public, he used to get loan from his own Company and Bank. But, he denied the suggestion that he had not borrowed loan from plaintiff and had not issued cheque towards the arrears and Exs.P.1 and 2 are concocted by himself and P.W.1.\n 11 R.A. No.93/2012 18. P.W.3, corroborating the version of P.W.1, deposed that on 13.09.2004, deceased Pradeep borrowed Rs.1,50,000/- from the plaintiff, in his presence, executed an on-demand pronote agreeing to repay the said amount with interest.\n 19. P.W.4 is the Manager of Bank, who deposed that deceased was holding Account in his Bank and he could identify his signature on Account's Opening Form, Nomination Form and Requisition Form, which are at Exs.P.8 to 10. He further stated that Ex.P.2-cheque was issued to Pradeep from his Bank. It is relevant to note here that this witness was not cross-examined by either parties.\n 20. D.W.1-Smt.Jayashree, in her chief-examination, reiterated the averments in the written statement. In her cross- examination, when signatures found on Ex.P.1 and P.2 were confronted to her, she expressed her ignorance. She stated that she cannot identify those signatures. It is further elicited that defendants-4 and 5 filed suit for partition against her and her children. It is further elicited that 5th defendant had not obtained any service benefits of Pradeep. She denied all the suggestions made to her by the learned Counsels appearing for plaintiff and defendants-4 and 5.\n 21. From the pleadings, oral and documentary evidence discussed supra, Court can make out the following facts, which are not controverted by the parties: \"Deceased Pradeep was working as Superintending Engineer at O.N.G.C., Bombay and was a Class-I Officer. He was native of Mysore and often used to 12 visit Mysore. Defendant No.1 is his wife, defendants-2 and 3 are his daughters, while defendants-4 and 5 are his parents. He unfortunately died while in service. Plaintiff is the wife of a retired Sub-Registrar. Defendant No.4 is retired Additional Deputy Commissioner in Revenue Department.\"\n 22. Now, the moot point that arises for consideration of this Court is, whether Ex.P.1 was executed by Pradeep in consideration of Rs.1,50,000/- borrowed for construction of his house and personal benefit. In so far as purpose of loan is concerned, plaintiff failed to prove it. However, she by producing documents such as Exs.P.1 and 2 and by examining P.Ws.3 and 4, is able to prove that signatures found on Exs.P.1 and P.2 were of deceased Pradeep. On bare perusal of signatures on Exs.P.1 and 2 with the signatures on admitted documents-Exs.P.8 to 10, it could be easily inferred that they belong to one person. It seems, defendants-1 to 3 have not seriously disputed the signatures on Exs.P.1 and 2. As a matter of prelude, they in their reply notice which is marked at Ex.P.7 and in the written statement, contended that defendant No.4 obtained signatures of Pradeep on blank papers and converted them into valuable documents. But, this appears to be not true, because, even the handwriting found in Exs.P.1 and 9 appear to have been written by the same person.\nThis Court, by exercising its power conferred under Section 73 of Indian Evidence Act, compared the signatures found in Ex.P.1 with the signatures on Exs.P.8 to 10 and found that they are one and the same.\n 13 R.A. No.93/2012 23. D.W.1, by expressing her ignorance to signature of her husband, did not act fairly. She, being an educated lady, could have accepted or rejected the signature. She tried to play safe by expressing her ignorance, which cannot be appreciated by the Court. P.W.4, in his evidence, clearly deposed that signatures found on Exs.P.8 to 10 were of deceased Pradeep and even cheque which is marked at Ex.P.2 was issued by his Bank in favour of the deceased. This evidence has remained unchallenged by the defendants. Even if evidence of P.W.2 is ignored in view of their personal rivalry, nevertheless, evidence of P.Ws.1, 3 and 4 is sufficient to hold that signatures found on Ex.P.1 and P.2 were of the deceased Pradeep. Although defendants-1 to 3 have raised several contentions that plaintiff, in collusion with defendant No.4, created these documents, nevertheless, there is no satisfactory evidence to substantiate their stand. Oral and documentary evidence produced by the plaintiff clearly establishes that signature which is marked at Ex.P.1(a) and in P.2 were of deceased S.Pradeep. Plaintiff has successfully proved this fact.\n 24. Once signatures on promissory note and consideration receipt are proved, plaintiff would get the benefit of presumption, as available under Section 118 of Negotiable Instruments' Act.\nSection 118 of Negotiable Instruments Act envisages that: \"Presumptions as to negotiable instruments.- Until the contrary is proved, the following presumptions shall be made:- (a) of consideration.- that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was 14 accepted, indorsed, negotiated or transferred, for consideration; (b) as to date.- that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance.- that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer.- that every transfer of a negotiable instrument was made before its maturity; (e) as to order of indorsement.- that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamps.- that a lost promissory note, bill or exchange or cheque was duly stamped; (g) that holder is a holder in due course.- that the holder of a negotiable instrument is a holder in due course: provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.\"\n 25. Burden shifts on the defendants-1 to 3 to rebut the legal presumption available in favour of the plaintiff by adducing cogent evidence. But, defendants-1 to 3 failed to adduce any evidence which rebuts the presumption. This Court has to therefore necessarily hold that plaintiff succeeded in proving the fact that deceased Pradeep borrowed a loan of Rs.1,50,000/- 15 R.A. No.93/2012 from her and executed on-demand pronote and consideration receipt dated 13.09.2004.\n 26. Trial Court, having regard to this oral and documentary evidence, has answered issues-1 and 2 and additional issue No.2 in the affirmative. On overall re-appreciation of entire evidence, I do not find any illegality or perversity in the impugned findings.\nI have accordingly answered these points in the negative.\n 27. Points No.3 and 4: In so far as liability to discharge loan is concerned, it appears, the learned Trial Judge has committed error in fastening liability only on defendants-1 to 3. Admittedly, defendant No.5, the mother of deceased Pradeep, falls under the category of Class-I heir. It may be true that at present, she has not received any service benefits of the deceased. As per the evidence of D.W.1, defendants No.1 to 3 have also not yet received all the benefits. Certain benefits are yet to be received by them. Defendant No.5, being the Class-I heir, can claim her share at any point of time. Admittedly, defendant No.5 has filed suit against defendants-1 to 3 claiming her share in the property of her son-deceased Pradeep. When she is claiming her right in the estate of deceased, she is also liable to discharge the loan borrowed by her son. Defendant No.5 cannot blow hot and cold simultaneously. She cannot simply claim her right over the property and absolve from her liability to discharge legal debt.\nShe, along with defendants-1 to 3, is jointly and severally liable to discharge the debt of Pradeep. Judgment and decree of the learned Trial Judge to this extent are liable to be modified.\n 16 Accordingly, I have answered point No.3 in the affirmative and point No.4 in the negative.\n 28. Point No.5: In the result and for the reasons stated above, I proceed to pass the following Order: ORDER Appeal filed by the appellants-1 to 3 under Order 41 Rule 1 r/w Section 96 of C.P.C., is hereby dismissed. No order as cost.\n Impugned Judgment and decree of the Trial Court in O.S.No.782/2006 dated 02.01.2012, stand confirmed, subject to following modification: The plaintiff is entitled to recover the suit claim of Rs.1,62,975/- along with interest at the rate of 7% per annum from the date of suit till its realisation, out of the estate of the deceased Pradeep from defendants-1 to 3 and 5.\n Suit against defendant No.4 which was dismissed by the Trial Court stands affirmed.\n Draw decree accordingly.\n Transmit copy of the Judgment along with L.C.R. to the Trial Court forthwith.\n (Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in the open Court on this the 12th day of July, 2013.) ( N.Rudramuni ) I Additional District Judge, Mysore.\n 17 R.A. No.93/2012 Judgment pronounced in open Court (vide separate Judgment) ORDER Appeal filed by the appellants-1 to 3 under Order 41 Rule 1 r/w Section 96 of 18 C.P.C., is hereby dismissed. No order as cost.\n Impugned Judgment and decree of the Trial Court in O.S.No.782/2006 dated 02.01.2012, stand confirmed, subject to following modification: The plaintiff is entitled to recover the suit claim of Rs.1,62,975/- along with interest at the rate of 7% per annum from the date of suit till its realisation, out of the estate of the deceased Pradeep from defendants-1 to 3 and 5.\n Suit against defendant No.4 which was dismissed by the Trial Court stands affirmed.\n Draw decree accordingly.\n Transmit copy of the Judgment along with L.C.R. to the Trial Court forthwith.\n I Addl. District Judge, Mysore.\n"
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{
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"end": 55,
"labels": [
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],
"start": 0,
"text": "PETITIONER:\nM/S. ZORASTER AND CO.\n\n Vs.\n\nRESPONDENT:"
}
},
{
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"labels": [
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"text": "\nTHE COMMISSIONER OF INCOME TAX, DELHI, AJMER, RAJASTHAN AND\n\nDATE OF JUDGMENT:"
}
},
{
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"id": "23efb424fda44fbb82d4b1fae95a2b3b",
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"start": 134,
"text": "\n17/04/1960"
}
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{
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"value": {
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"start": 145,
"text": "\n\nBENCH:\nHIDAYATULLAH, M.\nBENCH:\nHIDAYATULLAH, M.\nDAS, S.K.\nSHAH, J.C.\n\nCITATION:\n\n1961 AIR 107 1961 SCR (1) 210\n\nCITATOR INFO : (14,26,27,32)\n (121)\nRF 1961 SC1633 (8)\n (16)\nR 1963 SC1356 (7)\n (5)\nR 1963 SC1484 (5)\n\nR 1965 SC1636\n\nR 1966 SC1466\n\nRF 1972 SC2048\n\nR 1990 SC1451\n\nACT:\nIncome-tax Reference--Power of High Court to call for\nsupplemental statement of case--Indian Income-tax Act, 1922\n(11 of 1922), s. 66(4).\n\nHEADNOTE:\nThe appellant entered into contract with Government for the\nsupply of goods, and in the assessment year 1942-43 Rs.\n10,80,653 and in the assessment year 1943-44, Rs. 7,45,336\n"
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"start": 906,
"text": "were assessed as its income by the Income-tax Officer."
}
},
{
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"text": "The\nsupplies to Government were made for."
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"text": "Jaipur by"
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"text": "the\nappellant"
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"text": ", and payment was by cheques which were received at\nJaipur."
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"labels": [
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"start": 1086,
"text": "The contention of the appellant was that this\nincome was received at Jaipur outside the then taxable\nterritories."
}
},
{
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"text": "This contention was not accepted by the\n"
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{
"from_name": null,
"id": "69c5bdce0b8b4f50903de3697f64d670",
"to_name": null,
"type": null,
"value": {
"end": 1277,
"labels": [
"PREAMBLE"
],
"start": 1240,
"text": "Income-tax Appellate Tribunal, Delhi."
}
},
{
"from_name": null,
"id": "12618d893daf4728b22c205e23e08744",
"to_name": null,
"type": null,
"value": {
"end": 1997,
"labels": [
"PREAMBLE"
],
"start": 1278,
"text": "The appellant then\napplied for a reference to the High Court under s. 66(1) of\nthe Indian Income-tax Act, and by its order dated December\n10, 1952, the Tribunal referred the following question for\nthe decision of the High Court.\n\n \" Whether on the facts and circumstances of the case\nthe profits and gains in respect of the sales made to the\nGovernmentof India were received by the assessee in the taxable terri-\ntories ?\"\nThe High Court remanded the case to the Tribunal for a\nsupplemental statement of case calling for a finding on the\nquestion \" whether the cheques were sent to the assessee\nfirm by post or by hand and what directions, if any, had the\nassessee firm given to the department in the matter \"."
}
},
{
"from_name": null,
"id": "3c896d2d14d94460ae6ebcad01fe59fa",
"to_name": null,
"type": null,
"value": {
"end": 2319,
"labels": [
"PREAMBLE"
],
"start": 1998,
"text": "The\nappellant questioned the order of the High Court relying on\nthe decision in New Jehangir Vakil Mill's case, [1960] 1\n\nS.C.R. 249.\nHeld, that the enquiry in such cases must be to see whether\nthe question decided by the Tribunal admits of the\nconsideration of the new point as an integral or an\nincidental part thereof."
}
},
{
"from_name": null,
"id": "efe85df58b8e4c6dbb402ca48d91e639",
"to_name": null,
"type": null,
"value": {
"end": 2499,
"labels": [
"PREAMBLE"
],
"start": 2320,
"text": "The supplemental statement which\nthe Tribunal is directed to submit must arise from the facts\nadmitted and/or found by the Tribunal and should not open\nthe door to fresh evidence."
}
},
{
"from_name": null,
"id": "96ed1e931690444d80552dbfee324e79",
"to_name": null,
"type": null,
"value": {
"end": 3105,
"labels": [
"PREAMBLE"
],
"start": 2499,
"text": "\nHeld, further, that the question as framed in this case was\nwide enough to include an enquiry into whether there was any\nrequest, express or implied, that the amount of the bills be\npaid by cheques so as to bring the matter within the dicta\nof this Court in the Ogale Glass Works case, [1955] 1 S.C.R.\n185 or Jagdish Mills case, [1960] 1 S.C.R. 236.\nIn the absence of anything expressly said in the Order of\nthe High Court to the contrary, it cannot be held that the\ndirection given would lead inevitably to the admitting of\nfresh evidence as that has been prohibited by the New\nJehangir Vakil Mills case."
}
},
{
"from_name": null,
"id": "9b4eb1205fd0464ea5348eaffe8beda7",
"to_name": null,
"type": null,
"value": {
"end": 3210,
"labels": [
"PREAMBLE"
],
"start": 3105,
"text": "\nThe New Jehangir Vakil Mills Ltd. v. The Commissioner of\nIncome-tax, [1960] 1 S.C.R. 249, distinguished."
}
},
{
"from_name": null,
"id": "f9d8e5a82c4449c58fb06eddfa6a66e0",
"to_name": null,
"type": null,
"value": {
"end": 3757,
"labels": [
"PREAMBLE"
],
"start": 3210,
"text": "\nJagdish Mills Ltd. v. Commissioner of Income-tax, [1960] 1\nS.C.R. 236, Keshav Mills Co. Ltd., v. Commissioner of\nIncome-tax, [1950] 18 I.T.R. 407, Sir Sobha Singh v.\nCommissioner of Income-tax, [1950] 18 I.T.R. 998, Kirloskar\nBros. Ltd.v. Commissioner of Income-tax, [1952] 21 I.T.R.\n82, Commissioner of Income-tax v. Ogale Glass Works Ltd.\n[1955] 1 S.C.R. 185, Commissioner of Income-tax v. Kirloskar\nBros. Ltd., [1954] 25 I.T.R. 547 and Mrs. Kusumben D.\nMahadevia, Bombay v. Commissioner of Income-tax, Bombay,\n[1960] 3 S.C.R. 417, referred to."
}
},
{
"from_name": null,
"id": "21c60f120c1b4c0081b4ec7e21d4c58d",
"to_name": null,
"type": null,
"value": {
"end": 3768,
"labels": [
"PREAMBLE"
],
"start": 3757,
"text": "\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "8f2c1bde968d4fe79b1e3abcf314758c",
"to_name": null,
"type": null,
"value": {
"end": 3827,
"labels": [
"NONE"
],
"start": 3768,
"text": "\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 30 of 1958."
}
},
{
"from_name": null,
"id": "2803324eb51b4f3a9c2fbefb5286cf81",
"to_name": null,
"type": null,
"value": {
"end": 3960,
"labels": [
"NONE"
],
"start": 3827,
"text": "\nAppeal by special leave from the judgment and order dated March 24, 1955, of the Punjab High Court in Civil Reference No. 3 of 1953."
}
},
{
"from_name": null,
"id": "042b65285cd743f8907faca32df46df0",
"to_name": null,
"type": null,
"value": {
"end": 3993,
"labels": [
"NONE"
],
"start": 3960,
"text": "\nGopal Singh, for the appellants."
}
},
{
"from_name": null,
"id": "4de2643316704787894e72e4c71f7089",
"to_name": null,
"type": null,
"value": {
"end": 4056,
"labels": [
"NONE"
],
"start": 3993,
"text": "\nK. N. Rajagopala Sastri and D. Gupta, for the respondent.1960."
}
},
{
"from_name": null,
"id": "61e8aa0831034c65a5e9e523eb5f16a2",
"to_name": null,
"type": null,
"value": {
"end": 4067,
"labels": [
"NONE"
],
"start": 4057,
"text": "August 17."
}
},
{
"from_name": null,
"id": "a737f179d21446ed8692aca9a39a32ae",
"to_name": null,
"type": null,
"value": {
"end": 4110,
"labels": [
"NONE"
],
"start": 4068,
"text": "The Judgment of the Court was delivered by"
}
},
{
"from_name": null,
"id": "152d2759d9d249bebd05e173611c32fd",
"to_name": null,
"type": null,
"value": {
"end": 4127,
"labels": [
"NONE"
],
"start": 4111,
"text": "HIDAYATULLAH J.-"
}
},
{
"from_name": null,
"id": "dfd009d36aa446109428db6ec2d8dd86",
"to_name": null,
"type": null,
"value": {
"end": 4429,
"labels": [
"FAC"
],
"start": 4127,
"text": "This appeal, by special leave of this Court, is against the judgment 'and order dated March 24, 1955, of the Punjab High Court by which the High Court, purporting to act under s. 66(4) of the Indian Income-tax Act, called for a supplemental statement of the case from the Income-tax Appellate Tribunal."
}
},
{
"from_name": null,
"id": "9ea7faf3a9e14260b333781e0241a713",
"to_name": null,
"type": null,
"value": {
"end": 4589,
"labels": [
"ISSUE"
],
"start": 4430,
"text": "The special leave granted by this Court is limited to the question whether the High Court had jurisdiction in this case to call for the supplemental statement."
}
},
{
"from_name": null,
"id": "1ccc817c691c4510bdf3acdf833902aa",
"to_name": null,
"type": null,
"value": {
"end": 4666,
"labels": [
"FAC"
],
"start": 4589,
"text": "\nThe assessee, Messrs. S. Zoraster & Co., Jaipur, consists of three partners."
}
},
{
"from_name": null,
"id": "c7d5807c010040fb8122b073570aacc3",
"to_name": null,
"type": null,
"value": {
"end": 4748,
"labels": [
"FAC"
],
"start": 4667,
"text": "Two of them are coparceners of a joint Hindu family, and the third is a stranger."
}
},
{
"from_name": null,
"id": "ac9bca35e6554e02a50a6756ff2ff699",
"to_name": null,
"type": null,
"value": {
"end": 4872,
"labels": [
"FAC"
],
"start": 4749,
"text": "They had formed this partnership in June, 1940, for the manufacture and sale of blankets, felts and other woollen articles."
}
},
{
"from_name": null,
"id": "65aac783048c4acfaf7a6805d9ab9bbd",
"to_name": null,
"type": null,
"value": {
"end": 4931,
"labels": [
"FAC"
],
"start": 4873,
"text": "A deed of partnership was also executed on March 16, 1944."
}
},
{
"from_name": null,
"id": "d5b168a2ca4641b9808e1813a87a577e",
"to_name": null,
"type": null,
"value": {
"end": 5205,
"labels": [
"FAC"
],
"start": 4932,
"text": "The assessee entered into contracts with Government for the sup- ply of goods, and in the assessment year 1942-43, Rs.\n10,80,658-0-0 and in the assessment year 1943-44, Rs.\n17,45,336-0-0 were assessed as its income by the Income-tax Officer, Contractor's Circle, New Delhi."
}
},
{
"from_name": null,
"id": "db8cfd304f144edd992c50683b9f990d",
"to_name": null,
"type": null,
"value": {
"end": 5247,
"labels": [
"FAC"
],
"start": 5206,
"text": "The supplies to Government were made for."
}
},
{
"from_name": null,
"id": "5af6ae4e89524d6e98dd45ea28f68eb8",
"to_name": null,
"type": null,
"value": {
"end": 5422,
"labels": [
"FAC"
],
"start": 5248,
"text": "Jaipur by the assessee, and payment was by cheques which were received at Jaipur and were endorsed in favour of the joint Hindu family, which acted as the assessee's bankers."
}
},
{
"from_name": null,
"id": "3b51e4105a04459cb91a1e832ba053a3",
"to_name": null,
"type": null,
"value": {
"end": 5535,
"labels": [
"FAC"
],
"start": 5423,
"text": "The contention of the assessee was that this income was received at Jaipur outside the then taxable territories."
}
},
{
"from_name": null,
"id": "5be9a164552a489593178f073782e4df",
"to_name": null,
"type": null,
"value": {
"end": 5613,
"labels": [
"FAC"
],
"start": 5536,
"text": "This contention was not accepted by the Income-tax Appellate Tribunal, Delhi."
}
},
{
"from_name": null,
"id": "b0bbaf6e7d8341898d2fde056b9a1b83",
"to_name": null,
"type": null,
"value": {
"end": 6229,
"labels": [
"FAC"
],
"start": 5613,
"text": "\nThe assessee then applied for a reference to the High Court under s. 66(1) of the Indian Income-tax Act, and by its order dated December 10, 1952, the Income-tax Appellate Tribunal referred the following question for the decision of the High Court: \" Whether on the facts and circumstances of the case the profits and gains in respect of the sales made to the Government of India were received by the assessee in the taxable territories ? \"The Tribunal had stated in the statement of the case as follows: \"The payment was made by the Government of India by cheques drawn on the Reserve Bank of India, Bombay Branch."
}
},
{
"from_name": null,
"id": "27046bc9c52148fbbda5a4af5726ee3d",
"to_name": null,
"type": null,
"value": {
"end": 6269,
"labels": [
"FAC"
],
"start": 6230,
"text": "These cheques were received in Jaipur.\""
}
},
{
"from_name": null,
"id": "1c2f7da73f3e48e8a6059be8e59d593b",
"to_name": null,
"type": null,
"value": {
"end": 7270,
"labels": [
"RLC"
],
"start": 6269,
"text": "\nIt may be pointed out that in the contract of sale between the assessee and the Government of India, the following clause was included to determine the system of payment: \" 21. System of payment:-Unless otherwise agreed between the Purchaser and the Contractor payment for the delivery of the stores will be made by the Chief Auditor, Indian Stores Department, New Delhi, by cheque on a Government treasury in India or on a branch of the Imperial Bank of India or the Reserve Bank of India transacting Government business.\"\nIn dealing with the Reference, the High Court passed an order under s. 66(4) of the Income-tax Act observing, \"........ it would be necessary for the Appellate Tribunal to find, inter alia, whether the cheques were sent to the assessee firm by post or by hand and what directions, if any, had the assessee firm given to the Department in the matter \".\nThe High Court thereafter remanded the case to the Tribunal for a supplemental statement of the case on the lines indicated."
}
},
{
"from_name": null,
"id": "e89e0cced0ba4e9cb3cdcc5f77fb4840",
"to_name": null,
"type": null,
"value": {
"end": 7467,
"labels": [
"PRE_NOT_RELIED"
],
"start": 7271,
"text": "This order is questioned on the authority of the decision of this Court in The New Jehangir Vakil Mills Ltd.\nv. The Commissioner of Income-tax(1) which, it is claimed, completely covers this case."
}
},
{
"from_name": null,
"id": "5f221cfe831d4d17bddc373463180421",
"to_name": null,
"type": null,
"value": {
"end": 7646,
"labels": [
"PRE_NOT_RELIED"
],
"start": 7468,
"text": "In that case also, the High Court of Bombay had called for a supplemental statement of the case, and it was ruled by this Court that the High Court had exceeded its jurisdiction."
}
},
{
"from_name": null,
"id": "1843a74729274be8944ae9663b1a1914",
"to_name": null,
"type": null,
"value": {
"end": 8471,
"labels": [
"PRE_NOT_RELIED"
],
"start": 7646,
"text": "\nBefore dealing with this question, it is necessary to go back a little, and refer briefly to some cases decided earlier than The New Jehangir Vakil Mills case (1) and Jagdish Mills Ltd. v. Commissioner of Income-tax (2), on which reliance has been placed in this case. ID (1) [1960] 1 S.C.R. 249.\n(2) [1960] 1 S.C.R. 236.Keshav Mills Co., Ltd. v. Commissioner of Income-tax (1), the High Court of Bombay called for a supplemental statement of the case, but it expressed the view that if a cheque was received by a creditor on a British Indian Bank and he gave the cheque to his bank for collection, the bank must be treated as his agent and that, on the realisation of the amount of the cheque in the taxable territory, the creditor must be regarded as having received it in the taxable territory, even if he was outside it."
}
},
{
"from_name": null,
"id": "ba9c17e268394b288b4481db428765f9",
"to_name": null,
"type": null,
"value": {
"end": 8733,
"labels": [
"PRE_NOT_RELIED"
],
"start": 8472,
"text": "In Sir Sobha Singh v.\nCommissioner of Income-tax (2), it was held by the Punjab High Court that where cheques were given to a bank for purposes of collection, the receipt of the money was at the place where the bank on which the cheques were drawn was situated."
}
},
{
"from_name": null,
"id": "32d2fff794844c7da8afcdc6c5a6c695",
"to_name": null,
"type": null,
"value": {
"end": 8839,
"labels": [
"ANALYSIS"
],
"start": 8734,
"text": "These views found further amplification, and were applied in two other cases by the Bombay If high Court."
}
},
{
"from_name": null,
"id": "c6f8deaffafb491fb6879c03f980d4f4",
"to_name": null,
"type": null,
"value": {
"end": 8966,
"labels": [
"PRE_NOT_RELIED"
],
"start": 8840,
"text": "They are Kirloskar Bros. Ltd. v. Commissioner of Income-tax (3 ) and Ogale Glass Works Ltd. v. Commissioner of Income-tax (4)."
}
},
{
"from_name": null,
"id": "0483998e6dfd4857be7dadb313e8ac41",
"to_name": null,
"type": null,
"value": {
"end": 9259,
"labels": [
"PRE_NOT_RELIED"
],
"start": 8966,
"text": "\nIn both these cases, it was held that unless the payee expressly constituted the post office as his agent, the mere posting of the cheque did not constitute the post office the agent of the payee, and that the amount of the cheque was also received at the place where the cheque was received."
}
},
{
"from_name": null,
"id": "9cac2672e816480884cd85834b8efe09",
"to_name": null,
"type": null,
"value": {
"end": 9511,
"labels": [
"PRE_NOT_RELIED"
],
"start": 9260,
"text": "In Kirloskar Bros. Ltd. v. Commissioner of Income-tax(3), it was held that the mere posting of the cheque in Delhi was not tantamount to the receipt of the cheque in Delhi, because the payee had not requested the Government to send the cheque by post."
}
},
{
"from_name": null,
"id": "4eec56d767fc49b48c5a60e9c2b76d64",
"to_name": null,
"type": null,
"value": {
"end": 9890,
"labels": [
"PRE_NOT_RELIED"
],
"start": 9512,
"text": "In Ogale Glass Works case (4), the Bombay High Court asked for a supplementary statement of the case from the Tribunal as to whether there was any express request by the assessee that the cheque should be sent by post, and held that as there was no such express request, the receipt of the money was not where the cheque was posted but at the place where the money was received."
}
},
{
"from_name": null,
"id": "7a57964d8dda4d73a44ce1f58efef340",
"to_name": null,
"type": null,
"value": {
"end": 9942,
"labels": [
"NONE"
],
"start": 9890,
"text": "\n(1) [1950] 18 I.T.R. 407.\n(2) [1950] 18 I.T.R. 998."
}
},
{
"from_name": null,
"id": "a5657b70fa4e440f86a96b128abeae88",
"to_name": null,
"type": null,
"value": {
"end": 9967,
"labels": [
"NONE"
],
"start": 9943,
"text": "(3) [1952] 21 I.T.R. 82."
}
},
{
"from_name": null,
"id": "701531c4757d4ae19a2dd8d2bb3ec6e6",
"to_name": null,
"type": null,
"value": {
"end": 10406,
"labels": [
"PRE_NOT_RELIED"
],
"start": 9967,
"text": "\n(4) I. Tax Reference No. 10 of 1949 of the Bombay H. C.\ndecided on September 17, 1951.The last two decisions of the Bombay High Court were reversed by this Court, and it was held that an intimation to the payer \" to remit \" the amount by cheque was sufficient nomination of the post office as the agent of the payee: vide Commissioner of Income-tax v. Ogale Glass Works Ltd. (1) and Commissioner of Income-tax v. Kirloskar Bros.\nLtd. (2)."
}
},
{
"from_name": null,
"id": "9d69ffe9b37443379dff6f43d91bdb6e",
"to_name": null,
"type": null,
"value": {
"end": 10494,
"labels": [
"ANALYSIS"
],
"start": 10407,
"text": "Later, the principle was extended still further by this Court in Jagdish Mills case(3)."
}
},
{
"from_name": null,
"id": "0fab8d8ddab745499b46a3df5d5cc573",
"to_name": null,
"type": null,
"value": {
"end": 10795,
"labels": [
"ANALYSIS"
],
"start": 10495,
"text": "It was held that where the bills had an endorsement Government should pay the amount due by cheque and the cheques were received in full satisfaction unconditionally, this constituted a sufficient implied request for the purpose of the application of the rule in Ogale Glass Works case of this Court."
}
},
{
"from_name": null,
"id": "5657684b27f84dba86e2772fc5a04899",
"to_name": null,
"type": null,
"value": {
"end": 10904,
"labels": [
"ANALYSIS"
],
"start": 10795,
"text": "\nJagdish Mills case (3) and the New Jehangir Vakil Mills case (4) were decided by this Court on the same day."
}
},
{
"from_name": null,
"id": "118b28aaf32a429ea7d78991d8799088",
"to_name": null,
"type": null,
"value": {
"end": 11061,
"labels": [
"ANALYSIS"
],
"start": 10905,
"text": "In the latter case, the Department had to deal with a non-resident Company which, at all material times, was situate at Bhavnagar, one of the Indian States."
}
},
{
"from_name": null,
"id": "bffd65b74bb0457fb0c8f463b900f59f",
"to_name": null,
"type": null,
"value": {
"end": 11150,
"labels": [
"ANALYSIS"
],
"start": 11062,
"text": "Cheques in payment for supplies to Government were sent from British India to Bhavnagar."
}
},
{
"from_name": null,
"id": "028d51032c684f77abb884ebde715e88",
"to_name": null,
"type": null,
"value": {
"end": 11447,
"labels": [
"ANALYSIS"
],
"start": 11151,
"text": "The Department contended in the case that though the cheques were received at Bhavnagar, they were, in fact, cashed in British India and until such encashment, income could not be said to have been received but that on encashment in British India, the receipt of income was also in British India."
}
},
{
"from_name": null,
"id": "8404f5c4ff4b4238896f3732e93cd207",
"to_name": null,
"type": null,
"value": {
"end": 11552,
"labels": [
"ANALYSIS"
],
"start": 11448,
"text": "The Tribunal held that the cheques having been received at Bhavnagar the income was also received there."
}
},
{
"from_name": null,
"id": "85150f1beb604a9891bef01761e1c3c2",
"to_name": null,
"type": null,
"value": {
"end": 11639,
"labels": [
"ANALYSIS"
],
"start": 11553,
"text": "In doing so, the Tribunal followed the Bombay decision in Kirloskar Brothers case (5)."
}
},
{
"from_name": null,
"id": "4b1482bdc597459dbb510fdbdb9ca37c",
"to_name": null,
"type": null,
"value": {
"end": 11911,
"labels": [
"ANALYSIS"
],
"start": 11640,
"text": "The Tribunal, however, observed that if the Bombay view which was then under appeal to this Court were not upheld, then an enquiry would have to be made as to whether the Mills' bankers at Ahmedabad acted as the Mills' agents for collecting the amount due on the cheques."
}
},
{
"from_name": null,
"id": "36676b829011466b816cb0aa7ad967f8",
"to_name": null,
"type": null,
"value": {
"end": 12043,
"labels": [
"ANALYSIS"
],
"start": 11912,
"text": "The question whether the posting of the cheques from British India to Bhavnagar at the request, express or (1) [1955] 1 S.C.R. 185."
}
},
{
"from_name": null,
"id": "9192740633864e8483566f6899e09a60",
"to_name": null,
"type": null,
"value": {
"end": 12144,
"labels": [
"NONE"
],
"start": 12043,
"text": "\n(3) [1960] 1 S.C.R. 236.\n(2) [1954] 25 I.T.R. 547.\n(4) [1960] 1 S.C.R. 249.\n(5) [1952] 21 I.T.R. 82."
}
},
{
"from_name": null,
"id": "18b3dca155114ebea8d0d98c9aeebc0b",
"to_name": null,
"type": null,
"value": {
"end": 12281,
"labels": [
"ANALYSIS"
],
"start": 12144,
"text": "implied, of the Mills or otherwise, made any difference was not considered at any stage before the case reached the High Court of Bombay."
}
},
{
"from_name": null,
"id": "39209015cbe74afaa5249eeaad7aa60d",
"to_name": null,
"type": null,
"value": {
"end": 12720,
"labels": [
"ANALYSIS"
],
"start": 12282,
"text": "This was expressly found to be so by this Court in these words: \" The only ground urged by the Revenue at all material stages was that because the amounts which were received, from the merchants or the Government were received by cheques drawn on banks in British India which were ultimately encashed in British India, the monies could not be said to have been received in Bhavnagar though the cheques were in fact received at Bhavnagar.\""
}
},
{
"from_name": null,
"id": "507dc69bb4e546b480bee8bab1007ada",
"to_name": null,
"type": null,
"value": {
"end": 12860,
"labels": [
"ANALYSIS"
],
"start": 12720,
"text": "\nThe reference was held back by the Tribunal till the decision of this Court in Ogale Glass Works case (1) and Kirloskar Brothers' case (2)."
}
},
{
"from_name": null,
"id": "2893e7e50ecf43fdb240b1278d805678",
"to_name": null,
"type": null,
"value": {
"end": 13138,
"labels": [
"ANALYSIS"
],
"start": 12861,
"text": "Even after seeing that in those two cases the request for payment by cheques to be sent by post made all the difference, the Tribunal did not frame its statement of the case or the question to include this aspect, because that aspect of the matter was never considered before.'"
}
},
{
"from_name": null,
"id": "6e8b41893f414b8592ffea9e0108970b",
"to_name": null,
"type": null,
"value": {
"end": 13362,
"labels": [
"ANALYSIS"
],
"start": 13139,
"text": "The question referred was thus limited to the legal effect of the receipt of the cheques at Bhavnagar without advertence to the fact whether the cheques were so sent by post at the request, express or implied, of the Mills."
}
},
{
"from_name": null,
"id": "34b551c5c13c4e1e94b9f67c9b1545b6",
"to_name": null,
"type": null,
"value": {
"end": 13495,
"labels": [
"ANALYSIS"
],
"start": 13363,
"text": "The question framed was: \" Whether the receipt of the cheques in Bhavnagar amounted to receipt of the sale proceeds in Bhavnagar ? \""
}
},
{
"from_name": null,
"id": "ba808da72d7e40f39252bf45b440c2a6",
"to_name": null,
"type": null,
"value": {
"end": 13662,
"labels": [
"ANALYSIS"
],
"start": 13495,
"text": "\nThe question as framed and the statement which accompanied it brought into controversy the only point till then considered by the Tribunal and the taxing authorities."
}
},
{
"from_name": null,
"id": "fae8c6970bd0401083b5ec0ca47abb6c",
"to_name": null,
"type": null,
"value": {
"end": 13808,
"labels": [
"ANALYSIS"
],
"start": 13663,
"text": "When the case *as heard by it, the High Court desired to consider it from the angle of the Kirloskar Brothers(2) and Ogale Glass Works (1) cases."
}
},
{
"from_name": null,
"id": "4d8c12ec98d64560aa16c647a1f7b361",
"to_name": null,
"type": null,
"value": {
"end": 13860,
"labels": [
"ANALYSIS"
],
"start": 13809,
"text": "It called for a supplemental statement of the case."
}
},
{
"from_name": null,
"id": "4a6ecefd83d4412788bb3b380d19e37b",
"to_name": null,
"type": null,
"value": {
"end": 14010,
"labels": [
"ANALYSIS"
],
"start": 13861,
"text": "In doing so, the High Court went beyond the ambit of the controversy as it had existed till then and also the statement of the case and the question."
}
},
{
"from_name": null,
"id": "24e37307b05b42749fc3a6de4da0ff3c",
"to_name": null,
"type": null,
"value": {
"end": 14162,
"labels": [
"ANALYSIS"
],
"start": 14010,
"text": "\nThe High Court directed the Tribunal as follows: \"On the finding of the Tribunal that all the cheques were received in Bhavnagar, the Tribunal to find "
}
},
{
"from_name": null,
"id": "89a05db594284ccfb225990a946dfac6",
"to_name": null,
"type": null,
"value": {
"end": 14212,
"labels": [
"NONE"
],
"start": 14162,
"text": "(1) [1955] 1 S.C.R. 185.\n(2) [1954] 25 I.T.R. 547."
}
},
{
"from_name": null,
"id": "d1176103d342420e9e012830c30cd964",
"to_name": null,
"type": null,
"value": {
"end": 14436,
"labels": [
"ANALYSIS"
],
"start": 14212,
"text": "what portion of these cheques were received by post, whether there was any request by the assessee, express or implied, that the amounts which are the subject matter of these cheques should be remitted to Bhavnagar by post.\""
}
},
{
"from_name": null,
"id": "e90ae62010684b8abc69ea5f98a35740",
"to_name": null,
"type": null,
"value": {
"end": 14801,
"labels": [
"ANALYSIS"
],
"start": 14437,
"text": "In repelling the objection that such an enquiry was alien to the point decided by the Tribunal and might require fresh evidence, the High Court justified itself by saying: \" But we cannot shut out the necessary inquiry which even from our own point of view is necessary to be made in order that we should satisfactorily answer the question raised in the Reference."
}
},
{
"from_name": null,
"id": "dcdaa60acb594c12a93ad7d5993ae0ac",
"to_name": null,
"type": null,
"value": {
"end": 15044,
"labels": [
"ANALYSIS"
],
"start": 14802,
"text": "It must not be forgotten that under section 66(4) of the Income-tax Act we have a right independently of the conduct of the parties to direct the Tribunal to state further facts so that we may properly exercise our own advisory jurisdiction.\""
}
},
{
"from_name": null,
"id": "71fdd481f2d844f78cade29b298e42d0",
"to_name": null,
"type": null,
"value": {
"end": 15158,
"labels": [
"ANALYSIS"
],
"start": 15044,
"text": "\nThis Court pointed out that the High Court exceeded its jurisdiction under s. 66(4) of the Indian Income-tax Act."
}
},
{
"from_name": null,
"id": "a8b538e7594e4356a9f7a7d5d44df80e",
"to_name": null,
"type": null,
"value": {
"end": 15408,
"labels": [
"ANALYSIS"
],
"start": 15158,
"text": "\nIt was observed: \" If the question actually referred does not bring out clearly the real issue between the parties, the High Court may reframe the question so that the matter actually agitated before the Tribunal may be raised before the High Court."
}
},
{
"from_name": null,
"id": "cf3cc86f01d5479b940aaebf96182cc6",
"to_name": null,
"type": null,
"value": {
"end": 15768,
"labels": [
"ANALYSIS"
],
"start": 15409,
"text": "But s. 66(4) does not enable the High Court to raise a new question of law which does not arise out of the Tribunal's order and direct the Tribunal to investigate new or further facts necessary to determine this new question which had not been referred to it under s. 66(1) or s. 66(2) and direct the Tribunal to submit a supplementary statement of the case.\""
}
},
{
"from_name": null,
"id": "28945f6af56645b2b25afd68e265d33b",
"to_name": null,
"type": null,
"value": {
"end": 15957,
"labels": [
"ANALYSIS"
],
"start": 15768,
"text": "\nIt was also pointed out that the facts admitted and/ or found by the Tribunal could alone be the foundation of the question of law which might be said to arise out of the Tribunal's order."
}
},
{
"from_name": null,
"id": "8709e76b45954918ae9297fa3a644739",
"to_name": null,
"type": null,
"value": {
"end": 16228,
"labels": [
"ANALYSIS"
],
"start": 15958,
"text": "The case thus set two limits to the jurisdiction of the High Court under s. 66(4), and they were that the advisory jurisdiction was confined (a) to the facts on the record and/or found by the Tribunal and (b) the question which 218 would arise from the Tribunal's order."
}
},
{
"from_name": null,
"id": "a65d7fcaad98484897f1fd347ba38c7f",
"to_name": null,
"type": null,
"value": {
"end": 16514,
"labels": [
"ANALYSIS"
],
"start": 16229,
"text": "It was pointed out by this Court that it was not open to the High Court to order a fresh enquiry into new facts with a view to amplifying the record and further that it was equally not open to the High Court to decide a question of law, which did not arise out of the Tribunal's order."
}
},
{
"from_name": null,
"id": "19356fc2ebb54694a69a29aed1a41df9",
"to_name": null,
"type": null,
"value": {
"end": 16645,
"labels": [
"ANALYSIS"
],
"start": 16515,
"text": "This was illustrated by comparing the question as framed by the Tribunal with the question which the High Court desired to decide."
}
},
{
"from_name": null,
"id": "d4aef39f9c804dd2a5edcd3c4d89c9cb",
"to_name": null,
"type": null,
"value": {
"end": 17008,
"labels": [
"ANALYSIS"
],
"start": 16646,
"text": "Whereas the Tribunal had only referred the question: \" Whether the receipt of the cheques at Bhavnagar amounted to receipt of sale proceeds in Bhavnagar ?\", what the High Court intended deciding was: \" Whether the posting of the cheques in British India at the request express or implied of the appellant, amounted to receipt of sale proceeds in British India ?\""
}
},
{
"from_name": null,
"id": "3727813418174678a0c20e3f2f6bc5a9",
"to_name": null,
"type": null,
"value": {
"end": 17234,
"labels": [
"ANALYSIS"
],
"start": 17008,
"text": "\nThese were two totally different questions, and it was held that the High-Court could not decide a matter which was different from that decided by the Tribunal, nor call for a statement of the case bearing on this new matter."
}
},
{
"from_name": null,
"id": "c3364e3e2dc34cfc937b0b1db5124d1b",
"to_name": null,
"type": null,
"value": {
"end": 17371,
"labels": [
"ANALYSIS"
],
"start": 17234,
"text": "\nThe proposition laid down in the Jehangir Vakil Mills case (1), finds support from yet another case of this Court decided very recently."
}
},
{
"from_name": null,
"id": "44fc636a33e74f9fb3a98fa3da7979aa",
"to_name": null,
"type": null,
"value": {
"end": 17520,
"labels": [
"PRE_NOT_RELIED"
],
"start": 17372,
"text": "In Kusumben D. Mahadevia v.\nCommissioner of Income-tax Bombay (2), it was observed: \" In our opinion, the objection of the assessee is well-founded."
}
},
{
"from_name": null,
"id": "b71e8bd2116048419531d2e27885fb68",
"to_name": null,
"type": null,
"value": {
"end": 17627,
"labels": [
"PRE_NOT_RELIED"
],
"start": 17521,
"text": "The Tribunal did not address itself to the question whether the Concessions Order applied to the assessee."
}
},
{
"from_name": null,
"id": "0a475ec0aa8d4fe49d52a299bebe4287",
"to_name": null,
"type": null,
"value": {
"end": 17751,
"labels": [
"PRE_NOT_RELIED"
],
"start": 17628,
"text": "It decided the question of assessability on the short ground that the income had not arisen in Baroda but in British India."
}
},
{
"from_name": null,
"id": "e1862d42892c4282a1c6c51cd15beab9",
"to_name": null,
"type": null,
"value": {
"end": 17824,
"labels": [
"PRE_NOT_RELIED"
],
"start": 17752,
"text": "That aspect of the matter has not been touched by the Bombay High Court."
}
},
{
"from_name": null,
"id": "d7766dca508441c99598b581f6f22ef5",
"to_name": null,
"type": null,
"value": {
"end": 17963,
"labels": [
"PRE_NOT_RELIED"
],
"start": 17825,
"text": "The latter has, on the other hand, considered whether the Concessions Order applies to the assessee, a matter not touched by the Tribunal."
}
},
{
"from_name": null,
"id": "a11599153a0f4bd4adf155f89f1924ba",
"to_name": null,
"type": null,
"value": {
"end": 18086,
"labels": [
"ANALYSIS"
],
"start": 17963,
"text": "\nThus, though the result is the same so far as the assessment is concerned, the grounds of decision are entirely different."
}
},
{
"from_name": null,
"id": "887a367a489e439eacc8670541274dc8",
"to_name": null,
"type": null,
"value": {
"end": 18140,
"labels": [
"NONE"
],
"start": 18086,
"text": "\n(1) [1960] 1 S.C.R. 249.\n(2) [1960] 3 S.C.R. 417,421."
}
},
{
"from_name": null,
"id": "29135e2d91854439b47ffa98aa207846",
"to_name": null,
"type": null,
"value": {
"end": 18307,
"labels": [
"STA"
],
"start": 18140,
"text": "Section 66 of the Income-tax Act which confers jurisdiction upon the High Court only permits a reference of a question of law arising out of the order of the Tribunal."
}
},
{
"from_name": null,
"id": "bbcdfbb8b9dc4b79b565c34d80336b6b",
"to_name": null,
"type": null,
"value": {
"end": 18426,
"labels": [
"ANALYSIS"
],
"start": 18308,
"text": "It does not confer jurisdiction on the High Court to decide a different question of law not arising out of such order."
}
},
{
"from_name": null,
"id": "b33540d501b04ed399cdbd01ac59c78f",
"to_name": null,
"type": null,
"value": {
"end": 18597,
"labels": [
"ANALYSIS"
],
"start": 18427,
"text": "It is possible that the same question of law may involve different approaches for its solution, and the High Court may amplify the question to take in all the approaches."
}
},
{
"from_name": null,
"id": "b88e37349cab4929a0add14dc6f65a88",
"to_name": null,
"type": null,
"value": {
"end": 18689,
"labels": [
"ANALYSIS"
],
"start": 18598,
"text": "But the question must still be the one which was before the Tribunal and was decided by it."
}
},
{
"from_name": null,
"id": "05ebb88908264b9dbf9517da27bf9a64",
"to_name": null,
"type": null,
"value": {
"end": 18775,
"labels": [
"ANALYSIS"
],
"start": 18690,
"text": "It must not be an entirely different question which the Tribunal never considered.\"\n "
}
},
{
"from_name": null,
"id": "f6136a9c8b2648dda8dcd59b99a07c9c",
"to_name": null,
"type": null,
"value": {
"end": 18979,
"labels": [
"ANALYSIS"
],
"start": 18775,
"text": "It follows from this that the enquiry in such cases must be to see whether the question decided by the Tribunal admits the consideration of the new point as an integral or even an incidental part thereof."
}
},
{
"from_name": null,
"id": "4c3c761dfaa843a9ae728db606f9cf23",
"to_name": null,
"type": null,
"value": {
"end": 19169,
"labels": [
"ANALYSIS"
],
"start": 18980,
"text": "Even so, the supplemental statement which the Tribunal is directed to submit must arise from the facts admitted and/or found by the Tribunal, and should not open the door to fresh evidence."
}
},
{
"from_name": null,
"id": "b8bb21de94c34ec48bef9d52b20850cc",
"to_name": null,
"type": null,
"value": {
"end": 19812,
"labels": [
"ANALYSIS"
],
"start": 19170,
"text": "The fact that in Ogale Glass Works case (1), the Bombay High Court had asked for a supplemental statement in the same way as in the Jehangir Vakil Mills case (2 ), and this Court did not rule out the new matter, cannot help the assessee in the present case, because the jurisdiction of the High Court was not questioned, as it had been done in the Jehangir Vakil Mills case, or has been done here. We have thus to see whether in this case the question which was decided and which has been referred to the High Court admits the return of the case for a supplemental statement on the lines indicated by the High Court in the order under appeal."
}
},
{
"from_name": null,
"id": "ac3884a1e2b441e7851f428fb2317195",
"to_name": null,
"type": null,
"value": {
"end": 20022,
"labels": [
"ANALYSIS"
],
"start": 19812,
"text": "\n At the very start, one notices a difference in the question of law in this case and the Ogale Glass Works case (3), on the one hand, and the question of law in the Jehangir Vakil Mills case (2), on the other."
}
},
{
"from_name": null,
"id": "8cfe5d67173a4a4d8e24eca8788f51ce",
"to_name": null,
"type": null,
"value": {
"end": 20118,
"labels": [
"ANALYSIS"
],
"start": 20023,
"text": "In the former two cases, the question is very wide, while in the latter it is extremely narrow."
}
},
{
"from_name": null,
"id": "3e3ea70a8be14f788f55ef27d2e18050",
"to_name": null,
"type": null,
"value": {
"end": 20190,
"labels": [
"ANALYSIS"
],
"start": 20119,
"text": "This can be Been by placing the three questions side by side as below :"
}
},
{
"from_name": null,
"id": "ba2bbd39af25415d9e14e096dcca4bdf",
"to_name": null,
"type": null,
"value": {
"end": 20330,
"labels": [
"NONE"
],
"start": 20190,
"text": " (1) I. Tax Reference No. 19 of 1949 of the Bombay H. C.\n decided on September 17, 1951.\n (2) [1960] 1 S.C.R. 249.\n (3) [1955] 1 S.C.R. 185."
}
},
{
"from_name": null,
"id": "bc11b08cdee645fe88685bb4211578ec",
"to_name": null,
"type": null,
"value": {
"end": 20701,
"labels": [
"ANALYSIS"
],
"start": 20330,
"text": "\n Jehangir Vakil Mills case \" Whether the receipt of the cheques in Bhav- nagar amounted to receipt of the sale proceeds in Bhavnagar ?\"\n Ogale Glass Works case \" Whether on the facts of the case, income, profits and gains in respect of sales made to the Government of India was received in British India within the meaning of Section 4(1)(a) of the Act ?\""
}
},
{
"from_name": null,
"id": "75304b6d778f44b8a65728d2c52d43be",
"to_name": null,
"type": null,
"value": {
"end": 20920,
"labels": [
"ANALYSIS"
],
"start": 20701,
"text": "\n This case \"Whether on the facts and circumstances of the case the profits and gains in respect of the sales made to the Government of India were received by the assessee in taxable territories ?\""
}
},
{
"from_name": null,
"id": "afa9c7f0e52c4483a9dcdf92cfdd6039",
"to_name": null,
"type": null,
"value": {
"end": 21230,
"labels": [
"ANALYSIS"
],
"start": 20920,
"text": "\n It is thus quite plain that the question as framed in this case can include an enquiry into whether there was any request, express or implied, that the amount of the bills be paid by cheques so as to bring the matter within the dicta of this Court in the Ogale Glass Works case (2) or Jagdish Mills case (3)."
}
},
{
"from_name": null,
"id": "7c108e09a0544d86a14c81ef624476f2",
"to_name": null,
"type": null,
"value": {
"end": 21413,
"labels": [
"ANALYSIS"
],
"start": 21231,
"text": "The first limit to the jurisdiction of the High Court as laid down by this Court is thus not exceeded by the High Court in exercising its powers under s. 66(4) of the Income-tax Act."
}
},
{
"from_name": null,
"id": "5a1d0d871f944c8aac6c9211f21d25db",
"to_name": null,
"type": null,
"value": {
"end": 21719,
"labels": [
"ANALYSIS"
],
"start": 21414,
"text": "The question is wide enough to include the alternative line of approach that if there was a request, express or implied, to send the amount due under the bills by cheque, the post office would be the agent of the assessee, and the income was received in the taxable territory when the cheques were posted."
}
},
{
"from_name": null,
"id": "c1a081ebc8a64186b678a42fc6db42d7",
"to_name": null,
"type": null,
"value": {
"end": 21794,
"labels": [
"NONE"
],
"start": 21719,
"text": "\n(1) [1960] 1 S.C.R. 249.\n(2) [1955] 1 S.C.R. 185.\n(3) [1960] 1 S.C.R. 236."
}
},
{
"from_name": null,
"id": "754d1cefa2314557a9cd48e01390d898",
"to_name": null,
"type": null,
"value": {
"end": 21999,
"labels": [
"ANALYSIS"
],
"start": 21794,
"text": "The next question is whether the High Court has transgressed the second limitation implicit is s. 66(4), that is to say, that the question must arise out of the facts admitted and/or found by the Tribunal."
}
},
{
"from_name": null,
"id": "8f2c490f7e4440fc9e5c96071037ccd6",
"to_name": null,
"type": null,
"value": {
"end": 22274,
"labels": [
"ANALYSIS"
],
"start": 22000,
"text": "The High Court has observed that, \"......... it would be necessary for the Appellate Tribunal to find inter alia whether the cheques were sent to the assessee firm by post or by hand and what directions, if any, bad the assessee-firm given to the Department in that matter.\""
}
},
{
"from_name": null,
"id": "f6e7b7e08c5f4227adc8ab423d575d65",
"to_name": null,
"type": null,
"value": {
"end": 22475,
"labels": [
"ANALYSIS"
],
"start": 22274,
"text": "\nIf the Tribunal has to make a fresh enquiry leading to the admission of fresh evidence on the record, then this direction offends against the ruling of this Court in the Jehangir Vakil Mills case (1)."
}
},
{
"from_name": null,
"id": "3dd9e20eed76489b839fe38c5b8789f1",
"to_name": null,
"type": null,
"value": {
"end": 22713,
"labels": [
"ANALYSIS"
],
"start": 22476,
"text": "If, however, the direction be interpreted to mean that the Tribunal in giving the finding must confine itself to the facts admitted and/or found by it, the direction cannot be described as in excess of the jurisdiction of the High Court."
}
},
{
"from_name": null,
"id": "10c62695183d41f6aac8dbba8ffbb353",
"to_name": null,
"type": null,
"value": {
"end": 22987,
"labels": [
"ANALYSIS"
],
"start": 22714,
"text": "It would have been better if the High Court had given directions confined to the record of the case before the Tribunal; but, in the absence of anything expressly to the contrary, we cannot bold that the direction would lead inevitably to the admit- ting of fresh evidence."
}
},
{
"from_name": null,
"id": "38625e4714364745b183506a8fabb26a",
"to_name": null,
"type": null,
"value": {
"end": 23112,
"labels": [
"ANALYSIS"
],
"start": 22988,
"text": "This, at least, now cannot be done, since the Jehangir Vakil Mills case (1), has prohibited the admission of fresh evidence."
}
},
{
"from_name": null,
"id": "4639769d41764ae2a2129c9e9787025a",
"to_name": null,
"type": null,
"value": {
"end": 23237,
"labels": [
"RATIO"
],
"start": 23113,
"text": "In our opinion, the present case does not fall within the rule in the Jehangir Vakil Mills case (1), and is distinguishable."
}
},
{
"from_name": null,
"id": "d933f2cd157043c1911c8ff23e825c5c",
"to_name": null,
"type": null,
"value": {
"end": 23299,
"labels": [
"RPC"
],
"start": 23237,
"text": "\nIn the result, the appeal fails, and is dismissed with costs."
}
},
{
"from_name": null,
"id": "2887e08e46564381bff44bc68a15d676",
"to_name": null,
"type": null,
"value": {
"end": 23318,
"labels": [
"RPC"
],
"start": 23299,
"text": "\n Appeal dismissed."
}
},
{
"from_name": null,
"id": "69362ee4f2e14663af4cea88b8a71f11",
"to_name": null,
"type": null,
"value": {
"end": 23343,
"labels": [
"NONE"
],
"start": 23318,
"text": "\n(1) [1960] 1 S.C.R. 249."
}
}
]
}
] | 4,241 | {
"text": "PETITIONER:\nM/S. ZORASTER AND CO.\n\n Vs.\n\nRESPONDENT:\nTHE COMMISSIONER OF INCOME TAX, DELHI, AJMER, RAJASTHAN AND\n\nDATE OF JUDGMENT:\n17/04/1960\n\nBENCH:\nHIDAYATULLAH, M.\nBENCH:\nHIDAYATULLAH, M.\nDAS, S.K.\nSHAH, J.C.\n\nCITATION:\n\n1961 AIR 107 1961 SCR (1) 210\n\nCITATOR INFO : (14,26,27,32)\n (121)\nRF 1961 SC1633 (8)\n (16)\nR 1963 SC1356 (7)\n (5)\nR 1963 SC1484 (5)\n\nR 1965 SC1636\n\nR 1966 SC1466\n\nRF 1972 SC2048\n\nR 1990 SC1451\n\nACT:\nIncome-tax Reference--Power of High Court to call for\nsupplemental statement of case--Indian Income-tax Act, 1922\n(11 of 1922), s. 66(4).\n\nHEADNOTE:\nThe appellant entered into contract with Government for the\nsupply of goods, and in the assessment year 1942-43 Rs.\n10,80,653 and in the assessment year 1943-44, Rs. 7,45,336\nwere assessed as its income by the Income-tax Officer. The\nsupplies to Government were made for. Jaipur by the\nappellant, and payment was by cheques which were received at\nJaipur. The contention of the appellant was that this\nincome was received at Jaipur outside the then taxable\nterritories. This contention was not accepted by the\nIncome-tax Appellate Tribunal, Delhi. The appellant then\napplied for a reference to the High Court under s. 66(1) of\nthe Indian Income-tax Act, and by its order dated December\n10, 1952, the Tribunal referred the following question for\nthe decision of the High Court.\n\n \" Whether on the facts and circumstances of the case\nthe profits and gains in respect of the sales made to the\nGovernmentof India were received by the assessee in the taxable terri-\ntories ?\"\nThe High Court remanded the case to the Tribunal for a\nsupplemental statement of case calling for a finding on the\nquestion \" whether the cheques were sent to the assessee\nfirm by post or by hand and what directions, if any, had the\nassessee firm given to the department in the matter \". The\nappellant questioned the order of the High Court relying on\nthe decision in New Jehangir Vakil Mill's case, [1960] 1\n\nS.C.R. 249.\nHeld, that the enquiry in such cases must be to see whether\nthe question decided by the Tribunal admits of the\nconsideration of the new point as an integral or an\nincidental part thereof. The supplemental statement which\nthe Tribunal is directed to submit must arise from the facts\nadmitted and/or found by the Tribunal and should not open\nthe door to fresh evidence.\nHeld, further, that the question as framed in this case was\nwide enough to include an enquiry into whether there was any\nrequest, express or implied, that the amount of the bills be\npaid by cheques so as to bring the matter within the dicta\nof this Court in the Ogale Glass Works case, [1955] 1 S.C.R.\n185 or Jagdish Mills case, [1960] 1 S.C.R. 236.\nIn the absence of anything expressly said in the Order of\nthe High Court to the contrary, it cannot be held that the\ndirection given would lead inevitably to the admitting of\nfresh evidence as that has been prohibited by the New\nJehangir Vakil Mills case.\nThe New Jehangir Vakil Mills Ltd. v. The Commissioner of\nIncome-tax, [1960] 1 S.C.R. 249, distinguished.\nJagdish Mills Ltd. v. Commissioner of Income-tax, [1960] 1\nS.C.R. 236, Keshav Mills Co. Ltd., v. Commissioner of\nIncome-tax, [1950] 18 I.T.R. 407, Sir Sobha Singh v.\nCommissioner of Income-tax, [1950] 18 I.T.R. 998, Kirloskar\nBros. Ltd.v. Commissioner of Income-tax, [1952] 21 I.T.R.\n82, Commissioner of Income-tax v. Ogale Glass Works Ltd.\n[1955] 1 S.C.R. 185, Commissioner of Income-tax v. Kirloskar\nBros. Ltd., [1954] 25 I.T.R. 547 and Mrs. Kusumben D.\nMahadevia, Bombay v. Commissioner of Income-tax, Bombay,\n[1960] 3 S.C.R. 417, referred to.\n\nJUDGMENT:\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 30 of 1958.\nAppeal by special leave from the judgment and order dated March 24, 1955, of the Punjab High Court in Civil Reference No. 3 of 1953.\nGopal Singh, for the appellants.\nK. N. Rajagopala Sastri and D. Gupta, for the respondent.1960. August 17. The Judgment of the Court was delivered by HIDAYATULLAH J.-This appeal, by special leave of this Court, is against the judgment 'and order dated March 24, 1955, of the Punjab High Court by which the High Court, purporting to act under s. 66(4) of the Indian Income-tax Act, called for a supplemental statement of the case from the Income-tax Appellate Tribunal. The special leave granted by this Court is limited to the question whether the High Court had jurisdiction in this case to call for the supplemental statement.\nThe assessee, Messrs. S. Zoraster & Co., Jaipur, consists of three partners. Two of them are coparceners of a joint Hindu family, and the third is a stranger. They had formed this partnership in June, 1940, for the manufacture and sale of blankets, felts and other woollen articles. A deed of partnership was also executed on March 16, 1944. The assessee entered into contracts with Government for the sup- ply of goods, and in the assessment year 1942-43, Rs.\n10,80,658-0-0 and in the assessment year 1943-44, Rs.\n17,45,336-0-0 were assessed as its income by the Income-tax Officer, Contractor's Circle, New Delhi. The supplies to Government were made for. Jaipur by the assessee, and payment was by cheques which were received at Jaipur and were endorsed in favour of the joint Hindu family, which acted as the assessee's bankers. The contention of the assessee was that this income was received at Jaipur outside the then taxable territories. This contention was not accepted by the Income-tax Appellate Tribunal, Delhi.\nThe assessee then applied for a reference to the High Court under s. 66(1) of the Indian Income-tax Act, and by its order dated December 10, 1952, the Income-tax Appellate Tribunal referred the following question for the decision of the High Court: \" Whether on the facts and circumstances of the case the profits and gains in respect of the sales made to the Government of India were received by the assessee in the taxable territories ? \"The Tribunal had stated in the statement of the case as follows: \"The payment was made by the Government of India by cheques drawn on the Reserve Bank of India, Bombay Branch. These cheques were received in Jaipur.\"\nIt may be pointed out that in the contract of sale between the assessee and the Government of India, the following clause was included to determine the system of payment: \" 21. System of payment:-Unless otherwise agreed between the Purchaser and the Contractor payment for the delivery of the stores will be made by the Chief Auditor, Indian Stores Department, New Delhi, by cheque on a Government treasury in India or on a branch of the Imperial Bank of India or the Reserve Bank of India transacting Government business.\"\nIn dealing with the Reference, the High Court passed an order under s. 66(4) of the Income-tax Act observing, \"........ it would be necessary for the Appellate Tribunal to find, inter alia, whether the cheques were sent to the assessee firm by post or by hand and what directions, if any, had the assessee firm given to the Department in the matter \".\nThe High Court thereafter remanded the case to the Tribunal for a supplemental statement of the case on the lines indicated. This order is questioned on the authority of the decision of this Court in The New Jehangir Vakil Mills Ltd.\nv. The Commissioner of Income-tax(1) which, it is claimed, completely covers this case. In that case also, the High Court of Bombay had called for a supplemental statement of the case, and it was ruled by this Court that the High Court had exceeded its jurisdiction.\nBefore dealing with this question, it is necessary to go back a little, and refer briefly to some cases decided earlier than The New Jehangir Vakil Mills case (1) and Jagdish Mills Ltd. v. Commissioner of Income-tax (2), on which reliance has been placed in this case. ID (1) [1960] 1 S.C.R. 249.\n(2) [1960] 1 S.C.R. 236.Keshav Mills Co., Ltd. v. Commissioner of Income-tax (1), the High Court of Bombay called for a supplemental statement of the case, but it expressed the view that if a cheque was received by a creditor on a British Indian Bank and he gave the cheque to his bank for collection, the bank must be treated as his agent and that, on the realisation of the amount of the cheque in the taxable territory, the creditor must be regarded as having received it in the taxable territory, even if he was outside it. In Sir Sobha Singh v.\nCommissioner of Income-tax (2), it was held by the Punjab High Court that where cheques were given to a bank for purposes of collection, the receipt of the money was at the place where the bank on which the cheques were drawn was situated.\nThese views found further amplification, and were applied in two other cases by the Bombay If high Court. They are Kirloskar Bros. Ltd. v. Commissioner of Income-tax (3 ) and Ogale Glass Works Ltd. v. Commissioner of Income-tax (4).\nIn both these cases, it was held that unless the payee expressly constituted the post office as his agent, the mere posting of the cheque did not constitute the post office the agent of the payee, and that the amount of the cheque was also received at the place where the cheque was received.\nIn Kirloskar Bros. Ltd. v. Commissioner of Income-tax(3), it was held that the mere posting of the cheque in Delhi was not tantamount to the receipt of the cheque in Delhi, because the payee had not requested the Government to send the cheque by post. In Ogale Glass Works case (4), the Bombay High Court asked for a supplementary statement of the case from the Tribunal as to whether there was any express request by the assessee that the cheque should be sent by post, and held that as there was no such express request, the receipt of the money was not where the cheque was posted but at the place where the money was received.\n(1) [1950] 18 I.T.R. 407.\n(2) [1950] 18 I.T.R. 998.\n(3) [1952] 21 I.T.R. 82.\n(4) I. Tax Reference No. 10 of 1949 of the Bombay H. C.\ndecided on September 17, 1951.The last two decisions of the Bombay High Court were reversed by this Court, and it was held that an intimation to the payer \" to remit \" the amount by cheque was sufficient nomination of the post office as the agent of the payee: vide Commissioner of Income-tax v. Ogale Glass Works Ltd. (1) and Commissioner of Income-tax v. Kirloskar Bros.\nLtd. (2). Later, the principle was extended still further by this Court in Jagdish Mills case(3). It was held that where the bills had an endorsement Government should pay the amount due by cheque and the cheques were received in full satisfaction unconditionally, this constituted a sufficient implied request for the purpose of the application of the rule in Ogale Glass Works case of this Court.\nJagdish Mills case (3) and the New Jehangir Vakil Mills case (4) were decided by this Court on the same day. In the latter case, the Department had to deal with a non-resident Company which, at all material times, was situate at Bhavnagar, one of the Indian States. Cheques in payment for supplies to Government were sent from British India to Bhavnagar. The Department contended in the case that though the cheques were received at Bhavnagar, they were, in fact, cashed in British India and until such encashment, income could not be said to have been received but that on encashment in British India, the receipt of income was also in British India. The Tribunal held that the cheques having been received at Bhavnagar the income was also received there. In doing so, the Tribunal followed the Bombay decision in Kirloskar Brothers case (5). The Tribunal, however, observed that if the Bombay view which was then under appeal to this Court were not upheld, then an enquiry would have to be made as to whether the Mills' bankers at Ahmedabad acted as the Mills' agents for collecting the amount due on the cheques. The question whether the posting of the cheques from British India to Bhavnagar at the request, express or (1) [1955] 1 S.C.R. 185.\n(3) [1960] 1 S.C.R. 236.\n(2) [1954] 25 I.T.R. 547.\n(4) [1960] 1 S.C.R. 249.\n(5) [1952] 21 I.T.R. 82.implied, of the Mills or otherwise, made any difference was not considered at any stage before the case reached the High Court of Bombay. This was expressly found to be so by this Court in these words: \" The only ground urged by the Revenue at all material stages was that because the amounts which were received, from the merchants or the Government were received by cheques drawn on banks in British India which were ultimately encashed in British India, the monies could not be said to have been received in Bhavnagar though the cheques were in fact received at Bhavnagar.\"\nThe reference was held back by the Tribunal till the decision of this Court in Ogale Glass Works case (1) and Kirloskar Brothers' case (2). Even after seeing that in those two cases the request for payment by cheques to be sent by post made all the difference, the Tribunal did not frame its statement of the case or the question to include this aspect, because that aspect of the matter was never considered before.' The question referred was thus limited to the legal effect of the receipt of the cheques at Bhavnagar without advertence to the fact whether the cheques were so sent by post at the request, express or implied, of the Mills. The question framed was: \" Whether the receipt of the cheques in Bhavnagar amounted to receipt of the sale proceeds in Bhavnagar ? \"\nThe question as framed and the statement which accompanied it brought into controversy the only point till then considered by the Tribunal and the taxing authorities. When the case *as heard by it, the High Court desired to consider it from the angle of the Kirloskar Brothers(2) and Ogale Glass Works (1) cases. It called for a supplemental statement of the case. In doing so, the High Court went beyond the ambit of the controversy as it had existed till then and also the statement of the case and the question.\nThe High Court directed the Tribunal as follows: \"On the finding of the Tribunal that all the cheques were received in Bhavnagar, the Tribunal to find (1) [1955] 1 S.C.R. 185.\n(2) [1954] 25 I.T.R. 547.what portion of these cheques were received by post, whether there was any request by the assessee, express or implied, that the amounts which are the subject matter of these cheques should be remitted to Bhavnagar by post.\"\nIn repelling the objection that such an enquiry was alien to the point decided by the Tribunal and might require fresh evidence, the High Court justified itself by saying: \" But we cannot shut out the necessary inquiry which even from our own point of view is necessary to be made in order that we should satisfactorily answer the question raised in the Reference. It must not be forgotten that under section 66(4) of the Income-tax Act we have a right independently of the conduct of the parties to direct the Tribunal to state further facts so that we may properly exercise our own advisory jurisdiction.\"\nThis Court pointed out that the High Court exceeded its jurisdiction under s. 66(4) of the Indian Income-tax Act.\nIt was observed: \" If the question actually referred does not bring out clearly the real issue between the parties, the High Court may reframe the question so that the matter actually agitated before the Tribunal may be raised before the High Court. But s. 66(4) does not enable the High Court to raise a new question of law which does not arise out of the Tribunal's order and direct the Tribunal to investigate new or further facts necessary to determine this new question which had not been referred to it under s. 66(1) or s. 66(2) and direct the Tribunal to submit a supplementary statement of the case.\"\nIt was also pointed out that the facts admitted and/ or found by the Tribunal could alone be the foundation of the question of law which might be said to arise out of the Tribunal's order. The case thus set two limits to the jurisdiction of the High Court under s. 66(4), and they were that the advisory jurisdiction was confined (a) to the facts on the record and/or found by the Tribunal and (b) the question which 218 would arise from the Tribunal's order. It was pointed out by this Court that it was not open to the High Court to order a fresh enquiry into new facts with a view to amplifying the record and further that it was equally not open to the High Court to decide a question of law, which did not arise out of the Tribunal's order. This was illustrated by comparing the question as framed by the Tribunal with the question which the High Court desired to decide. Whereas the Tribunal had only referred the question: \" Whether the receipt of the cheques at Bhavnagar amounted to receipt of sale proceeds in Bhavnagar ?\", what the High Court intended deciding was: \" Whether the posting of the cheques in British India at the request express or implied of the appellant, amounted to receipt of sale proceeds in British India ?\"\nThese were two totally different questions, and it was held that the High-Court could not decide a matter which was different from that decided by the Tribunal, nor call for a statement of the case bearing on this new matter.\nThe proposition laid down in the Jehangir Vakil Mills case (1), finds support from yet another case of this Court decided very recently. In Kusumben D. Mahadevia v.\nCommissioner of Income-tax Bombay (2), it was observed: \" In our opinion, the objection of the assessee is well-founded. The Tribunal did not address itself to the question whether the Concessions Order applied to the assessee. It decided the question of assessability on the short ground that the income had not arisen in Baroda but in British India. That aspect of the matter has not been touched by the Bombay High Court. The latter has, on the other hand, considered whether the Concessions Order applies to the assessee, a matter not touched by the Tribunal.\nThus, though the result is the same so far as the assessment is concerned, the grounds of decision are entirely different.\n(1) [1960] 1 S.C.R. 249.\n(2) [1960] 3 S.C.R. 417,421.Section 66 of the Income-tax Act which confers jurisdiction upon the High Court only permits a reference of a question of law arising out of the order of the Tribunal. It does not confer jurisdiction on the High Court to decide a different question of law not arising out of such order. It is possible that the same question of law may involve different approaches for its solution, and the High Court may amplify the question to take in all the approaches. But the question must still be the one which was before the Tribunal and was decided by it. It must not be an entirely different question which the Tribunal never considered.\"\n It follows from this that the enquiry in such cases must be to see whether the question decided by the Tribunal admits the consideration of the new point as an integral or even an incidental part thereof. Even so, the supplemental statement which the Tribunal is directed to submit must arise from the facts admitted and/or found by the Tribunal, and should not open the door to fresh evidence. The fact that in Ogale Glass Works case (1), the Bombay High Court had asked for a supplemental statement in the same way as in the Jehangir Vakil Mills case (2 ), and this Court did not rule out the new matter, cannot help the assessee in the present case, because the jurisdiction of the High Court was not questioned, as it had been done in the Jehangir Vakil Mills case, or has been done here. We have thus to see whether in this case the question which was decided and which has been referred to the High Court admits the return of the case for a supplemental statement on the lines indicated by the High Court in the order under appeal.\n At the very start, one notices a difference in the question of law in this case and the Ogale Glass Works case (3), on the one hand, and the question of law in the Jehangir Vakil Mills case (2), on the other. In the former two cases, the question is very wide, while in the latter it is extremely narrow. This can be Been by placing the three questions side by side as below : (1) I. Tax Reference No. 19 of 1949 of the Bombay H. C.\n decided on September 17, 1951.\n (2) [1960] 1 S.C.R. 249.\n (3) [1955] 1 S.C.R. 185.\n Jehangir Vakil Mills case \" Whether the receipt of the cheques in Bhav- nagar amounted to receipt of the sale proceeds in Bhavnagar ?\"\n Ogale Glass Works case \" Whether on the facts of the case, income, profits and gains in respect of sales made to the Government of India was received in British India within the meaning of Section 4(1)(a) of the Act ?\"\n This case \"Whether on the facts and circumstances of the case the profits and gains in respect of the sales made to the Government of India were received by the assessee in taxable territories ?\"\n It is thus quite plain that the question as framed in this case can include an enquiry into whether there was any request, express or implied, that the amount of the bills be paid by cheques so as to bring the matter within the dicta of this Court in the Ogale Glass Works case (2) or Jagdish Mills case (3). The first limit to the jurisdiction of the High Court as laid down by this Court is thus not exceeded by the High Court in exercising its powers under s. 66(4) of the Income-tax Act. The question is wide enough to include the alternative line of approach that if there was a request, express or implied, to send the amount due under the bills by cheque, the post office would be the agent of the assessee, and the income was received in the taxable territory when the cheques were posted.\n(1) [1960] 1 S.C.R. 249.\n(2) [1955] 1 S.C.R. 185.\n(3) [1960] 1 S.C.R. 236.The next question is whether the High Court has transgressed the second limitation implicit is s. 66(4), that is to say, that the question must arise out of the facts admitted and/or found by the Tribunal. The High Court has observed that, \"......... it would be necessary for the Appellate Tribunal to find inter alia whether the cheques were sent to the assessee firm by post or by hand and what directions, if any, bad the assessee-firm given to the Department in that matter.\"\nIf the Tribunal has to make a fresh enquiry leading to the admission of fresh evidence on the record, then this direction offends against the ruling of this Court in the Jehangir Vakil Mills case (1). If, however, the direction be interpreted to mean that the Tribunal in giving the finding must confine itself to the facts admitted and/or found by it, the direction cannot be described as in excess of the jurisdiction of the High Court. It would have been better if the High Court had given directions confined to the record of the case before the Tribunal; but, in the absence of anything expressly to the contrary, we cannot bold that the direction would lead inevitably to the admit- ting of fresh evidence. This, at least, now cannot be done, since the Jehangir Vakil Mills case (1), has prohibited the admission of fresh evidence. In our opinion, the present case does not fall within the rule in the Jehangir Vakil Mills case (1), and is distinguishable.\nIn the result, the appeal fails, and is dismissed with costs.\n Appeal dismissed.\n(1) [1960] 1 S.C.R. 249."
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "78dd987f88ba4c3b97f627cdb50db504",
"to_name": null,
"type": null,
"value": {
"end": 386,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": " IN THE HIGH COURT OF KARNATAKA AT BANGALORE\n\n DATED THIS THE 23rd DAY OF OCTOBER 2013\n\n BEFORE\n\n THE HON'BLE MR. JUSTICE ANAND BYRAREDDY\n\n CRIMINAL APPEAL NO.1877 OF 2006\n\nBetween:\n\n1. B.L.Basavaraju\n S/o Lingappa\n Age: 35 years\n\n2. B.L.Ramesh\n S/o Lingappa\n Age: 40 years\n\n3. B.L.Chandrashekara\n S/o Lingappa\n Age:"
}
},
{
"from_name": null,
"id": "f540fb99bc9340a08382c17469b86718",
"to_name": null,
"type": null,
"value": {
"end": 395,
"labels": [
"PREAMBLE"
],
"start": 387,
"text": "35 years"
}
},
{
"from_name": null,
"id": "65f3ce6d70024c10a8c28a03c3f547a0",
"to_name": null,
"type": null,
"value": {
"end": 598,
"labels": [
"PREAMBLE"
],
"start": 395,
"text": "\n\n4. Manjunatha\n S/o Shivananjappa\n Age: 35 years\n\n5. Suresha\n S/o Shivananjappa\n Age: 35 years\n\n6. Chandraiah\n S/o Halaiah, Age: 35 years\n\n7. Gurulingappa\n S/o Shivananjappa\n Age: 40 years"
}
},
{
"from_name": null,
"id": "f57191517fa543aeb0172d0f14c3dec7",
"to_name": null,
"type": null,
"value": {
"end": 1009,
"labels": [
"PREAMBLE"
],
"start": 598,
"text": "\n\n8. Dharanesha\n S/o Mallikarjuna\n Age: 26 years\n\nAll are r/o Byragondanahalli ... Appellants\nBanavara Hobli\nArasikere Taluk\n\n(By Sri.Hashmath Pasha, Adv.)\n\nAnd:\n\nState of Karnataka ... Respondent\nBy Banavara Police\nArasikere Taluk\nHassan District\nRep by learned State\nPublic Prosecutor\n\n(By Sri.B.T.Venkatesh, SPP-II)\n ---\n\n "
}
},
{
"from_name": null,
"id": "1c3d722c2e204d768e7c17ca3c35b8e7",
"to_name": null,
"type": null,
"value": {
"end": 1293,
"labels": [
"PREAMBLE"
],
"start": 1009,
"text": "This Criminal Appeal is filed under Section 374(2) Cr.P.C.\nagainst the judgment dated 14.9.2006 passed by Addl. S.J.,\nHassan in S.C.No.158/2005 convicting the appellants / accused\nfor the offence punishable under Sections 143, 148, 341 and 326\nr/w Section 149 of IPC and etc.\n\n "
}
},
{
"from_name": null,
"id": "99cfcf2c8da54c12a19ef0e114324c7f",
"to_name": null,
"type": null,
"value": {
"end": 1416,
"labels": [
"PREAMBLE"
],
"start": 1293,
"text": "This Appeal coming on for Hearing this day, the Court\ndelivered the following:-\n\n O R D E R"
}
},
{
"from_name": null,
"id": "401249d6b6e34e899377fe7d3fd5c861",
"to_name": null,
"type": null,
"value": {
"end": 1509,
"labels": [
"NONE"
],
"start": 1416,
"text": "\n Heard the learned counsel for the appellants and the learned State Public Prosecutor."
}
},
{
"from_name": null,
"id": "8f8889dfec994a7a8085f26e77313b20",
"to_name": null,
"type": null,
"value": {
"end": 1700,
"labels": [
"RLC"
],
"start": 1511,
"text": "2. The present appellants were accused before the Trial Court and have been convicted for the offences punishable under Sections 143, 148, 341, 326 read with 149 of Indian Penal Code, 1908."
}
},
{
"from_name": null,
"id": "c4b17e90ae3e4b5d85a7d1d47a645af1",
"to_name": null,
"type": null,
"value": {
"end": 1745,
"labels": [
"NONE"
],
"start": 1702,
"text": "3. The facts leading up to this appeal are:"
}
},
{
"from_name": null,
"id": "ef4f871b4afe41a8a21f1a4ae8df2481",
"to_name": null,
"type": null,
"value": {
"end": 1858,
"labels": [
"FAC"
],
"start": 1745,
"text": " It was the case of the prosecution that Chidananda, the complainant, was a resident of Byragondanahalli Village."
}
},
{
"from_name": null,
"id": "4f361c800a7d421b8851fd0d5525a9e2",
"to_name": null,
"type": null,
"value": {
"end": 2023,
"labels": [
"FAC"
],
"start": 1859,
"text": "He had gone to Arasikere on 23.2.2005 in order to see off his wife who was travelling in a bus and thereafter he was returning on his motorcycle at about 10.30 a.m."
}
},
{
"from_name": null,
"id": "e3845b84af804382821096bc6599ab26",
"to_name": null,
"type": null,
"value": {
"end": 2447,
"labels": [
"FAC"
],
"start": 2024,
"text": "When he neared his village Bendekere, he saw a motor van bearing registration No.KA.14 3474 being driven at high speed on the wrong side of the road approaching him and therefore, he tried to avoid the vehicle by turning his motorcycle, but, however, accused No.1 Basavaraju who was driving the vehicle intercepted his motorcycle and dashed against him, as a result of which, plaintiff is said to have fallen to the ground."
}
},
{
"from_name": null,
"id": "19265388a0f3469d8b2b8eaa297ca705",
"to_name": null,
"type": null,
"value": {
"end": 2897,
"labels": [
"FAC"
],
"start": 2448,
"text": "Thereafter, the accused had emerged from the motor van and on seeing them, the plaintiff picked himself up and started running, but accused No.1 Basavaraju who was holding an iron rod, chased him and assaulted him on the right leg with it, as a result of which the complainant fell to the ground at which time Dharanesha accused No.8 and Ramesha accused No.2 had assaulted him with wooden clubs and accused Nos.3 to 5 assaulted him with their hands."
}
},
{
"from_name": null,
"id": "12b0d32f4d224447a05ec2de97c30646",
"to_name": null,
"type": null,
"value": {
"end": 3102,
"labels": [
"FAC"
],
"start": 2897,
"text": "\n 4. It was claimed by the prosecution that accused No.1 Basavaraju had stood for the Panchayat elections and one Ramesha was his rival candidate and the complainant had supported Ramesha at the elections."
}
},
{
"from_name": null,
"id": "ef10c98cd78e4f20b3c94a5d8fd9664f",
"to_name": null,
"type": null,
"value": {
"end": 3224,
"labels": [
"FAC"
],
"start": 3103,
"text": "The accused were peeved by the fact that he had supported Ramesha and therefore, the pre- meditated attack on the victim."
}
},
{
"from_name": null,
"id": "299b40a6a24e45daa6e2e747c151115f",
"to_name": null,
"type": null,
"value": {
"end": 3676,
"labels": [
"FAC"
],
"start": 3225,
"text": "It is also stated that Basavaraju, apart from assaulting the victim with an iron rod, had picked up a size stone and attempted to drop it on the head of the complainant when he was lying on the ground, but for the complainant moving aside it would have been dropped on his head, however since he had raised his hands to protect himself, the stone fell on his right little finger and also left forehand, as a result of which, he had sustained injuries."
}
},
{
"from_name": null,
"id": "df8cbab5bfef48f4874600b12c0ca430",
"to_name": null,
"type": null,
"value": {
"end": 3879,
"labels": [
"FAC"
],
"start": 3677,
"text": "At that point of time, it is stated that Kumaranna, Marulappa, Jagadeesha and Rajanna had come to his rescue and it is on seeing these people that the accused had fled in the car in which they had come."
}
},
{
"from_name": null,
"id": "9df25352caf64377835688eac40b1e93",
"to_name": null,
"type": null,
"value": {
"end": 4248,
"labels": [
"FAC"
],
"start": 3880,
"text": "The complainant was shifted to Arasikere hospital for treatment and thereafter a statement was recorded by the Station House Officer on 23.2.2005 at about 11.30 a.m. and thereafter, further proceedings were taken, accused were arrested, chargesheeted and later charges were also framed against the accused to which they have pleaded not guilty and claimed to be tried."
}
},
{
"from_name": null,
"id": "f7aa5b522ed94729b4a1e818dd3d4fc8",
"to_name": null,
"type": null,
"value": {
"end": 4395,
"labels": [
"ISSUE"
],
"start": 4249,
"text": "The Court below, after having heard both the parties and after complying with other proceedings, framed the following points for consideration: 1."
}
},
{
"from_name": null,
"id": "a0e6b88fce2f40ae947957b6e1e40466",
"to_name": null,
"type": null,
"value": {
"end": 4814,
"labels": [
"ISSUE"
],
"start": 4396,
"text": "\"Whether the prosecution proves that on 23.2.2005 at about 10.30 p.m., near Nagasamudra Shikharanya High School situated at B.H.Road of Bendekere Village the accused persons had formed themselves into an unlawful assembly in order to commit the offences in prosecution of common object of such unlawful assembly and thereby committed the offence punishable under Section 143 read with Section 149 of Indian Penal Code?"
}
},
{
"from_name": null,
"id": "1e243459eace41d29620c3accaa84775",
"to_name": null,
"type": null,
"value": {
"end": 5122,
"labels": [
"ISSUE"
],
"start": 4816,
"text": "2. Whether the prosecution proves that on the above said date, time and place in prosecution of common object of unlawful assembly the accused persons have committed rioting armed with deadly weapons and thereby committed the offence punishable under Section 148 read with Section 149 of Indian Penal Code?"
}
},
{
"from_name": null,
"id": "f0e21b06080f4359a5c5145239fdf607",
"to_name": null,
"type": null,
"value": {
"end": 5469,
"labels": [
"ISSUE"
],
"start": 5126,
"text": "3. Whether the prosecution proves that on the above said date, time and place in prosecution of common object of unlawful assembly have wrongfully restrained Chidananda from proceeding in the direction in which he has a right to proceed and thereby committed the offence punishable under Section 341 read with Section 149 at Indian Penal Code?"
}
},
{
"from_name": null,
"id": "a6c1ef81563042bcb4849351359d9f5b",
"to_name": null,
"type": null,
"value": {
"end": 5756,
"labels": [
"ISSUE"
],
"start": 5469,
"text": "\n 4. Whether the prosecution proves on the above said date, time and place in prosecution of common object of unlawful assembly have attempted to commit the murder of Chidananda and thereby committed the offence punishable under Section 307 read with Section 149 of Indian Penal Code?\""
}
},
{
"from_name": null,
"id": "cf7e99997b974f61be279323d051eedd",
"to_name": null,
"type": null,
"value": {
"end": 6400,
"labels": [
"RLC"
],
"start": 5756,
"text": "\n 5. The Court below held point Nos.1 to 3 in the affirmative and point No.4 in the negative and convicted the accused to undergo simple imprisonment for three months and to pay a fine of `.100/- for the offence punishable under Section 143 of IPC, to undergo rigorous imprisonment for three months and to pay a fine of `.500/- for the offence punishable under Section 148 of IPC, to undergo rigorous imprisonment for six months and to pay a fine of `.500/- for the offence punishable under Section 341 of IPC and to undergo rigorous imprisonment for two years and to pay a fine of `.1,000/- for the offence punishable under Section 326 of IPC."
}
},
{
"from_name": null,
"id": "ad4679b574b44889996fa548527eda43",
"to_name": null,
"type": null,
"value": {
"end": 6459,
"labels": [
"RLC"
],
"start": 6401,
"text": "It is this which is under challenge in the present appeal."
}
},
{
"from_name": null,
"id": "4215b2fb15724db9807264a1f0e59d54",
"to_name": null,
"type": null,
"value": {
"end": 6697,
"labels": [
"ARG_PETITIONER"
],
"start": 6459,
"text": "\n 6. The learned counsel for the appellants would first of all draw attention to the sequence of events as narrated, to demonstrate that the exaggerated version of the prosecution is not forthcoming from a bare reading of the allegations."
}
},
{
"from_name": null,
"id": "5be8b26936894f31a3051afeb83c279a",
"to_name": null,
"type": null,
"value": {
"end": 6828,
"labels": [
"ARG_PETITIONER"
],
"start": 6698,
"text": "It is alleged that there were 8 accused, most of whom were armed with deadly weapons; that the victim was assaulted with the same."
}
},
{
"from_name": null,
"id": "2ad03ed1c80842dfad172a2036fa46d4",
"to_name": null,
"type": null,
"value": {
"end": 7036,
"labels": [
"ARG_PETITIONER"
],
"start": 6829,
"text": "Given the description of the weapons and the same which were produced as material objects, it is difficult to accept that the injuries caused were only in the nature of abrasions, which were minor in nature."
}
},
{
"from_name": null,
"id": "382ff0af2bb84381af9b94bdc125832a",
"to_name": null,
"type": null,
"value": {
"end": 7380,
"labels": [
"ARG_PETITIONER"
],
"start": 7037,
"text": "Except that an injury defined as a fracture is vaguely mentioned in the wound certificate, there is no material evidence placed on record to indicate that the victim had suffered any kind of fracture and there is also no material placed on record to indicate that the victim was an inpatient and had undergone treatment for any serious injury."
}
},
{
"from_name": null,
"id": "de199a66b8604c6384c29911e988722a",
"to_name": null,
"type": null,
"value": {
"end": 7481,
"labels": [
"ARG_PETITIONER"
],
"start": 7381,
"text": "Though there is a claim that he was an inpatient, no material evidence is produced before the Court."
}
},
{
"from_name": null,
"id": "516108aaf1fb477b90ea177dc934fc89",
"to_name": null,
"type": null,
"value": {
"end": 7739,
"labels": [
"ARG_PETITIONER"
],
"start": 7482,
"text": "On the other hand, there is evidence on record to indicate that the victim had exercised his franchise at the elections held in the village, two days after the incident, which was against the statement that he was an inpatient for a week after the incident."
}
},
{
"from_name": null,
"id": "7cba6a090b4d4b0aa5f693c29c1d849d",
"to_name": null,
"type": null,
"value": {
"end": 8996,
"labels": [
"ARG_PETITIONER"
],
"start": 7740,
"text": "In this regard, though the learned counsel for the appellants would take this Court through the further details of the alleged incident as claimed by the prosecution to demonstrate that it was impossible for a large number of 8 people to have simultaneously attacked the victim and to only cause minor injuries, when most were armed with deadly weapons and therefore, would submit that there is a background which is not also in dispute of the victim having established a fair price depot and accused No.1 also having established a fair price depot and there being unhealthy competition between them and a case and counter case being filed for the irregularities in the fair price depot which lead to enemity between the two and further there being also political rivalry, it was just to foist a false case against the appellants in order to prevent their participation in the elections, that the entire case has been engineered and therefore, he would submit that the injuries which are described in the wound certificate are from a mere fall from a vehicle which has been used to the advantage of the victim in claiming that there was a criminal assault, as a result of which he has suffered the injuries and therefore, there is no substance in the same."
}
},
{
"from_name": null,
"id": "e78c962aa3cb4e6f9b325d9044a8deb0",
"to_name": null,
"type": null,
"value": {
"end": 9129,
"labels": [
"ARG_PETITIONER"
],
"start": 8996,
"text": "\n 7. The learned counsel would also point out that the entire findings of the Trial Court are based on the evidence tendered by PW-6."
}
},
{
"from_name": null,
"id": "f89afa60d2e943c1900abe8eedb7237a",
"to_name": null,
"type": null,
"value": {
"end": 9769,
"labels": [
"ARG_PETITIONER"
],
"start": 9130,
"text": "PW-6, in his evidence, has narrated that he was in his house when he heard the collusion and he had come out of the house at which time, the other witnesses namely PWs-2 and 4 who had also joined him and had witnessed the actual commission of the offence but the learned counsel would point out that if, going by the sequence of events, as claimed by the prosecution, if it is to be believed that PW-6 first heard the maruti van crashing into the motorcycle and on hearing the collision if he had come out, the assault by the accused if at all had occurred, would have been completed by the time he positioned himself to witness the scene."
}
},
{
"from_name": null,
"id": "3decb5d537024957807ec5df7e0172a3",
"to_name": null,
"type": null,
"value": {
"end": 9904,
"labels": [
"ARG_PETITIONER"
],
"start": 9769,
"text": "\nBut he had claimed that, each of the witnesses had been in a position to record as to the overt acts committed by each of the accused."
}
},
{
"from_name": null,
"id": "5e101aa3d930497887172d5b5b908310",
"to_name": null,
"type": null,
"value": {
"end": 10089,
"labels": [
"ARG_PETITIONER"
],
"start": 9905,
"text": "This is difficult to accept, especially in the light of the circumstance that PWs-2 and 4 who also claimed to be witness to the incident, had not supported the case of the prosecution."
}
},
{
"from_name": null,
"id": "98a1f974a44a46f28416728bc41216d7",
"to_name": null,
"type": null,
"value": {
"end": 10326,
"labels": [
"ARG_PETITIONER"
],
"start": 10089,
"text": "\nTherefore, the entire prosecution case in so far as the allegation of the complainant being sought to be supported by the evidence of PW-6 cannot be accepted as enabling the prosecution to establish the case beyond all reasonable doubt."
}
},
{
"from_name": null,
"id": "21f4a7029bcd41178eb7a01faa33fd64",
"to_name": null,
"type": null,
"value": {
"end": 10778,
"labels": [
"ARG_PETITIONER"
],
"start": 10327,
"text": "In the absence of cogent medical evidence to support the so called serious injuries suffered by the victim and in the absence of cogent evidence in support of the case of the prosecution, except that of PW-6 and the self- serving evidence of the plaintiff, the prosecution has not established its case as found by the Trial Court and therefore, would submit that the conviction has lead to a miscarriage of justice and seeks intervention of the Court."
}
},
{
"from_name": null,
"id": "65d2ea80f2a945d7a0fb14bf88679b12",
"to_name": null,
"type": null,
"value": {
"end": 10875,
"labels": [
"ARG_PETITIONER"
],
"start": 10779,
"text": "While the learned State Public Prosecutor would seek to justify the judgment of the Trial Court."
}
},
{
"from_name": null,
"id": "3f322e8548864a93a61b2f84d1aba793",
"to_name": null,
"type": null,
"value": {
"end": 11290,
"labels": [
"ANALYSIS"
],
"start": 10877,
"text": "8. In the light of the above rival contentions and from the material on record, as rightly contended by the learned counsel for the appellants, if the case of the prosecution is to be accepted and the accused having employed deadly weapons to attack the victim and if indeed he had been assaulted in the manner as claimed, the injuries suffered by the complainant would not have been restricted to mere abrasions."
}
},
{
"from_name": null,
"id": "100a5329bd8847c6b367daaaadd4a0fe",
"to_name": null,
"type": null,
"value": {
"end": 11480,
"labels": [
"ANALYSIS"
],
"start": 11291,
"text": "Though there is mention of a fracture which is only vaguely indicated in the wound certificate, there is no other material evidence as regard to the victim having suffered serious fracture."
}
},
{
"from_name": null,
"id": "d2b1151708fc474d911352df76fe0895",
"to_name": null,
"type": null,
"value": {
"end": 11664,
"labels": [
"ANALYSIS"
],
"start": 11481,
"text": "There is also no material evidence of the victim having undergone treatment as an inpatient, though the claim made by him in the course of evidence, it is unchallenged by the accused."
}
},
{
"from_name": null,
"id": "cd491335a5274f2dbe61db97fabc956f",
"to_name": null,
"type": null,
"value": {
"end": 12241,
"labels": [
"ANALYSIS"
],
"start": 11665,
"text": "Secondly, the sequence of events, as projected by the prosecution on the basis of the complainant's statement and which is sought to be supported by PW-6, does not also evoke the confidence of this Court for the manner in which the incident is stated to have occurred to be seconded by the statement of PW-6, is difficult to accept since the incident, if it had indeed taken place, would have occurred at a pace so swift that it would be difficult for an eye witness to record the overt acts of each of the 8 accused persons and to state the same with any degree of certainty."
}
},
{
"from_name": null,
"id": "bef4eada9b93446ab8e0f45240d3577b",
"to_name": null,
"type": null,
"value": {
"end": 12463,
"labels": [
"RATIO"
],
"start": 12242,
"text": "Therefore, it is difficult to accept that the moment the vehicle on which the victim was travelling was intercepted, PW-6 having run out of his house and having been in a position to witness the incident as it unravelled."
}
},
{
"from_name": null,
"id": "ba90ed4cc11b4fcabbabf71ef2925cc6",
"to_name": null,
"type": null,
"value": {
"end": 12734,
"labels": [
"RATIO"
],
"start": 12464,
"text": "Therefore, it is evident that PW-6 has been cited as a witness, only to lend lip support to the case of the prosecution and going by the background that there was political enemity between the two groups, it is an apparent attempt to make out a case against the accused."
}
},
{
"from_name": null,
"id": "34f36351a4c04c54b0e11c8dad92c111",
"to_name": null,
"type": null,
"value": {
"end": 12914,
"labels": [
"RATIO"
],
"start": 12735,
"text": "Therefore, given the sequence of events and the material on record, this Court does not find that the Trial Court was justified in convicting the accused for the offences alleged."
}
},
{
"from_name": null,
"id": "68d85cf9a1e142cfae6509ecbc6dcf9b",
"to_name": null,
"type": null,
"value": {
"end": 12951,
"labels": [
"RPC"
],
"start": 12914,
"text": "\n Accordingly, the appeal is allowed."
}
},
{
"from_name": null,
"id": "fdcbd0c5ab0949cea0e2e8f44a178adf",
"to_name": null,
"type": null,
"value": {
"end": 12993,
"labels": [
"RPC"
],
"start": 12952,
"text": "Judgment of the Court below is set aside."
}
},
{
"from_name": null,
"id": "988b94d0b177421186a1ae1fe4ede74b",
"to_name": null,
"type": null,
"value": {
"end": 13023,
"labels": [
"RPC"
],
"start": 12994,
"text": "The appellants are acquitted."
}
},
{
"from_name": null,
"id": "079af5640a9a486aa969af90f5c87caa",
"to_name": null,
"type": null,
"value": {
"end": 13072,
"labels": [
"RPC"
],
"start": 13024,
"text": "The fine amount, if any paid, shall be refunded."
}
},
{
"from_name": null,
"id": "99f1653a262c48deb2bcecb5148a1668",
"to_name": null,
"type": null,
"value": {
"end": 13100,
"labels": [
"RPC"
],
"start": 13073,
"text": "Bail bonds stand cancelled."
}
},
{
"from_name": null,
"id": "88bcd727a7bc480fb509093b618f14ad",
"to_name": null,
"type": null,
"value": {
"end": 13115,
"labels": [
"NONE"
],
"start": 13100,
"text": "\n Sd/- JUDGE RV"
}
}
]
}
] | 4,230 | {
"text": " IN THE HIGH COURT OF KARNATAKA AT BANGALORE\n\n DATED THIS THE 23rd DAY OF OCTOBER 2013\n\n BEFORE\n\n THE HON'BLE MR. JUSTICE ANAND BYRAREDDY\n\n CRIMINAL APPEAL NO.1877 OF 2006\n\nBetween:\n\n1. B.L.Basavaraju\n S/o Lingappa\n Age: 35 years\n\n2. B.L.Ramesh\n S/o Lingappa\n Age: 40 years\n\n3. B.L.Chandrashekara\n S/o Lingappa\n Age: 35 years\n\n4. Manjunatha\n S/o Shivananjappa\n Age: 35 years\n\n5. Suresha\n S/o Shivananjappa\n Age: 35 years\n\n6. Chandraiah\n S/o Halaiah, Age: 35 years\n\n7. Gurulingappa\n S/o Shivananjappa\n Age: 40 years\n\n8. Dharanesha\n S/o Mallikarjuna\n Age: 26 years\n\nAll are r/o Byragondanahalli ... Appellants\nBanavara Hobli\nArasikere Taluk\n\n(By Sri.Hashmath Pasha, Adv.)\n\nAnd:\n\nState of Karnataka ... Respondent\nBy Banavara Police\nArasikere Taluk\nHassan District\nRep by learned State\nPublic Prosecutor\n\n(By Sri.B.T.Venkatesh, SPP-II)\n ---\n\n This Criminal Appeal is filed under Section 374(2) Cr.P.C.\nagainst the judgment dated 14.9.2006 passed by Addl. S.J.,\nHassan in S.C.No.158/2005 convicting the appellants / accused\nfor the offence punishable under Sections 143, 148, 341 and 326\nr/w Section 149 of IPC and etc.\n\n This Appeal coming on for Hearing this day, the Court\ndelivered the following:-\n\n O R D E R\n Heard the learned counsel for the appellants and the learned State Public Prosecutor.\n 2. The present appellants were accused before the Trial Court and have been convicted for the offences punishable under Sections 143, 148, 341, 326 read with 149 of Indian Penal Code, 1908.\n 3. The facts leading up to this appeal are: It was the case of the prosecution that Chidananda, the complainant, was a resident of Byragondanahalli Village. He had gone to Arasikere on 23.2.2005 in order to see off his wife who was travelling in a bus and thereafter he was returning on his motorcycle at about 10.30 a.m. When he neared his village Bendekere, he saw a motor van bearing registration No.KA.14 3474 being driven at high speed on the wrong side of the road approaching him and therefore, he tried to avoid the vehicle by turning his motorcycle, but, however, accused No.1 Basavaraju who was driving the vehicle intercepted his motorcycle and dashed against him, as a result of which, plaintiff is said to have fallen to the ground. Thereafter, the accused had emerged from the motor van and on seeing them, the plaintiff picked himself up and started running, but accused No.1 Basavaraju who was holding an iron rod, chased him and assaulted him on the right leg with it, as a result of which the complainant fell to the ground at which time Dharanesha accused No.8 and Ramesha accused No.2 had assaulted him with wooden clubs and accused Nos.3 to 5 assaulted him with their hands.\n 4. It was claimed by the prosecution that accused No.1 Basavaraju had stood for the Panchayat elections and one Ramesha was his rival candidate and the complainant had supported Ramesha at the elections. The accused were peeved by the fact that he had supported Ramesha and therefore, the pre- meditated attack on the victim. It is also stated that Basavaraju, apart from assaulting the victim with an iron rod, had picked up a size stone and attempted to drop it on the head of the complainant when he was lying on the ground, but for the complainant moving aside it would have been dropped on his head, however since he had raised his hands to protect himself, the stone fell on his right little finger and also left forehand, as a result of which, he had sustained injuries. At that point of time, it is stated that Kumaranna, Marulappa, Jagadeesha and Rajanna had come to his rescue and it is on seeing these people that the accused had fled in the car in which they had come. The complainant was shifted to Arasikere hospital for treatment and thereafter a statement was recorded by the Station House Officer on 23.2.2005 at about 11.30 a.m. and thereafter, further proceedings were taken, accused were arrested, chargesheeted and later charges were also framed against the accused to which they have pleaded not guilty and claimed to be tried. The Court below, after having heard both the parties and after complying with other proceedings, framed the following points for consideration: 1. \"Whether the prosecution proves that on 23.2.2005 at about 10.30 p.m., near Nagasamudra Shikharanya High School situated at B.H.Road of Bendekere Village the accused persons had formed themselves into an unlawful assembly in order to commit the offences in prosecution of common object of such unlawful assembly and thereby committed the offence punishable under Section 143 read with Section 149 of Indian Penal Code?\n 2. Whether the prosecution proves that on the above said date, time and place in prosecution of common object of unlawful assembly the accused persons have committed rioting armed with deadly weapons and thereby committed the offence punishable under Section 148 read with Section 149 of Indian Penal Code?\n 3. Whether the prosecution proves that on the above said date, time and place in prosecution of common object of unlawful assembly have wrongfully restrained Chidananda from proceeding in the direction in which he has a right to proceed and thereby committed the offence punishable under Section 341 read with Section 149 at Indian Penal Code?\n 4. Whether the prosecution proves on the above said date, time and place in prosecution of common object of unlawful assembly have attempted to commit the murder of Chidananda and thereby committed the offence punishable under Section 307 read with Section 149 of Indian Penal Code?\"\n 5. The Court below held point Nos.1 to 3 in the affirmative and point No.4 in the negative and convicted the accused to undergo simple imprisonment for three months and to pay a fine of `.100/- for the offence punishable under Section 143 of IPC, to undergo rigorous imprisonment for three months and to pay a fine of `.500/- for the offence punishable under Section 148 of IPC, to undergo rigorous imprisonment for six months and to pay a fine of `.500/- for the offence punishable under Section 341 of IPC and to undergo rigorous imprisonment for two years and to pay a fine of `.1,000/- for the offence punishable under Section 326 of IPC. It is this which is under challenge in the present appeal.\n 6. The learned counsel for the appellants would first of all draw attention to the sequence of events as narrated, to demonstrate that the exaggerated version of the prosecution is not forthcoming from a bare reading of the allegations. It is alleged that there were 8 accused, most of whom were armed with deadly weapons; that the victim was assaulted with the same. Given the description of the weapons and the same which were produced as material objects, it is difficult to accept that the injuries caused were only in the nature of abrasions, which were minor in nature.\nExcept that an injury defined as a fracture is vaguely mentioned in the wound certificate, there is no material evidence placed on record to indicate that the victim had suffered any kind of fracture and there is also no material placed on record to indicate that the victim was an inpatient and had undergone treatment for any serious injury. Though there is a claim that he was an inpatient, no material evidence is produced before the Court. On the other hand, there is evidence on record to indicate that the victim had exercised his franchise at the elections held in the village, two days after the incident, which was against the statement that he was an inpatient for a week after the incident. In this regard, though the learned counsel for the appellants would take this Court through the further details of the alleged incident as claimed by the prosecution to demonstrate that it was impossible for a large number of 8 people to have simultaneously attacked the victim and to only cause minor injuries, when most were armed with deadly weapons and therefore, would submit that there is a background which is not also in dispute of the victim having established a fair price depot and accused No.1 also having established a fair price depot and there being unhealthy competition between them and a case and counter case being filed for the irregularities in the fair price depot which lead to enemity between the two and further there being also political rivalry, it was just to foist a false case against the appellants in order to prevent their participation in the elections, that the entire case has been engineered and therefore, he would submit that the injuries which are described in the wound certificate are from a mere fall from a vehicle which has been used to the advantage of the victim in claiming that there was a criminal assault, as a result of which he has suffered the injuries and therefore, there is no substance in the same.\n 7. The learned counsel would also point out that the entire findings of the Trial Court are based on the evidence tendered by PW-6. PW-6, in his evidence, has narrated that he was in his house when he heard the collusion and he had come out of the house at which time, the other witnesses namely PWs-2 and 4 who had also joined him and had witnessed the actual commission of the offence but the learned counsel would point out that if, going by the sequence of events, as claimed by the prosecution, if it is to be believed that PW-6 first heard the maruti van crashing into the motorcycle and on hearing the collision if he had come out, the assault by the accused if at all had occurred, would have been completed by the time he positioned himself to witness the scene.\nBut he had claimed that, each of the witnesses had been in a position to record as to the overt acts committed by each of the accused. This is difficult to accept, especially in the light of the circumstance that PWs-2 and 4 who also claimed to be witness to the incident, had not supported the case of the prosecution.\nTherefore, the entire prosecution case in so far as the allegation of the complainant being sought to be supported by the evidence of PW-6 cannot be accepted as enabling the prosecution to establish the case beyond all reasonable doubt. In the absence of cogent medical evidence to support the so called serious injuries suffered by the victim and in the absence of cogent evidence in support of the case of the prosecution, except that of PW-6 and the self- serving evidence of the plaintiff, the prosecution has not established its case as found by the Trial Court and therefore, would submit that the conviction has lead to a miscarriage of justice and seeks intervention of the Court. While the learned State Public Prosecutor would seek to justify the judgment of the Trial Court.\n 8. In the light of the above rival contentions and from the material on record, as rightly contended by the learned counsel for the appellants, if the case of the prosecution is to be accepted and the accused having employed deadly weapons to attack the victim and if indeed he had been assaulted in the manner as claimed, the injuries suffered by the complainant would not have been restricted to mere abrasions. Though there is mention of a fracture which is only vaguely indicated in the wound certificate, there is no other material evidence as regard to the victim having suffered serious fracture. There is also no material evidence of the victim having undergone treatment as an inpatient, though the claim made by him in the course of evidence, it is unchallenged by the accused. Secondly, the sequence of events, as projected by the prosecution on the basis of the complainant's statement and which is sought to be supported by PW-6, does not also evoke the confidence of this Court for the manner in which the incident is stated to have occurred to be seconded by the statement of PW-6, is difficult to accept since the incident, if it had indeed taken place, would have occurred at a pace so swift that it would be difficult for an eye witness to record the overt acts of each of the 8 accused persons and to state the same with any degree of certainty. Therefore, it is difficult to accept that the moment the vehicle on which the victim was travelling was intercepted, PW-6 having run out of his house and having been in a position to witness the incident as it unravelled. Therefore, it is evident that PW-6 has been cited as a witness, only to lend lip support to the case of the prosecution and going by the background that there was political enemity between the two groups, it is an apparent attempt to make out a case against the accused. Therefore, given the sequence of events and the material on record, this Court does not find that the Trial Court was justified in convicting the accused for the offences alleged.\n Accordingly, the appeal is allowed. Judgment of the Court below is set aside. The appellants are acquitted. The fine amount, if any paid, shall be refunded. Bail bonds stand cancelled.\n Sd/- JUDGE RV "
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"text": "\n Shri A.B. Vagyani, Government Pleader for Respondent Nos. 1 to\n\n 7 in both the petitions."
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"text": "CORAM :A.S. OKA & A.S.CHANDURKAR, JJ\n\n RESERVED ON : 22nd July, 2014.\n\n PRONOUNCED ON : 13th August, 2014."
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"text": "1) Rule. Rule made returnable forthwith and heard finally with the consent of parties."
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"start": 1168,
"text": "\n 2) The challenge in both these writ petitions is to orders dated 3rd April, 2014 issued by the Additional District Magistrate, Satara directing the petitioners to deposit their licenced weapons with the concerned police station in view of then ensuing elections to the Loksabha in May,2014."
}
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{
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"end": 1565,
"labels": [
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"text": "Since similar issue arises in both these writ petitions they are being decided by this common judgment."
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{
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"end": 1671,
"labels": [
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],
"start": 1565,
"text": "\n 3) In Writ Petition No. 4171 of 2014 both the petitioners were issued licence under the Arms Act, 1959."
}
},
{
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"id": "7fdf32e8f23542ec8cfcc00cce802cdd",
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"end": 1725,
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"text": "The licences of both the petitioners were subsisting."
}
},
{
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"labels": [
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],
"start": 1726,
"text": "According to the petitioners, in the first week of April,2014 they were informed by the police authorities that there was a directive from the office of the Collector for depositing their weapons with the concerned police station."
}
},
{
"from_name": null,
"id": "182bde0fb3a34387a1b6f51186b03e51",
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"value": {
"end": 2142,
"labels": [
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],
"start": 1957,
"text": "On 3rd April, 2014 a communication was issued by the Additional District Magistrate, Satara respondent No.2 calling upon them to deposit their weapons with the concerned police station."
}
},
{
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"id": "a6fd21a7bbd0426db16bed401b89750e",
"to_name": null,
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"value": {
"end": 2398,
"labels": [
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],
"start": 2143,
"text": "According to the petitioners, they made a representation to the Sub Divisional Officer and Assistant Election Officer as well as to the Senior Inspector of Police that there was no general direction requiring all licenced holders to deposit their weapons."
}
},
{
"from_name": null,
"id": "169379fd0bef4dcfb8bcf90e987745e9",
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"value": {
"end": 2452,
"labels": [
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],
"start": 2398,
"text": "\n However, there was no response from the authorities."
}
},
{
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"to_name": null,
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"value": {
"end": 2563,
"labels": [
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],
"start": 2453,
"text": "The aforesaid communication dated 3rd April,2014 is the subject matter of challenge in the said writ petition."
}
},
{
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"id": "a369d2a0d42f4e8b84d8b91ea71e8d8b",
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"type": null,
"value": {
"end": 2719,
"labels": [
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],
"start": 2564,
"text": "Similarly, the decision of the Screening Committee arrived at pursuant to the meetings held on 20th March,2014 and 3rd April, 2014 is also under challenge."
}
},
{
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"id": "bdc67f0b0429417aba182288ffc9d6a8",
"to_name": null,
"type": null,
"value": {
"end": 2875,
"labels": [
"FAC"
],
"start": 2719,
"text": "\n 4) In Writ Petition No.4243 of 2014, it is the case of the petitioner that she is holding a licence under the Arms Act, 1959 which licence is subsisting."
}
},
{
"from_name": null,
"id": "66ceb2028306451ca3ec5dc8faf32085",
"to_name": null,
"type": null,
"value": {
"end": 3041,
"labels": [
"FAC"
],
"start": 2876,
"text": "The petitioner was issued communication dated 3rd April, 2014 by respondent No.2 calling upon the petitioner to deposit her weapon with the concerned police station."
}
},
{
"from_name": null,
"id": "7de329cf679d4d11b68e082ca8edddc4",
"to_name": null,
"type": null,
"value": {
"end": 3204,
"labels": [
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],
"start": 3042,
"text": "The petitioner made a representation on 12th April,2014 to the Sub Divisional Officer and Assistant Election Officer as well as to the Senior Inspector of Police."
}
},
{
"from_name": null,
"id": "88c49ab77ef84d229b14ef48c37f8802",
"to_name": null,
"type": null,
"value": {
"end": 3457,
"labels": [
"FAC"
],
"start": 3205,
"text": "As according to the petitioner such general directions could not have been given to all licenced holders to deposit their weapons, she has challenged communication dated 3rd April, 2014 issued by the Additional District Magistrate dated 3rd April,2014."
}
},
{
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"id": "c445c4b2ab66465fb67723892f1114aa",
"to_name": null,
"type": null,
"value": {
"end": 3606,
"labels": [
"FAC"
],
"start": 3458,
"text": "Similarly, the decision of the Screening Committee taken pursuant to the meeting held on 20th March,2014 and 3rd April,2014 is also under challenge."
}
},
{
"from_name": null,
"id": "02ca9e5d9d9446ae8bfb8ed2f29348ee",
"to_name": null,
"type": null,
"value": {
"end": 4001,
"labels": [
"ARG_PETITIONER"
],
"start": 3608,
"text": "5) Shri V.P. Sawant, the learned Advocate appearing for the petitioners in Writ Petition No.4171 of 2014 has submitted that the direction issued by the Additional District Magistrate is contrary to law and in breach of the directions issued by the Division Bench of this Court in the case of Govind @ Bhai Ganesh Tilve Vs. Vikram Kumar and others reported in 2009 (3) Mh.LJ (Cri) 471."
}
},
{
"from_name": null,
"id": "4b79d43a8fe0490c849f886e58f13b88",
"to_name": null,
"type": null,
"value": {
"end": 4295,
"labels": [
"ARG_PETITIONER"
],
"start": 4002,
"text": "It is submitted that the Screening Committee without examining the necessity of issuing a direction to the petitioners to deposit their weapons has proceeded to issue general directions to all licenced weapon holders to deposit their weapons without there being any justification for the same."
}
},
{
"from_name": null,
"id": "9cd3cfee515e41ba96ea7207acdb5a8d",
"to_name": null,
"type": null,
"value": {
"end": 4456,
"labels": [
"ARG_PETITIONER"
],
"start": 4295,
"text": "\n It was further urged that the aforesaid action was in contravention of the directives issued by the Election Commissioner in its letter dated 13th March, 1996."
}
},
{
"from_name": null,
"id": "bcd797050ea34b21b92916f5d2b70a4a",
"to_name": null,
"type": null,
"value": {
"end": 4626,
"labels": [
"ARG_PETITIONER"
],
"start": 4457,
"text": "It was, therefore, submitted that the impugned decision dated 3rd April,2014 taken in the meetings of the Screening Committee is illegal and is required to be set aside."
}
},
{
"from_name": null,
"id": "7322d25f9c234601b0ce0ce0c0dbbd5f",
"to_name": null,
"type": null,
"value": {
"end": 4830,
"labels": [
"ARG_PETITIONER"
],
"start": 4626,
"text": "\n 6) Shri Nikhil Chavan, the learned Advocate for the petitioner in Writ petition No.4243 of 2014 has reiterated the submissions made on behalf of the petitioner in Writ Petition No.4171 of 2014."
}
},
{
"from_name": null,
"id": "88a328f13ffd41068a8b547b3889ecf2",
"to_name": null,
"type": null,
"value": {
"end": 4971,
"labels": [
"ARG_PETITIONER"
],
"start": 4831,
"text": "He has also submitted that without screening the case of the petitioner, a general direction has been issued to deposit the licenced weapon."
}
},
{
"from_name": null,
"id": "662a21ab2cc4458080d48f59c64f20ce",
"to_name": null,
"type": null,
"value": {
"end": 5157,
"labels": [
"ARG_PETITIONER"
],
"start": 4972,
"text": "It is further urged that no such blanket directions had been issued in other adjoining districts of Satara District and the impugned action was, therefore, arbitrary and discriminatory."
}
},
{
"from_name": null,
"id": "77a65178425440ef935fbd0e872f0a29",
"to_name": null,
"type": null,
"value": {
"end": 5448,
"labels": [
"ARG_RESPONDENT"
],
"start": 5159,
"text": "7) Shri A.B. Vagyani, the learned Government Pleader appearing for the respondents in both the writ petitions has urged that the impugned communication calling upon the petitioners to deposit their licenced weapons has been taken pursuant to the decision taken by the Screening Committee."
}
},
{
"from_name": null,
"id": "8fb0c42e35c0463e975275ec533ba0f3",
"to_name": null,
"type": null,
"value": {
"end": 5635,
"labels": [
"ARG_RESPONDENT"
],
"start": 5449,
"text": "It is submitted that the judgment in the case of Govind @ Bhai Ganesh (supra) was taken into account by the Screening Committee and thereafter the aforesaid directions came to be issued."
}
},
{
"from_name": null,
"id": "41b24a7b12eb4b38a93a8ce7ac91f8b0",
"to_name": null,
"type": null,
"value": {
"end": 5929,
"labels": [
"ARG_RESPONDENT"
],
"start": 5636,
"text": "The learned Government Pleader also relied upon Guidelines dated 17th August, 2009 issued by the Home Department as well as communication dated 20th June, 2014 issued to all Police Commissioners and District Magistrates directing them to follow guidelines dated 17th August, 2009 scrupulously."
}
},
{
"from_name": null,
"id": "8cf4452140074d6e9cbc500d5224c1b5",
"to_name": null,
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"value": {
"end": 5935,
"labels": [
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],
"start": 5929,
"text": "\n 8) "
}
},
{
"from_name": null,
"id": "10b7aaa653ae4cbd954fb2873c5b5cc6",
"to_name": null,
"type": null,
"value": {
"end": 6125,
"labels": [
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],
"start": 5935,
"text": "The decision to direct deposit of arms by licence holders has been taken pursuant to the directions issued under Article 324 of the Constitution of India by the Election Commission of India."
}
},
{
"from_name": null,
"id": "0fd24cb75c714f5c9061106800fe2692",
"to_name": null,
"type": null,
"value": {
"end": 6253,
"labels": [
"ANALYSIS"
],
"start": 6126,
"text": "On 13th March, 1996 said directions were issued by the Election Commission for the purposes of holding free and fair elections."
}
},
{
"from_name": null,
"id": "9ca8bd3b016547a6b86496037afbfcc3",
"to_name": null,
"type": null,
"value": {
"end": 6817,
"labels": [
"ANALYSIS"
],
"start": 6254,
"text": "The said directions read as under : \"In exercise of the powers conferred on the Commissioner under Article 324 of the Constitution of India and all other powers enabling it in this behalf and in supersession of all other instructions, the Commission hereby orders that the following instructions shall be observed during all future elections; 1. Issue of licence for arms will be totally prohibited during the period commencing with the date of announcement of elections.\n This ban will continue to be operative till the completion of the election as notified."
}
},
{
"from_name": null,
"id": "bcf984be5239470abad63a7e29918c33",
"to_name": null,
"type": null,
"value": {
"end": 7028,
"labels": [
"ANALYSIS"
],
"start": 6817,
"text": "\n 2. The police should be directed to be vigilant and asked to start mopping up operations of the areas infested with known goonda and other bad elements right from the date of announcement of elections."
}
},
{
"from_name": null,
"id": "41f4f2e0d2c84336986b12c777c241ab",
"to_name": null,
"type": null,
"value": {
"end": 7149,
"labels": [
"ANALYSIS"
],
"start": 7029,
"text": "During such mopping up operations special attentions should be paid to unearth and seize unlicensed arms and ammunition."
}
},
{
"from_name": null,
"id": "8d0f2663622b4a30917be7a9da7d5a3b",
"to_name": null,
"type": null,
"value": {
"end": 7344,
"labels": [
"ANALYSIS"
],
"start": 7150,
"text": "A very thorough search and seizure by the State Police of unlicensed arms and places of indigenous manufacture of arms and ammunition shall be carried out and persons involved shall be arrested."
}
},
{
"from_name": null,
"id": "4be1cfbd913e4108b016d67f6ea4ec7b",
"to_name": null,
"type": null,
"value": {
"end": 7508,
"labels": [
"ANALYSIS"
],
"start": 7345,
"text": "While unearthing and seizure of unlicensed weapons is a normal ongoing responsibility of the police, it shall be vigorously intensified during the election period."
}
},
{
"from_name": null,
"id": "13ef6cdf63d24e899d787ddfdd3a0bbc",
"to_name": null,
"type": null,
"value": {
"end": 7688,
"labels": [
"ANALYSIS"
],
"start": 7509,
"text": "Interstate and intraState movements of trucks and commercial vehicles shall be strictly checked with a view to preventing smuggling of arms and ammunition and antisocial elements."
}
},
{
"from_name": null,
"id": "5c603a36437d42c7972aad2263797781",
"to_name": null,
"type": null,
"value": {
"end": 8160,
"labels": [
"ANALYSIS"
],
"start": 7689,
"text": "Raids should be carried out regularly and intensively on underground arms factories.\n 3. Immediately after the announcement of elections, District Magistrates shall make a detailed and individual review and assessment (in accordance with the prevalent state laws) of all licence holders so that licensed arms in those cases where they consider it essential are impounded in order to ensure maintenance of law and order so essential for ensuring free and fair elections."
}
},
{
"from_name": null,
"id": "abd278fbd3244d01bdb29c2b0f93dcd0",
"to_name": null,
"type": null,
"value": {
"end": 8222,
"labels": [
"ANALYSIS"
],
"start": 8161,
"text": "These arms should be deposited with the district authorities."
}
},
{
"from_name": null,
"id": "47db4e7d355c4e5981764bc12ebec530",
"to_name": null,
"type": null,
"value": {
"end": 8283,
"labels": [
"ANALYSIS"
],
"start": 8223,
"text": "Among cases which may need to be reviewed are the following."
}
},
{
"from_name": null,
"id": "d430ad2b7486419fa756fd6df507d6d1",
"to_name": null,
"type": null,
"value": {
"end": 8474,
"labels": [
"ANALYSIS"
],
"start": 8283,
"text": "\n (1) persons released on bail; (2) persons having a history of criminal offences; and (3) persons previously involved in rioting at any time any but especially during the election period."
}
},
{
"from_name": null,
"id": "b4fa2d3e51014074ab830afe567631ee",
"to_name": null,
"type": null,
"value": {
"end": 8539,
"labels": [
"ANALYSIS"
],
"start": 8475,
"text": "(The above categories are only illustrative and not exhaustive)."
}
},
{
"from_name": null,
"id": "ae559a236e3b4be6ba0cad6711b0984b",
"to_name": null,
"type": null,
"value": {
"end": 8571,
"labels": [
"ANALYSIS"
],
"start": 8541,
"text": "4. "
}
},
{
"from_name": null,
"id": "6db54c5f87c742d6900e989cb2504d61",
"to_name": null,
"type": null,
"value": {
"end": 8788,
"labels": [
"ANALYSIS"
],
"start": 8571,
"text": "After such review, all such licence holders who are identified, shall be directed to deposit their arms with the District Administration during the period of one week from the last date for withdrawal of candidatures."
}
},
{
"from_name": null,
"id": "2cffb5208eb44af98f5a02f79896cc79",
"to_name": null,
"type": null,
"value": {
"end": 8909,
"labels": [
"ANALYSIS"
],
"start": 8788,
"text": "\n 5. The District Administration shall make fool proof arrangements for keeping the deposited fire arms in safe custody."
}
},
{
"from_name": null,
"id": "11c3723f0f834fb5859de7a65e077495",
"to_name": null,
"type": null,
"value": {
"end": 8987,
"labels": [
"ANALYSIS"
],
"start": 8910,
"text": "Proper receipt must be given to the licence holders depositing the fire arms."
}
},
{
"from_name": null,
"id": "ecfc7ae0ffd3433ab1a69028e2a5ec2b",
"to_name": null,
"type": null,
"value": {
"end": 9207,
"labels": [
"ANALYSIS"
],
"start": 8988,
"text": "It shall be the bounden duty of the District Administration to ensure that all fire arms deposited with the Administration are returned to the licence holders immediately after one week after the declaration of results."
}
},
{
"from_name": null,
"id": "568bb2c26d824d2988424d347e124bc0",
"to_name": null,
"type": null,
"value": {
"end": 9744,
"labels": [
"ANALYSIS"
],
"start": 9207,
"text": "\n 6. Prohibitory orders under Section 144 of the Criminal Procedure Code, 1973, shall be issued banning the carrying of licensed arms as soon as an election is announced and should be effective till the declaration of results.\"\n 9) A perusal of aforesaid directions reveals that the District Magistrate is required to make a detailed and individual review and assessment of all license holders so as to consider the impounding arms of such licence holders as found necessary to ensure maintenance of law and order during elections."
}
},
{
"from_name": null,
"id": "e45535e378c749f295da20b8b08cbe5c",
"to_name": null,
"type": null,
"value": {
"end": 9865,
"labels": [
"ANALYSIS"
],
"start": 9745,
"text": "Certain categories of cases has been enumerated and it has been stated that said cases would be required to be reviewed."
}
},
{
"from_name": null,
"id": "a0bdbb57a630483ab6d385acc63d3b80",
"to_name": null,
"type": null,
"value": {
"end": 10012,
"labels": [
"ANALYSIS"
],
"start": 9866,
"text": "As aforesaid directions have been issued in exercise of powers conferred by Article 324 of the Constitution of India the same have binding effect."
}
},
{
"from_name": null,
"id": "5b4503b3146d4b39a764eaa58bad2fe2",
"to_name": null,
"type": null,
"value": {
"end": 10209,
"labels": [
"ANALYSIS"
],
"start": 10012,
"text": "\n 10) In the case of Govind @ Bhai Ganesh Tilve (supra) the Division Bench of this Court considered the aforesaid directions issued by the Election Commission in its letter dated 13th March, 1996."
}
},
{
"from_name": null,
"id": "9d2960be55de45a99b1f1bb879fb2b9a",
"to_name": null,
"type": null,
"value": {
"end": 10462,
"labels": [
"ANALYSIS"
],
"start": 10210,
"text": "It was noted that under said directions a detailed individual review and assessment of all licence holders was necessary so as to enable the District Magistrate to consider cases where it was essential to direct the licence holders to deposit the arms."
}
},
{
"from_name": null,
"id": "3088f3f416cb40d3b184936c9ee13fdf",
"to_name": null,
"type": null,
"value": {
"end": 10579,
"labels": [
"ANALYSIS"
],
"start": 10463,
"text": "It was emphasized that there could not be a blanket directions to all arms licence holders to deposit their weapons."
}
},
{
"from_name": null,
"id": "dc2dd4d16c154900851371286060f14c",
"to_name": null,
"type": null,
"value": {
"end": 10863,
"labels": [
"ANALYSIS"
],
"start": 10580,
"text": "After noticing that there was no screening committee to review cases for issuing directions to deposit arms in terms of directions issued by the Election Commission and that there was no prior review and assessment of individual cases various guidelines were laid down by this Court."
}
},
{
"from_name": null,
"id": "5c02679312af48148f53c63595d267c5",
"to_name": null,
"type": null,
"value": {
"end": 10986,
"labels": [
"ANALYSIS"
],
"start": 10864,
"text": "A Screening Committee consisting of a District Magistrate and the Superintendent of Police was directed to be constituted."
}
},
{
"from_name": null,
"id": "60f5fd27d8f14db6b554e59947cc6dc6",
"to_name": null,
"type": null,
"value": {
"end": 11218,
"labels": [
"ANALYSIS"
],
"start": 10987,
"text": "It was further directed that cases of all licence holders should be placed before the Screening Committee and after conducting the exercise of screening, the concerned licence holder could be directed to deposit his arms forthwith."
}
},
{
"from_name": null,
"id": "b527d198dc7442819ff7981e23cd5b78",
"to_name": null,
"type": null,
"value": {
"end": 11388,
"labels": [
"PRE_RELIED"
],
"start": 11219,
"text": "The guidelines issued in Govind @ Bhai Ganesh Tilve (supra) read as under : \"a) There shall be a Screening Committee in every District and in every Commissionerate area."
}
},
{
"from_name": null,
"id": "3e899ef665514a6c8a9c646e5cd5c16b",
"to_name": null,
"type": null,
"value": {
"end": 11514,
"labels": [
"PRE_RELIED"
],
"start": 11400,
"text": "In the District the Screening Committee shall consist of the District Magistrate and the Superintendent of Police."
}
},
{
"from_name": null,
"id": "0a2df968fd084cbfb92af767714f5b42",
"to_name": null,
"type": null,
"value": {
"end": 11641,
"labels": [
"PRE_RELIED"
],
"start": 11515,
"text": "In the Commissionerate area it shall consist of the Commissioner of Police and Joint/Additional Commissioner of Police (Admn.)"
}
},
{
"from_name": null,
"id": "d1d6840e859448e1bf895c22ac906aa3",
"to_name": null,
"type": null,
"value": {
"end": 11782,
"labels": [
"PRE_RELIED"
],
"start": 11642,
"text": "b) The Screening Committee shall commence the work of screening from the day of declaration of dates of election by the Election Commission."
}
},
{
"from_name": null,
"id": "1cd6beec8fbc477c9cb4a6b9812ecce4",
"to_name": null,
"type": null,
"value": {
"end": 11924,
"labels": [
"PRE_RELIED"
],
"start": 11782,
"text": "\n c) Cases of all the license holders as laid down by the Election Commission in its directive shall be placed before the Screening Committee."
}
},
{
"from_name": null,
"id": "899f7e1f20604bffbf7fca1987d0cf23",
"to_name": null,
"type": null,
"value": {
"end": 12117,
"labels": [
"PRE_RELIED"
],
"start": 11925,
"text": "The categories are : i) Persons released on bail.\n ii) Persons having a history of criminal offences; and iii)Persons involved in rioting at any time but especially during the election period."
}
},
{
"from_name": null,
"id": "4ba8400fb3694f099ca1c71770b2d840",
"to_name": null,
"type": null,
"value": {
"end": 12228,
"labels": [
"PRE_RELIED"
],
"start": 12118,
"text": "The Screening Committee shall bear in mind that the above categories are only illustrative and not exhaustive."
}
},
{
"from_name": null,
"id": "c859f4bf109f48e4812a61b827f6b2ec",
"to_name": null,
"type": null,
"value": {
"end": 12402,
"labels": [
"PRE_RELIED"
],
"start": 12228,
"text": "\n d) The Screening committee shall complete the exercise of screening in respect of licences placed before it as far as possible before the 1st date of filing of nominations."
}
},
{
"from_name": null,
"id": "250cbc7025cb4c71a71e13f4551e2a51",
"to_name": null,
"type": null,
"value": {
"end": 12778,
"labels": [
"PRE_RELIED"
],
"start": 12402,
"text": "\n e) On receipt of report from the Screening Committee, the licensing authority shall issue notice before the last date fixed for withdrawal of candidature to the individual licence holder for depositing his arms and inform the licence holder that failure to deposit the arms as directed would result in prosecution under Section 188 of the I.P.C. as stated in clause (h).\n f)"
}
},
{
"from_name": null,
"id": "ba4a47c1ba3047c482a232f06063e21c",
"to_name": null,
"type": null,
"value": {
"end": 12927,
"labels": [
"PRE_RELIED"
],
"start": 12779,
"text": "The licence holder thereafter shall deposit his arms forthwith and in any case within a period of seven days from the date of receipt of the notice."
}
},
{
"from_name": null,
"id": "d27fcd60d0a34533b3377168cd22cf73",
"to_name": null,
"type": null,
"value": {
"end": 13000,
"labels": [
"PRE_RELIED"
],
"start": 12928,
"text": "The licensing Authority shall give proper receipt to the license holder."
}
},
{
"from_name": null,
"id": "527683e771704d4da6b5607a99427400",
"to_name": null,
"type": null,
"value": {
"end": 13066,
"labels": [
"PRE_RELIED"
],
"start": 13000,
"text": "\n g) The decision taken by the Screening Committee shall be final."
}
},
{
"from_name": null,
"id": "0ed7335b0c3847e59ffeb1b17983c144",
"to_name": null,
"type": null,
"value": {
"end": 13221,
"labels": [
"PRE_RELIED"
],
"start": 13066,
"text": "\n h) Any licence holder who fails to deposit arms within the period specified above shall be liable for prosecution under section 188 of Indian Penal Code."
}
},
{
"from_name": null,
"id": "846dc382302c419c88f9a72d163c6780",
"to_name": null,
"type": null,
"value": {
"end": 13392,
"labels": [
"PRE_RELIED"
],
"start": 13221,
"text": "\n i) All the arms so deposited with the administration be returned to the licence holder within a period of one week after declaration of election results."
}
},
{
"from_name": null,
"id": "2ee1facb9b0c4e1582d425bf05cb716e",
"to_name": null,
"type": null,
"value": {
"end": 13457,
"labels": [
"PRE_RELIED"
],
"start": 13392,
"text": "\n j) The above timeframe should be adhered to as far as possible."
}
},
{
"from_name": null,
"id": "3219f674ae2f4341891e858073a6fefa",
"to_name": null,
"type": null,
"value": {
"end": 13598,
"labels": [
"ANALYSIS"
],
"start": 13457,
"text": "\n 11) Pursuant to the aforesaid judgment, the Home Department of the State of Maharashtra has issued certain guidelines on 17th August, 2009."
}
},
{
"from_name": null,
"id": "22346cc8091f468e9ede7981dcd568e7",
"to_name": null,
"type": null,
"value": {
"end": 13728,
"labels": [
"ANALYSIS"
],
"start": 13599,
"text": "The said guidelines read as under : \"a) There shall be a Screening Committee in every District and in every Commissionerate area."
}
},
{
"from_name": null,
"id": "3bc235591c254992b310b2ce97eb538f",
"to_name": null,
"type": null,
"value": {
"end": 13843,
"labels": [
"ANALYSIS"
],
"start": 13729,
"text": "In the District the Screening Committee shall consist of the District Magistrate and the Superintendent of Police."
}
},
{
"from_name": null,
"id": "bb4f0018237e403cbb3c708af3bf2284",
"to_name": null,
"type": null,
"value": {
"end": 13970,
"labels": [
"ANALYSIS"
],
"start": 13844,
"text": "In the Commissionerate area it shall consist of the Commissioner of Police and Joint/Additional Commissioner of Police (Admn.)"
}
},
{
"from_name": null,
"id": "4252ab070a114d99b17254c0f1d2fe94",
"to_name": null,
"type": null,
"value": {
"end": 14111,
"labels": [
"ANALYSIS"
],
"start": 13971,
"text": "b) The Screening Committee shall commence the work of screening from the day of declaration of dates of election by the Election Commission."
}
},
{
"from_name": null,
"id": "1aab4709f38c4b6e823f667ee8ac4d5a",
"to_name": null,
"type": null,
"value": {
"end": 14253,
"labels": [
"ANALYSIS"
],
"start": 14113,
"text": "c) Cases of all the license holders as laid down by the Election Commission in its directive shall be placed before the Screening Committee."
}
},
{
"from_name": null,
"id": "bd0ad4e78ed146259065813fabda8976",
"to_name": null,
"type": null,
"value": {
"end": 14450,
"labels": [
"ANALYSIS"
],
"start": 14254,
"text": "The categories are : (i) Persons released on bail.\n (ii) Persons having a history of criminal offences; and (iii) Persons involved in rioting at any time but especially during the election period."
}
},
{
"from_name": null,
"id": "b6796738d6d54bd4a5fb5eb42d0e9212",
"to_name": null,
"type": null,
"value": {
"end": 14561,
"labels": [
"ANALYSIS"
],
"start": 14451,
"text": "The Screening Committee shall bear in mind that the above categories are only illustrative and not exhaustive."
}
},
{
"from_name": null,
"id": "9449c62f321b4329a060e2532c690645",
"to_name": null,
"type": null,
"value": {
"end": 14735,
"labels": [
"ANALYSIS"
],
"start": 14561,
"text": "\n d) The Screening committee shall complete the exercise of screening in respect of licences placed before it as far as possible before the 1st date of filing of nominations."
}
},
{
"from_name": null,
"id": "c542de54fc754728accf4d21c435a7e2",
"to_name": null,
"type": null,
"value": {
"end": 15115,
"labels": [
"ANALYSIS"
],
"start": 14735,
"text": "\n e) On receipt of report from the Screening Committee, the licensing authority shall issue notice before the last date fixed for withdrawal of candidature to the individual licence holder for depositing his arms and inform the licence holder that failure to deposit the arms as directed would result in prosecution under Section 188 of the I.P.C.as stated in clause (h).\n f)"
}
},
{
"from_name": null,
"id": "2a1fed3f6abf4ad4bd8aeed035287b5a",
"to_name": null,
"type": null,
"value": {
"end": 15264,
"labels": [
"ANALYSIS"
],
"start": 15116,
"text": "The licence holder thereafter shall deposit his arms forthwith and in any case within a period of seven days from the date of receipt of the notice."
}
},
{
"from_name": null,
"id": "0ac9ba68a9474e33b6a917824e5031d8",
"to_name": null,
"type": null,
"value": {
"end": 15342,
"labels": [
"ANALYSIS"
],
"start": 15264,
"text": "\n The licensing Authority shall give proper receipt to the license holder."
}
},
{
"from_name": null,
"id": "0e927cbef4e447228aed90ade8f791ef",
"to_name": null,
"type": null,
"value": {
"end": 15408,
"labels": [
"ANALYSIS"
],
"start": 15342,
"text": "\n g) The decision taken by the Screening Committee shall be final."
}
},
{
"from_name": null,
"id": "ee133b63e8d24e09ad5052069359ea33",
"to_name": null,
"type": null,
"value": {
"end": 15563,
"labels": [
"ANALYSIS"
],
"start": 15408,
"text": "\n h) Any licence holder who fails to deposit arms within the period specified above shall be liable for prosecution under section 188 of Indian Penal Code."
}
},
{
"from_name": null,
"id": "f1d743f3565143bc980591cd7d0a8fdd",
"to_name": null,
"type": null,
"value": {
"end": 15719,
"labels": [
"ANALYSIS"
],
"start": 15563,
"text": "\n i) All the arms so deposited with the administration be returned to the licence holder within a period of one week after declaration of election results."
}
},
{
"from_name": null,
"id": "07df1f50a5e2499088e05c9bd48e7ada",
"to_name": null,
"type": null,
"value": {
"end": 16003,
"labels": [
"ANALYSIS"
],
"start": 15719,
"text": "\n j) The above timeframe should be adhered to as far as possible.\"\n 12) In the meetings of the Screening Committee held on 20th March,2014 and 3rd April, 2014 a blanket decision was taken calling upon about 732 arms licence holders to deposit their arms with the concerned authority."
}
},
{
"from_name": null,
"id": "32c9ce69121548b2924363949dfd0bac",
"to_name": null,
"type": null,
"value": {
"end": 16254,
"labels": [
"ANALYSIS"
],
"start": 16004,
"text": "The said minutes indicate that each case was not independently reviewed as per the directions issued by the Election Commission on 13th March, 1996 and the guidelines issued in terms of the judgment of this Court in Govind @ Bhai Ganesh Tilve's case."
}
},
{
"from_name": null,
"id": "63c44b1273ab41b8ab44892c06e167c6",
"to_name": null,
"type": null,
"value": {
"end": 16433,
"labels": [
"ANALYSIS"
],
"start": 16255,
"text": "Pursuant to the aforesaid meetings, the impugned orders have been issued in both these writ petitions directing the petitioners to deposit their arms with the police authorities."
}
},
{
"from_name": null,
"id": "9c00542ea19c4f759298efbe63209d5c",
"to_name": null,
"type": null,
"value": {
"end": 16587,
"labels": [
"ANALYSIS"
],
"start": 16434,
"text": "It is, therefore, obvious that the screening committee without examining the individual cases of the petitioners has directed them to deposit their arms."
}
},
{
"from_name": null,
"id": "19d8eec735504dfe8f4efda3ccd2bc7b",
"to_name": null,
"type": null,
"value": {
"end": 16713,
"labels": [
"ANALYSIS"
],
"start": 16588,
"text": "The object behind directing deposit of arms is to ensure holding of free and fair elections and maintenance of law and order."
}
},
{
"from_name": null,
"id": "8fb5fb879b6d4cccba2e601f70061c62",
"to_name": null,
"type": null,
"value": {
"end": 16803,
"labels": [
"ANALYSIS"
],
"start": 16714,
"text": "It is with that object that a direction has been issued to review each case individually."
}
},
{
"from_name": null,
"id": "b691eb7bffc443a280d010d3c6d5fcde",
"to_name": null,
"type": null,
"value": {
"end": 17131,
"labels": [
"ANALYSIS"
],
"start": 16804,
"text": "It is, therefore, clear that the impugned orders issued in both these writ petitions are in contravention of the directions dated 13th March, 1996 issued by the Election Commission as well as guidelines dated 17th August, 2009 issued by the Home Department pursuant to the judgment in Govind @ Bhai Ganesh Tilve's case (supra)."
}
},
{
"from_name": null,
"id": "95bf0a38e89b45f8ba36cc6dea8ad70e",
"to_name": null,
"type": null,
"value": {
"end": 17203,
"labels": [
"ANALYSIS"
],
"start": 17132,
"text": "On this short ground, the impugned orders are required to be set aside."
}
},
{
"from_name": null,
"id": "a1983a00c0fa4ffa8673ddfe78822df3",
"to_name": null,
"type": null,
"value": {
"end": 17408,
"labels": [
"ANALYSIS"
],
"start": 17203,
"text": "\n 13) It is to be noted that the directions issued by the Election Commission on 13th March, 1996 are clear that it is necessary to make a detailed individual review and assessment of all licence holders."
}
},
{
"from_name": null,
"id": "4d6b34464eaa4e5d8fedbbbd69f6f90a",
"to_name": null,
"type": null,
"value": {
"end": 17539,
"labels": [
"ANALYSIS"
],
"start": 17409,
"text": "In the said directions some categories have been illustrated and cases falling in the said categories are required to be reviewed."
}
},
{
"from_name": null,
"id": "51116b7d221d4a7e8a002b58c87b38ee",
"to_name": null,
"type": null,
"value": {
"end": 17659,
"labels": [
"ANALYSIS"
],
"start": 17540,
"text": "Said directions were reiterated in the guidelines laid down by this Court in Govind @ Bhai Ganesh Tilve's case (supra)."
}
},
{
"from_name": null,
"id": "2322463162dd4134901ca4d5031e3277",
"to_name": null,
"type": null,
"value": {
"end": 17811,
"labels": [
"ANALYSIS"
],
"start": 17660,
"text": "Despite guidelines dated 17th August,2009 having been issued it is noticed that the same are not at all being followed in their true letter and spirit."
}
},
{
"from_name": null,
"id": "085d0371d1c54ef194ef4e741c33404f",
"to_name": null,
"type": null,
"value": {
"end": 17924,
"labels": [
"ANALYSIS"
],
"start": 17812,
"text": "Blanket orders are being passed directing all licence holders to deposit their arms with the police authorities."
}
},
{
"from_name": null,
"id": "e928cb78919047a69e8f67b14cfb2561",
"to_name": null,
"type": null,
"value": {
"end": 18163,
"labels": [
"ANALYSIS"
],
"start": 17925,
"text": "As observed by this Court in Govind @ Bhai Ganesh Tilve's case (supra) a law abiding citizen who has been issued a licence to possess arms can consider the order directing him to surrender his arms as an affront to his dignity and status."
}
},
{
"from_name": null,
"id": "d22caf82093f4b609388a2039f723287",
"to_name": null,
"type": null,
"value": {
"end": 18310,
"labels": [
"ANALYSIS"
],
"start": 18163,
"text": "\n Despite clear directions being issued by the Election Commission it is to be noted that the Screening Committee has failed to implement the same."
}
},
{
"from_name": null,
"id": "737deb6a379b476b84e2ab9c998f4c21",
"to_name": null,
"type": null,
"value": {
"end": 18398,
"labels": [
"ANALYSIS"
],
"start": 18311,
"text": "Similarly, guidelines dated 17th August, 2009 are also not being scrupulously followed."
}
},
{
"from_name": null,
"id": "d9fd6e2f0bd148ba967931523cbb2268",
"to_name": null,
"type": null,
"value": {
"end": 18534,
"labels": [
"ANALYSIS"
],
"start": 18398,
"text": "\n 14) At this stage, it would be necessary to note the anomaly in the guidelines dated 17th August, 2009 issued by the Home Department."
}
},
{
"from_name": null,
"id": "b082a2ed7dd541b296f891cd30a107e0",
"to_name": null,
"type": null,
"value": {
"end": 18794,
"labels": [
"ANALYSIS"
],
"start": 18535,
"text": "In direction No.3 dated 13th March, 1996 issued by the Election Commission, while emphasizing the need to make an individual review and assessment of all licence holders it has been directed that there are category of cases in which review would be necessary."
}
},
{
"from_name": null,
"id": "5ebc7b9c603849b889b883490a03dcba",
"to_name": null,
"type": null,
"value": {
"end": 18815,
"labels": [
"ANALYSIS"
],
"start": 18795,
"text": "(emphasis supplied)."
}
},
{
"from_name": null,
"id": "8fb33f4b499c4df7a9522b1158b39ead",
"to_name": null,
"type": null,
"value": {
"end": 18900,
"labels": [
"ANALYSIS"
],
"start": 18816,
"text": "It is further stated that said categories were only illustrative and not exhaustive."
}
},
{
"from_name": null,
"id": "317e07aef7504e56b4a0be34b79d16f8",
"to_name": null,
"type": null,
"value": {
"end": 19100,
"labels": [
"ANALYSIS"
],
"start": 18902,
"text": "Guideline (c) issued on 17th August, 2009 reads as under: c) Cases of all the license holders as laid down by the Election Commission in its directive shall be placed before the Screening Committee."
}
},
{
"from_name": null,
"id": "dc33b5d0fc7545499cdd4566cb5cdd86",
"to_name": null,
"type": null,
"value": {
"end": 19310,
"labels": [
"ANALYSIS"
],
"start": 19101,
"text": "The categories are : \"(i) Persons released on bail.\n (ii) Persons having a history of criminal offences; and (iii) Persons involved in rioting at any time but especially during the election period."
}
},
{
"from_name": null,
"id": "3c8addafd23442bd97493ce7bf3efa2c",
"to_name": null,
"type": null,
"value": {
"end": 19598,
"labels": [
"ANALYSIS"
],
"start": 19311,
"text": "The Screening Committee shall bear in mind that the above categories are only illustrative and not exhaustive.\"\n 15) The guidelines merely categorize persons released on bail, persons having history of criminal offences and persons involved in rioting especially during election period."
}
},
{
"from_name": null,
"id": "15f9d2374f3c43b6baacc64a344e20fb",
"to_name": null,
"type": null,
"value": {
"end": 19725,
"labels": [
"ANALYSIS"
],
"start": 19599,
"text": "It has not been mentioned in the said guidelines that cases of persons falling in such categories are required to be reviewed."
}
},
{
"from_name": null,
"id": "f9f9920180754ee1a0ce98d0da30c858",
"to_name": null,
"type": null,
"value": {
"end": 19962,
"labels": [
"ANALYSIS"
],
"start": 19726,
"text": "Thus, the emphasis placed by the Election Commission on the need to review cases of such license holders falling in the aforesaid categories has been lost sight of by the Home Department while issuing guidelines dated 17th August, 2009."
}
},
{
"from_name": null,
"id": "9c69f726756c48e1951fa225e7204c71",
"to_name": null,
"type": null,
"value": {
"end": 20112,
"labels": [
"ANALYSIS"
],
"start": 19963,
"text": "The aforesaid categories comprise of such persons who though are issued arms licences could be involved in acts resulting in law and order situation."
}
},
{
"from_name": null,
"id": "1ca006c46bab4af8882374b401522a2e",
"to_name": null,
"type": null,
"value": {
"end": 20245,
"labels": [
"ANALYSIS"
],
"start": 20113,
"text": "Hence, directions in that regard have been issued by the Election Commission that cases of such persons are required to be reviewed."
}
},
{
"from_name": null,
"id": "fbdac86f8c6b45708910ed2e565db975",
"to_name": null,
"type": null,
"value": {
"end": 20420,
"labels": [
"ANALYSIS"
],
"start": 20246,
"text": "The Home Department would therefore be required to modify the said guidelines to bring them in tune with direction No.3 issued by the Election Commission on 13th March, 1996."
}
},
{
"from_name": null,
"id": "ab0c159c99f647b5b104577c5a7a1386",
"to_name": null,
"type": null,
"value": {
"end": 20511,
"labels": [
"ANALYSIS"
],
"start": 20421,
"text": "This will ensure compliance with the aforesaid directions in their true letter and spirit."
}
},
{
"from_name": null,
"id": "9f23d90bf07849c18fcfbbfb199b4198",
"to_name": null,
"type": null,
"value": {
"end": 20661,
"labels": [
"ANALYSIS"
],
"start": 20513,
"text": "16) It is further noticed that the State Government has not framed any guidelines whatsoever with regard to functioning of the screening committee."
}
},
{
"from_name": null,
"id": "235ae7acf59f4774922dbfd8c5311661",
"to_name": null,
"type": null,
"value": {
"end": 20888,
"labels": [
"ANALYSIS"
],
"start": 20662,
"text": "Though the Screening Committee has been constituted in terms of guidelines issued in Govind @ Bhai Ganesh Tilve's case (supra) there are no guidelines with regard to manner in which the said Screening Committee shall function."
}
},
{
"from_name": null,
"id": "6a0a77a58a974adb9a7a29c9442bc298",
"to_name": null,
"type": null,
"value": {
"end": 20967,
"labels": [
"ANALYSIS"
],
"start": 20889,
"text": "The Screening Committee will have to peruse the record of all licence holders."
}
},
{
"from_name": null,
"id": "f3797ce034dd4ca6a78c6c842ad1ebf3",
"to_name": null,
"type": null,
"value": {
"end": 21049,
"labels": [
"ANALYSIS"
],
"start": 20968,
"text": "The Committee should have access to the police record of all the licence holders."
}
},
{
"from_name": null,
"id": "44549b2fec99453a9ce5c276108c2508",
"to_name": null,
"type": null,
"value": {
"end": 21146,
"labels": [
"ANALYSIS"
],
"start": 21050,
"text": "The guidelines should provide that a detailed review and assessment of individual cases be made."
}
},
{
"from_name": null,
"id": "a28b01cc1b3e49938bd555f55b674bc8",
"to_name": null,
"type": null,
"value": {
"end": 21333,
"labels": [
"ANALYSIS"
],
"start": 21147,
"text": "Considering its nature of work and the duty assigned to it, it is necessary that the State Government frames appropriate guidelines with regard to functioning of the Screening Committee."
}
},
{
"from_name": null,
"id": "eec923e3275742069ecf47ec26308bb3",
"to_name": null,
"type": null,
"value": {
"end": 21609,
"labels": [
"ANALYSIS"
],
"start": 21334,
"text": "As the Screening Committee has been assigned the duty of individual review and assessment of cases of all licence holders, it would be appropriate if the State Government issues guidelines to enable the Screening Committee to function in a responsible and transparent manner."
}
},
{
"from_name": null,
"id": "91ef0669614c49e3a384d630090e4f51",
"to_name": null,
"type": null,
"value": {
"end": 21746,
"labels": [
"ANALYSIS"
],
"start": 21609,
"text": "\n This would also ensure compliance with the directions issued by the Election Commission under Article 324 of the Constitution of India."
}
},
{
"from_name": null,
"id": "b7e2c86e9b824fba88c925803e56ac09",
"to_name": null,
"type": null,
"value": {
"end": 22517,
"labels": [
"RPC"
],
"start": 21746,
"text": "\n 17) In view of the aforesaid, we pass the following order: ORDER.\n (A) Both the writ petitions are allowed; (B) The impugned orders dated 3rd April,2014 issued by the Additional District Magistrate, Satara in both the writ petitions is quashed and set aside; (C) The Home Department of the State of Maharashtra shall take all necessary steps to reframe guideline (c) issued on 17th August, 2009 in terms of observations made in paragraphs 14 and 15 of this judgment; (D) The Home Department of the State of Maharashtra is directed to issue guidelines in the matter of functioning of the Screening Committee constituted for review of the cases of licenced arms holders within a period of six weeks from today; (E) Both the writ petitions"
}
},
{
"from_name": null,
"id": "39e69bcac0004c34bb26d573b0c94934",
"to_name": null,
"type": null,
"value": {
"end": 22739,
"labels": [
"RPC"
],
"start": 22518,
"text": "shall stand disposed of in the aforesaid terms with no order as to costs; (F) For reporting compliance in the matter of framing of guidelines with regard to functioning of the Screening Committee"
}
},
{
"from_name": null,
"id": "8bc5ee188a564e89973f9c7f6d8137b8",
"to_name": null,
"type": null,
"value": {
"end": 22835,
"labels": [
"RPC"
],
"start": 22739,
"text": ", the matter shall be placed on board on 22nd September, 2014 under the caption of \"directions\"."
}
},
{
"from_name": null,
"id": "8dcae3e770f94c78b28dc15b4eea3f08",
"to_name": null,
"type": null,
"value": {
"end": 22880,
"labels": [
"NONE"
],
"start": 22835,
"text": "\n (A.S. CHANDURKAR, J) (A.S. OKA, J)"
}
}
]
}
] | 4,279 | {
"text": " IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n CIVIL APPELLATE JURISDICTION\n\n CIVIL WRIT PETITION No. 4171 of 2014\n\n Vijay Dinkarrao Patil and Anr ..Petitioners.\n\n Vs\n\n The State of Maharashtra & ors ..Respondents.\n\n ALONG WITH\n\n CIVIL WRIT PETITION No. 4243 of 2014\n\n Sheetal Ajit Patil ..Petitioner.\n\n Vs\n\n The State of Maharashtra & ors ..Respondents.\n\n Shri V.P. Sawant, Advocate i/by Shri Vinod Y. Jadhav, Advocate for\n the petitioners in W.P.No. 4171 of 2014.\n Shri Nikhil Chavan for the petitioner in W.P. No. 4243 of 2014.\n Shri A.B. Vagyani, Government Pleader for Respondent Nos. 1 to\n\n 7 in both the petitions.\n\n CORAM :A.S. OKA & A.S.CHANDURKAR, JJ\n\n RESERVED ON : 22nd July, 2014.\n\n PRONOUNCED ON : 13th August, 2014.\n\n JUDGMENT (PER : A.S. CHANDURKAR, J) 1) Rule. Rule made returnable forthwith and heard finally with the consent of parties.\n 2) The challenge in both these writ petitions is to orders dated 3rd April, 2014 issued by the Additional District Magistrate, Satara directing the petitioners to deposit their licenced weapons with the concerned police station in view of then ensuing elections to the Loksabha in May,2014. Since similar issue arises in both these writ petitions they are being decided by this common judgment.\n 3) In Writ Petition No. 4171 of 2014 both the petitioners were issued licence under the Arms Act, 1959. The licences of both the petitioners were subsisting. According to the petitioners, in the first week of April,2014 they were informed by the police authorities that there was a directive from the office of the Collector for depositing their weapons with the concerned police station. On 3rd April, 2014 a communication was issued by the Additional District Magistrate, Satara respondent No.2 calling upon them to deposit their weapons with the concerned police station. According to the petitioners, they made a representation to the Sub Divisional Officer and Assistant Election Officer as well as to the Senior Inspector of Police that there was no general direction requiring all licenced holders to deposit their weapons.\n However, there was no response from the authorities. The aforesaid communication dated 3rd April,2014 is the subject matter of challenge in the said writ petition. Similarly, the decision of the Screening Committee arrived at pursuant to the meetings held on 20th March,2014 and 3rd April, 2014 is also under challenge.\n 4) In Writ Petition No.4243 of 2014, it is the case of the petitioner that she is holding a licence under the Arms Act, 1959 which licence is subsisting. The petitioner was issued communication dated 3rd April, 2014 by respondent No.2 calling upon the petitioner to deposit her weapon with the concerned police station. The petitioner made a representation on 12th April,2014 to the Sub Divisional Officer and Assistant Election Officer as well as to the Senior Inspector of Police. As according to the petitioner such general directions could not have been given to all licenced holders to deposit their weapons, she has challenged communication dated 3rd April, 2014 issued by the Additional District Magistrate dated 3rd April,2014. Similarly, the decision of the Screening Committee taken pursuant to the meeting held on 20th March,2014 and 3rd April,2014 is also under challenge.\n 5) Shri V.P. Sawant, the learned Advocate appearing for the petitioners in Writ Petition No.4171 of 2014 has submitted that the direction issued by the Additional District Magistrate is contrary to law and in breach of the directions issued by the Division Bench of this Court in the case of Govind @ Bhai Ganesh Tilve Vs. Vikram Kumar and others reported in 2009 (3) Mh.LJ (Cri) 471. It is submitted that the Screening Committee without examining the necessity of issuing a direction to the petitioners to deposit their weapons has proceeded to issue general directions to all licenced weapon holders to deposit their weapons without there being any justification for the same.\n It was further urged that the aforesaid action was in contravention of the directives issued by the Election Commissioner in its letter dated 13th March, 1996. It was, therefore, submitted that the impugned decision dated 3rd April,2014 taken in the meetings of the Screening Committee is illegal and is required to be set aside.\n 6) Shri Nikhil Chavan, the learned Advocate for the petitioner in Writ petition No.4243 of 2014 has reiterated the submissions made on behalf of the petitioner in Writ Petition No.4171 of 2014. He has also submitted that without screening the case of the petitioner, a general direction has been issued to deposit the licenced weapon. It is further urged that no such blanket directions had been issued in other adjoining districts of Satara District and the impugned action was, therefore, arbitrary and discriminatory.\n 7) Shri A.B. Vagyani, the learned Government Pleader appearing for the respondents in both the writ petitions has urged that the impugned communication calling upon the petitioners to deposit their licenced weapons has been taken pursuant to the decision taken by the Screening Committee. It is submitted that the judgment in the case of Govind @ Bhai Ganesh (supra) was taken into account by the Screening Committee and thereafter the aforesaid directions came to be issued. The learned Government Pleader also relied upon Guidelines dated 17th August, 2009 issued by the Home Department as well as communication dated 20th June, 2014 issued to all Police Commissioners and District Magistrates directing them to follow guidelines dated 17th August, 2009 scrupulously.\n 8) The decision to direct deposit of arms by licence holders has been taken pursuant to the directions issued under Article 324 of the Constitution of India by the Election Commission of India. On 13th March, 1996 said directions were issued by the Election Commission for the purposes of holding free and fair elections. The said directions read as under : \"In exercise of the powers conferred on the Commissioner under Article 324 of the Constitution of India and all other powers enabling it in this behalf and in supersession of all other instructions, the Commission hereby orders that the following instructions shall be observed during all future elections; 1. Issue of licence for arms will be totally prohibited during the period commencing with the date of announcement of elections.\n This ban will continue to be operative till the completion of the election as notified.\n 2. The police should be directed to be vigilant and asked to start mopping up operations of the areas infested with known goonda and other bad elements right from the date of announcement of elections. During such mopping up operations special attentions should be paid to unearth and seize unlicensed arms and ammunition. A very thorough search and seizure by the State Police of unlicensed arms and places of indigenous manufacture of arms and ammunition shall be carried out and persons involved shall be arrested. While unearthing and seizure of unlicensed weapons is a normal ongoing responsibility of the police, it shall be vigorously intensified during the election period. Interstate and intraState movements of trucks and commercial vehicles shall be strictly checked with a view to preventing smuggling of arms and ammunition and antisocial elements. Raids should be carried out regularly and intensively on underground arms factories.\n 3. Immediately after the announcement of elections, District Magistrates shall make a detailed and individual review and assessment (in accordance with the prevalent state laws) of all licence holders so that licensed arms in those cases where they consider it essential are impounded in order to ensure maintenance of law and order so essential for ensuring free and fair elections. These arms should be deposited with the district authorities. Among cases which may need to be reviewed are the following.\n (1) persons released on bail; (2) persons having a history of criminal offences; and (3) persons previously involved in rioting at any time any but especially during the election period. (The above categories are only illustrative and not exhaustive).\n 4. After such review, all such licence holders who are identified, shall be directed to deposit their arms with the District Administration during the period of one week from the last date for withdrawal of candidatures.\n 5. The District Administration shall make fool proof arrangements for keeping the deposited fire arms in safe custody. Proper receipt must be given to the licence holders depositing the fire arms. It shall be the bounden duty of the District Administration to ensure that all fire arms deposited with the Administration are returned to the licence holders immediately after one week after the declaration of results.\n 6. Prohibitory orders under Section 144 of the Criminal Procedure Code, 1973, shall be issued banning the carrying of licensed arms as soon as an election is announced and should be effective till the declaration of results.\"\n 9) A perusal of aforesaid directions reveals that the District Magistrate is required to make a detailed and individual review and assessment of all license holders so as to consider the impounding arms of such licence holders as found necessary to ensure maintenance of law and order during elections. Certain categories of cases has been enumerated and it has been stated that said cases would be required to be reviewed. As aforesaid directions have been issued in exercise of powers conferred by Article 324 of the Constitution of India the same have binding effect.\n 10) In the case of Govind @ Bhai Ganesh Tilve (supra) the Division Bench of this Court considered the aforesaid directions issued by the Election Commission in its letter dated 13th March, 1996. It was noted that under said directions a detailed individual review and assessment of all licence holders was necessary so as to enable the District Magistrate to consider cases where it was essential to direct the licence holders to deposit the arms. It was emphasized that there could not be a blanket directions to all arms licence holders to deposit their weapons. After noticing that there was no screening committee to review cases for issuing directions to deposit arms in terms of directions issued by the Election Commission and that there was no prior review and assessment of individual cases various guidelines were laid down by this Court. A Screening Committee consisting of a District Magistrate and the Superintendent of Police was directed to be constituted. It was further directed that cases of all licence holders should be placed before the Screening Committee and after conducting the exercise of screening, the concerned licence holder could be directed to deposit his arms forthwith. The guidelines issued in Govind @ Bhai Ganesh Tilve (supra) read as under : \"a) There shall be a Screening Committee in every District and in every Commissionerate area.\n In the District the Screening Committee shall consist of the District Magistrate and the Superintendent of Police. In the Commissionerate area it shall consist of the Commissioner of Police and Joint/Additional Commissioner of Police (Admn.) b) The Screening Committee shall commence the work of screening from the day of declaration of dates of election by the Election Commission.\n c) Cases of all the license holders as laid down by the Election Commission in its directive shall be placed before the Screening Committee. The categories are : i) Persons released on bail.\n ii) Persons having a history of criminal offences; and iii)Persons involved in rioting at any time but especially during the election period. The Screening Committee shall bear in mind that the above categories are only illustrative and not exhaustive.\n d) The Screening committee shall complete the exercise of screening in respect of licences placed before it as far as possible before the 1st date of filing of nominations.\n e) On receipt of report from the Screening Committee, the licensing authority shall issue notice before the last date fixed for withdrawal of candidature to the individual licence holder for depositing his arms and inform the licence holder that failure to deposit the arms as directed would result in prosecution under Section 188 of the I.P.C. as stated in clause (h).\n f) The licence holder thereafter shall deposit his arms forthwith and in any case within a period of seven days from the date of receipt of the notice. The licensing Authority shall give proper receipt to the license holder.\n g) The decision taken by the Screening Committee shall be final.\n h) Any licence holder who fails to deposit arms within the period specified above shall be liable for prosecution under section 188 of Indian Penal Code.\n i) All the arms so deposited with the administration be returned to the licence holder within a period of one week after declaration of election results.\n j) The above timeframe should be adhered to as far as possible.\n 11) Pursuant to the aforesaid judgment, the Home Department of the State of Maharashtra has issued certain guidelines on 17th August, 2009. The said guidelines read as under : \"a) There shall be a Screening Committee in every District and in every Commissionerate area. In the District the Screening Committee shall consist of the District Magistrate and the Superintendent of Police. In the Commissionerate area it shall consist of the Commissioner of Police and Joint/Additional Commissioner of Police (Admn.) b) The Screening Committee shall commence the work of screening from the day of declaration of dates of election by the Election Commission.\n c) Cases of all the license holders as laid down by the Election Commission in its directive shall be placed before the Screening Committee. The categories are : (i) Persons released on bail.\n (ii) Persons having a history of criminal offences; and (iii) Persons involved in rioting at any time but especially during the election period. The Screening Committee shall bear in mind that the above categories are only illustrative and not exhaustive.\n d) The Screening committee shall complete the exercise of screening in respect of licences placed before it as far as possible before the 1st date of filing of nominations.\n e) On receipt of report from the Screening Committee, the licensing authority shall issue notice before the last date fixed for withdrawal of candidature to the individual licence holder for depositing his arms and inform the licence holder that failure to deposit the arms as directed would result in prosecution under Section 188 of the I.P.C.as stated in clause (h).\n f) The licence holder thereafter shall deposit his arms forthwith and in any case within a period of seven days from the date of receipt of the notice.\n The licensing Authority shall give proper receipt to the license holder.\n g) The decision taken by the Screening Committee shall be final.\n h) Any licence holder who fails to deposit arms within the period specified above shall be liable for prosecution under section 188 of Indian Penal Code.\n i) All the arms so deposited with the administration be returned to the licence holder within a period of one week after declaration of election results.\n j) The above timeframe should be adhered to as far as possible.\"\n 12) In the meetings of the Screening Committee held on 20th March,2014 and 3rd April, 2014 a blanket decision was taken calling upon about 732 arms licence holders to deposit their arms with the concerned authority. The said minutes indicate that each case was not independently reviewed as per the directions issued by the Election Commission on 13th March, 1996 and the guidelines issued in terms of the judgment of this Court in Govind @ Bhai Ganesh Tilve's case. Pursuant to the aforesaid meetings, the impugned orders have been issued in both these writ petitions directing the petitioners to deposit their arms with the police authorities. It is, therefore, obvious that the screening committee without examining the individual cases of the petitioners has directed them to deposit their arms. The object behind directing deposit of arms is to ensure holding of free and fair elections and maintenance of law and order. It is with that object that a direction has been issued to review each case individually. It is, therefore, clear that the impugned orders issued in both these writ petitions are in contravention of the directions dated 13th March, 1996 issued by the Election Commission as well as guidelines dated 17th August, 2009 issued by the Home Department pursuant to the judgment in Govind @ Bhai Ganesh Tilve's case (supra). On this short ground, the impugned orders are required to be set aside.\n 13) It is to be noted that the directions issued by the Election Commission on 13th March, 1996 are clear that it is necessary to make a detailed individual review and assessment of all licence holders. In the said directions some categories have been illustrated and cases falling in the said categories are required to be reviewed. Said directions were reiterated in the guidelines laid down by this Court in Govind @ Bhai Ganesh Tilve's case (supra). Despite guidelines dated 17th August,2009 having been issued it is noticed that the same are not at all being followed in their true letter and spirit. Blanket orders are being passed directing all licence holders to deposit their arms with the police authorities. As observed by this Court in Govind @ Bhai Ganesh Tilve's case (supra) a law abiding citizen who has been issued a licence to possess arms can consider the order directing him to surrender his arms as an affront to his dignity and status.\n Despite clear directions being issued by the Election Commission it is to be noted that the Screening Committee has failed to implement the same. Similarly, guidelines dated 17th August, 2009 are also not being scrupulously followed.\n 14) At this stage, it would be necessary to note the anomaly in the guidelines dated 17th August, 2009 issued by the Home Department. In direction No.3 dated 13th March, 1996 issued by the Election Commission, while emphasizing the need to make an individual review and assessment of all licence holders it has been directed that there are category of cases in which review would be necessary. (emphasis supplied). It is further stated that said categories were only illustrative and not exhaustive.\n Guideline (c) issued on 17th August, 2009 reads as under: c) Cases of all the license holders as laid down by the Election Commission in its directive shall be placed before the Screening Committee. The categories are : \"(i) Persons released on bail.\n (ii) Persons having a history of criminal offences; and (iii) Persons involved in rioting at any time but especially during the election period. The Screening Committee shall bear in mind that the above categories are only illustrative and not exhaustive.\"\n 15) The guidelines merely categorize persons released on bail, persons having history of criminal offences and persons involved in rioting especially during election period. It has not been mentioned in the said guidelines that cases of persons falling in such categories are required to be reviewed. Thus, the emphasis placed by the Election Commission on the need to review cases of such license holders falling in the aforesaid categories has been lost sight of by the Home Department while issuing guidelines dated 17th August, 2009. The aforesaid categories comprise of such persons who though are issued arms licences could be involved in acts resulting in law and order situation. Hence, directions in that regard have been issued by the Election Commission that cases of such persons are required to be reviewed. The Home Department would therefore be required to modify the said guidelines to bring them in tune with direction No.3 issued by the Election Commission on 13th March, 1996. This will ensure compliance with the aforesaid directions in their true letter and spirit.\n 16) It is further noticed that the State Government has not framed any guidelines whatsoever with regard to functioning of the screening committee. Though the Screening Committee has been constituted in terms of guidelines issued in Govind @ Bhai Ganesh Tilve's case (supra) there are no guidelines with regard to manner in which the said Screening Committee shall function. The Screening Committee will have to peruse the record of all licence holders. The Committee should have access to the police record of all the licence holders. The guidelines should provide that a detailed review and assessment of individual cases be made. Considering its nature of work and the duty assigned to it, it is necessary that the State Government frames appropriate guidelines with regard to functioning of the Screening Committee. As the Screening Committee has been assigned the duty of individual review and assessment of cases of all licence holders, it would be appropriate if the State Government issues guidelines to enable the Screening Committee to function in a responsible and transparent manner.\n This would also ensure compliance with the directions issued by the Election Commission under Article 324 of the Constitution of India.\n 17) In view of the aforesaid, we pass the following order: ORDER.\n (A) Both the writ petitions are allowed; (B) The impugned orders dated 3rd April,2014 issued by the Additional District Magistrate, Satara in both the writ petitions is quashed and set aside; (C) The Home Department of the State of Maharashtra shall take all necessary steps to reframe guideline (c) issued on 17th August, 2009 in terms of observations made in paragraphs 14 and 15 of this judgment; (D) The Home Department of the State of Maharashtra is directed to issue guidelines in the matter of functioning of the Screening Committee constituted for review of the cases of licenced arms holders within a period of six weeks from today; (E) Both the writ petitions shall stand disposed of in the aforesaid terms with no order as to costs; (F) For reporting compliance in the matter of framing of guidelines with regard to functioning of the Screening Committee, the matter shall be placed on board on 22nd September, 2014 under the caption of \"directions\".\n (A.S. CHANDURKAR, J) (A.S. OKA, J) "
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"text": " IN THE HIGH COURT OF KARNATAKA\n DHARWAD BENCH\n\nDATED THIS THE 21ST DAY OF SEPTEMBER, 2015"
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"text": "\n\n PRESENT\n\nTHE HONOURABLE MR.JUSTICE ANAND BYRAREDDY\n\n AND\n\n THE HONOURABLE MRS.JUSTICE S.SUJATHA\n\n INCOME TAX APPEAL NO.100062 OF 2014\n\nBETWEEN\n\n"
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"text": "Shri Veershaiv"
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"text": "Co-operative\nCredit Society Ltd.,\nNipani, Taluk: Chikodi,\nDistrict: Belgaum,"
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"text": "By its Secretary\nShri Subhash Shivaram Jabade,\nAged major,\nResident of Nipani,\nTaluk: Chikodi,\nDistrict: Belgaum.\n\n ... APPELLANT.\n\n(By Shri Sharad V. Magadum, Advocate)\n\nAND\n\n1. The Commissioner of Income Tax (Appeals),\n 3rd Floor, Phiroz Khimji Complex,\n\n Opposite to Civil Hospital,\n\n Dr. Ambedkar Road,\n\n Belagavi-590 001.\n\n\n2."
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"text": "The Income Tax Officer\n Ward No.1,\n Nipani, Taluk: Chikodi,\n District: Belgaum."
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"text": "(By Sri. Y V RAVIRAJ, ADVOCATE)"
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"text": "THIS ITA IS FILED U/SEC.260A OF THE INCOME-TAX\nACT, 1961 AGAINST THE ORDER PASSED IN ITA\nNO.210/PNJ/2013 DATED 04.04.2014 ON THE FILE OF THE\nINCOME TAX APPELLANT TRIBUNAL, PANAJI BENCH,\nPANAJI, DISMISSING THE APPEAL FILED BY THE\nASSESSEE, AND ETC.\n\n This appeal having been heard and reserved, and coming\non for pronouncement of judgment, this day, Anand Byrareddy\nJ., delivered the following:\n\nJUDGMENT"
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"text": "This appeal is by the assessee under the Income Tax Act, 1961 (Hereinafter referred to as the 'IT Act, for brevity)."
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"labels": [
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"text": "The assessee is said to be a Co-operative Society registered under the Karnataka State Co-operative Societies Act, 1956, (Hereinafter referred to as the `KCS Act', for brevity)."
}
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"text": "2. The appeal pertains to the Assessment year 2010-11."
}
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"labels": [
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],
"start": 1721,
"text": "\nThe appellant - Society had filed its return of income for the assessment year 2010-11, and after claiming deduction under Section 80 P(2) (a) (i) of the IT Act, the total income was declared as 'nil'."
}
},
{
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"labels": [
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],
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"text": "\n The Assessing Officer had however, opined that the assessee was not entitled to the deduction, as claimed, for the reason, inter alia, that the activity of the appellant was covered by Section 2 (24 (vii a) of the IT Act, which requires the inclusion of profits and gains of any business of banking (including providing credit facilities) carried on by a co- operative society."
}
},
{
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"labels": [
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],
"start": 2302,
"text": "\n Reference was made to the Explanation appended to Section 80 P (4) - which lays down that a co-operative bank and a primary agricultural credit society, shall have the same meaning assigned to them in Part V of the Banking Regulation Act, 1949 (Hereinafter referred to as the 'BR Act' , for brevity.)"
}
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"labels": [
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"text": "It was held that the Bye -laws of the Assessee indicated that their primary object was transactions that were apparently in the nature of banking."
}
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"labels": [
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],
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"text": "In that, the assessee was receiving deposits from its members and providing loans to other members and hence it satisfied all the three conditions contemplated under Section 56 (ccv) of the BR Act."
}
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"text": "For this premise, the Assessing Officer had proceeded on the basis that a primary co-operative bank, meant a Co-operative Society."
}
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"text": "Therefore, the Assessing Officer held that the appellant society being a primary co- operative bank, was not eligible for deduction under Section 80 P of the IT Act."
}
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"text": "3. The appellant - Society had then preferred an appeal before the Commissioner of Income Tax (Appeals) challenging the above order of the Assessing Officer."
}
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"text": "The same was said to have been dismissed."
}
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"text": "\n The appellant had then approached the Income Tax Appellate Tribunal."
}
},
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"labels": [
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],
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"text": "The Tribunal having affirmed the concurrent findings of the above authorities, the appellant is before this court."
}
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"end": 4015,
"labels": [
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],
"start": 3634,
"text": "4. The questions of law that arise for our consideration in this appeal are : i. Whether the benefit of deduction, under Section 80 P (2) (a) (i) of the IT Act, could be denied to the assessee on the footing that, though the appellant was said to be a Co-operative Society, it was in fact a co-operative bank, within the meaning as assigned to such bank under Part V of the BR Act."
}
},
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"to_name": "text",
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"labels": [
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],
"start": 4017,
"text": "ii. Whether the Authorities under the IT Act were competent and possessed the jurisdiction to resolve the controversy as to whether the assessee was a co-operative society or co-operative bank, as defined under the provisions of the BR Act?\""
}
},
{
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"to_name": "text",
"type": "labels",
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"end": 4362,
"labels": [
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],
"start": 4258,
"text": "\n 5. In addressing the above, it would be useful to extract the relevant provisions for ready reference."
}
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"value": {
"end": 4689,
"labels": [
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],
"start": 4362,
"text": "\n \"80P. (1) Where, in the case of an assessee being a co-operative society, the gross total income includes any income referred to in sub-section (2), there shall be deducted, in accordance with and subject to the provisions of this section, the sums specified in sub-section (2), in computing the total income of the assessee."
}
},
{
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"id": "e9de6a3431714dada769d8d8f55af002",
"to_name": "text",
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"value": {
"end": 5160,
"labels": [
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],
"start": 4689,
"text": "\n (2) The sums referred to in sub-section (1) shall be the following, namely :-- (a) in the case of a co-operative society engaged in-- (i) carrying on the business of banking or providing credit facilities to its members, or (ii) x x x x x (iii) x x x x x x x x x x (4) The provisions of this section shall not apply in relation to any co-operative bank other than a primary agricultural credit society or a primary co- operative agricultural and rural development bank."
}
},
{
"from_name": "label",
"id": "d68618043cac49f98bd03ea33cb811e0",
"to_name": "text",
"type": "labels",
"value": {
"end": 5176,
"labels": [
"STA"
],
"start": 5160,
"text": "\n Explanation.--"
}
},
{
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"id": "eeec45cff7964c7da2807331f878c1e5",
"to_name": "text",
"type": "labels",
"value": {
"end": 5649,
"labels": [
"STA"
],
"start": 5177,
"text": "For the purposes of this sub- section, (a) \"co-operative bank\" and \"primary agricultural credit society\" shall have the meanings respectively assigned to them in Part V of the Banking Regulation Act, 1949 (10 of 1949); (b) \"primary co-operative agricultural and rural development bank\" means a society having its area of operation confined to a taluk and the principal object of which is to provide for long-term credit for agricultural and rural development activities.]\""
}
},
{
"from_name": "label",
"id": "2aaee9b66b3d41c4975e8a0ff51ac816",
"to_name": "text",
"type": "labels",
"value": {
"end": 5742,
"labels": [
"STA"
],
"start": 5649,
"text": "\n \"Section 56 of the BR Act:- Act to apply to co-operative societies subject to modifications"
}
},
{
"from_name": "label",
"id": "917197e51af24e079b1420b372e5b8f9",
"to_name": "text",
"type": "labels",
"value": {
"end": 7150,
"labels": [
"STA"
],
"start": 5742,
"text": ". --The provisions of this Act, as in force for the time being, shall apply to, or in relation to, co- operative societies as they apply to, or in relation to banking companies subject to the following modifications, namely:-- (a) throughout this Act, unless the context otherwise requires,-- (i) references to a \"banking company\" or \"the company\" or \"such company\" shall be construed as references to a co-operative bank; (ii) references to \"commencement of this Act\" shall be construed as references to commencement of the Banking Laws (Application to Co-operative Societies) Act, 1965 (23 of 1965); (b) in section 2, the words and figures \"the Companies Act, 1956 (1 of 1956) and\" shall be omitted; (c) in section 5,-- [(i) after clause (cc), the following clauses shall be inserted, namely:-- (cci) \"Co-operative bank\" means a state co- operative bank, a central co-operative bank and a primary co-operative bank; (ccii) \"co-operative credit society\" means a co- operative society, the primary object of which is to provide financial accommodation to its members and includes a co- operative land mortgage bank; (cciia) \"co-operative society\" means a society registered or deemed to have been registered under any Central Act for the time being in force relating to the multi-State co-operative societies, or any other Central or State law relating to co-operative societies for the time being in force;]"
}
},
{
"from_name": "label",
"id": "f47e17df65df427d9863ed21139c2c90",
"to_name": "text",
"type": "labels",
"value": {
"end": 8049,
"labels": [
"STA"
],
"start": 7151,
"text": "(cciii) \"director\" in relation to a co-operative society, includes a member of any committee or body for the time being vested with the management of the affairs of that society; [(cciiia) \"multi-State co-operative bank\" means a multi-State co-operative society which is a primary co- operative bank;] [(cciiib) \"multi-State co-operative society\" means a multi-State co-operative society registered as such under any Central Act for the time being in force relating to the multi-State co-operative societies but does not include a national co-operative society and a federal co-operative;] (cciv) \"primary agricultural credit society\" means a co-operative society,-- (1) the primary object or principal business of which is to provide financial accommodation to its members for agricultural purposes or for purposes connected with agricultural activities (including the marketing of crops); and (2)"
}
},
{
"from_name": "label",
"id": "f2fffdb86400454fb7997b6f57832f65",
"to_name": "text",
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"value": {
"end": 8140,
"labels": [
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],
"start": 8050,
"text": "the bye-laws of which do not permit admission of any other co-operative society as member:"
}
},
{
"from_name": "label",
"id": "4376dd18c31745dc8fef301c71e1505a",
"to_name": "text",
"type": "labels",
"value": {
"end": 8802,
"labels": [
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],
"start": 8141,
"text": "Provided that this sub-clause shall not apply to the admission of a co-operative bank as a member by reason of such co-operative bank sub-scribing to the share capital of such co-operative society out of funds provided by the State Government for the purpose; (ccv) \"primary co-operative bank\" means a co- operative society, other than a primary agricultural credit society,-- (1) the primary object or principal business of which is the transaction of banking business; (2) the paid-up share capital and reserves of which are not less than one lakh of rupees; and (3) the bye-laws of which do not permit admission of any other co-operative society as a member:"
}
},
{
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"id": "4ac4fff14da54404b71f314533ad780c",
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"end": 9734,
"labels": [
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],
"start": 8803,
"text": "Provided that this sub-clause shall not apply to the admission of a co-operative bank as a member by reason of such co- operative bank subscribing to the share capital of such co-operative society out of funds provided by the State Government for the purpose; (ccvi) \"primary credit society\" means a co- operative society, other than a primary agricultural credit society,-- (1) the primary object or principal business of which is the transaction of banking business; (2) the paid-up share capital and reserves of which are less than one lakh of rupees; and (3) the bye-laws of which do not permit admission of any other co-operative society as a member: Provided that this sub-clause shall not apply to the admission of a co-operative bank as a member by reason of such co-operative bank subscribing to the share capital of such co-operative socie-ty out of funds provided by the State Government for the purpose.\n Explanation.--"
}
},
{
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"end": 9955,
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"start": 9735,
"text": "If any dispute arises as to the primary object or principal business of any co-operative society referred to in clauses (cciv), (ccv) and (ccvi), a determination thereof by the Reserve Bank shall be final; x x x x x x 6."
}
},
{
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"start": 9956,
"text": "In so far as the first question of law is concerned, there are a series of decisions of this court wherein it has been repeatedly answered in favour of the assessee."
}
},
{
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],
"start": 10122,
"text": "Two of the said decisions are as follows : 1. CIT v. Sri Biluru Gurubasava Pattina Sahakari Sangha Niyamitha in ITA No.5006/2013 2. CIT vs. Bangalore Commercial Transporter Credit Society in ITA No.351/2011 & ITA No.599/2013"
}
},
{
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"to_name": "text",
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"labels": [
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],
"start": 10347,
"text": "In interpreting Section 80 P (4) in CIT v. Sri Biluru Gurubasava Pattina Sahakari Sangha Niyamitha of the I T Act, it was held as follows : \"If a Co-operative Bank is exclusively carrying on banking business, then the income derived from the said business cannot be deducted in computing the total income of the assessee."
}
},
{
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"labels": [
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],
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"text": "The said income is liable for tax."
}
},
{
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"to_name": "text",
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"labels": [
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],
"start": 10704,
"text": "A Co-operative bank as defined under the Banking Regulation Act includes the primary agricultural credit society or a primary co-operative agricultural and rural development bank."
}
},
{
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"end": 11046,
"labels": [
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],
"start": 10884,
"text": "The Legislature did not want to deny the said benefits to a primary agricultural credit society or a primary co-operative agricultural and rural development bank."
}
},
{
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"id": "99d2519e188e4be387ff515b8ed76a5b",
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"labels": [
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],
"start": 11047,
"text": "They did not want to extend the said benefit to a Co- operative bank which is exclusively carrying on banking business i.e. the purport of this amendment."
}
},
{
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"id": "8bbc7e6d2fa145c49f4cac032fa0fe31",
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"labels": [
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],
"start": 11202,
"text": "Therefore, as the assessee is not a Co-operative bank carrying on exclusively banking business and as it does not possess a licence from Reserve Bank of India to carry on business, it is not a Co-operative bank."
}
},
{
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"id": "dd2f65c91be54d649b365795c5aad395",
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"end": 11642,
"labels": [
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],
"start": 11414,
"text": "It is a Co-operative society which also carries on the business of lending money to its members which is covered under Section 80P(2)(a)(i) i.e. carrying on the business of banking for providing credit facilities to its members."
}
},
{
"from_name": "label",
"id": "207928cdf1ea47189a99b8cd1dd613d6",
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"value": {
"end": 11757,
"labels": [
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],
"start": 11643,
"text": "The object of the aforesaid amendment is not to exclude the benefit extended under Section 80P(1) to such society."
}
},
{
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"id": "3f7ad4022d9e404a882713658838c00f",
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"type": "labels",
"value": {
"end": 11826,
"labels": [
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],
"start": 11758,
"text": "Therefore, there was no error committed by the Assessing Authority.\""
}
},
{
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"id": "21fecfa7d9414d6fa6c43dbfdcddba3c",
"to_name": "text",
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"end": 12272,
"labels": [
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],
"start": 11826,
"text": "\n In CIT vs. Bangalore Commercial Transporter Credit Society (supra), this court has cited with approval the following differences between a co-operative society and a co-operative bank - as depicted by the Tribunal, in tabular form thus : Nature Co-operative society Co-operative Society registered under registered under Banking Regulation Karnataka Co- Act, 1949 operative Society Act, 1959 Registration"
}
},
{
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"id": "55843038583e46b2b3b08e7288f7b627",
"to_name": "text",
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"value": {
"end": 12389,
"labels": [
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],
"start": 12273,
"text": "Under the Banking Co-operative Societies Regulation Act, 1949 Act, 1959 and Co-operative Societies Act, 1959"
}
},
{
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"id": "13031b5aa33e4cbf83cdb10355a93b0b",
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"value": {
"end": 12402,
"labels": [
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],
"start": 12390,
"text": "Nature of 1."
}
},
{
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"end": 12419,
"labels": [
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],
"start": 12403,
"text": "As defined in 1."
}
},
{
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"id": "d86c600f8cbd4da3831fd79082abe0e8",
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"type": "labels",
"value": {
"end": 12505,
"labels": [
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],
"start": 12420,
"text": "As per the bye laws business Section 6 of Banking of the co-operative Regulation Act."
}
},
{
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"id": "b7c5a1fa44304196b0e9c0c2a05570e9",
"to_name": "text",
"type": "labels",
"value": {
"end": 12548,
"labels": [
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],
"start": 12516,
"text": "society.\n 2. Can open savings 2."
}
},
{
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"id": "ad40f3241beb4664bbca265317952c49",
"to_name": "text",
"type": "labels",
"value": {
"end": 12969,
"labels": [
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],
"start": 12549,
"text": "Society cannot open bank account, current savings bank account, account, overdraft current account, issue account, cash credit letter of credit, account, issue letter of discounting bills of credit, discounting bills exchange, issue of exchange, issue cheque, demand drafts, cheques, demand drafts pay orders, gift (DD), Pay orders, Gift cheques, lockers, bank cheques, lockers, bank guarantees etc.\n guarantees etc."
}
},
{
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"id": "8917a2bbbcbd4ddd9cb87894d7b9976d",
"to_name": "text",
"type": "labels",
"value": {
"end": 12995,
"labels": [
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],
"start": 12971,
"text": "3. Society cannot act 3."
}
},
{
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"id": "3ff59b21a6894b6eb3ae061f7d84d5ba",
"to_name": "text",
"type": "labels",
"value": {
"end": 13115,
"labels": [
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],
"start": 12996,
"text": "Co-operative Banks clearing agent, for can act as clearing cheques, DDs, pay agent for cheques, orders and other forms."
}
},
{
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"id": "e09bb8982f9a4ea18aafb9831853106d",
"to_name": "text",
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"end": 13149,
"labels": [
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],
"start": 13115,
"text": "\n DDs, pay orders and other forms."
}
},
{
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"id": "01b25ad4b52e4e97acd26850ca9de08d",
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"value": {
"end": 13214,
"labels": [
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],
"start": 13150,
"text": " 4. Society are bound by rules and regulations as 4."
}
},
{
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"id": "8adee59d8ebd448dae23fe79b858b688",
"to_name": "text",
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"value": {
"end": 13300,
"labels": [
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],
"start": 13215,
"text": "Banks are bound to specified by in the co- follow the rules, operative societies act."
}
},
{
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"id": "83c2e9f720d545e4a35fedf0bbfccb7c",
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"value": {
"end": 13406,
"labels": [
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],
"start": 13300,
"text": "\n regulations and directions issued by Reserve Bank of India (RBI).\n Filing of Co-operative banks"
}
},
{
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"id": "b53491fc396d4673875b14fd23a82fd5",
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"type": "labels",
"value": {
"end": 13531,
"labels": [
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],
"start": 13407,
"text": "Society has to submit returns have to submit annual the annual return to return to RBI every Registrar of Societies.\n year."
}
},
{
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"id": "96dd9371e25c44c4b0480554d8fc4351",
"to_name": "text",
"type": "labels",
"value": {
"end": 13689,
"labels": [
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],
"start": 13531,
"text": "\n Inspection RBI has the power to Registrar has the power inspect accounts and to inspect accounts and overall functioning of overall functioning of the Bank."
}
},
{
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"id": "dee77662e5374642a2566b87904d0aed",
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"value": {
"end": 13715,
"labels": [
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],
"start": 13690,
"text": " the bank."
}
},
{
"from_name": "label",
"id": "2cea94ca58b64f89ae2ceb496b35a03f",
"to_name": "text",
"type": "labels",
"value": {
"end": 13888,
"labels": [
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],
"start": 13715,
"text": "\n Part V Part V of the Banking Part V of the Banking Regulation Act is Regulation Act is not applicable to co- applicable to co- operative banks. operative banks."
}
},
{
"from_name": "label",
"id": "274b609174164897aee3b5dac9a69030",
"to_name": "text",
"type": "labels",
"value": {
"end": 13901,
"labels": [
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],
"start": 13888,
"text": "\n Use of"
}
},
{
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"id": "6805890c38d64d8c89446f08d8e3db74",
"to_name": "text",
"type": "labels",
"value": {
"end": 14074,
"labels": [
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],
"start": 13902,
"text": "The word `bank', The word `bank', words `banker', `banking' can `banker', `banking' be used by a co- cannot be used by a co- operative bank. operative society."
}
},
{
"from_name": "label",
"id": "a06bf0ad156341da91c69eb947837bc5",
"to_name": "text",
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"value": {
"end": 14229,
"labels": [
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],
"start": 14074,
"text": "\n And this court had dismissed the appeal of the revenue following the decision in CIT v. Sri Biluru Gurubasava Pattina Sahakari Sangha Niyamitha (supra )."
}
},
{
"from_name": "label",
"id": "aa808711d49f4d409c9505b3d63f436b",
"to_name": "text",
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"value": {
"end": 14363,
"labels": [
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],
"start": 14229,
"text": "\nThe same view has been taken in the following decisions : 1. CIT vs. Bangalore Credit Co-operative Society Ltd. in ITA No.598/2013 2."
}
},
{
"from_name": "label",
"id": "9cfe8a1b87224efbb0886154fb298910",
"to_name": "text",
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"value": {
"end": 14768,
"labels": [
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],
"start": 14364,
"text": "CIT vs. Yeshwanthpur Credit Co-operative Society Ltd. in ITA 237/2012 3. CIT vs. Mysore University Employees Co-operative Credit Society Ltd. in ITA 298/2013 4. CIT vs. Vasavi Credit Co-operative Society Ltd. in ITA No.118/2012 5. CIT vs. Sri Vasavi Multi Purpose Souharda Sahakari Sangha Niyamitha in ITA No.505/2013 6. CIT vs. General Insurance Employees Co-operative Society Ltd. in ITA No.273/2013.\n "
}
},
{
"from_name": "label",
"id": "81bfbfda9ac9462ca533662981851e49",
"to_name": "text",
"type": "labels",
"value": {
"end": 15102,
"labels": [
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],
"start": 14768,
"text": "7. The learned counsel Shri A. Shankar while drawing attention of this court to the tenor of the relevant provisions of law and the above decisions, would contend that this court has categorically held that the assessee, as a co-operative society, was entitled to the benefit of deduction under Section 80 P (2) (a) (i) of the IT Act."
}
},
{
"from_name": "label",
"id": "fc45a7765e124f3ab66ad1ac0f920051",
"to_name": "text",
"type": "labels",
"value": {
"end": 15231,
"labels": [
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],
"start": 15103,
"text": "Notwithstanding the aforesaid decisions of this court, the Tribunal which was bound by the same, has ignored the said decisions."
}
},
{
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"id": "c671249195d2421b9bde14240c5504f2",
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"end": 15550,
"labels": [
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],
"start": 15231,
"text": "\n It is also pointed out that though other benches of the Appellate Tribunal had followed the dictum of this court, and which circumstance was brought to the attention of the Tribunal, it had not chosen to distinguish the said decisions nor has it chosen to refer the matter to a special bench, as propriety demanded.\n "
}
},
{
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"to_name": "text",
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"value": {
"end": 15736,
"labels": [
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],
"start": 15550,
"text": "It is hence contended that the point of law as to the entitlement of deduction under Section 80 P (2) (a) (i) in so far as the assessee is concerned, would have to be held in its favour."
}
},
{
"from_name": "label",
"id": "5c19064cb3df4968985cd88bb87773c0",
"to_name": "text",
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"value": {
"end": 15885,
"labels": [
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],
"start": 15736,
"text": "\n He would contend that all co-operative banks may be co- operative Societies, but all co-operative Societies are not necessarily co-operative banks."
}
},
{
"from_name": "label",
"id": "82d8179cedbd46f5baeb74299c60fd2d",
"to_name": "text",
"type": "labels",
"value": {
"end": 16203,
"labels": [
"STA"
],
"start": 15885,
"text": "\n It is further contended that the activity of \"banking\", is defined under Section 5 (b) of the BR Act as follows : \"5(b) \"banking\" means the accepting, for the purpose of lending or investment, of deposits of money from the public, repayable on demand or otherwise, and withdrawal by cheque, draft, order or otherwise"
}
},
{
"from_name": "label",
"id": "9f98a59732d642b7a25cb17b5721b6a9",
"to_name": "text",
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"value": {
"end": 16273,
"labels": [
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],
"start": 16203,
"text": "; It is asserted that the assessee did not carry on any such activity."
}
},
{
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"id": "6d3e80bfc8bf42958e19e1350d04a09d",
"to_name": "text",
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"value": {
"end": 16400,
"labels": [
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],
"start": 16274,
"text": "And if they did carry on any such activity, it would be illegal and becomes subject to the rigour of Section 37 of the BR Act."
}
},
{
"from_name": "label",
"id": "dd71b26a55c142a18567e61a8e61e2e6",
"to_name": "text",
"type": "labels",
"value": {
"end": 16527,
"labels": [
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],
"start": 16401,
"text": "It is further contended that even if there was a disputed question as to whether the assessee was indeed a co- operative bank."
}
},
{
"from_name": "label",
"id": "7c8b03b579634d83a4b30d54a6d5d739",
"to_name": "text",
"type": "labels",
"value": {
"end": 16998,
"labels": [
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],
"start": 16528,
"text": "The authorities under the IT Act were not competent and did not have the jurisdiction to arrive at a finding in that regard and attention is drawn to the Explanation appended to clause (ccvi ) to Section 56 of the BR Act, which reads as follows : \"Explanation- If any dispute arises as to the primary object or principal business of any co- operative society referred to in clauses (cciv), (ccv) and (ccvi), a determination thereof by the Reserve Bank shall be final;\"\n "
}
},
{
"from_name": "label",
"id": "d7d221a84e9e4d9a8d06b4af76db4888",
"to_name": "text",
"type": "labels",
"value": {
"end": 17093,
"labels": [
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],
"start": 16998,
"text": "It is hence contended that the appeal be allowed and the judgment of the Tribunal be set aside."
}
},
{
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"id": "a18e2b624fae45849a6d187a6a94e8cb",
"to_name": "text",
"type": "labels",
"value": {
"end": 17376,
"labels": [
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],
"start": 17093,
"text": "\n 8. On the other hand, the learned counsel Shri Y.V.\nRaviraj, appearing on behalf of the Revenue contends as follows : Section 80P(2)(a)(i) provides deduction of income of co- operative societies \"carrying on the business of banking or providing credit facilities to its members\".\n "
}
},
{
"from_name": "label",
"id": "dcc4b12d5b464f3c9545d9c0aa50dc95",
"to_name": "text",
"type": "labels",
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"end": 17636,
"labels": [
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],
"start": 17376,
"text": "However, an exception to this is provided under Section 80P(4) which provides that this deduction will not be available to any co-operative bank other than a primary agricultural credit society or a primary co-operative agricultural and rural development bank."
}
},
{
"from_name": "label",
"id": "97592aa30eab4852bafe75bea7c4f6f3",
"to_name": "text",
"type": "labels",
"value": {
"end": 17785,
"labels": [
"STA"
],
"start": 17636,
"text": "\n For the purpose of sub-section 80P(4), a co-operative bank has been given a meaning assigned to them in Part V of the Banking Regulation Act, 1949."
}
},
{
"from_name": "label",
"id": "3b5d5e8878754eec991289de24be0d5d",
"to_name": "text",
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"value": {
"end": 17963,
"labels": [
"STA"
],
"start": 17785,
"text": "\n In Part V of the Banking Regulation Act, 1949, section 5(b), a \"co-operative bank\" means a State Co-operative Bank, a Central Co-operative Bank and a Primary Co-operative Bank."
}
},
{
"from_name": "label",
"id": "282c1cc0b2d34acf9fe27b377c74d967",
"to_name": "text",
"type": "labels",
"value": {
"end": 18408,
"labels": [
"STA"
],
"start": 17965,
"text": "A Primary Co-operative Bank is defined in section 5(ccv) of the Banking Regulation Act, 1949 as the co-operative society which fulfills three conditions namely: i) The primary object or principal business of which is transaction of banking business.\n ii) The paid-up share capital and reserves of which are not less than one lakh of rupees and iii) The bye-laws of which do not permit admission of any other co-operative society as a member.\n "
}
},
{
"from_name": "label",
"id": "f056568c3075402f8942284135ea9388",
"to_name": "text",
"type": "labels",
"value": {
"end": 18618,
"labels": [
"STA"
],
"start": 18408,
"text": "If a co-operative society fulfills all the above three conditions, it is to be treated as a co-operative bank for the purpose of section 80P(4) and the benefit of deduction under Section 80P(2)(a)(i) is denied."
}
},
{
"from_name": "label",
"id": "520d6019a53a47548ca4ebedc7127bfc",
"to_name": "text",
"type": "labels",
"value": {
"end": 18841,
"labels": [
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],
"start": 18618,
"text": "\n After insertion of Section 80P(4), the provisions of Section 80P(2)(a)(i) were not amended and the co-operative societies engaged in carrying on business in banking with its members continued to be entitled for deduction."
}
},
{
"from_name": "label",
"id": "4b968353422d4ea7b370b654b0aecf52",
"to_name": "text",
"type": "labels",
"value": {
"end": 19104,
"labels": [
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],
"start": 18841,
"text": "\n The embargo put under Section 80P(4) are applicable only to a co-operative society, treated as a bank by a legal fiction created under Section 80P(4) as defined in the Explanation to the said section with reference to Part V of the Banking Regulation Act, 1949."
}
},
{
"from_name": "label",
"id": "6b1060e3683c48809332aa5b48416a6f",
"to_name": "text",
"type": "labels",
"value": {
"end": 19384,
"labels": [
"ANALYSIS"
],
"start": 19104,
"text": "\n However, if an assessee society does not fulfill any of the above three conditions as defined under Section 5(ccv) of Banking Regulation Act, 1949, it cannot be treated as a `primary co-operative bank' and as such will be eligible to get the deduction under Section 80P(2)(a)(i)"
}
},
{
"from_name": "label",
"id": "da86541f7f3548b4ae07d107b8b5188e",
"to_name": "text",
"type": "labels",
"value": {
"end": 19855,
"labels": [
"ANALYSIS"
],
"start": 19385,
"text": "Attention is also drawn to the relevant portion of the Finance Minister's Budget Speech explaining the reasons for withdrawal of tax benefits to some Societies by way of insertion of sub-section 80P(4) and insertion of new sub-clause (viia) in clause (24) of Section 2 definition of \"income\" by the Finance Act, 2006, with effect from 1.4.2007, is as under: \"The Co-operative banks are functioning at par with other commercial banks, which do not enjoy any tax benefits."
}
},
{
"from_name": "label",
"id": "eaf31adf46f846218a35892f5f8fae53",
"to_name": "text",
"type": "labels",
"value": {
"end": 20148,
"labels": [
"ANALYSIS"
],
"start": 19856,
"text": "It is, therefore proposed to amend section 80P by inserting a new sub-section (4) so as to provide that the provisions of the said section shall not apply in relation to any co-operative bank other than primary credit society or a primary co-operative agricultural and rural development bank."
}
},
{
"from_name": "label",
"id": "914e51488eb64750b04c1fb33317793e",
"to_name": "text",
"type": "labels",
"value": {
"end": 20323,
"labels": [
"ANALYSIS"
],
"start": 20149,
"text": "It is also proposed to define the expressions \"co-operative bank\", \"primary agricultural credit society\" and \"primary co-operative agricultural and rural development bank\".\n "
}
},
{
"from_name": "label",
"id": "e05f4b27b8b244c4b6b82e409260e7b8",
"to_name": "text",
"type": "labels",
"value": {
"end": 20699,
"labels": [
"STA"
],
"start": 20323,
"text": "It is also proposed to insert a new sub-clause (viia) in clause (24) of the Section 2 so as to provide that ttheprofits and gains of any business of banking (including providing credit facilities) carried on by a co-operative society with its members shall be included in the definition of \"income\".\n Section 2(24(viia) of the Income Tax Act inserted by the Finance Act, 2006,"
}
},
{
"from_name": "label",
"id": "719608e98a9c4e239365b5759b09c4a1",
"to_name": "text",
"type": "labels",
"value": {
"end": 20930,
"labels": [
"STA"
],
"start": 20700,
"text": "with effect from 1.4.2007 includes the following in its definition of \"income\" as under: \"profits and gains of any business of banking (including providing credit facilities) carried on by a co-operative society with its members.\""
}
},
{
"from_name": "label",
"id": "74240b4656af44e59ca021cdaf0075cb",
"to_name": "text",
"type": "labels",
"value": {
"end": 21304,
"labels": [
"STA"
],
"start": 20932,
"text": "The relevant portion of Section 80P is as under: \"80P(1): Where, in the case of an assessee being a co-operative society, the gross total income includes any income referred to in sub-section (2), there shall be deducted, in accordance with an subject to the provisions of this section, the sums specified in sub-section (2), in computing the total income of the assessee."
}
},
{
"from_name": "label",
"id": "8fb7b0c463984979ae025966c6611ef6",
"to_name": "text",
"type": "labels",
"value": {
"end": 21743,
"labels": [
"STA"
],
"start": 21304,
"text": "\n (2) The sum referred to in sub-section (1) shall be the following, namely:- (a) the case of a co-operative society engaged in :- (i) Carrying on the business of banking or providing credit facilities to its memebrs, or ......\n (ii) ....................\n (iii) ....................\n (iv) ....................\n (v) ....................\n (vi) ....................\n "
}
},
{
"from_name": "label",
"id": "b6591803a9484dd3949af9b6521747f6",
"to_name": "text",
"type": "labels",
"value": {
"end": 21786,
"labels": [
"STA"
],
"start": 21743,
"text": "(vii) ....................\n "
}
},
{
"from_name": "label",
"id": "6118d34f0f574a8ab4642dd88b1dc4fb",
"to_name": "text",
"type": "labels",
"value": {
"end": 21894,
"labels": [
"STA"
],
"start": 21786,
"text": "The whole of the amount of profits and gains of business attributable to any one or more of such activities."
}
},
{
"from_name": "label",
"id": "d466941207ed4e1ea89f29695f9a6d38",
"to_name": "text",
"type": "labels",
"value": {
"end": 22972,
"labels": [
"STA"
],
"start": 21894,
"text": "\n Section 80P(4) which came to be introduced in the statute by the Finance Act, 2006, with effect from 1.4.2007, reads as under: 80P(4) The provisions of this section shall not apply in relation to any co-operative bank other than a primary agricultural credit society or a primary co-operative agricultural and rural development bank.\n Explanation:- For the purposes of this sub-section, (a) \"co-operative bank\" and \"primary agricultural credit society\" shall have the meanings respectively assigned to them in Part V of the Banking Regulation Act, 1949 (10 of 1949); (b) \"primary co-operative agricultural and rural development bank\" means a society having its area of operation confined to a taluk and the principal object of which is to provide for long-term credit for agricultural and rural development activities.\n Part V of the Banking Regulation Act, 1949, section 5(cci): In order to examine in a given case of an assessee society whether it is a co-operative bank or not as defined in Part V of the Banking Regulation Act, 1949, of the said Act has to be looked into."
}
},
{
"from_name": "label",
"id": "f003e831237342f08f1e978003c71df7",
"to_name": "text",
"type": "labels",
"value": {
"end": 23122,
"labels": [
"STA"
],
"start": 22973,
"text": "Section 5(cci) states as under: \"Co-operative bank\" means a state co-operative bank, a central co-operative bank and a primary co- operative bank.\"\n "
}
},
{
"from_name": "label",
"id": "3d00dd9c27c440e3833317e4793b24bc",
"to_name": "text",
"type": "labels",
"value": {
"end": 24435,
"labels": [
"STA"
],
"start": 23122,
"text": "The primary co-operative bank is defined under Section 5(ccv) of the BR Act as under: \"\"primary co-operative bank\" means a co-operative society, other than a primary agricultural credit society-- (1) The primary object or principal business of which is transaction of banking business: (2) The paid-up share capital and reserves of which are not less than one lakh of rupees and (3) The bye-laws of which do not permit admission of any other co-operative society as a member: Provided that this sub-clause shall not apply to the admission of a co-operative bank as a member by reason of such co-operative bank subscribing to the share capital of such Co-operative society out of funds provided by the State Government `for the purpose'\".\n Section 5(cciia) of Banking Regulation Act, 1949 defines a Co-operative Society as under: \"Co-operative Society means a society registered or deemed to have been registered under any Central Act for the time being in force relating to the multi-State co-operative societies or any other Central or State law relating to co-operative societies for the time being in force;\"\n Section 5(b) of the Banking Regulation Act, will also have to be looked into to examine whether the primary object or principal business of the co-operative society is transaction of banking business."
}
},
{
"from_name": "label",
"id": "8bb62950c3c246338187efcb62f7ac8a",
"to_name": "text",
"type": "labels",
"value": {
"end": 24662,
"labels": [
"STA"
],
"start": 24436,
"text": "The section is as under: \"banking\" means the accepting, for the purpose of lending or investment, of deposits of money from the public, repayable on demand or otherwise, and withdrawable by cheque, draft, order or otherwise\"\n "
}
},
{
"from_name": "label",
"id": "c3aea593ebdf486daff95b12b9bb654b",
"to_name": "text",
"type": "labels",
"value": {
"end": 25365,
"labels": [
"ANALYSIS"
],
"start": 24662,
"text": "The learned counsel would incidentally contend that the Tribunal while taking the cue from the decisions of this Court in CIT v. Sri Biluru Gurubasava Pattina Sahakari Sangha Niyamitha and other cases, in certain other appeals apart from the present has also formed an opinion on certain further propositions, namely: Proposition: Assessee society has not fulfilled the third condition mentioned in Section 5(ccv) of the BR Act and as such, cannot be treated as a primary co-operative bank as defined therein: The Tribunal has referred to section 16 of the Karnataka State Co-operative Societies Act, 1959 and held that the said provisions permit admission of any other co-operative society as a member."
}
},
{
"from_name": "label",
"id": "84b1c5b9d437469a82ea31fc73279ad3",
"to_name": "text",
"type": "labels",
"value": {
"end": 25570,
"labels": [
"ANALYSIS"
],
"start": 25366,
"text": "The Tribunal however has erred in not examining whether the bye-laws of the assessee society permits other co- operative society to become member as per Section 5(ccv) of the Banking Regulation Act, 1949."
}
},
{
"from_name": "label",
"id": "3edcf2ef21b944dcbbca8786d9923021",
"to_name": "text",
"type": "labels",
"value": {
"end": 25843,
"labels": [
"ANALYSIS"
],
"start": 25571,
"text": "Provisions of Section 16(1) and 16(2) of the Karnataka State Co-operative Societies Act, 1959 does not help in any way to come to the conclusion that the bye-laws in the case of a particular assessee society permits admission of any other co-operative society as a member."
}
},
{
"from_name": "label",
"id": "0429312a7b1e4a3bb1fd74797fb31619",
"to_name": "text",
"type": "labels",
"value": {
"end": 26072,
"labels": [
"ANALYSIS"
],
"start": 25843,
"text": "\n Proposition: The Tribunal has referred to section 20 to 21A of the Karnataka Souhardha Sahakari Co-operative Societies Act, 1997, and held that the said provisions permit admission of any other co-operative society as a member."
}
},
{
"from_name": "label",
"id": "52251e5ca7c8429daab44753bd6a87ce",
"to_name": "text",
"type": "labels",
"value": {
"end": 26270,
"labels": [
"ANALYSIS"
],
"start": 26072,
"text": "\n The Tribunal however ought to have examined into the aspect as to whether the bye-laws in the case of a particular assessee society permits admission of any other co-operative society as a member."
}
},
{
"from_name": "label",
"id": "b93d79147443493f9b0fe15c5f024dbd",
"to_name": "text",
"type": "labels",
"value": {
"end": 26284,
"labels": [
"ANALYSIS"
],
"start": 26270,
"text": "\n Proposition:"
}
},
{
"from_name": "label",
"id": "99aa57d074474bc2b677fb5841e2e4c9",
"to_name": "text",
"type": "labels",
"value": {
"end": 26475,
"labels": [
"ANALYSIS"
],
"start": 26285,
"text": "Referring to the bye-laws of the assessee society, the Tribunal has observed that the Societies registered under the Karnataka Societies Registration Act, 1960 are allowed to become members."
}
},
{
"from_name": "label",
"id": "1001adc3dab6415482561f9da45109cb",
"to_name": "text",
"type": "labels",
"value": {
"end": 26840,
"labels": [
"ANALYSIS"
],
"start": 26475,
"text": "\n The Tribunal had failed to appreciate that a society registered under the Karnataka Societies Registration Act, 1960 is established or created for different purposes and cannot be treated as that of the one registered under the Karnataka Co- operative Societies Act, 1959 or that registered under the Karnataka Souhardha Sahakari Co-operative Societies Act, 1997."
}
},
{
"from_name": "label",
"id": "59de9dc7ff4d4c1b951a00d6fa675d73",
"to_name": "text",
"type": "labels",
"value": {
"end": 26854,
"labels": [
"PRE_RELIED"
],
"start": 26840,
"text": "\n Proposition:"
}
},
{
"from_name": "label",
"id": "5d3fb0d5b7e44191833f5e421bf4a62d",
"to_name": "text",
"type": "labels",
"value": {
"end": 27060,
"labels": [
"PRE_RELIED"
],
"start": 26855,
"text": "The issue is covered by the decision of a Division Bench of this Hon'ble Court in the case of Sri. Biluru Gurubasava Pattina Sahakari Sangha Niyamitha, Bagalkot in ITA No.5006/2013 dated 5th February 2014:"
}
},
{
"from_name": "label",
"id": "2efc220f43894490a49a6d39d6014147",
"to_name": "text",
"type": "labels",
"value": {
"end": 27386,
"labels": [
"PRE_RELIED"
],
"start": 27061,
"text": "The substantial question of law pleaded on behalf of the Revenue in the said case was as follows: \"In the facts and circumstances of this case, whether the Revisional Authority was justified in invoking his power under Section 263 of the Act without the foundational fact of assessee being co-operative bank was not there?\"\n "
}
},
{
"from_name": "label",
"id": "b0973b483a854317b5a255c4d782f4ab",
"to_name": "text",
"type": "labels",
"value": {
"end": 27625,
"labels": [
"ANALYSIS"
],
"start": 27386,
"text": "It is pointed out that this Court, in the above case, had not examined the applicability of the provisions of the definition of a co-operative bank as per Part V of the Banking Regulation Act, 1949 by reading Explanation to section 80P(4)."
}
},
{
"from_name": "label",
"id": "632884d1efbe4146b13b06afd9908bcc",
"to_name": "text",
"type": "labels",
"value": {
"end": 27705,
"labels": [
"ANALYSIS"
],
"start": 27626,
"text": "The facts of the above case are clearly distinguishable and are not applicable."
}
},
{
"from_name": "label",
"id": "abfb146d42ad4adbb72c65f1e109614c",
"to_name": "text",
"type": "labels",
"value": {
"end": 27855,
"labels": [
"ANALYSIS"
],
"start": 27706,
"text": "However, a Review Petition was filed in the said case and subsequently, a memo had been filed to withdraw the said Review Petition, which is pending."
}
},
{
"from_name": "label",
"id": "7102d82e4bef444a821503ad750935c7",
"to_name": "text",
"type": "labels",
"value": {
"end": 27961,
"labels": [
"ANALYSIS"
],
"start": 27856,
"text": "It is submitted that the matter is being taken up by the Revenue in appeal before the Hon'ble Apex Court."
}
},
{
"from_name": "label",
"id": "59e7cd8eb9d14687ae09eb1507092e4f",
"to_name": "text",
"type": "labels",
"value": {
"end": 28289,
"labels": [
"ANALYSIS"
],
"start": 27961,
"text": "\n It is also stated that in some matters, the Tribunal has granted relief by holding that Section 80P(4) is not applicable, by referring to one circular of CBDT No.133 of 2007 dated 9.5.2007 which provided as under:- \"Subject: clarification regarding admissibility of deduction under Section 80P of the Income Tax Act, 1961.\n 1."
}
},
{
"from_name": "label",
"id": "50f928ea5fde44bb85cfae3776fa1459",
"to_name": "text",
"type": "labels",
"value": {
"end": 28444,
"labels": [
"ANALYSIS"
],
"start": 28290,
"text": "Please refer to your letter No.DCUS/30688/2007, dated 28.03.2007 addressed to the Chairman, Central Board of Direct Taxes, on the above given subject.\n 2."
}
},
{
"from_name": "label",
"id": "f59d0f03fdb2452dbc5ed729b7fb7d58",
"to_name": "text",
"type": "labels",
"value": {
"end": 28737,
"labels": [
"ANALYSIS"
],
"start": 28445,
"text": "In this regard, I have been directed to state that sub-section (4) of section 80P provides that deduction under the said section shall not be allowable to any co-operative bank other than a primary agricultural credit society or a primary co-operative agricultural and rural development bank."
}
},
{
"from_name": "label",
"id": "2cb67330e31a4c76a9fd92560287bbb3",
"to_name": "text",
"type": "labels",
"value": {
"end": 28882,
"labels": [
"ANALYSIS"
],
"start": 28738,
"text": "For the purpose of the said sub-section, co-operative bank shall have the meaning assigned to it in part V of the Banking Regulations Act, 1949."
}
},
{
"from_name": "label",
"id": "904085c43668470a8e4a4c7da54f6fe8",
"to_name": "text",
"type": "labels",
"value": {
"end": 29042,
"labels": [
"ANALYSIS"
],
"start": 28882,
"text": "\n 3. In part V of the Banking Regulation Act, \"Co-operative Bank\" means a State co-operative bank, a Central Co-operative Bank and a primary Co- operative bank."
}
},
{
"from_name": "label",
"id": "79fec5dc725d4a2f98259529867e42a2",
"to_name": "text",
"type": "labels",
"value": {
"end": 29274,
"labels": [
"ANALYSIS"
],
"start": 29042,
"text": "\n 4. Thus, if the Delhi Co-op Urban T and C Society Ltd. does not fall within the meaning of \"Co- operative Banks\" as defined in part V of the Banking Regulation Act, 1949, sub-section (4) of Section 80P will not apply in this case."
}
},
{
"from_name": "label",
"id": "ec77ba7bd41e4ae99edc29dfa4dcdda5",
"to_name": "text",
"type": "labels",
"value": {
"end": 29354,
"labels": [
"ANALYSIS"
],
"start": 29274,
"text": "\n 5. The issues with the approval of Chairman, Central Board of Direct Taxes.\"\n "
}
},
{
"from_name": "label",
"id": "0424d332a5ef4969acb1bfbb4578e6d7",
"to_name": "text",
"type": "labels",
"value": {
"end": 29606,
"labels": [
"ARG_PETITIONER"
],
"start": 29354,
"text": "The learned counsel contends that the above circular has only clarified that if the societies do not fall within the meaning of the co-operative bank as per Part V of the Banking Regulation Act, 1949, then exception under Section 80P(4) will not apply."
}
},
{
"from_name": "label",
"id": "872c72ba4e0c4eee92d951e8c704dcab",
"to_name": "text",
"type": "labels",
"value": {
"end": 29620,
"labels": [
"ANALYSIS"
],
"start": 29606,
"text": "\n Proposition:"
}
},
{
"from_name": "label",
"id": "a314d1c2bbfa49cfbf413e49d0ec3711",
"to_name": "text",
"type": "labels",
"value": {
"end": 29690,
"labels": [
"ANALYSIS"
],
"start": 29621,
"text": "The assessee Society has not obtained Banking Licence from the R.B.I:"
}
},
{
"from_name": "label",
"id": "fae95431523f48fd9275684c415f03b4",
"to_name": "text",
"type": "labels",
"value": {
"end": 30065,
"labels": [
"ANALYSIS"
],
"start": 29691,
"text": "It is contended that it is also pertinent to note that it is necessary that a co-operative society should have a banking licence as per the definition under the Income Tax Act, for carrying on banking business and if the required licence is not obtained as per other laws, it can only be termed as an illegal banking business under a particular statute prescribing the same."
}
},
{
"from_name": "label",
"id": "2bdc40ae7cd0409492c153413531a5c4",
"to_name": "text",
"type": "labels",
"value": {
"end": 30259,
"labels": [
"ANALYSIS"
],
"start": 30066,
"text": "Income Tax Act, however is concerned with the taxing of \"income\" as per the provisions of the Income Tax Act and \"income\" if any, has to be taxed whether it is from a legal or illegal business."
}
},
{
"from_name": "label",
"id": "d24dde381bf44c3daec84539411634e8",
"to_name": "text",
"type": "labels",
"value": {
"end": 30758,
"labels": [
"ANALYSIS"
],
"start": 30259,
"text": "\n Hence, it is contended by the learned counsel that, by the insertion of Section 2(24(viia) and Section 80P(4), by adopting the words `primary co-operative bank' means a co-operative society other than ...' in clause (ccv) of BR Act, the Legislature has created a legal fiction for the purpose of taxing under certain circumstances, a Society which is to be treated as a `bank' for the purposes of the Income Tax Act, 1961 while dealing with the issue of its claim of deduction under Section 80P.\n "
}
},
{
"from_name": "label",
"id": "771dc093e5ab4d4cac2f50750305a65f",
"to_name": "text",
"type": "labels",
"value": {
"end": 31062,
"labels": [
"ANALYSIS"
],
"start": 30758,
"text": "Further, when a Statute enacts that something shall be deemed to be treated as something else, which in fact is not true, the Court shall appreciate and ascertain for what purposes the statutory fiction is resorted and then give full effect to the statutory fiction to carry it to the logical conclusion."
}
},
{
"from_name": "label",
"id": "81068ea48af1494da81cb173981c241a",
"to_name": "text",
"type": "labels",
"value": {
"end": 31442,
"labels": [
"PRE_RELIED"
],
"start": 31062,
"text": "\n Therefore, in the case of an assessee Co-operative Society claiming deductions under Section 80P, an examination of the factual aspects will have to be conducted by the Revenue authorities on the basis of the facts and materials on record to conclude whether the assessee Society is to be treated as a `primary co-operative bank' which fulfills the above three conditions.\n 9."
}
},
{
"from_name": "label",
"id": "bbc026b08c554062bfe9078b61d09d10",
"to_name": "text",
"type": "labels",
"value": {
"end": 32078,
"labels": [
"PRE_RELIED"
],
"start": 31443,
"text": "In the light of the above contentions and on an examination of the relevant legal provisions, it is to be noticed at the outset that this court in the appeal in ITA 351/ 2011, CIT v. Bangalore Commercial Transport Credit Co-operative Society Limited, decided on 27.6.2014, had framed the following substantial questions of law : \"(i) Whether the Tribunal was correct in holding that the provision of sub-section (4) of Section 80P of the Income Tax Act are applicable only to co- operative Banks and not to credit Co-operative Societies, which are engaged in business of banking, including providing credit facilities to their members?"
}
},
{
"from_name": "label",
"id": "813a6b8c53cc490b95200018642e9f34",
"to_name": "text",
"type": "labels",
"value": {
"end": 32576,
"labels": [
"ANALYSIS"
],
"start": 32078,
"text": "\n (ii) Whether the Tribunal was correct in holding that the assessee is a co-operative society and not a co- operative Bank in terms of sub-section (4) of Section 80P of the Income Tax Act without considering the meaning of co-operative Bank as envisaged under Part V of the Banking Regulation Act, 1949, wherein it is defined that co-operative Bank includes primary co- operative Bank, which is further defined as co- operative Society with the primary object of transactions of Banking business?\""
}
},
{
"from_name": "label",
"id": "d816a33989684dc88943011d67cb3b91",
"to_name": "text",
"type": "labels",
"value": {
"end": 32634,
"labels": [
"ANALYSIS"
],
"start": 32576,
"text": "\n The said issues were answered in favour of the Assessee."
}
},
{
"from_name": "label",
"id": "ffe0432c7e9f4d84b1c8880223666b93",
"to_name": "text",
"type": "labels",
"value": {
"end": 32863,
"labels": [
"RATIO"
],
"start": 32634,
"text": "\n 10. We are in respectful agreement with the general view taken as to the interpretation of the relevant provisions of law, by the co-ordinate bench of this court, in the above and several other judgments adopting the same view."
}
},
{
"from_name": "label",
"id": "ec179d205eb94647be82dbf249405a01",
"to_name": "text",
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"value": {
"end": 33490,
"labels": [
"RATIO"
],
"start": 32864,
"text": "However, it is to be noticed that there is a seriously disputed question of fact which the Authorities under the IT Act have taken upon themselves to interpret in the face of the BR Act prescribing that in the event of a dispute as to the primary object or principal business of any co-operative society referred to in clauses (cciv), (ccv) and (ccvi) of Section 56 of the BR Act, a determination thereof by the Reserve Bank shall be final, would require the dispute to be resolved by the Reserve Bank of India, before the authorities could term the assessee as a co-operative bank, for purposes of Section 80 P of the IT Act."
}
},
{
"from_name": "label",
"id": "622c7677513f4a45b8952a0d9da3098d",
"to_name": "text",
"type": "labels",
"value": {
"end": 33553,
"labels": [
"RPC"
],
"start": 33491,
"text": "Any opinion expressed therefore is tentative and is not final."
}
},
{
"from_name": "label",
"id": "febfc060557f4b21a2600f81935a5caa",
"to_name": "text",
"type": "labels",
"value": {
"end": 33819,
"labels": [
"RPC"
],
"start": 33554,
"text": "The view expressed by this court, however, as to the assessee being a co-operative society and not a co-operative bank in terms of Section 80P (4) of the IT Act, shall hold the field and shall bind the authorities unless held otherwise by the Reserve Bank of India."
}
},
{
"from_name": "label",
"id": "4a4e38c8b2c34128b07d3290c709cf1a",
"to_name": "text",
"type": "labels",
"value": {
"end": 33935,
"labels": [
"RPC"
],
"start": 33819,
"text": "\n In the result, the above questions are answered in favour of the assessee and the appeal is allowed as prayed for."
}
},
{
"from_name": "label",
"id": "3610b40a5f9943a2b77a58ff89a067ed",
"to_name": "text",
"type": "labels",
"value": {
"end": 33962,
"labels": [
"NONE"
],
"start": 33935,
"text": "\n Sd/- JUDGE Sd/- JUDGE KS*"
}
}
]
}
] | 1,731 | {
"text": " IN THE HIGH COURT OF KARNATAKA\n DHARWAD BENCH\n\nDATED THIS THE 21ST DAY OF SEPTEMBER, 2015\n\n PRESENT\n\nTHE HONOURABLE MR.JUSTICE ANAND BYRAREDDY\n\n AND\n\n THE HONOURABLE MRS.JUSTICE S.SUJATHA\n\n INCOME TAX APPEAL NO.100062 OF 2014\n\nBETWEEN\n\nShri Veershaiv Co-operative\nCredit Society Ltd.,\nNipani, Taluk: Chikodi,\nDistrict: Belgaum,\nBy its Secretary\nShri Subhash Shivaram Jabade,\nAged major,\nResident of Nipani,\nTaluk: Chikodi,\nDistrict: Belgaum.\n\n ... APPELLANT.\n\n(By Shri Sharad V. Magadum, Advocate)\n\nAND\n\n1. The Commissioner of Income Tax (Appeals),\n 3rd Floor, Phiroz Khimji Complex,\n\n Opposite to Civil Hospital,\n\n Dr. Ambedkar Road,\n\n Belagavi-590 001.\n\n\n2. The Income Tax Officer\n Ward No.1,\n Nipani, Taluk: Chikodi,\n District: Belgaum.\n\n ... RESPONDENTS.\n\n(By Sri. Y V RAVIRAJ, ADVOCATE)\n\n THIS ITA IS FILED U/SEC.260A OF THE INCOME-TAX\nACT, 1961 AGAINST THE ORDER PASSED IN ITA\nNO.210/PNJ/2013 DATED 04.04.2014 ON THE FILE OF THE\nINCOME TAX APPELLANT TRIBUNAL, PANAJI BENCH,\nPANAJI, DISMISSING THE APPEAL FILED BY THE\nASSESSEE, AND ETC.\n\n This appeal having been heard and reserved, and coming\non for pronouncement of judgment, this day, Anand Byrareddy\nJ., delivered the following:\n\nJUDGMENT\n This appeal is by the assessee under the Income Tax Act, 1961 (Hereinafter referred to as the 'IT Act, for brevity). The assessee is said to be a Co-operative Society registered under the Karnataka State Co-operative Societies Act, 1956, (Hereinafter referred to as the `KCS Act', for brevity).\n 2. The appeal pertains to the Assessment year 2010-11.\nThe appellant - Society had filed its return of income for the assessment year 2010-11, and after claiming deduction under Section 80 P(2) (a) (i) of the IT Act, the total income was declared as 'nil'.\n The Assessing Officer had however, opined that the assessee was not entitled to the deduction, as claimed, for the reason, inter alia, that the activity of the appellant was covered by Section 2 (24 (vii a) of the IT Act, which requires the inclusion of profits and gains of any business of banking (including providing credit facilities) carried on by a co- operative society.\n Reference was made to the Explanation appended to Section 80 P (4) - which lays down that a co-operative bank and a primary agricultural credit society, shall have the same meaning assigned to them in Part V of the Banking Regulation Act, 1949 (Hereinafter referred to as the 'BR Act' , for brevity.) It was held that the Bye -laws of the Assessee indicated that their primary object was transactions that were apparently in the nature of banking. In that, the assessee was receiving deposits from its members and providing loans to other members and hence it satisfied all the three conditions contemplated under Section 56 (ccv) of the BR Act. For this premise, the Assessing Officer had proceeded on the basis that a primary co-operative bank, meant a Co-operative Society. Therefore, the Assessing Officer held that the appellant society being a primary co- operative bank, was not eligible for deduction under Section 80 P of the IT Act.\n 3. The appellant - Society had then preferred an appeal before the Commissioner of Income Tax (Appeals) challenging the above order of the Assessing Officer. The same was said to have been dismissed.\n The appellant had then approached the Income Tax Appellate Tribunal. The Tribunal having affirmed the concurrent findings of the above authorities, the appellant is before this court.\n 4. The questions of law that arise for our consideration in this appeal are : i. Whether the benefit of deduction, under Section 80 P (2) (a) (i) of the IT Act, could be denied to the assessee on the footing that, though the appellant was said to be a Co-operative Society, it was in fact a co-operative bank, within the meaning as assigned to such bank under Part V of the BR Act.\n ii. Whether the Authorities under the IT Act were competent and possessed the jurisdiction to resolve the controversy as to whether the assessee was a co-operative society or co-operative bank, as defined under the provisions of the BR Act?\"\n 5. In addressing the above, it would be useful to extract the relevant provisions for ready reference.\n \"80P. (1) Where, in the case of an assessee being a co-operative society, the gross total income includes any income referred to in sub-section (2), there shall be deducted, in accordance with and subject to the provisions of this section, the sums specified in sub-section (2), in computing the total income of the assessee.\n (2) The sums referred to in sub-section (1) shall be the following, namely :-- (a) in the case of a co-operative society engaged in-- (i) carrying on the business of banking or providing credit facilities to its members, or (ii) x x x x x (iii) x x x x x x x x x x (4) The provisions of this section shall not apply in relation to any co-operative bank other than a primary agricultural credit society or a primary co- operative agricultural and rural development bank.\n Explanation.-- For the purposes of this sub- section, (a) \"co-operative bank\" and \"primary agricultural credit society\" shall have the meanings respectively assigned to them in Part V of the Banking Regulation Act, 1949 (10 of 1949); (b) \"primary co-operative agricultural and rural development bank\" means a society having its area of operation confined to a taluk and the principal object of which is to provide for long-term credit for agricultural and rural development activities.]\"\n \"Section 56 of the BR Act:- Act to apply to co-operative societies subject to modifications. --The provisions of this Act, as in force for the time being, shall apply to, or in relation to, co- operative societies as they apply to, or in relation to banking companies subject to the following modifications, namely:-- (a) throughout this Act, unless the context otherwise requires,-- (i) references to a \"banking company\" or \"the company\" or \"such company\" shall be construed as references to a co-operative bank; (ii) references to \"commencement of this Act\" shall be construed as references to commencement of the Banking Laws (Application to Co-operative Societies) Act, 1965 (23 of 1965); (b) in section 2, the words and figures \"the Companies Act, 1956 (1 of 1956) and\" shall be omitted; (c) in section 5,-- [(i) after clause (cc), the following clauses shall be inserted, namely:-- (cci) \"Co-operative bank\" means a state co- operative bank, a central co-operative bank and a primary co-operative bank; (ccii) \"co-operative credit society\" means a co- operative society, the primary object of which is to provide financial accommodation to its members and includes a co- operative land mortgage bank; (cciia) \"co-operative society\" means a society registered or deemed to have been registered under any Central Act for the time being in force relating to the multi-State co-operative societies, or any other Central or State law relating to co-operative societies for the time being in force;] (cciii) \"director\" in relation to a co-operative society, includes a member of any committee or body for the time being vested with the management of the affairs of that society; [(cciiia) \"multi-State co-operative bank\" means a multi-State co-operative society which is a primary co- operative bank;] [(cciiib) \"multi-State co-operative society\" means a multi-State co-operative society registered as such under any Central Act for the time being in force relating to the multi-State co-operative societies but does not include a national co-operative society and a federal co-operative;] (cciv) \"primary agricultural credit society\" means a co-operative society,-- (1) the primary object or principal business of which is to provide financial accommodation to its members for agricultural purposes or for purposes connected with agricultural activities (including the marketing of crops); and (2) the bye-laws of which do not permit admission of any other co-operative society as member: Provided that this sub-clause shall not apply to the admission of a co-operative bank as a member by reason of such co-operative bank sub-scribing to the share capital of such co-operative society out of funds provided by the State Government for the purpose; (ccv) \"primary co-operative bank\" means a co- operative society, other than a primary agricultural credit society,-- (1) the primary object or principal business of which is the transaction of banking business; (2) the paid-up share capital and reserves of which are not less than one lakh of rupees; and (3) the bye-laws of which do not permit admission of any other co-operative society as a member: Provided that this sub-clause shall not apply to the admission of a co-operative bank as a member by reason of such co- operative bank subscribing to the share capital of such co-operative society out of funds provided by the State Government for the purpose; (ccvi) \"primary credit society\" means a co- operative society, other than a primary agricultural credit society,-- (1) the primary object or principal business of which is the transaction of banking business; (2) the paid-up share capital and reserves of which are less than one lakh of rupees; and (3) the bye-laws of which do not permit admission of any other co-operative society as a member: Provided that this sub-clause shall not apply to the admission of a co-operative bank as a member by reason of such co-operative bank subscribing to the share capital of such co-operative socie-ty out of funds provided by the State Government for the purpose.\n Explanation.-- If any dispute arises as to the primary object or principal business of any co-operative society referred to in clauses (cciv), (ccv) and (ccvi), a determination thereof by the Reserve Bank shall be final; x x x x x x 6. In so far as the first question of law is concerned, there are a series of decisions of this court wherein it has been repeatedly answered in favour of the assessee. Two of the said decisions are as follows : 1. CIT v. Sri Biluru Gurubasava Pattina Sahakari Sangha Niyamitha in ITA No.5006/2013 2. CIT vs. Bangalore Commercial Transporter Credit Society in ITA No.351/2011 & ITA No.599/2013 In interpreting Section 80 P (4) in CIT v. Sri Biluru Gurubasava Pattina Sahakari Sangha Niyamitha of the I T Act, it was held as follows : \"If a Co-operative Bank is exclusively carrying on banking business, then the income derived from the said business cannot be deducted in computing the total income of the assessee. The said income is liable for tax. A Co-operative bank as defined under the Banking Regulation Act includes the primary agricultural credit society or a primary co-operative agricultural and rural development bank. The Legislature did not want to deny the said benefits to a primary agricultural credit society or a primary co-operative agricultural and rural development bank. They did not want to extend the said benefit to a Co- operative bank which is exclusively carrying on banking business i.e. the purport of this amendment. Therefore, as the assessee is not a Co-operative bank carrying on exclusively banking business and as it does not possess a licence from Reserve Bank of India to carry on business, it is not a Co-operative bank. It is a Co-operative society which also carries on the business of lending money to its members which is covered under Section 80P(2)(a)(i) i.e. carrying on the business of banking for providing credit facilities to its members. The object of the aforesaid amendment is not to exclude the benefit extended under Section 80P(1) to such society. Therefore, there was no error committed by the Assessing Authority.\"\n In CIT vs. Bangalore Commercial Transporter Credit Society (supra), this court has cited with approval the following differences between a co-operative society and a co-operative bank - as depicted by the Tribunal, in tabular form thus : Nature Co-operative society Co-operative Society registered under registered under Banking Regulation Karnataka Co- Act, 1949 operative Society Act, 1959 Registration Under the Banking Co-operative Societies Regulation Act, 1949 Act, 1959 and Co-operative Societies Act, 1959 Nature of 1. As defined in 1. As per the bye laws business Section 6 of Banking of the co-operative Regulation Act. society.\n 2. Can open savings 2. Society cannot open bank account, current savings bank account, account, overdraft current account, issue account, cash credit letter of credit, account, issue letter of discounting bills of credit, discounting bills exchange, issue of exchange, issue cheque, demand drafts, cheques, demand drafts pay orders, gift (DD), Pay orders, Gift cheques, lockers, bank cheques, lockers, bank guarantees etc.\n guarantees etc.\n 3. Society cannot act 3. Co-operative Banks clearing agent, for can act as clearing cheques, DDs, pay agent for cheques, orders and other forms.\n DDs, pay orders and other forms. 4. Society are bound by rules and regulations as 4. Banks are bound to specified by in the co- follow the rules, operative societies act.\n regulations and directions issued by Reserve Bank of India (RBI).\n Filing of Co-operative banks Society has to submit returns have to submit annual the annual return to return to RBI every Registrar of Societies.\n year.\n Inspection RBI has the power to Registrar has the power inspect accounts and to inspect accounts and overall functioning of overall functioning of the Bank. the bank.\n Part V Part V of the Banking Part V of the Banking Regulation Act is Regulation Act is not applicable to co- applicable to co- operative banks. operative banks.\n Use of The word `bank', The word `bank', words `banker', `banking' can `banker', `banking' be used by a co- cannot be used by a co- operative bank. operative society.\n And this court had dismissed the appeal of the revenue following the decision in CIT v. Sri Biluru Gurubasava Pattina Sahakari Sangha Niyamitha (supra ).\nThe same view has been taken in the following decisions : 1. CIT vs. Bangalore Credit Co-operative Society Ltd. in ITA No.598/2013 2. CIT vs. Yeshwanthpur Credit Co-operative Society Ltd. in ITA 237/2012 3. CIT vs. Mysore University Employees Co-operative Credit Society Ltd. in ITA 298/2013 4. CIT vs. Vasavi Credit Co-operative Society Ltd. in ITA No.118/2012 5. CIT vs. Sri Vasavi Multi Purpose Souharda Sahakari Sangha Niyamitha in ITA No.505/2013 6. CIT vs. General Insurance Employees Co-operative Society Ltd. in ITA No.273/2013.\n 7. The learned counsel Shri A. Shankar while drawing attention of this court to the tenor of the relevant provisions of law and the above decisions, would contend that this court has categorically held that the assessee, as a co-operative society, was entitled to the benefit of deduction under Section 80 P (2) (a) (i) of the IT Act. Notwithstanding the aforesaid decisions of this court, the Tribunal which was bound by the same, has ignored the said decisions.\n It is also pointed out that though other benches of the Appellate Tribunal had followed the dictum of this court, and which circumstance was brought to the attention of the Tribunal, it had not chosen to distinguish the said decisions nor has it chosen to refer the matter to a special bench, as propriety demanded.\n It is hence contended that the point of law as to the entitlement of deduction under Section 80 P (2) (a) (i) in so far as the assessee is concerned, would have to be held in its favour.\n He would contend that all co-operative banks may be co- operative Societies, but all co-operative Societies are not necessarily co-operative banks.\n It is further contended that the activity of \"banking\", is defined under Section 5 (b) of the BR Act as follows : \"5(b) \"banking\" means the accepting, for the purpose of lending or investment, of deposits of money from the public, repayable on demand or otherwise, and withdrawal by cheque, draft, order or otherwise; It is asserted that the assessee did not carry on any such activity. And if they did carry on any such activity, it would be illegal and becomes subject to the rigour of Section 37 of the BR Act. It is further contended that even if there was a disputed question as to whether the assessee was indeed a co- operative bank. The authorities under the IT Act were not competent and did not have the jurisdiction to arrive at a finding in that regard and attention is drawn to the Explanation appended to clause (ccvi ) to Section 56 of the BR Act, which reads as follows : \"Explanation- If any dispute arises as to the primary object or principal business of any co- operative society referred to in clauses (cciv), (ccv) and (ccvi), a determination thereof by the Reserve Bank shall be final;\"\n It is hence contended that the appeal be allowed and the judgment of the Tribunal be set aside.\n 8. On the other hand, the learned counsel Shri Y.V.\nRaviraj, appearing on behalf of the Revenue contends as follows : Section 80P(2)(a)(i) provides deduction of income of co- operative societies \"carrying on the business of banking or providing credit facilities to its members\".\n However, an exception to this is provided under Section 80P(4) which provides that this deduction will not be available to any co-operative bank other than a primary agricultural credit society or a primary co-operative agricultural and rural development bank.\n For the purpose of sub-section 80P(4), a co-operative bank has been given a meaning assigned to them in Part V of the Banking Regulation Act, 1949.\n In Part V of the Banking Regulation Act, 1949, section 5(b), a \"co-operative bank\" means a State Co-operative Bank, a Central Co-operative Bank and a Primary Co-operative Bank.\n A Primary Co-operative Bank is defined in section 5(ccv) of the Banking Regulation Act, 1949 as the co-operative society which fulfills three conditions namely: i) The primary object or principal business of which is transaction of banking business.\n ii) The paid-up share capital and reserves of which are not less than one lakh of rupees and iii) The bye-laws of which do not permit admission of any other co-operative society as a member.\n If a co-operative society fulfills all the above three conditions, it is to be treated as a co-operative bank for the purpose of section 80P(4) and the benefit of deduction under Section 80P(2)(a)(i) is denied.\n After insertion of Section 80P(4), the provisions of Section 80P(2)(a)(i) were not amended and the co-operative societies engaged in carrying on business in banking with its members continued to be entitled for deduction.\n The embargo put under Section 80P(4) are applicable only to a co-operative society, treated as a bank by a legal fiction created under Section 80P(4) as defined in the Explanation to the said section with reference to Part V of the Banking Regulation Act, 1949.\n However, if an assessee society does not fulfill any of the above three conditions as defined under Section 5(ccv) of Banking Regulation Act, 1949, it cannot be treated as a `primary co-operative bank' and as such will be eligible to get the deduction under Section 80P(2)(a)(i) Attention is also drawn to the relevant portion of the Finance Minister's Budget Speech explaining the reasons for withdrawal of tax benefits to some Societies by way of insertion of sub-section 80P(4) and insertion of new sub-clause (viia) in clause (24) of Section 2 definition of \"income\" by the Finance Act, 2006, with effect from 1.4.2007, is as under: \"The Co-operative banks are functioning at par with other commercial banks, which do not enjoy any tax benefits. It is, therefore proposed to amend section 80P by inserting a new sub-section (4) so as to provide that the provisions of the said section shall not apply in relation to any co-operative bank other than primary credit society or a primary co-operative agricultural and rural development bank. It is also proposed to define the expressions \"co-operative bank\", \"primary agricultural credit society\" and \"primary co-operative agricultural and rural development bank\".\n It is also proposed to insert a new sub-clause (viia) in clause (24) of the Section 2 so as to provide that ttheprofits and gains of any business of banking (including providing credit facilities) carried on by a co-operative society with its members shall be included in the definition of \"income\".\n Section 2(24(viia) of the Income Tax Act inserted by the Finance Act, 2006, with effect from 1.4.2007 includes the following in its definition of \"income\" as under: \"profits and gains of any business of banking (including providing credit facilities) carried on by a co-operative society with its members.\"\n The relevant portion of Section 80P is as under: \"80P(1): Where, in the case of an assessee being a co-operative society, the gross total income includes any income referred to in sub-section (2), there shall be deducted, in accordance with an subject to the provisions of this section, the sums specified in sub-section (2), in computing the total income of the assessee.\n (2) The sum referred to in sub-section (1) shall be the following, namely:- (a) the case of a co-operative society engaged in :- (i) Carrying on the business of banking or providing credit facilities to its memebrs, or ......\n (ii) ....................\n (iii) ....................\n (iv) ....................\n (v) ....................\n (vi) ....................\n (vii) ....................\n The whole of the amount of profits and gains of business attributable to any one or more of such activities.\n Section 80P(4) which came to be introduced in the statute by the Finance Act, 2006, with effect from 1.4.2007, reads as under: 80P(4) The provisions of this section shall not apply in relation to any co-operative bank other than a primary agricultural credit society or a primary co-operative agricultural and rural development bank.\n Explanation:- For the purposes of this sub-section, (a) \"co-operative bank\" and \"primary agricultural credit society\" shall have the meanings respectively assigned to them in Part V of the Banking Regulation Act, 1949 (10 of 1949); (b) \"primary co-operative agricultural and rural development bank\" means a society having its area of operation confined to a taluk and the principal object of which is to provide for long-term credit for agricultural and rural development activities.\n Part V of the Banking Regulation Act, 1949, section 5(cci): In order to examine in a given case of an assessee society whether it is a co-operative bank or not as defined in Part V of the Banking Regulation Act, 1949, of the said Act has to be looked into. Section 5(cci) states as under: \"Co-operative bank\" means a state co-operative bank, a central co-operative bank and a primary co- operative bank.\"\n The primary co-operative bank is defined under Section 5(ccv) of the BR Act as under: \"\"primary co-operative bank\" means a co-operative society, other than a primary agricultural credit society-- (1) The primary object or principal business of which is transaction of banking business: (2) The paid-up share capital and reserves of which are not less than one lakh of rupees and (3) The bye-laws of which do not permit admission of any other co-operative society as a member: Provided that this sub-clause shall not apply to the admission of a co-operative bank as a member by reason of such co-operative bank subscribing to the share capital of such Co-operative society out of funds provided by the State Government `for the purpose'\".\n Section 5(cciia) of Banking Regulation Act, 1949 defines a Co-operative Society as under: \"Co-operative Society means a society registered or deemed to have been registered under any Central Act for the time being in force relating to the multi-State co-operative societies or any other Central or State law relating to co-operative societies for the time being in force;\"\n Section 5(b) of the Banking Regulation Act, will also have to be looked into to examine whether the primary object or principal business of the co-operative society is transaction of banking business. The section is as under: \"banking\" means the accepting, for the purpose of lending or investment, of deposits of money from the public, repayable on demand or otherwise, and withdrawable by cheque, draft, order or otherwise\"\n The learned counsel would incidentally contend that the Tribunal while taking the cue from the decisions of this Court in CIT v. Sri Biluru Gurubasava Pattina Sahakari Sangha Niyamitha and other cases, in certain other appeals apart from the present has also formed an opinion on certain further propositions, namely: Proposition: Assessee society has not fulfilled the third condition mentioned in Section 5(ccv) of the BR Act and as such, cannot be treated as a primary co-operative bank as defined therein: The Tribunal has referred to section 16 of the Karnataka State Co-operative Societies Act, 1959 and held that the said provisions permit admission of any other co-operative society as a member. The Tribunal however has erred in not examining whether the bye-laws of the assessee society permits other co- operative society to become member as per Section 5(ccv) of the Banking Regulation Act, 1949. Provisions of Section 16(1) and 16(2) of the Karnataka State Co-operative Societies Act, 1959 does not help in any way to come to the conclusion that the bye-laws in the case of a particular assessee society permits admission of any other co-operative society as a member.\n Proposition: The Tribunal has referred to section 20 to 21A of the Karnataka Souhardha Sahakari Co-operative Societies Act, 1997, and held that the said provisions permit admission of any other co-operative society as a member.\n The Tribunal however ought to have examined into the aspect as to whether the bye-laws in the case of a particular assessee society permits admission of any other co-operative society as a member.\n Proposition: Referring to the bye-laws of the assessee society, the Tribunal has observed that the Societies registered under the Karnataka Societies Registration Act, 1960 are allowed to become members.\n The Tribunal had failed to appreciate that a society registered under the Karnataka Societies Registration Act, 1960 is established or created for different purposes and cannot be treated as that of the one registered under the Karnataka Co- operative Societies Act, 1959 or that registered under the Karnataka Souhardha Sahakari Co-operative Societies Act, 1997.\n Proposition: The issue is covered by the decision of a Division Bench of this Hon'ble Court in the case of Sri. Biluru Gurubasava Pattina Sahakari Sangha Niyamitha, Bagalkot in ITA No.5006/2013 dated 5th February 2014: The substantial question of law pleaded on behalf of the Revenue in the said case was as follows: \"In the facts and circumstances of this case, whether the Revisional Authority was justified in invoking his power under Section 263 of the Act without the foundational fact of assessee being co-operative bank was not there?\"\n It is pointed out that this Court, in the above case, had not examined the applicability of the provisions of the definition of a co-operative bank as per Part V of the Banking Regulation Act, 1949 by reading Explanation to section 80P(4). The facts of the above case are clearly distinguishable and are not applicable. However, a Review Petition was filed in the said case and subsequently, a memo had been filed to withdraw the said Review Petition, which is pending. It is submitted that the matter is being taken up by the Revenue in appeal before the Hon'ble Apex Court.\n It is also stated that in some matters, the Tribunal has granted relief by holding that Section 80P(4) is not applicable, by referring to one circular of CBDT No.133 of 2007 dated 9.5.2007 which provided as under:- \"Subject: clarification regarding admissibility of deduction under Section 80P of the Income Tax Act, 1961.\n 1. Please refer to your letter No.DCUS/30688/2007, dated 28.03.2007 addressed to the Chairman, Central Board of Direct Taxes, on the above given subject.\n 2. In this regard, I have been directed to state that sub-section (4) of section 80P provides that deduction under the said section shall not be allowable to any co-operative bank other than a primary agricultural credit society or a primary co-operative agricultural and rural development bank. For the purpose of the said sub-section, co-operative bank shall have the meaning assigned to it in part V of the Banking Regulations Act, 1949.\n 3. In part V of the Banking Regulation Act, \"Co-operative Bank\" means a State co-operative bank, a Central Co-operative Bank and a primary Co- operative bank.\n 4. Thus, if the Delhi Co-op Urban T and C Society Ltd. does not fall within the meaning of \"Co- operative Banks\" as defined in part V of the Banking Regulation Act, 1949, sub-section (4) of Section 80P will not apply in this case.\n 5. The issues with the approval of Chairman, Central Board of Direct Taxes.\"\n The learned counsel contends that the above circular has only clarified that if the societies do not fall within the meaning of the co-operative bank as per Part V of the Banking Regulation Act, 1949, then exception under Section 80P(4) will not apply.\n Proposition: The assessee Society has not obtained Banking Licence from the R.B.I: It is contended that it is also pertinent to note that it is necessary that a co-operative society should have a banking licence as per the definition under the Income Tax Act, for carrying on banking business and if the required licence is not obtained as per other laws, it can only be termed as an illegal banking business under a particular statute prescribing the same. Income Tax Act, however is concerned with the taxing of \"income\" as per the provisions of the Income Tax Act and \"income\" if any, has to be taxed whether it is from a legal or illegal business.\n Hence, it is contended by the learned counsel that, by the insertion of Section 2(24(viia) and Section 80P(4), by adopting the words `primary co-operative bank' means a co-operative society other than ...' in clause (ccv) of BR Act, the Legislature has created a legal fiction for the purpose of taxing under certain circumstances, a Society which is to be treated as a `bank' for the purposes of the Income Tax Act, 1961 while dealing with the issue of its claim of deduction under Section 80P.\n Further, when a Statute enacts that something shall be deemed to be treated as something else, which in fact is not true, the Court shall appreciate and ascertain for what purposes the statutory fiction is resorted and then give full effect to the statutory fiction to carry it to the logical conclusion.\n Therefore, in the case of an assessee Co-operative Society claiming deductions under Section 80P, an examination of the factual aspects will have to be conducted by the Revenue authorities on the basis of the facts and materials on record to conclude whether the assessee Society is to be treated as a `primary co-operative bank' which fulfills the above three conditions.\n 9. In the light of the above contentions and on an examination of the relevant legal provisions, it is to be noticed at the outset that this court in the appeal in ITA 351/ 2011, CIT v. Bangalore Commercial Transport Credit Co-operative Society Limited, decided on 27.6.2014, had framed the following substantial questions of law : \"(i) Whether the Tribunal was correct in holding that the provision of sub-section (4) of Section 80P of the Income Tax Act are applicable only to co- operative Banks and not to credit Co-operative Societies, which are engaged in business of banking, including providing credit facilities to their members?\n (ii) Whether the Tribunal was correct in holding that the assessee is a co-operative society and not a co- operative Bank in terms of sub-section (4) of Section 80P of the Income Tax Act without considering the meaning of co-operative Bank as envisaged under Part V of the Banking Regulation Act, 1949, wherein it is defined that co-operative Bank includes primary co- operative Bank, which is further defined as co- operative Society with the primary object of transactions of Banking business?\"\n The said issues were answered in favour of the Assessee.\n 10. We are in respectful agreement with the general view taken as to the interpretation of the relevant provisions of law, by the co-ordinate bench of this court, in the above and several other judgments adopting the same view. However, it is to be noticed that there is a seriously disputed question of fact which the Authorities under the IT Act have taken upon themselves to interpret in the face of the BR Act prescribing that in the event of a dispute as to the primary object or principal business of any co-operative society referred to in clauses (cciv), (ccv) and (ccvi) of Section 56 of the BR Act, a determination thereof by the Reserve Bank shall be final, would require the dispute to be resolved by the Reserve Bank of India, before the authorities could term the assessee as a co-operative bank, for purposes of Section 80 P of the IT Act. Any opinion expressed therefore is tentative and is not final. The view expressed by this court, however, as to the assessee being a co-operative society and not a co-operative bank in terms of Section 80P (4) of the IT Act, shall hold the field and shall bind the authorities unless held otherwise by the Reserve Bank of India.\n In the result, the above questions are answered in favour of the assessee and the appeal is allowed as prayed for.\n Sd/- JUDGE Sd/- JUDGE KS* "
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{
"group": "Criminal"
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{
"result": []
}
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"text": "IN THE HIGH COURT OF JUDICATURE AT BOMBAY,\n BENCH AT AURANGABAD\n\nCRIMINAL APPEAL NO.222/2000\n\nMangal w/o Vinayak Karad .. APPELLANT\nAge 25 years, Occ-Household,\nR/o Rameshwar, Tq.& Dist.Latur.\n\nVERSUS\n\nThe State of Maharashtra .. RESPONDENTS\n[Copy to be served on Public\nProsecutor, High Court of\nJudicature of Bombay,\nBench at Aruangabad]\n\n ...\n\nMr.Umakant B.Deshmukh h/f Mr.U.B.Bondar,Adv.for appellant.\nMr.N.B.Patil,APP for State.\n\n ...\n\n CORAM : T.V.NALAWADE,J.\n DATE : 4th OCTOBER 2012.\n\nORAL JUDGMENT : 1] The appeal is filed against judgment and order of Sessions Case No.82/99 which was pending in the Court of Sessions Judge, Latur. The Sessions Court has convicted and sentenced the appellant for offence punishable u/s 304-A of I.P.C. Both sides are heard. This Court has thoroughly and carefully examined the original record of the case.\n In short, the facts leading to the institution of the proceeding can be stated as follows.\n 2] The present appellant-accused is the wife of original complainant Vinayak. Their marriage took place about 5 years prior to the date of incident. Deceased Chaitanya was son of this couple and he was aged about 1 years at the relevant time.\nAllegations are made that accused was little bit whimsical. She used to pick up quarrels with husband and in-laws and she used to do strange things. About 8-10 days prior to the incident in question, there was allegation against the accused that she had committed theft of ornaments of a child from the house of one Smt.Sagrabai. The braslet of the said child was however returned few days prior to the date of incident. There are allegations that on one occasion, accused had attempted to commit suicide when she had suspicion that the husband had kept relations with other woman.\n 3] On 5/6/99, the deceased was seen with the accused in the bed of the accused at about 10-30 to 11-00 p.m. by her mother in law. The mother in law was sleeping on the first floor of the house.\nOn that night, husband of the accused was sleeping in the field.\nOn 6th June,1999, at about 5.30 a.m. Aylubai, the mother in law of accused noticed that accused and deceased were not present in the house. This lady had suspicion that some untoward incident must have happened and so, she started crying. The neighbours and the relatives of Aylubai gathered there.\n 4] Search was made for the accused and the deceased. The dead body of deceased Chaitanya was found in the well of one Namdeo Karad which is situated at a distance of about 1 Km. from the village. Manik, brother of Vinayak gave report about the A.D.\nto Gategaon police station at about 9.45 a.m. A.D.No.157/99 came to be registered. There was suspicion that accused had jumped with the child into the well but they could not find other dead body in the well.\n 5] Police prepared spot panchanama on 7/6/99. Inquest panchanama was prepared and dead body was referred for post mortem examination. On 7/6/99, at about 3 p.m. accused was found sleeping in standing crop of one Sharad Patil. Even after giving many calls to her, the accused did not respond and she was virtually shifted in a bullock cart to the village in the evening time.\n 6] On 7/6/99, Vinayak gave report against accused that she had thrown Chaitanya into well and she had caused death of Chaitanya. Crime No.48/99 came to be registered on the basis of this report for offence u/s 302 of IPC against appellant accused.\nPost mortem report shows that Chaitanya died due to drowning.\nStatements of some witnesses like Aylubai, the husband of accused, Manik and others came to be recorded. On 8/6/99, the accused came to be formally arrested. After completion of investigation, charge sheet came to be filed for offence u/s 302 of IPC.\n 7] In the trial Court, prosecution examined all 10 witnesses.\nAccused took defence of total denial. The trial Court has believed all the prosecution witnesses. Trail Court has however, held that the accused has committed offence punishable u/s 304-A of IPC.\n 8] The Advocate of the appellant mainly argued on medical evidence and he submitted that there is conflict between medical evidence and the oral evidence given on the incident of \"last seen\".\nAylubai [P.W.7] has given evidence that she had last seen deceased with the accused at abut 10.30 to 11 p.m. and at about 5.30 a.m. of next day, both were not present in the house. The record like A.D. report and the evidence of prosecution witnesses show that dead body of Chaitanya was noticed in the well at about 6 to 7 a.m. of 6/6/99. The dead body was found floating in the water of the well. Thus, if the prosecution witnesses are believed, it can be said that prior to 6 a.m. of 6/6/99, the dead body of Chaitanya had appeared on the surface of the water of the well.\nand, the dead body had appeared on the surface of the water within 7-8 hours of the incident of last seen.\n 9] Dr.Omprakash [P.W.1] conducted post mortem examination on the dead body of Chaitanya. This witness has deposed in the cross examination that the dead body comes to surface of water after minimum 24 hours of the drowning. This medical evidence was not disputed by the APP and no further explanation was obtained in respect of this evidence. The judgment of the trial Court shows that the trial Court has referred opinion given on page no.135 in Modi's book of medical jurisprudence [20th edition]. On one hand the trial Court has accepted that generally, time of 24 hours is required for appearance of dead body on surface of water after drowning and on the other, the trial Court has picked up some passages from the aforesaid book to form its own opinion. In view of the contents of the aforesaid book, the trial Court has observed that the possibility of appearance of dead body on the surface of water earlier than 24 hours cannot be ruled out. For giving such opinion, the trial Court has considered circumstance like [1] It was a dead body of a child aged about 1 year; [2] The incident took place in June- the summer season when the water is generally hot and [3] the depth of water was 27 ft. which might have created some upward current in the water. By making such observations, the trial Court has rejected the opinion given by doctor [P.W.1].\n 10] It is true that the opinion of expert like doctor is not binding on the Court and it may not be particularly binding when it is on the point of time of death. However, it needs to be kept in mind that if there is direct evidence on the time of death, the Court can reject the medical opinion and rely on the direct evidence. However, in the case like present one, when there is no opinion as to exact time of death, when time needs to be ascertained, on other science about appearance of dead body on the water after drowning, it cannot be said that the conflict between oral evidence about `last-seen' and medical evidence is of the same nature.\nWhen in a case like present one, the Court has doubt about the opinion given on the basis of other circumstances, the Court can use Section 165 of Evidence Act and if the Court is not satisfied by putting some questions to the doctor, then the Court may use even provision of Section 311 of Cr.P.C. and examine some expert on that point. If such procedure is adopted by the Court, no prejudice will be caused to the defence and defence will not be taken by surprise. The prejudice will be certainly caused to the defence if the Court uses a book on medical jurisprudence, uses some passages from the book and gives its opinion first time in the judgment.\n 11] In the present case, the dead body was noticed in the well at about 6-7 a.m. of 6/6/99. The post mortem was conducted on 7/6/99 at about 10 a.m. No opinion on approximate time of death is brought on record in the evidence of doctor [P.W.1]. The evidence of the doctor and post mortem report show that there was watery fluid in stomach, the stomach was distended with water and in the large intestine there was faecal matter. As the doctor has not given opinion about approximate time of death after taking the last meal and as there are aforesaid circumstances, the approximate time of drowning needs to be ascertained on the basis of general science, the time required for appearance of the dead body on the water due to various circumstances.\n 12] Time is matter of importance in such case. The case was filed for murder of Chaitanya. In such a case, medical evidence is expected to give some estimate as to how long the deceased has been dead. When case rests on circumstantial evidence, the medical officer is expected to give opinion as to the time and date of death. This is because when there is no direct evidence, it is required to look to the medical evidence for necessary information regarding the time of death. In the present case, there is no convincing evidence on material part of prosecution case, the time of death.\n 13] In view of the nature of medical evidence from the present case, it was necessary to ascertain the approximate time when the dead body would have appeared on the surface of water. As the lady [p.w.7] the only witness of `last seen' incident has given evidence that she had seen the deceased alive with the accused at about 10.30 to 11 a.m. on 5/6/99, it can be said that her evidence is in conflict with the general science that the minimum period of 24 hours is required for the appearance of the dead body on surface of the water. When there is conflict between the direct evidence or for that matter, circumstantial evidence on one hand and such opinion on the other the trial Court is expected to look into the oral evidence to ascertain as to whether it is convincing.\n 14] Let us now see the evidence of two witnesses who have given some evidence on the circumstance of `last seen'. Aylubai [p.w.7] has deposed that on that day, till 7.30 p.m. the deceased was in her company as the deceased was taken by her for a function/lunch. She has deposed that on that day, the accused and Vinayak, the husband of the accused were present in the field throughout the day. There is no specific evidence as to when food was lastly given to the child by [p.w.7] or even by the accused.\nNecessary observation with regard to post mortem examination in this regard are already made. in view of these circumstances, it can be said that there is no circumstantial check to evidence of [p.w.7] that she had seen the deceased in the company of accused at about 10.30 to 11 p.m.\n 15] Vinayak [p.w.8] father of deceased has deposed that on that day, the accused was in his company throughout the day and she was working in the field. He had stated before police that Chaitanya was with them throughout the day. This portion of police statement is proved as contradiction in the evidence of investigating officer [p.w.10] as Vinayak avoided to admit this portion of the statement. The contradiction at Exh.26 needs to be treated as material contradiction in view of the evidence given by P.W.7. Neither P.W.7 nor P.W.8 have given evidence that on that day, there was some incident due to which the accused had become angry with them or with the child. On the contrary, the evidence of P.W.7 shows that the accused was always taking proper care of the child and she had no grudge whatsoever against the child.\n 16] There is no evidence with prosecution to show that any other person had seen accused with the deceased on that night or on that day. The well in which the dead body was found is at a distance of 1 Km. from the village. The village road is situated at a distance of 15 ft. from the well. As no other person noticed the accused taking the child to any place on that day or on that night, it can be said that the prosecution wants to rely on the version of P.W.7 and P.W.8. Thus, there is no corroboration of independent evidence to the version of P.W.7 and P.W.8 and further there is conflict between their oral evidence and the expert opinion based on general science.\n 17] In the evidence of Bhaskar [P.W.3] spot panchanama is proved as Exh.13. This evidence shows that the well has no parapet wall. The water of the well was at a distance of 4 ft from ground level. There were bushes and creepers surrounding the well. The village road was at the distance of 15 ft from the well.\nThe deceased was aged about 1 years. Due to the age of the deceased, it can be said that the deceased was either able to walk or atleast crawl and the deceased was in a position to move on its own. Thus, if the time of last seen given by P.W.7 is ignored and the opinion based on science is accepted, it can be said that the death had taken place before early hours of 5/6/99 and not after 11 p.m. of 5/6/99. This possibility is in favour of the accused and so, it needs to be accepted. The evidence of spot panchanama creates another possibility like accidental fall of the child into the well. Such possibility is always there and it cannot be ignored when evidence on `last seen' incident is not convincing.\n 18] The evidence of Sharad [P.W.9] shows that accused was noticed by him at about 3 p.m. on 7/6/99 in his field. She was found sleeping in the field and she did not respond to many calls given to her by many persons. He has deposed that they shifted the accused to village in a bullock cart at 6 p.m. on 7/6/99.\nSurprisingly, the accused was not seen by anybody from 10.30 p.m. of 5/6/99 to 3 p.m. of 7/6/99 as per evidence of prosecution.\nFrom the nature of evidence, it can be said that the accused was in severe shock. The investigating officer [P.W.10] has deposed that the accused was formally arrested on 8/6/99. In the record, time of arrest is shown as 6.30 hrs. on 8/6/99. If the report was given at about 1 p.m. on 7/6/99, and if accused was traced at about 3 p.m., it was necessary for prosecution to explain as to why she was not taken in custody for more than 24 hours. The evidence of Manik [P.W.2], brother of Vinayak shows that relatives of accused on parents side had come to their village and they had given report against husband and relatives of the husband due to this incident. All these circumstances create a probability that to save themselves, the husband and his relatives gave the report and they concocted the case against her.\n 19] In view of the aforesaid circumstance, there is no need to discuss other defence taken by the accused and the explanation given by her about her absence. The evidence of prosecution is not free from doubt and there was the reason for the husband of accused to implicate her in the case. The conflict between the expert opinion based on science and the oral evidence has gone to the root of the case.\n 20] It is well settled law that for establishing the circumstance of `last seen' and for using Section 106 of Evidence Act, it is necessary to establish the proximity of the circumstance as to the time, the place and space. Though the accused was charge sheeted for offence u/s 302 of IPC, she is convicted for offence u/s 304-A of IPC. For proving this offence either rashness or negligence is required to be proved. For this offence also, the prosecution is required to prove that the act of rashness or negligence of the accused caused the death. In view of the aforesaid circumstance of this case, this Court holds that there is no evidence to prove the ingredients of offence punishable u/s 304-A of IPC also. Even for this offence, there has to be some circumstantial evidence on the basis of which inference can be drawn. The Court cannot make a case of its own. So, this Court holds that the conviction given by the trial Court for the offence punishable u/s 304-A of IPC also cannot sustain in law.\n 21] In the result, the Appeal is allowed. The judgment and order of Sessions Court delivered in Sessions Case no.82/99 convicting and sentencing the appellant-accused for offence punishable u/s 304-A of IPC is hereby set aside. The appellant stands acquitted of the offence punishable u/s 304-A of IPC also. The bail bonds stand cancelled. Fine amount if any deposited by the appellant is to be returned to her.\n [T.V.NALAWADE,J.] umg/cria222-00 "
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"text": "\n----\n\n CORAM: V.M. KANADE, J.\n DATE : 10 th November, 2006\n\nORAL JUDGMENT: 1."
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{
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"id": "afff113c618346598349f3ad612c32e0",
"to_name": null,
"type": null,
"value": {
"end": 1445,
"labels": [
"NONE"
],
"start": 1367,
"text": "Heard the learned Counsel for the applicant and the learned APP for the State."
}
},
{
"from_name": null,
"id": "4deefb89de8a485695b383125cfc3e4b",
"to_name": null,
"type": null,
"value": {
"end": 1980,
"labels": [
"RLC"
],
"start": 1447,
"text": "2. This Criminal Revision Application is directed against the judgment and order passed by the Sessions Court, Satara whereby the Sessions Court confirmed the judgment and order passed by the Judicial Magistrate, First Class, Koregaon and convicted the applicant for an offence punishable under section 304- A of the Indian Penal Code and sentenced him to suffer simple imprisonment till rising of the Court and also directed that he should pay fine of Rs 2000/- and, in default, to further suffer simple imprisonment for two months."
}
},
{
"from_name": null,
"id": "e0f99fbea4414a49a8cef1aeae99a500",
"to_name": null,
"type": null,
"value": {
"end": 2243,
"labels": [
"RLC"
],
"start": 1981,
"text": "He is also convicted for an offence punishable under section 187 of the Motor Vehicles Act and sentenced to suffer simple imprisonment till rising of the Court and to pay fine of Rs 2000/- and, in default, to suffer further simple imprisonment for one month.\n 3."
}
},
{
"from_name": null,
"id": "cbaea5476a8947529e80f816fff74611",
"to_name": null,
"type": null,
"value": {
"end": 2447,
"labels": [
"FAC"
],
"start": 2244,
"text": "The prosecution case, in brief, is that the applicant was driving a tanker on 01/06/1991 at about 9.30 p.m. and witnesses Suresh Dodake (P.W.2) and Mohan Ghongade (P.W.4) were sitting in the said tanker."
}
},
{
"from_name": null,
"id": "4e852b5dbbd4471f9e5a1d76d70ab23b",
"to_name": null,
"type": null,
"value": {
"end": 2560,
"labels": [
"FAC"
],
"start": 2448,
"text": "The prosecution story is that the accused drove the said tanker on the body of one Aba Londhe lying on the road."
}
},
{
"from_name": null,
"id": "4e72067616e44edf993aef4d4c1cf66a",
"to_name": null,
"type": null,
"value": {
"end": 2713,
"labels": [
"FAC"
],
"start": 2561,
"text": "The prosecution case is that two witnesses saw body of Aba Londhe lying on the road in the light of S.T. Bus which was coming in the opposite direction."
}
},
{
"from_name": null,
"id": "ed0d31549a6e4dcd81c8c1132619c2c3",
"to_name": null,
"type": null,
"value": {
"end": 2904,
"labels": [
"FAC"
],
"start": 2714,
"text": "After the applicant drove his vehicle on the body of Aba Londhe, he stopped his vehicle at a distance and asked these witnesses to go and check the condition of the person lying on the road."
}
},
{
"from_name": null,
"id": "facfd99cce5c4bbebe6ca138bee88d55",
"to_name": null,
"type": null,
"value": {
"end": 3012,
"labels": [
"FAC"
],
"start": 2905,
"text": "However, both the witnesses were afraid to go back and they did not report this fact to the Police Station."
}
},
{
"from_name": null,
"id": "ea4a82ecd3f347fba0efbbca8989f9e9",
"to_name": null,
"type": null,
"value": {
"end": 3104,
"labels": [
"FAC"
],
"start": 3013,
"text": "The prosecution case is that even the applicant did not report this incident to the police."
}
},
{
"from_name": null,
"id": "b3ef2a6ed6284442b3a9ebfd4562ac06",
"to_name": null,
"type": null,
"value": {
"end": 3231,
"labels": [
"FAC"
],
"start": 3105,
"text": "The statements of witnesses viz. Suresh Dodake (P.W.2) and Mohan Ghongade (P.W.4) were recorded by the Police after four days."
}
},
{
"from_name": null,
"id": "60b886165ce74b2fbf6f9aaf7cc6abb6",
"to_name": null,
"type": null,
"value": {
"end": 3502,
"labels": [
"FAC"
],
"start": 3232,
"text": "The Police filed charge- sheet and the prosecution relied on the evidence of these two eye witnesses and also statement of the father of the deceased, watchman of High School Devram Kalokhe (P.W.3), Rashid Mulla (P.W.5) and Investigating Officer Pandurang Patil (P.W.6)."
}
},
{
"from_name": null,
"id": "786d59d12cba4cb7a31a883070089559",
"to_name": null,
"type": null,
"value": {
"end": 3778,
"labels": [
"FAC"
],
"start": 3503,
"text": "Both the Courts below relied on the statements of the two eye witnesses and came to the conclusion that the applicant was driving the vehicle in a rash and negligent manner and that he could have saved the life of the deceased Aba Londhe if he had driven the tanker properly."
}
},
{
"from_name": null,
"id": "ebdae3e1e6f3495287be7cbf91dd9103",
"to_name": null,
"type": null,
"value": {
"end": 3911,
"labels": [
"ARG_PETITIONER"
],
"start": 3778,
"text": "\n 4. The case of the applicant was that he was not driving the vehicle and that the vehicle was being driven by Rashid Mulla (P.W.5)."
}
},
{
"from_name": null,
"id": "75e6412943a34b9bb4c79d4bb7ae4d83",
"to_name": null,
"type": null,
"value": {
"end": 4129,
"labels": [
"ARG_PETITIONER"
],
"start": 3912,
"text": "The learned Counsel for the applicant submitted that the evidence was also brought on record to show that the wife of the deceased had filed a claim in the Motor Accident Tribunal against Rashid Mulla and one another."
}
},
{
"from_name": null,
"id": "a7d3d44aa1bc4618b3ed56c91928ea6c",
"to_name": null,
"type": null,
"value": {
"end": 4263,
"labels": [
"ARG_PETITIONER"
],
"start": 4130,
"text": "The learned counsel submitted that the witnesses were influenced by Rashid Mulla to state that the applicant was driving the vehicle."
}
},
{
"from_name": null,
"id": "f10fa9492aff49f48fe963b5f627bfcd",
"to_name": null,
"type": null,
"value": {
"end": 4421,
"labels": [
"ARG_PETITIONER"
],
"start": 4264,
"text": "He submitted that the evidence on record is insufficient to come to the conclusion that the applicant was driving the vehicle in a rash and negligent manner."
}
},
{
"from_name": null,
"id": "eb60c188318c496fbde83082dcab81ef",
"to_name": null,
"type": null,
"value": {
"end": 4575,
"labels": [
"ARG_PETITIONER"
],
"start": 4422,
"text": "He submitted that even if it is held that the applicant was driving the vehicle, it is not brought on record that he did not have proper driving licence."
}
},
{
"from_name": null,
"id": "8d5520d6111d47dca19029098c1ef597",
"to_name": null,
"type": null,
"value": {
"end": 4720,
"labels": [
"ARG_PETITIONER"
],
"start": 4576,
"text": "He further submitted that the finding has been recorded by the lower Appellate Court that the deceased was lying in a drunken state on the road."
}
},
{
"from_name": null,
"id": "feb7089a5cc142259bcceaed1d7768e1",
"to_name": null,
"type": null,
"value": {
"end": 4918,
"labels": [
"ARG_PETITIONER"
],
"start": 4721,
"text": "He submitted that it was the bounden duty of the lower Appellate Court to consider that, in such circumstances, whether it can be held that the applicant was guilty of a rash and negligent driving."
}
},
{
"from_name": null,
"id": "349cb842a04a4417809f23c683ff1e3c",
"to_name": null,
"type": null,
"value": {
"end": 5224,
"labels": [
"ARG_PETITIONER"
],
"start": 4919,
"text": "He also invited my attention to the spot panchanama which discloses that the distance between the gate of the School and the foot- path was 30 ft. and, thereafter, a kachcha road begins and the dead body was lying at a distance of 7 ft. from the kachcha road and that the width of the tar road was 18 ft.."
}
},
{
"from_name": null,
"id": "7af317598a2240e5ae0266a0b94fb1db",
"to_name": null,
"type": null,
"value": {
"end": 5304,
"labels": [
"ARG_PETITIONER"
],
"start": 5225,
"text": "He submitted that this aspect had not been considered by both the Courts below."
}
},
{
"from_name": null,
"id": "b35d6a2ecdc0481da3b532a4db0ad75a",
"to_name": null,
"type": null,
"value": {
"end": 5672,
"labels": [
"ARG_PETITIONER"
],
"start": 5305,
"text": "He submitted that, therefore, there was a complete non- application of mind on the part of both the Courts below on the question of rashness and negligence on the part of the applicant and that the finding was given more on conjectures and surmises and that, even otherwise, the statements of eye witnesses which were recorded after a lapse of 4 days were unreliable."
}
},
{
"from_name": null,
"id": "2d379bea016545a48ff160b7be7e171e",
"to_name": null,
"type": null,
"value": {
"end": 6094,
"labels": [
"ARG_PETITIONER"
],
"start": 5673,
"text": "He submitted that, therefore, since the finding was recorded on extraneous material, judgments and orders of both the Courts below were liable to be set aside and that the Revisional Court, exercising its jurisdiction under section 401 of the Criminal Procedure Code, can set aside the Judgment and order of the lower Appellate Court after it has noticed that the judgment and order passed by the lower Court was illegal."
}
},
{
"from_name": null,
"id": "adf8f6435ccc4660ad43fde1af39338e",
"to_name": null,
"type": null,
"value": {
"end": 6229,
"labels": [
"ARG_RESPONDENT"
],
"start": 6094,
"text": "\n 5. The learned APP appearing on behalf of the State vehemently opposed the submissions made by the learned Counsel for the applicant."
}
},
{
"from_name": null,
"id": "af46ef0d53f24a72845e0f48253f7b28",
"to_name": null,
"type": null,
"value": {
"end": 6429,
"labels": [
"ARG_RESPONDENT"
],
"start": 6230,
"text": "He submitted that it was established by two eye witnesses that the applicant was responsible for death of the deceased and that he has run over his tanker on a person who was lying on a kachcha road."
}
},
{
"from_name": null,
"id": "01f83ad693114a099256bef7397fa83d",
"to_name": null,
"type": null,
"value": {
"end": 6576,
"labels": [
"ARG_RESPONDENT"
],
"start": 6430,
"text": "He submitted that that the arguments could have been advanced about the driver not being rash and negligent if the person was lying on a tar road."
}
},
{
"from_name": null,
"id": "dc4c444158d24cbdadf10d888b3b2355",
"to_name": null,
"type": null,
"value": {
"end": 6717,
"labels": [
"ARG_RESPONDENT"
],
"start": 6577,
"text": "He submitted that it was easily possible for the applicant to have avoided running over his tanker on a helpless person lying on the street."
}
},
{
"from_name": null,
"id": "461c7402563f4d03a07731cffb2aab5e",
"to_name": null,
"type": null,
"value": {
"end": 6958,
"labels": [
"ARG_RESPONDENT"
],
"start": 6718,
"text": "He submitted that evidence of two eye witnesses was clinching and, on the basis of that evidence, findings were recorded by the trial court and the lower Appellate Court and there was no reason for this Court to set aside the said findings."
}
},
{
"from_name": null,
"id": "34c8216cc9364ebaa2645a76b6161032",
"to_name": null,
"type": null,
"value": {
"end": 7170,
"labels": [
"ANALYSIS"
],
"start": 6958,
"text": "\n 6. In my view, the evidence on record is insufficient to come to a conclusion that the applicant was driving a tanker in a rash and negligent manner and that the applicant is entitled to get a benefit of doubt."
}
},
{
"from_name": null,
"id": "42ef56043bd8479792fd2cd1241891e1",
"to_name": null,
"type": null,
"value": {
"end": 7331,
"labels": [
"ANALYSIS"
],
"start": 7171,
"text": "The lower Appellate Court has given a categorical finding that the deceased Aba Londhe was lying in a drunken condition on the road at the time of the incident."
}
},
{
"from_name": null,
"id": "83208fb264e1478a8565ec62ac8a8d43",
"to_name": null,
"type": null,
"value": {
"end": 7526,
"labels": [
"ANALYSIS"
],
"start": 7332,
"text": "The lower Appellate Court, however, came to the conclusion that the conduct of deceased Aba Londhe did not absolve the accused from his responsibility to drive a tanker cautiously and carefully."
}
},
{
"from_name": null,
"id": "5f7254c6b31543bb9dd2118d3ae49ca3",
"to_name": null,
"type": null,
"value": {
"end": 7718,
"labels": [
"ANALYSIS"
],
"start": 7527,
"text": "The lower Appellate Court has further come to the conclusion that it was the duty of the driver to stop the tanker or to drive it in a manner so that the deceased would not suffer any injury."
}
},
{
"from_name": null,
"id": "3a2ced8869124a89a648c15baa4cfc5c",
"to_name": null,
"type": null,
"value": {
"end": 7774,
"labels": [
"ANALYSIS"
],
"start": 7719,
"text": "In my view, the said finding will have to be set aside."
}
},
{
"from_name": null,
"id": "00c78abca71b4d38bb7bfefd195cf2b7",
"to_name": null,
"type": null,
"value": {
"end": 7910,
"labels": [
"ANALYSIS"
],
"start": 7775,
"text": "The Trial Court, in my view, has erred in coming to the conclusion that the applicant drove the vehicle in a rash and negligent manner."
}
},
{
"from_name": null,
"id": "f030afde9b0c4805842c6546e90cd35f",
"to_name": null,
"type": null,
"value": {
"end": 8144,
"labels": [
"ANALYSIS"
],
"start": 7910,
"text": "\nIn order to establish the negligence and the rashness on the part of the accused, it is the duty of the prosecution to establish by oral and documentary evidence that the driver was driving his vehicle in a rash and negligent manner."
}
},
{
"from_name": null,
"id": "cc47a802d41f4f6297b176602df8f93d",
"to_name": null,
"type": null,
"value": {
"end": 8237,
"labels": [
"ANALYSIS"
],
"start": 8145,
"text": "In the present case, there is no evidence to show that the applicant was driving at a speed."
}
},
{
"from_name": null,
"id": "4c5ac130d2be4deaa2b8aceaecc01ddf",
"to_name": null,
"type": null,
"value": {
"end": 8396,
"labels": [
"ANALYSIS"
],
"start": 8238,
"text": "Both the eye witnesses have merely stated that they saw the deceased lying on the road in the head- lights of the S.T. Bus coming from the opposite direction."
}
},
{
"from_name": null,
"id": "e2c282e1496f4675a53cd1c756bf0865",
"to_name": null,
"type": null,
"value": {
"end": 8471,
"labels": [
"ANALYSIS"
],
"start": 8397,
"text": "These witnesses do not state that the vehicle was being driven in a speed."
}
},
{
"from_name": null,
"id": "01f1d5d1f72f4d8db10ef16fae338763",
"to_name": null,
"type": null,
"value": {
"end": 8544,
"labels": [
"ANALYSIS"
],
"start": 8472,
"text": "It must be remembered that the accident took place at 9.30 p.m at night."
}
},
{
"from_name": null,
"id": "f1b282460d3b4dcd896e0e14255f909a",
"to_name": null,
"type": null,
"value": {
"end": 8626,
"labels": [
"ANALYSIS"
],
"start": 8545,
"text": "There is no evidence to suggest that there was any lamppost or light on the road."
}
},
{
"from_name": null,
"id": "658dde7c0b5543178095054f205d1886",
"to_name": null,
"type": null,
"value": {
"end": 8835,
"labels": [
"ANALYSIS"
],
"start": 8627,
"text": "The spot panchanama clearly shows that the body was found at a distance of 7 ft. from the kachcha road and that there was open space of about 30 ft. from the gate of the School till the end of the foot- path."
}
},
{
"from_name": null,
"id": "3acb7a2c46f24618994678188fc38127",
"to_name": null,
"type": null,
"value": {
"end": 9094,
"labels": [
"ANALYSIS"
],
"start": 8836,
"text": "It is understandable that if the deceased was lying on this strip of land and that the tanker had been driven on a person lying on this portion of the land then a finding could have been that the driver was driving the vehicle in a rash and negligent manner."
}
},
{
"from_name": null,
"id": "22791a3f5b6c43ce80102204478e1db7",
"to_name": null,
"type": null,
"value": {
"end": 9384,
"labels": [
"ANALYSIS"
],
"start": 9095,
"text": "A person lying on the road merely 7 ft.\nfrom the foot- path in a drunken condition where there was no lights, might not have been noticed by a driver particularly when a vehicle like S.T. Bus was coming from the opposite direction on a small road where width of the tar road is only 18 ft."
}
},
{
"from_name": null,
"id": "58e89caf348b40429974dfafdd0ac9de",
"to_name": null,
"type": null,
"value": {
"end": 9604,
"labels": [
"ANALYSIS"
],
"start": 9385,
"text": "In my view, therefore, the conviction awarded by the Trial Court and confirmed by the Sessions Court is liable to be set aside and the applicant herein is liable to be acquitted of the offence with which he was charged."
}
},
{
"from_name": null,
"id": "7b0060a345a44116a2d66e08c44f6d7e",
"to_name": null,
"type": null,
"value": {
"end": 9669,
"labels": [
"RPC"
],
"start": 9604,
"text": "\n 7. In the result, the Criminal Revision Application is allowed."
}
},
{
"from_name": null,
"id": "a3966b2b921c4e829bfd6b035bfc8062",
"to_name": null,
"type": null,
"value": {
"end": 9808,
"labels": [
"RPC"
],
"start": 9670,
"text": "The judgment and order dated 13/05/1994 passed by the Judicial Magistrate, First Class in S.C.C. No. 490 of 1991 is quashed and set aside."
}
},
{
"from_name": null,
"id": "eb783c283ff846199a9c8ddfb84ea8be",
"to_name": null,
"type": null,
"value": {
"end": 9990,
"labels": [
"RPC"
],
"start": 9809,
"text": "The judgment and order passed by the lower Appellate Court dated 11/03/1997 passed in Criminal Appeal No.64 of 1994 is quashed and set aside and the applicant- accused is acquitted."
}
},
{
"from_name": null,
"id": "2a37ce0f48a346ec8056ca28edc2bef4",
"to_name": null,
"type": null,
"value": {
"end": 10190,
"labels": [
"RPC"
],
"start": 9991,
"text": "However, it is clarified that the amount which has been paid to the widow of the deceased shall not be refunded to the applicant and the applicant shall not claim the amount of fine deposited by him."
}
},
{
"from_name": null,
"id": "2903ec431f1441cba91813ab5aa0ca73",
"to_name": null,
"type": null,
"value": {
"end": 10526,
"labels": [
"RPC"
],
"start": 10191,
"text": "It is further clarified that the acquittal of the applicant- accused shall not come in the way of the widow of the deceased who has claimed compensation and the said application may be pursued by the widow and the Tribunal may not be influenced by the acquittal of the applicant- accused since a benefit of doubt has been given to him."
}
},
{
"from_name": null,
"id": "40996f75c20540128576f6f8e68db1b8",
"to_name": null,
"type": null,
"value": {
"end": 10597,
"labels": [
"RPC"
],
"start": 10526,
"text": "\n 8. Criminal Revision Application is made absolute in the above terms."
}
}
]
}
] | 4,162 | {
"text": " IN THE HIGH COURT OF JUDICATURE AT BOMBY\n CRIMINAL APPELLATE JURISDICTION\n\n CRIMINAL REVISION APPLICATION NO. 81 OF 1997\n\nJagannath Jayram Chormale, )\n\naged about 36 years, Occ: Service, )\n ) ...Applicant\nresiding at Bhdhwar Peth, Phaltan, )\n\nTaluka Phaltan, District : Satara\n\n V/s\n\n1. State of Maharashtra )\n\n )\n\n2. Smt. Rekha Aba Londhe, aged )\n )\nabout 31 years, Household wife\n )\n )\n )\n3. Master Yogesh Aba Londhe, aged\n )\nabout 11 years, Occ. Student. ) )\n )\n ) )\n ) ....Respondents.\n4. Miss Yogita Aba Londhe aged\n\nabout 8 years, )\n\nNo.3 and 4 minors through their\n\nnatural guardian mother viz the\n\nRespondent No.2 abovenamed.\n\nNo.2 to 4 residing at Wathar Station,\n\nTaluka Koregaon, District Satara\n\n----\n\nMr. P.J. Shinde for the Applicant.\n\nMr. U.V. Nikam, APP for the State.\n----\n\n CORAM: V.M. KANADE, J.\n DATE : 10 th November, 2006\n\nORAL JUDGMENT: 1. Heard the learned Counsel for the applicant and the learned APP for the State.\n 2. This Criminal Revision Application is directed against the judgment and order passed by the Sessions Court, Satara whereby the Sessions Court confirmed the judgment and order passed by the Judicial Magistrate, First Class, Koregaon and convicted the applicant for an offence punishable under section 304- A of the Indian Penal Code and sentenced him to suffer simple imprisonment till rising of the Court and also directed that he should pay fine of Rs 2000/- and, in default, to further suffer simple imprisonment for two months. He is also convicted for an offence punishable under section 187 of the Motor Vehicles Act and sentenced to suffer simple imprisonment till rising of the Court and to pay fine of Rs 2000/- and, in default, to suffer further simple imprisonment for one month.\n 3. The prosecution case, in brief, is that the applicant was driving a tanker on 01/06/1991 at about 9.30 p.m. and witnesses Suresh Dodake (P.W.2) and Mohan Ghongade (P.W.4) were sitting in the said tanker. The prosecution story is that the accused drove the said tanker on the body of one Aba Londhe lying on the road. The prosecution case is that two witnesses saw body of Aba Londhe lying on the road in the light of S.T. Bus which was coming in the opposite direction. After the applicant drove his vehicle on the body of Aba Londhe, he stopped his vehicle at a distance and asked these witnesses to go and check the condition of the person lying on the road. However, both the witnesses were afraid to go back and they did not report this fact to the Police Station. The prosecution case is that even the applicant did not report this incident to the police. The statements of witnesses viz. Suresh Dodake (P.W.2) and Mohan Ghongade (P.W.4) were recorded by the Police after four days. The Police filed charge- sheet and the prosecution relied on the evidence of these two eye witnesses and also statement of the father of the deceased, watchman of High School Devram Kalokhe (P.W.3), Rashid Mulla (P.W.5) and Investigating Officer Pandurang Patil (P.W.6). Both the Courts below relied on the statements of the two eye witnesses and came to the conclusion that the applicant was driving the vehicle in a rash and negligent manner and that he could have saved the life of the deceased Aba Londhe if he had driven the tanker properly.\n 4. The case of the applicant was that he was not driving the vehicle and that the vehicle was being driven by Rashid Mulla (P.W.5). The learned Counsel for the applicant submitted that the evidence was also brought on record to show that the wife of the deceased had filed a claim in the Motor Accident Tribunal against Rashid Mulla and one another. The learned counsel submitted that the witnesses were influenced by Rashid Mulla to state that the applicant was driving the vehicle. He submitted that the evidence on record is insufficient to come to the conclusion that the applicant was driving the vehicle in a rash and negligent manner. He submitted that even if it is held that the applicant was driving the vehicle, it is not brought on record that he did not have proper driving licence. He further submitted that the finding has been recorded by the lower Appellate Court that the deceased was lying in a drunken state on the road. He submitted that it was the bounden duty of the lower Appellate Court to consider that, in such circumstances, whether it can be held that the applicant was guilty of a rash and negligent driving. He also invited my attention to the spot panchanama which discloses that the distance between the gate of the School and the foot- path was 30 ft. and, thereafter, a kachcha road begins and the dead body was lying at a distance of 7 ft. from the kachcha road and that the width of the tar road was 18 ft.. He submitted that this aspect had not been considered by both the Courts below. He submitted that, therefore, there was a complete non- application of mind on the part of both the Courts below on the question of rashness and negligence on the part of the applicant and that the finding was given more on conjectures and surmises and that, even otherwise, the statements of eye witnesses which were recorded after a lapse of 4 days were unreliable. He submitted that, therefore, since the finding was recorded on extraneous material, judgments and orders of both the Courts below were liable to be set aside and that the Revisional Court, exercising its jurisdiction under section 401 of the Criminal Procedure Code, can set aside the Judgment and order of the lower Appellate Court after it has noticed that the judgment and order passed by the lower Court was illegal.\n 5. The learned APP appearing on behalf of the State vehemently opposed the submissions made by the learned Counsel for the applicant. He submitted that it was established by two eye witnesses that the applicant was responsible for death of the deceased and that he has run over his tanker on a person who was lying on a kachcha road. He submitted that that the arguments could have been advanced about the driver not being rash and negligent if the person was lying on a tar road. He submitted that it was easily possible for the applicant to have avoided running over his tanker on a helpless person lying on the street. He submitted that evidence of two eye witnesses was clinching and, on the basis of that evidence, findings were recorded by the trial court and the lower Appellate Court and there was no reason for this Court to set aside the said findings.\n 6. In my view, the evidence on record is insufficient to come to a conclusion that the applicant was driving a tanker in a rash and negligent manner and that the applicant is entitled to get a benefit of doubt. The lower Appellate Court has given a categorical finding that the deceased Aba Londhe was lying in a drunken condition on the road at the time of the incident. The lower Appellate Court, however, came to the conclusion that the conduct of deceased Aba Londhe did not absolve the accused from his responsibility to drive a tanker cautiously and carefully. The lower Appellate Court has further come to the conclusion that it was the duty of the driver to stop the tanker or to drive it in a manner so that the deceased would not suffer any injury. In my view, the said finding will have to be set aside. The Trial Court, in my view, has erred in coming to the conclusion that the applicant drove the vehicle in a rash and negligent manner.\nIn order to establish the negligence and the rashness on the part of the accused, it is the duty of the prosecution to establish by oral and documentary evidence that the driver was driving his vehicle in a rash and negligent manner. In the present case, there is no evidence to show that the applicant was driving at a speed. Both the eye witnesses have merely stated that they saw the deceased lying on the road in the head- lights of the S.T. Bus coming from the opposite direction. These witnesses do not state that the vehicle was being driven in a speed. It must be remembered that the accident took place at 9.30 p.m at night. There is no evidence to suggest that there was any lamppost or light on the road. The spot panchanama clearly shows that the body was found at a distance of 7 ft. from the kachcha road and that there was open space of about 30 ft. from the gate of the School till the end of the foot- path. It is understandable that if the deceased was lying on this strip of land and that the tanker had been driven on a person lying on this portion of the land then a finding could have been that the driver was driving the vehicle in a rash and negligent manner. A person lying on the road merely 7 ft.\nfrom the foot- path in a drunken condition where there was no lights, might not have been noticed by a driver particularly when a vehicle like S.T. Bus was coming from the opposite direction on a small road where width of the tar road is only 18 ft. In my view, therefore, the conviction awarded by the Trial Court and confirmed by the Sessions Court is liable to be set aside and the applicant herein is liable to be acquitted of the offence with which he was charged.\n 7. In the result, the Criminal Revision Application is allowed. The judgment and order dated 13/05/1994 passed by the Judicial Magistrate, First Class in S.C.C. No. 490 of 1991 is quashed and set aside. The judgment and order passed by the lower Appellate Court dated 11/03/1997 passed in Criminal Appeal No.64 of 1994 is quashed and set aside and the applicant- accused is acquitted. However, it is clarified that the amount which has been paid to the widow of the deceased shall not be refunded to the applicant and the applicant shall not claim the amount of fine deposited by him. It is further clarified that the acquittal of the applicant- accused shall not come in the way of the widow of the deceased who has claimed compensation and the said application may be pursued by the widow and the Tribunal may not be influenced by the acquittal of the applicant- accused since a benefit of doubt has been given to him.\n 8. Criminal Revision Application is made absolute in the above terms.\n "
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"text": "IN THE HIGH COURT OF KARNATAKA AT BANGALORE\n DATED THIS THE 23RD DAY OF JULY, 2014\n\n BEFORE\n\nTHE HON'BLE MRS.JUSTICE B.V.NAGARATHNA\n\nWRIT PETITION NO.40548/2013 (T-IT)"
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"text": "BETWEEN:\n\nSRI DEEPAK VARMA\n\nS/O SRI SATYAPAL VARMA,\n\nAGED 58 YEARS,\n\nRESIDING AT NO.10,\n\nH.M.ASTORIAN, BENSON CROSS ROAD,\n\nNANDIDURGA ROAD\n\nBANGALORE. ... PETITIONER\n\n(BY SMT.VANI H., ADV.)\n\nAND:\n\n1. THE COMMISSIONER OF INCOME TAX\n "
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"text": "2. INCOME TAX OFFICER,\n\n CIRCLE-8(2), SAMPIGE ROAD\n\n MALLESWARAM\n\n BANGALORE-560 002."
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"text": "... RESPONDENTS\n\n(BY SRI. K.V.ARAVIND, SENIOR STANDING COUNSEL\nFOR R1 & R2)\n\n *****\n\n "
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"text": "THIS W.P. IS FILED UNDER ARTICLES 226 AND\n227 OF THE CONSTITUTION OF INDIA PRAYING TO SET\nASIDE THE ORDER DATED 31.7.2013 PASSED BY THE\n"
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"text": "FIRST RESPONDENT VIDE ANNEXURE-P."
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"labels": [
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"start": 960,
"text": "THIS PETITION COMING ON FOR PRELIMINARY\nHEARING IN `B' GROUP THIS DAY, COURT MADE THE\nFOLLOWING:-\n\n O R D E R\n This writ petition has been filed by the petitioner being aggrieved by the order of the first respondent Commissioner of Income Tax- IV, Bangalore, on 31/07/2013 (Annexure \"P\"), passed under Section 119(2)(6) of the Income Tax Act, 1961 (hereinafter, referred to as the \"Act\", for the sake of brevity).\n 2."
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"labels": [
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],
"start": 1417,
"text": "The facts germane to the disposal of this writ petition are that the petitioner, who is an individual assessee and owner of the flat at Bombay, had let out the flat to M/s.DHL Express (India) Pvt. Ltd., under a leave and licence agreement dated 01/03/2007."
}
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"labels": [
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"start": 1674,
"text": "The petitioner had received a sum of Rs.1,50,000/- per month, as the monthly rentals, subject to deduction of tax at source."
}
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"labels": [
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"text": "Petitioner had also received Rs.20,000/- per month, towards furniture, fixtures etc., in the said flat, in addition to advance rentals for a period of 14 months, which were to be adjusted against the last 14 months of the lease period."
}
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{
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"end": 2155,
"labels": [
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],
"start": 2035,
"text": "The advance rentals were received on 28/02/2007 during the financial year 2006-07 and the assessment year being 2007-08."
}
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"id": "adfcd6b0fe424a59b621bc04778e630c",
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"labels": [
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],
"start": 2156,
"text": "The lessee had deducted tax at source with regard to the advance rentals while making the payment to the petitioner."
}
},
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"value": {
"end": 2706,
"labels": [
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],
"start": 2273,
"text": "On the aforesaid premise, the petitioner filed his return of income for the assessment year 2007-08 on 27/07/2007 and the said return of income was processed and the tax liability was determined at Rs.2,10,110/- and since there was a tax deduction at source to an extent of Rs.4,00,854/- on account of the advance rentals received by the petitioner, he claimed a refund of Rs.1,90,744/- in the original return of income filed by him."
}
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"labels": [
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],
"start": 2706,
"text": "\n 3. The leave and license agreement which commenced from 01/03/2007 was to expire on 30/11/2010 after a period of 33 months."
}
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{
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"labels": [
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],
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"text": "However, that was prematurely terminated after a period of 18 months."
}
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"value": {
"end": 3014,
"labels": [
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"start": 2902,
"text": "There were negotiations between the parties and in September 2008 petitioner returned a sum of Rs.23,80,000/- to"
}
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{
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"to_name": "text",
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"value": {
"end": 3059,
"labels": [
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],
"start": 3015,
"text": "the lessee M/s.DHL Express (India) Pvt. Ltd."
}
},
{
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"value": {
"end": 3224,
"labels": [
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],
"start": 3060,
"text": "Consequently, there was no rental income received after the period of 18 months in respect of which, the return of income for the assessment year 2007-08 was filed."
}
},
{
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"value": {
"end": 3319,
"labels": [
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],
"start": 3224,
"text": "\nAccording to the petitioner, the actual rentals received was only Rs.3,60,808/- for that year."
}
},
{
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"id": "13c9f34ba3254657868965429adee1c1",
"to_name": "text",
"type": "labels",
"value": {
"end": 3478,
"labels": [
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],
"start": 3319,
"text": "\nOn account of the aforesaid circumstances, the petitioner filed revised return for the assessment year 2007-08 on 16/07/2009, seeking refund of Rs.4,00,854/-."
}
},
{
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"value": {
"end": 3677,
"labels": [
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],
"start": 3479,
"text": "Admittedly, the other petitioner had a right to file a revised return, which had to be done so on or before 31/03/2009 and hence, the revised return filed by the petitioner was delayed by 3 months."
}
},
{
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"value": {
"end": 3877,
"labels": [
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],
"start": 3678,
"text": "Petitioner also filed an application under Section 119(2)(b) of the Act, seeking condonation of delay in filing revised return and for refund of the excess tax paid on scrutiny of the revised return."
}
},
{
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"value": {
"end": 3939,
"labels": [
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],
"start": 3878,
"text": "By order dated 31/10/2012, the said application was rejected."
}
},
{
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"value": {
"end": 4032,
"labels": [
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],
"start": 3939,
"text": "\nBeing aggrieved by that order, petitioner had preferred W.P.No.50054/2012 before this Court."
}
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"value": {
"end": 4238,
"labels": [
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],
"start": 4032,
"text": "\nThe said writ petition was allowed by order dated 12/02/2013, the impugned order dated 31/10/2012 was quashed and the matter was remanded to the first respondent for reconsideration in accordance with law."
}
},
{
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"to_name": "text",
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"value": {
"end": 4373,
"labels": [
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],
"start": 4238,
"text": "\nPursuant to the order of remand, the impugned order dated 31/07/2013 has been passed and that order is assailed in this writ petition."
}
},
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"end": 4514,
"labels": [
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],
"start": 4373,
"text": "\n 4. I have heard learned counsel for the petitioner and the learned standing counsel for the respondents and perused the material on record."
}
},
{
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"end": 4791,
"labels": [
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],
"start": 4514,
"text": "\n 5. Learned counsel for the petitioner during the course of her submission has drawn my attention to instruction No.13/2006 dated 22/12/2006, which has been issued by the Central Board of Direct Taxes (CBDT) pursuant to clause (b) of sub-section (2) of Section 119 of the Act."
}
},
{
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"id": "0a29764899264428b57ea32efff74a97",
"to_name": "text",
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"value": {
"end": 4979,
"labels": [
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],
"start": 4792,
"text": "She contended that the first respondent ought to have condoned the delay in filing the revised return and permitted processing of the revised return filed on 16/07/2009 by the petitioner."
}
},
{
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"id": "9f1338dc3ec848f28b9bb3eb50d688ca",
"to_name": "text",
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"value": {
"end": 5095,
"labels": [
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],
"start": 4980,
"text": "That there was a short delay of 3 months in filing the revised return on account of genuine and bona fide reasons."
}
},
{
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"id": "0e3cedb27fc14e66907ab4f6fe585c51",
"to_name": "text",
"type": "labels",
"value": {
"end": 5416,
"labels": [
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],
"start": 5096,
"text": "She gave reasons as to why the revised return had to be filed, seeking refund in view of the agreement dated 01/03/2007 being terminated between the petitioner and M/s.DHL Express (India) Pvt. Ltd., prematurely which had resulted in return of the advance rentals and other deposits made by that entity to the petitioner."
}
},
{
"from_name": "label",
"id": "9610c98dbf6748599c6261da0e77c571",
"to_name": "text",
"type": "labels",
"value": {
"end": 5567,
"labels": [
"ARG_PETITIONER"
],
"start": 5417,
"text": "Consequently, the tax paid on the advance rentals had to be refunded to the petitioner and that was the reason as to why the revised return was filed."
}
},
{
"from_name": "label",
"id": "db40d076f232416487b1dc2b2e535d63",
"to_name": "text",
"type": "labels",
"value": {
"end": 5901,
"labels": [
"ARG_PETITIONER"
],
"start": 5568,
"text": "She also submitted that on account of two bereavements in the family of the petitioner namely his parents died in November 2009 and June 2009, therefore petitioner was not in a position to file the revised return in accordance with the stipulated time and therefore, there were genuine reasons as to why returns were filed belatedly."
}
},
{
"from_name": "label",
"id": "2f833a0bd4e2462ab8b9676e78293c5a",
"to_name": "text",
"type": "labels",
"value": {
"end": 6147,
"labels": [
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],
"start": 5902,
"text": "It is further submitted that though the impugned order takes note of the aforesaid facts but the first respondent has not appreciated those facts in their proper perspective while applying clause (b) of sub-section (2) of Section 119 of the Act."
}
},
{
"from_name": "label",
"id": "6ab36c485f3242f5b217311bf1dbcfde",
"to_name": "text",
"type": "labels",
"value": {
"end": 6449,
"labels": [
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],
"start": 6147,
"text": "\nShe also submitted that the first respondent ought to have condoned the delay in filing the return and permitted processing of the revised return as petitioner is entitled to refund and non- processing of the revised return and non payment of refund has resulted in genuine hardship to the petitioner."
}
},
{
"from_name": "label",
"id": "e226ac73f9544f1fb506ccb2d39c407a",
"to_name": "text",
"type": "labels",
"value": {
"end": 6522,
"labels": [
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],
"start": 6450,
"text": "In support of her submissions, she has placed reliance on two decisions."
}
},
{
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"id": "0c0687d3892c49d5971e9c4047864bb4",
"to_name": "text",
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"value": {
"end": 6897,
"labels": [
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],
"start": 6523,
"text": "The first being of the Bombay High Court in case of Sitaldas K.Motwani v.\nDirector-General of Income-tax [(2010) 323 ITR 223) and Pala Marketing Co- operative Society Ltd. v. Union of India and Others [(2009) 311 ITR 177 (Ker.)], to contend that this was a fit case where the first respondent ought to have permitted processing of the revised return filed by the petitioner."
}
},
{
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"labels": [
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],
"start": 6899,
"text": "6. Per contra, learned standing counsel appearing for the respondent Department, stated that the reason as to why the revised return has been filed by the petitioner is not in consonance with the Departmental Instruction No.13/2006 by drawing my attention to sub- section (a) of clause (5) of that settlement."
}
},
{
"from_name": "label",
"id": "a18f65dc9475440bb9b75feec3e2cca0",
"to_name": "text",
"type": "labels",
"value": {
"end": 7397,
"labels": [
"ARG_RESPONDENT"
],
"start": 7210,
"text": "It was contended that merely because certain subsequent events had transpired after filing of the original return, would not entitle the petitioner to file revised return and seek refund."
}
},
{
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"id": "d77c3d08fd324519a3277dda9cb7022c",
"to_name": "text",
"type": "labels",
"value": {
"end": 7599,
"labels": [
"ARG_RESPONDENT"
],
"start": 7397,
"text": "\nHe also contended that reasons have been rightly appreciated in the impugned order for not condoning the delay, as the petitioner had sufficient time to file the revised return on or before 31/03/2009."
}
},
{
"from_name": "label",
"id": "b6baab2c61814a86975863f43bfd7d73",
"to_name": "text",
"type": "labels",
"value": {
"end": 7669,
"labels": [
"ARG_RESPONDENT"
],
"start": 7600,
"text": "He therefore, submitted that there is no merit in this writ petition."
}
},
{
"from_name": "label",
"id": "c0dc479b4de94902bd5ff7b31e91315d",
"to_name": "text",
"type": "labels",
"value": {
"end": 7926,
"labels": [
"ANALYSIS"
],
"start": 7669,
"text": "\n 7. Having heard learned counsel for the parties and on perusal of the material on record, it is noted that admittedly, the revised return was filed on 16/07/2009 i.e., after a delay of 3 months as the last date for filing of revised return was 31/03/2009."
}
},
{
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"id": "f22d6cd38e704558a2a1d71bef407f46",
"to_name": "text",
"type": "labels",
"value": {
"end": 8219,
"labels": [
"ANALYSIS"
],
"start": 7927,
"text": "While considering an application under clause (b) of sub-section (2) of Section 119 of the Act, the authority while going into the reason as to why the revised return has been filed has also to consider the application for refund in such a manner as to avoid genuine hardship to the assessee."
}
},
{
"from_name": "label",
"id": "de542ea602d5410586fb88a9885ffb59",
"to_name": "text",
"type": "labels",
"value": {
"end": 8375,
"labels": [
"ANALYSIS"
],
"start": 8220,
"text": "For that, what the authority has to consider is as to whether the revised return was filed with a bona fide intention and for genuine and bonafide reasons."
}
},
{
"from_name": "label",
"id": "95599a416854488d99865eca6843808b",
"to_name": "text",
"type": "labels",
"value": {
"end": 8588,
"labels": [
"ANALYSIS"
],
"start": 8375,
"text": "\n Obviously, while seeking condonation of delay in filing the revised return, the assessee would have to give his explanation as to why the revised return could not be filed within the last date stipulated in law."
}
},
{
"from_name": "label",
"id": "21bebcbbd6c342459952afab23587ed9",
"to_name": "text",
"type": "labels",
"value": {
"end": 8700,
"labels": [
"ANALYSIS"
],
"start": 8589,
"text": "While considering that explanation, the authority would have to take into consideration Instruction No.13/2006."
}
},
{
"from_name": "label",
"id": "754bb9a337a54087ab89dd47716b4d44",
"to_name": "text",
"type": "labels",
"value": {
"end": 9072,
"labels": [
"ANALYSIS"
],
"start": 8701,
"text": "If the authority is of the opinion that there was a genuine reason as to why the revised return could not be filed in time, that would have to be taken into note of and the delay would have to be condoned and while condoning that delay, the authority would also have to consider that if the delay is not condoned, then it would result in genuine hardship to the assessee."
}
},
{
"from_name": "label",
"id": "76ffabdac14f408a93b63cd483b8c8fa",
"to_name": "text",
"type": "labels",
"value": {
"end": 9254,
"labels": [
"ANALYSIS"
],
"start": 9073,
"text": "It is in this context that Instruction No.13/2006 has been issued by the CBDT for the guidance of the authority while considering an application under Section 119 (2)(b) of the Act."
}
},
{
"from_name": "label",
"id": "ecea8a74d6bb416db8e3febf044e79b8",
"to_name": "text",
"type": "labels",
"value": {
"end": 9516,
"labels": [
"ANALYSIS"
],
"start": 9254,
"text": "\n 8. In the instant case, the first respondent authority has noted the reasons as to why there was a delay in filing the revised return and also has taken note of the fact that the parents of the assessee were ill and they both died within a period of one year."
}
},
{
"from_name": "label",
"id": "ec33b819d5244a1ea6997239889edfd8",
"to_name": "text",
"type": "labels",
"value": {
"end": 9842,
"labels": [
"ANALYSIS"
],
"start": 9517,
"text": "However, the first respondent authority has stated that there were four months available to the assessee to make a revised return and as the revised return was not made in that period of four months that was available prior to 31/03/2009, the delay could not be condoned and the application had to be rejected on that ground."
}
},
{
"from_name": "label",
"id": "ae3226cdc6fd41f8a5eedd9c45d8fdb6",
"to_name": "text",
"type": "labels",
"value": {
"end": 9990,
"labels": [
"ANALYSIS"
],
"start": 9842,
"text": "\nThe first respondent has also stated that there was a supplementary refund claim made and for that reason also, the application had to be rejected."
}
},
{
"from_name": "label",
"id": "1d29dff155ee4c48aef0929b39cf66f7",
"to_name": "text",
"type": "labels",
"value": {
"end": 10227,
"labels": [
"ANALYSIS"
],
"start": 9990,
"text": "\n 9. Before giving a finding as to whether the first respondent has rightly considered the application filed by the petitioner, it is necessary to go into the relevant decisions on clause (b) of sub-section (2) of Section 119 of the Act."
}
},
{
"from_name": "label",
"id": "437b7ad1bb5d46f8a15c3f0e314228df",
"to_name": "text",
"type": "labels",
"value": {
"end": 10297,
"labels": [
"ANALYSIS"
],
"start": 10228,
"text": "The said sub-section uses the expression \"avoiding genuine hardship\"."
}
},
{
"from_name": "label",
"id": "077c2ef7a12a40fdab774c2ba2f3cd0d",
"to_name": "text",
"type": "labels",
"value": {
"end": 10343,
"labels": [
"ANALYSIS"
],
"start": 10298,
"text": "This expression is relatable to the assessee."
}
},
{
"from_name": "label",
"id": "958f1e6f8346471e8cd72f62121364a9",
"to_name": "text",
"type": "labels",
"value": {
"end": 10571,
"labels": [
"PRE_RELIED"
],
"start": 10344,
"text": "The expression \"genuine hardship\", has been considered by the Hon'ble Supreme Court in the case of B.M.MALANI V.\nCIT [(2008) 306 ITR 196 (SC)], to mean not fake or counterfeit, real, not pretending (not bogus or merely a ruse)."
}
},
{
"from_name": "label",
"id": "ee9737bf6051493c97b710a71a8a0182",
"to_name": "text",
"type": "labels",
"value": {
"end": 10714,
"labels": [
"ANALYSIS"
],
"start": 10572,
"text": "The ingredients of real hardship must be determined keeping in mind the dictionary meaning thereof and the legal conspectus attending thereto."
}
},
{
"from_name": "label",
"id": "1fefb88d9fb54116a0403643a6b07215",
"to_name": "text",
"type": "labels",
"value": {
"end": 10857,
"labels": [
"ANALYSIS"
],
"start": 10715,
"text": "For the said purpose, another well known principle namely, a person cannot take advantage of his own wrong, may also have to be borne in mind."
}
},
{
"from_name": "label",
"id": "7b2da07f831446108f41aacad183de78",
"to_name": "text",
"type": "labels",
"value": {
"end": 11378,
"labels": [
"PRE_RELIED"
],
"start": 10859,
"text": "10. The aforesaid observations of the Hon'ble Supreme Court have been considered by the Gujarat High Court in the case of Gujarat Electric Co. Ltd. v. CIT [(2002) 255 ITR 396 (Guj)], wherein, it was held that when the revised return was filed belatedly on account of the ill-health of the officer who was looking after matters pertaining to taxation, the Court held that it was a reason required to be considered for the purpose of condoning the delay under clause (b) of sub-section (2) of Section 119 of the Act.\n 11."
}
},
{
"from_name": "label",
"id": "695a642aaf0a4384a2d536757e14b8a9",
"to_name": "text",
"type": "labels",
"value": {
"end": 11809,
"labels": [
"PRE_RELIED"
],
"start": 11379,
"text": "In Sitaldas K.Motwani v. Director- General of Income-tax [(2010) 323 ITR 223], the Bombay High Court has explained the phrase \"genuine hardship\" in the following manner:- \"Having heard both the parties, we must observe that while considering the genuine hardship, respondent No.1 was not expected to consider a solitary ground as to whether the petitioner was prevented by any substantial cause from filing return within due time."
}
},
{
"from_name": "label",
"id": "b284631bbae548b2ac12991fbdfffe35",
"to_name": "text",
"type": "labels",
"value": {
"end": 11883,
"labels": [
"PRE_RELIED"
],
"start": 11810,
"text": "Other factors detailed hereinbelow ought to have been taken into account."
}
},
{
"from_name": "label",
"id": "583b95a8b1d64a1893a43af3eb2f2b65",
"to_name": "text",
"type": "labels",
"value": {
"end": 12413,
"labels": [
"PRE_RELIED"
],
"start": 11883,
"text": "\n X X X X \"The Madras High Court in the case of R.Seshammal v. ITO [1999]237 ITR 185, was pleased to observe as under (page 187): \"This is hardly the manner in which the State is expected to deal with the citizens, who in their anxiety to comply with all the requirements of the Act pay monies as advance tax to the State, even though the monies were not actually required to be paid by them and there-after seek refund of the monies so paid by mistake after the proceedings under the Act are dropped by the authorities concerned."
}
},
{
"from_name": "label",
"id": "b8bcae990b264c08b818c3e96cdb8ad6",
"to_name": "text",
"type": "labels",
"value": {
"end": 12539,
"labels": [
"PRE_RELIED"
],
"start": 12414,
"text": "The State is not entitled to plead the hyper technical plea of limitation in such a situation to avoid return of the amounts."
}
},
{
"from_name": "label",
"id": "a1afdd06ed0b4168a27c2c771712acf3",
"to_name": "text",
"type": "labels",
"value": {
"end": 12632,
"labels": [
"ANALYSIS"
],
"start": 12540,
"text": "Section 119 of the Act vests ample power in the Board to render justice in such a situation."
}
},
{
"from_name": "label",
"id": "af2a0a5987bc45fbac3ef751f2a57d96",
"to_name": "text",
"type": "labels",
"value": {
"end": 12717,
"labels": [
"ANALYSIS"
],
"start": 12633,
"text": "The Board has acted arbitrarily in rejecting the petitioner's request for refund.\"\n "
}
},
{
"from_name": "label",
"id": "38cff14cd858418ca0c0be816f617907",
"to_name": "text",
"type": "labels",
"value": {
"end": 12917,
"labels": [
"ANALYSIS"
],
"start": 12717,
"text": "The phrase \"genuine hardship\"\nused in section 119(2)(b) should have been construed liberally even when the petitioner has complied with all the conditions mentioned in Circular dated October 12, 1993."
}
},
{
"from_name": "label",
"id": "0f455385dffd48328595462d144bde29",
"to_name": "text",
"type": "labels",
"value": {
"end": 13083,
"labels": [
"ANALYSIS"
],
"start": 12918,
"text": "The Legislature has conferred the power to condone delay to enable the authorities to do substantive justice to the parties by disposing of the matter on the merits."
}
},
{
"from_name": "label",
"id": "2a6b6539808742fe8511bf03f5488d24",
"to_name": "text",
"type": "labels",
"value": {
"end": 13408,
"labels": [
"ANALYSIS"
],
"start": 13084,
"text": "The expression \"genuine\" has received a liberal meaning in view of the law laid down by the apex court referred to hereinabove and while considering this aspect, the authorities are expected to bear in mind that ordinarily the applicant, applying for condonation of delay does not stand to benefit by lodging its claim late."
}
},
{
"from_name": "label",
"id": "a524cfab7d944856a97065c76e07d9e8",
"to_name": "text",
"type": "labels",
"value": {
"end": 13545,
"labels": [
"ANALYSIS"
],
"start": 13408,
"text": "\nRefusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated."
}
},
{
"from_name": "label",
"id": "437c89c60d5046c7b8be3000b3a7a271",
"to_name": "text",
"type": "labels",
"value": {
"end": 13687,
"labels": [
"ANALYSIS"
],
"start": 13546,
"text": "As against this, when delay is condoned the highest that can happen is that a cause would be decided on the merits after hearing the parties."
}
},
{
"from_name": "label",
"id": "acc4f2616f224f6e9403f5525bbf2d38",
"to_name": "text",
"type": "labels",
"value": {
"end": 13944,
"labels": [
"ANALYSIS"
],
"start": 13688,
"text": "When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred for the other side cannot claim to have a vested right in injustice being done because of a non-deliberate delay."
}
},
{
"from_name": "label",
"id": "bf476b77356847ae810b26d76e0f6ac9",
"to_name": "text",
"type": "labels",
"value": {
"end": 14074,
"labels": [
"ANALYSIS"
],
"start": 13945,
"text": "There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides."
}
},
{
"from_name": "label",
"id": "c32c8d88de254b89a959dc93b037bb72",
"to_name": "text",
"type": "labels",
"value": {
"end": 14134,
"labels": [
"ANALYSIS"
],
"start": 14075,
"text": "A litigant does not stand to benefit by resorting to delay."
}
},
{
"from_name": "label",
"id": "2a1a8dbcbeb24a84ae461853c6d76c3e",
"to_name": "text",
"type": "labels",
"value": {
"end": 14166,
"labels": [
"ANALYSIS"
],
"start": 14135,
"text": "In fact he runs a serious risk."
}
},
{
"from_name": "label",
"id": "194b5d3af973419d8541ac477334cc23",
"to_name": "text",
"type": "labels",
"value": {
"end": 14264,
"labels": [
"ANALYSIS"
],
"start": 14167,
"text": "The approach of the authorities should be justice oriented so as to advance the cause of justice."
}
},
{
"from_name": "label",
"id": "b5ffca74461f4d059204a7fca6449b17",
"to_name": "text",
"type": "labels",
"value": {
"end": 14350,
"labels": [
"ANALYSIS"
],
"start": 14265,
"text": "If refund is due to the applicant, mere delay should not defeat the claim for refund."
}
},
{
"from_name": "label",
"id": "177cb499e9b64110b31e41a838ba5938",
"to_name": "text",
"type": "labels",
"value": {
"end": 14658,
"labels": [
"ANALYSIS"
],
"start": 14350,
"text": "\n Whether the refund claim is correct and genuine, the authority must satisfy itself that the applicant has a prima facie correct and genuine claim, does not mean that the authority should examine the merits of the refund claim closely and come to a conclusion that the applicant's claim is bound to succeed."
}
},
{
"from_name": "label",
"id": "ff42cec22cd6460287365b1eee8c6fa1",
"to_name": "text",
"type": "labels",
"value": {
"end": 14714,
"labels": [
"ANALYSIS"
],
"start": 14659,
"text": "This would amount to prejudging the case on the merits."
}
},
{
"from_name": "label",
"id": "ec01a6ed8a02496fab9abcb4675cd618",
"to_name": "text",
"type": "labels",
"value": {
"end": 14935,
"labels": [
"ANALYSIS"
],
"start": 14715,
"text": "All that the authority has to see is that on the face of it the person applying for refund after condonation of delay has a case which needs consideration and which is not bound to fail by virtue of some apparent defect."
}
},
{
"from_name": "label",
"id": "22572fba87ea4c03bb7fcb505721e60a",
"to_name": "text",
"type": "labels",
"value": {
"end": 15017,
"labels": [
"ANALYSIS"
],
"start": 14936,
"text": "At this stage, the authority is not expected to go deep into the niceties of law."
}
},
{
"from_name": "label",
"id": "39663dec1ec64de5809179beb993f20e",
"to_name": "text",
"type": "labels",
"value": {
"end": 15287,
"labels": [
"ANALYSIS"
],
"start": 15018,
"text": "While determining whether a refund claim is correct and genuine, the relevant consideration is whether on the evidence led, it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence.\""
}
},
{
"from_name": "label",
"id": "5563226c730b47a0b7bb3a03f8bf12b1",
"to_name": "text",
"type": "labels",
"value": {
"end": 15832,
"labels": [
"PRE_RELIED"
],
"start": 15289,
"text": "12. In Pala Marketing Co-operative Society Ltd., v. Union of India and others [(2009) 311 ITR (Ker)], the Kerala High Court while considering the expression \"genuine hardship\"\n has observed as under:- \"Even though courts while considering application for condonation of delay under section 5 of the Limitation Act may be justified in considering the merits of the case and consequences to the party for non- consideration of the case on the merits, I do not think section 119(2)(b) is just an incorporation of section 5 of the Limitation Act.\n"
}
},
{
"from_name": "label",
"id": "e16e3cb2b06e41a1be331823bb7086c6",
"to_name": "text",
"type": "labels",
"value": {
"end": 15997,
"labels": [
"PRE_RELIED"
],
"start": 15832,
"text": "What is stated in section 119(2)(b) is that if the Board considers desirable or expedient for avoiding genuine hardship to the assessee, it should condone the delay."
}
},
{
"from_name": "label",
"id": "01002a51a2844173acd66f5f540a1c65",
"to_name": "text",
"type": "labels",
"value": {
"end": 16095,
"labels": [
"PRE_RELIED"
],
"start": 15998,
"text": "In other words, what the Board should consider is hardship to the party if delay is not condoned."
}
},
{
"from_name": "label",
"id": "eb452dc6a5004549ae9bd33db0630198",
"to_name": "text",
"type": "labels",
"value": {
"end": 16282,
"labels": [
"PRE_RELIED"
],
"start": 16096,
"text": "The Board should condone the delay if failure to condone the delay causes genuine hardship to the assessee, no matter whether the delay in filing return is meticulously explained or not."
}
},
{
"from_name": "label",
"id": "fa5dadc4163a45d78358d9b24f746744",
"to_name": "text",
"type": "labels",
"value": {
"end": 16453,
"labels": [
"ANALYSIS"
],
"start": 16282,
"text": "\nStrangely the Board has stated in its order that it is not possible to investigate (scrutinise) the return of income because the statutory time limit has already elapsed."
}
},
{
"from_name": "label",
"id": "23a2f15b0022496faec29042562d566e",
"to_name": "text",
"type": "labels",
"value": {
"end": 16761,
"labels": [
"ANALYSIS"
],
"start": 16454,
"text": "I do not know on what basis this statement is made because even in a case where the claim of refund is made, the Assessing Officer has to examine the liability for income-tax of the petitioner and refund is made only if tax is not payable or the amount paid is in excess of the tax, interest, etc., payable."
}
},
{
"from_name": "label",
"id": "2f561356d8d0479b890da2895ca91cb3",
"to_name": "text",
"type": "labels",
"value": {
"end": 16959,
"labels": [
"ANALYSIS"
],
"start": 16762,
"text": "In other words, once the Board allows the application under section 119(2)(b) of the Act, the matter goes to the Assessing Officer for considering the assessee's claim for refund under section 237."
}
},
{
"from_name": "label",
"id": "aac1f5dc82cf417681ee97b324cd723d",
"to_name": "text",
"type": "labels",
"value": {
"end": 17214,
"labels": [
"ANALYSIS"
],
"start": 16960,
"text": "Section 237 makes it clear that the Assessing Officer while considering application for refund should consider the amount of tax chargeable on the claimant under the Act and refund arises only if the payment is in excess of the tax payable under the Act."
}
},
{
"from_name": "label",
"id": "a3a406130512488a9c30182e668f9626",
"to_name": "text",
"type": "labels",
"value": {
"end": 17340,
"labels": [
"ANALYSIS"
],
"start": 17215,
"text": "In other words, the Assessing Officer has powers of assessment under section 237 while considering an application for refund."
}
},
{
"from_name": "label",
"id": "7f8b4af324c3438e84887633649874ad",
"to_name": "text",
"type": "labels",
"value": {
"end": 17430,
"labels": [
"ANALYSIS"
],
"start": 17341,
"text": "Refund is payable only if it is in excess of tax and other amounts payable under the Act."
}
},
{
"from_name": "label",
"id": "e9db6a9557df4d2bb7d2d9689a417484",
"to_name": "text",
"type": "labels",
"value": {
"end": 17562,
"labels": [
"ANALYSIS"
],
"start": 17431,
"text": "In other words, an assessee who escapes assessment invites assessment if an application for refund is made under section 237.\"\n 13."
}
},
{
"from_name": "label",
"id": "70f6588839004bc080cb1c979a2b0941",
"to_name": "text",
"type": "labels",
"value": {
"end": 17838,
"labels": [
"ANALYSIS"
],
"start": 17563,
"text": "In light of the aforesaid decisions and the observations made there under and keeping in mind Instruction No.13/2006, which have been issued to the CBDT for guidance of the respondent authority, the correctness and legality of the impugned order would have to be considered."
}
},
{
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"end": 18091,
"labels": [
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],
"start": 17839,
"text": "The reason as to why the petitioner filed the revised return is on account of the premature termination of the leave and licence agreement dated 01/03/2007, after a period of 18 months and that the agreement did not last for a full period of 33 months."
}
},
{
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"end": 18276,
"labels": [
"ANALYSIS"
],
"start": 18092,
"text": "On account of premature termination of the agreement, the petitioner had to return the advance rentals as well as the security deposit to M/s.DHL Express (India) Pvt. Ltd., the lessee."
}
},
{
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"id": "78aee1e0f525426bb4af856e363079c3",
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"value": {
"end": 18361,
"labels": [
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],
"start": 18277,
"text": "Those amounts had been received by the petitioner during the financial year 2006-07."
}
},
{
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"id": "b60d2073772d41489f2d06860989ed75",
"to_name": "text",
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"end": 18596,
"labels": [
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],
"start": 18362,
"text": "While filing the return for that year, those amounts were reflected in the return and infact, the TDS deducted in respect of those amounts paid to the petitioner- assessee was also reflected and the said amounts had also suffered tax."
}
},
{
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"id": "4daec60890244141a821e95df2aa3e3f",
"to_name": "text",
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"value": {
"end": 18854,
"labels": [
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],
"start": 18597,
"text": "But on account of the premature termination of the agreement as the petitioner had to refund the amounts received by way of advance rentals and security deposit to M/s.DHL Express (India) Pvt. Ltd., the petitioner was constrained to file the revised return."
}
},
{
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"id": "96342d53ba634c428cb214188a3dd9e2",
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"value": {
"end": 19064,
"labels": [
"ANALYSIS"
],
"start": 18855,
"text": "No doubt, the revised return had to be filed by 31/03/2009 but in this context, the bona fide reason of the petitioner in not filing the revised return in time had to be considered by the respondent authority."
}
},
{
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"id": "1b4c8ca8d61b4bb5988ef8ce168149de",
"to_name": "text",
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"value": {
"end": 19511,
"labels": [
"ANALYSIS"
],
"start": 19065,
"text": "Petitioner had explained the delay by stating that the negotiations with M/s.DHL Express (India) Pvt. Ltd., took some time and that it was only in May 2009, petitioner agreed for settlement between him and M/s.DHL Express (India) Pvt. Ltd., and during this period i.e., November 2008 his mother died and his father died in June 2009 after illness and therefore, for those reasons, he was unable to file the revised return on or before 31/03/2009."
}
},
{
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"id": "1103fa5fbb6a457a8a90923c0d14cd0e",
"to_name": "text",
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"value": {
"end": 19902,
"labels": [
"RATIO"
],
"start": 19512,
"text": "Having regard to the explanation given by the petitioner for the delay in filing the return by 3 months, I am of the view that the first respondent ought to have considered the aforesaid explanation in light of the facts of the case and also the fact that the petitioner had not delayed the filing of the revised return due to negligence, carelessness or due to any other frivolous reason."
}
},
{
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"id": "dc0c1fa80af0488685be87b09cbfd8b4",
"to_name": "text",
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"value": {
"end": 20068,
"labels": [
"RATIO"
],
"start": 19903,
"text": "In that view of the matter, first respondent ought to have condoned the delay in filing the returns rather than taking a very strict and pedantic view of the matter."
}
},
{
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"id": "8303f04230774544962bf1d3d23ddf37",
"to_name": "text",
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"end": 20208,
"labels": [
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],
"start": 20069,
"text": "Accepting the aforesaid reasons the delay in filing the return is condoned or otherwise genuine hardship would be caused to the petitioner."
}
},
{
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"id": "0233dc4c679a47e2b6932384d976f133",
"to_name": "text",
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"end": 20278,
"labels": [
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],
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"text": "\n 14. Hence, for the aforesaid reasons, the impugned order is quashed."
}
},
{
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"id": "c3baa0364e7342698558d08b6c9452e4",
"to_name": "text",
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"end": 20366,
"labels": [
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],
"start": 20279,
"text": "Second respondent is now directed to process the revised return in accordance with law."
}
},
{
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"id": "6002b17392e64bbfb17ca8accfd8998c",
"to_name": "text",
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"end": 20659,
"labels": [
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],
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"text": "15. At this stage, learned standing counsel for the respondents would submit that on processing of the revised return, incase petitioner is liable to any fresh demands to be made by the Assessing Officer at that stage, petitioner cannot take up the plea of limitation, on raising the demand."
}
},
{
"from_name": "label",
"id": "64b2109802f047a9855d2df88715ac6e",
"to_name": "text",
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"value": {
"end": 20995,
"labels": [
"ANALYSIS"
],
"start": 20660,
"text": "He contends that processing of the revised return would now be taken up, as on account of there being litigation between the parties-as the earlier order passed by the first respondent authority had also been assailed by the petitioner and this Court had set aside that order and on remand-the impugned order has been passed recently."
}
},
{
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"id": "e95b04463a3f4928a1a4ff44ee4e0f5b",
"to_name": "text",
"type": "labels",
"value": {
"end": 21205,
"labels": [
"ANALYSIS"
],
"start": 20995,
"text": "\n 16. Learned counsel for the petitioner states that no such plea of limitation would be raised by the petitioner, in case any fresh demand is raised on processing of the revised return filed by the petitioner."
}
},
{
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"id": "77f01e1368dc49bcb54b8afaf859805e",
"to_name": "text",
"type": "labels",
"value": {
"end": 21279,
"labels": [
"NONE"
],
"start": 21206,
"text": "Submission of the learned counsel for the petitioner is placed on record."
}
},
{
"from_name": "label",
"id": "91da2c73bde144ac94efac5095b7aa05",
"to_name": "text",
"type": "labels",
"value": {
"end": 21324,
"labels": [
"RPC"
],
"start": 21279,
"text": "\n 17. In the result, Annexure \"P\" is quashed."
}
},
{
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"id": "9bde4bc19f394ec782178e70b8773c67",
"to_name": "text",
"type": "labels",
"value": {
"end": 21421,
"labels": [
"RPC"
],
"start": 21324,
"text": "\nDelay in filing the revised return dated 16/07/2009 is condoned for the assessment year 2007-08."
}
},
{
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"id": "ed81e66760bb43fcbe25d66373e4c8fc",
"to_name": "text",
"type": "labels",
"value": {
"end": 21527,
"labels": [
"RPC"
],
"start": 21421,
"text": "\nRespondent No.2 is directed to process the revised return filed by the petitioner in accordance with law."
}
},
{
"from_name": "label",
"id": "1bea8fa0c92f4b3c88c0a1c44876d033",
"to_name": "text",
"type": "labels",
"value": {
"end": 21581,
"labels": [
"RPC"
],
"start": 21527,
"text": "\n 18. Writ petition is allowed in the aforesaid terms."
}
},
{
"from_name": "label",
"id": "119122c7621f4fb591aa70cf660cc9dd",
"to_name": "text",
"type": "labels",
"value": {
"end": 21600,
"labels": [
"NONE"
],
"start": 21581,
"text": "\n Sd/- JUDGE.\n *mvs"
}
}
]
}
] | 1,722 | {
"text": "IN THE HIGH COURT OF KARNATAKA AT BANGALORE\n DATED THIS THE 23RD DAY OF JULY, 2014\n\n BEFORE\n\nTHE HON'BLE MRS.JUSTICE B.V.NAGARATHNA\n\nWRIT PETITION NO.40548/2013 (T-IT)\n\nBETWEEN:\n\nSRI DEEPAK VARMA\n\nS/O SRI SATYAPAL VARMA,\n\nAGED 58 YEARS,\n\nRESIDING AT NO.10,\n\nH.M.ASTORIAN, BENSON CROSS ROAD,\n\nNANDIDURGA ROAD\n\nBANGALORE. ... PETITIONER\n\n(BY SMT.VANI H., ADV.)\n\nAND:\n\n1. THE COMMISSIONER OF INCOME TAX\n BANGALORE-IV\n C.R.BUILDING, QUEENS ROAD\n BANGALORE-560 001.\n\n2. INCOME TAX OFFICER,\n\n CIRCLE-8(2), SAMPIGE ROAD\n\n MALLESWARAM\n\n BANGALORE-560 002. ... RESPONDENTS\n\n(BY SRI. K.V.ARAVIND, SENIOR STANDING COUNSEL\nFOR R1 & R2)\n\n *****\n\n THIS W.P. IS FILED UNDER ARTICLES 226 AND\n227 OF THE CONSTITUTION OF INDIA PRAYING TO SET\nASIDE THE ORDER DATED 31.7.2013 PASSED BY THE\nFIRST RESPONDENT VIDE ANNEXURE-P.\n\n THIS PETITION COMING ON FOR PRELIMINARY\nHEARING IN `B' GROUP THIS DAY, COURT MADE THE\nFOLLOWING:-\n\n O R D E R\n This writ petition has been filed by the petitioner being aggrieved by the order of the first respondent Commissioner of Income Tax- IV, Bangalore, on 31/07/2013 (Annexure \"P\"), passed under Section 119(2)(6) of the Income Tax Act, 1961 (hereinafter, referred to as the \"Act\", for the sake of brevity).\n 2. The facts germane to the disposal of this writ petition are that the petitioner, who is an individual assessee and owner of the flat at Bombay, had let out the flat to M/s.DHL Express (India) Pvt. Ltd., under a leave and licence agreement dated 01/03/2007. The petitioner had received a sum of Rs.1,50,000/- per month, as the monthly rentals, subject to deduction of tax at source. Petitioner had also received Rs.20,000/- per month, towards furniture, fixtures etc., in the said flat, in addition to advance rentals for a period of 14 months, which were to be adjusted against the last 14 months of the lease period. The advance rentals were received on 28/02/2007 during the financial year 2006-07 and the assessment year being 2007-08. The lessee had deducted tax at source with regard to the advance rentals while making the payment to the petitioner. On the aforesaid premise, the petitioner filed his return of income for the assessment year 2007-08 on 27/07/2007 and the said return of income was processed and the tax liability was determined at Rs.2,10,110/- and since there was a tax deduction at source to an extent of Rs.4,00,854/- on account of the advance rentals received by the petitioner, he claimed a refund of Rs.1,90,744/- in the original return of income filed by him.\n 3. The leave and license agreement which commenced from 01/03/2007 was to expire on 30/11/2010 after a period of 33 months. However, that was prematurely terminated after a period of 18 months. There were negotiations between the parties and in September 2008 petitioner returned a sum of Rs.23,80,000/- to the lessee M/s.DHL Express (India) Pvt. Ltd. Consequently, there was no rental income received after the period of 18 months in respect of which, the return of income for the assessment year 2007-08 was filed.\nAccording to the petitioner, the actual rentals received was only Rs.3,60,808/- for that year.\nOn account of the aforesaid circumstances, the petitioner filed revised return for the assessment year 2007-08 on 16/07/2009, seeking refund of Rs.4,00,854/-. Admittedly, the other petitioner had a right to file a revised return, which had to be done so on or before 31/03/2009 and hence, the revised return filed by the petitioner was delayed by 3 months. Petitioner also filed an application under Section 119(2)(b) of the Act, seeking condonation of delay in filing revised return and for refund of the excess tax paid on scrutiny of the revised return. By order dated 31/10/2012, the said application was rejected.\nBeing aggrieved by that order, petitioner had preferred W.P.No.50054/2012 before this Court.\nThe said writ petition was allowed by order dated 12/02/2013, the impugned order dated 31/10/2012 was quashed and the matter was remanded to the first respondent for reconsideration in accordance with law.\nPursuant to the order of remand, the impugned order dated 31/07/2013 has been passed and that order is assailed in this writ petition.\n 4. I have heard learned counsel for the petitioner and the learned standing counsel for the respondents and perused the material on record.\n 5. Learned counsel for the petitioner during the course of her submission has drawn my attention to instruction No.13/2006 dated 22/12/2006, which has been issued by the Central Board of Direct Taxes (CBDT) pursuant to clause (b) of sub-section (2) of Section 119 of the Act. She contended that the first respondent ought to have condoned the delay in filing the revised return and permitted processing of the revised return filed on 16/07/2009 by the petitioner. That there was a short delay of 3 months in filing the revised return on account of genuine and bona fide reasons. She gave reasons as to why the revised return had to be filed, seeking refund in view of the agreement dated 01/03/2007 being terminated between the petitioner and M/s.DHL Express (India) Pvt. Ltd., prematurely which had resulted in return of the advance rentals and other deposits made by that entity to the petitioner. Consequently, the tax paid on the advance rentals had to be refunded to the petitioner and that was the reason as to why the revised return was filed. She also submitted that on account of two bereavements in the family of the petitioner namely his parents died in November 2009 and June 2009, therefore petitioner was not in a position to file the revised return in accordance with the stipulated time and therefore, there were genuine reasons as to why returns were filed belatedly. It is further submitted that though the impugned order takes note of the aforesaid facts but the first respondent has not appreciated those facts in their proper perspective while applying clause (b) of sub-section (2) of Section 119 of the Act.\nShe also submitted that the first respondent ought to have condoned the delay in filing the return and permitted processing of the revised return as petitioner is entitled to refund and non- processing of the revised return and non payment of refund has resulted in genuine hardship to the petitioner. In support of her submissions, she has placed reliance on two decisions. The first being of the Bombay High Court in case of Sitaldas K.Motwani v.\nDirector-General of Income-tax [(2010) 323 ITR 223) and Pala Marketing Co- operative Society Ltd. v. Union of India and Others [(2009) 311 ITR 177 (Ker.)], to contend that this was a fit case where the first respondent ought to have permitted processing of the revised return filed by the petitioner.\n 6. Per contra, learned standing counsel appearing for the respondent Department, stated that the reason as to why the revised return has been filed by the petitioner is not in consonance with the Departmental Instruction No.13/2006 by drawing my attention to sub- section (a) of clause (5) of that settlement. It was contended that merely because certain subsequent events had transpired after filing of the original return, would not entitle the petitioner to file revised return and seek refund.\nHe also contended that reasons have been rightly appreciated in the impugned order for not condoning the delay, as the petitioner had sufficient time to file the revised return on or before 31/03/2009. He therefore, submitted that there is no merit in this writ petition.\n 7. Having heard learned counsel for the parties and on perusal of the material on record, it is noted that admittedly, the revised return was filed on 16/07/2009 i.e., after a delay of 3 months as the last date for filing of revised return was 31/03/2009. While considering an application under clause (b) of sub-section (2) of Section 119 of the Act, the authority while going into the reason as to why the revised return has been filed has also to consider the application for refund in such a manner as to avoid genuine hardship to the assessee. For that, what the authority has to consider is as to whether the revised return was filed with a bona fide intention and for genuine and bonafide reasons.\n Obviously, while seeking condonation of delay in filing the revised return, the assessee would have to give his explanation as to why the revised return could not be filed within the last date stipulated in law. While considering that explanation, the authority would have to take into consideration Instruction No.13/2006. If the authority is of the opinion that there was a genuine reason as to why the revised return could not be filed in time, that would have to be taken into note of and the delay would have to be condoned and while condoning that delay, the authority would also have to consider that if the delay is not condoned, then it would result in genuine hardship to the assessee. It is in this context that Instruction No.13/2006 has been issued by the CBDT for the guidance of the authority while considering an application under Section 119 (2)(b) of the Act.\n 8. In the instant case, the first respondent authority has noted the reasons as to why there was a delay in filing the revised return and also has taken note of the fact that the parents of the assessee were ill and they both died within a period of one year. However, the first respondent authority has stated that there were four months available to the assessee to make a revised return and as the revised return was not made in that period of four months that was available prior to 31/03/2009, the delay could not be condoned and the application had to be rejected on that ground.\nThe first respondent has also stated that there was a supplementary refund claim made and for that reason also, the application had to be rejected.\n 9. Before giving a finding as to whether the first respondent has rightly considered the application filed by the petitioner, it is necessary to go into the relevant decisions on clause (b) of sub-section (2) of Section 119 of the Act. The said sub-section uses the expression \"avoiding genuine hardship\". This expression is relatable to the assessee. The expression \"genuine hardship\", has been considered by the Hon'ble Supreme Court in the case of B.M.MALANI V.\nCIT [(2008) 306 ITR 196 (SC)], to mean not fake or counterfeit, real, not pretending (not bogus or merely a ruse). The ingredients of real hardship must be determined keeping in mind the dictionary meaning thereof and the legal conspectus attending thereto. For the said purpose, another well known principle namely, a person cannot take advantage of his own wrong, may also have to be borne in mind.\n 10. The aforesaid observations of the Hon'ble Supreme Court have been considered by the Gujarat High Court in the case of Gujarat Electric Co. Ltd. v. CIT [(2002) 255 ITR 396 (Guj)], wherein, it was held that when the revised return was filed belatedly on account of the ill-health of the officer who was looking after matters pertaining to taxation, the Court held that it was a reason required to be considered for the purpose of condoning the delay under clause (b) of sub-section (2) of Section 119 of the Act.\n 11. In Sitaldas K.Motwani v. Director- General of Income-tax [(2010) 323 ITR 223], the Bombay High Court has explained the phrase \"genuine hardship\" in the following manner:- \"Having heard both the parties, we must observe that while considering the genuine hardship, respondent No.1 was not expected to consider a solitary ground as to whether the petitioner was prevented by any substantial cause from filing return within due time. Other factors detailed hereinbelow ought to have been taken into account.\n X X X X \"The Madras High Court in the case of R.Seshammal v. ITO [1999]237 ITR 185, was pleased to observe as under (page 187): \"This is hardly the manner in which the State is expected to deal with the citizens, who in their anxiety to comply with all the requirements of the Act pay monies as advance tax to the State, even though the monies were not actually required to be paid by them and there-after seek refund of the monies so paid by mistake after the proceedings under the Act are dropped by the authorities concerned. The State is not entitled to plead the hyper technical plea of limitation in such a situation to avoid return of the amounts. Section 119 of the Act vests ample power in the Board to render justice in such a situation. The Board has acted arbitrarily in rejecting the petitioner's request for refund.\"\n The phrase \"genuine hardship\"\nused in section 119(2)(b) should have been construed liberally even when the petitioner has complied with all the conditions mentioned in Circular dated October 12, 1993. The Legislature has conferred the power to condone delay to enable the authorities to do substantive justice to the parties by disposing of the matter on the merits. The expression \"genuine\" has received a liberal meaning in view of the law laid down by the apex court referred to hereinabove and while considering this aspect, the authorities are expected to bear in mind that ordinarily the applicant, applying for condonation of delay does not stand to benefit by lodging its claim late.\nRefusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned the highest that can happen is that a cause would be decided on the merits after hearing the parties. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred for the other side cannot claim to have a vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. The approach of the authorities should be justice oriented so as to advance the cause of justice. If refund is due to the applicant, mere delay should not defeat the claim for refund.\n Whether the refund claim is correct and genuine, the authority must satisfy itself that the applicant has a prima facie correct and genuine claim, does not mean that the authority should examine the merits of the refund claim closely and come to a conclusion that the applicant's claim is bound to succeed. This would amount to prejudging the case on the merits. All that the authority has to see is that on the face of it the person applying for refund after condonation of delay has a case which needs consideration and which is not bound to fail by virtue of some apparent defect. At this stage, the authority is not expected to go deep into the niceties of law. While determining whether a refund claim is correct and genuine, the relevant consideration is whether on the evidence led, it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence.\"\n 12. In Pala Marketing Co-operative Society Ltd., v. Union of India and others [(2009) 311 ITR (Ker)], the Kerala High Court while considering the expression \"genuine hardship\"\n has observed as under:- \"Even though courts while considering application for condonation of delay under section 5 of the Limitation Act may be justified in considering the merits of the case and consequences to the party for non- consideration of the case on the merits, I do not think section 119(2)(b) is just an incorporation of section 5 of the Limitation Act.\nWhat is stated in section 119(2)(b) is that if the Board considers desirable or expedient for avoiding genuine hardship to the assessee, it should condone the delay. In other words, what the Board should consider is hardship to the party if delay is not condoned. The Board should condone the delay if failure to condone the delay causes genuine hardship to the assessee, no matter whether the delay in filing return is meticulously explained or not.\nStrangely the Board has stated in its order that it is not possible to investigate (scrutinise) the return of income because the statutory time limit has already elapsed. I do not know on what basis this statement is made because even in a case where the claim of refund is made, the Assessing Officer has to examine the liability for income-tax of the petitioner and refund is made only if tax is not payable or the amount paid is in excess of the tax, interest, etc., payable. In other words, once the Board allows the application under section 119(2)(b) of the Act, the matter goes to the Assessing Officer for considering the assessee's claim for refund under section 237. Section 237 makes it clear that the Assessing Officer while considering application for refund should consider the amount of tax chargeable on the claimant under the Act and refund arises only if the payment is in excess of the tax payable under the Act. In other words, the Assessing Officer has powers of assessment under section 237 while considering an application for refund. Refund is payable only if it is in excess of tax and other amounts payable under the Act. In other words, an assessee who escapes assessment invites assessment if an application for refund is made under section 237.\"\n 13. In light of the aforesaid decisions and the observations made there under and keeping in mind Instruction No.13/2006, which have been issued to the CBDT for guidance of the respondent authority, the correctness and legality of the impugned order would have to be considered. The reason as to why the petitioner filed the revised return is on account of the premature termination of the leave and licence agreement dated 01/03/2007, after a period of 18 months and that the agreement did not last for a full period of 33 months. On account of premature termination of the agreement, the petitioner had to return the advance rentals as well as the security deposit to M/s.DHL Express (India) Pvt. Ltd., the lessee. Those amounts had been received by the petitioner during the financial year 2006-07. While filing the return for that year, those amounts were reflected in the return and infact, the TDS deducted in respect of those amounts paid to the petitioner- assessee was also reflected and the said amounts had also suffered tax. But on account of the premature termination of the agreement as the petitioner had to refund the amounts received by way of advance rentals and security deposit to M/s.DHL Express (India) Pvt. Ltd., the petitioner was constrained to file the revised return. No doubt, the revised return had to be filed by 31/03/2009 but in this context, the bona fide reason of the petitioner in not filing the revised return in time had to be considered by the respondent authority. Petitioner had explained the delay by stating that the negotiations with M/s.DHL Express (India) Pvt. Ltd., took some time and that it was only in May 2009, petitioner agreed for settlement between him and M/s.DHL Express (India) Pvt. Ltd., and during this period i.e., November 2008 his mother died and his father died in June 2009 after illness and therefore, for those reasons, he was unable to file the revised return on or before 31/03/2009. Having regard to the explanation given by the petitioner for the delay in filing the return by 3 months, I am of the view that the first respondent ought to have considered the aforesaid explanation in light of the facts of the case and also the fact that the petitioner had not delayed the filing of the revised return due to negligence, carelessness or due to any other frivolous reason. In that view of the matter, first respondent ought to have condoned the delay in filing the returns rather than taking a very strict and pedantic view of the matter. Accepting the aforesaid reasons the delay in filing the return is condoned or otherwise genuine hardship would be caused to the petitioner.\n 14. Hence, for the aforesaid reasons, the impugned order is quashed. Second respondent is now directed to process the revised return in accordance with law.\n 15. At this stage, learned standing counsel for the respondents would submit that on processing of the revised return, incase petitioner is liable to any fresh demands to be made by the Assessing Officer at that stage, petitioner cannot take up the plea of limitation, on raising the demand. He contends that processing of the revised return would now be taken up, as on account of there being litigation between the parties-as the earlier order passed by the first respondent authority had also been assailed by the petitioner and this Court had set aside that order and on remand-the impugned order has been passed recently.\n 16. Learned counsel for the petitioner states that no such plea of limitation would be raised by the petitioner, in case any fresh demand is raised on processing of the revised return filed by the petitioner. Submission of the learned counsel for the petitioner is placed on record.\n 17. In the result, Annexure \"P\" is quashed.\nDelay in filing the revised return dated 16/07/2009 is condoned for the assessment year 2007-08.\nRespondent No.2 is directed to process the revised return filed by the petitioner in accordance with law.\n 18. Writ petition is allowed in the aforesaid terms.\n Sd/- JUDGE.\n *mvs "
} |
{
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} | [
{
"result": [
{
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"value": {
"end": 103,
"labels": [
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"start": 0,
"text": "PETITIONER:\nTHE COMMSSIONER OF INCOME TAX, MADRAS AND ANOTHER\n\n Vs.\n\nRESPONDENT:\nS.V. ANGIDI CHETTIAR"
}
},
{
"from_name": null,
"id": "e5d65d635b2c428fbb3988103f0a1400",
"to_name": null,
"type": null,
"value": {
"end": 122,
"labels": [
"PREAMBLE"
],
"start": 103,
"text": "\n\nDATE OF JUDGMENT:"
}
},
{
"from_name": null,
"id": "f9e77b86694249aab459b342245e4584",
"to_name": null,
"type": null,
"value": {
"end": 133,
"labels": [
"PREAMBLE"
],
"start": 122,
"text": "\n09/01/1962"
}
},
{
"from_name": null,
"id": "82d50b1a9bcf43d1b25a5d0f5747fc81",
"to_name": null,
"type": null,
"value": {
"end": 868,
"labels": [
"PREAMBLE"
],
"start": 135,
"text": "BENCH:\nSHAH, J.C.\nBENCH:\nSHAH, J.C.\nSINHA, BHUVNESHWAR P.(CJ)\nKAPUR, J.L.\nHIDAYATULLAH, M.\nMUDHOLKAR, J.R.\n\nCITATION:\n\n1962 AIR 970 1962 SCR Supl. (2) 640\n\nCITATOR INFO : (15)\n (7,8)\nD 1966 SC1295 (7)\n (8)\nE 1968 SC 46\n\nR 1969 SC1352\n\nR 1973 SC 22\n\nACT:\n Income Tax-Penalty on concealed income-Power\n\nto impose penalty on a registered firm after\ndissolution-Condition for the exercise of\njurisdiction by Income-tax Officer-Indian Income\ntax Act, 1922 (11 of 1922), ss. 28, 44.\n\nHEADNOTE:\n A registered firm concealed particulars of\n\nincome while submitting its returns for the years\n1947-48, 1949-50 and 1950-51."
}
},
{
"from_name": null,
"id": "5c3d4dbf0b9448fdb1550bb65d1b0670",
"to_name": null,
"type": null,
"value": {
"end": 958,
"labels": [
"PREAMBLE"
],
"start": 869,
"text": "The Income-tax\nOfficer imposed penalty under s.28 (1) of the\nIndian Income-tax Act, 1922."
}
},
{
"from_name": null,
"id": "68c79e34034e4eb8962ad5588af29718",
"to_name": null,
"type": null,
"value": {
"end": 1260,
"labels": [
"PREAMBLE"
],
"start": 959,
"text": "The High Court was\nmoved for a writ of certiorari, submitting that\nthe Income-tax Officer could not impose penalty\nunder the said section as he had information that\nthe registered firm was dissolved on April 13,\n1951, by agreement, and in any event on May 5,\n1953, by the death of one of the partners."
}
},
{
"from_name": null,
"id": "77f1c79594414e0486e35be65f9f6f0a",
"to_name": null,
"type": null,
"value": {
"end": 1331,
"labels": [
"PREAMBLE"
],
"start": 1261,
"text": "The\nHigh Court issued the writ and quashed the order\nimposing penalty."
}
},
{
"from_name": null,
"id": "247570c5b6134c1daad6216f242c9e6d",
"to_name": null,
"type": null,
"value": {
"end": 1344,
"labels": [
"PREAMBLE"
],
"start": 1331,
"text": "\n^\n\n "
}
},
{
"from_name": null,
"id": "59ef827937b04e419055a2d908d5065a",
"to_name": null,
"type": null,
"value": {
"end": 1493,
"labels": [
"PREAMBLE"
],
"start": 1344,
"text": "Held, that the principle laid down in C. A.\nAbrahams case [1961] 2 S.C.R. 765, is as much\napplicable to a registered firm as to an\nunregistered firm."
}
},
{
"from_name": null,
"id": "cd81574f8987422486b094fdfef7d770",
"to_name": null,
"type": null,
"value": {
"end": 1618,
"labels": [
"PREAMBLE"
],
"start": 1494,
"text": "There is nothing in s.44 of the\nAct or the context in which it occurs to indicate\nthat it does not apply to registered firm."
}
},
{
"from_name": null,
"id": "42b8be9d91234e0abb8b934886c3a1e3",
"to_name": null,
"type": null,
"value": {
"end": 1817,
"labels": [
"PREAMBLE"
],
"start": 1629,
"text": "Held, further, that the penalty provisions\nunder s. 28 would in the event of the default\ncontemplated by cls. (a) (b) or (c) be applicable\nin the course of assessment of a registered firm."
}
},
{
"from_name": null,
"id": "65a4a758840f4a0c99b15c0e69568194",
"to_name": null,
"type": null,
"value": {
"end": 2121,
"labels": [
"PREAMBLE"
],
"start": 1817,
"text": "\nIf the registered firm is exposed to liability of\npaying penalty because it has committed any of the\n\ndefaults contemplated by cls. (a), (b) or (c) by\nvirtue of s.44 the assessment proceedings are\nliable to be continued against the registered firm\neven after dissolution as if it has not been\ndissolved."
}
},
{
"from_name": null,
"id": "c81b5e4231e44cda9290eb1775376cbc",
"to_name": null,
"type": null,
"value": {
"end": 2271,
"labels": [
"PREAMBLE"
],
"start": 2121,
"text": "\n\n The power to impose penalty under s. 28\ndepends upon the satisfaction of the Income-tax\nOfficer in the course of proceedings under the\nAct."
}
},
{
"from_name": null,
"id": "5c702d2e56ca47ebb43d7eee3794b97e",
"to_name": null,
"type": null,
"value": {
"end": 2422,
"labels": [
"PREAMBLE"
],
"start": 2272,
"text": "It cannot be exercised if he is not satisfied\nabout the existence of conditions specified in cl.\n(a), (b) or (c) before the proceedings are\nconcluded."
}
},
{
"from_name": null,
"id": "9c2fba686c95447f88da5e7fe73f46a6",
"to_name": null,
"type": null,
"value": {
"end": 2576,
"labels": [
"PREAMBLE"
],
"start": 2423,
"text": "The proceedings for levy of penalty\nhas, however, not to be commenced by the Income-\ntax Officer, before completion of the assessment\nproceedings by him."
}
},
{
"from_name": null,
"id": "3f06f6884d6845daa77d96e0bd4b045e",
"to_name": null,
"type": null,
"value": {
"end": 2772,
"labels": [
"PREAMBLE"
],
"start": 2577,
"text": "Satisfaction before the con-clusion of the proceeding under the Act and not\nthe issue of notice of intimation of any step for\nimposing penalty is a condition for the exercise\nof the jurisdiction."
}
},
{
"from_name": null,
"id": "867e95f3aee9486a9275b2f891a93aa5",
"to_name": null,
"type": null,
"value": {
"end": 3060,
"labels": [
"PREAMBLE"
],
"start": 2772,
"text": "\n\n C. A. Abrham v. Income Officer, Kottayam,\n[1961] 2 S. C. R. 765 applied.\n\n Mareddev Krishna Reddy v. Income-tax Officer,\nTenali [1957] 31 I. T. R. 678 and Khushiram\nMurarilal v. Commissioner of Income-tax, Central,\nCalcutta, [1954] 25 I. T. R. 572, approved.\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "fb404efd712e4ef6b313c41d953778c3",
"to_name": null,
"type": null,
"value": {
"end": 3135,
"labels": [
"NONE"
],
"start": 3060,
"text": "\n CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 6 to 8 of 1961."
}
},
{
"from_name": null,
"id": "3658a29c253941d093dbd290048a3d6f",
"to_name": null,
"type": null,
"value": {
"end": 3265,
"labels": [
"NONE"
],
"start": 3135,
"text": "\n Appeals from the judgment and order dated May 3, 1957 of the Madras High Court in Writ Petition Nos. 943 to 945 of 1955."
}
},
{
"from_name": null,
"id": "a9550a8bf66a422e8850d31025bf73e9",
"to_name": null,
"type": null,
"value": {
"end": 3378,
"labels": [
"NONE"
],
"start": 3265,
"text": "\n K. N. Rajagopala Sastri and P. D. Menon, for the appellants.\n V. S. Venkataram and K. P. Bhat, for respondents."
}
},
{
"from_name": null,
"id": "86a60e06a3a84b3dbe3254a0c3f0e32f",
"to_name": null,
"type": null,
"value": {
"end": 3385,
"labels": [
"NONE"
],
"start": 3378,
"text": "\n 1962."
}
},
{
"from_name": null,
"id": "1e2cafc5b72f44a698c3fe877b45fa5d",
"to_name": null,
"type": null,
"value": {
"end": 3450,
"labels": [
"NONE"
],
"start": 3386,
"text": "January 18.-The Judgment of the Court was delivered by SHAH, J.-"
}
},
{
"from_name": null,
"id": "6507f139c3b54102a5ad33163ba4a3e7",
"to_name": null,
"type": null,
"value": {
"end": 3785,
"labels": [
"RLC"
],
"start": 3450,
"text": "These are three appeals with certificates of fitness granted by the High Court of Madras against orders passed in Petitions for the issue of writs of certiorari setting aside orders imposing penalty upon the firm of Messrs.\nS. V. Veerappan Chettiar & Co. passed by the Income-tax Officer under s. 28(1)(c) of the Indian Income-tax Act."
}
},
{
"from_name": null,
"id": "882f4b4598e44b29a1cd2f18501f4246",
"to_name": null,
"type": null,
"value": {
"end": 3930,
"labels": [
"FAC"
],
"start": 3787,
"text": "Four persons carried on business in cloth at Virudhunagar in the name and style of S. V.\nVeerappan Chettiar & Co. -hereinafter called the firm."
}
},
{
"from_name": null,
"id": "c9f50639910141bcb62b90b27de87685",
"to_name": null,
"type": null,
"value": {
"end": 4060,
"labels": [
"FAC"
],
"start": 3931,
"text": "The firm was registered under Art. 26A of the Indian Income-tax Act, 1922, for the assessment years 1947-48, 1949-50 and 1950-51."
}
},
{
"from_name": null,
"id": "55e8a03c16554f37a9597d1320eb9532",
"to_name": null,
"type": null,
"value": {
"end": 4378,
"labels": [
"FAC"
],
"start": 4061,
"text": "The firm concealed particulars of its income in submitting its returns, and the Income-tax Officer, Virudhunagar in the course of assessment proceedings directed, by order dated May 20, 1954, payment of penalty of Rs. 20,000/- for the year 1947-48, Rs. 10,000/-for theyear 1949-50 and Rs. 5,000/-for the year 1950-51."
}
},
{
"from_name": null,
"id": "1954c85b478244b9b409f8ce1a231273",
"to_name": null,
"type": null,
"value": {
"end": 4525,
"labels": [
"FAC"
],
"start": 4378,
"text": "\nAgainst the orders imposing penalty, one of the partners of the firm moved the Commissioner of Income-tax, Madras in revision but without success."
}
},
{
"from_name": null,
"id": "db702607ec6648cfa94bf63cb6c3d371",
"to_name": null,
"type": null,
"value": {
"end": 4956,
"labels": [
"FAC"
],
"start": 4526,
"text": "Thereafter, petitions under Art. 226 of the Constitution for issue of writs of certiorari or other appropriate writs calling for records relating to the orders dated May 20, 1954, passed by the Income-tax Officer, Virudhunagar, in respect of the three assessment orders and the record relating to the order of the Commissioner and for quashing the penalty orders were filed by two partners of the firm in the High Court at Madras."
}
},
{
"from_name": null,
"id": "e51716df959749dab69e833ab138942d",
"to_name": null,
"type": null,
"value": {
"end": 5375,
"labels": [
"FAC"
],
"start": 4957,
"text": "It was submitted by the petitioners that by agreement between the partners the firm stood dissolved on April 13, 1951, and intimation in that behalf was given to the Income-tax Officer, and that in any event the firm stood dissolved on May 5, 1953, when one of the partners died and the Income-tax Officer could not, in exercise of the power under s. 28(1) make an order imposing penalty after dissolution of the firm."
}
},
{
"from_name": null,
"id": "92c80770f4ec4a5facb8247f71876297",
"to_name": null,
"type": null,
"value": {
"end": 5648,
"labels": [
"RLC"
],
"start": 5376,
"text": "The High Court accepted the plea of the petitioners and directed that the orders of the Income-tax Officer dated May 20, 1954, and the further action of the Commissioner thereon declining to revise the order of the Income-tax Officer in each of the petitions be set aside."
}
},
{
"from_name": null,
"id": "3b063048216b40ac9476dba966517067",
"to_name": null,
"type": null,
"value": {
"end": 5732,
"labels": [
"FAC"
],
"start": 5649,
"text": "Against the orders passed by the High Court the Commissioner appeals to this Court."
}
},
{
"from_name": null,
"id": "667defc4656e4f27aeaa6abe4a515c38",
"to_name": null,
"type": null,
"value": {
"end": 6043,
"labels": [
"PRE_RELIED"
],
"start": 5734,
"text": "This Court in a recent judgment-C. A. Abraham v. Income-tax Officer, Kottayam (1)-held that the Income-tax Officer had power under s. 28 of the Income-tax Act to impose penalty in the course of assessment of a firm even if the firm stood at the date of the order dissolved by the death of one of its partners."
}
},
{
"from_name": null,
"id": "6f188a1b140743bf84a5e9ea1a35a354",
"to_name": null,
"type": null,
"value": {
"end": 6678,
"labels": [
"PRE_RELIED"
],
"start": 6044,
"text": "In so holding, this Court observed that s. 44 of the Income-tax Act sets up machinery for assessing tax liability of a firm which has discontinued its business and that the expression \"assessment\" in the different sections ofChapter IV of the Income-tax Act was not used merely in the sense of computation of income, and when s. 44 declared that the partners or members of the firm shall be jointly and severally liable to assessment, it referred to the liability to computation of income under s.23 as well as the application of the procedure for declaration and imposition of tax liability and the machinery for enforcement thereof."
}
},
{
"from_name": null,
"id": "4b5afb44885341b19341084da23e8c4f",
"to_name": null,
"type": null,
"value": {
"end": 6871,
"labels": [
"ANALYSIS"
],
"start": 6678,
"text": "\n Counsel for the appellants, however, contended that C. A. Abraham's case was one of an unregistered firm and the principle of that case has no application where the firm is a registered firm."
}
},
{
"from_name": null,
"id": "dd9f61b10cc640f5bc5153a9b98117b7",
"to_name": null,
"type": null,
"value": {
"end": 7142,
"labels": [
"ANALYSIS"
],
"start": 6872,
"text": "But s. 44 makes the provisions of Chapter IV, so far as may be, applicable to assessment when any business, profession or vocation carried on by a firm has been discontinued : the section declares liability of all discontinued firms and not merely of unregistered firms."
}
},
{
"from_name": null,
"id": "1238e810196c417c97e56de553c8529b",
"to_name": null,
"type": null,
"value": {
"end": 7257,
"labels": [
"ANALYSIS"
],
"start": 7143,
"text": "There is nothing in s. 44 or the context in which it occur to indicate that it does not apply to registered firms."
}
},
{
"from_name": null,
"id": "06ae1323144c4a41b62d992086da9696",
"to_name": null,
"type": null,
"value": {
"end": 7496,
"labels": [
"PRE_RELIED"
],
"start": 7258,
"text": "This Court in C. A. Abraham's case approved the decision of the Andhra Pradesh High Court in Mareddy Krishna Reddy v. Income-tax Officer, Tenali, (1) which was a case of a registered firm, which was dissolved before imposition of penalty."
}
},
{
"from_name": null,
"id": "2ddd4031e262417c94684a9413c7c225",
"to_name": null,
"type": null,
"value": {
"end": 7702,
"labels": [
"ANALYSIS"
],
"start": 7496,
"text": "\n Counsel then argued that in any event, no penalty under s. 28 can be imposed against a registered firm either before or after dissolution, even if the defaults set out in cls.\n (a), (b) or (c) are proved."
}
},
{
"from_name": null,
"id": "85d3ab316de746569fb64b903c49db21",
"to_name": null,
"type": null,
"value": {
"end": 7834,
"labels": [
"ANALYSIS"
],
"start": 7702,
"text": "\n This, counsel submits, is the result of the scheme of the Act under s. 23(5) for assessment of tax liability of a registered firm."
}
},
{
"from_name": null,
"id": "5305a1ffc9b54f77b0416dc715c8f87c",
"to_name": null,
"type": null,
"value": {
"end": 8025,
"labels": [
"ANALYSIS"
],
"start": 7835,
"text": "This plea was not set up in the petition, and there is no reference to it in the judgment of the High Court and even in the statement of the case filed in this Court there is no trace of it."
}
},
{
"from_name": null,
"id": "a03d93feabf04276b3b46e3c3337a6fa",
"to_name": null,
"type": null,
"value": {
"end": 8105,
"labels": [
"ANALYSIS"
],
"start": 8026,
"text": "On that ground alone the plea raised by the appellant is liable to be rejected."
}
},
{
"from_name": null,
"id": "95a9724f22524da695ade53eacfb4137",
"to_name": null,
"type": null,
"value": {
"end": 8207,
"labels": [
"ANALYSIS"
],
"start": 8106,
"text": "Even if the appellant is permitted to raise the contention there is, in our judgment, no force in it."
}
},
{
"from_name": null,
"id": "715c0f0defb044569039ed0600772cbb",
"to_name": null,
"type": null,
"value": {
"end": 9548,
"labels": [
"STA"
],
"start": 8208,
"text": "Section 28(1) of the Act (in so far as it is material to these appeals) provides : \"If the Income-tax Officer x x x x x x in the course of any proceedings under this Act is satisfied that any person- (a) has without reasonable cause failed to furnish the return of his total income which he was required to furnish by notice given under sub- section (1) or sub-section (2) of section 22 or section 34 or has without reasonable cause failed to furnish it within the time allowed and in the manner required by such notice, or (b) has without reasonable cause failed to comply with a notice under subsection (4) of section 22 or sub- section (2) of section 23, or (c) has concealed the particulars of his income or deliberately furnished inaccurate particulars of such income, he or it may direct that such persons shall by way of penalty, in the case referred to in clause (a), in addition to the amount of the income-tax and super-tax, if any, payable by him, a sum not exceeding one and a half times that amount, and in the cases referred to in clauses (b) and (c), in addition to any tax- payable by him, a sum not exceeding one and a half times the amount of the income-tax and super-tax, if any, which would have been avoided if the income as returned by such person had been accepted as the correct income\"."
}
},
{
"from_name": null,
"id": "500a7e2d9fe545a5aca44f9e3655062c",
"to_name": null,
"type": null,
"value": {
"end": 9669,
"labels": [
"STA"
],
"start": 9550,
"text": "The expression \"person\" is defined in s. 2(a) of the Act as including \"a Hindu undivided family and a local authority\"."
}
},
{
"from_name": null,
"id": "fe079af239b04ee68cfabb72cc10d10f",
"to_name": null,
"type": null,
"value": {
"end": 9900,
"labels": [
"STA"
],
"start": 9670,
"text": "That evidently is not an exhaustive definition and recourse is permissible to the General Clauses Act which says in s. 3(42) that a \"person\" includes \"any company or association or body of individuals whether incorporated or not.\""
}
},
{
"from_name": null,
"id": "4c0c05e4b9d3492bb06b5bbf77667d29",
"to_name": null,
"type": null,
"value": {
"end": 10143,
"labels": [
"STA"
],
"start": 9901,
"text": "A firm is manifestly a body of individuals and would therefore fall within the definition of \"person\", and may be exposed to an order for payment of penalty in the circumstances set out in cls. (a), (b) and (c) of s. 28 of the Income-tax Act."
}
},
{
"from_name": null,
"id": "af03b6eb059b49f4b3458facf97af95c",
"to_name": null,
"type": null,
"value": {
"end": 10347,
"labels": [
"STA"
],
"start": 10144,
"text": "That a firm, registered or unregistered, may be liable to pay penalty has been further clarified by proviso (d) which declares the quantum of penalty payable by firms, registered as well as unregistered."
}
},
{
"from_name": null,
"id": "bb6a8182e3e742bb9be0476d04f86684",
"to_name": null,
"type": null,
"value": {
"end": 10794,
"labels": [
"ANALYSIS"
],
"start": 10348,
"text": "Counsel for the appellant however contends that even if a firm be regarded as a person within the meaning of the operative part of s. 28 and the proviso thereof, because of an obvious defect in drafting no liability for payment of penalty can be imposed upon a registered firm and in support of that contention he relies upon the last clause of the 1st sub-section which provides for imposition of penalty \"in addition to any tax payable by him\"."
}
},
{
"from_name": null,
"id": "c3beef46d7a046bdaac507b86e8ba7d9",
"to_name": null,
"type": null,
"value": {
"end": 11104,
"labels": [
"ANALYSIS"
],
"start": 10794,
"text": "\nCounsel submits that only the person liable to pay tax, may if found guilty of wrongful conduct specified in cls. (a), (b) and (c) be ordered to pay penalty, and by the scheme adopted by the Legislature for imposing tax liability upon registered firms under s. 23(5) tax is never payable by a registered firm."
}
},
{
"from_name": null,
"id": "cc50a2bc417d4470b58254143c61679d",
"to_name": null,
"type": null,
"value": {
"end": 11587,
"labels": [
"ANALYSIS"
],
"start": 11105,
"text": "Counsel says that when the Legislature by Act 40 of 1940 enacted cl.\n(d) of the proviso, only the quantum of penal liability of a registered firm was declared but the liability could not still be enforced because by the substantive provision, it depended solely upon the existence of an enforceable obligation of the firm, and so long as an obligation was not imposed upon the firm to pay tax by an adequate amendment of s. 23 (5), the liability though quantified was unenforceable."
}
},
{
"from_name": null,
"id": "ee4f45469b5e4358a0c9abd28f9bcfea",
"to_name": null,
"type": null,
"value": {
"end": 12081,
"labels": [
"ANALYSIS"
],
"start": 11588,
"text": "It is urged that there were two defects in s.28(1), as originally drafted : (1) that the penalty could beimposed only upon a person who was liable to pay income-tax or super-tax, and (2) that the penalty which may be imposed was a multiple of the income- tax and super-tax if any, which would have been avoided if the income as returned by such person would have been accepted as the correct income, and by the enactment of cl. (d) to the proviso, the second defect was removed, but not first."
}
},
{
"from_name": null,
"id": "426e122e1a494485a61f85711838c987",
"to_name": null,
"type": null,
"value": {
"end": 12212,
"labels": [
"ANALYSIS"
],
"start": 12082,
"text": "In support of this argument, counsel relied upon s.\n23(5) as it stood, before it was amended by s. 14 of the Finance, Act of 1956."
}
},
{
"from_name": null,
"id": "1f6c5f7598a54f60b893651955a9272b",
"to_name": null,
"type": null,
"value": {
"end": 12661,
"labels": [
"ANALYSIS"
],
"start": 12213,
"text": "The clause provided that where an assessee is a firm and the total income of the firm has been assessed under sub-s.\n(1), sub-s. (3) or sub-s. (4), as the case may be, the sum payable by the firm shall not be determined but the total income of each partner of the firm, including therein his share of its income, profits or gains of the previous year shall be assessed and the sum payable by him on the basis of such assessment shall be determined."
}
},
{
"from_name": null,
"id": "da8e2c318f6f41c3b29e03712f1c6437",
"to_name": null,
"type": null,
"value": {
"end": 13012,
"labels": [
"ANALYSIS"
],
"start": 12662,
"text": "Under this scheme the income of the registered firm was to be computed but tax was not assessed on the total income of the registered firm : the income was distributed according to the terms of the agreement amongst the partners of the registered firm, and added to the separate income of the partners and tax was levied on the partners individually."
}
},
{
"from_name": null,
"id": "d6b0b47d825d4bd4810bc5104ab7fdaa",
"to_name": null,
"type": null,
"value": {
"end": 13283,
"labels": [
"ANALYSIS"
],
"start": 13013,
"text": "Relying upon this scheme of levying tax, it was urged by counsel for the respondent that as the registered firm was not liable to pay tax it could not be rendered liable to pay penalty under s. 28 (1) (c).\n Section 28, as it was originally enacted, was somewhat obscure."
}
},
{
"from_name": null,
"id": "2a78665f913b4572be3c7c902c1f5800",
"to_name": null,
"type": null,
"value": {
"end": 13544,
"labels": [
"ANALYSIS"
],
"start": 13284,
"text": "The penalty which could be imposed in cases referred to in cls. (b) and (c) was to be a sum not exceeding one and a half times the amount of the tax which would have been avoided if the income as returned by such person had been accepted as the correct income."
}
},
{
"from_name": null,
"id": "5e43b6302fc94d25935c1b0d04391fbc",
"to_name": null,
"type": null,
"value": {
"end": 13753,
"labels": [
"ANALYSIS"
],
"start": 13545,
"text": "But the Legislature did not give any indication whether thepenalty was related to the tax avoided by the partners of the firm, or by the firm on the footing that it was to be regarded as an unregistered firm."
}
},
{
"from_name": null,
"id": "a85212c4a82b44b8b62cf5099c3a6d42",
"to_name": null,
"type": null,
"value": {
"end": 13917,
"labels": [
"STA"
],
"start": 13754,
"text": "By s. 23(5), income-tax not being made payable by the firm but by the individual partners of a registered firm the legislative intention was not clearly expressed."
}
},
{
"from_name": null,
"id": "4a84e3dbf6744d5e842177394e94daed",
"to_name": null,
"type": null,
"value": {
"end": 14409,
"labels": [
"ANALYSIS"
],
"start": 13918,
"text": "The Legislature to rectify the defect fixed an artificial basis for computing the penalty payable by a registered firm : it provided that in the cases referred to in cls. (b) and (c), the amount of the income-tax and super-tax which would have been avoided if the income as returned had been accepted as the correct income, shall be taken to be the difference between the amount of the tax which would have been payable by an unregistered firm, on an income equal to the firm's total income."
}
},
{
"from_name": null,
"id": "845d7d5c8c2e4ebfaebb6e017315d514",
"to_name": null,
"type": null,
"value": {
"end": 14521,
"labels": [
"ANALYSIS"
],
"start": 14410,
"text": "But the provision relating to imposition of liability to pay penalty by registered firms was clearly expressed."
}
},
{
"from_name": null,
"id": "440f3defea47465c9b2f1c84b68487b1",
"to_name": null,
"type": null,
"value": {
"end": 14715,
"labels": [
"ANALYSIS"
],
"start": 14522,
"text": "The assumption that the expression \"any tax\" used in s. 28 (1) is intended to indicate that there must be come tax payable by the assessee before penalty could be imposed is wholly unwarranted."
}
},
{
"from_name": null,
"id": "ba01c7017ea34c84a3b4cd81237545cd",
"to_name": null,
"type": null,
"value": {
"end": 14784,
"labels": [
"ANALYSIS"
],
"start": 14716,
"text": "The futility of the assumption is exhibited by the terms of cl. (b)."
}
},
{
"from_name": null,
"id": "23fe31d8e9a34aa7b4b937865de7ab83",
"to_name": null,
"type": null,
"value": {
"end": 14941,
"labels": [
"ANALYSIS"
],
"start": 14785,
"text": "Penalty may be imposed for failure to comply with the notice under sub-s. (4) of s. 22 or sub-s. (2) of s. 23 even if the assessee has no assessable income."
}
},
{
"from_name": null,
"id": "2409dcaeed01497f9d9b0e604c952748",
"to_name": null,
"type": null,
"value": {
"end": 15099,
"labels": [
"ANALYSIS"
],
"start": 14942,
"text": "To the imposition on of a penalty liability to pay tax by the person against whom the penalty is sought to be imposed is therefore not a condition precedent."
}
},
{
"from_name": null,
"id": "f0b8eedd27de4b0eaf1c72f7c5c6016b",
"to_name": null,
"type": null,
"value": {
"end": 15272,
"labels": [
"PRE_RELIED"
],
"start": 15099,
"text": "\n The Calcutta High Court in Khushiram Murarilal v. Commissioner of Income-tax, Central Calcutta (1) was called upon to deal with the submission made before us in this case."
}
},
{
"from_name": null,
"id": "2464dae5037e4937a0759f9e435bd306",
"to_name": null,
"type": null,
"value": {
"end": 15447,
"labels": [
"PRE_RELIED"
],
"start": 15273,
"text": "In that case the question which fell to be determined was whether imposition of a penalty on a registered firm under s. 28 (1) (b) of the Income Tax Act was justified in law."
}
},
{
"from_name": null,
"id": "3871ae5188c4412c95b7e4423fefb8c3",
"to_name": null,
"type": null,
"value": {
"end": 15852,
"labels": [
"PRE_RELIED"
],
"start": 15448,
"text": "It was urged in that case on behalf of theassessee-a registered firm-that inasmuch as under, s. 28 (1) (b) a person can be made liable to pay penalty, in addition to the amount of income-tax and super-tax, if any, payable by him in cases falling under cls. (b) and (c), no order for payment of penalty can be against a registered firm, because under the Income Tax Act no tax is made payable by the firm."
}
},
{
"from_name": null,
"id": "32c308d271ef4c89be1e873c67c3a769",
"to_name": null,
"type": null,
"value": {
"end": 16192,
"labels": [
"PRE_RELIED"
],
"start": 15853,
"text": "Chief Justice Chakravartti, speaking for the Court, observed, \"....................... even when construed by its own language the concluding paragraph of section 28 (1) cannot be said to make it a condition precedent that a person must be liable to pay some income-tax or it may be also super-tax if he is to be made liable for a penalty."
}
},
{
"from_name": null,
"id": "43efc2753a9c432985768ea4c6368b71",
"to_name": null,
"type": null,
"value": {
"end": 16433,
"labels": [
"PRE_RELIED"
],
"start": 16193,
"text": "Clause (b) of the proviso to my mind emphasizes that meaning of the concluding paragraph of Section 28 (1) and rests on an assumption that under that provision a person may be chargeable to penalty although he may not be chargeable to tax.\""
}
},
{
"from_name": null,
"id": "ac16ed08190a4c409512b07e17aca1f9",
"to_name": null,
"type": null,
"value": {
"end": 16721,
"labels": [
"ANALYSIS"
],
"start": 16434,
"text": "The learned Chief Justice also observed, \"......it was not really necessary for clause (d) of the proviso to enact specifically that a registered firm would be liable to pay a penalty despite the fact that it could not be charged and was not, in fact, charged to income-tax or super-tax."
}
},
{
"from_name": null,
"id": "0dc2db03c3704a41b0bdb8862a4057e3",
"to_name": null,
"type": null,
"value": {
"end": 16936,
"labels": [
"ANALYSIS"
],
"start": 16722,
"text": "The whole argument of Dr. Sen Gupta was that the concluding paragraph of Section 28 (1) had left a gap which had been attempted to be filled up by clause (d) of the proviso, but the attempt had not been successful."
}
},
{
"from_name": null,
"id": "9133db7623504149be0619c8bf6f0abb",
"to_name": null,
"type": null,
"value": {
"end": 17213,
"labels": [
"ANALYSIS"
],
"start": 16937,
"text": "In my view the gap which undoubtedly existed in the concluding paragraph of section 28 (1) was only an absence of a provision regarding the quantum of the penalty that could be levied from a registered firm because the quantum depends upon the amount of income-tax payable\".\n "
}
},
{
"from_name": null,
"id": "d4232d912fbb475bb3a218b863dd8d3a",
"to_name": null,
"type": null,
"value": {
"end": 17287,
"labels": [
"ANALYSIS"
],
"start": 17213,
"text": "In our view the learned Chief Justice was right is so enunciating the law."
}
},
{
"from_name": null,
"id": "64982caa26cc4c4da5c282bff5bbb2d0",
"to_name": null,
"type": null,
"value": {
"end": 17705,
"labels": [
"ANALYSIS"
],
"start": 17288,
"text": "Under s. 23 (5) of the Indian Income-tax Act, before it was amended in 1956, in the case of a registered firm the tax payable by the firm itself was not required to bedetermined but the total income of each partner of the firm including therein the share of its income, profits and gains of the previous year was required to be assessed and the sum payable by him on the basis of such assessment was to be determined."
}
},
{
"from_name": null,
"id": "1f2585ed88864ad28342794d12ccbacb",
"to_name": null,
"type": null,
"value": {
"end": 17774,
"labels": [
"ANALYSIS"
],
"start": 17706,
"text": "But this was merely a method of collection of tax due from the firm."
}
},
{
"from_name": null,
"id": "7af23e3b1b844dad88aabf28fb29b62a",
"to_name": null,
"type": null,
"value": {
"end": 17955,
"labels": [
"ANALYSIS"
],
"start": 17774,
"text": "\n The penalty provisions under s. 28 would therefore in the event of the default contemplated by cls. (a), (b) or (c) be applicable in the course of assessment of a registered firm."
}
},
{
"from_name": null,
"id": "0ad5c385712144c8959eb7d5390335d2",
"to_name": null,
"type": null,
"value": {
"end": 18270,
"labels": [
"ANALYSIS"
],
"start": 17956,
"text": "If a registered firm is exposed to liability of paying penalty, by committing any of the defaults contemplated by cls. (a), (b) or (c) by virtue of s. 44, notwithstanding the dissolution of the firm the assessment proceedings are liable to be continued against the registered firm, as if it has not been dissolved."
}
},
{
"from_name": null,
"id": "1f1aca9962684d91a6df40530b337141",
"to_name": null,
"type": null,
"value": {
"end": 18659,
"labels": [
"ANALYSIS"
],
"start": 18272,
"text": "Counsel contended that in any event, penalty for the assessment year 1949-50 could not be imposed upon the assessee firm because there was no evidence that the Income-tax Officer was satisfied in the course of any assessment proceedings under the Income-tax Act that the firm had concealed the particulars of its income or had deliberately furnished inaccurate particulars of the income."
}
},
{
"from_name": null,
"id": "389aeff0bfb640e9a75e6155a361b807",
"to_name": null,
"type": null,
"value": {
"end": 18950,
"labels": [
"ANALYSIS"
],
"start": 18660,
"text": "The power to impose penalty under s.28 depends upon the satisfaction of the Income-tax Officer in the course of proceedings under the Act: it cannot be exercised if he is not satisfied about the existence of conditions specified in cls. (a), (b) or (c) before the proceedings are concluded."
}
},
{
"from_name": null,
"id": "e79660c56c1b40989ff2b3e3a2d55ecb",
"to_name": null,
"type": null,
"value": {
"end": 19120,
"labels": [
"ANALYSIS"
],
"start": 18951,
"text": "The proceeding to levy penalty has, however, not to be commenced by the Income Tax Officer before the completion of the assessment proceedings by the Income-tax Officer."
}
},
{
"from_name": null,
"id": "f5b8cf00c0b44a7fabe637079592209d",
"to_name": null,
"type": null,
"value": {
"end": 19314,
"labels": [
"ANALYSIS"
],
"start": 19120,
"text": "\nSatisfaction before conclusion of the proceeding under the Act, and not the issue of a notice of initiation of any step for imposing penalty is a condition for the exercise of the jurisdiction."
}
},
{
"from_name": null,
"id": "6e42b4d6dcf24dde932cbc4e8660a3cb",
"to_name": null,
"type": null,
"value": {
"end": 19477,
"labels": [
"RATIO"
],
"start": 19314,
"text": "\nThere is no evidence on the record that the Income-tax Officerwas not satisfied in the course of the assessment proceeding that the firm had concealed its income."
}
},
{
"from_name": null,
"id": "736ad4456b8b446a93f8a8f6dc071eb1",
"to_name": null,
"type": null,
"value": {
"end": 19825,
"labels": [
"RATIO"
],
"start": 19477,
"text": "\nThe assessment order is dated November 10, 1951, and there is an endorsement at the foot of the assessment order by the Income-tax Officer that action under s. 28 had been taken for concealment of income indicating clearly that the Income-tax Officer was satisfied in the course of the assessment proceeding that the firm had concealed its income."
}
},
{
"from_name": null,
"id": "8697cd5a8f3b43fa9b13d78699b006ca",
"to_name": null,
"type": null,
"value": {
"end": 20009,
"labels": [
"RATIO"
],
"start": 19825,
"text": "\n In our view, the High Court was in error in holding that penalty could not be imposed under s.\n28 (1) (c) upon the firm Messrs. S. V. Veerappan Chettiar & Co., after its dissolution."
}
},
{
"from_name": null,
"id": "027505b0fede49c5942a33eaa362bd0d",
"to_name": null,
"type": null,
"value": {
"end": 20204,
"labels": [
"RPC"
],
"start": 20011,
"text": "The appeals will therefore be allowed and the orders passed by the High Court will be set aside and the petitions filed by the respondents dismissed with costs in this Court and the High Court."
}
},
{
"from_name": null,
"id": "62f512e432e748f6971764be24112a5c",
"to_name": null,
"type": null,
"value": {
"end": 20221,
"labels": [
"RPC"
],
"start": 20205,
"text": "One hearing fee."
}
},
{
"from_name": null,
"id": "fcbab171d7b54b18bf579ca64dfa9b84",
"to_name": null,
"type": null,
"value": {
"end": 20239,
"labels": [
"RPC"
],
"start": 20221,
"text": "\n Appeals allowed."
}
}
]
}
] | 4,125 | {
"text": "PETITIONER:\nTHE COMMSSIONER OF INCOME TAX, MADRAS AND ANOTHER\n\n Vs.\n\nRESPONDENT:\nS.V. ANGIDI CHETTIAR\n\nDATE OF JUDGMENT:\n09/01/1962\n\nBENCH:\nSHAH, J.C.\nBENCH:\nSHAH, J.C.\nSINHA, BHUVNESHWAR P.(CJ)\nKAPUR, J.L.\nHIDAYATULLAH, M.\nMUDHOLKAR, J.R.\n\nCITATION:\n\n1962 AIR 970 1962 SCR Supl. (2) 640\n\nCITATOR INFO : (15)\n (7,8)\nD 1966 SC1295 (7)\n (8)\nE 1968 SC 46\n\nR 1969 SC1352\n\nR 1973 SC 22\n\nACT:\n Income Tax-Penalty on concealed income-Power\n\nto impose penalty on a registered firm after\ndissolution-Condition for the exercise of\njurisdiction by Income-tax Officer-Indian Income\ntax Act, 1922 (11 of 1922), ss. 28, 44.\n\nHEADNOTE:\n A registered firm concealed particulars of\n\nincome while submitting its returns for the years\n1947-48, 1949-50 and 1950-51. The Income-tax\nOfficer imposed penalty under s.28 (1) of the\nIndian Income-tax Act, 1922. The High Court was\nmoved for a writ of certiorari, submitting that\nthe Income-tax Officer could not impose penalty\nunder the said section as he had information that\nthe registered firm was dissolved on April 13,\n1951, by agreement, and in any event on May 5,\n1953, by the death of one of the partners. The\nHigh Court issued the writ and quashed the order\nimposing penalty.\n^\n\n Held, that the principle laid down in C. A.\nAbrahams case [1961] 2 S.C.R. 765, is as much\napplicable to a registered firm as to an\nunregistered firm. There is nothing in s.44 of the\nAct or the context in which it occurs to indicate\nthat it does not apply to registered firm.\n\n Held, further, that the penalty provisions\nunder s. 28 would in the event of the default\ncontemplated by cls. (a) (b) or (c) be applicable\nin the course of assessment of a registered firm.\nIf the registered firm is exposed to liability of\npaying penalty because it has committed any of the\n\ndefaults contemplated by cls. (a), (b) or (c) by\nvirtue of s.44 the assessment proceedings are\nliable to be continued against the registered firm\neven after dissolution as if it has not been\ndissolved.\n\n The power to impose penalty under s. 28\ndepends upon the satisfaction of the Income-tax\nOfficer in the course of proceedings under the\nAct. It cannot be exercised if he is not satisfied\nabout the existence of conditions specified in cl.\n(a), (b) or (c) before the proceedings are\nconcluded. The proceedings for levy of penalty\nhas, however, not to be commenced by the Income-\ntax Officer, before completion of the assessment\nproceedings by him. Satisfaction before the con-clusion of the proceeding under the Act and not\nthe issue of notice of intimation of any step for\nimposing penalty is a condition for the exercise\nof the jurisdiction.\n\n C. A. Abrham v. Income Officer, Kottayam,\n[1961] 2 S. C. R. 765 applied.\n\n Mareddev Krishna Reddy v. Income-tax Officer,\nTenali [1957] 31 I. T. R. 678 and Khushiram\nMurarilal v. Commissioner of Income-tax, Central,\nCalcutta, [1954] 25 I. T. R. 572, approved.\n\nJUDGMENT:\n CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 6 to 8 of 1961.\n Appeals from the judgment and order dated May 3, 1957 of the Madras High Court in Writ Petition Nos. 943 to 945 of 1955.\n K. N. Rajagopala Sastri and P. D. Menon, for the appellants.\n V. S. Venkataram and K. P. Bhat, for respondents.\n 1962. January 18.-The Judgment of the Court was delivered by SHAH, J.-These are three appeals with certificates of fitness granted by the High Court of Madras against orders passed in Petitions for the issue of writs of certiorari setting aside orders imposing penalty upon the firm of Messrs.\nS. V. Veerappan Chettiar & Co. passed by the Income-tax Officer under s. 28(1)(c) of the Indian Income-tax Act.\n Four persons carried on business in cloth at Virudhunagar in the name and style of S. V.\nVeerappan Chettiar & Co. -hereinafter called the firm. The firm was registered under Art. 26A of the Indian Income-tax Act, 1922, for the assessment years 1947-48, 1949-50 and 1950-51. The firm concealed particulars of its income in submitting its returns, and the Income-tax Officer, Virudhunagar in the course of assessment proceedings directed, by order dated May 20, 1954, payment of penalty of Rs. 20,000/- for the year 1947-48, Rs. 10,000/-for theyear 1949-50 and Rs. 5,000/-for the year 1950-51.\nAgainst the orders imposing penalty, one of the partners of the firm moved the Commissioner of Income-tax, Madras in revision but without success. Thereafter, petitions under Art. 226 of the Constitution for issue of writs of certiorari or other appropriate writs calling for records relating to the orders dated May 20, 1954, passed by the Income-tax Officer, Virudhunagar, in respect of the three assessment orders and the record relating to the order of the Commissioner and for quashing the penalty orders were filed by two partners of the firm in the High Court at Madras. It was submitted by the petitioners that by agreement between the partners the firm stood dissolved on April 13, 1951, and intimation in that behalf was given to the Income-tax Officer, and that in any event the firm stood dissolved on May 5, 1953, when one of the partners died and the Income-tax Officer could not, in exercise of the power under s. 28(1) make an order imposing penalty after dissolution of the firm. The High Court accepted the plea of the petitioners and directed that the orders of the Income-tax Officer dated May 20, 1954, and the further action of the Commissioner thereon declining to revise the order of the Income-tax Officer in each of the petitions be set aside. Against the orders passed by the High Court the Commissioner appeals to this Court.\n This Court in a recent judgment-C. A. Abraham v. Income-tax Officer, Kottayam (1)-held that the Income-tax Officer had power under s. 28 of the Income-tax Act to impose penalty in the course of assessment of a firm even if the firm stood at the date of the order dissolved by the death of one of its partners. In so holding, this Court observed that s. 44 of the Income-tax Act sets up machinery for assessing tax liability of a firm which has discontinued its business and that the expression \"assessment\" in the different sections ofChapter IV of the Income-tax Act was not used merely in the sense of computation of income, and when s. 44 declared that the partners or members of the firm shall be jointly and severally liable to assessment, it referred to the liability to computation of income under s.23 as well as the application of the procedure for declaration and imposition of tax liability and the machinery for enforcement thereof.\n Counsel for the appellants, however, contended that C. A. Abraham's case was one of an unregistered firm and the principle of that case has no application where the firm is a registered firm. But s. 44 makes the provisions of Chapter IV, so far as may be, applicable to assessment when any business, profession or vocation carried on by a firm has been discontinued : the section declares liability of all discontinued firms and not merely of unregistered firms. There is nothing in s. 44 or the context in which it occur to indicate that it does not apply to registered firms. This Court in C. A. Abraham's case approved the decision of the Andhra Pradesh High Court in Mareddy Krishna Reddy v. Income-tax Officer, Tenali, (1) which was a case of a registered firm, which was dissolved before imposition of penalty.\n Counsel then argued that in any event, no penalty under s. 28 can be imposed against a registered firm either before or after dissolution, even if the defaults set out in cls.\n (a), (b) or (c) are proved.\n This, counsel submits, is the result of the scheme of the Act under s. 23(5) for assessment of tax liability of a registered firm. This plea was not set up in the petition, and there is no reference to it in the judgment of the High Court and even in the statement of the case filed in this Court there is no trace of it. On that ground alone the plea raised by the appellant is liable to be rejected. Even if the appellant is permitted to raise the contention there is, in our judgment, no force in it. Section 28(1) of the Act (in so far as it is material to these appeals) provides : \"If the Income-tax Officer x x x x x x in the course of any proceedings under this Act is satisfied that any person- (a) has without reasonable cause failed to furnish the return of his total income which he was required to furnish by notice given under sub- section (1) or sub-section (2) of section 22 or section 34 or has without reasonable cause failed to furnish it within the time allowed and in the manner required by such notice, or (b) has without reasonable cause failed to comply with a notice under subsection (4) of section 22 or sub- section (2) of section 23, or (c) has concealed the particulars of his income or deliberately furnished inaccurate particulars of such income, he or it may direct that such persons shall by way of penalty, in the case referred to in clause (a), in addition to the amount of the income-tax and super-tax, if any, payable by him, a sum not exceeding one and a half times that amount, and in the cases referred to in clauses (b) and (c), in addition to any tax- payable by him, a sum not exceeding one and a half times the amount of the income-tax and super-tax, if any, which would have been avoided if the income as returned by such person had been accepted as the correct income\".\n The expression \"person\" is defined in s. 2(a) of the Act as including \"a Hindu undivided family and a local authority\". That evidently is not an exhaustive definition and recourse is permissible to the General Clauses Act which says in s. 3(42) that a \"person\" includes \"any company or association or body of individuals whether incorporated or not.\" A firm is manifestly a body of individuals and would therefore fall within the definition of \"person\", and may be exposed to an order for payment of penalty in the circumstances set out in cls. (a), (b) and (c) of s. 28 of the Income-tax Act. That a firm, registered or unregistered, may be liable to pay penalty has been further clarified by proviso (d) which declares the quantum of penalty payable by firms, registered as well as unregistered. Counsel for the appellant however contends that even if a firm be regarded as a person within the meaning of the operative part of s. 28 and the proviso thereof, because of an obvious defect in drafting no liability for payment of penalty can be imposed upon a registered firm and in support of that contention he relies upon the last clause of the 1st sub-section which provides for imposition of penalty \"in addition to any tax payable by him\".\nCounsel submits that only the person liable to pay tax, may if found guilty of wrongful conduct specified in cls. (a), (b) and (c) be ordered to pay penalty, and by the scheme adopted by the Legislature for imposing tax liability upon registered firms under s. 23(5) tax is never payable by a registered firm. Counsel says that when the Legislature by Act 40 of 1940 enacted cl.\n(d) of the proviso, only the quantum of penal liability of a registered firm was declared but the liability could not still be enforced because by the substantive provision, it depended solely upon the existence of an enforceable obligation of the firm, and so long as an obligation was not imposed upon the firm to pay tax by an adequate amendment of s. 23 (5), the liability though quantified was unenforceable. It is urged that there were two defects in s.28(1), as originally drafted : (1) that the penalty could beimposed only upon a person who was liable to pay income-tax or super-tax, and (2) that the penalty which may be imposed was a multiple of the income- tax and super-tax if any, which would have been avoided if the income as returned by such person would have been accepted as the correct income, and by the enactment of cl. (d) to the proviso, the second defect was removed, but not first. In support of this argument, counsel relied upon s.\n23(5) as it stood, before it was amended by s. 14 of the Finance, Act of 1956. The clause provided that where an assessee is a firm and the total income of the firm has been assessed under sub-s.\n(1), sub-s. (3) or sub-s. (4), as the case may be, the sum payable by the firm shall not be determined but the total income of each partner of the firm, including therein his share of its income, profits or gains of the previous year shall be assessed and the sum payable by him on the basis of such assessment shall be determined.\nUnder this scheme the income of the registered firm was to be computed but tax was not assessed on the total income of the registered firm : the income was distributed according to the terms of the agreement amongst the partners of the registered firm, and added to the separate income of the partners and tax was levied on the partners individually. Relying upon this scheme of levying tax, it was urged by counsel for the respondent that as the registered firm was not liable to pay tax it could not be rendered liable to pay penalty under s. 28 (1) (c).\n Section 28, as it was originally enacted, was somewhat obscure. The penalty which could be imposed in cases referred to in cls. (b) and (c) was to be a sum not exceeding one and a half times the amount of the tax which would have been avoided if the income as returned by such person had been accepted as the correct income. But the Legislature did not give any indication whether thepenalty was related to the tax avoided by the partners of the firm, or by the firm on the footing that it was to be regarded as an unregistered firm. By s. 23(5), income-tax not being made payable by the firm but by the individual partners of a registered firm the legislative intention was not clearly expressed.\nThe Legislature to rectify the defect fixed an artificial basis for computing the penalty payable by a registered firm : it provided that in the cases referred to in cls. (b) and (c), the amount of the income-tax and super-tax which would have been avoided if the income as returned had been accepted as the correct income, shall be taken to be the difference between the amount of the tax which would have been payable by an unregistered firm, on an income equal to the firm's total income. But the provision relating to imposition of liability to pay penalty by registered firms was clearly expressed. The assumption that the expression \"any tax\" used in s. 28 (1) is intended to indicate that there must be come tax payable by the assessee before penalty could be imposed is wholly unwarranted. The futility of the assumption is exhibited by the terms of cl. (b). Penalty may be imposed for failure to comply with the notice under sub-s. (4) of s. 22 or sub-s. (2) of s. 23 even if the assessee has no assessable income. To the imposition on of a penalty liability to pay tax by the person against whom the penalty is sought to be imposed is therefore not a condition precedent.\n The Calcutta High Court in Khushiram Murarilal v. Commissioner of Income-tax, Central Calcutta (1) was called upon to deal with the submission made before us in this case. In that case the question which fell to be determined was whether imposition of a penalty on a registered firm under s. 28 (1) (b) of the Income Tax Act was justified in law. It was urged in that case on behalf of theassessee-a registered firm-that inasmuch as under, s. 28 (1) (b) a person can be made liable to pay penalty, in addition to the amount of income-tax and super-tax, if any, payable by him in cases falling under cls. (b) and (c), no order for payment of penalty can be against a registered firm, because under the Income Tax Act no tax is made payable by the firm. Chief Justice Chakravartti, speaking for the Court, observed, \"....................... even when construed by its own language the concluding paragraph of section 28 (1) cannot be said to make it a condition precedent that a person must be liable to pay some income-tax or it may be also super-tax if he is to be made liable for a penalty. Clause (b) of the proviso to my mind emphasizes that meaning of the concluding paragraph of Section 28 (1) and rests on an assumption that under that provision a person may be chargeable to penalty although he may not be chargeable to tax.\" The learned Chief Justice also observed, \"......it was not really necessary for clause (d) of the proviso to enact specifically that a registered firm would be liable to pay a penalty despite the fact that it could not be charged and was not, in fact, charged to income-tax or super-tax. The whole argument of Dr. Sen Gupta was that the concluding paragraph of Section 28 (1) had left a gap which had been attempted to be filled up by clause (d) of the proviso, but the attempt had not been successful. In my view the gap which undoubtedly existed in the concluding paragraph of section 28 (1) was only an absence of a provision regarding the quantum of the penalty that could be levied from a registered firm because the quantum depends upon the amount of income-tax payable\".\n In our view the learned Chief Justice was right is so enunciating the law. Under s. 23 (5) of the Indian Income-tax Act, before it was amended in 1956, in the case of a registered firm the tax payable by the firm itself was not required to bedetermined but the total income of each partner of the firm including therein the share of its income, profits and gains of the previous year was required to be assessed and the sum payable by him on the basis of such assessment was to be determined. But this was merely a method of collection of tax due from the firm.\n The penalty provisions under s. 28 would therefore in the event of the default contemplated by cls. (a), (b) or (c) be applicable in the course of assessment of a registered firm. If a registered firm is exposed to liability of paying penalty, by committing any of the defaults contemplated by cls. (a), (b) or (c) by virtue of s. 44, notwithstanding the dissolution of the firm the assessment proceedings are liable to be continued against the registered firm, as if it has not been dissolved.\n Counsel contended that in any event, penalty for the assessment year 1949-50 could not be imposed upon the assessee firm because there was no evidence that the Income-tax Officer was satisfied in the course of any assessment proceedings under the Income-tax Act that the firm had concealed the particulars of its income or had deliberately furnished inaccurate particulars of the income. The power to impose penalty under s.28 depends upon the satisfaction of the Income-tax Officer in the course of proceedings under the Act: it cannot be exercised if he is not satisfied about the existence of conditions specified in cls. (a), (b) or (c) before the proceedings are concluded. The proceeding to levy penalty has, however, not to be commenced by the Income Tax Officer before the completion of the assessment proceedings by the Income-tax Officer.\nSatisfaction before conclusion of the proceeding under the Act, and not the issue of a notice of initiation of any step for imposing penalty is a condition for the exercise of the jurisdiction.\nThere is no evidence on the record that the Income-tax Officerwas not satisfied in the course of the assessment proceeding that the firm had concealed its income.\nThe assessment order is dated November 10, 1951, and there is an endorsement at the foot of the assessment order by the Income-tax Officer that action under s. 28 had been taken for concealment of income indicating clearly that the Income-tax Officer was satisfied in the course of the assessment proceeding that the firm had concealed its income.\n In our view, the High Court was in error in holding that penalty could not be imposed under s.\n28 (1) (c) upon the firm Messrs. S. V. Veerappan Chettiar & Co., after its dissolution.\n The appeals will therefore be allowed and the orders passed by the High Court will be set aside and the petitions filed by the respondents dismissed with costs in this Court and the High Court. One hearing fee.\n Appeals allowed.\n "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "7767f16cb7044a5e9dc47d8fcc69332c",
"to_name": null,
"type": null,
"value": {
"end": 929,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nTHE COMMISSIONER OF INCOME-TAX,BIHAR AND ORISSA\n\n Vs.\n\nRESPONDENT:\nSRI RAMAKRISHNA DEO\n\nDATE OF JUDGMENT:\n14/10/1958\n\nBENCH:\nAIYYAR, T.L. VENKATARAMA\nBENCH:\nAIYYAR, T.L. VENKATARAMA\nGAJENDRAGADKAR, P.B.\nSARKAR, A.K.\n\nCITATION:\n\n1959 AIR 239 1959 SCR Supl. (1) 176\n (12)\nCITATOR INFO :\n\nR 1965 SC 568\n\nACT:\n\n Income Tax-Forest trees-Income from sale of-Whether\n agricultural income-Exemption from taxation-Burden of proof-\n Findings of the Tribunal-When binding on High Court-Indian\n Income-tax Act, 1922 (XI Of 1922), SS. 2(1), 4(3) (viii),\n 66(1).\n\nHEADNOTE:\nThe respondent, the proprietor of an estate, derived income\nfrom the sale of trees growing in his forests and claimed\nthat it was agricultural income as defined in s. 2(1) of the\nIndian Income-tax Act, 1922, and that it was exempt from\npayment of income-tax under s. 4(3)(viii)."
}
},
{
"from_name": null,
"id": "445ce63839d345ddac2515aed31d4d6e",
"to_name": null,
"type": null,
"value": {
"end": 1219,
"labels": [
"PREAMBLE"
],
"start": 930,
"text": "The Appellate\nTribunal found that the evidence to show that there was\nplantation by the estate authorities was meagre and\nunsubstantial, that the trees in question must have been of\nspontaneous growth and that the respondent had failed to\nestablish facts on which he could claim exemption."
}
},
{
"from_name": null,
"id": "bcdef8370d4b465b940b8f68f3fd55fc",
"to_name": null,
"type": null,
"value": {
"end": 1524,
"labels": [
"PREAMBLE"
],
"start": 1220,
"text": "On\nreference, the High Court took the view that though trees in\nthe forest had not been planted by the estate authorities,\nthe latter had performed subsequent operations of a\nsubstantial character for the maintenance and improvement of\nthe forest, and that the income was, therefore, agricultural\nincome."
}
},
{
"from_name": null,
"id": "8e050dee4b6b4d0a8f3f7ae9788132d4",
"to_name": null,
"type": null,
"value": {
"end": 1797,
"labels": [
"PREAMBLE"
],
"start": 1525,
"text": "It also held that the onus was on the income-tax\nauthorities to prove that the income derived from the sale\nof trees was not agricultural income and that they had\nfailed to show that the income fell outside the scope of the\nexemption mentioned in s. 4(3)(viii) Of the Act."
}
},
{
"from_name": null,
"id": "40f46f4d9e9442c08b098fd4c8490d66",
"to_name": null,
"type": null,
"value": {
"end": 1954,
"labels": [
"PREAMBLE"
],
"start": 1798,
"text": "Held, that the High Court erred in placing the burden on the\nincome-tax authorities to prove that the income sought to be\ntaxed was not agricultural income."
}
},
{
"from_name": null,
"id": "1fa9a7d8134a44a39bb6cec873d0ae5e",
"to_name": null,
"type": null,
"value": {
"end": 2093,
"labels": [
"PREAMBLE"
],
"start": 1955,
"text": "The principle has been\nwell established that where a person claims the benefit of\nan exemption under the provisions of the Act, he has to\n"
}
},
{
"from_name": null,
"id": "421214a897fe4559a471d2f67d534b1b",
"to_name": null,
"type": null,
"value": {
"end": 2102,
"labels": [
"PREAMBLE"
],
"start": 2093,
"text": "establish"
}
},
{
"from_name": null,
"id": "44ce8f4301f547abb80c20a52443b682",
"to_name": null,
"type": null,
"value": {
"end": 2186,
"labels": [
"PREAMBLE"
],
"start": 2103,
"text": "it.Commissioner of Income-tax v. Venkataswamy Naidu, [1956]\n291.T.R. 529, followed."
}
},
{
"from_name": null,
"id": "516f774cddd44523944a578b222af5b4",
"to_name": null,
"type": null,
"value": {
"end": 2429,
"labels": [
"PREAMBLE"
],
"start": 2186,
"text": "\nThe question whether the trees were of spontaneous growth or\nwere products of plantation was essentially a question of\n\nfact and the finding of the Tribunal on this point was\nbinding on the High Court in a reference under s. 66(1) of\nthe Act."
}
},
{
"from_name": null,
"id": "ed75d61bfbe6461e8fb29886b19bfa30",
"to_name": null,
"type": null,
"value": {
"end": 2749,
"labels": [
"PREAMBLE"
],
"start": 2429,
"text": "\nHeld, further, that the income received by the respondent by\nthe sale of trees in his forests was not agricultural income\nas the trees had not been planted by him, and that it was\nimmaterial that he had maintained a large establishment for\nthe purpose of preserving the forests and assisting in the\ngrowth of the trees."
}
},
{
"from_name": null,
"id": "cc4bdce9d8fa45b485be2a0cd989eda1",
"to_name": null,
"type": null,
"value": {
"end": 2879,
"labels": [
"PREAMBLE"
],
"start": 2749,
"text": "\n\n The Commissioner of Income-tax, West Bengal, Calcutta v.\nRaja Benoy Kumar Sahas Roy, [1958] S.C.R. 101, explained and\nfollowed."
}
},
{
"from_name": null,
"id": "a512c0b5060c4da28249d31ada39973d",
"to_name": null,
"type": null,
"value": {
"end": 2890,
"labels": [
"PREAMBLE"
],
"start": 2879,
"text": "\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "a546aed5da0c4c658121e077fb9b37be",
"to_name": null,
"type": null,
"value": {
"end": 2949,
"labels": [
"NONE"
],
"start": 2890,
"text": "\nCIVIL APPELLATE JURISDICTION: Civil Appeal No.426 of 1957."
}
},
{
"from_name": null,
"id": "e534533473374fa884727f6994f3b73c",
"to_name": null,
"type": null,
"value": {
"end": 3088,
"labels": [
"NONE"
],
"start": 2950,
"text": "Appeal from the judgment and order dated April 21, 1955, of the Orissa High Court at Cuttack in Special Jurisdiction Case No. 179 of 1951."
}
},
{
"from_name": null,
"id": "b93907fa4afb4c2a9ea5fa792c1f6379",
"to_name": null,
"type": null,
"value": {
"end": 3148,
"labels": [
"NONE"
],
"start": 3088,
"text": "\nA. N. Kripal, R. H. Dhebar and D. Gupta, for the appellant."
}
},
{
"from_name": null,
"id": "5835d411b21442daad45b4306caadfbe",
"to_name": null,
"type": null,
"value": {
"end": 3232,
"labels": [
"NONE"
],
"start": 3148,
"text": "\nA. V. Viswanatha Sastri, M. S. K. Sastri and R. Jagannatha Rao, for the respondent."
}
},
{
"from_name": null,
"id": "06a8fa71280a4dd088c808433cb8cfeb",
"to_name": null,
"type": null,
"value": {
"end": 3238,
"labels": [
"NONE"
],
"start": 3232,
"text": "\n1958."
}
},
{
"from_name": null,
"id": "ec9e5259c07e468ea5d3ee6da31a39f2",
"to_name": null,
"type": null,
"value": {
"end": 3250,
"labels": [
"NONE"
],
"start": 3239,
"text": "October 14."
}
},
{
"from_name": null,
"id": "5c213cbd1c814d76ab26713c85598290",
"to_name": null,
"type": null,
"value": {
"end": 3315,
"labels": [
"NONE"
],
"start": 3251,
"text": "The Judgment of the Court was delivered by VENKATARAMA AIYAR, J."
}
},
{
"from_name": null,
"id": "ff97b950853f459bbfd2316508059175",
"to_name": null,
"type": null,
"value": {
"end": 3677,
"labels": [
"FAC"
],
"start": 3315,
"text": "-This is an appeal against the judgment of the High Court of Orrissa in a reference under s. 66(1) of the Indian Income-tax Act, 1922, hereinafter referred to as the Act, and the point for decision is whether income received by the respondent by the sale of trees growing in his forests is agricultural income exempt from taxation under s. 4(3)(viii) of the Act."
}
},
{
"from_name": null,
"id": "2677447035ec42858db36a1362f03513",
"to_name": null,
"type": null,
"value": {
"end": 3765,
"labels": [
"FAC"
],
"start": 3677,
"text": "\nThe respondent is the proprietor of the impartable zamin of Jaipur in Koraput District."
}
},
{
"from_name": null,
"id": "f88e3f9ff8134d55b06acfae231fb30f",
"to_name": null,
"type": null,
"value": {
"end": 3891,
"labels": [
"FAC"
],
"start": 3766,
"text": "The estate is of the area of 12,000 sq. miles of which 1540 sq. miles are reserve forest and 100 sq. miles, protected forest."
}
},
{
"from_name": null,
"id": "4dadb9c0feb84b839dc9861cbfd250ea",
"to_name": null,
"type": null,
"value": {
"end": 4034,
"labels": [
"FAC"
],
"start": 3892,
"text": "The respondent derives income from the forests by the sale of timber such as teak, salwood, lac, myrabolam, tamarind, cashewnuts and firewood."
}
},
{
"from_name": null,
"id": "a741d0583dd84c5eb491f8c032d55375",
"to_name": null,
"type": null,
"value": {
"end": 4119,
"labels": [
"FAC"
],
"start": 4034,
"text": "\nThere is no178 dispute either as to the receipt of such income or as to its quantum."
}
},
{
"from_name": null,
"id": "9815f22784b643f4a450432362bc1f31",
"to_name": null,
"type": null,
"value": {
"end": 4175,
"labels": [
"FAC"
],
"start": 4120,
"text": "All tat appears in the account books of the respondent."
}
},
{
"from_name": null,
"id": "7ae94825f90e46aab1f03bb9660c6b66",
"to_name": null,
"type": null,
"value": {
"end": 4251,
"labels": [
"FAC"
],
"start": 4176,
"text": "The point in controversy is as to whether this income is chargeable to tax."
}
},
{
"from_name": null,
"id": "10ba32ddfcc748a0abc44d1bc8a2835b",
"to_name": null,
"type": null,
"value": {
"end": 4416,
"labels": [
"ARG_RESPONDENT"
],
"start": 4252,
"text": "It is the contention of the respondent that this is agricultural income as defined ins.\n2(1) of the Act, and that it is, in consequence, exempt under s. 4(3)(viii)."
}
},
{
"from_name": null,
"id": "0f43648300c54b2d911a47c31e4e35fd",
"to_name": null,
"type": null,
"value": {
"end": 4773,
"labels": [
"FAC"
],
"start": 4417,
"text": "By his 31, 1943, the Income-tax order dated January Officer held that the forests in question had not been proved to have been planted by the respondent, that the trees were of spontaneous growth, and that the income therefrom was not within the exemption under s. 4(3)(viii); and this order was confirmed on appeal by the Appellate Assistant Commissioner."
}
},
{
"from_name": null,
"id": "886758b9a33b4495b3bd8702440820fe",
"to_name": null,
"type": null,
"value": {
"end": 5221,
"labels": [
"FAC"
],
"start": 4774,
"text": "The respondent took the matter in further appeal to the Appellate Tribunal, and there put forward the contention that the Incometax Officer had failed to take into account a letter of the Dewan dated June 3, 1942, which gave a detailed account of the operations carried on by the estate in the rearing and maintenance of forests and that on the facts mentioned in that letter, his finding that there had been no plantation of trees was errolieous."
}
},
{
"from_name": null,
"id": "db4ca751324d4271b1e7db5867e847a3",
"to_name": null,
"type": null,
"value": {
"end": 5368,
"labels": [
"FAC"
],
"start": 5222,
"text": "By its order dated April 9, 1946, the Tribunal accepted this contention, and directed a fresh enquiry into the facts mentioned in the said letter."
}
},
{
"from_name": null,
"id": "b6d2479f0613437d9f6c48f312dcee43",
"to_name": null,
"type": null,
"value": {
"end": 5448,
"labels": [
"FAC"
],
"start": 5368,
"text": "\n Pursuant to this order, the Income-tax Officer again enquired into the matter."
}
},
{
"from_name": null,
"id": "f8f7be9892294a37a787d618db452bae",
"to_name": null,
"type": null,
"value": {
"end": 5722,
"labels": [
"FAC"
],
"start": 5449,
"text": "He observed that though he gave ample opportunities to the respondent to prove that there was plantation of trees by the estate, no materials were placed in proof of that fact and that neither -plantation books nor any working plans for timber plantation had been produced."
}
},
{
"from_name": null,
"id": "16ae65aa06ec43e1a5b9bfb6bd3b1de2",
"to_name": null,
"type": null,
"value": {
"end": 5833,
"labels": [
"FAC"
],
"start": 5723,
"text": "He accordingly held that the forests had grown naturally, and that the income therefrom was assessable to tax."
}
},
{
"from_name": null,
"id": "3971bb4f60144c1abd16e4702e219ba6",
"to_name": null,
"type": null,
"value": {
"end": 5907,
"labels": [
"FAC"
],
"start": 5834,
"text": "On this report, the appeal again came up for hearing before the Tribunal."
}
},
{
"from_name": null,
"id": "d40e22a09d7f4541b42fb669ba4486bf",
"to_name": null,
"type": null,
"value": {
"end": 6273,
"labels": [
"ARG_RESPONDENT"
],
"start": 5908,
"text": "The main contention urged by the respondent at the hearing was that the facts showed that the forests which had yielded income during the year,' of account could not have been the virgin forests which had originally grown spontaneously on the hills, because they had been periodically denuded by the hill tribes in the process of Podu cultivation carried on bythem."
}
},
{
"from_name": null,
"id": "e25173a9d1e845359269ea3c0754c714",
"to_name": null,
"type": null,
"value": {
"end": 6610,
"labels": [
"ARG_RESPONDENT"
],
"start": 6274,
"text": "What this Podu cultivation means is thus stated in the ]District Gazetteer, Vishakapatnam, 1907: \" This consists in felling a piece of jungle, burning the felled trees and undergrowth, sowing dry grain broadcast in the ashes (without any kind of tilling) for two years in succession, and then abandoning the plot for another elsewhere.\""
}
},
{
"from_name": null,
"id": "60c0a1ea446644f5ba7078842fb48873",
"to_name": null,
"type": null,
"value": {
"end": 6914,
"labels": [
"ARG_RESPONDENT"
],
"start": 6611,
"text": "The argument of the respondent was that as a result of the Podu cultivation, the original forests should have disappeared and that the trees that had subsequently grown into forest and sold as timber must have been planted by human agency and their sale proceeds must accordingly be agricultural income."
}
},
{
"from_name": null,
"id": "36c5f4f41f2945a1a731b55af31a6771",
"to_name": null,
"type": null,
"value": {
"end": 7575,
"labels": [
"FAC"
],
"start": 6915,
"text": "Dealing with this contention, the Tribunal observed that though there had been extensive destruction of forests in the process of Podu cultivation, nevertheless, considerable areas of virgin forests still survived, that the evidence of actual cultivation and plantation by the zamin authorities was meagre and unsubstantial, that no expenses were shown to have been incurred on this account prior to 1904, that the amount shown as spent during that year was negligible, that the trees planted then could not have been the trees sold as timber during the assessment years, and that the respondent bad failed to establish facts on which he could claim exemption."
}
},
{
"from_name": null,
"id": "0c01542b267b4403aa0e75818f274987",
"to_name": null,
"type": null,
"value": {
"end": 7762,
"labels": [
"ANALYSIS"
],
"start": 7576,
"text": "It should be mentioned that this order covered the assessments for five years from 1942-43 to 1946-47, the facts relating to the character of the income being the same for all the years."
}
},
{
"from_name": null,
"id": "e3ada838edf84825b74efca482aee07e",
"to_name": null,
"type": null,
"value": {
"end": 8019,
"labels": [
"FAC"
],
"start": 7763,
"text": "On the application of the respondent, the Tribunal referred the following question for the decision of the High Court : \" Whether on the facts and in the circumstances the income derived from forest in this case is taxable under the Indian Income-tax Act.\""
}
},
{
"from_name": null,
"id": "0296dbe3985147479fed2cbe654ec38b",
"to_name": null,
"type": null,
"value": {
"end": 8112,
"labels": [
"RLC"
],
"start": 8019,
"text": "\nThe reference was heard by Panigrahi, C. J., and Misra, J., who answered it in the negative."
}
},
{
"from_name": null,
"id": "bc96bcc579754fb9aeca21d9c3fd5401",
"to_name": null,
"type": null,
"value": {
"end": 8213,
"labels": [
"RLC"
],
"start": 8113,
"text": "They observed : \" It appears to us that the cases as set out by both parties have been put too high."
}
},
{
"from_name": null,
"id": "8ef08bd115fc4d7fa01905c0bd8cefba",
"to_name": null,
"type": null,
"value": {
"end": 8374,
"labels": [
"RLC"
],
"start": 8214,
"text": "The department takes the view that unless there is actual cultivation of thesoil the income from the forest trees cannot be regard. ,led as agricultural income."
}
},
{
"from_name": null,
"id": "1d942c8b154d40ffb5c4e882c2657927",
"to_name": null,
"type": null,
"value": {
"end": 8610,
"labels": [
"RLC"
],
"start": 8375,
"text": "The fact that the assessee has spent some money and planted valuable trees in some areas is not sufficient to free the income out of the extensive forests which owe their existence to spontaneous growth, from its liability to taxation."
}
},
{
"from_name": null,
"id": "7830731eba624284913e303f63510ed1",
"to_name": null,
"type": null,
"value": {
"end": 8904,
"labels": [
"RLC"
],
"start": 8611,
"text": "The assessee on the other hand seeks to create an impression that there is not a single tree of spontaneous growth, in these forests, and such trees as now constitute forests have sprung up out of the stumps left by the hillmen as a result of the system of I Podu' cultivation adopted by them."
}
},
{
"from_name": null,
"id": "172ad1f2f85c4155a92897ac7010b26a",
"to_name": null,
"type": null,
"value": {
"end": 8990,
"labels": [
"RLC"
],
"start": 8905,
"text": "It appears to us that neither of these claims can be regarded as precise or correct.\""
}
},
{
"from_name": null,
"id": "6c373a8f6c094ce9a50c5497efc28dd0",
"to_name": null,
"type": null,
"value": {
"end": 10054,
"labels": [
"RLC"
],
"start": 8990,
"text": "\nThe learned Judges then observed that the forests in the Koraput area had been under Podu cultivation for a long period, and that as the result of that cultivation they had practically disappeared even by the year 1870, that the trees had subsequently grown into forests and they had also been destroyed by about the year 1901, and that therefore there could not have been any virgin forest left surviving.\nThen they referred to the fact that the respondent had been maintaining a large establishment for the preservation of the forests, and that there had been organised activities (1) \" in fostering the growth of the trees and preserving them from destruction by man and cattle; (2) in cultivation of the soil by felling and burning trees from time to time; (3) in planned exploitation of trees by marking out the areas into blocks; (4) in systematic cutting down of trees of particular girth and at particular heights; (5) in planting new trees where patches occur; and (6) in watering, pruning, dibbling and digging operations carried on from time to time \"."
}
},
{
"from_name": null,
"id": "86ef3a15c44a4ecc9a2880f22cc115ac",
"to_name": null,
"type": null,
"value": {
"end": 10362,
"labels": [
"RLC"
],
"start": 10055,
"text": "And they stated their conclusion thus: \" All these and similar operations which have been undertaken by the assessee through his huge forest establishment, show that there has been both cultivation of the soil as well as application of human skill and labour, both upon the land and on the trees themselves."
}
},
{
"from_name": null,
"id": "bee982431ff846a39c2b339b8e2b6750",
"to_name": null,
"type": null,
"value": {
"end": 10439,
"labels": [
"RLC"
],
"start": 10363,
"text": "It cannot be assumed therefore that all the trees are of spontaneous growth."
}
},
{
"from_name": null,
"id": "27810f2194d84df79da77ae74c11eb93",
"to_name": null,
"type": null,
"value": {
"end": 10546,
"labels": [
"RLC"
],
"start": 10440,
"text": "The indications, onthe other hand, appear to be that most of them are sprouts springing from burnt stumps."
}
},
{
"from_name": null,
"id": "dcd01fa2d7fd44d48bd82704f2368ccf",
"to_name": null,
"type": null,
"value": {
"end": 10713,
"labels": [
"RLC"
],
"start": 10547,
"text": "There is no basis for the assumption made by the Income-tax Department that all the trees are forty years old and that they owe their existence to spontaneous growth."
}
},
{
"from_name": null,
"id": "c1233782051d48c8addb63fb506c7502",
"to_name": null,
"type": null,
"value": {
"end": 11023,
"labels": [
"RLC"
],
"start": 10714,
"text": "Apart from that it will be noticed that what distinguishes the present case from all the reported decisions is that practically the whole of the forest area has been subjected to process of 'Podu' cultivation spreading over several decades so that it is impossible to say that there is any virgin forest left."
}
},
{
"from_name": null,
"id": "dcdddeb455a448eaaa29baa20bd08ee6",
"to_name": null,
"type": null,
"value": {
"end": 11417,
"labels": [
"RLC"
],
"start": 11023,
"text": "\nThe onus was certainly upon the department to prove that the income derived from the forest was chargeable, to tax and fell outside the scope of the exemption mentioned in Section 4(3)(viii).\"\nIn this view, they held that the Department had failed -to establish that the income derived from the sale of trees was not agricultural income, and answered the reference in favour of the respondent."
}
},
{
"from_name": null,
"id": "3e96ef271df349fba4dfe66a6d7778ff",
"to_name": null,
"type": null,
"value": {
"end": 11559,
"labels": [
"RLC"
],
"start": 11418,
"text": "The learned Judges, however, granted a certificate to the appellant under s. 66(A)(2) of the Act, and that is how the appeal comes before us."
}
},
{
"from_name": null,
"id": "9f58df36366f420cab1caedd7d01119e",
"to_name": null,
"type": null,
"value": {
"end": 11752,
"labels": [
"ANALYSIS"
],
"start": 11559,
"text": "\nAt the very outset, we should dissent from the view expressed by the learned Judges that the burden is on the Department to prove that the income sought to be taxed is not agricultural income."
}
},
{
"from_name": null,
"id": "686a6230c7944a9ea7844ee9c82d2c1a",
"to_name": null,
"type": null,
"value": {
"end": 11944,
"labels": [
"ANALYSIS"
],
"start": 11753,
"text": "The law is well settled that it is for a person who claims exemption to establish it, and there is no reason why it should be otherwise when the exemption claimed is under the Income-tax Act."
}
},
{
"from_name": null,
"id": "7f22051a3f244cb58ea5ada0cfeeb514",
"to_name": null,
"type": null,
"value": {
"end": 12464,
"labels": [
"ANALYSIS"
],
"start": 11945,
"text": "The learned Judges were of the opinion that their conclusion followed on the principle of the law of Income-tax that \" where an exemption is conferred by a statute, the State must not get the tax either directly or indirectly \", and support for this view was sought in the following observations of Lord Somervell, L. J., in Australian Mutual Provident Society v. Inland Revenue Commissioners (1): \" The rule must be construed together with the exempting provisions which, in our opinion, must be regarded as paramount."
}
},
{
"from_name": null,
"id": "c94a20b6899c4b2a8edae4a7149b0b2d",
"to_name": null,
"type": null,
"value": {
"end": 12761,
"labels": [
"ANALYSIS"
],
"start": 12465,
"text": "So far as the rule, if taken (I) [1946] 1 All E.R. 528.in isolation, would have the effect of indirectly depriving the company of any part of the benefit of the exemption, its operation must be cut down, so as to prevent any such result, and to allow the exemption to operate to its full extent.\""
}
},
{
"from_name": null,
"id": "8f9669e88ffd4277be03ebc715e030dc",
"to_name": null,
"type": null,
"value": {
"end": 12849,
"labels": [
"ANALYSIS"
],
"start": 12761,
"text": "\nThese observations have, in our opinion, no bearing on the question of burden of proof."
}
},
{
"from_name": null,
"id": "06080607fc2e4156b474acb9c25fcc64",
"to_name": null,
"type": null,
"value": {
"end": 13065,
"labels": [
"ANALYSIS"
],
"start": 12850,
"text": "They merely lay down a rule of construction that in determining the scope of a rule, regard must be had to the exemptions engrafted thereon, and that the rule must be so construed as not to nullify those exemptions."
}
},
{
"from_name": null,
"id": "93ed0806100c40268f9f3e63bc0705f9",
"to_name": null,
"type": null,
"value": {
"end": 13095,
"labels": [
"ANALYSIS"
],
"start": 13066,
"text": "No such question arises here."
}
},
{
"from_name": null,
"id": "f44407c9b03c4e08a8ac67db76078fce",
"to_name": null,
"type": null,
"value": {
"end": 13308,
"labels": [
"ANALYSIS"
],
"start": 13096,
"text": "There is ample authority for the view that the principle that a person who claims the benefit of an exemption has to establish it, applies when the exemption claimed is under the provisions of the Income-tax Act."
}
},
{
"from_name": null,
"id": "e0ae2e99e68048e6b90d611e44da500a",
"to_name": null,
"type": null,
"value": {
"end": 13632,
"labels": [
"PRE_RELIED"
],
"start": 13309,
"text": "Vide the observations of the Lord President and of Lord Adam in Maughan v. Free Church of Scotland (1) and the observations of Lord Hanworth, M. R., in Keren Kayemeth Le Jisroel Ltd. v. The Commissioners of Inland Revenue (2) at p. 36 that \" the right to exemption under Section 37 must be established by those who seek it."
}
},
{
"from_name": null,
"id": "ccda4254ba354d53ab0907c738589811",
"to_name": null,
"type": null,
"value": {
"end": 13972,
"labels": [
"PRE_RELIED"
],
"start": 13632,
"text": "\nThe onus therefore lies upon the Appellants \", and of Lord Macmillian at p. 58 that, \" In my opinion, the Appellants, have failed to bring it within any one of these categories and consequently have failed in what was essential for them to make out, namely, that this Company is a body of persons established for charitable purposes only.\""
}
},
{
"from_name": null,
"id": "e76e1a7e8dc94a06af40964d16d23ee9",
"to_name": null,
"type": null,
"value": {
"end": 14120,
"labels": [
"ANALYSIS"
],
"start": 13972,
"text": "\nThe decisions of Indian Courts have likewise ruled and quite rightly that it is for those who seek exemption under s. 4 of the Act to establish it."
}
},
{
"from_name": null,
"id": "2b3f9bc50d55402da6d8fbfbc15a9372",
"to_name": null,
"type": null,
"value": {
"end": 14156,
"labels": [
"PRE_RELIED"
],
"start": 14121,
"text": "Vide Amritsar Produce Exchange Ltd."
}
},
{
"from_name": null,
"id": "9fd28952efd649c093fa57cc46b4d3f5",
"to_name": null,
"type": null,
"value": {
"end": 14213,
"labels": [
"PRE_RELIED"
],
"start": 14157,
"text": "In re (3) and Sm. Charusila Dassi and others, In re (4)."
}
},
{
"from_name": null,
"id": "fa597717fae14f749c355148cc7ce12f",
"to_name": null,
"type": null,
"value": {
"end": 14371,
"labels": [
"PRE_RELIED"
],
"start": 14214,
"text": "So far as exemption under s. 4(3) (viii) is concerned, the matter is concluded by a decision of this Court given subsequent to the decision now under appeal."
}
},
{
"from_name": null,
"id": "8640222043e84199a1fa089d8cc3dcf9",
"to_name": null,
"type": null,
"value": {
"end": 14787,
"labels": [
"PRE_RELIED"
],
"start": 14372,
"text": "In Commissioner of Income-tax v. Venkataswamy Naidu (5), this Court held, reversing the judgment of the High Court of Madras, that it (1) (1803) 3 Tax Cas. 207, 21 O. (2) (1931) 17 Tax CaS. 27.\n(3) [1937] 5 I.T.R. 307, 327. (4) [1946] 14 I.T.R. 362, 370.\n(5) [1956] 29 I.T.R. 529, 534.was for the assessee to prove that the income sought to be taxed was agricultural income exempt from taxation under s.\n4(3)(viii)."
}
},
{
"from_name": null,
"id": "b00a315a26994b0ab120a7d0c4e9a25c",
"to_name": null,
"type": null,
"value": {
"end": 15106,
"labels": [
"PRE_RELIED"
],
"start": 14788,
"text": "Bhacgwati, J., delivering the' judgment of the Court observed: \" ... the High Court erroneously framed the question in the negative form and placed the burden on the Income-tax Authorities of proving that the income from the sale of milk received by the assessee during the accounting year was not agricultural income."
}
},
{
"from_name": null,
"id": "582377af8d7f4804bc692ac691c6a3ad",
"to_name": null,
"type": null,
"value": {
"end": 15423,
"labels": [
"PRE_RELIED"
],
"start": 15107,
"text": "In order to claim an exemption from payment of incometax in respect of what the assessee considered agricultural income, the assessee had to put before the Income-tax Authorities proper materials which would enable them to come to a conclusion that the income which was sought to be assessed was agricultural income."
}
},
{
"from_name": null,
"id": "fb70f9b45b024235b0ceefeb87735c10",
"to_name": null,
"type": null,
"value": {
"end": 15511,
"labels": [
"PRE_RELIED"
],
"start": 15424,
"text": "It was not for the Income-tax Authorities to prove that it was not agricultural income."
}
},
{
"from_name": null,
"id": "b3c28991c7304b599e29369ae9020b98",
"to_name": null,
"type": null,
"value": {
"end": 15640,
"labels": [
"PRE_RELIED"
],
"start": 15512,
"text": "It was this wrong approach to the question which vitiated the judgment of the High Court and led it to an erroneous conclusion.\""
}
},
{
"from_name": null,
"id": "7200d6f14a3040358f740e9b3578c0ca",
"to_name": null,
"type": null,
"value": {
"end": 15865,
"labels": [
"PRE_RELIED"
],
"start": 15640,
"text": "\nOn the inerits, the question what is agricultural income within s. 2(1) of the Act is the subject of a recent decision of this Court in The Commissioner of Income-tax, West Bengal, Calcutta v. Raja Benoy Kumar Sahas Roy (1)."
}
},
{
"from_name": null,
"id": "54b639e2b4c84ad0bb9255757c8ade2c",
"to_name": null,
"type": null,
"value": {
"end": 16711,
"labels": [
"PRE_RELIED"
],
"start": 15865,
"text": "\nThere, it was held that before an income could be held to be agricultural income, it must be shown to have been derived from land by agriculture or by one or the other of the operations described in cls. (i) and (ii) of s. 2(1)(b) of the Act, that the term St agriculture \" meant, in its ordinary sense, cultivation of the field, that in that sense it would connote such basic operations as tilling of the land, sowing of trees, plantation and the like, and that though subsequent operations such as weeding, pruning, watering, digging the soil around the growth and removing undergrowths could be regarded as agricultural operations when they are taken in conjunction with and as continuation of the basic operations mentioned before, they could not, apart from those operations, be regarded as bearing the character of agricultural operations."
}
},
{
"from_name": null,
"id": "c669f48911de450796f29dd32f7f0fcd",
"to_name": null,
"type": null,
"value": {
"end": 17049,
"labels": [
"PRE_RELIED"
],
"start": 16711,
"text": "\n(1) [1958] S.C.R. 101, 155, 158, 160.It is only \" observed Bhagwati, J., delivering the judgment of the Court, \" if the products are raised from the land by the performance of these basic operations that the subsequent operations attach themselves to the products of the land and acquire the characteristic of agricultural operations...\""
}
},
{
"from_name": null,
"id": "d4468538c9a343dc925f22ed6963ae03",
"to_name": null,
"type": null,
"value": {
"end": 17182,
"labels": [
"PRE_RELIED"
],
"start": 17049,
"text": "\n\" But if these basic operations are wanting the subsequent operations do not acquire the characteristic of agricultural operations.\""
}
},
{
"from_name": null,
"id": "bfd6b71b8bff45cdbd91df80ebe19ada",
"to_name": null,
"type": null,
"value": {
"end": 17489,
"labels": [
"PRE_RELIED"
],
"start": 17182,
"text": "\nDealing with trees which grow wild, Bhagwati, J., observed : \" It is agreed on all hands that products which grow wild on the land or are of spontaneous growth not involving any human labour or skill upon the land are not products of agriculture and the income derived therefrom is not agricultural income."
}
},
{
"from_name": null,
"id": "4c78068dac7a4a31816699827aa9d250",
"to_name": null,
"type": null,
"value": {
"end": 17582,
"labels": [
"PRE_RELIED"
],
"start": 17490,
"text": "There is no process of agriculture involved in the raising of these products from the land.\""
}
},
{
"from_name": null,
"id": "231655c4b8c6401bad427f1c3c6962e7",
"to_name": null,
"type": null,
"value": {
"end": 17875,
"labels": [
"ANALYSIS"
],
"start": 17582,
"text": "\nThe law being thus settled, in order to decide whether the income received by the respondent by the sale of trees in his forests was agricultural income or not, the crucial question to be answered is, were those trees planted by the proprietors of the estate, or did they grow spontaneously ?"
}
},
{
"from_name": null,
"id": "b9eca738b3ed4d6dbca13e9ec2876f7b",
"to_name": null,
"type": null,
"value": {
"end": 18158,
"labels": [
"ANALYSIS"
],
"start": 17875,
"text": "\nIf it is the latter, it would be wholly immaterial that the respondent has maintained a large establishment for the purpose of preserving the forests and assisting in the growth of the trees, because ex hypothes, he performed no basic operations for bringing the forests into being."
}
},
{
"from_name": null,
"id": "0f67095193ef478eb27f05f016fc31bf",
"to_name": null,
"type": null,
"value": {
"end": 18400,
"labels": [
"ANALYSIS"
],
"start": 18159,
"text": "Now, the Tribunal has clearly found that there were no plantations of trees by the estate authorities worth the name, and that the trees, the income from which is the subject matter of the assessments, must have been of sponta- neous growth."
}
},
{
"from_name": null,
"id": "693aa3e8044f4b2cacb51520b3a79037",
"to_name": null,
"type": null,
"value": {
"end": 18498,
"labels": [
"ANALYSIS"
],
"start": 18401,
"text": "That is a finding of fact which is binding on the Court in a reference under s. 66(1) of the Act."
}
},
{
"from_name": null,
"id": "734f18869083472d91cedaa3b29d1fb2",
"to_name": null,
"type": null,
"value": {
"end": 18655,
"labels": [
"ANALYSIS"
],
"start": 18499,
"text": "The learned Judges declined to accept this finding, because they considered that the Tribunal had not appreciated the true significance of Podu cultivation."
}
},
{
"from_name": null,
"id": "9341cab77acd405db6e0eeca04922aec",
"to_name": null,
"type": null,
"value": {
"end": 18696,
"labels": [
"ANALYSIS"
],
"start": 18656,
"text": "That, in our opinion, is a misdirection."
}
},
{
"from_name": null,
"id": "5fc945994078491889ff356f8750590f",
"to_name": null,
"type": null,
"value": {
"end": 18884,
"labels": [
"ANALYSIS"
],
"start": 18697,
"text": "If the point for decision had been whether the forest was a virgin forest or whether it had subsequently sprung up, the evidence relating to Podu cultivation would havebeen very material."
}
},
{
"from_name": null,
"id": "fa79614bf5ba4870ba612ffd3a17b90f",
"to_name": null,
"type": null,
"value": {
"end": 19083,
"labels": [
"ANALYSIS"
],
"start": 18885,
"text": "But the point for decision is not whether the forests were ancient and primeval, but whether they had been planted by the estate authorities, and on that, the Podu cultivation would have no bearing."
}
},
{
"from_name": null,
"id": "ce0b9525c27d4b148ab31cc8b1719a48",
"to_name": null,
"type": null,
"value": {
"end": 19165,
"labels": [
"ANALYSIS"
],
"start": 19084,
"text": "As a result of the Podu cultivation, the original forests would have disappeared."
}
},
{
"from_name": null,
"id": "41de4a6efdf04bb49bbc60bd9442c358",
"to_name": null,
"type": null,
"value": {
"end": 19302,
"labels": [
"ANALYSIS"
],
"start": 19166,
"text": "But the question would still remain whether the forest which again sprang up was of spontaneous growth, or was the result of plantation."
}
},
{
"from_name": null,
"id": "4a980ead7df847dc886ce894897632b1",
"to_name": null,
"type": null,
"value": {
"end": 19463,
"labels": [
"ANALYSIS"
],
"start": 19303,
"text": "Now, there is no evidence that as and when the jungle had disappeared under Podu cultivation, the estate intervened and planted trees on the areas thus denuded."
}
},
{
"from_name": null,
"id": "542ec87b09794eabbce324dfc3278fa1",
"to_name": null,
"type": null,
"value": {
"end": 19692,
"labels": [
"ANALYSIS"
],
"start": 19464,
"text": "On the other hand, the learned Judges themselves found that after the destruction of the original forests in the process of Podu cultivation, there was a fresh growth of forests from the stumps of the trees which had been burnt."
}
},
{
"from_name": null,
"id": "b45961d9eb8e4549a58233e657c68d07",
"to_name": null,
"type": null,
"value": {
"end": 19794,
"labels": [
"ANALYSIS"
],
"start": 19693,
"text": "If that is the fact, then the new growth is also spontaneous and is not the result of any plantation."
}
},
{
"from_name": null,
"id": "874e4d1e64d046b08cadff2dba93dad5",
"to_name": null,
"type": null,
"value": {
"end": 20244,
"labels": [
"ANALYSIS"
],
"start": 19794,
"text": "\nIn fairness to the learned Judges, it must be observed that at the time when they heard the reference there was a conflict of judicial opinion on the question whether subsequent operations alone directed to the preservation and improvement of forests would be agricultural operations within s. 2(1) of the Act; and the view they took was that such operations when conducted on a large scale as in the present case would be within s. 2(1) of the Act."
}
},
{
"from_name": null,
"id": "6154ae3c76924166a59e49e630fd8714",
"to_name": null,
"type": null,
"value": {
"end": 20381,
"labels": [
"ANALYSIS"
],
"start": 20245,
"text": "It was in that view that they observed that \"it is therefore idle to regard tilling as the sole and indispensable test of agriculture \"."
}
},
{
"from_name": null,
"id": "1d91fe96743c491897343b885fad90f8",
"to_name": null,
"type": null,
"value": {
"end": 20711,
"labels": [
"ANALYSIS"
],
"start": 20382,
"text": "The decision of the learned Judges was really based on the view that though trees in the forest had not been planted by the estate authorities, the latter had performed subequent operations of a substantial character for the maintenance and improvement of the forest, and that, in consequence, the income was agricultural income."
}
},
{
"from_name": null,
"id": "274973af97d941ae918982de18c10822",
"to_name": null,
"type": null,
"value": {
"end": 20872,
"labels": [
"PRE_RELIED"
],
"start": 20712,
"text": "This view is no longer tenable in view of the decision of this Court in The Commissioner of Income-tax, West Bengal, Calcutta v. Raja Benoy Kumar Sahas Roy (1)."
}
},
{
"from_name": null,
"id": "e8ef5d97fb4d4b1781ace9d6a1214844",
"to_name": null,
"type": null,
"value": {
"end": 21393,
"labels": [
"ARG_RESPONDENT"
],
"start": 20872,
"text": "\nIt is contended by Mr. Viswanatha Sastri for the (1) [1958] S.C.R. 101, 155, 158, 160.186 respondent that on the facts established in the evidence, the proper conclusion to come to is that the trees sold by the respondent had been planted by the estate authorities, and that the decision of the High Court that the income thus realised is within the exemption under s. 4(3)(viii) could be supported even on the view of law taken in The Commissioner of Income-tax, West Bengal, Calcutta v. Raja Benoy Kumar Sahas Roy (1)."
}
},
{
"from_name": null,
"id": "fa437f756aaf4e77893d34c86075d179",
"to_name": null,
"type": null,
"value": {
"end": 22249,
"labels": [
"ARG_RESPONDENT"
],
"start": 21394,
"text": "The argument was that there was unimpeachable evidence that the old forests had disappeared under Podu cultivation, that the estate had been regularly engaged in planting trees at least from the year 1904 as is shown by the accounts of the zamin, that it was a reasonable inference to make that there had been similar plantations even during the years prior to 1904 notwithstanding that no accounts were produced for those years, because it would not be reasonable to expect that such accounts would now be available, that though the amount shown as spent for plantation might not be considerable, that was understandable when regard is bad to the fact that the agricultural operations were conducted on the hills and not on the plains, that, on these facts, it would be proper to conclude that the forests were in their entirety the result of plantation."
}
},
{
"from_name": null,
"id": "ce271460269d4879a59a71f676e868ee",
"to_name": null,
"type": null,
"value": {
"end": 22369,
"labels": [
"ARG_RESPONDENT"
],
"start": 22250,
"text": "It would be ail erroneous approach, it was argued, to call upon the assessee to prove tree by tree that it was planted."
}
},
{
"from_name": null,
"id": "d973c2bf388d4bb6b0813ca9ae4e38ed",
"to_name": null,
"type": null,
"value": {
"end": 22546,
"labels": [
"ANALYSIS"
],
"start": 22370,
"text": "Now, these are matters of appreciation of evidence on what is essentially a question of fact, viz., whether the trees were of spontaneous growth or were products of plantation."
}
},
{
"from_name": null,
"id": "a6c0e51804774205ba1fa2f6f6a7389e",
"to_name": null,
"type": null,
"value": {
"end": 22737,
"labels": [
"ANALYSIS"
],
"start": 22547,
"text": "On this, the Tribunal has given a clear finding on a consideration of all the material evidence, and its finding is final and not open to challenge in a reference under s. 66 (1) of the Act."
}
},
{
"from_name": null,
"id": "fab3fff8c04e47b5be7ec5b1a0116807",
"to_name": null,
"type": null,
"value": {
"end": 23175,
"labels": [
"ANALYSIS"
],
"start": 22738,
"text": "Even the learned Judges of the High Court who considered themselves free to review that finding-and, as already pointed out, without justification, could only observe that the trees must have mostly grown from the slumps left when the forests were burnt for purposes of Podu cultivations finding which is fatal to the contention now urged for the respondent that they (I) [1958] S.C.R. 101, 155, 158, 160.\n were the result of plantation."
}
},
{
"from_name": null,
"id": "bfb7dd63872147619540797b6a7dc816",
"to_name": null,
"type": null,
"value": {
"end": 23296,
"labels": [
"ANALYSIS"
],
"start": 23176,
"text": "We are of opinion that there are no grounds on which the finding of the Tribunal could be attacked in these proceedings."
}
},
{
"from_name": null,
"id": "7499682e40aa4ef49fd0be4aac7e8202",
"to_name": null,
"type": null,
"value": {
"end": 23514,
"labels": [
"ARG_RESPONDENT"
],
"start": 23296,
"text": "\n It remains to deal with one other contention urged on behalf of the respondent, and that is based on the fact that the amounts spent in the upkeep of the forrests were large in comparison with the receipts therefrom."
}
},
{
"from_name": null,
"id": "887bfcb2f3bc488a969839970ad880cc",
"to_name": null,
"type": null,
"value": {
"end": 23838,
"labels": [
"ARG_RESPONDENT"
],
"start": 23515,
"text": "The following are the figures relating to the forest receipts and expenses for the years with which the present assessments are concerned: Years Receipts Expenses 1942-43 Rs. 438,894 Rs. 174,437 1943-44 Rs. 407,447 Rs. 209,895 1944-45 Rs. 552,122 Rs. 228,830 1945-46 Rs. 372,971 Rs. 247,216 1946-47 Rs. 689,366 Rs. 460,369"
}
},
{
"from_name": null,
"id": "9aa424e2d64a46afb16164e55d0cb107",
"to_name": null,
"type": null,
"value": {
"end": 24067,
"labels": [
"ARG_RESPONDENT"
],
"start": 23839,
"text": "The argument is that from the high proportion of the expenses in relation to the receipts it could be inferred that the income from trees planted by the estate formed a substantial portion of the income derived from the forests."
}
},
{
"from_name": null,
"id": "ef44727ae89745b192c6fbb3d36b9bde",
"to_name": null,
"type": null,
"value": {
"end": 24373,
"labels": [
"ARG_RESPONDENT"
],
"start": 24069,
"text": "And support for this conclusion is sought in the following observations in The Commissioner of Income-tax, West Bengal, Calcutta v. Raja Benoy Kumar Sahas Roy (1): \" The expenditure shown by the assessee for the maintenance of the forest is about Rs. 17,000 as against a total income of about Rs. 51,000."
}
},
{
"from_name": null,
"id": "b2c98e5be56e476889ad5de5f772cb2d",
"to_name": null,
"type": null,
"value": {
"end": 24544,
"labels": [
"ARG_RESPONDENT"
],
"start": 24374,
"text": "Having regard to the magnitude of this figure, we think that a substantial portion of the income must have been derived from trees planted by the proprietors themselves.\""
}
},
{
"from_name": null,
"id": "11b7bf901cdb46f8b01aef6786863b38",
"to_name": null,
"type": null,
"value": {
"end": 24654,
"labels": [
"ANALYSIS"
],
"start": 24546,
"text": "To appreciate the true import of these observations, we must have regard to the context in which they occur."
}
},
{
"from_name": null,
"id": "ae1f6223b9ef4d4e8e7199d7f1cee538",
"to_name": null,
"type": null,
"value": {
"end": 25061,
"labels": [
"ANALYSIS"
],
"start": 24655,
"text": "The facts found in that case were that portions of the forest which was originally of spontaneous growth had gradually been denuded, that the propritor had planted trees in the areas so denuded, that this had gone on for a period of over 150 years, and that therefore \" the whole of the income derived from (1) [1958] S.C.R. 101, 155, 158, 160.\n the forest cannot be treated as non-agricultural income \".\n "
}
},
{
"from_name": null,
"id": "b3dafcc45bbc4b9392eb5dc91bd62a60",
"to_name": null,
"type": null,
"value": {
"end": 25450,
"labels": [
"ANALYSIS"
],
"start": 25061,
"text": "It was then observed that \" If the enquiry had been directed on proper lines, it would have been possible for the Income- tax authorities to ascertain how much of the income is attributable to forest of a spontaneous growth and how much to trees Planted by the proprietors \", but that, in view of the long lapse of time, it was not desirable to remand the case for enquiry into the matter."
}
},
{
"from_name": null,
"id": "0b2fca062d724b8385f8b3b41828848e",
"to_name": null,
"type": null,
"value": {
"end": 25805,
"labels": [
"ANALYSIS"
],
"start": 25451,
"text": "Then follow the observations on which the respondent relies, and when read in the light of the findings that the plantations made by the proprietors were not negligible, they mean nothing more than that out of the total income a substantial portion was likely to be agricultural income, and that it was therefore not a fit case for ordering fresh enquiry"
}
},
{
"from_name": null,
"id": "29e9cfbd4d7944d08dcdafeba2039f55",
"to_name": null,
"type": null,
"value": {
"end": 25982,
"labels": [
"ANALYSIS"
],
"start": 25806,
"text": "These observations do not lay down that if considerable amounts are expended in the maintenance of forests, then it must be held that the trees were planted by the proprietors."
}
},
{
"from_name": null,
"id": "7706777f73734b2e977e5ecf132aa187",
"to_name": null,
"type": null,
"value": {
"end": 26162,
"labels": [
"ANALYSIS"
],
"start": 25983,
"text": "They only mean that if a considerable portion of the forests is found to have been planted, a substantial portion of the forest income may be taken to have been derived therefrom."
}
},
{
"from_name": null,
"id": "0e99ecb10c594de5948e49ee26fd95e2",
"to_name": null,
"type": null,
"value": {
"end": 26286,
"labels": [
"ANALYSIS"
],
"start": 26163,
"text": "And this too, it must be remarked, is only a presumption of fact, the strength of which must depend on all the facts found."
}
},
{
"from_name": null,
"id": "158673fffe114af3a06180a1c16bb6cb",
"to_name": null,
"type": null,
"value": {
"end": 26503,
"labels": [
"ANALYSIS"
],
"start": 26287,
"text": "In the face of the clear finding in the present case that the forests with which the assessment years are concerned were of spontaneous growth, the observations quoted above can be of no assistance to the respondent."
}
},
{
"from_name": null,
"id": "c494c4406f8d4cd68ce86611f73ffbe5",
"to_name": null,
"type": null,
"value": {
"end": 26993,
"labels": [
"RATIO"
],
"start": 26504,
"text": "It is scarcely necessary to add that the observations \" If the enquiry bad been directed on proper lines, it would have been possible for the Income-tax authorities to ascertain how much of the income is attributable to forest of spontaneous growth and how much to trees planted by the proprietors \" quoted above cannot be read, as was sought to be done for the respondent, as throwing on the Department the burden of showing that the income sought to be taxed was not agricultural income."
}
},
{
"from_name": null,
"id": "bddb344a0bea488ea48e6913bd6af617",
"to_name": null,
"type": null,
"value": {
"end": 27168,
"labels": [
"RATIO"
],
"start": 26994,
"text": "That, in their context, is not the true meaning of the observations, and the law is as laid down in Commissioner of Income-tax v. Venkataswamy Naidu (1) [1956] 29 I.T.R. 529,"
}
},
{
"from_name": null,
"id": "3aa036d2f6614268bbf91784615cd5ab",
"to_name": null,
"type": null,
"value": {
"end": 27186,
"labels": [
"RPC"
],
"start": 27169,
"text": "534.In the result"
}
},
{
"from_name": null,
"id": "25b04c7ce23c482588d3ac9c8214f612",
"to_name": null,
"type": null,
"value": {
"end": 27303,
"labels": [
"RPC"
],
"start": 27186,
"text": ", this appeal is allowed, the order of the Court below is set aside and the reference is answered in the affirmative."
}
},
{
"from_name": null,
"id": "ec3922d11fdd40a08bad403cb1eddf3d",
"to_name": null,
"type": null,
"value": {
"end": 27383,
"labels": [
"RPC"
],
"start": 27304,
"text": "The respondent will pay the costs of the appellant here and in the Court below."
}
},
{
"from_name": null,
"id": "f6ba17a368814faaa110c635832e9750",
"to_name": null,
"type": null,
"value": {
"end": 27399,
"labels": [
"RPC"
],
"start": 27383,
"text": "\nAppeal allowed."
}
}
]
}
] | 4,136 | {
"text": "PETITIONER:\nTHE COMMISSIONER OF INCOME-TAX,BIHAR AND ORISSA\n\n Vs.\n\nRESPONDENT:\nSRI RAMAKRISHNA DEO\n\nDATE OF JUDGMENT:\n14/10/1958\n\nBENCH:\nAIYYAR, T.L. VENKATARAMA\nBENCH:\nAIYYAR, T.L. VENKATARAMA\nGAJENDRAGADKAR, P.B.\nSARKAR, A.K.\n\nCITATION:\n\n1959 AIR 239 1959 SCR Supl. (1) 176\n (12)\nCITATOR INFO :\n\nR 1965 SC 568\n\nACT:\n\n Income Tax-Forest trees-Income from sale of-Whether\n agricultural income-Exemption from taxation-Burden of proof-\n Findings of the Tribunal-When binding on High Court-Indian\n Income-tax Act, 1922 (XI Of 1922), SS. 2(1), 4(3) (viii),\n 66(1).\n\nHEADNOTE:\nThe respondent, the proprietor of an estate, derived income\nfrom the sale of trees growing in his forests and claimed\nthat it was agricultural income as defined in s. 2(1) of the\nIndian Income-tax Act, 1922, and that it was exempt from\npayment of income-tax under s. 4(3)(viii). The Appellate\nTribunal found that the evidence to show that there was\nplantation by the estate authorities was meagre and\nunsubstantial, that the trees in question must have been of\nspontaneous growth and that the respondent had failed to\nestablish facts on which he could claim exemption. On\nreference, the High Court took the view that though trees in\nthe forest had not been planted by the estate authorities,\nthe latter had performed subsequent operations of a\nsubstantial character for the maintenance and improvement of\nthe forest, and that the income was, therefore, agricultural\nincome. It also held that the onus was on the income-tax\nauthorities to prove that the income derived from the sale\nof trees was not agricultural income and that they had\nfailed to show that the income fell outside the scope of the\nexemption mentioned in s. 4(3)(viii) Of the Act.\nHeld, that the High Court erred in placing the burden on the\nincome-tax authorities to prove that the income sought to be\ntaxed was not agricultural income. The principle has been\nwell established that where a person claims the benefit of\nan exemption under the provisions of the Act, he has to\nestablish it.Commissioner of Income-tax v. Venkataswamy Naidu, [1956]\n291.T.R. 529, followed.\nThe question whether the trees were of spontaneous growth or\nwere products of plantation was essentially a question of\n\nfact and the finding of the Tribunal on this point was\nbinding on the High Court in a reference under s. 66(1) of\nthe Act.\nHeld, further, that the income received by the respondent by\nthe sale of trees in his forests was not agricultural income\nas the trees had not been planted by him, and that it was\nimmaterial that he had maintained a large establishment for\nthe purpose of preserving the forests and assisting in the\ngrowth of the trees.\n\n The Commissioner of Income-tax, West Bengal, Calcutta v.\nRaja Benoy Kumar Sahas Roy, [1958] S.C.R. 101, explained and\nfollowed.\n\nJUDGMENT:\nCIVIL APPELLATE JURISDICTION: Civil Appeal No.426 of 1957.\nAppeal from the judgment and order dated April 21, 1955, of the Orissa High Court at Cuttack in Special Jurisdiction Case No. 179 of 1951.\nA. N. Kripal, R. H. Dhebar and D. Gupta, for the appellant.\nA. V. Viswanatha Sastri, M. S. K. Sastri and R. Jagannatha Rao, for the respondent.\n1958. October 14. The Judgment of the Court was delivered by VENKATARAMA AIYAR, J.-This is an appeal against the judgment of the High Court of Orrissa in a reference under s. 66(1) of the Indian Income-tax Act, 1922, hereinafter referred to as the Act, and the point for decision is whether income received by the respondent by the sale of trees growing in his forests is agricultural income exempt from taxation under s. 4(3)(viii) of the Act.\nThe respondent is the proprietor of the impartable zamin of Jaipur in Koraput District. The estate is of the area of 12,000 sq. miles of which 1540 sq. miles are reserve forest and 100 sq. miles, protected forest. The respondent derives income from the forests by the sale of timber such as teak, salwood, lac, myrabolam, tamarind, cashewnuts and firewood.\nThere is no178 dispute either as to the receipt of such income or as to its quantum. All tat appears in the account books of the respondent. The point in controversy is as to whether this income is chargeable to tax. It is the contention of the respondent that this is agricultural income as defined ins.\n2(1) of the Act, and that it is, in consequence, exempt under s. 4(3)(viii). By his 31, 1943, the Income-tax order dated January Officer held that the forests in question had not been proved to have been planted by the respondent, that the trees were of spontaneous growth, and that the income therefrom was not within the exemption under s. 4(3)(viii); and this order was confirmed on appeal by the Appellate Assistant Commissioner. The respondent took the matter in further appeal to the Appellate Tribunal, and there put forward the contention that the Incometax Officer had failed to take into account a letter of the Dewan dated June 3, 1942, which gave a detailed account of the operations carried on by the estate in the rearing and maintenance of forests and that on the facts mentioned in that letter, his finding that there had been no plantation of trees was errolieous. By its order dated April 9, 1946, the Tribunal accepted this contention, and directed a fresh enquiry into the facts mentioned in the said letter.\n Pursuant to this order, the Income-tax Officer again enquired into the matter. He observed that though he gave ample opportunities to the respondent to prove that there was plantation of trees by the estate, no materials were placed in proof of that fact and that neither -plantation books nor any working plans for timber plantation had been produced. He accordingly held that the forests had grown naturally, and that the income therefrom was assessable to tax. On this report, the appeal again came up for hearing before the Tribunal. The main contention urged by the respondent at the hearing was that the facts showed that the forests which had yielded income during the year,' of account could not have been the virgin forests which had originally grown spontaneously on the hills, because they had been periodically denuded by the hill tribes in the process of Podu cultivation carried on bythem. What this Podu cultivation means is thus stated in the ]District Gazetteer, Vishakapatnam, 1907: \" This consists in felling a piece of jungle, burning the felled trees and undergrowth, sowing dry grain broadcast in the ashes (without any kind of tilling) for two years in succession, and then abandoning the plot for another elsewhere.\"\nThe argument of the respondent was that as a result of the Podu cultivation, the original forests should have disappeared and that the trees that had subsequently grown into forest and sold as timber must have been planted by human agency and their sale proceeds must accordingly be agricultural income. Dealing with this contention, the Tribunal observed that though there had been extensive destruction of forests in the process of Podu cultivation, nevertheless, considerable areas of virgin forests still survived, that the evidence of actual cultivation and plantation by the zamin authorities was meagre and unsubstantial, that no expenses were shown to have been incurred on this account prior to 1904, that the amount shown as spent during that year was negligible, that the trees planted then could not have been the trees sold as timber during the assessment years, and that the respondent bad failed to establish facts on which he could claim exemption. It should be mentioned that this order covered the assessments for five years from 1942-43 to 1946-47, the facts relating to the character of the income being the same for all the years. On the application of the respondent, the Tribunal referred the following question for the decision of the High Court : \" Whether on the facts and in the circumstances the income derived from forest in this case is taxable under the Indian Income-tax Act.\"\nThe reference was heard by Panigrahi, C. J., and Misra, J., who answered it in the negative. They observed : \" It appears to us that the cases as set out by both parties have been put too high. The department takes the view that unless there is actual cultivation of thesoil the income from the forest trees cannot be regard. ,led as agricultural income. The fact that the assessee has spent some money and planted valuable trees in some areas is not sufficient to free the income out of the extensive forests which owe their existence to spontaneous growth, from its liability to taxation. The assessee on the other hand seeks to create an impression that there is not a single tree of spontaneous growth, in these forests, and such trees as now constitute forests have sprung up out of the stumps left by the hillmen as a result of the system of I Podu' cultivation adopted by them. It appears to us that neither of these claims can be regarded as precise or correct.\"\nThe learned Judges then observed that the forests in the Koraput area had been under Podu cultivation for a long period, and that as the result of that cultivation they had practically disappeared even by the year 1870, that the trees had subsequently grown into forests and they had also been destroyed by about the year 1901, and that therefore there could not have been any virgin forest left surviving.\nThen they referred to the fact that the respondent had been maintaining a large establishment for the preservation of the forests, and that there had been organised activities (1) \" in fostering the growth of the trees and preserving them from destruction by man and cattle; (2) in cultivation of the soil by felling and burning trees from time to time; (3) in planned exploitation of trees by marking out the areas into blocks; (4) in systematic cutting down of trees of particular girth and at particular heights; (5) in planting new trees where patches occur; and (6) in watering, pruning, dibbling and digging operations carried on from time to time \". And they stated their conclusion thus: \" All these and similar operations which have been undertaken by the assessee through his huge forest establishment, show that there has been both cultivation of the soil as well as application of human skill and labour, both upon the land and on the trees themselves. It cannot be assumed therefore that all the trees are of spontaneous growth. The indications, onthe other hand, appear to be that most of them are sprouts springing from burnt stumps. There is no basis for the assumption made by the Income-tax Department that all the trees are forty years old and that they owe their existence to spontaneous growth. Apart from that it will be noticed that what distinguishes the present case from all the reported decisions is that practically the whole of the forest area has been subjected to process of 'Podu' cultivation spreading over several decades so that it is impossible to say that there is any virgin forest left.\nThe onus was certainly upon the department to prove that the income derived from the forest was chargeable, to tax and fell outside the scope of the exemption mentioned in Section 4(3)(viii).\"\nIn this view, they held that the Department had failed -to establish that the income derived from the sale of trees was not agricultural income, and answered the reference in favour of the respondent. The learned Judges, however, granted a certificate to the appellant under s. 66(A)(2) of the Act, and that is how the appeal comes before us.\nAt the very outset, we should dissent from the view expressed by the learned Judges that the burden is on the Department to prove that the income sought to be taxed is not agricultural income. The law is well settled that it is for a person who claims exemption to establish it, and there is no reason why it should be otherwise when the exemption claimed is under the Income-tax Act. The learned Judges were of the opinion that their conclusion followed on the principle of the law of Income-tax that \" where an exemption is conferred by a statute, the State must not get the tax either directly or indirectly \", and support for this view was sought in the following observations of Lord Somervell, L. J., in Australian Mutual Provident Society v. Inland Revenue Commissioners (1): \" The rule must be construed together with the exempting provisions which, in our opinion, must be regarded as paramount. So far as the rule, if taken (I) [1946] 1 All E.R. 528.in isolation, would have the effect of indirectly depriving the company of any part of the benefit of the exemption, its operation must be cut down, so as to prevent any such result, and to allow the exemption to operate to its full extent.\"\nThese observations have, in our opinion, no bearing on the question of burden of proof. They merely lay down a rule of construction that in determining the scope of a rule, regard must be had to the exemptions engrafted thereon, and that the rule must be so construed as not to nullify those exemptions. No such question arises here. There is ample authority for the view that the principle that a person who claims the benefit of an exemption has to establish it, applies when the exemption claimed is under the provisions of the Income-tax Act. Vide the observations of the Lord President and of Lord Adam in Maughan v. Free Church of Scotland (1) and the observations of Lord Hanworth, M. R., in Keren Kayemeth Le Jisroel Ltd. v. The Commissioners of Inland Revenue (2) at p. 36 that \" the right to exemption under Section 37 must be established by those who seek it.\nThe onus therefore lies upon the Appellants \", and of Lord Macmillian at p. 58 that, \" In my opinion, the Appellants, have failed to bring it within any one of these categories and consequently have failed in what was essential for them to make out, namely, that this Company is a body of persons established for charitable purposes only.\"\nThe decisions of Indian Courts have likewise ruled and quite rightly that it is for those who seek exemption under s. 4 of the Act to establish it. Vide Amritsar Produce Exchange Ltd. In re (3) and Sm. Charusila Dassi and others, In re (4). So far as exemption under s. 4(3) (viii) is concerned, the matter is concluded by a decision of this Court given subsequent to the decision now under appeal. In Commissioner of Income-tax v. Venkataswamy Naidu (5), this Court held, reversing the judgment of the High Court of Madras, that it (1) (1803) 3 Tax Cas. 207, 21 O. (2) (1931) 17 Tax CaS. 27.\n(3) [1937] 5 I.T.R. 307, 327. (4) [1946] 14 I.T.R. 362, 370.\n(5) [1956] 29 I.T.R. 529, 534.was for the assessee to prove that the income sought to be taxed was agricultural income exempt from taxation under s.\n4(3)(viii). Bhacgwati, J., delivering the' judgment of the Court observed: \" ... the High Court erroneously framed the question in the negative form and placed the burden on the Income-tax Authorities of proving that the income from the sale of milk received by the assessee during the accounting year was not agricultural income. In order to claim an exemption from payment of incometax in respect of what the assessee considered agricultural income, the assessee had to put before the Income-tax Authorities proper materials which would enable them to come to a conclusion that the income which was sought to be assessed was agricultural income. It was not for the Income-tax Authorities to prove that it was not agricultural income. It was this wrong approach to the question which vitiated the judgment of the High Court and led it to an erroneous conclusion.\"\nOn the inerits, the question what is agricultural income within s. 2(1) of the Act is the subject of a recent decision of this Court in The Commissioner of Income-tax, West Bengal, Calcutta v. Raja Benoy Kumar Sahas Roy (1).\nThere, it was held that before an income could be held to be agricultural income, it must be shown to have been derived from land by agriculture or by one or the other of the operations described in cls. (i) and (ii) of s. 2(1)(b) of the Act, that the term St agriculture \" meant, in its ordinary sense, cultivation of the field, that in that sense it would connote such basic operations as tilling of the land, sowing of trees, plantation and the like, and that though subsequent operations such as weeding, pruning, watering, digging the soil around the growth and removing undergrowths could be regarded as agricultural operations when they are taken in conjunction with and as continuation of the basic operations mentioned before, they could not, apart from those operations, be regarded as bearing the character of agricultural operations.\n(1) [1958] S.C.R. 101, 155, 158, 160.It is only \" observed Bhagwati, J., delivering the judgment of the Court, \" if the products are raised from the land by the performance of these basic operations that the subsequent operations attach themselves to the products of the land and acquire the characteristic of agricultural operations...\"\n\" But if these basic operations are wanting the subsequent operations do not acquire the characteristic of agricultural operations.\"\nDealing with trees which grow wild, Bhagwati, J., observed : \" It is agreed on all hands that products which grow wild on the land or are of spontaneous growth not involving any human labour or skill upon the land are not products of agriculture and the income derived therefrom is not agricultural income. There is no process of agriculture involved in the raising of these products from the land.\"\nThe law being thus settled, in order to decide whether the income received by the respondent by the sale of trees in his forests was agricultural income or not, the crucial question to be answered is, were those trees planted by the proprietors of the estate, or did they grow spontaneously ?\nIf it is the latter, it would be wholly immaterial that the respondent has maintained a large establishment for the purpose of preserving the forests and assisting in the growth of the trees, because ex hypothes, he performed no basic operations for bringing the forests into being. Now, the Tribunal has clearly found that there were no plantations of trees by the estate authorities worth the name, and that the trees, the income from which is the subject matter of the assessments, must have been of sponta- neous growth. That is a finding of fact which is binding on the Court in a reference under s. 66(1) of the Act. The learned Judges declined to accept this finding, because they considered that the Tribunal had not appreciated the true significance of Podu cultivation. That, in our opinion, is a misdirection. If the point for decision had been whether the forest was a virgin forest or whether it had subsequently sprung up, the evidence relating to Podu cultivation would havebeen very material. But the point for decision is not whether the forests were ancient and primeval, but whether they had been planted by the estate authorities, and on that, the Podu cultivation would have no bearing. As a result of the Podu cultivation, the original forests would have disappeared. But the question would still remain whether the forest which again sprang up was of spontaneous growth, or was the result of plantation. Now, there is no evidence that as and when the jungle had disappeared under Podu cultivation, the estate intervened and planted trees on the areas thus denuded. On the other hand, the learned Judges themselves found that after the destruction of the original forests in the process of Podu cultivation, there was a fresh growth of forests from the stumps of the trees which had been burnt. If that is the fact, then the new growth is also spontaneous and is not the result of any plantation.\nIn fairness to the learned Judges, it must be observed that at the time when they heard the reference there was a conflict of judicial opinion on the question whether subsequent operations alone directed to the preservation and improvement of forests would be agricultural operations within s. 2(1) of the Act; and the view they took was that such operations when conducted on a large scale as in the present case would be within s. 2(1) of the Act. It was in that view that they observed that \"it is therefore idle to regard tilling as the sole and indispensable test of agriculture \". The decision of the learned Judges was really based on the view that though trees in the forest had not been planted by the estate authorities, the latter had performed subequent operations of a substantial character for the maintenance and improvement of the forest, and that, in consequence, the income was agricultural income. This view is no longer tenable in view of the decision of this Court in The Commissioner of Income-tax, West Bengal, Calcutta v. Raja Benoy Kumar Sahas Roy (1).\nIt is contended by Mr. Viswanatha Sastri for the (1) [1958] S.C.R. 101, 155, 158, 160.186 respondent that on the facts established in the evidence, the proper conclusion to come to is that the trees sold by the respondent had been planted by the estate authorities, and that the decision of the High Court that the income thus realised is within the exemption under s. 4(3)(viii) could be supported even on the view of law taken in The Commissioner of Income-tax, West Bengal, Calcutta v. Raja Benoy Kumar Sahas Roy (1). The argument was that there was unimpeachable evidence that the old forests had disappeared under Podu cultivation, that the estate had been regularly engaged in planting trees at least from the year 1904 as is shown by the accounts of the zamin, that it was a reasonable inference to make that there had been similar plantations even during the years prior to 1904 notwithstanding that no accounts were produced for those years, because it would not be reasonable to expect that such accounts would now be available, that though the amount shown as spent for plantation might not be considerable, that was understandable when regard is bad to the fact that the agricultural operations were conducted on the hills and not on the plains, that, on these facts, it would be proper to conclude that the forests were in their entirety the result of plantation. It would be ail erroneous approach, it was argued, to call upon the assessee to prove tree by tree that it was planted. Now, these are matters of appreciation of evidence on what is essentially a question of fact, viz., whether the trees were of spontaneous growth or were products of plantation. On this, the Tribunal has given a clear finding on a consideration of all the material evidence, and its finding is final and not open to challenge in a reference under s. 66 (1) of the Act. Even the learned Judges of the High Court who considered themselves free to review that finding-and, as already pointed out, without justification, could only observe that the trees must have mostly grown from the slumps left when the forests were burnt for purposes of Podu cultivations finding which is fatal to the contention now urged for the respondent that they (I) [1958] S.C.R. 101, 155, 158, 160.\n were the result of plantation. We are of opinion that there are no grounds on which the finding of the Tribunal could be attacked in these proceedings.\n It remains to deal with one other contention urged on behalf of the respondent, and that is based on the fact that the amounts spent in the upkeep of the forrests were large in comparison with the receipts therefrom. The following are the figures relating to the forest receipts and expenses for the years with which the present assessments are concerned: Years Receipts Expenses 1942-43 Rs. 438,894 Rs. 174,437 1943-44 Rs. 407,447 Rs. 209,895 1944-45 Rs. 552,122 Rs. 228,830 1945-46 Rs. 372,971 Rs. 247,216 1946-47 Rs. 689,366 Rs. 460,369 The argument is that from the high proportion of the expenses in relation to the receipts it could be inferred that the income from trees planted by the estate formed a substantial portion of the income derived from the forests.\n And support for this conclusion is sought in the following observations in The Commissioner of Income-tax, West Bengal, Calcutta v. Raja Benoy Kumar Sahas Roy (1): \" The expenditure shown by the assessee for the maintenance of the forest is about Rs. 17,000 as against a total income of about Rs. 51,000. Having regard to the magnitude of this figure, we think that a substantial portion of the income must have been derived from trees planted by the proprietors themselves.\"\n To appreciate the true import of these observations, we must have regard to the context in which they occur. The facts found in that case were that portions of the forest which was originally of spontaneous growth had gradually been denuded, that the propritor had planted trees in the areas so denuded, that this had gone on for a period of over 150 years, and that therefore \" the whole of the income derived from (1) [1958] S.C.R. 101, 155, 158, 160.\n the forest cannot be treated as non-agricultural income \".\n It was then observed that \" If the enquiry had been directed on proper lines, it would have been possible for the Income- tax authorities to ascertain how much of the income is attributable to forest of a spontaneous growth and how much to trees Planted by the proprietors \", but that, in view of the long lapse of time, it was not desirable to remand the case for enquiry into the matter. Then follow the observations on which the respondent relies, and when read in the light of the findings that the plantations made by the proprietors were not negligible, they mean nothing more than that out of the total income a substantial portion was likely to be agricultural income, and that it was therefore not a fit case for ordering fresh enquiry These observations do not lay down that if considerable amounts are expended in the maintenance of forests, then it must be held that the trees were planted by the proprietors. They only mean that if a considerable portion of the forests is found to have been planted, a substantial portion of the forest income may be taken to have been derived therefrom. And this too, it must be remarked, is only a presumption of fact, the strength of which must depend on all the facts found. In the face of the clear finding in the present case that the forests with which the assessment years are concerned were of spontaneous growth, the observations quoted above can be of no assistance to the respondent. It is scarcely necessary to add that the observations \" If the enquiry bad been directed on proper lines, it would have been possible for the Income-tax authorities to ascertain how much of the income is attributable to forest of spontaneous growth and how much to trees planted by the proprietors \" quoted above cannot be read, as was sought to be done for the respondent, as throwing on the Department the burden of showing that the income sought to be taxed was not agricultural income.\nThat, in their context, is not the true meaning of the observations, and the law is as laid down in Commissioner of Income-tax v. Venkataswamy Naidu (1) [1956] 29 I.T.R. 529, 534.In the result, this appeal is allowed, the order of the Court below is set aside and the reference is answered in the affirmative. The respondent will pay the costs of the appellant here and in the Court below.\nAppeal allowed.\n"
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"text": " IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\n DATED THIS THE 19TH DAY OF JANUARY 2016"
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"text": "THE HON'BLE MR.JUSTICE N K PATIL"
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"text": "\n\n ITA No.902/2008\n\nBETWEEN:\n\n1."
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"text": "Commissioner of Income-tax\n Central Circle\n C R Building, Queens Road\n Bangalore"
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"text": "\n\n2. The Deputy Commissioner of Income-Tax\n\n Central Circle-1(3)\n\n C R Building, Queens Road\n\n Bangalore"
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"start": 561,
"text": "....Appellants\n\n(By Sri. K.V.Aravind, Advocate )\n\nAND\n\nM/s. Wipro GE Medical System Ltd., ....Respondent\nPlot No.4, Kadugodi Plantation\nIndustrial Area\nSadaramangala\nBangalore-560067.\n\n(By Smt. S.R. Anuradha, Advocates )\n\n This Income-tax appeal is filed under Section 260-A of\nIncome-tax Act, 1961, praying to set aside the order passed by the\nITAT, Bangalore in ITA No.810/Bang/2007, dated 16.05.2008\nconfirming the order of the Appellate Commissioner and confirm\n\nthe order passed by the Deputy Commissioner of Income-tax,\nCentral Circle-1(3), Bangalore, in the interest of justice and equity.\n\n "
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"text": "This appeal having been heard and reserved for orders on\n12TH January 2016, coming on for pronouncement of Judgment\nthis day, S.Sujatha J., delivered the following\n\n JUDGMENT\n "
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"text": "This appeal is filed by the revenue assailing the order passed by the Income Tax Appellate Tribunal (ITAT), Bangalore in ITA No.810/Bang/2007 dated 16.05.2008 for the assessment year 2002-03."
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"text": "\n 2. Facts in brief are: The respondent/assessee is a private limited company engaged in the business of manufacturing of medical diagnostic equipments and accessories, software development, trading of various products and also providing services for various medical equipments."
}
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"text": "The return of income for the assessment year 2002- 03 was filed by the assessee declaring a loss of Rs.49,39,90,600/- on 31.10.2002."
}
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"start": 2004,
"text": "Assessee claimed: (i) provision for sale expenditure in the course of commission received in respect of sales in the agency business.\n(ii) provision for warranty of Rs.52,84,504/- (iii) exchange gain fluctuation (iv) Sale Proceeds not realized within time (v) Allocation of Royalty payment (vi) Reallocation of trading expenses-EHTP-I( Electronic hard ware Technology Part-1) (vii) Exclusion from export turnover of expenditure incurred in foreign currency in providing technical services (viii) Allowability of deduction u/s.10A for STPs located at Golden Enclave (ix) Adjustment of Prior Period exenses 3."
}
},
{
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"text": "The Assessing Officer proceeded to examine each of the claim made by the assessee."
}
},
{
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],
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"text": "After consideration, the Assessing Officer concluded the assessment rejecting the claim made by the assessee."
}
},
{
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"text": "On appeal by the assessee, Appellate Commissioner allowed the appeal granting relief in favour of the assessee."
}
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{
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"text": "Being aggrieved by the said order, the revenue preferred an appeal before the ITAT."
}
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"text": "The ITAT considering the various issues raised, proceeded to follow the view expressed by it in the assessee's own case relating to the earlier assessment years and granted relief in favour of the assessee, rejecting the appeal filed by the revenue against which, the revenue is in appeal under Section 260A of the Income Tax Act, 1961 (the \"Act\" for short) raising the following substantial questions of law:"
}
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"labels": [
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"text": " 1. Whether the Appellate Authorities were correct in holding that the provision in respect of a percentage of sale to account for various expenses transferred to a separate account is an allowable expenditure even though the same is a contingent liability which has not accrued?"
}
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{
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],
"start": 3689,
"text": "\n2. Whether the Appellate Authorities were correct in holding that a provision for reserves for warranty is an allowable expenditure even though it is a contingent liability?"
}
},
{
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"id": "cb041af3e41d4cc79849887a7bf05dcc",
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"end": 4120,
"labels": [
"ISSUE"
],
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"text": "\n3. Whether the Appellate Authorities were correct in holding that the gain in exchange rate i.e. due to fluctuation cannot be excluded when computing deduction u/s.10A of the Act even though this amount had not been directly arisen in the course of export?"
}
},
{
"from_name": null,
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"to_name": null,
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"value": {
"end": 4409,
"labels": [
"ISSUE"
],
"start": 4120,
"text": "\n 4. \"Whether the Appellate Authorities were correct in holding that the sale proceeds not realized within the time of 6 months granted by the Reserve Bank of India without their being any extension cannot be excluded from the total turnover when computation deduction u/s.10A of the Act?."
}
},
{
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"value": {
"end": 4725,
"labels": [
"ISSUE"
],
"start": 4410,
"text": "5. Whether the Appellate Authorities were correct in holding that allocation of expenditure towards royalty for use of trade mark and logo to Wipro Ltd., and Monogram Licencing International Incorporated at 50:50% by the assessee should be upheld and not as worked out by the Assessing Officer based on local sales?"
}
},
{
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"id": "3e609dc3545d4396b757190041d297a1",
"to_name": null,
"type": null,
"value": {
"end": 5133,
"labels": [
"ISSUE"
],
"start": 4727,
"text": "6. Whether the Appellate Authorities were correct in holding that allocation of expenditure as worked out by the assessee on account of consumables, salary etc., on the basis of sales based on percentage should be accepted without taking into account the fact that 31.2% of sales were made through franchisers which did not require the sale percentage of expenditure as worked out by the Assessing Officer?"
}
},
{
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"id": "811101e4a8f04a228a890039c44e2f40",
"to_name": null,
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"value": {
"end": 5478,
"labels": [
"ISSUE"
],
"start": 5133,
"text": "\n 7. Whether the Appellate Authorities were correct in holding that the computation of export turnover as worked out by the Assessing Officer in accordance with Explanation 2 to Section 10A of the Act by excluding expenditure incurred in foreign currency in providing travel, salary, rent, M and B charges, Dialcom and others is not correct?\n 8."
}
},
{
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"type": null,
"value": {
"end": 5966,
"labels": [
"ISSUE"
],
"start": 5479,
"text": "Whether the Appellate Authorities were correct in holding that the finding of the Assessing Officer that the deduction claimed u/s.10A of the Act in respect of its unit at Golden Enclave which has commenced business prior to 01.04.1993 in respect of one floor and after 01.04.1993 in respect of two floors which was shifted to Hoody Village, would amount to reconstruction of business and the assessee would not be entitled to claim 10A deduction was held to be not correct?\n 9."
}
},
{
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"to_name": null,
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"value": {
"end": 6195,
"labels": [
"ISSUE"
],
"start": 5967,
"text": "Whether the Appellate Authorities were correct in holding that the adjustment entries for prior period expenses of Rs.25,57,54,378/- should be allowed despite the assessee not substantiating the claim by adducing the any proff?."
}
},
{
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"NONE"
],
"start": 6197,
"text": "Re. question No.1: 4."
}
},
{
"from_name": null,
"id": "807ea0b82ed340bf994963a14837b4c7",
"to_name": null,
"type": null,
"value": {
"end": 6693,
"labels": [
"ARG_PETITIONER"
],
"start": 6219,
"text": "Sri K V Aravind, learned counsel appearing for the revenue placing reliance on the Judgment of the Apex Court in the case of Rotork Controls India (P) Ltd. vs Commissioner of Income Tax reported in ((2009) 314 ITR 62) wherein, the assessee herein was also a party would strongly contend that, What is a provision is elaborately considered by the Apex Court and the parameters are set-out by the Apex Court to examine the recognition of provision for the purposes of the Act."
}
},
{
"from_name": null,
"id": "b34befa4b7194adaa2087af6a773f02e",
"to_name": null,
"type": null,
"value": {
"end": 7362,
"labels": [
"ANALYSIS"
],
"start": 6695,
"text": "The three Conditions to be satisfied for the recognition of the provision are: (a) an enterprise should have a present obligation as a result of past event (b) it is probable that an outflow of resources will be required to settle the obligation (c) a reliable estimate can be made out of the amount of obligation He would contend that only if these three tests laid down by the Apex Court are satisfied by the assessee, provision made relating to the percentage of sale to account for various expenses transferred to a separate account, whether is an allowable expenditure or not, would be ascertained though the same is a contingent liability which has not accrued."
}
},
{
"from_name": null,
"id": "71b28545a6124825b9ecc920bda3855d",
"to_name": null,
"type": null,
"value": {
"end": 7508,
"labels": [
"ANALYSIS"
],
"start": 7363,
"text": "None of the authorities below have examined this issue in the light of the Judgment pronounced by the Apex Court in Rotork Controls Case (supra)."
}
},
{
"from_name": null,
"id": "eda1b443489846c78afda7c0c5e8cee1",
"to_name": null,
"type": null,
"value": {
"end": 7670,
"labels": [
"ANALYSIS"
],
"start": 7509,
"text": "No finding is forth coming from the records that the assessee has satisfied the three conditions laid down by the Apex Court to claim the benefit of a provision."
}
},
{
"from_name": null,
"id": "8e59a54e578f4c8cbcaa3971f3604491",
"to_name": null,
"type": null,
"value": {
"end": 7910,
"labels": [
"ANALYSIS"
],
"start": 7671,
"text": "In such circumstances, he requests this Court to remand the matter back to the Assessing Officer so as to enable him to examine the case of the assessee in the light of the tests laid down by the Apex Court in Rotork Controls Case (supra)."
}
},
{
"from_name": null,
"id": "58f8efee59ed441cb9e17d8083a97d41",
"to_name": null,
"type": null,
"value": {
"end": 8245,
"labels": [
"ARG_RESPONDENT"
],
"start": 7910,
"text": "\n 5. On the other hand Smt.Anuradha, learned counsel appearing for the assessee would contend that all these aspects were considered by the authorities below and it is categorically held by the authorities that the provision is as per accounting standards and is based on the past experience coupled with scientific and rational basis."
}
},
{
"from_name": null,
"id": "3d4c42455dbd44b5a2dc531eaa5395ed",
"to_name": null,
"type": null,
"value": {
"end": 8441,
"labels": [
"ARG_RESPONDENT"
],
"start": 8246,
"text": "It is also contended that the department has accepted the earlier order passed by the authorities for the assessment year 1998-99 wherein similar provision was made as per standard of accounting."
}
},
{
"from_name": null,
"id": "da0c2cc883044828869862c568fd4d6b",
"to_name": null,
"type": null,
"value": {
"end": 8538,
"labels": [
"ARG_RESPONDENT"
],
"start": 8442,
"text": "Tribunal has allowed similar issue of provision in favour of the assessee and no remand is made."
}
},
{
"from_name": null,
"id": "0589a2744eb8491394d2469d4c7296cd",
"to_name": null,
"type": null,
"value": {
"end": 8617,
"labels": [
"NONE"
],
"start": 8538,
"text": "\n 6. We have considered the submissions of the learned counsel for the parties."
}
},
{
"from_name": null,
"id": "158b674cd1be47e78789b73f9fdf1846",
"to_name": null,
"type": null,
"value": {
"end": 8810,
"labels": [
"ANALYSIS"
],
"start": 8618,
"text": "This very argument was advanced by the revenue before the ITAT to remand the matter to the Assessing Officer to consider the issues in the light of the Judgment of Rotork Controls Case (supra)"
}
},
{
"from_name": null,
"id": "d9f76da19ab94551802b7c24a700c125",
"to_name": null,
"type": null,
"value": {
"end": 9050,
"labels": [
"ANALYSIS"
],
"start": 8811,
"text": "The ITAT having observed that the only reason why the Assessing Officer has disallowed the claim of the assessee is on account that the provision is contingent liability, cannot be allowed, expenditure can be allowed only on payment basis."
}
},
{
"from_name": null,
"id": "41c4da3ddf784542a075e581bb4d4d5f",
"to_name": null,
"type": null,
"value": {
"end": 9182,
"labels": [
"ANALYSIS"
],
"start": 9051,
"text": "The ITAT having considered the adequate material placed before it, thought it fit not to remit the matter to the Assessing Officer."
}
},
{
"from_name": null,
"id": "2ada09d8df594f638f800981d5e6d3a4",
"to_name": null,
"type": null,
"value": {
"end": 9326,
"labels": [
"ANALYSIS"
],
"start": 9183,
"text": "It is also noticed that the method of accounting followed by the assessee is mercantile wherein the income and expenditure is on accrual basis."
}
},
{
"from_name": null,
"id": "10052892ab794a5aaa14a1b1f6309216",
"to_name": null,
"type": null,
"value": {
"end": 9523,
"labels": [
"PRE_RELIED"
],
"start": 9327,
"text": "We have examined this issue in the light of the Judgment pronounced by the Apex Court in Rotork Controls Case (supra,) wherein the three tests are laid down to recognize a provision under the Act."
}
},
{
"from_name": null,
"id": "b5a1509ae3ce4fbf97fd3c936d70055f",
"to_name": null,
"type": null,
"value": {
"end": 9742,
"labels": [
"ANALYSIS"
],
"start": 9524,
"text": "The ITAT being a last fact finding authority has held that all these ingredients which goes to the recognition of provision are satisfied and as such, there is no need to remit the matter back to the Assessing Officer."
}
},
{
"from_name": null,
"id": "a13355afa78149dea9724e1448ba944e",
"to_name": null,
"type": null,
"value": {
"end": 9866,
"labels": [
"ANALYSIS"
],
"start": 9743,
"text": "In such circumstances, we do not see any ground made out by the revenue to remand the matter back to the Assessing Officer."
}
},
{
"from_name": null,
"id": "f7efd1a281174616bad0f8445a19a2ff",
"to_name": null,
"type": null,
"value": {
"end": 10066,
"labels": [
"ANALYSIS"
],
"start": 9867,
"text": "The claim of expenditure being consistent with the method of accounting followed and the provision has been made on concluded transactions, the order of the Assessing Officer is held to be incorrect."
}
},
{
"from_name": null,
"id": "cdc1ea65022041af9b82577f59644438",
"to_name": null,
"type": null,
"value": {
"end": 10169,
"labels": [
"ANALYSIS"
],
"start": 10067,
"text": "We do not see any reason to differ from this view, which is in accordance with Section 145 of the Act."
}
},
{
"from_name": null,
"id": "6c2b9fde331746b480c35f8011f6f45e",
"to_name": null,
"type": null,
"value": {
"end": 10191,
"labels": [
"ARG_PETITIONER"
],
"start": 10171,
"text": "Re. Question No.2 7."
}
},
{
"from_name": null,
"id": "22161ccb38884bbaa63bd206825ebacd",
"to_name": null,
"type": null,
"value": {
"end": 10465,
"labels": [
"ARG_PETITIONER"
],
"start": 10192,
"text": "The learned counsel Mr. K V Aravind appearing for the revenue reiterated the grounds urged before the ITAT and sought for remanding the matter back to the Assessing Officer to examine the issue in the light of the Judgment of the Apex Court in Rotork Controls Case (supra)."
}
},
{
"from_name": null,
"id": "6960bf6174544607932e27d62c812624",
"to_name": null,
"type": null,
"value": {
"end": 10771,
"labels": [
"ARG_RESPONDENT"
],
"start": 10465,
"text": "\n 8. Learned counsel Smt. Anuradha appearing for the assessee would contend that this issue is covered in favour of the assessee in assesse's own case by the order of this Court in ITA 438-444/12, affirmed by the Hon'ble Supreme Court in Rotork Controls Case (supra), in none of these cases remand is made."
}
},
{
"from_name": null,
"id": "59f5ff75c6674e209c18abfb331df2bd",
"to_name": null,
"type": null,
"value": {
"end": 10941,
"labels": [
"ANALYSIS"
],
"start": 10771,
"text": "\n 9. After considering the rival submissions of the learned counsel for the parties on this issue, we are of the view that this issue is similar to that of Question no.1."
}
},
{
"from_name": null,
"id": "b61fd9bd89e44357a130b0b838fefe01",
"to_name": null,
"type": null,
"value": {
"end": 11308,
"labels": [
"ANALYSIS"
],
"start": 10942,
"text": "In view of the observations made in Question No.1, we are not inclined to remit the matter back to the Assessing Officer on this issue more particularly, this issue being covered by the Judgment of the Coordinate Bench of this Court in the very same assessee's case reported in 270 ITR 259 and 278 ITR 337 confirmed by the Apex Court in Rotork Controls Case (supra)."
}
},
{
"from_name": null,
"id": "8a141a83238b4b379d64f5ac76ae3791",
"to_name": null,
"type": null,
"value": {
"end": 11331,
"labels": [
"ANALYSIS"
],
"start": 11310,
"text": "Re. Question No.3 10."
}
},
{
"from_name": null,
"id": "9c6d0c4db49f4666b41f1a92c15383e2",
"to_name": null,
"type": null,
"value": {
"end": 11542,
"labels": [
"ANALYSIS"
],
"start": 11332,
"text": "Both the learned counsel appearing for the parties agree that the issue involved in this question is covered against the revenue by the Judgment of this Court in ITA No.3202/2005 disposed of on 28.02.2012.\n 11."
}
},
{
"from_name": null,
"id": "93a6ac3e304a4f72a149d31066a375cd",
"to_name": null,
"type": null,
"value": {
"end": 11702,
"labels": [
"ANALYSIS"
],
"start": 11543,
"text": "In view of the Judgment rendered by this Court in ITA No.3202/2005 dated 28.02.2012, we answer this question against the revenue and in favour of the assessee."
}
},
{
"from_name": null,
"id": "897c0629bab24fd5940a6e707454b524",
"to_name": null,
"type": null,
"value": {
"end": 11725,
"labels": [
"ANALYSIS"
],
"start": 11704,
"text": "Re. Question No.4 12."
}
},
{
"from_name": null,
"id": "64d789e6b75f4d7d8dadfad601cc0cd7",
"to_name": null,
"type": null,
"value": {
"end": 11885,
"labels": [
"ANALYSIS"
],
"start": 11726,
"text": "Learned counsel appearing for the parties agree that this issue is directly covered by the Judgment of this Court in ITA No.879/2008 disposed of on 25.03.2015."
}
},
{
"from_name": null,
"id": "96f5c49e359642bf91f845abe7adc2cb",
"to_name": null,
"type": null,
"value": {
"end": 12087,
"labels": [
"ANALYSIS"
],
"start": 11887,
"text": "13. Following the said Judgment rendered by the Co-ordinate Bench of this Court in ITA No.879/2008 disposed of on 25.03.2015, we answer this question in favour of the assessee and against the revenue."
}
},
{
"from_name": null,
"id": "8f4a1e310b0342929eee7b961376e31a",
"to_name": null,
"type": null,
"value": {
"end": 12110,
"labels": [
"ANALYSIS"
],
"start": 12089,
"text": "Re. Question No.5 14."
}
},
{
"from_name": null,
"id": "a9ee64b7d90341ca923c427d7e6b8bd8",
"to_name": null,
"type": null,
"value": {
"end": 12321,
"labels": [
"ANALYSIS"
],
"start": 12111,
"text": "Learned counsel appearing for the revenue would contend that the ITAT negated the arguments of the revenue since similar question was considered by the ITAT in ITA No.322- 328/B/02 and held against the revenue."
}
},
{
"from_name": null,
"id": "bcc3808026534b06b2bc473413efa44d",
"to_name": null,
"type": null,
"value": {
"end": 12556,
"labels": [
"ANALYSIS"
],
"start": 12322,
"text": "A detailed inquiry is required to be made regarding expenses allocated to royalty payment with reference to the pre-existing agreements executed by the assessee with M/s Wipro Limited relied on by the assessee and accepted by the CIT."
}
},
{
"from_name": null,
"id": "e149647c92b94cb8856c3b8cc7abdfd2",
"to_name": null,
"type": null,
"value": {
"end": 12728,
"labels": [
"ANALYSIS"
],
"start": 12557,
"text": "No such exercise having been done by the authorities, he requests the matter to be remanded back to the Assessing Officer for fresh consideration to examine on this issue."
}
},
{
"from_name": null,
"id": "003a36f957e948778e84486e740a2330",
"to_name": null,
"type": null,
"value": {
"end": 12807,
"labels": [
"ANALYSIS"
],
"start": 12728,
"text": "\n 15. Learned counsel appearing for the assessee has no objections to the same."
}
},
{
"from_name": null,
"id": "8f6a6c81aeac4588b40891c05afb4cec",
"to_name": null,
"type": null,
"value": {
"end": 13071,
"labels": [
"ANALYSIS"
],
"start": 12807,
"text": "\n 16. Accordingly, we remand this issue to the Assessing Officer to examine whether allocating a portion of the royalty to EHTP Units as local sales is warranted or not after examining the pre-existing agreement entered into by the assessee with M/s Wipro Limited."
}
},
{
"from_name": null,
"id": "eca761ce3710462382154f39dc777311",
"to_name": null,
"type": null,
"value": {
"end": 13094,
"labels": [
"ANALYSIS"
],
"start": 13073,
"text": "Re. Question No.6 17."
}
},
{
"from_name": null,
"id": "b03c6b64335a457b80bb39a49cd29e15",
"to_name": null,
"type": null,
"value": {
"end": 13440,
"labels": [
"ANALYSIS"
],
"start": 13095,
"text": "Learned counsel appearing for the revenue seeks to remand this issue also to the Assessing Officer as no adequate material was made available before the authorities to come to a conclusion that the allocation of expenditure as worked out by the assessee on account of consumables, salary etc. are applicable to the sales made through franchises."
}
},
{
"from_name": null,
"id": "05a97f715ab24bd5843f0aec6400e06b",
"to_name": null,
"type": null,
"value": {
"end": 13762,
"labels": [
"ANALYSIS"
],
"start": 13440,
"text": "\n However, learned counsel appearing for the assessee would contend that Appellate Commissioner deleted the allocation of expenses made by the Assessing Officer based on the order of ITAT in the very same assessee's case reported in 81 TTJ 455 and the decision of the Apex Court in Indo Nipan Limited's case (261 ITR 775)."
}
},
{
"from_name": null,
"id": "7741c231120448fc97e9efcff9549a27",
"to_name": null,
"type": null,
"value": {
"end": 13893,
"labels": [
"ANALYSIS"
],
"start": 13763,
"text": "It is noticed that over 5.6% of the sales is made through franchises, however, the assessee adopted sales as basis for allocation."
}
},
{
"from_name": null,
"id": "7634fb9822674d49b62b34d80224dc6b",
"to_name": null,
"type": null,
"value": {
"end": 14013,
"labels": [
"ANALYSIS"
],
"start": 13894,
"text": "The sale made through the franchises stands on a different footing than the sale made directly by the assessee company."
}
},
{
"from_name": null,
"id": "d985e7e529ac4ece80e435e50170a39b",
"to_name": null,
"type": null,
"value": {
"end": 14294,
"labels": [
"ANALYSIS"
],
"start": 14014,
"text": "In the case of sale made through franchise, no effort is involved by the assessee except getting commission whereas the direct sales made by the assessee requires much more efforts and obviously the expenditure of the nature of consumables, salary and benefits etc., are incurred."
}
},
{
"from_name": null,
"id": "d6ef7f0575384e8c89e9f54887cde3fd",
"to_name": null,
"type": null,
"value": {
"end": 14475,
"labels": [
"ANALYSIS"
],
"start": 14295,
"text": "It is also significant to observe that the Assessing Officer has not disturbed the method adopted by the assessee for the purpose of allocation of expenses in the trading turnover."
}
},
{
"from_name": null,
"id": "b2480d59d00a467189d788cb48448627",
"to_name": null,
"type": null,
"value": {
"end": 14629,
"labels": [
"ANALYSIS"
],
"start": 14476,
"text": "What the Assessing Officer has done is removing the value of Franchise sales from the total sales as the Franchise sales are different from direct sales."
}
},
{
"from_name": null,
"id": "652ac1ab2c284e41b86c44f7957cab05",
"to_name": null,
"type": null,
"value": {
"end": 14727,
"labels": [
"ANALYSIS"
],
"start": 14630,
"text": "This methodology adopted by the Assessing Officer is not properly considered by the CIT and ITAT."
}
},
{
"from_name": null,
"id": "d53bf8ac536d4bd185fcafeb6224d4f2",
"to_name": null,
"type": null,
"value": {
"end": 15030,
"labels": [
"ANALYSIS"
],
"start": 14727,
"text": "\nCIT was of the view that the course adopted by the Assessing Officer in allocating the expenses amounts to prescribing a new method of estimation based on the Proportionate turnover contrary to the method of accounting regularly followed by the assessee and accepted by the department in earlier years."
}
},
{
"from_name": null,
"id": "e8146007954745cfb36b5cc7b1176894",
"to_name": null,
"type": null,
"value": {
"end": 15147,
"labels": [
"PRE_RELIED"
],
"start": 15031,
"text": "This view is confirmed by the ITAT placing reliance on the Judgment of the Apex Court in Indo Nippan's case (supra)."
}
},
{
"from_name": null,
"id": "d2ea03cab7784e7692f6e8c7f544146d",
"to_name": null,
"type": null,
"value": {
"end": 15321,
"labels": [
"ANALYSIS"
],
"start": 15148,
"text": "The Apex Court in Indo Nippan's case has held that whatever method the Assessing Officer adopts, the method has to be consistent with the accepted principles of accountancy."
}
},
{
"from_name": null,
"id": "02a28688f54b4d559ba9b50fbc1bf588",
"to_name": null,
"type": null,
"value": {
"end": 15446,
"labels": [
"ANALYSIS"
],
"start": 15321,
"text": "\n 18. In the present case, what the Assessing Officer has done is to delete the value of franchise sales from total expenses."
}
},
{
"from_name": null,
"id": "07d92fed35e44c7c92ec86df49bdfea0",
"to_name": null,
"type": null,
"value": {
"end": 15509,
"labels": [
"ANALYSIS"
],
"start": 15447,
"text": "No method of accountancy adopted by the assessee is disturbed."
}
},
{
"from_name": null,
"id": "1dae53c8f8d141eda84db64137c43d40",
"to_name": null,
"type": null,
"value": {
"end": 15661,
"labels": [
"ANALYSIS"
],
"start": 15510,
"text": "The course adopted by the Assessing Officer to delete the franchise sales is based on the reasoning that franchise sales differs from the direct sales."
}
},
{
"from_name": null,
"id": "9a733ae1d55b4197a972afc9a2331568",
"to_name": null,
"type": null,
"value": {
"end": 15811,
"labels": [
"ANALYSIS"
],
"start": 15662,
"text": "Such being the case, this method adopted by the Assessing Officer is no way contrary to the Judgment of the Apex Court in Indo Nippan's case (supra)."
}
},
{
"from_name": null,
"id": "9f5044298613465a828b41cf4ea7eb8c",
"to_name": null,
"type": null,
"value": {
"end": 16014,
"labels": [
"ANALYSIS"
],
"start": 15812,
"text": "In the circumstances, we are of the view that CIT and ITAT proceeded on a misconception that Assessing Officer has disturbed the consistent method of accountancy followed by the assessee for many years."
}
},
{
"from_name": null,
"id": "d4b529285a90436294e5e39593581efc",
"to_name": null,
"type": null,
"value": {
"end": 16251,
"labels": [
"ANALYSIS"
],
"start": 16015,
"text": "In view of the aforesaid reasons, we are of the opinion that the finding given by the CIT confirmed by the ITAT on this issue is not sustainable and accordingly, we decide this question in favour of the revenue and against the assessee."
}
},
{
"from_name": null,
"id": "95379c1d66c14540b50835820aaf24d0",
"to_name": null,
"type": null,
"value": {
"end": 16414,
"labels": [
"ANALYSIS"
],
"start": 16252,
"text": "The issue is remanded to the A.O. to re- do the assessment in the light of the observations made above, after providing an opportunity of hearing to the assessee."
}
},
{
"from_name": null,
"id": "320c9e47dc7d4635b78e329bb5f5f3fb",
"to_name": null,
"type": null,
"value": {
"end": 16460,
"labels": [
"ANALYSIS"
],
"start": 16415,
"text": "All contentions are left open to the parties."
}
},
{
"from_name": null,
"id": "b6b5d41430ab4bd58ff24e033028123e",
"to_name": null,
"type": null,
"value": {
"end": 16483,
"labels": [
"ANALYSIS"
],
"start": 16462,
"text": "Re. Question No.7 19."
}
},
{
"from_name": null,
"id": "5737df0492a64baa97e4349d9fda25fe",
"to_name": null,
"type": null,
"value": {
"end": 16650,
"labels": [
"ANALYSIS"
],
"start": 16484,
"text": "Both the parties agree that the issue involved in this question is squarely covered by the Judgment of this Court in the case of Tata Elexsi Ltd.'s case (349 ITR 98)."
}
},
{
"from_name": null,
"id": "70fecc0ac4994b9e81fb3c2bca80d4a4",
"to_name": null,
"type": null,
"value": {
"end": 16748,
"labels": [
"ANALYSIS"
],
"start": 16651,
"text": "In view of the same, this question is answered against the revenue and in favour of the assessee."
}
},
{
"from_name": null,
"id": "fc41c015f0084a0087a907d40d0c181c",
"to_name": null,
"type": null,
"value": {
"end": 16771,
"labels": [
"ANALYSIS"
],
"start": 16750,
"text": "Re. Question No.8 20."
}
},
{
"from_name": null,
"id": "dbfc387e49ca41e6ac291b39e2642aa8",
"to_name": null,
"type": null,
"value": {
"end": 16950,
"labels": [
"ANALYSIS"
],
"start": 16772,
"text": "The issue involved herein is covered against the revenue in the Judgment rendered by this Court in ITA No.391/2008 disposed of on 10.06.2014 which is not disputed by the parties."
}
},
{
"from_name": null,
"id": "77e5f7a791794219acc9384cc0c2fa06",
"to_name": null,
"type": null,
"value": {
"end": 17038,
"labels": [
"ANALYSIS"
],
"start": 16950,
"text": "\nAccordingly, we answer this question in favour of the assessee and against the revenue."
}
},
{
"from_name": null,
"id": "d555e0c818c64a98ba4bff1f2be640fa",
"to_name": null,
"type": null,
"value": {
"end": 17060,
"labels": [
"ANALYSIS"
],
"start": 17039,
"text": "Re. Question No.9 21."
}
},
{
"from_name": null,
"id": "09c69b0bc2f640d184eeaa7b5d8d5349",
"to_name": null,
"type": null,
"value": {
"end": 17306,
"labels": [
"ANALYSIS"
],
"start": 17061,
"text": "The Assessing Officer proceeded to disallow the loss claimed by the assessee on the ground that the assessee was making various inter unit transfers, it was necessary to examine the entries which were not recorded properly in the first instance."
}
},
{
"from_name": null,
"id": "a7bae94598f84154a0aefbc3111538dc",
"to_name": null,
"type": null,
"value": {
"end": 17502,
"labels": [
"ANALYSIS"
],
"start": 17306,
"text": "\nThe assessee has not been able to substantiate this claim despite being given sufficient time for the credit entries made and neither has given any background for such high value reverse entries."
}
},
{
"from_name": null,
"id": "38ca01f2ea284fbd87882a5be045e33b",
"to_name": null,
"type": null,
"value": {
"end": 17625,
"labels": [
"ANALYSIS"
],
"start": 17504,
"text": "Assessing Officer was of the opinion that the assessee should have produced the certificate from auditors in this regard."
}
},
{
"from_name": null,
"id": "ec76eb150914452e8d09f18cadf153dd",
"to_name": null,
"type": null,
"value": {
"end": 18001,
"labels": [
"ANALYSIS"
],
"start": 17626,
"text": "The assessee having furnished the audit certificate before the CIT, it is observed by the CIT that the assessee's production of audit report establishes the credentials and accordingly, accepted the error in the books of accounts which has crept in, as a result of genuine mistake and such error has been disclosed by the assessee voluntarily along with the return of income."
}
},
{
"from_name": null,
"id": "f22d407d08074a88951574306deac24b",
"to_name": null,
"type": null,
"value": {
"end": 18050,
"labels": [
"ANALYSIS"
],
"start": 18002,
"text": "This view of the CIT is upheld by the Tribunal ."
}
},
{
"from_name": null,
"id": "e373aeb8d0a8447ca7ad7281b60f82c0",
"to_name": null,
"type": null,
"value": {
"end": 18169,
"labels": [
"ARG_PETITIONER"
],
"start": 18050,
"text": "\n 22. Learned counsel Sri K V Aravind appearing for the revenue would submit that no reconciliation is made by the CIT."
}
},
{
"from_name": null,
"id": "59fde50265fd4558a73212e56bafd598",
"to_name": null,
"type": null,
"value": {
"end": 18367,
"labels": [
"ARG_PETITIONER"
],
"start": 18170,
"text": "It cannot be accepted that a genuine error has occurred in accounting entry and the same is corrected by the adjustments made in the book entry by the assessee which has been confirmed by the ITAT."
}
},
{
"from_name": null,
"id": "d76069bbb833497ca1640ac65c98e13c",
"to_name": null,
"type": null,
"value": {
"end": 18528,
"labels": [
"ARG_PETITIONER"
],
"start": 18368,
"text": "Accordingly, he seeks to remand the matter to the Assessing Officer to examine the correctness of the auditor's report furnished by the assessee before the CIT."
}
},
{
"from_name": null,
"id": "3952e041fe1b49c5851db66bbdf7b38f",
"to_name": null,
"type": null,
"value": {
"end": 18943,
"labels": [
"ANALYSIS"
],
"start": 18528,
"text": "\n 23. We do not see any flaw in the order passed by the ITAT for the reason that the Assessing Officer himself while deciding the issue in question has accepted the auditor's certificate for the assessment year 2003-04 and has categorically held that such a certificate of the Chartered Accountant would have been suffice to accept the claim of the assessee towards the adjustment entries for prior period expenses."
}
},
{
"from_name": null,
"id": "dfe94fa297fa4b0a9090b6cb25d3a9a1",
"to_name": null,
"type": null,
"value": {
"end": 19260,
"labels": [
"ANALYSIS"
],
"start": 18944,
"text": "In such view of the matter, the assessee has cured the defects pointed out by the Assessing Officer, by filing the necessary auditor's report before the CIT which was properly considered and held that it was a genuine error in the book entry and the same is confirmed by the ITAT which in our opinion is justifiable."
}
},
{
"from_name": null,
"id": "353a7f94dbb2446892bd94a7f954cc10",
"to_name": null,
"type": null,
"value": {
"end": 19406,
"labels": [
"ANALYSIS"
],
"start": 19261,
"text": "We are not inclined to interfere with the factual findings given by the authorities regarding the genuiness of the adjustments in the book entry."
}
},
{
"from_name": null,
"id": "9bd12d226f2d42f8bdab938fecf883ee",
"to_name": null,
"type": null,
"value": {
"end": 19536,
"labels": [
"ANALYSIS"
],
"start": 19407,
"text": "It is settled law that the no income can arise by mere book entries (vide Kedarnath Jute Manufacturing Co. Ltd. vs CIT (Central),"
}
},
{
"from_name": null,
"id": "e2d25456d06e48c5bffde11651237f9f",
"to_name": null,
"type": null,
"value": {
"end": 19571,
"labels": [
"ANALYSIS"
],
"start": 19537,
"text": "Calcutta reported in 1982 ITR 363)"
}
},
{
"from_name": null,
"id": "8e7ce75e695245208909dff64f067da9",
"to_name": null,
"type": null,
"value": {
"end": 19763,
"labels": [
"ANALYSIS"
],
"start": 19571,
"text": ". It is also noticed by us that error occurred in the book entries for the assessment years 2002-03 and 2003-04, revenue has not raised this question in appeal for the assessment year 2003-04."
}
},
{
"from_name": null,
"id": "d65a3e5c9a14409d811b3eb2b1fdf471",
"to_name": null,
"type": null,
"value": {
"end": 19913,
"labels": [
"ANALYSIS"
],
"start": 19764,
"text": "In such circumstances, revenue challenging this issue only in this appeal relating to assessment year 2002-03, without just cause is not sustainable."
}
},
{
"from_name": null,
"id": "04944b014079443a804088678bef8495",
"to_name": null,
"type": null,
"value": {
"end": 20044,
"labels": [
"PRE_RELIED"
],
"start": 19914,
"text": "This view is supported by the Judgment of the Apex Court in Berger Paint India Ltd. v/s CIT, Calcutta reported in (2004)12 SCC 42."
}
},
{
"from_name": null,
"id": "cca54b29f72349039c25e0b714787542",
"to_name": null,
"type": null,
"value": {
"end": 20153,
"labels": [
"RATIO"
],
"start": 20045,
"text": "For the aforesaid reasons, we answer this question of law in favour of the assessee and against the revenue."
}
},
{
"from_name": null,
"id": "c1743a0fe510499abf838ce1298c6f36",
"to_name": null,
"type": null,
"value": {
"end": 20266,
"labels": [
"RPC"
],
"start": 20153,
"text": "\n 24. For the foregoing reasons, this appeal is partly allowed answering the questions of law as indicated above."
}
},
{
"from_name": null,
"id": "0a60450a4087420fbff5b0fc84e0cdb7",
"to_name": null,
"type": null,
"value": {
"end": 20288,
"labels": [
"RPC"
],
"start": 20268,
"text": "Ordered accordingly."
}
},
{
"from_name": null,
"id": "96878a45141d41c49233ea8e02d25796",
"to_name": null,
"type": null,
"value": {
"end": 20315,
"labels": [
"NONE"
],
"start": 20288,
"text": "\n Sd/- JUDGE Sd/- JUDGE Brn"
}
}
]
}
] | 4,233 | {
"text": " IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\n DATED THIS THE 19TH DAY OF JANUARY 2016\n\n PRESENT\n\n THE HON'BLE MR.JUSTICE N K PATIL\n\n AND\n\n THE HON'BLE MRS.JUSTICE S SUJATHA\n\n ITA No.902/2008\n\nBETWEEN:\n\n1. Commissioner of Income-tax\n Central Circle\n C R Building, Queens Road\n Bangalore\n\n2. The Deputy Commissioner of Income-Tax\n\n Central Circle-1(3)\n\n C R Building, Queens Road\n\n Bangalore ....Appellants\n\n(By Sri. K.V.Aravind, Advocate )\n\nAND\n\nM/s. Wipro GE Medical System Ltd., ....Respondent\nPlot No.4, Kadugodi Plantation\nIndustrial Area\nSadaramangala\nBangalore-560067.\n\n(By Smt. S.R. Anuradha, Advocates )\n\n This Income-tax appeal is filed under Section 260-A of\nIncome-tax Act, 1961, praying to set aside the order passed by the\nITAT, Bangalore in ITA No.810/Bang/2007, dated 16.05.2008\nconfirming the order of the Appellate Commissioner and confirm\n\nthe order passed by the Deputy Commissioner of Income-tax,\nCentral Circle-1(3), Bangalore, in the interest of justice and equity.\n\n This appeal having been heard and reserved for orders on\n12TH January 2016, coming on for pronouncement of Judgment\nthis day, S.Sujatha J., delivered the following\n\n JUDGMENT\n This appeal is filed by the revenue assailing the order passed by the Income Tax Appellate Tribunal (ITAT), Bangalore in ITA No.810/Bang/2007 dated 16.05.2008 for the assessment year 2002-03.\n 2. Facts in brief are: The respondent/assessee is a private limited company engaged in the business of manufacturing of medical diagnostic equipments and accessories, software development, trading of various products and also providing services for various medical equipments. The return of income for the assessment year 2002- 03 was filed by the assessee declaring a loss of Rs.49,39,90,600/- on 31.10.2002. Assessee claimed: (i) provision for sale expenditure in the course of commission received in respect of sales in the agency business.\n(ii) provision for warranty of Rs.52,84,504/- (iii) exchange gain fluctuation (iv) Sale Proceeds not realized within time (v) Allocation of Royalty payment (vi) Reallocation of trading expenses-EHTP-I( Electronic hard ware Technology Part-1) (vii) Exclusion from export turnover of expenditure incurred in foreign currency in providing technical services (viii) Allowability of deduction u/s.10A for STPs located at Golden Enclave (ix) Adjustment of Prior Period exenses 3. The Assessing Officer proceeded to examine each of the claim made by the assessee. After consideration, the Assessing Officer concluded the assessment rejecting the claim made by the assessee. On appeal by the assessee, Appellate Commissioner allowed the appeal granting relief in favour of the assessee. Being aggrieved by the said order, the revenue preferred an appeal before the ITAT. The ITAT considering the various issues raised, proceeded to follow the view expressed by it in the assessee's own case relating to the earlier assessment years and granted relief in favour of the assessee, rejecting the appeal filed by the revenue against which, the revenue is in appeal under Section 260A of the Income Tax Act, 1961 (the \"Act\" for short) raising the following substantial questions of law: 1. Whether the Appellate Authorities were correct in holding that the provision in respect of a percentage of sale to account for various expenses transferred to a separate account is an allowable expenditure even though the same is a contingent liability which has not accrued?\n2. Whether the Appellate Authorities were correct in holding that a provision for reserves for warranty is an allowable expenditure even though it is a contingent liability?\n3. Whether the Appellate Authorities were correct in holding that the gain in exchange rate i.e. due to fluctuation cannot be excluded when computing deduction u/s.10A of the Act even though this amount had not been directly arisen in the course of export?\n 4. \"Whether the Appellate Authorities were correct in holding that the sale proceeds not realized within the time of 6 months granted by the Reserve Bank of India without their being any extension cannot be excluded from the total turnover when computation deduction u/s.10A of the Act?.\n5. Whether the Appellate Authorities were correct in holding that allocation of expenditure towards royalty for use of trade mark and logo to Wipro Ltd., and Monogram Licencing International Incorporated at 50:50% by the assessee should be upheld and not as worked out by the Assessing Officer based on local sales?\n 6. Whether the Appellate Authorities were correct in holding that allocation of expenditure as worked out by the assessee on account of consumables, salary etc., on the basis of sales based on percentage should be accepted without taking into account the fact that 31.2% of sales were made through franchisers which did not require the sale percentage of expenditure as worked out by the Assessing Officer?\n 7. Whether the Appellate Authorities were correct in holding that the computation of export turnover as worked out by the Assessing Officer in accordance with Explanation 2 to Section 10A of the Act by excluding expenditure incurred in foreign currency in providing travel, salary, rent, M and B charges, Dialcom and others is not correct?\n 8. Whether the Appellate Authorities were correct in holding that the finding of the Assessing Officer that the deduction claimed u/s.10A of the Act in respect of its unit at Golden Enclave which has commenced business prior to 01.04.1993 in respect of one floor and after 01.04.1993 in respect of two floors which was shifted to Hoody Village, would amount to reconstruction of business and the assessee would not be entitled to claim 10A deduction was held to be not correct?\n 9. Whether the Appellate Authorities were correct in holding that the adjustment entries for prior period expenses of Rs.25,57,54,378/- should be allowed despite the assessee not substantiating the claim by adducing the any proff?.\n Re. question No.1: 4. Sri K V Aravind, learned counsel appearing for the revenue placing reliance on the Judgment of the Apex Court in the case of Rotork Controls India (P) Ltd. vs Commissioner of Income Tax reported in ((2009) 314 ITR 62) wherein, the assessee herein was also a party would strongly contend that, What is a provision is elaborately considered by the Apex Court and the parameters are set-out by the Apex Court to examine the recognition of provision for the purposes of the Act.\n The three Conditions to be satisfied for the recognition of the provision are: (a) an enterprise should have a present obligation as a result of past event (b) it is probable that an outflow of resources will be required to settle the obligation (c) a reliable estimate can be made out of the amount of obligation He would contend that only if these three tests laid down by the Apex Court are satisfied by the assessee, provision made relating to the percentage of sale to account for various expenses transferred to a separate account, whether is an allowable expenditure or not, would be ascertained though the same is a contingent liability which has not accrued. None of the authorities below have examined this issue in the light of the Judgment pronounced by the Apex Court in Rotork Controls Case (supra). No finding is forth coming from the records that the assessee has satisfied the three conditions laid down by the Apex Court to claim the benefit of a provision. In such circumstances, he requests this Court to remand the matter back to the Assessing Officer so as to enable him to examine the case of the assessee in the light of the tests laid down by the Apex Court in Rotork Controls Case (supra).\n 5. On the other hand Smt.Anuradha, learned counsel appearing for the assessee would contend that all these aspects were considered by the authorities below and it is categorically held by the authorities that the provision is as per accounting standards and is based on the past experience coupled with scientific and rational basis. It is also contended that the department has accepted the earlier order passed by the authorities for the assessment year 1998-99 wherein similar provision was made as per standard of accounting. Tribunal has allowed similar issue of provision in favour of the assessee and no remand is made.\n 6. We have considered the submissions of the learned counsel for the parties. This very argument was advanced by the revenue before the ITAT to remand the matter to the Assessing Officer to consider the issues in the light of the Judgment of Rotork Controls Case (supra) The ITAT having observed that the only reason why the Assessing Officer has disallowed the claim of the assessee is on account that the provision is contingent liability, cannot be allowed, expenditure can be allowed only on payment basis. The ITAT having considered the adequate material placed before it, thought it fit not to remit the matter to the Assessing Officer. It is also noticed that the method of accounting followed by the assessee is mercantile wherein the income and expenditure is on accrual basis. We have examined this issue in the light of the Judgment pronounced by the Apex Court in Rotork Controls Case (supra,) wherein the three tests are laid down to recognize a provision under the Act. The ITAT being a last fact finding authority has held that all these ingredients which goes to the recognition of provision are satisfied and as such, there is no need to remit the matter back to the Assessing Officer. In such circumstances, we do not see any ground made out by the revenue to remand the matter back to the Assessing Officer. The claim of expenditure being consistent with the method of accounting followed and the provision has been made on concluded transactions, the order of the Assessing Officer is held to be incorrect. We do not see any reason to differ from this view, which is in accordance with Section 145 of the Act.\n Re. Question No.2 7. The learned counsel Mr. K V Aravind appearing for the revenue reiterated the grounds urged before the ITAT and sought for remanding the matter back to the Assessing Officer to examine the issue in the light of the Judgment of the Apex Court in Rotork Controls Case (supra).\n 8. Learned counsel Smt. Anuradha appearing for the assessee would contend that this issue is covered in favour of the assessee in assesse's own case by the order of this Court in ITA 438-444/12, affirmed by the Hon'ble Supreme Court in Rotork Controls Case (supra), in none of these cases remand is made.\n 9. After considering the rival submissions of the learned counsel for the parties on this issue, we are of the view that this issue is similar to that of Question no.1. In view of the observations made in Question No.1, we are not inclined to remit the matter back to the Assessing Officer on this issue more particularly, this issue being covered by the Judgment of the Coordinate Bench of this Court in the very same assessee's case reported in 270 ITR 259 and 278 ITR 337 confirmed by the Apex Court in Rotork Controls Case (supra).\n Re. Question No.3 10. Both the learned counsel appearing for the parties agree that the issue involved in this question is covered against the revenue by the Judgment of this Court in ITA No.3202/2005 disposed of on 28.02.2012.\n 11. In view of the Judgment rendered by this Court in ITA No.3202/2005 dated 28.02.2012, we answer this question against the revenue and in favour of the assessee.\n Re. Question No.4 12. Learned counsel appearing for the parties agree that this issue is directly covered by the Judgment of this Court in ITA No.879/2008 disposed of on 25.03.2015.\n 13. Following the said Judgment rendered by the Co-ordinate Bench of this Court in ITA No.879/2008 disposed of on 25.03.2015, we answer this question in favour of the assessee and against the revenue.\n Re. Question No.5 14. Learned counsel appearing for the revenue would contend that the ITAT negated the arguments of the revenue since similar question was considered by the ITAT in ITA No.322- 328/B/02 and held against the revenue. A detailed inquiry is required to be made regarding expenses allocated to royalty payment with reference to the pre-existing agreements executed by the assessee with M/s Wipro Limited relied on by the assessee and accepted by the CIT. No such exercise having been done by the authorities, he requests the matter to be remanded back to the Assessing Officer for fresh consideration to examine on this issue.\n 15. Learned counsel appearing for the assessee has no objections to the same.\n 16. Accordingly, we remand this issue to the Assessing Officer to examine whether allocating a portion of the royalty to EHTP Units as local sales is warranted or not after examining the pre-existing agreement entered into by the assessee with M/s Wipro Limited.\n Re. Question No.6 17. Learned counsel appearing for the revenue seeks to remand this issue also to the Assessing Officer as no adequate material was made available before the authorities to come to a conclusion that the allocation of expenditure as worked out by the assessee on account of consumables, salary etc. are applicable to the sales made through franchises.\n However, learned counsel appearing for the assessee would contend that Appellate Commissioner deleted the allocation of expenses made by the Assessing Officer based on the order of ITAT in the very same assessee's case reported in 81 TTJ 455 and the decision of the Apex Court in Indo Nipan Limited's case (261 ITR 775). It is noticed that over 5.6% of the sales is made through franchises, however, the assessee adopted sales as basis for allocation. The sale made through the franchises stands on a different footing than the sale made directly by the assessee company. In the case of sale made through franchise, no effort is involved by the assessee except getting commission whereas the direct sales made by the assessee requires much more efforts and obviously the expenditure of the nature of consumables, salary and benefits etc., are incurred. It is also significant to observe that the Assessing Officer has not disturbed the method adopted by the assessee for the purpose of allocation of expenses in the trading turnover. What the Assessing Officer has done is removing the value of Franchise sales from the total sales as the Franchise sales are different from direct sales. This methodology adopted by the Assessing Officer is not properly considered by the CIT and ITAT.\nCIT was of the view that the course adopted by the Assessing Officer in allocating the expenses amounts to prescribing a new method of estimation based on the Proportionate turnover contrary to the method of accounting regularly followed by the assessee and accepted by the department in earlier years. This view is confirmed by the ITAT placing reliance on the Judgment of the Apex Court in Indo Nippan's case (supra). The Apex Court in Indo Nippan's case has held that whatever method the Assessing Officer adopts, the method has to be consistent with the accepted principles of accountancy.\n 18. In the present case, what the Assessing Officer has done is to delete the value of franchise sales from total expenses. No method of accountancy adopted by the assessee is disturbed. The course adopted by the Assessing Officer to delete the franchise sales is based on the reasoning that franchise sales differs from the direct sales. Such being the case, this method adopted by the Assessing Officer is no way contrary to the Judgment of the Apex Court in Indo Nippan's case (supra). In the circumstances, we are of the view that CIT and ITAT proceeded on a misconception that Assessing Officer has disturbed the consistent method of accountancy followed by the assessee for many years. In view of the aforesaid reasons, we are of the opinion that the finding given by the CIT confirmed by the ITAT on this issue is not sustainable and accordingly, we decide this question in favour of the revenue and against the assessee. The issue is remanded to the A.O. to re- do the assessment in the light of the observations made above, after providing an opportunity of hearing to the assessee. All contentions are left open to the parties.\n Re. Question No.7 19. Both the parties agree that the issue involved in this question is squarely covered by the Judgment of this Court in the case of Tata Elexsi Ltd.'s case (349 ITR 98). In view of the same, this question is answered against the revenue and in favour of the assessee.\n Re. Question No.8 20. The issue involved herein is covered against the revenue in the Judgment rendered by this Court in ITA No.391/2008 disposed of on 10.06.2014 which is not disputed by the parties.\nAccordingly, we answer this question in favour of the assessee and against the revenue.\nRe. Question No.9 21. The Assessing Officer proceeded to disallow the loss claimed by the assessee on the ground that the assessee was making various inter unit transfers, it was necessary to examine the entries which were not recorded properly in the first instance.\nThe assessee has not been able to substantiate this claim despite being given sufficient time for the credit entries made and neither has given any background for such high value reverse entries.\n Assessing Officer was of the opinion that the assessee should have produced the certificate from auditors in this regard. The assessee having furnished the audit certificate before the CIT, it is observed by the CIT that the assessee's production of audit report establishes the credentials and accordingly, accepted the error in the books of accounts which has crept in, as a result of genuine mistake and such error has been disclosed by the assessee voluntarily along with the return of income. This view of the CIT is upheld by the Tribunal .\n 22. Learned counsel Sri K V Aravind appearing for the revenue would submit that no reconciliation is made by the CIT. It cannot be accepted that a genuine error has occurred in accounting entry and the same is corrected by the adjustments made in the book entry by the assessee which has been confirmed by the ITAT. Accordingly, he seeks to remand the matter to the Assessing Officer to examine the correctness of the auditor's report furnished by the assessee before the CIT.\n 23. We do not see any flaw in the order passed by the ITAT for the reason that the Assessing Officer himself while deciding the issue in question has accepted the auditor's certificate for the assessment year 2003-04 and has categorically held that such a certificate of the Chartered Accountant would have been suffice to accept the claim of the assessee towards the adjustment entries for prior period expenses. In such view of the matter, the assessee has cured the defects pointed out by the Assessing Officer, by filing the necessary auditor's report before the CIT which was properly considered and held that it was a genuine error in the book entry and the same is confirmed by the ITAT which in our opinion is justifiable. We are not inclined to interfere with the factual findings given by the authorities regarding the genuiness of the adjustments in the book entry. It is settled law that the no income can arise by mere book entries (vide Kedarnath Jute Manufacturing Co. Ltd. vs CIT (Central), Calcutta reported in 1982 ITR 363). It is also noticed by us that error occurred in the book entries for the assessment years 2002-03 and 2003-04, revenue has not raised this question in appeal for the assessment year 2003-04. In such circumstances, revenue challenging this issue only in this appeal relating to assessment year 2002-03, without just cause is not sustainable. This view is supported by the Judgment of the Apex Court in Berger Paint India Ltd. v/s CIT, Calcutta reported in (2004)12 SCC 42. For the aforesaid reasons, we answer this question of law in favour of the assessee and against the revenue.\n 24. For the foregoing reasons, this appeal is partly allowed answering the questions of law as indicated above.\n Ordered accordingly.\n Sd/- JUDGE Sd/- JUDGE Brn "
} |
{
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} | [
{
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"end": 91,
"labels": [
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],
"start": 0,
"text": "PETITIONER:\nSUPERINTENDENT (TECH. I) CENTRAL EXCISE I.D.D.JABALPUR AND\n\n Vs.\n\nRESPONDENT:"
}
},
{
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],
"start": 91,
"text": "\nPRATAP RAI"
}
},
{
"from_name": null,
"id": "7664456be1724f2ba11c6dac181f625c",
"to_name": null,
"type": null,
"value": {
"end": 130,
"labels": [
"PREAMBLE"
],
"start": 102,
"text": "\n\nDATE OF JUDGMENT26/04/1978"
}
},
{
"from_name": null,
"id": "7ef9344155bf435da450d33f9999dbe4",
"to_name": null,
"type": null,
"value": {
"end": 1085,
"labels": [
"PREAMBLE"
],
"start": 132,
"text": "BENCH:\nFAZALALI, SYED MURTAZA\nBENCH:\nFAZALALI, SYED MURTAZA\nSINGH, JASWANT\nPATHAK, R.S.\n\nCITATION:\n\n1978 AIR 1244 1978 SCR (3) 729\n (4)\n1978 SCC (3) 113\n\nCITATOR INFO :\n\nR 1981 SC 858\n\nACT:\nNatural Justice, Principles of-When an order is struck down\nby the appellate authority being in violation of the\nprinciples of natural justice, there is no final decision\nand fresh proceedings can be taken-Interpretation of the\nAppellate Collector's orders-Words and Phrases-Meaning of\n\"without prejudice\" Customs Act, Section 122 and 128.\n\nHEADNOTE:\nTwenty-three watches on which no custom duty was paid were\nseized from the respondent by the Customs Authorities and in\nthe adjudication proceedings under section 122 of the\nCustoms Act, the Assistant Collector of Customs ordered that\nthe watches which were seized be confiscated and imposed a\npenalty of Rs. 250/- on the respondent under Section 112 of\nthe Act."
}
},
{
"from_name": null,
"id": "61f9146a9cc64cfca209335ee0141cbf",
"to_name": null,
"type": null,
"value": {
"end": 1316,
"labels": [
"PREAMBLE"
],
"start": 1086,
"text": "In appeal, the Appellate Collector by his order\ndated 22-2-1972 vacated \"without prejudice\" the order of the\nAssistant Collector mainly on the ground that the Assistant\nCollector had not complied with the rules of natural\njustice."
}
},
{
"from_name": null,
"id": "9f806eca4b6b41d1bc96e292c3ae7d5f",
"to_name": null,
"type": null,
"value": {
"end": 1484,
"labels": [
"PREAMBLE"
],
"start": 1317,
"text": "The department interpreted the order as an implied\norder of remand and issued a fresh notice to the respondent\non 27-7-1972 and started fresh adjudication proceedings."
}
},
{
"from_name": null,
"id": "70f350f1ec8b4862aef80044502cfd85",
"to_name": null,
"type": null,
"value": {
"end": 1589,
"labels": [
"PREAMBLE"
],
"start": 1484,
"text": "\nThereafter, the respondent filed in the High Court of Madhya\nPradesh, a writ petition which was allowed."
}
},
{
"from_name": null,
"id": "861e079a76c6402882172a15e993e5aa",
"to_name": null,
"type": null,
"value": {
"end": 1653,
"labels": [
"PREAMBLE"
],
"start": 1590,
"text": "The notice and\nthe fresh adjudication proceedings were quashed."
}
},
{
"from_name": null,
"id": "1b322d89383848ebb484bc510db6696b",
"to_name": null,
"type": null,
"value": {
"end": 1711,
"labels": [
"PREAMBLE"
],
"start": 1653,
"text": "\nAllowing the appeal by special leave, the Court\nHELD : 1."
}
},
{
"from_name": null,
"id": "d7c3734744da47afa36ea7491a48b94e",
"to_name": null,
"type": null,
"value": {
"end": 2025,
"labels": [
"PREAMBLE"
],
"start": 1712,
"text": "Where an order passed in appeal vacates the order\nof the first tribunal on purely technical grounds and\nexpressly states that it was being passed without prejudice\nwhich means an order not on the merits of the case, such an\norder does not debar fresh adjudicatory proceedings which\nmay be justified under the law."
}
},
{
"from_name": null,
"id": "1308d177941d4a6da89400400e13bfeb",
"to_name": null,
"type": null,
"value": {
"end": 2294,
"labels": [
"PREAMBLE"
],
"start": 2026,
"text": "It is necessary for the\ncourt interpreting an order of this kind to give full and\ncomplete effect to the exact words used by the authorities\nand not to draw a sweeping conclusion merely from the fact\nthat no explicit direction has been made by the appellate\nauthority."
}
},
{
"from_name": null,
"id": "c951154ae6e84c8fa7f6dd0457a812ba",
"to_name": null,
"type": null,
"value": {
"end": 2489,
"labels": [
"PREAMBLE"
],
"start": 2295,
"text": "[735 C-D]\n2. (a) Whenever an order is struck down as invalid being\nin violation of the principles of natural justice there is\n\nno final decision of the cause and fresh proceedings are\nleft open."
}
},
{
"from_name": null,
"id": "02a0392eac844c45b0308d03dac440e8",
"to_name": null,
"type": null,
"value": {
"end": 2698,
"labels": [
"PREAMBLE"
],
"start": 2490,
"text": "All that is done. is that the order assailed by\nvirtue of its inherent defect is vacated but the proceedings\nare not terminated.\n\n [732"
}
},
{
"from_name": null,
"id": "f811a67d9d604c97bc69b375592ef397",
"to_name": null,
"type": null,
"value": {
"end": 3069,
"labels": [
"PREAMBLE"
],
"start": 2699,
"text": "C]\n(b) In the instant case\nA perusal of the order of the Appellate Authority clearly\nshows two important facts : (1) that the Appellant Collector\nhas not set aside or vacated the order of the Assistant\nCollector on merits but has vacated it only on a technical\ninfirmity, namely, the violation of the rules of natural\njustice and that is why the Appellate Collector has\n"
}
},
{
"from_name": null,
"id": "1e70c76c31d642b0b419a30e1e0b322c",
"to_name": null,
"type": null,
"value": {
"end": 3078,
"labels": [
"PREAMBLE"
],
"start": 3069,
"text": "advisedly"
}
},
{
"from_name": null,
"id": "0daa8d9436294b54ac4bd87a0262ee88",
"to_name": null,
"type": null,
"value": {
"end": 3128,
"labels": [
"PREAMBLE"
],
"start": 3079,
"text": "used the words \"without prejudice\" in his order,\n"
}
},
{
"from_name": null,
"id": "ee37a51c3c5a4fd1aa57e9334e606314",
"to_name": null,
"type": null,
"value": {
"end": 3710,
"labels": [
"PREAMBLE"
],
"start": 3128,
"text": "(2) that the Assistant Collector in his order dated 30th\nJune. 1969 had directed confiscation of the watches and\nimposed a penalty of Rs. 250/- and if the Appellate\nCollector intended to set aside this order completely and\nirrevocably then he should have passed a consequential order\nfor refund of the amount of the penalty and release of the\nproperty confiscated. The fact that no such order was\npassed by the Appellate Collector clearly shows that he\nnever intended to bar fresh adjudicatory proceedings\nprovided they were conducted according to the principles of\nnatural justice."
}
},
{
"from_name": null,
"id": "acb9213165ff437f9796e2dfb655e542",
"to_name": null,
"type": null,
"value": {
"end": 4102,
"labels": [
"PREAMBLE"
],
"start": 3711,
"text": "[731 A, 732 A-C]\n(ii) The Appellate Collector found that the order of the\nAssistant Collector suffered from a serious procedural\ninfirmity, viz., that it was passed without\n12-315SCI/78giving the respondent a proper opportunity of being heard,\nand therefore, it cannot be said that fresh proceedings by\ncomplying with the rules of natural justice could not be\nstarted against the respondent."
}
},
{
"from_name": null,
"id": "96f83dca2fb441d99a7fa4c88111a73f",
"to_name": null,
"type": null,
"value": {
"end": 4256,
"labels": [
"PREAMBLE"
],
"start": 4103,
"text": "The Appellate Collector has\nclearly used the words \"without prejudice\" which also\nindicate that the order of the Collector was not final and\nirrevocable."
}
},
{
"from_name": null,
"id": "4b3e6a63d4784166b5ca4e7c71ae040c",
"to_name": null,
"type": null,
"value": {
"end": 4401,
"labels": [
"PREAMBLE"
],
"start": 4257,
"text": "[732 G-H, 733 A]\nM/s Thimmasamudram Tobacco Co. v. Assistant Collector of\nCentral Excise, Nellore Dt. Nellore, A.I.R. 1961 A.P. 324\napproved.\n3."
}
},
{
"from_name": null,
"id": "890e590f62cb4d5e8df2ba338adcf3ef",
"to_name": null,
"type": null,
"value": {
"end": 4585,
"labels": [
"PREAMBLE"
],
"start": 4402,
"text": "(a) The implication of the term \"without prejudice\"\nmeans (1) that the cause or the matter has not been decided\non merits, (2) that fresh proceedings according to law were\nnot barred."
}
},
{
"from_name": null,
"id": "4a4a1838c1a9424e9a5a5ae16a99199c",
"to_name": null,
"type": null,
"value": {
"end": 4750,
"labels": [
"PREAMBLE"
],
"start": 4586,
"text": "It is true that the Appellate Collector does\nnot say in so many words that the case is remanded to the\nAssistant Collector but the tenor and the spirit of the\norder"
}
},
{
"from_name": null,
"id": "1e9c665e9fad437889018548140cf90f",
"to_name": null,
"type": null,
"value": {
"end": 4905,
"labels": [
"PREAMBLE"
],
"start": 4751,
"text": "clearly shows that what he intended was that fresh\nproceedings should be started against the respondent after\ncomplying with the rules of natural justice."
}
},
{
"from_name": null,
"id": "b91825a5dcd4492598f21887fcac5237",
"to_name": null,
"type": null,
"value": {
"end": 4915,
"labels": [
"PREAMBLE"
],
"start": 4906,
"text": "[733E-F]\n"
}
},
{
"from_name": null,
"id": "75ee4ce55c39465b8b21d1c484900cea",
"to_name": null,
"type": null,
"value": {
"end": 5237,
"labels": [
"PREAMBLE"
],
"start": 4915,
"text": "(b) A true interpretation of the order of the Appellate\nCollector would be that the order of the Assistant Collector\nwas a nullity having violated the rules of natural justice\nand having been vacated the parties would be relegated to\nthe position which they occupied before the order of the\nAssistant Collector was passed."
}
},
{
"from_name": null,
"id": "8062a3cffe614c1d8d0a17d28be921f2",
"to_name": null,
"type": null,
"value": {
"end": 5429,
"labels": [
"PREAMBLE"
],
"start": 5238,
"text": "In this view of the matter\nthe Assistant Collector had ample jurisdiction in issuing\nthe notice against the respondent in order to start fresh\nadjudicatory proceedings in accordance with law."
}
},
{
"from_name": null,
"id": "3fba921f16b445a5b7200426a429e212",
"to_name": null,
"type": null,
"value": {
"end": 5438,
"labels": [
"PREAMBLE"
],
"start": 5430,
"text": "[733F-G]"
}
},
{
"from_name": null,
"id": "6aaebb34424b42f5a8fa7d5605c28050",
"to_name": null,
"type": null,
"value": {
"end": 5664,
"labels": [
"PREAMBLE"
],
"start": 5438,
"text": "\nCollector of Central Excise, Madras v. K. Pulappa Nadar,\nA.I.R. 1964 Mad. III and The Marsden Spg. and Co. Ltd. v.\nShri L. V. Pol. Superintendent of Central Excise (Tax),\nI.L.R. 1965 Guj. III criticised, discussed and distin-"
}
},
{
"from_name": null,
"id": "5b514c3f973d4ee9b31514d250b017cb",
"to_name": null,
"type": null,
"value": {
"end": 5673,
"labels": [
"PREAMBLE"
],
"start": 5664,
"text": "\nguished."
}
},
{
"from_name": null,
"id": "bb3b8d6468eb495f9f645d3800d0b66e",
"to_name": null,
"type": null,
"value": {
"end": 5684,
"labels": [
"PREAMBLE"
],
"start": 5673,
"text": "\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "c5c3ed5b8aa843559b667f2a60497ba2",
"to_name": null,
"type": null,
"value": {
"end": 5745,
"labels": [
"NONE"
],
"start": 5684,
"text": "\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 363 of 1978."
}
},
{
"from_name": null,
"id": "5fed4512b6474c6283d07e73b7aafe5c",
"to_name": null,
"type": null,
"value": {
"end": 5883,
"labels": [
"NONE"
],
"start": 5745,
"text": "\nAppeal by Special Leave from the Judgment and Order dated the 29th November 1976 of the Madhya Pradesh High Court in M.P. No. 32 of 1973."
}
},
{
"from_name": null,
"id": "c3fce84e622f494887550144d5b3c221",
"to_name": null,
"type": null,
"value": {
"end": 5935,
"labels": [
"NONE"
],
"start": 5883,
"text": "\nE.C. Agarwala and Girish Chandra for the Appellant."
}
},
{
"from_name": null,
"id": "39eca2bc541b4f0b9cb7c12dd3f1f223",
"to_name": null,
"type": null,
"value": {
"end": 5981,
"labels": [
"NONE"
],
"start": 5935,
"text": "\nNaunit Lal and Kailash Vasdev for Respondent."
}
},
{
"from_name": null,
"id": "5d869217b3b147e99ead44fc49901df7",
"to_name": null,
"type": null,
"value": {
"end": 6035,
"labels": [
"NONE"
],
"start": 5981,
"text": "\nThe Judgment of the Court was delivered by FAZAL ALI,"
}
},
{
"from_name": null,
"id": "83656bb8a31745c3836a5518881a34c3",
"to_name": null,
"type": null,
"value": {
"end": 6408,
"labels": [
"FAC"
],
"start": 6036,
"text": "J.-This appeal by special leave is directed against the judgment of the Madhya Pradesh High Court dated 19th November 1976 by which the High Court quashed the notice dated 27th July 1972 issued by the Assistant Collector of Customs and also quashed fresh adjudication proceedings started by him under the provisions of the Customs Act (hereinafter referred to as the Act)."
}
},
{
"from_name": null,
"id": "f554fc48b69d4aaca4463129bc0637c4",
"to_name": null,
"type": null,
"value": {
"end": 6564,
"labels": [
"FAC"
],
"start": 6408,
"text": "\nThe appeal lies within a very narrow compass and turns upon the interpretation of the order passed by the appellate authority under section 128 of the Act."
}
},
{
"from_name": null,
"id": "5fbd494c584046d2b8c2ff3ce739fc98",
"to_name": null,
"type": null,
"value": {
"end": 6718,
"labels": [
"FAC"
],
"start": 6565,
"text": "On 27th February 1969 the respondent Pratap Rai was detrained at Jabalpur by the Customs authorities while he was travelling by the Bombay Janta Express."
}
},
{
"from_name": null,
"id": "ead4a9fd92254a2abd3c61c75bed3737",
"to_name": null,
"type": null,
"value": {
"end": 6829,
"labels": [
"FAC"
],
"start": 6719,
"text": "On being searched as many as 23 wrist watches on which no custom duty was paid were recovered from his person."
}
},
{
"from_name": null,
"id": "d5278a27dc454cfdb343b4af2c166605",
"to_name": null,
"type": null,
"value": {
"end": 7091,
"labels": [
"FAC"
],
"start": 6830,
"text": "Thereafter adjudication proceedings under section 122 of the Act were commenced by the Assistant Col- lector of Customs which culminated in the order of the AssistantCollector dated 30th June, 1969 by which the watches were seized and ordered to be confiscated."
}
},
{
"from_name": null,
"id": "c981bf8cf660495c92e1f629e70ff1f9",
"to_name": null,
"type": null,
"value": {
"end": 7173,
"labels": [
"FAC"
],
"start": 7092,
"text": "A penalty of Rs.\n250/- was levied on the respondent under section 112 of the Act."
}
},
{
"from_name": null,
"id": "aec7106da5974753830492cf7c9bc745",
"to_name": null,
"type": null,
"value": {
"end": 7313,
"labels": [
"FAC"
],
"start": 7174,
"text": "The respondent then carried an appeal to the Appellate Collector under section 128 of the Act against the order of the Assistant Collector."
}
},
{
"from_name": null,
"id": "fc2e8f80709c4c59b6d6d31be1975ce0",
"to_name": null,
"type": null,
"value": {
"end": 7522,
"labels": [
"FAC"
],
"start": 7314,
"text": "The Appellate Collector by his order dated 22nd February 1972 vacated the order of the Assistant Collector mainly on the ground that the Assistant Collector had not complied with the rules of natural justice."
}
},
{
"from_name": null,
"id": "0f3d9e22719e43db92157c9f67be6899",
"to_name": null,
"type": null,
"value": {
"end": 7622,
"labels": [
"FAC"
],
"start": 7523,
"text": "The fate of this case depends on the interpretation of the order passed by the Appellate Collector."
}
},
{
"from_name": null,
"id": "58fc74f0c3f04be2a9a61fad2aa0863f",
"to_name": null,
"type": null,
"value": {
"end": 7943,
"labels": [
"FAC"
],
"start": 7622,
"text": "\nIn order to appreciate the point in issue it may be necessary to ,extract the relevant portion of the order of the Appellate Collector which runs thus :- \"The adjudication, therefore, suffers for lack of principle of natural justice, inasmuch as adequate opportunities were not given to the appellant to defend his case."
}
},
{
"from_name": null,
"id": "c3824fd6ff874722a09cf77be2ca7452",
"to_name": null,
"type": null,
"value": {
"end": 8122,
"labels": [
"FAC"
],
"start": 7944,
"text": "1, therefore, without prejudice, vacate the order of the adjudication passed by the Assistant Collector, Central Excice, Jabalpur.\"\n (Emphasis, supplied)."
}
},
{
"from_name": null,
"id": "30e1da4a0a6043c8b45acc3345a2d832",
"to_name": null,
"type": null,
"value": {
"end": 8387,
"labels": [
"FAC"
],
"start": 8122,
"text": "\nThe department appears to have interpreted the aforesaid order as an implied cider of remand and issued a fresh notice to the respondent on the 27th July, 1972 and started fresh adjudication proceeding according to the implied direction of the Appellate Collector."
}
},
{
"from_name": null,
"id": "8ef0f6349e694de4b4b185b1ebf8858b",
"to_name": null,
"type": null,
"value": {
"end": 8636,
"labels": [
"FAC"
],
"start": 8388,
"text": "Thereafter the respondent filed a writ petition in the High Court of Madhya Pradesh assailing the notice and praying that the proceedings started by the Assistant Collector even after the vacation of the order by the Appellate Collector be quashed."
}
},
{
"from_name": null,
"id": "a352346ce71549a5b7e56604e13c6100",
"to_name": null,
"type": null,
"value": {
"end": 8809,
"labels": [
"FAC"
],
"start": 8637,
"text": "The plea taken by the respondent appears to have found favour with the High Court which allowed the petition, quashed the notice as also the fresh adjudication proceedings."
}
},
{
"from_name": null,
"id": "2b15f983e1ec4519a8e9c1957cc3b83b",
"to_name": null,
"type": null,
"value": {
"end": 8929,
"labels": [
"FAC"
],
"start": 8810,
"text": "The appellant obtained special leave of this Court against the order of the High Court and hence this appeal before us."
}
},
{
"from_name": null,
"id": "5c8fb191657d4eda98db42fbcb288908",
"to_name": null,
"type": null,
"value": {
"end": 9133,
"labels": [
"ARG_PETITIONER"
],
"start": 8930,
"text": "The only point that was contended before us by Mr. E. C.\n Agrawala appearing in support of the appeal was that the High 'Court has erred in not properly interpreting the order of the Appellate Collector."
}
},
{
"from_name": null,
"id": "bc16ed076b614c3c959f134977fd118c",
"to_name": null,
"type": null,
"value": {
"end": 9443,
"labels": [
"ARG_PETITIONER"
],
"start": 9134,
"text": "According to the learned counsel, a true and plain interpretation. of the order of the Appellate Collector would clearly reveal that he had merely vacated the order of the Assistant Collector because it suffered from a technical infirmity and had not barred the commencement of fresh adjudicatory proceedings."
}
},
{
"from_name": null,
"id": "f92aa36817c946a4bb1a99bb0433777b",
"to_name": null,
"type": null,
"value": {
"end": 9793,
"labels": [
"ARG_RESPONDENT"
],
"start": 9444,
"text": "Mr.\nNaunit Lal appearing for the respondent however submitted that there was no clear direction in the order of the Appellate Collector from which it could be inferred that he had remanded the case, and, therefore, there was no jurisdiction in the Assistant Collector to issue a fresh notice or start adjudicatory proceedings against the respondent."
}
},
{
"from_name": null,
"id": "3a32af5a87ba4d4bbd7d3bdee23ac6a9",
"to_name": null,
"type": null,
"value": {
"end": 9893,
"labels": [
"ANALYSIS"
],
"start": 9794,
"text": "In our opinion, the contention of counsel for- the appellants appears to be sound and must prevail."
}
},
{
"from_name": null,
"id": "a940982b91d440338614129260019ada",
"to_name": null,
"type": null,
"value": {
"end": 10672,
"labels": [
"ANALYSIS"
],
"start": 9894,
"text": "A perusal of the order of the Appellate Collector extracted above clearly shows two important facts : (1) that the Appellate Collector has not set aside or vacated the orderof the Assistant Collector on merits but has vacated it only on a technical infirmity, namely, the violation of the rules of_natural justice and that is why the Appellate Collector has advised used the words \"without prejudice\" in his order, (2) that the Assistant Collector in his order dated 30th June 1969 had directed confiscation of the watches and imposed a penalty of Rs. 250/- and if the Appellate Collector intended to set aside this order completely and irrevocably then he should have passed a consequential order for refund of the amount of the penalty and release of the property confiscated."
}
},
{
"from_name": null,
"id": "5178f10bdb1245bdb929318204e9f66c",
"to_name": null,
"type": null,
"value": {
"end": 10890,
"labels": [
"ANALYSIS"
],
"start": 10673,
"text": "The fact that no such order was passed by the Appellate Collector clearly shows that he never intended to bar fresh adjudicatory proceedings provided they were conducted according to the principles of natural justice."
}
},
{
"from_name": null,
"id": "b8f8ab61d18d4c2ba76894384f518b9e",
"to_name": null,
"type": null,
"value": {
"end": 11087,
"labels": [
"ANALYSIS"
],
"start": 10891,
"text": "It seems to us that whenever an order is struck down as invalid being in violation of the principles of natural justice there is no final decision of the cause and fresh proceedings are left open."
}
},
{
"from_name": null,
"id": "1b9d3f019117437498830f08d1f8f75e",
"to_name": null,
"type": null,
"value": {
"end": 11214,
"labels": [
"ANALYSIS"
],
"start": 11088,
"text": "AR that is done is that the order assailed by virtue of its inherent defect is vacated but the proceedings are not terminated."
}
},
{
"from_name": null,
"id": "832609c8502c4738a9d559ed2747db43",
"to_name": null,
"type": null,
"value": {
"end": 11927,
"labels": [
"PRE_RELIED"
],
"start": 11214,
"text": "\nIn the case of M/s. Thimmasamudram Tobacco Co. v. Assistant Collector of Central Excise, Nellore Dt. Nellore(2) while construing the provisions of the Central Excise and Salt Act which was almost on identical terms as the Customs Act a Division Bench of the Andhra Pradesh High Court observed as follows : \"Assuming that section 35 of the Central Excise Act does not clothe the appellate authority with power to remand the matter to the officer whose orders is appealed against nothing stands in the way of the Assistant Collector initiating the proceedings afresh, when his order was quashed not on merits but on technical grounds, i.e. for not following either the procedure or the dictates of natural justice."
}
},
{
"from_name": null,
"id": "db782ba2a17d49ae8948bc309314e7eb",
"to_name": null,
"type": null,
"value": {
"end": 12254,
"labels": [
"PRE_RELIED"
],
"start": 11928,
"text": "In a case where the flaw in the order appealed against consists of in the non-observance of certain procedure or in not giving effect to the maxim 'audi alteram partem', it is open to the officer concerned to start the procedure once against with a view to follow the rules of procedure and the principles of natural justice\"."
}
},
{
"from_name": null,
"id": "eb555d9ed8fd46a9ba127133f84d4972",
"to_name": null,
"type": null,
"value": {
"end": 12413,
"labels": [
"ANALYSIS"
],
"start": 12254,
"text": "\nWe find ourselves in complete agreement with the view taken by the Andhra Pradesh High Court and the observations made by Reddy, C.J. who spoke for the Court."
}
},
{
"from_name": null,
"id": "d89292852604443da214b6c1e2b9ed93",
"to_name": null,
"type": null,
"value": {
"end": 12697,
"labels": [
"ANALYSIS"
],
"start": 12414,
"text": "It is obvious that in the instant case the Appellate Collector found that the order of the Assistant Collector suffered from a serious procedural infirmity, viz., that it was passed without giving the respondent a proper opportunity of being heard, and, therefore, had to be vacated,"
}
},
{
"from_name": null,
"id": "61355028994a4a129c206eff2e080b8b",
"to_name": null,
"type": null,
"value": {
"end": 12864,
"labels": [
"ANALYSIS"
],
"start": 12698,
"text": "In such circumstances, therefore, it cannot be said that fresh proceedings by complying with the rules of natural justice could not be started against the respondent."
}
},
{
"from_name": null,
"id": "6e624bbfe19c40d591f1a652a1fb1e7b",
"to_name": null,
"type": null,
"value": {
"end": 13043,
"labels": [
"ANALYSIS"
],
"start": 12865,
"text": "The Appellate Collector has clearly used the words \"without (1) A.I.R. 1961 A p. 324prejudice \" which also indicate that the order of the Collector was not final and irrevocable."
}
},
{
"from_name": null,
"id": "39eba66a679e442789ac5e3569c3eca4",
"to_name": null,
"type": null,
"value": {
"end": 13445,
"labels": [
"ANALYSIS"
],
"start": 13044,
"text": "The term 'without prejudice has been defined in Black's Law Dictionary as follows : \"Where an offer or admission is made 'without prejudice', or a motion is denied or a bill in equity dismissed 'without prejudice', it is meant as a declaration that no rights or privileges of the party concerned are to be considered as thereby waived or lost, except in so far as may be expressly conceded or decided."
}
},
{
"from_name": null,
"id": "4c97950246f044f7a3a341a6c80b2640",
"to_name": null,
"type": null,
"value": {
"end": 13487,
"labels": [
"ANALYSIS"
],
"start": 13446,
"text": "See.. also, Dismissal without Prejudice\"."
}
},
{
"from_name": null,
"id": "6cb181cdf30d45ef90f59af15528dbe4",
"to_name": null,
"type": null,
"value": {
"end": 13903,
"labels": [
"ANALYSIS"
],
"start": 13487,
"text": "\nSimilarly, in Wharton's Law Lexicon the author while interpreting the term 'without prejudice' observed as follows \"The words import an understanding that if the negotiation fails, nothing that has passed shall be taken advantage of thereafter; so, if a defendant offer, 'without prejudice', to pay half the claim, the plaintiff must not only rely on the offer as an admission of his having a right to some payment."
}
},
{
"from_name": null,
"id": "9171d4e4e46a416995a5182759605fdc",
"to_name": null,
"type": null,
"value": {
"end": 14177,
"labels": [
"ANALYSIS"
],
"start": 13929,
"text": "'The rule is that nothing written or said 'without prejudice' can be considered at the trial without the consent of both parties-not even by a judge in determining whether or not there is good cause for depriving a successful litigant of costs ...."
}
},
{
"from_name": null,
"id": "a6551894f87b48deb4f746d655679ef5",
"to_name": null,
"type": null,
"value": {
"end": 14431,
"labels": [
"ANALYSIS"
],
"start": 14178,
"text": "The word is also frequently used without the foregoing implications in statutes and inter parties to exclude or save transactions, acts and rights from the consequences of a stated proposition and so as to mean not affection', 'saving' or 'excepting\"'.\n"
}
},
{
"from_name": null,
"id": "b92fb58ac98143ef9827809e5d6a0850",
"to_name": null,
"type": null,
"value": {
"end": 14632,
"labels": [
"ANALYSIS"
],
"start": 14431,
"text": "In short, therefore, the implication of ,he term 'without, prejudice' means (1) that the cause or the matter has not been decided on merits, (2) that fresh proceedings according to law were not barred."
}
},
{
"from_name": null,
"id": "18ee3c52261c4ba282750fd65bce8d5a",
"to_name": null,
"type": null,
"value": {
"end": 14952,
"labels": [
"ANALYSIS"
],
"start": 14633,
"text": "It is true that the Appellate Collector does not say in so many words that the case is remanded to the Assistant Collector but the tenor and the spirit of the order clearly shows that what he intended was that fresh proceedings should be started against the respondent after complying with the rules of natural justice."
}
},
{
"from_name": null,
"id": "5c929e6964614f7fa46dd289b7f337f5",
"to_name": null,
"type": null,
"value": {
"end": 15290,
"labels": [
"ANALYSIS"
],
"start": 14953,
"text": "Thus, in our view a true interpretation of the order of the Appellate Collector would be that the order of the Assistant Collector was a nullity having violated the rules of natural justice and having been vacated the parties would be relegated to the position which they occupied before the ,order of the Assistant Collector was passed."
}
},
{
"from_name": null,
"id": "3fd7c87d0f4b4da08830f71e81486a0f",
"to_name": null,
"type": null,
"value": {
"end": 15482,
"labels": [
"ANALYSIS"
],
"start": 15291,
"text": "In this view of the matter the Assistant Collector had ample jurisdiction in issuing the notice against the respondent in order to start fresh adjudicatory proceedings in accordance with law."
}
},
{
"from_name": null,
"id": "05016eeda653419b89c921544bd3f579",
"to_name": null,
"type": null,
"value": {
"end": 15821,
"labels": [
"PRE_NOT_RELIED"
],
"start": 15482,
"text": "\nThe High Court however strongly relied on two decisions, namely, the decision of the Madras High Court in the case of The Collector of Central Excise, Madras v. K. Palappa Nadar(1) and (1) A.I.R. 1964 Mad. 111.of the Gujarat High Court in the case of The Marsden Spg.\nand Co. Ltd. v. Shri L. V. Pol, Superintendent of Central Excise (Tax)"
}
},
{
"from_name": null,
"id": "1ff13b685fe04637aa8be068855d5703",
"to_name": null,
"type": null,
"value": {
"end": 16624,
"labels": [
"PRE_NOT_RELIED"
],
"start": 15822,
"text": "In the Madras case (supra) the order impugned ran as follows \"Having regard to all the circumstances of the case, the Central Board of Revenue hereby directs, without prejudice to the merits of the case, [italics (here in ') ours] the order dated 3rd March, 1956 passed by the Collector of Central Excise, Madras shall be vacated\".\n The High Court while interpreting the order observed as follows \"After careful consideration of the arguments of the learned Advocate General for the appellant and also of the respondent, we are of the opinion that, in the absence of any specific words in the order of the Central Board of Revenue, it is not possible to spell out from its terms a precise direction for a de novo enquiry, giving jurisdiction to the Collector, for that purpose\"."
}
},
{
"from_name": null,
"id": "242432fdbec24826a5916dbb7b786003",
"to_name": null,
"type": null,
"value": {
"end": 16782,
"labels": [
"ANALYSIS"
],
"start": 16625,
"text": "In our opinion, the interpretation put by the Madras High Court does not appear to be correct and is too narrow and does not carry out the object of the Act."
}
},
{
"from_name": null,
"id": "93450450f898454bb816c1fd357dfd3f",
"to_name": null,
"type": null,
"value": {
"end": 16944,
"labels": [
"ANALYSIS"
],
"start": 16783,
"text": "The Central Board of Revenue had merely vacated the order without prejudice to the merits of the case which clearly meant that the merits were not decided by it."
}
},
{
"from_name": null,
"id": "2c887c6d9a9d48edabed1d75f004ad73",
"to_name": null,
"type": null,
"value": {
"end": 17210,
"labels": [
"ANALYSIS"
],
"start": 16945,
"text": "Secondly, the order impugned in the Madras case (supra) does not indicate the ground on which the order was vacated whereas in the instant case the Appellate Collector has expressly stated that the order was vacated because it violated the rules of natural justice."
}
},
{
"from_name": null,
"id": "f9f72da8d1ee473ea1b871b237326b30",
"to_name": null,
"type": null,
"value": {
"end": 17300,
"labels": [
"ANALYSIS"
],
"start": 17210,
"text": "\nThe reason given by the Appellate Collector in the instant case makes all the difference."
}
},
{
"from_name": null,
"id": "c359c182067148728aaa538cf614c4bf",
"to_name": null,
"type": null,
"value": {
"end": 17516,
"labels": [
"ANALYSIS"
],
"start": 17301,
"text": "In these circumstances, therefore, the Madras case {supra) being clearly distinguishable as indicated above, we are of the opinion that the view taken by the Madras High Court is of no assistance to the respondent,'"
}
},
{
"from_name": null,
"id": "5ff39f6ff4d744c3a6543ad024117846",
"to_name": null,
"type": null,
"value": {
"end": 17597,
"labels": [
"PRE_NOT_RELIED"
],
"start": 17517,
"text": "The case of The Marsden Spg. & Co. Ltd. (supra) is also clearly distinguishable."
}
},
{
"from_name": null,
"id": "dd8a0a4a9a70441c9d4e9484a1b88db2",
"to_name": null,
"type": null,
"value": {
"end": 17902,
"labels": [
"ANALYSIS"
],
"start": 17598,
"text": "In that case the impugned, order was extracted thus :- \" Having regard to all the facts of the case and taking into account the contentions put forth by the appellants, I hereby order that the decision of the Superintendent Central Excise (Tax), Ahmedabad, shall be set aside.\n 2."
}
},
{
"from_name": null,
"id": "258fab3f81e34fa582ee3a08dadbe4b4",
"to_name": null,
"type": null,
"value": {
"end": 18046,
"labels": [
"ANALYSIS"
],
"start": 17903,
"text": "The amounts of excise duty and penalty recovered from the appellants in pursuance thereof shall be refunded to them\".\n "
}
},
{
"from_name": null,
"id": "585ba13013a24029af98ed3513470c4c",
"to_name": null,
"type": null,
"value": {
"end": 18307,
"labels": [
"ANALYSIS"
],
"start": 18046,
"text": "Construing this order the High Court observed as follows \"If the appellate order merely annulled the original order without containing any other directions, there was no power in the original tribunal to initiate de novo proceedings and impose a fresh penalty.\""
}
},
{
"from_name": null,
"id": "fac500932aa8465d94036e71b8b07e0a",
"to_name": null,
"type": null,
"value": {
"end": 18558,
"labels": [
"ANALYSIS"
],
"start": 18308,
"text": "(1) I.L.R. [1965] Guj. 111.It appears that the Gujarat High Court practically adopted the reasonings of the Madras High Court in the case mentioned above but the order impugned in the Gujarat case was clear and explicit and was final and irrevocable."
}
},
{
"from_name": null,
"id": "d78d276eaf5d427b99858976576637a8",
"to_name": null,
"type": null,
"value": {
"end": 18697,
"labels": [
"ANALYSIS"
],
"start": 18559,
"text": "The order clearly shows that it was passed on the merits of the case after taking into account the contentions put forth by the appellant."
}
},
{
"from_name": null,
"id": "3120e2563ddf402f9f9db148cb0e83ac",
"to_name": null,
"type": null,
"value": {
"end": 18931,
"labels": [
"ANALYSIS"
],
"start": 18698,
"text": "Secondly, the consequential order, viz., that the amount of excise duty and penalty recovered from the appellants was to be refunded to them which clearly indicated that there was no question of any fresh proceedings being initiated."
}
},
{
"from_name": null,
"id": "834efacb5eab4cadb1a0482be7aee459",
"to_name": null,
"type": null,
"value": {
"end": 19059,
"labels": [
"ANALYSIS"
],
"start": 18932,
"text": "On the other hand, in the instant case such a consequential order is wholly wanting in the judgment of the Appellate Collector."
}
},
{
"from_name": null,
"id": "1a1a5878b52c4dd5899570d98799156c",
"to_name": null,
"type": null,
"value": {
"end": 19242,
"labels": [
"ANALYSIS"
],
"start": 19060,
"text": "For these reasons, therefore, the Gujarat case is clearly distinguishable because the order in that case was couched in terms very different from the one we have in the instant case."
}
},
{
"from_name": null,
"id": "52b8bd1f1ef24e1c90005d0eba6948da",
"to_name": null,
"type": null,
"value": {
"end": 19675,
"labels": [
"RATIO"
],
"start": 19243,
"text": "Thus, on a careful consideration of the facts and circumstances of the present case we are clearly of the opinion that where an order passed in appeal vacates the order of the first tribunal on purely technical grounds and expressly states that it was being passed without prejudice which means an order not on the merits of the case, such as order does not debar fresh adjudicatory proceedings which may be justified under the law."
}
},
{
"from_name": null,
"id": "256e561b01894a6c835dc5a59e8d0a33",
"to_name": null,
"type": null,
"value": {
"end": 19944,
"labels": [
"RATIO"
],
"start": 19676,
"text": "It is necessary for the court interpreting an order of this kind to give full and complete effect to the exact words used by the authorities and not to draw a sweeping conclusion merely from the fact that no explicit direction has been made by the appellate authority."
}
},
{
"from_name": null,
"id": "7de0bf5e05e0459d816ab809dda9000d",
"to_name": null,
"type": null,
"value": {
"end": 20205,
"labels": [
"RATIO"
],
"start": 19945,
"text": "We are unable to agree in this case with the High Court that as no express words were used in the order of the Appellate Collector remanding the case the Assistant Collector was not justified in commencing fresh adjudicatory proceedings against the respondent."
}
},
{
"from_name": null,
"id": "6054549f9dc943b795be06081decb1ac",
"to_name": null,
"type": null,
"value": {
"end": 20490,
"labels": [
"RPC"
],
"start": 20205,
"text": "\n For these reasons, therefore, we allow the appeal, set aside the order of the High Court and dismiss the writ petition filed by the respondent in the High Court and restore the fresh adjudicatory proceedings started by the Assistant Collector by virtue of the notice dated 27-7-1972."
}
},
{
"from_name": null,
"id": "0365f94f81cd4e1f8db822b3bf11b507",
"to_name": null,
"type": null,
"value": {
"end": 20563,
"labels": [
"RPC"
],
"start": 20491,
"text": "In the peculiar circumstances of this case we make no order as to costs."
}
},
{
"from_name": null,
"id": "068e759610734e97ab3b8fdd743959b1",
"to_name": null,
"type": null,
"value": {
"end": 20605,
"labels": [
"RPC"
],
"start": 20563,
"text": "\n S. R. Appeal allowed."
}
}
]
}
] | 4,146 | {
"text": "PETITIONER:\nSUPERINTENDENT (TECH. I) CENTRAL EXCISE I.D.D.JABALPUR AND\n\n Vs.\n\nRESPONDENT:\nPRATAP RAI\n\nDATE OF JUDGMENT26/04/1978\n\nBENCH:\nFAZALALI, SYED MURTAZA\nBENCH:\nFAZALALI, SYED MURTAZA\nSINGH, JASWANT\nPATHAK, R.S.\n\nCITATION:\n\n1978 AIR 1244 1978 SCR (3) 729\n (4)\n1978 SCC (3) 113\n\nCITATOR INFO :\n\nR 1981 SC 858\n\nACT:\nNatural Justice, Principles of-When an order is struck down\nby the appellate authority being in violation of the\nprinciples of natural justice, there is no final decision\nand fresh proceedings can be taken-Interpretation of the\nAppellate Collector's orders-Words and Phrases-Meaning of\n\"without prejudice\" Customs Act, Section 122 and 128.\n\nHEADNOTE:\nTwenty-three watches on which no custom duty was paid were\nseized from the respondent by the Customs Authorities and in\nthe adjudication proceedings under section 122 of the\nCustoms Act, the Assistant Collector of Customs ordered that\nthe watches which were seized be confiscated and imposed a\npenalty of Rs. 250/- on the respondent under Section 112 of\nthe Act. In appeal, the Appellate Collector by his order\ndated 22-2-1972 vacated \"without prejudice\" the order of the\nAssistant Collector mainly on the ground that the Assistant\nCollector had not complied with the rules of natural\njustice. The department interpreted the order as an implied\norder of remand and issued a fresh notice to the respondent\non 27-7-1972 and started fresh adjudication proceedings.\nThereafter, the respondent filed in the High Court of Madhya\nPradesh, a writ petition which was allowed. The notice and\nthe fresh adjudication proceedings were quashed.\nAllowing the appeal by special leave, the Court\nHELD : 1. Where an order passed in appeal vacates the order\nof the first tribunal on purely technical grounds and\nexpressly states that it was being passed without prejudice\nwhich means an order not on the merits of the case, such an\norder does not debar fresh adjudicatory proceedings which\nmay be justified under the law. It is necessary for the\ncourt interpreting an order of this kind to give full and\ncomplete effect to the exact words used by the authorities\nand not to draw a sweeping conclusion merely from the fact\nthat no explicit direction has been made by the appellate\nauthority. [735 C-D]\n2. (a) Whenever an order is struck down as invalid being\nin violation of the principles of natural justice there is\n\nno final decision of the cause and fresh proceedings are\nleft open. All that is done. is that the order assailed by\nvirtue of its inherent defect is vacated but the proceedings\nare not terminated.\n\n [732 C]\n(b) In the instant case\nA perusal of the order of the Appellate Authority clearly\nshows two important facts : (1) that the Appellant Collector\nhas not set aside or vacated the order of the Assistant\nCollector on merits but has vacated it only on a technical\ninfirmity, namely, the violation of the rules of natural\njustice and that is why the Appellate Collector has\nadvisedly used the words \"without prejudice\" in his order,\n(2) that the Assistant Collector in his order dated 30th\nJune. 1969 had directed confiscation of the watches and\nimposed a penalty of Rs. 250/- and if the Appellate\nCollector intended to set aside this order completely and\nirrevocably then he should have passed a consequential order\nfor refund of the amount of the penalty and release of the\nproperty confiscated. The fact that no such order was\npassed by the Appellate Collector clearly shows that he\nnever intended to bar fresh adjudicatory proceedings\nprovided they were conducted according to the principles of\nnatural justice. [731 A, 732 A-C]\n(ii) The Appellate Collector found that the order of the\nAssistant Collector suffered from a serious procedural\ninfirmity, viz., that it was passed without\n12-315SCI/78giving the respondent a proper opportunity of being heard,\nand therefore, it cannot be said that fresh proceedings by\ncomplying with the rules of natural justice could not be\nstarted against the respondent. The Appellate Collector has\nclearly used the words \"without prejudice\" which also\nindicate that the order of the Collector was not final and\nirrevocable. [732 G-H, 733 A]\nM/s Thimmasamudram Tobacco Co. v. Assistant Collector of\nCentral Excise, Nellore Dt. Nellore, A.I.R. 1961 A.P. 324\napproved.\n3. (a) The implication of the term \"without prejudice\"\nmeans (1) that the cause or the matter has not been decided\non merits, (2) that fresh proceedings according to law were\nnot barred. It is true that the Appellate Collector does\nnot say in so many words that the case is remanded to the\nAssistant Collector but the tenor and the spirit of the\norder clearly shows that what he intended was that fresh\nproceedings should be started against the respondent after\ncomplying with the rules of natural justice. [733E-F]\n(b) A true interpretation of the order of the Appellate\nCollector would be that the order of the Assistant Collector\nwas a nullity having violated the rules of natural justice\nand having been vacated the parties would be relegated to\nthe position which they occupied before the order of the\nAssistant Collector was passed. In this view of the matter\nthe Assistant Collector had ample jurisdiction in issuing\nthe notice against the respondent in order to start fresh\nadjudicatory proceedings in accordance with law. [733F-G]\nCollector of Central Excise, Madras v. K. Pulappa Nadar,\nA.I.R. 1964 Mad. III and The Marsden Spg. and Co. Ltd. v.\nShri L. V. Pol. Superintendent of Central Excise (Tax),\nI.L.R. 1965 Guj. III criticised, discussed and distin-\nguished.\n\nJUDGMENT:\nCIVIL APPELLATE JURISDICTION : Civil Appeal No. 363 of 1978.\nAppeal by Special Leave from the Judgment and Order dated the 29th November 1976 of the Madhya Pradesh High Court in M.P. No. 32 of 1973.\nE.C. Agarwala and Girish Chandra for the Appellant.\nNaunit Lal and Kailash Vasdev for Respondent.\nThe Judgment of the Court was delivered by FAZAL ALI, J.-This appeal by special leave is directed against the judgment of the Madhya Pradesh High Court dated 19th November 1976 by which the High Court quashed the notice dated 27th July 1972 issued by the Assistant Collector of Customs and also quashed fresh adjudication proceedings started by him under the provisions of the Customs Act (hereinafter referred to as the Act).\nThe appeal lies within a very narrow compass and turns upon the interpretation of the order passed by the appellate authority under section 128 of the Act. On 27th February 1969 the respondent Pratap Rai was detrained at Jabalpur by the Customs authorities while he was travelling by the Bombay Janta Express. On being searched as many as 23 wrist watches on which no custom duty was paid were recovered from his person. Thereafter adjudication proceedings under section 122 of the Act were commenced by the Assistant Col- lector of Customs which culminated in the order of the AssistantCollector dated 30th June, 1969 by which the watches were seized and ordered to be confiscated. A penalty of Rs.\n250/- was levied on the respondent under section 112 of the Act. The respondent then carried an appeal to the Appellate Collector under section 128 of the Act against the order of the Assistant Collector. The Appellate Collector by his order dated 22nd February 1972 vacated the order of the Assistant Collector mainly on the ground that the Assistant Collector had not complied with the rules of natural justice. The fate of this case depends on the interpretation of the order passed by the Appellate Collector.\nIn order to appreciate the point in issue it may be necessary to ,extract the relevant portion of the order of the Appellate Collector which runs thus :- \"The adjudication, therefore, suffers for lack of principle of natural justice, inasmuch as adequate opportunities were not given to the appellant to defend his case. 1, therefore, without prejudice, vacate the order of the adjudication passed by the Assistant Collector, Central Excice, Jabalpur.\"\n (Emphasis, supplied).\nThe department appears to have interpreted the aforesaid order as an implied cider of remand and issued a fresh notice to the respondent on the 27th July, 1972 and started fresh adjudication proceeding according to the implied direction of the Appellate Collector. Thereafter the respondent filed a writ petition in the High Court of Madhya Pradesh assailing the notice and praying that the proceedings started by the Assistant Collector even after the vacation of the order by the Appellate Collector be quashed. The plea taken by the respondent appears to have found favour with the High Court which allowed the petition, quashed the notice as also the fresh adjudication proceedings. The appellant obtained special leave of this Court against the order of the High Court and hence this appeal before us.\nThe only point that was contended before us by Mr. E. C.\n Agrawala appearing in support of the appeal was that the High 'Court has erred in not properly interpreting the order of the Appellate Collector. According to the learned counsel, a true and plain interpretation. of the order of the Appellate Collector would clearly reveal that he had merely vacated the order of the Assistant Collector because it suffered from a technical infirmity and had not barred the commencement of fresh adjudicatory proceedings. Mr.\nNaunit Lal appearing for the respondent however submitted that there was no clear direction in the order of the Appellate Collector from which it could be inferred that he had remanded the case, and, therefore, there was no jurisdiction in the Assistant Collector to issue a fresh notice or start adjudicatory proceedings against the respondent. In our opinion, the contention of counsel for- the appellants appears to be sound and must prevail. A perusal of the order of the Appellate Collector extracted above clearly shows two important facts : (1) that the Appellate Collector has not set aside or vacated the orderof the Assistant Collector on merits but has vacated it only on a technical infirmity, namely, the violation of the rules of_natural justice and that is why the Appellate Collector has advised used the words \"without prejudice\" in his order, (2) that the Assistant Collector in his order dated 30th June 1969 had directed confiscation of the watches and imposed a penalty of Rs. 250/- and if the Appellate Collector intended to set aside this order completely and irrevocably then he should have passed a consequential order for refund of the amount of the penalty and release of the property confiscated. The fact that no such order was passed by the Appellate Collector clearly shows that he never intended to bar fresh adjudicatory proceedings provided they were conducted according to the principles of natural justice. It seems to us that whenever an order is struck down as invalid being in violation of the principles of natural justice there is no final decision of the cause and fresh proceedings are left open. AR that is done is that the order assailed by virtue of its inherent defect is vacated but the proceedings are not terminated.\nIn the case of M/s. Thimmasamudram Tobacco Co. v. Assistant Collector of Central Excise, Nellore Dt. Nellore(2) while construing the provisions of the Central Excise and Salt Act which was almost on identical terms as the Customs Act a Division Bench of the Andhra Pradesh High Court observed as follows : \"Assuming that section 35 of the Central Excise Act does not clothe the appellate authority with power to remand the matter to the officer whose orders is appealed against nothing stands in the way of the Assistant Collector initiating the proceedings afresh, when his order was quashed not on merits but on technical grounds, i.e. for not following either the procedure or the dictates of natural justice. In a case where the flaw in the order appealed against consists of in the non-observance of certain procedure or in not giving effect to the maxim 'audi alteram partem', it is open to the officer concerned to start the procedure once against with a view to follow the rules of procedure and the principles of natural justice\".\nWe find ourselves in complete agreement with the view taken by the Andhra Pradesh High Court and the observations made by Reddy, C.J. who spoke for the Court. It is obvious that in the instant case the Appellate Collector found that the order of the Assistant Collector suffered from a serious procedural infirmity, viz., that it was passed without giving the respondent a proper opportunity of being heard, and, therefore, had to be vacated, In such circumstances, therefore, it cannot be said that fresh proceedings by complying with the rules of natural justice could not be started against the respondent. The Appellate Collector has clearly used the words \"without (1) A.I.R. 1961 A p. 324prejudice \" which also indicate that the order of the Collector was not final and irrevocable. The term 'without prejudice has been defined in Black's Law Dictionary as follows : \"Where an offer or admission is made 'without prejudice', or a motion is denied or a bill in equity dismissed 'without prejudice', it is meant as a declaration that no rights or privileges of the party concerned are to be considered as thereby waived or lost, except in so far as may be expressly conceded or decided. See.. also, Dismissal without Prejudice\".\nSimilarly, in Wharton's Law Lexicon the author while interpreting the term 'without prejudice' observed as follows \"The words import an understanding that if the negotiation fails, nothing that has passed shall be taken advantage of thereafter; so, if a defendant offer, 'without prejudice', to pay half the claim, the plaintiff must not only rely on the offer as an admission of his having a right to some payment.\n 'The rule is that nothing written or said 'without prejudice' can be considered at the trial without the consent of both parties-not even by a judge in determining whether or not there is good cause for depriving a successful litigant of costs .... The word is also frequently used without the foregoing implications in statutes and inter parties to exclude or save transactions, acts and rights from the consequences of a stated proposition and so as to mean not affection', 'saving' or 'excepting\"'.\nIn short, therefore, the implication of ,he term 'without, prejudice' means (1) that the cause or the matter has not been decided on merits, (2) that fresh proceedings according to law were not barred. It is true that the Appellate Collector does not say in so many words that the case is remanded to the Assistant Collector but the tenor and the spirit of the order clearly shows that what he intended was that fresh proceedings should be started against the respondent after complying with the rules of natural justice. Thus, in our view a true interpretation of the order of the Appellate Collector would be that the order of the Assistant Collector was a nullity having violated the rules of natural justice and having been vacated the parties would be relegated to the position which they occupied before the ,order of the Assistant Collector was passed. In this view of the matter the Assistant Collector had ample jurisdiction in issuing the notice against the respondent in order to start fresh adjudicatory proceedings in accordance with law.\nThe High Court however strongly relied on two decisions, namely, the decision of the Madras High Court in the case of The Collector of Central Excise, Madras v. K. Palappa Nadar(1) and (1) A.I.R. 1964 Mad. 111.of the Gujarat High Court in the case of The Marsden Spg.\nand Co. Ltd. v. Shri L. V. Pol, Superintendent of Central Excise (Tax) In the Madras case (supra) the order impugned ran as follows \"Having regard to all the circumstances of the case, the Central Board of Revenue hereby directs, without prejudice to the merits of the case, [italics (here in ') ours] the order dated 3rd March, 1956 passed by the Collector of Central Excise, Madras shall be vacated\".\n The High Court while interpreting the order observed as follows \"After careful consideration of the arguments of the learned Advocate General for the appellant and also of the respondent, we are of the opinion that, in the absence of any specific words in the order of the Central Board of Revenue, it is not possible to spell out from its terms a precise direction for a de novo enquiry, giving jurisdiction to the Collector, for that purpose\".\nIn our opinion, the interpretation put by the Madras High Court does not appear to be correct and is too narrow and does not carry out the object of the Act. The Central Board of Revenue had merely vacated the order without prejudice to the merits of the case which clearly meant that the merits were not decided by it. Secondly, the order impugned in the Madras case (supra) does not indicate the ground on which the order was vacated whereas in the instant case the Appellate Collector has expressly stated that the order was vacated because it violated the rules of natural justice.\nThe reason given by the Appellate Collector in the instant case makes all the difference. In these circumstances, therefore, the Madras case {supra) being clearly distinguishable as indicated above, we are of the opinion that the view taken by the Madras High Court is of no assistance to the respondent,' The case of The Marsden Spg. & Co. Ltd. (supra) is also clearly distinguishable. In that case the impugned, order was extracted thus :- \" Having regard to all the facts of the case and taking into account the contentions put forth by the appellants, I hereby order that the decision of the Superintendent Central Excise (Tax), Ahmedabad, shall be set aside.\n 2. The amounts of excise duty and penalty recovered from the appellants in pursuance thereof shall be refunded to them\".\n Construing this order the High Court observed as follows \"If the appellate order merely annulled the original order without containing any other directions, there was no power in the original tribunal to initiate de novo proceedings and impose a fresh penalty.\"\n(1) I.L.R. [1965] Guj. 111.It appears that the Gujarat High Court practically adopted the reasonings of the Madras High Court in the case mentioned above but the order impugned in the Gujarat case was clear and explicit and was final and irrevocable. The order clearly shows that it was passed on the merits of the case after taking into account the contentions put forth by the appellant. Secondly, the consequential order, viz., that the amount of excise duty and penalty recovered from the appellants was to be refunded to them which clearly indicated that there was no question of any fresh proceedings being initiated. On the other hand, in the instant case such a consequential order is wholly wanting in the judgment of the Appellate Collector. For these reasons, therefore, the Gujarat case is clearly distinguishable because the order in that case was couched in terms very different from the one we have in the instant case. Thus, on a careful consideration of the facts and circumstances of the present case we are clearly of the opinion that where an order passed in appeal vacates the order of the first tribunal on purely technical grounds and expressly states that it was being passed without prejudice which means an order not on the merits of the case, such as order does not debar fresh adjudicatory proceedings which may be justified under the law. It is necessary for the court interpreting an order of this kind to give full and complete effect to the exact words used by the authorities and not to draw a sweeping conclusion merely from the fact that no explicit direction has been made by the appellate authority. We are unable to agree in this case with the High Court that as no express words were used in the order of the Appellate Collector remanding the case the Assistant Collector was not justified in commencing fresh adjudicatory proceedings against the respondent.\n For these reasons, therefore, we allow the appeal, set aside the order of the High Court and dismiss the writ petition filed by the respondent in the High Court and restore the fresh adjudicatory proceedings started by the Assistant Collector by virtue of the notice dated 27-7-1972. In the peculiar circumstances of this case we make no order as to costs.\n S. R. Appeal allowed.\n "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "0645f7181bc14bdbbf6a623865169c17",
"to_name": null,
"type": null,
"value": {
"end": 66,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nC.I.T.\n\n Vs.\n\nRESPONDENT:\nEXPRESS NEWSPAPERS LTD."
}
},
{
"from_name": null,
"id": "915b117a7ad249f2b8b8b932f463c06f",
"to_name": null,
"type": null,
"value": {
"end": 94,
"labels": [
"PREAMBLE"
],
"start": 66,
"text": "\n\nDATE OF JUDGMENT11/01/1994"
}
},
{
"from_name": null,
"id": "7be6c0c30968494e8c7a08155342c7d0",
"to_name": null,
"type": null,
"value": {
"end": 347,
"labels": [
"PREAMBLE"
],
"start": 94,
"text": "\n\nBENCH:\nJEEVAN REDDY, B.P. (J)\nBENCH:\nJEEVAN REDDY, B.P. (J)\nVERMA, JAGDISH SARAN (J)\nYOGESHWAR DAYAL (J)\n\nCITATION: 1994 SCR (1) 64\n 1994 AIR 1389 JT 1994 (1) 50\n 1994 SCC (2) 374\n 1994 SCALE (1)39\n\nACT:\n\nHEADNOTE:\n\nJUDGMENT"
}
},
{
"from_name": null,
"id": "ae7b741b8c2344a394860a709fb650ef",
"to_name": null,
"type": null,
"value": {
"end": 409,
"labels": [
"NONE"
],
"start": 347,
"text": ":\nThe Judgment of the Court was delivered by JEEVAN REDDY, J.-"
}
},
{
"from_name": null,
"id": "90ebd601668749c098d4fee2770513b4",
"to_name": null,
"type": null,
"value": {
"end": 628,
"labels": [
"FAC"
],
"start": 410,
"text": "These appeals are preferred by the Revenue against the order of the Settlement Commission in the case of the respondent Express Newspapers Limited, Madras relating to the assessment years 1985-86, 1986-87 and 1987- 88."
}
},
{
"from_name": null,
"id": "dd548856c76048b5b2acde4534957320",
"to_name": null,
"type": null,
"value": {
"end": 777,
"labels": [
"FAC"
],
"start": 629,
"text": "It raises certain important questions with respect to the jurisdiction of the Settlement Commission under Chapter XIX-A of the Income Tax Act, 1961."
}
},
{
"from_name": null,
"id": "13bd456cab044e6cae0227dc967c9988",
"to_name": null,
"type": null,
"value": {
"end": 863,
"labels": [
"FAC"
],
"start": 778,
"text": "We have heard Dr Gaurishankar for the appellant and Ms Bina Gupta for the respondent."
}
},
{
"from_name": null,
"id": "ff74775ac59d4318b81e71b7fe05b987",
"to_name": null,
"type": null,
"value": {
"end": 1058,
"labels": [
"FAC"
],
"start": 864,
"text": "We may mention here that when called upon to argue, after the conclusion of submissions by Dr Gaun'shankar, Ms Bina Gupta asked us to adjourn the matter to enable her to engage a senior counsel."
}
},
{
"from_name": null,
"id": "69fbc2e4efa24148a9b10913e7f7f120",
"to_name": null,
"type": null,
"value": {
"end": 1193,
"labels": [
"FAC"
],
"start": 1059,
"text": "We refused to do so since it was the first case in the list that day and the request was made after the commencement of the arguments."
}
},
{
"from_name": null,
"id": "2d44012571cb49cd949c5388dfeecf73",
"to_name": null,
"type": null,
"value": {
"end": 1218,
"labels": [
"FAC"
],
"start": 1193,
"text": "\nWe then heard her fully."
}
},
{
"from_name": null,
"id": "5a981a2ba2ad477096b2b4d4b6f78a97",
"to_name": null,
"type": null,
"value": {
"end": 1339,
"labels": [
"FAC"
],
"start": 1219,
"text": "Relevant facts of the case: 2.The respondent-assessee filed its return for the assessment year 1985-86 on July 22, 1985."
}
},
{
"from_name": null,
"id": "c79bb998526d4e78aa3f5107a5796d17",
"to_name": null,
"type": null,
"value": {
"end": 1388,
"labels": [
"FAC"
],
"start": 1340,
"text": "A revised return was filed on February 26, 1988."
}
},
{
"from_name": null,
"id": "36f4a1bad0774744b9135b915a4345fb",
"to_name": null,
"type": null,
"value": {
"end": 1425,
"labels": [
"FAC"
],
"start": 1389,
"text": "It disclosed a loss of Rs 32,80,700."
}
},
{
"from_name": null,
"id": "ab54936f9a724751b5e75bee9fa2db5f",
"to_name": null,
"type": null,
"value": {
"end": 1530,
"labels": [
"FAC"
],
"start": 1426,
"text": "The Assessing Officer, however, assessed the income at Rs 1,27,95,570 by his order dated March 30, 1988."
}
},
{
"from_name": null,
"id": "dfcf3b9b8bb44301a4c342415623b5da",
"to_name": null,
"type": null,
"value": {
"end": 1815,
"labels": [
"FAC"
],
"start": 1531,
"text": "The Assessing Officer held that the transactions of sale and purchase of potatoes, iron scrap and shares, from which the assessee claimed to have suffered huge losses were not true but were bogus transactions fabricated for the purpose of evading the legitimate tax due on its income."
}
},
{
"from_name": null,
"id": "979cad6f1c3d48faa636c102f5b6f898",
"to_name": null,
"type": null,
"value": {
"end": 1932,
"labels": [
"FAC"
],
"start": 1816,
"text": "The assesses preferred an appeal before the CIT (Appeals), who dismissed the same by his order dated March 31, 1989."
}
},
{
"from_name": null,
"id": "a4c869c213594e61813aceea46293658",
"to_name": null,
"type": null,
"value": {
"end": 2118,
"labels": [
"FAC"
],
"start": 1933,
"text": "During the pendency of the said appeal, the assessee approached the Commission on December 16, 1988 with respect to four assessment years namely, 1985-86, 1986-87, 1987-88 and 1988- 89."
}
},
{
"from_name": null,
"id": "87067b837f4145cb941ca223e96bd5cd",
"to_name": null,
"type": null,
"value": {
"end": 2225,
"labels": [
"FAC"
],
"start": 2119,
"text": "On that date, the assessments relating to the three later years were pending before the Assessing Officer."
}
},
{
"from_name": null,
"id": "19b0aef47f644cd3b0e6e5340ac9a975",
"to_name": null,
"type": null,
"value": {
"end": 2301,
"labels": [
"FAC"
],
"start": 2226,
"text": "The application to the Commission made by the assessee is in Form No. 34-B."
}
},
{
"from_name": null,
"id": "c365690319ea4fa5bc8ab4c09ef8616e",
"to_name": null,
"type": null,
"value": {
"end": 2527,
"labels": [
"FAC"
],
"start": 2302,
"text": "In Column 10 the assessee stated that the case involved substantial issues and amount, that the transactions of the assessees were large and diverse and that the case calls for judicial approach and appreciation of the facts."
}
},
{
"from_name": null,
"id": "fc9c5d4ec7344d95b7a0c83b8ea09ba1",
"to_name": null,
"type": null,
"value": {
"end": 2760,
"labels": [
"FAC"
],
"start": 2528,
"text": "It requested the Commission to determine the tax payable for the aforesaid four assessment years, to confer immunity upon it from the levy of penalty and prosecution, and waiver of interest chargeable under the provision of the Act."
}
},
{
"from_name": null,
"id": "fd08c90ce6ea4b38a02c69dcdd770058",
"to_name": null,
"type": null,
"value": {
"end": 3033,
"labels": [
"ARG_RESPONDENT"
],
"start": 2761,
"text": "Through this application, the respondent-assessee offered for tax \"an additional total income of Rs 1,32,27,969 over and above the income offered for assessment in the returns for the assessment years 1985-86 to 1988-89 on which the tax payable works out to Rs 14,35,720\"."
}
},
{
"from_name": null,
"id": "d023e0bda3624566a035de97ccc16d9e",
"to_name": null,
"type": null,
"value": {
"end": 3275,
"labels": [
"ARG_RESPONDENT"
],
"start": 3034,
"text": "The respondent further complained that the department \"has conducted a hostile and unfair investigation, has concluded assessment and has raised large demands based on disallowances and additions without providing an opportunity whatsoever\"."
}
},
{
"from_name": null,
"id": "0ab2cf61e9cb459797fb4e285bc483f7",
"to_name": null,
"type": null,
"value": {
"end": 3589,
"labels": [
"ARG_RESPONDENT"
],
"start": 3276,
"text": "The respondent requested the Commission to grant \"an ad interim order restraining the Assessing Officer from going ahead with further proceedings in regard to the assessment years sought to be settled hereby so that the application is not rendered otiose by any action of the department during the interrogation\"."
}
},
{
"from_name": null,
"id": "a18d5080d76e4c578a88e34a2c304196",
"to_name": null,
"type": null,
"value": {
"end": 3783,
"labels": [
"FAC"
],
"start": 3590,
"text": "In short, the respondent did not disclose any income not disclosed before the Assessing Officer but merely offered a small part of the losses claimed by it for the said assessment years to tax."
}
},
{
"from_name": null,
"id": "474a06f0640d4dd7a1a5a2ca853c9b05",
"to_name": null,
"type": null,
"value": {
"end": 3862,
"labels": [
"ARG_RESPONDENT"
],
"start": 3783,
"text": "\nAccording to the respondent, it was doing so to buy peace from the department."
}
},
{
"from_name": null,
"id": "5fc908a342e5425eb05900800b2f3db3",
"to_name": null,
"type": null,
"value": {
"end": 3940,
"labels": [
"FAC"
],
"start": 3863,
"text": "A copy of the application filed by the assessee was sent to the Commissioner."
}
},
{
"from_name": null,
"id": "177d2adc05934c1b9f4bbb6197cbeb9c",
"to_name": null,
"type": null,
"value": {
"end": 3995,
"labels": [
"FAC"
],
"start": 3941,
"text": "The Commissioner submitted his report on July 6, 1989."
}
},
{
"from_name": null,
"id": "4c92fcfdca0c4e6ea92a237073d3c5a8",
"to_name": null,
"type": null,
"value": {
"end": 4164,
"labels": [
"FAC"
],
"start": 3996,
"text": "In this report, the Commissioner stated the following facts and objections: 3.The respondent-assessee owns substantial house properties in Bombay, Madras and New Delhi."
}
},
{
"from_name": null,
"id": "3852439d92c04990ab45a6a67d7b3cef",
"to_name": null,
"type": null,
"value": {
"end": 4234,
"labels": [
"FAC"
],
"start": 4165,
"text": "The gross rental income derived therefrom is about rupees two crores."
}
},
{
"from_name": null,
"id": "6701a62a727b42ebb3b476eb3e6d4823",
"to_name": null,
"type": null,
"value": {
"end": 4341,
"labels": [
"FAC"
],
"start": 4234,
"text": "\nApart from the above, the assessee \"reportedly had a merchandise division stated to be run from Calcutta\"."
}
},
{
"from_name": null,
"id": "b669da4044da4daa8d6fe86b1bc4022c",
"to_name": null,
"type": null,
"value": {
"end": 4455,
"labels": [
"FAC"
],
"start": 4342,
"text": "The activities of this division were reported to be in the purchase and sale of potatoes, metal scrap and shares."
}
},
{
"from_name": null,
"id": "f7b26e7880b848b6ad3e6b7d6fba0c3d",
"to_name": null,
"type": null,
"value": {
"end": 4533,
"labels": [
"FAC"
],
"start": 4456,
"text": "The assessments for the various years are pending with the Assessing Officer."
}
},
{
"from_name": null,
"id": "601fa3f4c00d463e93ef39198bff6076",
"to_name": null,
"type": null,
"value": {
"end": 4621,
"labels": [
"FAC"
],
"start": 4534,
"text": "Some of the past completed assessments have been reopened under Section 147 of the Act."
}
},
{
"from_name": null,
"id": "c86dd873608f4a5fa099bfc6030e772a",
"to_name": null,
"type": null,
"value": {
"end": 4750,
"labels": [
"FAC"
],
"start": 4622,
"text": "The details of the income/loss disclosed by the assessee for the four assessment years are stated in the Annexure to the report."
}
},
{
"from_name": null,
"id": "4c9d9a471ad04d2abe860dfd6a6a51ab",
"to_name": null,
"type": null,
"value": {
"end": 5048,
"labels": [
"FAC"
],
"start": 4751,
"text": "\"Enquiries regarding the claims made by the company for losses on transactions in these years had commenced before the date of filing of the application by the company with the Settlement Commission and these enquiries had reached a final stage even before the petition was filed by the assessee\"."
}
},
{
"from_name": null,
"id": "ddbbdf3bf5404e689bfcb41f682bfc37",
"to_name": null,
"type": null,
"value": {
"end": 5312,
"labels": [
"FAC"
],
"start": 5048,
"text": "\n4.The Commissioner then set out the comprehensive and elaborate enquiries made by the department into the claims made by the assessee company relating to its alleged dealings in potatoes, scrap and shares from which it claimed to have suffered substantial losses."
}
},
{
"from_name": null,
"id": "ca7ff0955f7d4fa49361f1d9cfa6e506",
"to_name": null,
"type": null,
"value": {
"end": 5456,
"labels": [
"FAC"
],
"start": 5313,
"text": "He referred to the statements of parties, through whom the said transactions were said to have been put through, denying any such transactions."
}
},
{
"from_name": null,
"id": "74b4a1bb1572410b9ef318b9e79508e2",
"to_name": null,
"type": null,
"value": {
"end": 5718,
"labels": [
"FAC"
],
"start": 5457,
"text": "He pointed out with reference to the books of the assessee and other relevant persons that the several alleged payments were not real and that the several transactions disclosed by the assessee were mere make- believe and that all those entries were fabricated."
}
},
{
"from_name": null,
"id": "40191bae180c46e3931e42817a7973c5",
"to_name": null,
"type": null,
"value": {
"end": 5836,
"labels": [
"FAC"
],
"start": 5719,
"text": "Some of the parties who made statements adverse to the assessee's interest, were also cross-examined by the assessee."
}
},
{
"from_name": null,
"id": "41d3b83e940b4ee9b08e0ff0b90cda2b",
"to_name": null,
"type": null,
"value": {
"end": 5997,
"labels": [
"ANALYSIS"
],
"start": 5837,
"text": "We do not think it necessary to refer to or set out the particulars of the investigation and inquiries made or the material gathered, referred to in the report."
}
},
{
"from_name": null,
"id": "2e863b5fd53146bf9988f49804d5636f",
"to_name": null,
"type": null,
"value": {
"end": 6096,
"labels": [
"ANALYSIS"
],
"start": 5998,
"text": "It sets out the material separately with respect to alleged dealings in potatoes, scrap andshares."
}
},
{
"from_name": null,
"id": "9a78dbc20a9a4eb98b4610e7de7d6d59",
"to_name": null,
"type": null,
"value": {
"end": 6170,
"labels": [
"ANALYSIS"
],
"start": 6097,
"text": "It would suffice to set out the concluding paragraphs of the said report."
}
},
{
"from_name": null,
"id": "4f9af3ad5d9547329de367e542b1a58c",
"to_name": null,
"type": null,
"value": {
"end": 6462,
"labels": [
"FAC"
],
"start": 6171,
"text": "They read: \"The discussion above would therefore conclusively establish the fact that the department has in its possession documents and materials to lead to the view that the assessee had fraudulently claimed losses on various accounts for the assessment years 1985-86, 1986-87 and 1987-88."
}
},
{
"from_name": null,
"id": "7b028be00e2443bfb7902d377f3fa8ae",
"to_name": null,
"type": null,
"value": {
"end": 6610,
"labels": [
"FAC"
],
"start": 6463,
"text": "The department has acted on these, had conducted its own inquiries and had disallowed the claims and treated them as part of the assessee's income."
}
},
{
"from_name": null,
"id": "babf6f5e464b4c0399774e63d205d72b",
"to_name": null,
"type": null,
"value": {
"end": 6816,
"labels": [
"ANALYSIS"
],
"start": 6610,
"text": "\n For the assessment year 1985-86, complaint under Sections 276C, 277, 278 and 278-B of the Income Tax Act has been filed before the Additional Chief Metropolitan Magistrate, Egmore."
}
},
{
"from_name": null,
"id": "3dd08c4ce34040fc8c826d47175200a1",
"to_name": null,
"type": null,
"value": {
"end": 6984,
"labels": [
"ANALYSIS"
],
"start": 6817,
"text": "Therefore, for the assessment years 1985-86, 1986-87 and 1987-88 the petition filed by the company before the Settlement Commission is not a correct statement of fact."
}
},
{
"from_name": null,
"id": "917d0fa5451d4785a3a42f291fef7264",
"to_name": null,
"type": null,
"value": {
"end": 7219,
"labels": [
"ANALYSIS"
],
"start": 7010,
"text": "As far as the assessment year 1988-89 is concerned, the assessee company filed its return of income on July 11, 1988 accompanied by a copy of the profit and loss account and balance-sheet as on March 31, 1988."
}
},
{
"from_name": null,
"id": "2df9e6e35768419b930cc54bc70f6f24",
"to_name": null,
"type": null,
"value": {
"end": 7343,
"labels": [
"ANALYSIS"
],
"start": 7220,
"text": "Notices issued under Section 143(2) of the Act in October 1988 and March 1989 did not elicit any response from the company."
}
},
{
"from_name": null,
"id": "9e7a7df04df043388fd4b0c95909dd30",
"to_name": null,
"type": null,
"value": {
"end": 7627,
"labels": [
"ANALYSIS"
],
"start": 7369,
"text": "For reasons stated above, it is claimed that the department had in its possession adequate information prior to December 16, 1988 to warrant a conclusion that the assessee had concealed details of its true income and furnished inaccurate particulars thereof."
}
},
{
"from_name": null,
"id": "d70995412be740e78081b6986b9d17e6",
"to_name": null,
"type": null,
"value": {
"end": 7852,
"labels": [
"ANALYSIS"
],
"start": 7628,
"text": "In such circumstances, under Section 245-D of the Act, objection is taken by the department to the company's petition being entertained by the Commission more particularly for assessment years 1985-86, 1986-87 and 1987- 88.\""
}
},
{
"from_name": null,
"id": "2c0f0e6a999d4026b7cae9e2689d6aaf",
"to_name": null,
"type": null,
"value": {
"end": 7973,
"labels": [
"FAC"
],
"start": 7853,
"text": "5.The Commission heard the parties and allowed the application of the assessee to be proceeded with under Chapter XIX-A."
}
},
{
"from_name": null,
"id": "5010e039e4474df6a3a68a0b7ae5c608",
"to_name": null,
"type": null,
"value": {
"end": 8082,
"labels": [
"FAC"
],
"start": 7974,
"text": "The two members of the Commission, Shri C.S.\nJain and Shri D.C. Shukla wrote two separate concurring orders."
}
},
{
"from_name": null,
"id": "c2129e7a28744a6abe177f68b0c3b5da",
"to_name": null,
"type": null,
"value": {
"end": 8116,
"labels": [
"ANALYSIS"
],
"start": 8083,
"text": "The main opinion is by Shri Jain."
}
},
{
"from_name": null,
"id": "ebf84e22a86b4fa180f5c3e10792d191",
"to_name": null,
"type": null,
"value": {
"end": 8452,
"labels": [
"ANALYSIS"
],
"start": 8117,
"text": "His reasoning, as condensed by us, runs thus: \"At this stage the burden lies upon the Commissioner to point out the material and the results of enquiries and investigation to show that concealment has been established or that enquiries have reached the stage where it can be said that concealment of income is likely to be established."
}
},
{
"from_name": null,
"id": "5390d57a78414cd699b1687deb83e9db",
"to_name": null,
"type": null,
"value": {
"end": 8663,
"labels": [
"ANALYSIS"
],
"start": 8453,
"text": "The material referred to in the report of the Commission, as on the date of filing of the application, does not establish with certainty that the concealment has been established or is likely to be established."
}
},
{
"from_name": null,
"id": "66bc163aab2946579ad017dbaa1ff764",
"to_name": null,
"type": null,
"value": {
"end": 8876,
"labels": [
"ANALYSIS"
],
"start": 8664,
"text": "Many of the inquiries referred to in the report were made after the filing of the application under Section 245-C; they cannot be taken into consideration for the purpose of taking a decision under Section 245-D."
}
},
{
"from_name": null,
"id": "c3f60b63e2ed4ba1a91605e4638f2831",
"to_name": null,
"type": null,
"value": {
"end": 8982,
"labels": [
"ANALYSIS"
],
"start": 8877,
"text": "The inquiries made do not establish a complete chain of concealment or fraud on the part of the assessee."
}
},
{
"from_name": null,
"id": "3d77902e61f84366bf135bd4df00c84c",
"to_name": null,
"type": null,
"value": {
"end": 9155,
"labels": [
"ANALYSIS"
],
"start": 8983,
"text": "(He concluded) 'We, therefore, hold that it is a case where it cannot be said beyond dispute that concealment of income has been established or is likely to be established."
}
},
{
"from_name": null,
"id": "23ffd21f021c44eb962d2e478e049d53",
"to_name": null,
"type": null,
"value": {
"end": 9332,
"labels": [
"ANALYSIS"
],
"start": 9156,
"text": "Section 245-D(l) of the Income Tax Act describes situations in which the application can be allowed to be proceeded with, where the objection of the Commissioner is not upheld."
}
},
{
"from_name": null,
"id": "01091efd03024e588e18e060ee30d442",
"to_name": null,
"type": null,
"value": {
"end": 9522,
"labels": [
"ANALYSIS"
],
"start": 9333,
"text": "The Settlement Commission has to consider the material contained in the report of the Commissioner, the nature and circumstances of the case or complexity of investigation involved therein."
}
},
{
"from_name": null,
"id": "b308fe1f003f43eda97de5723d06b361",
"to_name": null,
"type": null,
"value": {
"end": 9616,
"labels": [
"ANALYSIS"
],
"start": 9523,
"text": "In the instant case, we have considered the materials contained in the Commissioner's report."
}
},
{
"from_name": null,
"id": "84613cc5a0de49748d47bd14185fd0c9",
"to_name": null,
"type": null,
"value": {
"end": 9713,
"labels": [
"ANALYSIS"
],
"start": 9617,
"text": "The nature and circumstances of the case are such that the case be allowed to be proceeded with."
}
},
{
"from_name": null,
"id": "c58792b724c34a25ac530573f19b4239",
"to_name": null,
"type": null,
"value": {
"end": 9838,
"labels": [
"ISSUE"
],
"start": 9713,
"text": "\n The main question involved in the case is whether the losses claimed in merchandise division for various years are genuine."
}
},
{
"from_name": null,
"id": "6f4c9a612caf430e9840199593f8d049",
"to_name": null,
"type": null,
"value": {
"end": 9929,
"labels": [
"ISSUE"
],
"start": 9840,
"text": "Without widespread inquiries and investigations, this task cannot be fulfilled."
}
},
{
"from_name": null,
"id": "e3873e8ac8f44816b73954256c12d418",
"to_name": null,
"type": null,
"value": {
"end": 10011,
"labels": [
"ANALYSIS"
],
"start": 9929,
"text": "\n It may involve lots of inquiries, proceedings and possibly prolonged litigation."
}
},
{
"from_name": null,
"id": "55283672ca70407697b17abbe5815b2f",
"to_name": null,
"type": null,
"value": {
"end": 10128,
"labels": [
"ANALYSIS"
],
"start": 10012,
"text": "The facts in relation to the merchandise division have been discussed in detail in earlier paragraphs of this order."
}
},
{
"from_name": null,
"id": "a0cd38837ef141f6b81ffd0b6a568541",
"to_name": null,
"type": null,
"value": {
"end": 10218,
"labels": [
"ANALYSIS"
],
"start": 10129,
"text": "The facts and circumstances of the case also involve the complexity of the investigation."
}
},
{
"from_name": null,
"id": "49c460685ae543bd8b7c2858a600f3e4",
"to_name": null,
"type": null,
"value": {
"end": 10572,
"labels": [
"FAC"
],
"start": 10219,
"text": "We, therefore, allow the application to be proceeded with, for assessment years 1985-86 to 1988-89.\"\n 6.The other member, Shri Shukla also proceeded on the footing that the material gathered by the department after the date of filing of the statement is not relevant and cannot be looked into for the purpose of taking a decision under Section 245-D(l)."
}
},
{
"from_name": null,
"id": "9669ce3095c648e98c786d21d9a96189",
"to_name": null,
"type": null,
"value": {
"end": 10976,
"labels": [
"ANALYSIS"
],
"start": 10573,
"text": "He too held that on the date of the filing of the application \"conclusive material is lacking on the basis of which the objection of the Commissioner can be sustained.\"\n Relevant Provisions of Law and their meaning: 7.Chapter XIX-A providing for settlement of cases was introduced in the Income Tax Act, 1961 pursuant to the recommendations of the Direct Tax Inquiry Committee headed by Justice Wanchoo."
}
},
{
"from_name": null,
"id": "4607cb1d396e4739943b035ef31c71a2",
"to_name": null,
"type": null,
"value": {
"end": 11036,
"labels": [
"ANALYSIS"
],
"start": 10977,
"text": "It is necessary to notice a few provisions relevant herein."
}
},
{
"from_name": null,
"id": "e2c843a9e6f64c3ba671c688fc73427d",
"to_name": null,
"type": null,
"value": {
"end": 11104,
"labels": [
"ANALYSIS"
],
"start": 11037,
"text": "Section 245-A defines certain expressions occurring in the chapter."
}
},
{
"from_name": null,
"id": "f9a6f0b5f84e48748f4215cc7c1140ad",
"to_name": null,
"type": null,
"value": {
"end": 11958,
"labels": [
"ANALYSIS"
],
"start": 11105,
"text": "Clause (b) defines the expression \"case\" in the following words- \"(b) 'case' means any proceeding under this Act for the assessment or reassessment of any person in respect of any year or years, or by way of appeal or revision in connection with such assessment or reassessment, which may be pending before an income tax authority on the date on which an application under sub-section (1) of Section 245-C is made: Provided that where any appeal or application for revision has been preferred after the expiry of the period specified for the filing of such appeal or application for revision under this Act and which has not been admitted, such appeal or revision shall not be deemed to be a proceeding pending within the meaning of this clause;\"\n8.\"Case\" for the purpose of this chapter thus means a proceeding relating to one or more assessment years."
}
},
{
"from_name": null,
"id": "d6e1bf330eab41acaaca55059a8441f3",
"to_name": null,
"type": null,
"value": {
"end": 12015,
"labels": [
"ANALYSIS"
],
"start": 11959,
"text": "It takes in a proceeding for assessment or reassessment."
}
},
{
"from_name": null,
"id": "bf6b9e081f1d4e998a12c1817cbc453f",
"to_name": null,
"type": null,
"value": {
"end": 12192,
"labels": [
"ANALYSIS"
],
"start": 12015,
"text": "\nSimilarly, it may be a proceeding pending at the stage of assessment or in appeal or revision.9.Section 245-B provides for constitution of the Income Tax Settlement Commission."
}
},
{
"from_name": null,
"id": "534ffd40d88a4bf087ea7775e65c663e",
"to_name": null,
"type": null,
"value": {
"end": 12522,
"labels": [
"ANALYSIS"
],
"start": 12193,
"text": "Sub-section (3) provides specifically that the Chairman, Vice Chairman and other members of the Settlement Commission shall be appointed by the Central Government \"from amongst persons of integrity and outstanding ability, having special knowledge of, and, experience in, problems relating to direct taxes and business accounts\"."
}
},
{
"from_name": null,
"id": "736a5b07fe1c4e1d8e5cb78c73e1ac4e",
"to_name": null,
"type": null,
"value": {
"end": 12620,
"labels": [
"ANALYSIS"
],
"start": 12523,
"text": "10.Section 245-C provides for filing of an application by an assessee for settlement of his case."
}
},
{
"from_name": null,
"id": "dedc61ee19e2476db60050a9b6ec76d0",
"to_name": null,
"type": null,
"value": {
"end": 13048,
"labels": [
"STA"
],
"start": 12621,
"text": "Sub-section (1) says that an assessee may \"at any stage of a case relating to him\" make an application in the prescribed form and manner, \"containing a full and true disclosure of his income which has not been disclosed before the Assessing Officer, the manner in which such income has been derived, the additional amount of income tax payable on such income and such other particulars as may be prescribed\" to settle his case."
}
},
{
"from_name": null,
"id": "ae93f39f98ea466e8968c3a3671f8fed",
"to_name": null,
"type": null,
"value": {
"end": 13186,
"labels": [
"ANALYSIS"
],
"start": 13049,
"text": "There are certain other requirements which be must fulfil before making such an application but which it is not necessary to notice here."
}
},
{
"from_name": null,
"id": "e76e8f5732254804928221d84c3d4908",
"to_name": null,
"type": null,
"value": {
"end": 13335,
"labels": [
"ANALYSIS"
],
"start": 13186,
"text": "\n11.For a proper delineation of the jurisdiction of the Commission, it is necessary to bear in mind the language of sub-section (1) of Section 245-C."
}
},
{
"from_name": null,
"id": "67485d68a17948cdafaf2923fea0753f",
"to_name": null,
"type": null,
"value": {
"end": 13539,
"labels": [
"ANALYSIS"
],
"start": 13336,
"text": "It provides that at any stage of a case relating to him, an assessee may make an application to the Commission disclosing fully and truly income which has not been disclosed before the Assessing Officer."
}
},
{
"from_name": null,
"id": "650acb56d5d44a288c17b073636ae6a2",
"to_name": null,
"type": null,
"value": {
"end": 13640,
"labels": [
"ANALYSIS"
],
"start": 13540,
"text": "He must also disclose how the said income has been derived by him besides certain other particulars."
}
},
{
"from_name": null,
"id": "24dd4e7f0c1b4e57846d9e0373be6255",
"to_name": null,
"type": null,
"value": {
"end": 13797,
"labels": [
"ANALYSIS"
],
"start": 13641,
"text": "This means that an assessee cannot approach the Commission for settlement of his case with respect to income already disclosed before the Assessing Officer."
}
},
{
"from_name": null,
"id": "c9bc83d298cf4b9cb43b1f2e167205d1",
"to_name": null,
"type": null,
"value": {
"end": 13935,
"labels": [
"ANALYSIS"
],
"start": 13798,
"text": "An application under Section 245-C is maintainable only if it discloses income which has not been disclosed before the Assessing Officer."
}
},
{
"from_name": null,
"id": "9bd464950af847b389bea6319070c3bc",
"to_name": null,
"type": null,
"value": {
"end": 14047,
"labels": [
"ANALYSIS"
],
"start": 13936,
"text": "The disclosure contemplated by Section 245-C is thus in the nature of voluntary disclosure of concealed income."
}
},
{
"from_name": null,
"id": "b1e792b578c84d37aaea42ea98dca66e",
"to_name": null,
"type": null,
"value": {
"end": 14154,
"labels": [
"ANALYSIS"
],
"start": 14048,
"text": "Unless the income so disclosed exceeds Rs 50,000, the application under Section 245-C is not maintainable."
}
},
{
"from_name": null,
"id": "ebb0dbaa131b48acaf3cdebb32b4215a",
"to_name": null,
"type": null,
"value": {
"end": 14577,
"labels": [
"ANALYSIS"
],
"start": 14155,
"text": "It is equally evident that once an application made under Section 245-C is admitted for consideration (after giving notice to and considering the report of the Commissioner of Income Tax as provided by Section 245-D) the Commission shall have to withdraw the case relating to that assessment year (or years, as the case may be) from the assessing/appellate/revising authority and deal with the case, as a whole, by itself."
}
},
{
"from_name": null,
"id": "04e9b5fe65d849029fd3a1b0fbb76e45",
"to_name": null,
"type": null,
"value": {
"end": 14689,
"labels": [
"ANALYSIS"
],
"start": 14578,
"text": "In other words, the proceedings before the Commission are not confined to the income disclosed before it alone."
}
},
{
"from_name": null,
"id": "5bfc5cab03be45afa10144a708a5454f",
"to_name": null,
"type": null,
"value": {
"end": 14979,
"labels": [
"ANALYSIS"
],
"start": 14690,
"text": "Once his application is allowed to be proceeded with by the Commission, the proceedings pending before any authority under the Act relating to that assessment year has to be transferred to Commission and the entire case for that assessment year will be dealt with by the Commission itself."
}
},
{
"from_name": null,
"id": "76c18f3be1b94a58b08a83852c5ab973",
"to_name": null,
"type": null,
"value": {
"end": 15343,
"labels": [
"ANALYSIS"
],
"start": 14980,
"text": "The words \"at any stage of a case relating to him\" only make it clear that the pendency of proceedings relating to that assessment year, whether before the Assessing Officer or before the appellate or revisional authority, is no bar to the filing of an application under Section 245-C so long as the application complies with the requirements of Section 245-C.12."
}
},
{
"from_name": null,
"id": "97bdc5835fb14681802eec4d3d948966",
"to_name": null,
"type": null,
"value": {
"end": 15465,
"labels": [
"ANALYSIS"
],
"start": 15344,
"text": "Section 245-D prescribes the procedure to be followed by the Commission on receipt of an application under Section 245-C."
}
},
{
"from_name": null,
"id": "22b929c191eb47cabd6d11943bbacc07",
"to_name": null,
"type": null,
"value": {
"end": 15510,
"labels": [
"ANALYSIS"
],
"start": 15466,
"text": "Sub-section (1) is relevant for our purpose."
}
},
{
"from_name": null,
"id": "0531522d32c64a56a3fdd49f54531e85",
"to_name": null,
"type": null,
"value": {
"end": 15871,
"labels": [
"ANALYSIS"
],
"start": 15511,
"text": "As originally enacted, the sub-section read as follows: \" (1) On receipt of an application under Section 245-C, the Settlement Commission shall call for a report from the Commissioner and on the basis of the materials contained in such report and having regard to the nature and circumstances of the case or the complexity of the investigation involved therein"
}
},
{
"from_name": null,
"id": "dd66ee818de54708b0592e38d470ca87",
"to_name": null,
"type": null,
"value": {
"end": 16753,
"labels": [
"ANALYSIS"
],
"start": 15871,
"text": ", the Settlement Commission may, by order, allow the application to be proceeded with or reject the application: Provided that an application shall not be rejected under this subsection unless an opportunity has been given to the applicant of being heard: Provided further that an application shall not be proceeded with under this sub-section if the Commissioner objects to the application being proceeded with on the ground that concealment of particulars of income on the part of the applicant or perpetration of fraud by him for evading any tax or other sum chargeable or imposable under the Indian Income Tax Act, 1922 (XI of 1922) or under this Act has been established or is likely to be established by any income tax authority in relation to the case.\"\n13.By Finance Act, 1979 the second proviso was omitted and subsection (I A) was inserted, with effect from April 1, 1979."
}
},
{
"from_name": null,
"id": "bbb6f72645d9496ea21eb359bc2e790c",
"to_name": null,
"type": null,
"value": {
"end": 17783,
"labels": [
"ANALYSIS"
],
"start": 16754,
"text": "Sub-section (I A) read as follows: \"(1-A) Notwithstanding anything contained in sub-section (1), an application shall not be proceeded with under that sub-section, if the Commissioner objects to the application being proceeded with on the ground that concealment of particulars of income on the part of the applicant or perpetration of fraud by him for evading any tax or other sum chargeable or imposable under the Indian Income Tax Act, 1922 (1 of 1922), or under this Act, has been established or is likely to be established by any income tax authority, in relation to the case: Provided that where the Settlement Commission is not satisfied with the correctness of the objection raised by the Commissioner, the Settlement Commission may, after giving the Commissioner an opportunity of being heard, by order, allow the application to be proceeded with under sub-section (1) and send a copy of its order to the Commissioner.\"\n14.It is this sub-section read with sub-section (1) which is relevant for the purposes of this case."
}
},
{
"from_name": null,
"id": "f64c9a024a64401c9d610f0ba908f9b1",
"to_name": null,
"type": null,
"value": {
"end": 18440,
"labels": [
"ANALYSIS"
],
"start": 17784,
"text": "We may, however, mention that sub-section (I-A) has since been deleted and a proviso introduced in sub-section (1) as the second proviso, which reads as follows: \"[Provided further that the Commissioner shall furnish the report within a period of one hundred and twenty days of the receipt of communication from the Settlement Commission in case of all applications made under Section 245-C on or after the date on which the Finance (No. 2) Act, 1991, receives the assent of the President and if the Commissioner fails to furnish the report within the said period, the Settlement Commission may make the order without such report.]\""
}
},
{
"from_name": null,
"id": "3a7f6a3f81dc4655af65192d64d797e7",
"to_name": null,
"type": null,
"value": {
"end": 18540,
"labels": [
"ANALYSIS"
],
"start": 18440,
"text": "\n 15. It is not necessary to notice the effect of the above legislative change broughtabout in 1991."
}
},
{
"from_name": null,
"id": "2e054feff2bd4edf8c218b38a77c544d",
"to_name": null,
"type": null,
"value": {
"end": 18757,
"labels": [
"ANALYSIS"
],
"start": 18541,
"text": "16. As originally enacted the main limb of sub-section (1) provided that on receipt of an application under Section 245-C, the Commission shall call for a report from the Commissioner with respect to the application."
}
},
{
"from_name": null,
"id": "0aecb1aabf6b4850a841fad8d4ed479a",
"to_name": null,
"type": null,
"value": {
"end": 19063,
"labels": [
"ANALYSIS"
],
"start": 18758,
"text": "The decision whether to \"allow the application to be proceeded with or reject the application\" had to be taken (a) on the basis of the material contained in the Commissioner's report and (b) having regard to the nature and circumstances of the case or the complexity of the investigation involved therein."
}
},
{
"from_name": null,
"id": "1b8c1b70bcbe419eaadafa28358089a8",
"to_name": null,
"type": null,
"value": {
"end": 19192,
"labels": [
"ANALYSIS"
],
"start": 19064,
"text": "The first proviso said that no such application shall be rejected unless an opportunity of hearing is afforded to the applicant."
}
},
{
"from_name": null,
"id": "a86dc9a75f074b359f1c51d76e5c606f",
"to_name": null,
"type": null,
"value": {
"end": 19750,
"labels": [
"ANALYSIS"
],
"start": 19193,
"text": "The second proviso to sub-section (1), however, provided that Commission shall not proceed with the application filed under Section 245-C, if the Commissioner objected to the application being proceeded with on the ground that \"concealment of particulars of income on the part of the applicant or perpetration of fraud by him for evading any tax or other sum chargeable or imposable under the Indian Income Tax Act, 1922 (XI of 1922) or under this Act has been established or is likely to be established by any income tax authority in relation to the case\"."
}
},
{
"from_name": null,
"id": "e51f603a001c43d091e66bba0fd2b480",
"to_name": null,
"type": null,
"value": {
"end": 19879,
"labels": [
"ANALYSIS"
],
"start": 19751,
"text": "If the Commissioner objected on the ground aforesaid, the Commission could not proceed with the application under Section 245-C."
}
},
{
"from_name": null,
"id": "8f6ccd2769c04624a31d0d2112c2c8a2",
"to_name": null,
"type": null,
"value": {
"end": 20086,
"labels": [
"ANALYSIS"
],
"start": 19880,
"text": "(It is not necessary to decide for the purpose of this case whether the mere objection of the Commissioner sufficed and whether the Commission had no power to examine the correctness of the said objection.)"
}
},
{
"from_name": null,
"id": "c43f9665238d435c828e3a92461e5358",
"to_name": null,
"type": null,
"value": {
"end": 20143,
"labels": [
"ANALYSIS"
],
"start": 20087,
"text": "By the Finance Act, 1979 the second proviso was deleted."
}
},
{
"from_name": null,
"id": "bf8d21f361a24970a3312af435329ac9",
"to_name": null,
"type": null,
"value": {
"end": 20228,
"labels": [
"ANALYSIS"
],
"start": 20144,
"text": "The main limb of sub-section (1) and the first proviso, however, remained untouched."
}
},
{
"from_name": null,
"id": "313300ee8245431d88dc2661fe521b6c",
"to_name": null,
"type": null,
"value": {
"end": 20295,
"labels": [
"ANALYSIS"
],
"start": 20229,
"text": "In place of the second proviso, sub- section (I-A) was introduced."
}
},
{
"from_name": null,
"id": "0a5b624ac0dd4c2897f96933847eff81",
"to_name": null,
"type": null,
"value": {
"end": 20397,
"labels": [
"ANALYSIS"
],
"start": 20296,
"text": "The effect of this amendment was that the Commissioner's objection ceased to be final and conclusive."
}
},
{
"from_name": null,
"id": "9553d2a2fb6043b3ab5328de86eda881",
"to_name": null,
"type": null,
"value": {
"end": 20529,
"labels": [
"ANALYSIS"
],
"start": 20398,
"text": "The proviso to sub-section (I-Al) empowered the Commission to examine whether the objection of the Commissioner was correct or not."
}
},
{
"from_name": null,
"id": "996eec00e7834cba99b1a345bf59156d",
"to_name": null,
"type": null,
"value": {
"end": 20688,
"labels": [
"ANALYSIS"
],
"start": 20530,
"text": "After hearing the Commissioner, if the Commission was satisfied that the objection of the Commissioner was not correct, it could proceed with the application."
}
},
{
"from_name": null,
"id": "19f8e231761f4901b9da49a2093cdec9",
"to_name": null,
"type": null,
"value": {
"end": 20774,
"labels": [
"ANALYSIS"
],
"start": 20688,
"text": "\n17.Sub-section (I A) has to be read in harmony with the main limb of sub-section (1)."
}
},
{
"from_name": null,
"id": "01698f5efe634516bae959916f092f5a",
"to_name": null,
"type": null,
"value": {
"end": 21113,
"labels": [
"ANALYSIS"
],
"start": 20775,
"text": "The said sub-section says that the Commission shall decide whether to allow the application to be proceeded with before it or to reject it (a) on the basis of the material contained in the report of the Commissioner and (b) having regard to the nature and circumstances of the case or the complexity of the investigation involved therein."
}
},
{
"from_name": null,
"id": "4e03448dca8c4d119f5a18d065fb58f6",
"to_name": null,
"type": null,
"value": {
"end": 21139,
"labels": [
"ANALYSIS"
],
"start": 21114,
"text": "What do these words mean?"
}
},
{
"from_name": null,
"id": "3cea7248c1d944039e40cb914835749c",
"to_name": null,
"type": null,
"value": {
"end": 21173,
"labels": [
"ANALYSIS"
],
"start": 21139,
"text": "\nThey are words of general import."
}
},
{
"from_name": null,
"id": "6092c46f4f9540a89bebc6f6d6abadea",
"to_name": null,
"type": null,
"value": {
"end": 21211,
"labels": [
"ANALYSIS"
],
"start": 21174,
"text": "What did the Parliament mean thereby?"
}
},
{
"from_name": null,
"id": "feb28c2fa5864dde86eca84e109b320f",
"to_name": null,
"type": null,
"value": {
"end": 21324,
"labels": [
"ANALYSIS"
],
"start": 21212,
"text": "For ascertaining their meaning and purport, one has to turn to the purposes underlying the enactment as a whole."
}
},
{
"from_name": null,
"id": "1ab16d270b0c4e379e7272ae344f51cf",
"to_name": null,
"type": null,
"value": {
"end": 21547,
"labels": [
"ANALYSIS"
],
"start": 21325,
"text": "It is neither possible nor advisable to seek to lay down exhaustively the several situations in whichthe Commission would decide to allow the application to be proceeded with or in which the application has to be rejected."
}
},
{
"from_name": null,
"id": "553449fec61b4b6facf849fb00f773e9",
"to_name": null,
"type": null,
"value": {
"end": 21630,
"labels": [
"ANALYSIS"
],
"start": 21548,
"text": "A case may be a complex one; it may involve prolonged or cumbersome investigation."
}
},
{
"from_name": null,
"id": "7e341bed11674d69b133940ece4a051b",
"to_name": null,
"type": null,
"value": {
"end": 21939,
"labels": [
"ANALYSIS"
],
"start": 21631,
"text": "Another situation may be where having regard to the nature of the case and other circumstances, the Commission may feel, in the interest of the Revenue and in the interest of justice, that it is better to give a quietus to the case once for all instead of allowing it to be fought through the usual channels."
}
},
{
"from_name": null,
"id": "07de039224f44d668563b48c162bfe19",
"to_name": null,
"type": null,
"value": {
"end": 22111,
"labels": [
"ANALYSIS"
],
"start": 21940,
"text": "The decision has to be taken by the Commission having regard to all the facts and circumstances before it, in the light of the object, purpose and scheme of the enactment."
}
},
{
"from_name": null,
"id": "285bc1bab33b45d2b427ec518e7acd0c",
"to_name": null,
"type": null,
"value": {
"end": 22339,
"labels": [
"ANALYSIS"
],
"start": 22112,
"text": "It is precisely because such wide discretion is given to the Commission that the Act requires that it should be manned by men of integrity and outstanding ability, having special knowledge of direct taxes and business accounts."
}
},
{
"from_name": null,
"id": "3dc2db4bf40c46098eef483a00fdec8e",
"to_name": null,
"type": null,
"value": {
"end": 22855,
"labels": [
"ANALYSIS"
],
"start": 22339,
"text": "\n18.The next set of words that present some difficulty are the words \"has been established or is likely to be established by any income tax authority in relation to the case\" occurring in sub-section (1-A) [as well as in the second proviso to sub-section (1) as originally enacted].\nFor a proper appreciation of the meaning of these words, it is necessary to remind ourselves that an application under Section 245-C can be made only in respect of an income not disclosed by the assessee before the Assessing Officer."
}
},
{
"from_name": null,
"id": "6a9b83bc345547c78f6ba6d32dede6ff",
"to_name": null,
"type": null,
"value": {
"end": 23339,
"labels": [
"ANALYSIS"
],
"start": 22856,
"text": "If so, what did the Parliament mean when it said that Commission shall not allow the application to be proceeded with if the Commissioner objects on the ground that \"concealment of particulars of income on the part of the application or perpetration of fraud by him for evading any tax or other sum chargeable or imposable under the Indian Income Tax Act, 1922 or under this Act, has been established or likely to be established by any income tax authority, in relation to the case\"?"
}
},
{
"from_name": null,
"id": "fc9e58e65dbd44b7bd6571afa9a30634",
"to_name": null,
"type": null,
"value": {
"end": 23663,
"labels": [
"ANALYSIS"
],
"start": 23340,
"text": "To appreciate the meaning of the said words, it is necessary to keep in mind the following facts: even though the assessee has not disclosed a particular income before the Assessing Officer, the latter is free to and is empowered to unearth it by making or causing such investigation and enquiries as he thinks appropriate."
}
},
{
"from_name": null,
"id": "e9b2631ff0aa4853aa7ceb44018327d1",
"to_name": null,
"type": null,
"value": {
"end": 23719,
"labels": [
"ANALYSIS"
],
"start": 23664,
"text": "He may gather and receive information for that purpose."
}
},
{
"from_name": null,
"id": "3af40cfbc03f4e4da08498afae050906",
"to_name": null,
"type": null,
"value": {
"end": 23900,
"labels": [
"ANALYSIS"
],
"start": 23720,
"text": "We may take two illustrative cases: One, where the Assessing Officer has discovered some income, which was not disclosed by the assessee, and has added it to the assessee's income."
}
},
{
"from_name": null,
"id": "1834765c7f734d5596b71df4a585ef81",
"to_name": null,
"type": null,
"value": {
"end": 24047,
"labels": [
"ANALYSIS"
],
"start": 23901,
"text": "The latter challenges the same and the proceedings are pending either before the Assessing Officer or before an appellate or revisional authority."
}
},
{
"from_name": null,
"id": "173f8cc10f944df4815a28fe2e83d15b",
"to_name": null,
"type": null,
"value": {
"end": 24232,
"labels": [
"ANALYSIS"
],
"start": 24048,
"text": "Second, a case where the income tax authorities are gathering information/material, which is likely to establish that the assessee has concealed the particulars of a particular income."
}
},
{
"from_name": null,
"id": "770471be87144c958ab34a5ce75bfa34",
"to_name": null,
"type": null,
"value": {
"end": 24421,
"labels": [
"ANALYSIS"
],
"start": 24233,
"text": "If, in the first case, the assessee applies to the Commission under Section 245-C, the Commissioner can object on the ground that concealment of particulars of income has been established."
}
},
{
"from_name": null,
"id": "369b9fd5ee4643c1a6d1de951ad0cf16",
"to_name": null,
"type": null,
"value": {
"end": 24803,
"labels": [
"ANALYSIS"
],
"start": 24422,
"text": "Similarly, if the assessee in the second case applies to the Commission, the Commissioner can equally object on the ground that the investigation/enquiries made by them already or the information received or gathered by them already is likely to establish the concealment of particulars of income and, therefore, the Commission should not allow theapplication to be proceeded with."
}
},
{
"from_name": null,
"id": "d311b381be884dab97a48ba65311defa",
"to_name": null,
"type": null,
"value": {
"end": 25063,
"labels": [
"ANALYSIS"
],
"start": 24804,
"text": "On the same lines, there may be cases where the income tax authorities have either established or are likely to establish that the assessee has perpetrated a fraud for evading the tax or other sum chargeable or imposable under the 1922 Act or the present Act."
}
},
{
"from_name": null,
"id": "4d641e7073d34e69a2e0c1dc5f18926d",
"to_name": null,
"type": null,
"value": {
"end": 25188,
"labels": [
"ANALYSIS"
],
"start": 25064,
"text": "It is the correctness of these objections that the Commission is supposed to look into by the proviso to sub- section (I-A)."
}
},
{
"from_name": null,
"id": "bf9e7407bae34df5a43744480a649e9a",
"to_name": null,
"type": null,
"value": {
"end": 25270,
"labels": [
"ANALYSIS"
],
"start": 25189,
"text": "It's further course of action depends upon its satisfaction one way or the other."
}
},
{
"from_name": null,
"id": "a26db7dc849643eba199ca6003aa27f2",
"to_name": null,
"type": null,
"value": {
"end": 25365,
"labels": [
"ANALYSIS"
],
"start": 25270,
"text": "\n19.The idea underlying the said words [in the main limb of sub-section (I-A)] is self-evident."
}
},
{
"from_name": null,
"id": "141a7278e9eb471aac4fb4f711a8353f",
"to_name": null,
"type": null,
"value": {
"end": 25465,
"labels": [
"ANALYSIS"
],
"start": 25366,
"text": "The disclosure under Section 245-C must be of an income not disclosed before the Assessing Officer."
}
},
{
"from_name": null,
"id": "ca9039dc22934025b7ca88b1e9338922",
"to_name": null,
"type": null,
"value": {
"end": 25946,
"labels": [
"ANALYSIS"
],
"start": 25466,
"text": "If the Assessing Officer (or the income tax authority) has already discovered it and has either gathered the material to establish the particulars of such income or fraud fully or is at a stage of investigation/enquiries where the material gathered by him is likely to establish the particulars of such income or fraud, the assessee cannot be allowed to defeat or forestall, as the case may be, the entire exercise of the income tax authorities just by approaching the Commission."
}
},
{
"from_name": null,
"id": "8a1ffd6c892e4ccd810ab83528509ade",
"to_name": null,
"type": null,
"value": {
"end": 26028,
"labels": [
"ANALYSIS"
],
"start": 25946,
"text": "\nIn such a case, it cannot be said that he is acting voluntarily or in good faith."
}
},
{
"from_name": null,
"id": "801a7f9f5d9d435ba2ab52f713a31504",
"to_name": null,
"type": null,
"value": {
"end": 26119,
"labels": [
"ANALYSIS"
],
"start": 26029,
"text": "He should not be allowed to take advantage of the comparatively easy course of settlement."
}
},
{
"from_name": null,
"id": "b53e92385800437baa551877b99cb0c1",
"to_name": null,
"type": null,
"value": {
"end": 26192,
"labels": [
"ANALYSIS"
],
"start": 26120,
"text": "He must be allowed to face the normal channels of assessment/appeal etc."
}
},
{
"from_name": null,
"id": "2fdae792a7a0400b954d86938b903e4e",
"to_name": null,
"type": null,
"value": {
"end": 26358,
"labels": [
"ANALYSIS"
],
"start": 26193,
"text": "Section 245-C is meant for those assessees who seek to disclose income not disclosed before the Officer including \"the manner in which such income has been derived\"."
}
},
{
"from_name": null,
"id": "c107060147684f0f80917df39febd5cb",
"to_name": null,
"type": null,
"value": {
"end": 26521,
"labels": [
"ANALYSIS"
],
"start": 26359,
"text": "If the department already knows and has gathered particulars of such income and the manner in which it has been derived, there is no 'disclosure' by the assessee."
}
},
{
"from_name": null,
"id": "b6f242de8b014e8bba2229dfb54bbe23",
"to_name": null,
"type": null,
"value": {
"end": 26672,
"labels": [
"ANALYSIS"
],
"start": 26522,
"text": "Let it be remembered that the words in question [in Section 245-D(I-A)] are not words of limitation nor are they meant to help unscrupulous assessees."
}
},
{
"from_name": null,
"id": "b319b67e7e9142ef85a2896ccae51358",
"to_name": null,
"type": null,
"value": {
"end": 26787,
"labels": [
"ANALYSIS"
],
"start": 26673,
"text": "Chapter XIX-A is a part of the Income Tax Act and must be construed consistent with the overall scheme and object."
}
},
{
"from_name": null,
"id": "b2b35c8ed7394d52bf8f59cf44dbf6c1",
"to_name": null,
"type": null,
"value": {
"end": 26942,
"labels": [
"ANALYSIS"
],
"start": 26788,
"text": "The chapter is meant for those assessees who want to disclose income not disclosed till then together with the manner in which the said income is derived."
}
},
{
"from_name": null,
"id": "0fe967e58b7c435084201899890cbe78",
"to_name": null,
"type": null,
"value": {
"end": 27482,
"labels": [
"ANALYSIS"
],
"start": 26943,
"text": "It is not meant for those who come after the event, i.e., after the discovery of the particulars of income and its source or discovery of particulars of fraud perpetrated by the assessee, as the case may be nor even to those who come to the Commission to forestall the investigation/inquiries which have reached a stage where the department is in possession of material which though not sufficient to establish such concealment or fraud, is such that it is likely to establish it maybe some more material is required to establish it fully."
}
},
{
"from_name": null,
"id": "245ad684169846da92787256213bda38",
"to_name": null,
"type": null,
"value": {
"end": 27617,
"labels": [
"ANALYSIS"
],
"start": 27483,
"text": "The Commission has to keep all this in mind while deciding whether to allow the application to be proceeded before it or to reject it."
}
},
{
"from_name": null,
"id": "496f66f9d7cd4af4a610539d60ac2270",
"to_name": null,
"type": null,
"value": {
"end": 27844,
"labels": [
"ANALYSIS"
],
"start": 27618,
"text": "20.This discussion also shows that the Commission cannot say that any material collected by the Commissioner after the date of filing of the application under Section 245-C is not relevant for the purposes of Section 245-D(l)."
}
},
{
"from_name": null,
"id": "13b7980b07d0446cb544f29267a7c211",
"to_name": null,
"type": null,
"value": {
"end": 27910,
"labels": [
"ANALYSIS"
],
"start": 27845,
"text": "The filing of an application by the assessee is a unilateral act."
}
},
{
"from_name": null,
"id": "7975169a5e97430eafe16bce64fb519f",
"to_name": null,
"type": null,
"value": {
"end": 27955,
"labels": [
"ANALYSIS"
],
"start": 27911,
"text": "The department may not be aware of the same."
}
},
{
"from_name": null,
"id": "ee60e039bff944c595991d9a8c8b6cc3",
"to_name": null,
"type": null,
"value": {
"end": 28084,
"labels": [
"ANALYSIS"
],
"start": 27956,
"text": "The proper line - ordinarily speaking is to be drawn with reference to the date of submission of the report by the Commissioner."
}
},
{
"from_name": null,
"id": "223e9891fb044abe886a5459554f866f",
"to_name": null,
"type": null,
"value": {
"end": 28332,
"labels": [
"ANALYSIS"
],
"start": 28085,
"text": "This does not, however, prevent theCommission from looking into material collected by income tax authorities even subsequent to the submitting of the report by the Commissioner, if it thinks such a course is called for in the interests of justice."
}
},
{
"from_name": null,
"id": "23f86d9b8dc2400f9c3fb17a444cc015",
"to_name": null,
"type": null,
"value": {
"end": 28424,
"labels": [
"ANALYSIS"
],
"start": 28332,
"text": "\n21.Sub-section (4) of Section 245-D provides for passing of final orders by the Commission."
}
},
{
"from_name": null,
"id": "5d9ac596e47a4508a4d6423a78ed12ad",
"to_name": null,
"type": null,
"value": {
"end": 28673,
"labels": [
"ANALYSIS"
],
"start": 28425,
"text": "It is not necessary to refer to the other provisions in the chapter except to mention that the Commission is empowered to direct the waiver of penalty as well as interest and to direct that the tax payable shall be paid 'in prescribed' instalments."
}
},
{
"from_name": null,
"id": "55ae5edbe1264632a3088435a745bb63",
"to_name": null,
"type": null,
"value": {
"end": 28968,
"labels": [
"ANALYSIS"
],
"start": 28674,
"text": "It is further empowered to direct that the assessee whose case has been decided by it shall not be proceeded with or prosecuted under the Income Tax Act or under the Indian Penal Code or under any other Central Act for the time being in force with respect to the case covered by the settlement."
}
},
{
"from_name": null,
"id": "3911a7c9d3db487cb7a59fb455bb8b86",
"to_name": null,
"type": null,
"value": {
"end": 29054,
"labels": [
"ANALYSIS"
],
"start": 28968,
"text": "\nThe orders of the Commission are final, subject of course to constitutional remedies."
}
},
{
"from_name": null,
"id": "970760badf7d4fcbbed02ddd2ab146dc",
"to_name": null,
"type": null,
"value": {
"end": 29332,
"labels": [
"ANALYSIS"
],
"start": 29054,
"text": "\nMerits of the case: 22.If we look at the facts of the case in the light of the legal position adumbrated hereinabove, it would be clear that the application filed by the respondent before the Commission was not maintainable and could not have been allowed to be proceeded with."
}
},
{
"from_name": null,
"id": "ca83a7780aee42f1b1a54e0fd028317f",
"to_name": null,
"type": null,
"value": {
"end": 29479,
"labels": [
"ANALYSIS"
],
"start": 29333,
"text": "Firstly, the respondent did not disclose, in its application under Section 245-C, any income which was not disclosed before the Assessing Officer."
}
},
{
"from_name": null,
"id": "698b0a7e61f5459e8276175966dc14e8",
"to_name": null,
"type": null,
"value": {
"end": 29598,
"labels": [
"ANALYSIS"
],
"start": 29479,
"text": "\nThis was a case where the respondent was claiming certain losses, which he sought to set-off against its other income."
}
},
{
"from_name": null,
"id": "fe4c9f9b1a554935a237065c5cc98644",
"to_name": null,
"type": null,
"value": {
"end": 29797,
"labels": [
"ANALYSIS"
],
"start": 29598,
"text": "\nIf the respondent's case was true, it would not have been liable to pay any tax for the reason that entire income from property (and other income, if any) would have been swamped by the said losses."
}
},
{
"from_name": null,
"id": "ff84991074be4e278b32c782e948ddde",
"to_name": null,
"type": null,
"value": {
"end": 29858,
"labels": [
"ANALYSIS"
],
"start": 29798,
"text": "Indeed, the loss had to be carried forward to the next year."
}
},
{
"from_name": null,
"id": "08fd5781ba8445078a6d5c0758e941b7",
"to_name": null,
"type": null,
"value": {
"end": 30085,
"labels": [
"ANALYSIS"
],
"start": 29859,
"text": "The case of the Revenue, however, was that all the alleged transactions (from which loss is said to have resulted) were bogus and fictitious ones, fabricated only for the purposes of evading the tax lawfully due on its income."
}
},
{
"from_name": null,
"id": "71a3e5ef7a3b4a5c837dc9cd58d006a4",
"to_name": null,
"type": null,
"value": {
"end": 30300,
"labels": [
"ANALYSIS"
],
"start": 30086,
"text": "In his application to the Commission, the respondent did not disclose any income not disclosed by him before the Assessing Officer nor did he disclose in his application the manner in which such income was derived."
}
},
{
"from_name": null,
"id": "a21f83bbd9a34f0eb374abb5ed4c57d8",
"to_name": null,
"type": null,
"value": {
"end": 30400,
"labels": [
"ANALYSIS"
],
"start": 30300,
"text": "\nThe assessee merely offered a part of the amount (claimed by him as losses) towards taxable income."
}
},
{
"from_name": null,
"id": "a5d40febc0ce4aaa8f93042fedca9b28",
"to_name": null,
"type": null,
"value": {
"end": 30541,
"labels": [
"ANALYSIS"
],
"start": 30401,
"text": "Thus, his application, not being in compliance with the first and foremost requirement of Section 245-C(l), was not maintainable thereunder."
}
},
{
"from_name": null,
"id": "98451b112b024600badb66079be0f37d",
"to_name": null,
"type": null,
"value": {
"end": 30583,
"labels": [
"ANALYSIS"
],
"start": 30542,
"text": "It ought to have been rejected in limine."
}
},
{
"from_name": null,
"id": "fa8e862d0c364e40bdfccb29a3ff8e04",
"to_name": null,
"type": null,
"value": {
"end": 30653,
"labels": [
"ANALYSIS"
],
"start": 30584,
"text": "The Commission had no jurisdiction to entertain the said application."
}
},
{
"from_name": null,
"id": "fa06e7f7e42a41178f692bffe5cdcfef",
"to_name": null,
"type": null,
"value": {
"end": 30926,
"labels": [
"ANALYSIS"
],
"start": 30654,
"text": "Secondly, this is a case where the income tax authorities had made extensive investigation and inquiries wherein they had collected voluminous material, which, according to them, established the particulars of concealment of income on the part of the respondent- assessee."
}
},
{
"from_name": null,
"id": "08a59c0ac4c141408772fd6294c8765d",
"to_name": null,
"type": null,
"value": {
"end": 31134,
"labels": [
"ANALYSIS"
],
"start": 30927,
"text": "It was so held by the Assessing Officer with whom the first appellate authority agreed, no doubt, subsequent to the filing of the application under Section 245-C but before the passing of the impugned order."
}
},
{
"from_name": null,
"id": "511847d9cd0e43168a3d1fcabf8e0f3a",
"to_name": null,
"type": null,
"value": {
"end": 31141,
"labels": [
"ANALYSIS"
],
"start": 31135,
"text": "23.The"
}
},
{
"from_name": null,
"id": "1f8abe1aaf4642579ff782093e0f2612",
"to_name": null,
"type": null,
"value": {
"end": 31401,
"labels": [
"ANALYSIS"
],
"start": 31142,
"text": "Commission was also not right in holding that while deciding whether to allow the application to be proceeded with before it under Section 245-D(l), they will not look into the material collected after the date offiling of the application under Section 245-C."
}
},
{
"from_name": null,
"id": "694e67221afb4ea1bd41bbff8a148dd9",
"to_name": null,
"type": null,
"value": {
"end": 31539,
"labels": [
"ANALYSIS"
],
"start": 31402,
"text": "It has not been found by the Commission that the income tax authorities were aware of the filing of the application on December 16, 1988."
}
},
{
"from_name": null,
"id": "58390fc3cfc04435964e1f1f119e64a6",
"to_name": null,
"type": null,
"value": {
"end": 31706,
"labels": [
"ANALYSIS"
],
"start": 31540,
"text": "Even if they were aware, the mere filing of the application did not mean that they should fold their hands and stop their investigation and enquiries in their tracks."
}
},
{
"from_name": null,
"id": "f5440b27c18f4b8fad5841b4a6436ad6",
"to_name": null,
"type": null,
"value": {
"end": 31853,
"labels": [
"ANALYSIS"
],
"start": 31706,
"text": "\nThey were, in fact, entitled to rely upon the evidence and material collected by them till the date of submission of the report to the Commission."
}
},
{
"from_name": null,
"id": "b17d633cacca470b94ed5c02dda24664",
"to_name": null,
"type": null,
"value": {
"end": 31925,
"labels": [
"RATIO"
],
"start": 31854,
"text": "The decision of the Commission is thus vitiated by misdirection in law."
}
},
{
"from_name": null,
"id": "e33fd01a9d75456fb5119352068ad21a",
"to_name": null,
"type": null,
"value": {
"end": 31981,
"labels": [
"RATIO"
],
"start": 31926,
"text": "It took cognizance of a matter which it could not have."
}
},
{
"from_name": null,
"id": "1bf354e1a8504c07a9be0819f3bc5679",
"to_name": null,
"type": null,
"value": {
"end": 32098,
"labels": [
"RATIO"
],
"start": 31982,
"text": "The impugned order is equally vitiated by a misapprehension as to true legal position on the part of the Commission."
}
},
{
"from_name": null,
"id": "0ddb57de9b30432893acdbbb1e1badd2",
"to_name": null,
"type": null,
"value": {
"end": 32138,
"labels": [
"RPC"
],
"start": 32099,
"text": "24.The appeals are allowed accordingly."
}
},
{
"from_name": null,
"id": "dc9fe51d299d44dd8f49b442f0d03582",
"to_name": null,
"type": null,
"value": {
"end": 32204,
"labels": [
"RPC"
],
"start": 32139,
"text": "The order of the Settlement Commission under appeal is set aside."
}
},
{
"from_name": null,
"id": "1e426b8d33994f0f90863a263c2453ee",
"to_name": null,
"type": null,
"value": {
"end": 32298,
"labels": [
"RPC"
],
"start": 32205,
"text": "The assessments relating to all the four assessment years shall now proceed according to law."
}
},
{
"from_name": null,
"id": "75693ff5373b4c3b88c8d96ad7afc8f5",
"to_name": null,
"type": null,
"value": {
"end": 32494,
"labels": [
"RPC"
],
"start": 32299,
"text": "Having regard to the facts of the case, we direct that it shall be open to the respondent to file an appeal before the Tribunal against the order dated March 31, 1989 within one month from today."
}
},
{
"from_name": null,
"id": "8bb5631d60ad4b42a028ce0c098d7663",
"to_name": null,
"type": null,
"value": {
"end": 32581,
"labels": [
"RPC"
],
"start": 32495,
"text": "If so filed, it shall be treated as filed within time and shall be dealt with as such."
}
},
{
"from_name": null,
"id": "d457792d3bb14e32afd24ac387dbf2fe",
"to_name": null,
"type": null,
"value": {
"end": 32721,
"labels": [
"RPC"
],
"start": 32582,
"text": "We make it clear that this order is confined to the jurisdiction of the Commission and the validity of its order taking seisin of the case."
}
},
{
"from_name": null,
"id": "669372c0c98b4053b310b907868c6a45",
"to_name": null,
"type": null,
"value": {
"end": 32811,
"labels": [
"RPC"
],
"start": 32722,
"text": "We have not expressed nor did we intend to express any opinion on the merits of the same."
}
},
{
"from_name": null,
"id": "0d9209a9f5e9476789eed6b56c3134ee",
"to_name": null,
"type": null,
"value": {
"end": 32893,
"labels": [
"RPC"
],
"start": 32812,
"text": "It is for the appropriate authorities to go into the same in accordance with law."
}
},
{
"from_name": null,
"id": "664e1f6aada5427ead5d3061b8faa953",
"to_name": null,
"type": null,
"value": {
"end": 32993,
"labels": [
"RPC"
],
"start": 32893,
"text": "\n25.The respondent shall pay the costs of the appellant in this appeal which we assess at Rs 10,000."
}
}
]
}
] | 4,143 | {
"text": "PETITIONER:\nC.I.T.\n\n Vs.\n\nRESPONDENT:\nEXPRESS NEWSPAPERS LTD.\n\nDATE OF JUDGMENT11/01/1994\n\nBENCH:\nJEEVAN REDDY, B.P. (J)\nBENCH:\nJEEVAN REDDY, B.P. (J)\nVERMA, JAGDISH SARAN (J)\nYOGESHWAR DAYAL (J)\n\nCITATION: 1994 SCR (1) 64\n 1994 AIR 1389 JT 1994 (1) 50\n 1994 SCC (2) 374\n 1994 SCALE (1)39\n\nACT:\n\nHEADNOTE:\n\nJUDGMENT:\nThe Judgment of the Court was delivered by JEEVAN REDDY, J.- These appeals are preferred by the Revenue against the order of the Settlement Commission in the case of the respondent Express Newspapers Limited, Madras relating to the assessment years 1985-86, 1986-87 and 1987- 88. It raises certain important questions with respect to the jurisdiction of the Settlement Commission under Chapter XIX-A of the Income Tax Act, 1961. We have heard Dr Gaurishankar for the appellant and Ms Bina Gupta for the respondent. We may mention here that when called upon to argue, after the conclusion of submissions by Dr Gaun'shankar, Ms Bina Gupta asked us to adjourn the matter to enable her to engage a senior counsel. We refused to do so since it was the first case in the list that day and the request was made after the commencement of the arguments.\nWe then heard her fully.\nRelevant facts of the case: 2.The respondent-assessee filed its return for the assessment year 1985-86 on July 22, 1985. A revised return was filed on February 26, 1988. It disclosed a loss of Rs 32,80,700. The Assessing Officer, however, assessed the income at Rs 1,27,95,570 by his order dated March 30, 1988.\nThe Assessing Officer held that the transactions of sale and purchase of potatoes, iron scrap and shares, from which the assessee claimed to have suffered huge losses were not true but were bogus transactions fabricated for the purpose of evading the legitimate tax due on its income. The assesses preferred an appeal before the CIT (Appeals), who dismissed the same by his order dated March 31, 1989. During the pendency of the said appeal, the assessee approached the Commission on December 16, 1988 with respect to four assessment years namely, 1985-86, 1986-87, 1987-88 and 1988- 89. On that date, the assessments relating to the three later years were pending before the Assessing Officer. The application to the Commission made by the assessee is in Form No. 34-B. In Column 10 the assessee stated that the case involved substantial issues and amount, that the transactions of the assessees were large and diverse and that the case calls for judicial approach and appreciation of the facts. It requested the Commission to determine the tax payable for the aforesaid four assessment years, to confer immunity upon it from the levy of penalty and prosecution, and waiver of interest chargeable under the provision of the Act. Through this application, the respondent-assessee offered for tax \"an additional total income of Rs 1,32,27,969 over and above the income offered for assessment in the returns for the assessment years 1985-86 to 1988-89 on which the tax payable works out to Rs 14,35,720\". The respondent further complained that the department \"has conducted a hostile and unfair investigation, has concluded assessment and has raised large demands based on disallowances and additions without providing an opportunity whatsoever\". The respondent requested the Commission to grant \"an ad interim order restraining the Assessing Officer from going ahead with further proceedings in regard to the assessment years sought to be settled hereby so that the application is not rendered otiose by any action of the department during the interrogation\". In short, the respondent did not disclose any income not disclosed before the Assessing Officer but merely offered a small part of the losses claimed by it for the said assessment years to tax.\nAccording to the respondent, it was doing so to buy peace from the department. A copy of the application filed by the assessee was sent to the Commissioner. The Commissioner submitted his report on July 6, 1989. In this report, the Commissioner stated the following facts and objections: 3.The respondent-assessee owns substantial house properties in Bombay, Madras and New Delhi. The gross rental income derived therefrom is about rupees two crores.\nApart from the above, the assessee \"reportedly had a merchandise division stated to be run from Calcutta\". The activities of this division were reported to be in the purchase and sale of potatoes, metal scrap and shares. The assessments for the various years are pending with the Assessing Officer. Some of the past completed assessments have been reopened under Section 147 of the Act. The details of the income/loss disclosed by the assessee for the four assessment years are stated in the Annexure to the report. \"Enquiries regarding the claims made by the company for losses on transactions in these years had commenced before the date of filing of the application by the company with the Settlement Commission and these enquiries had reached a final stage even before the petition was filed by the assessee\".\n4.The Commissioner then set out the comprehensive and elaborate enquiries made by the department into the claims made by the assessee company relating to its alleged dealings in potatoes, scrap and shares from which it claimed to have suffered substantial losses. He referred to the statements of parties, through whom the said transactions were said to have been put through, denying any such transactions. He pointed out with reference to the books of the assessee and other relevant persons that the several alleged payments were not real and that the several transactions disclosed by the assessee were mere make- believe and that all those entries were fabricated. Some of the parties who made statements adverse to the assessee's interest, were also cross-examined by the assessee. We do not think it necessary to refer to or set out the particulars of the investigation and inquiries made or the material gathered, referred to in the report. It sets out the material separately with respect to alleged dealings in potatoes, scrap andshares. It would suffice to set out the concluding paragraphs of the said report. They read: \"The discussion above would therefore conclusively establish the fact that the department has in its possession documents and materials to lead to the view that the assessee had fraudulently claimed losses on various accounts for the assessment years 1985-86, 1986-87 and 1987-88. The department has acted on these, had conducted its own inquiries and had disallowed the claims and treated them as part of the assessee's income.\n For the assessment year 1985-86, complaint under Sections 276C, 277, 278 and 278-B of the Income Tax Act has been filed before the Additional Chief Metropolitan Magistrate, Egmore. Therefore, for the assessment years 1985-86, 1986-87 and 1987-88 the petition filed by the company before the Settlement Commission is not a correct statement of fact.\n As far as the assessment year 1988-89 is concerned, the assessee company filed its return of income on July 11, 1988 accompanied by a copy of the profit and loss account and balance-sheet as on March 31, 1988. Notices issued under Section 143(2) of the Act in October 1988 and March 1989 did not elicit any response from the company.\n For reasons stated above, it is claimed that the department had in its possession adequate information prior to December 16, 1988 to warrant a conclusion that the assessee had concealed details of its true income and furnished inaccurate particulars thereof. In such circumstances, under Section 245-D of the Act, objection is taken by the department to the company's petition being entertained by the Commission more particularly for assessment years 1985-86, 1986-87 and 1987- 88.\"\n5.The Commission heard the parties and allowed the application of the assessee to be proceeded with under Chapter XIX-A. The two members of the Commission, Shri C.S.\nJain and Shri D.C. Shukla wrote two separate concurring orders. The main opinion is by Shri Jain. His reasoning, as condensed by us, runs thus: \"At this stage the burden lies upon the Commissioner to point out the material and the results of enquiries and investigation to show that concealment has been established or that enquiries have reached the stage where it can be said that concealment of income is likely to be established. The material referred to in the report of the Commission, as on the date of filing of the application, does not establish with certainty that the concealment has been established or is likely to be established. Many of the inquiries referred to in the report were made after the filing of the application under Section 245-C; they cannot be taken into consideration for the purpose of taking a decision under Section 245-D. The inquiries made do not establish a complete chain of concealment or fraud on the part of the assessee. (He concluded) 'We, therefore, hold that it is a case where it cannot be said beyond dispute that concealment of income has been established or is likely to be established. Section 245-D(l) of the Income Tax Act describes situations in which the application can be allowed to be proceeded with, where the objection of the Commissioner is not upheld. The Settlement Commission has to consider the material contained in the report of the Commissioner, the nature and circumstances of the case or complexity of investigation involved therein. In the instant case, we have considered the materials contained in the Commissioner's report. The nature and circumstances of the case are such that the case be allowed to be proceeded with.\n The main question involved in the case is whether the losses claimed in merchandise division for various years are genuine.\n Without widespread inquiries and investigations, this task cannot be fulfilled.\n It may involve lots of inquiries, proceedings and possibly prolonged litigation. The facts in relation to the merchandise division have been discussed in detail in earlier paragraphs of this order. The facts and circumstances of the case also involve the complexity of the investigation. We, therefore, allow the application to be proceeded with, for assessment years 1985-86 to 1988-89.\"\n 6.The other member, Shri Shukla also proceeded on the footing that the material gathered by the department after the date of filing of the statement is not relevant and cannot be looked into for the purpose of taking a decision under Section 245-D(l). He too held that on the date of the filing of the application \"conclusive material is lacking on the basis of which the objection of the Commissioner can be sustained.\"\n Relevant Provisions of Law and their meaning: 7.Chapter XIX-A providing for settlement of cases was introduced in the Income Tax Act, 1961 pursuant to the recommendations of the Direct Tax Inquiry Committee headed by Justice Wanchoo. It is necessary to notice a few provisions relevant herein. Section 245-A defines certain expressions occurring in the chapter. Clause (b) defines the expression \"case\" in the following words- \"(b) 'case' means any proceeding under this Act for the assessment or reassessment of any person in respect of any year or years, or by way of appeal or revision in connection with such assessment or reassessment, which may be pending before an income tax authority on the date on which an application under sub-section (1) of Section 245-C is made: Provided that where any appeal or application for revision has been preferred after the expiry of the period specified for the filing of such appeal or application for revision under this Act and which has not been admitted, such appeal or revision shall not be deemed to be a proceeding pending within the meaning of this clause;\"\n8.\"Case\" for the purpose of this chapter thus means a proceeding relating to one or more assessment years. It takes in a proceeding for assessment or reassessment.\nSimilarly, it may be a proceeding pending at the stage of assessment or in appeal or revision.9.Section 245-B provides for constitution of the Income Tax Settlement Commission. Sub-section (3) provides specifically that the Chairman, Vice Chairman and other members of the Settlement Commission shall be appointed by the Central Government \"from amongst persons of integrity and outstanding ability, having special knowledge of, and, experience in, problems relating to direct taxes and business accounts\".\n10.Section 245-C provides for filing of an application by an assessee for settlement of his case. Sub-section (1) says that an assessee may \"at any stage of a case relating to him\" make an application in the prescribed form and manner, \"containing a full and true disclosure of his income which has not been disclosed before the Assessing Officer, the manner in which such income has been derived, the additional amount of income tax payable on such income and such other particulars as may be prescribed\" to settle his case. There are certain other requirements which be must fulfil before making such an application but which it is not necessary to notice here.\n11.For a proper delineation of the jurisdiction of the Commission, it is necessary to bear in mind the language of sub-section (1) of Section 245-C. It provides that at any stage of a case relating to him, an assessee may make an application to the Commission disclosing fully and truly income which has not been disclosed before the Assessing Officer. He must also disclose how the said income has been derived by him besides certain other particulars. This means that an assessee cannot approach the Commission for settlement of his case with respect to income already disclosed before the Assessing Officer. An application under Section 245-C is maintainable only if it discloses income which has not been disclosed before the Assessing Officer. The disclosure contemplated by Section 245-C is thus in the nature of voluntary disclosure of concealed income. Unless the income so disclosed exceeds Rs 50,000, the application under Section 245-C is not maintainable. It is equally evident that once an application made under Section 245-C is admitted for consideration (after giving notice to and considering the report of the Commissioner of Income Tax as provided by Section 245-D) the Commission shall have to withdraw the case relating to that assessment year (or years, as the case may be) from the assessing/appellate/revising authority and deal with the case, as a whole, by itself. In other words, the proceedings before the Commission are not confined to the income disclosed before it alone. Once his application is allowed to be proceeded with by the Commission, the proceedings pending before any authority under the Act relating to that assessment year has to be transferred to Commission and the entire case for that assessment year will be dealt with by the Commission itself. The words \"at any stage of a case relating to him\" only make it clear that the pendency of proceedings relating to that assessment year, whether before the Assessing Officer or before the appellate or revisional authority, is no bar to the filing of an application under Section 245-C so long as the application complies with the requirements of Section 245-C.12. Section 245-D prescribes the procedure to be followed by the Commission on receipt of an application under Section 245-C. Sub-section (1) is relevant for our purpose. As originally enacted, the sub-section read as follows: \" (1) On receipt of an application under Section 245-C, the Settlement Commission shall call for a report from the Commissioner and on the basis of the materials contained in such report and having regard to the nature and circumstances of the case or the complexity of the investigation involved therein, the Settlement Commission may, by order, allow the application to be proceeded with or reject the application: Provided that an application shall not be rejected under this subsection unless an opportunity has been given to the applicant of being heard: Provided further that an application shall not be proceeded with under this sub-section if the Commissioner objects to the application being proceeded with on the ground that concealment of particulars of income on the part of the applicant or perpetration of fraud by him for evading any tax or other sum chargeable or imposable under the Indian Income Tax Act, 1922 (XI of 1922) or under this Act has been established or is likely to be established by any income tax authority in relation to the case.\"\n13.By Finance Act, 1979 the second proviso was omitted and subsection (I A) was inserted, with effect from April 1, 1979. Sub-section (I A) read as follows: \"(1-A) Notwithstanding anything contained in sub-section (1), an application shall not be proceeded with under that sub-section, if the Commissioner objects to the application being proceeded with on the ground that concealment of particulars of income on the part of the applicant or perpetration of fraud by him for evading any tax or other sum chargeable or imposable under the Indian Income Tax Act, 1922 (1 of 1922), or under this Act, has been established or is likely to be established by any income tax authority, in relation to the case: Provided that where the Settlement Commission is not satisfied with the correctness of the objection raised by the Commissioner, the Settlement Commission may, after giving the Commissioner an opportunity of being heard, by order, allow the application to be proceeded with under sub-section (1) and send a copy of its order to the Commissioner.\"\n14.It is this sub-section read with sub-section (1) which is relevant for the purposes of this case. We may, however, mention that sub-section (I-A) has since been deleted and a proviso introduced in sub-section (1) as the second proviso, which reads as follows: \"[Provided further that the Commissioner shall furnish the report within a period of one hundred and twenty days of the receipt of communication from the Settlement Commission in case of all applications made under Section 245-C on or after the date on which the Finance (No. 2) Act, 1991, receives the assent of the President and if the Commissioner fails to furnish the report within the said period, the Settlement Commission may make the order without such report.]\"\n 15. It is not necessary to notice the effect of the above legislative change broughtabout in 1991.\n16. As originally enacted the main limb of sub-section (1) provided that on receipt of an application under Section 245-C, the Commission shall call for a report from the Commissioner with respect to the application. The decision whether to \"allow the application to be proceeded with or reject the application\" had to be taken (a) on the basis of the material contained in the Commissioner's report and (b) having regard to the nature and circumstances of the case or the complexity of the investigation involved therein. The first proviso said that no such application shall be rejected unless an opportunity of hearing is afforded to the applicant. The second proviso to sub-section (1), however, provided that Commission shall not proceed with the application filed under Section 245-C, if the Commissioner objected to the application being proceeded with on the ground that \"concealment of particulars of income on the part of the applicant or perpetration of fraud by him for evading any tax or other sum chargeable or imposable under the Indian Income Tax Act, 1922 (XI of 1922) or under this Act has been established or is likely to be established by any income tax authority in relation to the case\". If the Commissioner objected on the ground aforesaid, the Commission could not proceed with the application under Section 245-C. (It is not necessary to decide for the purpose of this case whether the mere objection of the Commissioner sufficed and whether the Commission had no power to examine the correctness of the said objection.) By the Finance Act, 1979 the second proviso was deleted. The main limb of sub-section (1) and the first proviso, however, remained untouched. In place of the second proviso, sub- section (I-A) was introduced. The effect of this amendment was that the Commissioner's objection ceased to be final and conclusive. The proviso to sub-section (I-Al) empowered the Commission to examine whether the objection of the Commissioner was correct or not. After hearing the Commissioner, if the Commission was satisfied that the objection of the Commissioner was not correct, it could proceed with the application.\n17.Sub-section (I A) has to be read in harmony with the main limb of sub-section (1). The said sub-section says that the Commission shall decide whether to allow the application to be proceeded with before it or to reject it (a) on the basis of the material contained in the report of the Commissioner and (b) having regard to the nature and circumstances of the case or the complexity of the investigation involved therein. What do these words mean?\nThey are words of general import. What did the Parliament mean thereby? For ascertaining their meaning and purport, one has to turn to the purposes underlying the enactment as a whole. It is neither possible nor advisable to seek to lay down exhaustively the several situations in whichthe Commission would decide to allow the application to be proceeded with or in which the application has to be rejected. A case may be a complex one; it may involve prolonged or cumbersome investigation. Another situation may be where having regard to the nature of the case and other circumstances, the Commission may feel, in the interest of the Revenue and in the interest of justice, that it is better to give a quietus to the case once for all instead of allowing it to be fought through the usual channels. The decision has to be taken by the Commission having regard to all the facts and circumstances before it, in the light of the object, purpose and scheme of the enactment. It is precisely because such wide discretion is given to the Commission that the Act requires that it should be manned by men of integrity and outstanding ability, having special knowledge of direct taxes and business accounts.\n18.The next set of words that present some difficulty are the words \"has been established or is likely to be established by any income tax authority in relation to the case\" occurring in sub-section (1-A) [as well as in the second proviso to sub-section (1) as originally enacted].\nFor a proper appreciation of the meaning of these words, it is necessary to remind ourselves that an application under Section 245-C can be made only in respect of an income not disclosed by the assessee before the Assessing Officer. If so, what did the Parliament mean when it said that Commission shall not allow the application to be proceeded with if the Commissioner objects on the ground that \"concealment of particulars of income on the part of the application or perpetration of fraud by him for evading any tax or other sum chargeable or imposable under the Indian Income Tax Act, 1922 or under this Act, has been established or likely to be established by any income tax authority, in relation to the case\"? To appreciate the meaning of the said words, it is necessary to keep in mind the following facts: even though the assessee has not disclosed a particular income before the Assessing Officer, the latter is free to and is empowered to unearth it by making or causing such investigation and enquiries as he thinks appropriate. He may gather and receive information for that purpose. We may take two illustrative cases: One, where the Assessing Officer has discovered some income, which was not disclosed by the assessee, and has added it to the assessee's income. The latter challenges the same and the proceedings are pending either before the Assessing Officer or before an appellate or revisional authority. Second, a case where the income tax authorities are gathering information/material, which is likely to establish that the assessee has concealed the particulars of a particular income. If, in the first case, the assessee applies to the Commission under Section 245-C, the Commissioner can object on the ground that concealment of particulars of income has been established. Similarly, if the assessee in the second case applies to the Commission, the Commissioner can equally object on the ground that the investigation/enquiries made by them already or the information received or gathered by them already is likely to establish the concealment of particulars of income and, therefore, the Commission should not allow theapplication to be proceeded with. On the same lines, there may be cases where the income tax authorities have either established or are likely to establish that the assessee has perpetrated a fraud for evading the tax or other sum chargeable or imposable under the 1922 Act or the present Act. It is the correctness of these objections that the Commission is supposed to look into by the proviso to sub- section (I-A). It's further course of action depends upon its satisfaction one way or the other.\n19.The idea underlying the said words [in the main limb of sub-section (I-A)] is self-evident. The disclosure under Section 245-C must be of an income not disclosed before the Assessing Officer. If the Assessing Officer (or the income tax authority) has already discovered it and has either gathered the material to establish the particulars of such income or fraud fully or is at a stage of investigation/enquiries where the material gathered by him is likely to establish the particulars of such income or fraud, the assessee cannot be allowed to defeat or forestall, as the case may be, the entire exercise of the income tax authorities just by approaching the Commission.\nIn such a case, it cannot be said that he is acting voluntarily or in good faith. He should not be allowed to take advantage of the comparatively easy course of settlement. He must be allowed to face the normal channels of assessment/appeal etc. Section 245-C is meant for those assessees who seek to disclose income not disclosed before the Officer including \"the manner in which such income has been derived\". If the department already knows and has gathered particulars of such income and the manner in which it has been derived, there is no 'disclosure' by the assessee. Let it be remembered that the words in question [in Section 245-D(I-A)] are not words of limitation nor are they meant to help unscrupulous assessees. Chapter XIX-A is a part of the Income Tax Act and must be construed consistent with the overall scheme and object. The chapter is meant for those assessees who want to disclose income not disclosed till then together with the manner in which the said income is derived. It is not meant for those who come after the event, i.e., after the discovery of the particulars of income and its source or discovery of particulars of fraud perpetrated by the assessee, as the case may be nor even to those who come to the Commission to forestall the investigation/inquiries which have reached a stage where the department is in possession of material which though not sufficient to establish such concealment or fraud, is such that it is likely to establish it maybe some more material is required to establish it fully. The Commission has to keep all this in mind while deciding whether to allow the application to be proceeded before it or to reject it.\n20.This discussion also shows that the Commission cannot say that any material collected by the Commissioner after the date of filing of the application under Section 245-C is not relevant for the purposes of Section 245-D(l). The filing of an application by the assessee is a unilateral act. The department may not be aware of the same. The proper line - ordinarily speaking is to be drawn with reference to the date of submission of the report by the Commissioner. This does not, however, prevent theCommission from looking into material collected by income tax authorities even subsequent to the submitting of the report by the Commissioner, if it thinks such a course is called for in the interests of justice.\n21.Sub-section (4) of Section 245-D provides for passing of final orders by the Commission. It is not necessary to refer to the other provisions in the chapter except to mention that the Commission is empowered to direct the waiver of penalty as well as interest and to direct that the tax payable shall be paid 'in prescribed' instalments. It is further empowered to direct that the assessee whose case has been decided by it shall not be proceeded with or prosecuted under the Income Tax Act or under the Indian Penal Code or under any other Central Act for the time being in force with respect to the case covered by the settlement.\nThe orders of the Commission are final, subject of course to constitutional remedies.\nMerits of the case: 22.If we look at the facts of the case in the light of the legal position adumbrated hereinabove, it would be clear that the application filed by the respondent before the Commission was not maintainable and could not have been allowed to be proceeded with. Firstly, the respondent did not disclose, in its application under Section 245-C, any income which was not disclosed before the Assessing Officer.\nThis was a case where the respondent was claiming certain losses, which he sought to set-off against its other income.\nIf the respondent's case was true, it would not have been liable to pay any tax for the reason that entire income from property (and other income, if any) would have been swamped by the said losses. Indeed, the loss had to be carried forward to the next year. The case of the Revenue, however, was that all the alleged transactions (from which loss is said to have resulted) were bogus and fictitious ones, fabricated only for the purposes of evading the tax lawfully due on its income. In his application to the Commission, the respondent did not disclose any income not disclosed by him before the Assessing Officer nor did he disclose in his application the manner in which such income was derived.\nThe assessee merely offered a part of the amount (claimed by him as losses) towards taxable income. Thus, his application, not being in compliance with the first and foremost requirement of Section 245-C(l), was not maintainable thereunder. It ought to have been rejected in limine. The Commission had no jurisdiction to entertain the said application. Secondly, this is a case where the income tax authorities had made extensive investigation and inquiries wherein they had collected voluminous material, which, according to them, established the particulars of concealment of income on the part of the respondent- assessee. It was so held by the Assessing Officer with whom the first appellate authority agreed, no doubt, subsequent to the filing of the application under Section 245-C but before the passing of the impugned order.\n23.The Commission was also not right in holding that while deciding whether to allow the application to be proceeded with before it under Section 245-D(l), they will not look into the material collected after the date offiling of the application under Section 245-C. It has not been found by the Commission that the income tax authorities were aware of the filing of the application on December 16, 1988. Even if they were aware, the mere filing of the application did not mean that they should fold their hands and stop their investigation and enquiries in their tracks.\nThey were, in fact, entitled to rely upon the evidence and material collected by them till the date of submission of the report to the Commission. The decision of the Commission is thus vitiated by misdirection in law. It took cognizance of a matter which it could not have. The impugned order is equally vitiated by a misapprehension as to true legal position on the part of the Commission.\n24.The appeals are allowed accordingly. The order of the Settlement Commission under appeal is set aside. The assessments relating to all the four assessment years shall now proceed according to law. Having regard to the facts of the case, we direct that it shall be open to the respondent to file an appeal before the Tribunal against the order dated March 31, 1989 within one month from today. If so filed, it shall be treated as filed within time and shall be dealt with as such. We make it clear that this order is confined to the jurisdiction of the Commission and the validity of its order taking seisin of the case. We have not expressed nor did we intend to express any opinion on the merits of the same. It is for the appropriate authorities to go into the same in accordance with law.\n25.The respondent shall pay the costs of the appellant in this appeal which we assess at Rs 10,000."
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "b267c6f9fce74fab8f64e9b8710b0271",
"to_name": null,
"type": null,
"value": {
"end": 102,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nSTATE OF KARNATAKA\n\n Vs.\n\nRESPONDENT:\nL. MUNISWAMY & ORS.\n\nDATE OF JUDGMENT03/03/1977"
}
},
{
"from_name": null,
"id": "fc95250e33624f5aa18d1ada336cbedd",
"to_name": null,
"type": null,
"value": {
"end": 589,
"labels": [
"PREAMBLE"
],
"start": 102,
"text": "\n\nBENCH:\nCHANDRACHUD, Y.V.\nBENCH:\nCHANDRACHUD, Y.V.\nGOSWAMI, P.K.\nSHINGAL, P.N.\n\nCITATION:\n\n1977 AIR 1489 1977 SCR (3) 113\n\n1977 SCC (2) 699 (7,63,64,110)\n (10)\nCITATOR INFO :\n\nE 1980 SC 962\n\nD 1992 SC1894\n\nACT:\n\n Code of Criminal Procedure, 1973 (Act II of 1974)--S.482\n (s. 561 A of -1899 Code)--Inherent power of the High Court\n to quash proceedings at the stage of framing of\n charges--Explained.\n"
}
},
{
"from_name": null,
"id": "4b9b29c66a9b4329aa63a3d1b49a8ade",
"to_name": null,
"type": null,
"value": {
"end": 835,
"labels": [
"PREAMBLE"
],
"start": 589,
"text": "\nHEADNOTE:\n The apellants are accused Nos. 10, 13, 14, 15 and 17 to 20\n before the Sessions Court for trial under various offences,\n viz., . 324, 326, and 307 read with s. 34 of the Penal\n Code."
}
},
{
"from_name": null,
"id": "bec8586d2e0d4632ab6d29da050cdf21",
"to_name": null,
"type": null,
"value": {
"end": 939,
"labels": [
"PREAMBLE"
],
"start": 836,
"text": "While discharging accused Nos. 11, 12 and 16 u/s 227\n of the Criminal Procedure Code 1973,"
}
},
{
"from_name": null,
"id": "3e52ffe3d3ff45f7b22fa9775e245443",
"to_name": null,
"type": null,
"value": {
"end": 1569,
"labels": [
"PREAMBLE"
],
"start": 940,
"text": "on 8.8.1975, the\n learned Sessions Judge observed that there was \"some materi-\n al to hold that the remaining accused have had something to\n do with the incident which occurred on 6.12.1973 in I.T.I.\n Colony, Banglore\" and adjourned the case to September 1,\n 1975, \"for framing specific charges as made out from the\n material on record against the rest of the accused person .\n Two revision petitions were filed against this order, one by\n accussed Nos. 10, 13, 14 and 15 and the other by accused\n Nos. 17 to 20."
}
},
{
"from_name": null,
"id": "250d2564e010413c82f605d79fd2873a",
"to_name": null,
"type": null,
"value": {
"end": 1630,
"labels": [
"PREAMBLE"
],
"start": 1570,
"text": "These petitions were allowed by the High\n Court"
}
},
{
"from_name": null,
"id": "457c4e43aa704fc7b943a8c9716f2832",
"to_name": null,
"type": null,
"value": {
"end": 1682,
"labels": [
"PREAMBLE"
],
"start": 1631,
"text": "on the view that there was no sufficient ground for"
}
},
{
"from_name": null,
"id": "2955c8a9531243f088dce3b2a13c527c",
"to_name": null,
"type": null,
"value": {
"end": 1741,
"labels": [
"PREAMBLE"
],
"start": 1682,
"text": "\n proceeding against the petitioners before it"
}
},
{
"from_name": null,
"id": "4fc7ec92482245c1bb2bdd08d9621fb5",
"to_name": null,
"type": null,
"value": {
"end": 1844,
"labels": [
"PREAMBLE"
],
"start": 1741,
"text": ". The High\n Court accordingly quashed the the proceedings in regard to\n them."
}
},
{
"from_name": null,
"id": "d23f6bc039c2402c88a952126c5095e5",
"to_name": null,
"type": null,
"value": {
"end": 2319,
"labels": [
"PREAMBLE"
],
"start": 1844,
"text": "\n In appeal by Special Leave, the appellant State\n contended: (1) The High Court ought not to have exercised\n its power to quash the proceedings against the respondent\n without giving to the Sessions Court, which was seized of\n the case, an opportunity to consider whether there was\n sufficient material on the record on which to frame charges\n against the respondents."
}
},
{
"from_name": null,
"id": "4e0d73c80489470ea3ad6588f0020c87",
"to_name": null,
"type": null,
"value": {
"end": 2830,
"labels": [
"PREAMBLE"
],
"start": 2320,
"text": "(ii) In any event the High Court\n could not take upon itself the task of assessing or appreci-\n ating the weight of material on the record in order to find\n whether any charges could be legitimately framed against the\n respondents.\n Dismissing the appeal, the Court\n HELD: (1) The High Court was justified in holding\n\nthat for meeting the ends of justice the proceedings against\nthe respondents ought to be quashed."
}
},
{
"from_name": null,
"id": "85207cb3f04b4bbab33977e2d192046a",
"to_name": null,
"type": null,
"value": {
"end": 3100,
"labels": [
"PREAMBLE"
],
"start": 2831,
"text": "It would be a sheer\nwaste of public time and money to permit the proceedings to\ncontinue against the respondent, when there is no material\non the record on which any tribunal could reasonably convict\nthem for any offence connected with the assault on the com-\nplainant."
}
},
{
"from_name": null,
"id": "bc113da7391949398ba7ed8353b11b49",
"to_name": null,
"type": null,
"value": {
"end": 3254,
"labels": [
"PREAMBLE"
],
"start": 3101,
"text": "This is one of these cases in which a charge of\nconspiracy is hit upon for the mere reason that evidence of\ndirect involvement of the accused is lacking."
}
},
{
"from_name": null,
"id": "90f5b09c0f984f548d36b23aa69833b7",
"to_name": null,
"type": null,
"value": {
"end": 3537,
"labels": [
"PREAMBLE"
],
"start": 3255,
"text": "[118 A, D-E]\n\n (2) The saving of the High Court's inherent powers,\nboth in civil and criminal matters, is designed to achieve\na Salutary public purpose which is that a Court proceedings\nought not to be permitted to degenerate into a weapon of\nharassment or persecution."
}
},
{
"from_name": null,
"id": "1fe01fc2837644bfa31413de854701ab",
"to_name": null,
"type": null,
"value": {
"end": 3781,
"labels": [
"PREAMBLE"
],
"start": 3538,
"text": "In a criminal case, the veiled\nobject behind a lame prosecution, the very nature of the\nmaterial on which the structure of the prosecution rests and\nthe like would justify the High Court in quashing the pro-\nceeding in the interest of justice."
}
},
{
"from_name": null,
"id": "27efad9c1fd841f188a907b8fbde6cab",
"to_name": null,
"type": null,
"value": {
"end": 3791,
"labels": [
"PREAMBLE"
],
"start": 3782,
"text": "[117 F-G]"
}
},
{
"from_name": null,
"id": "8300cf93429547ab8988b8c17ddfbb70",
"to_name": null,
"type": null,
"value": {
"end": 4041,
"labels": [
"PREAMBLE"
],
"start": 3791,
"text": "\n(3) Considerations justifying the exercise of inherent\npowers for securing the ends of justice vary from case to\ncase and a jurisdiction as wholesome as the one conferred by\ns. 482 ought not to be encased within the strait-jacket of a\nrigid formula."
}
},
{
"from_name": null,
"id": "4fca2952c104430e9538a3c9e400b99f",
"to_name": null,
"type": null,
"value": {
"end": 4317,
"labels": [
"PREAMBLE"
],
"start": 4042,
"text": "The three instances' cited in the Judgment\nin R.P. Kapoor Vs. The State of Punjab, [1960] 3 SCR 388, as\nto when the High Court would be justified in exercising its\ninherent jurisdiction are only illustrative and can in the\nvery nature of things not be regarded as exhaustive."
}
},
{
"from_name": null,
"id": "cf1d70cfb39745979767e3cb213d0a03",
"to_name": null,
"type": null,
"value": {
"end": 4334,
"labels": [
"PREAMBLE"
],
"start": 4318,
"text": "[118\nF-H, 119 A]"
}
},
{
"from_name": null,
"id": "bc49548ad52b40e29d45d7b83c61507c",
"to_name": null,
"type": null,
"value": {
"end": 4398,
"labels": [
"PREAMBLE"
],
"start": 4334,
"text": "\n114\nR.P. Kapur vs. State of Punjab [1960] 3 SCR 338 explained.."
}
},
{
"from_name": null,
"id": "1eb4b22f7adb413c9e7cdc5d76e9288e",
"to_name": null,
"type": null,
"value": {
"end": 4610,
"labels": [
"PREAMBLE"
],
"start": 4399,
"text": "\n (4) It is wrong to say that at the stage of framing\ncharges the Court cannot apply its judicial mind to the\nconsideration whether or not there is any ground for presum-\ning the commission of the offence."
}
},
{
"from_name": null,
"id": "be6685afcb94444293300dadd6158e10",
"to_name": null,
"type": null,
"value": {
"end": 4618,
"labels": [
"PREAMBLE"
],
"start": 4611,
"text": "[119 B]"
}
},
{
"from_name": null,
"id": "d91f980dfb6d435fba5476315864754d",
"to_name": null,
"type": null,
"value": {
"end": 4718,
"labels": [
"PREAMBLE"
],
"start": 4618,
"text": "\n\n (5) While considering whether there is sufficient\nground for proceeding against an accused."
}
},
{
"from_name": null,
"id": "08e480954332451185d14c47a62f740f",
"to_name": null,
"type": null,
"value": {
"end": 4909,
"labels": [
"PREAMBLE"
],
"start": 4719,
"text": "the court pos-\nsesses a comparatively wider discretion in the exercise of\nwhich it can determine the question whether the material on\nthe record. if unrebutted, is such on the basis of which"
}
},
{
"from_name": null,
"id": "35dbf0fb67794ae0b93934459982e3dc",
"to_name": null,
"type": null,
"value": {
"end": 4961,
"labels": [
"PREAMBLE"
],
"start": 4910,
"text": "a\nconviction can be said reasonably to be possible."
}
},
{
"from_name": null,
"id": "61780f0893f9425a9105819e2152cfd4",
"to_name": null,
"type": null,
"value": {
"end": 5134,
"labels": [
"PREAMBLE"
],
"start": 4962,
"text": "[119 B-E]\n\n Vadilal Panchal v. D. D. Ghadigaonkar AIR 1960 SC\n1113; Century Spinning & Manufacturing, Co. v. State of\nMaharashtra AIR 1972 SC 545 applied.\n\n (6)"
}
},
{
"from_name": null,
"id": "c3089160431641b683dd1d91a038e0c2",
"to_name": null,
"type": null,
"value": {
"end": 5300,
"labels": [
"PREAMBLE"
],
"start": 5135,
"text": "In the instant case the High Court is right in its\nview that the materials on which the prosecution proposed to\nrely against the respondents is wholly inadequate to\n"
}
},
{
"from_name": null,
"id": "0e9ab7fe99754114aec4dc941012f5c4",
"to_name": null,
"type": null,
"value": {
"end": 5307,
"labels": [
"PREAMBLE"
],
"start": 5300,
"text": "sustain"
}
},
{
"from_name": null,
"id": "6476839416884229a061ea8de2e9d08c",
"to_name": null,
"type": null,
"value": {
"end": 5393,
"labels": [
"PREAMBLE"
],
"start": 5308,
"text": "the charge that they are in any manner connected\nwith the assault on the complainant."
}
},
{
"from_name": null,
"id": "f7b45e42ccb3462cacfcb5fc6ded208f",
"to_name": null,
"type": null,
"value": {
"end": 5401,
"labels": [
"PREAMBLE"
],
"start": 5394,
"text": "[119 E-"
}
},
{
"from_name": null,
"id": "945af05dd57d4567819b1e8cb6e51bc1",
"to_name": null,
"type": null,
"value": {
"end": 5523,
"labels": [
"PREAMBLE"
],
"start": 5401,
"text": "F]\n\n (7) The grievance that the High Court interfered with\nthe Sessions' Court's order prematurely is not justified."
}
},
{
"from_name": null,
"id": "6728c30b0bcc48d3a6bd8f522a63f2bf",
"to_name": null,
"type": null,
"value": {
"end": 5792,
"labels": [
"PREAMBLE"
],
"start": 5523,
"text": "\nThe case was adjourned by the Sessions Judge not for\ndeciding whether any charge at all could be framed against\nthe remaining accused, but for the purpose of deciding as\nto which charge or charges could appropriately be framed\non the basis of the material before him.\n"
}
},
{
"from_name": null,
"id": "fbdfb0fd4b474308957e19f62a84749d",
"to_name": null,
"type": null,
"value": {
"end": 5879,
"labels": [
"PREAMBLE"
],
"start": 5792,
"text": "\n [116 G"
}
},
{
"from_name": null,
"id": "666e7758be4447848f19e51287bcf76e",
"to_name": null,
"type": null,
"value": {
"end": 5887,
"labels": [
"PREAMBLE"
],
"start": 5879,
"text": "-H]\n (8)"
}
},
{
"from_name": null,
"id": "561e9661bf3348959dc796c671a52824",
"to_name": null,
"type": null,
"value": {
"end": 5958,
"labels": [
"PREAMBLE"
],
"start": 5888,
"text": "The object of s. 227 of the Code of Criminal Procedure,\nAct 2 of 1974,"
}
},
{
"from_name": null,
"id": "dab41db980b1412693409066831ceef7",
"to_name": null,
"type": null,
"value": {
"end": 6144,
"labels": [
"PREAMBLE"
],
"start": 5959,
"text": "is to enable the superior Court to examine\nthe correctness of the reasons for which the Sessions Judge\nhas held that there is not sufficient ground for proceed-\ning against the accused."
}
},
{
"from_name": null,
"id": "7b4cc5722c6947aaa8ad13123797ef95",
"to_name": null,
"type": null,
"value": {
"end": 6371,
"labels": [
"PREAMBLE"
],
"start": 6145,
"text": "[117 C-D]\n\n (9) The High Court is entitled to go into the reasons\ngiven by the Sessions Judge in support of his order and to\ndetermine for itself whether the order is justified by the\nfacts and circumstances of the case."
}
},
{
"from_name": null,
"id": "15bf7a20f6db40debd1c30f02c820906",
"to_name": null,
"type": null,
"value": {
"end": 6379,
"labels": [
"PREAMBLE"
],
"start": 6372,
"text": "[117 D-"
}
},
{
"from_name": null,
"id": "8d5d630c8b8e41e298a0562c08db159e",
"to_name": null,
"type": null,
"value": {
"end": 6730,
"labels": [
"PREAMBLE"
],
"start": 6379,
"text": "E] .\n\n (10) In the exercise of the wholesome power u/s 482 of\nthe Act 2 of 1974 (s. 561 of 1898 Code), the High Court is\nentitled to quash a proceeding if it comes to the conclusion\nthat allowing the proceeding to continue would be an abuse\nof the process of the Court or that the ends of justice\nrequire that the proceeding ought to be quashed."
}
},
{
"from_name": null,
"id": "03c5a621aae2469596a54b1ce80bf071",
"to_name": null,
"type": null,
"value": {
"end": 6737,
"labels": [
"PREAMBLE"
],
"start": 6731,
"text": "[117 E"
}
},
{
"from_name": null,
"id": "455ea4a7f94a47e8acc00a72ea8b0827",
"to_name": null,
"type": null,
"value": {
"end": 6904,
"labels": [
"PREAMBLE"
],
"start": 6737,
"text": "-F]\nObservations:\n\n The ends of justice are higher than the ends of mere law\nthough justice has got to be administered according to laws\nmade by the legislature."
}
},
{
"from_name": null,
"id": "9887734245e94df8893fb6e7b017d90a",
"to_name": null,
"type": null,
"value": {
"end": 7174,
"labels": [
"PREAMBLE"
],
"start": 6905,
"text": "Without a proper realisation of the\nobject and purpose of the provision which seeks to save the\ninherent powers of the High Court to do justice between the\nState and its subjects, it would be impossible to appreciate\nthe width and contours of that salient jurisdiction."
}
},
{
"from_name": null,
"id": "9f50b803297f47079ed66fdfd1d3f307",
"to_name": null,
"type": null,
"value": {
"end": 7184,
"labels": [
"PREAMBLE"
],
"start": 7175,
"text": "[117\nG-H]"
}
},
{
"from_name": null,
"id": "c93ca75b71064fcea9bb985a033ecc2b",
"to_name": null,
"type": null,
"value": {
"end": 7195,
"labels": [
"PREAMBLE"
],
"start": 7184,
"text": "\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "6f93687b67b0453fb23ec25bd9ae651c",
"to_name": null,
"type": null,
"value": {
"end": 7287,
"labels": [
"NONE"
],
"start": 7195,
"text": " CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.\n 345-346 of 1976."
}
},
{
"from_name": null,
"id": "a7806f8c337b4078b9d47aa08ec8230d",
"to_name": null,
"type": null,
"value": {
"end": 7453,
"labels": [
"NONE"
],
"start": 7287,
"text": "\n (Appeals by Special Leave from the Judgment and Order dated 30-9-1975 of the Karnataka High Court in Crl. Peti- tions Nos. 248 and 253 of 1975)."
}
},
{
"from_name": null,
"id": "f56c0a528c894a3a891c876eb3197761",
"to_name": null,
"type": null,
"value": {
"end": 7588,
"labels": [
"NONE"
],
"start": 7453,
"text": "\n D. Mookherjee, and B.R.G.K. Achar, for the Appellant, Frank Anthony, K.B. Rohtagi and M.N. Kashyap, for the Respondents."
}
},
{
"from_name": null,
"id": "83bf1d633b114af5b3dcaa03c16f4e7c",
"to_name": null,
"type": null,
"value": {
"end": 7661,
"labels": [
"NONE"
],
"start": 7588,
"text": "\n The Judgment of the Court was delivered by CHANDRACHUD, J."
}
},
{
"from_name": null,
"id": "639229fd880c48d39d58a884c7eb1d67",
"to_name": null,
"type": null,
"value": {
"end": 7836,
"labels": [
"FAC"
],
"start": 7662,
"text": "These two appeals by social leave arise out of a judgment dated september 30, 1975 rendered by the High Court 115 of Karnataka in Criminal Petitions Nos. 248 and 253 of 1975."
}
},
{
"from_name": null,
"id": "c6a203280a194ea9985a75dc3258ea63",
"to_name": null,
"type": null,
"value": {
"end": 8035,
"labels": [
"RLC"
],
"start": 7836,
"text": "\n By the aforesaid judgment the High Court in the exercise of its inherent powers has quashed proceedings initiated by the State of Karnataka appellant herein, against the respond- ents."
}
},
{
"from_name": null,
"id": "3fe712745dd44136ac41298df8d2ab7d",
"to_name": null,
"type": null,
"value": {
"end": 8193,
"labels": [
"FAC"
],
"start": 8035,
"text": "\n The incident out of which these proceedings arise took place on December 6, 1973 in the Central Avenue of the Indian Telephone Industries Colony, Bangalore."
}
},
{
"from_name": null,
"id": "26e7e968012b4566b558a1114314085b",
"to_name": null,
"type": null,
"value": {
"end": 8397,
"labels": [
"FAC"
],
"start": 8194,
"text": "Thyagaraja Iyer, accused No. 1, who was an employee of the Indian' Telephone Industries Ltd. was dismissed from service on September 20, 1973 on the allegation that he had assaulted a Canteen supervisor."
}
},
{
"from_name": null,
"id": "fefc1656fc4248bf9bdc4759ad7a9495",
"to_name": null,
"type": null,
"value": {
"end": 8682,
"labels": [
"FAC"
],
"start": 8398,
"text": "The complainant Ajit Dutt, Works Manager of the Crossbar Division, attempted to serve the dismissal order on him but he refused to accept it and threatened the complainant that he, the complainant, was primarily responsible for the dismissal and would have to answer the consequences."
}
},
{
"from_name": null,
"id": "ea41775e272f40078fdd2ddd1b6f1b7f",
"to_name": null,
"type": null,
"value": {
"end": 8810,
"labels": [
"FAC"
],
"start": 8683,
"text": "It is alleged that the I.T.I.\n Employees' Union took up cudgels on his behalf and re- solved to support his cause."
}
},
{
"from_name": null,
"id": "8d917308da2c425896dd4755d34145f3",
"to_name": null,
"type": null,
"value": {
"end": 9074,
"labels": [
"FAC"
],
"start": 8811,
"text": "The case of the prosecution is that accused Nos. 1 and 8 to 20 conspired to commit the murder of the complainant and that in pursuance of that conspiracy accused Nos. 1, 8 and 10 hired accused Nos. 2, a notorious criminal, to execute the object of the conspiracy."
}
},
{
"from_name": null,
"id": "b28060c51e55429fa775bff67dceb83f",
"to_name": null,
"type": null,
"value": {
"end": 9373,
"labels": [
"FAC"
],
"start": 9074,
"text": "\n Accused No. 2 in turn engaged the services of accused Nos. 3 to 7 and eventually on the morning of December 6, 1973 accused Nos. 1 to 6 are alleged to have assaulted the complainant with knives, thereby committing offences under ss. 324, 326 and 307 read with s. 34. of the Penal Code"
}
},
{
"from_name": null,
"id": "efd584120c214cf3a93f468496491946",
"to_name": null,
"type": null,
"value": {
"end": 9486,
"labels": [
"FAC"
],
"start": 9373,
"text": ".\n Accused No. 2 was charged separately under s. 307 or in the alternative under s. 326, Penal Code."
}
},
{
"from_name": null,
"id": "0d5e526d21c340a2ad213358136f71d2",
"to_name": null,
"type": null,
"value": {
"end": 9729,
"labels": [
"RLC"
],
"start": 9486,
"text": "\n By his order dated October 23, 1974 the learned Metro- politan Magistrate, V Court, Bangalore directed all the 20 accused to take their trial before the Sessions Court for offences under s. 324, 326 and 307 read with s. 34 of the Penal Code."
}
},
{
"from_name": null,
"id": "24eb97be7f714bf484506b92140d598b",
"to_name": null,
"type": null,
"value": {
"end": 9932,
"labels": [
"RLC"
],
"start": 9729,
"text": "\n At the commencement of the trial before the learned First Additional District and Sessions Judge, Bangalore, two preliminary questions were raised, one by the prosecution and the other by the, accused."
}
},
{
"from_name": null,
"id": "7e973b4c5536489e97debd48ba817785",
"to_name": null,
"type": null,
"value": {
"end": 10133,
"labels": [
"RLC"
],
"start": 9933,
"text": "It was contended by the prosecution that the specification of particular sections in the committal order did not preclude the Sessions Court from framing a new charge under s. 120-B of the Penal Code."
}
},
{
"from_name": null,
"id": "9f84f19aa89b4dedac8eb8cac7057f85",
"to_name": null,
"type": null,
"value": {
"end": 10300,
"labels": [
"RLC"
],
"start": 10134,
"text": "On the other hand it was contended by the accused that there was no sufficient ground for proceeding with the prosecu- tion and therefore they ought to be discharged."
}
},
{
"from_name": null,
"id": "caacb11f919d4ad5b910870afc808ece",
"to_name": null,
"type": null,
"value": {
"end": 10437,
"labels": [
"RLC"
],
"start": 10301,
"text": "The learned Additional Sessions Judge accepted the contention of the prosecution that he had the power to frame a charge under s.\n120-B."
}
},
{
"from_name": null,
"id": "3bd635075d504961950425d079495f75",
"to_name": null,
"type": null,
"value": {
"end": 10554,
"labels": [
"ANALYSIS"
],
"start": 10438,
"text": "The correctness of that view was not challenged before us by Mr. Frank Anthony who appears on behalf of the accused."
}
},
{
"from_name": null,
"id": "8bba87c44ea340e79b9ce1deba50f0ed",
"to_name": null,
"type": null,
"value": {
"end": 10727,
"labels": [
"ANALYSIS"
],
"start": 10555,
"text": "That is as it ought to be because the power of the Sessions Court to frame an appropriate charge is not tram- melled by the specifications contained in the committal order."
}
},
{
"from_name": null,
"id": "7ea71f5b39fd449a85e92bd37f8ebc41",
"to_name": null,
"type": null,
"value": {
"end": 10878,
"labels": [
"ANALYSIS"
],
"start": 10728,
"text": "The Sessions Court, being seized of the case, has jurisdiction to frame appropriate charges as the facts may justify or the circumstances may warrant."
}
},
{
"from_name": null,
"id": "90ad68cf547e45ada84f593fd61c942d",
"to_name": null,
"type": null,
"value": {
"end": 11003,
"labels": [
"RLC"
],
"start": 10879,
"text": "The contention of the accused that they ought to be discharged was accepted by the learned Additional Sessions Judge partly."
}
},
{
"from_name": null,
"id": "d35c5c842d054be099a95705fd24ed57",
"to_name": null,
"type": null,
"value": {
"end": 11130,
"labels": [
"RLC"
],
"start": 11004,
"text": "lie held that there was no case against accused Nos. 11, 12 and 16 and that 116 they were therefore entitled to be discharged."
}
},
{
"from_name": null,
"id": "323cdc0c0a964e13979f5e43fe6b3208",
"to_name": null,
"type": null,
"value": {
"end": 11207,
"labels": [
"RLC"
],
"start": 11131,
"text": "By an order dated August 8, 1975 the, learned Judge. discharged those three."
}
},
{
"from_name": null,
"id": "2e2736579cb045a68d4fa6c03687f645",
"to_name": null,
"type": null,
"value": {
"end": 11300,
"labels": [
"RLC"
],
"start": 11208,
"text": "accused in the. exercise of his powers under s. 227 of the Code of Criminal Procedure, 1973."
}
},
{
"from_name": null,
"id": "2e07db2c1a6d43a09139478906a270bb",
"to_name": null,
"type": null,
"value": {
"end": 11443,
"labels": [
"ANALYSIS"
],
"start": 11301,
"text": "We are informed that the correctness of that order is under challenge before the High Court in a proceeding taken by the State of Karna- taka."
}
},
{
"from_name": null,
"id": "810bbcd288724aafb95eca2767f832dd",
"to_name": null,
"type": null,
"value": {
"end": 11500,
"labels": [
"ANALYSIS"
],
"start": 11444,
"text": "We are not concerned with that order in these ap- peals."
}
},
{
"from_name": null,
"id": "d2cfa50f733149f48d3d2eb1b0e01648",
"to_name": null,
"type": null,
"value": {
"end": 11558,
"labels": [
"ANALYSIS"
],
"start": 11501,
"text": "After discharging accused Nos. 11, 12 and 16 the learned."
}
},
{
"from_name": null,
"id": "40b1270535c84745b3ba359193c204a7",
"to_name": null,
"type": null,
"value": {
"end": 11777,
"labels": [
"ANALYSIS"
],
"start": 11559,
"text": "Judge, turning to the case against the remaining accused, observed that there was \"some material to hold that they have had something to do with the incident which occurred on 6-12-1973 in the I.T.I. Colony Bangalore\"."
}
},
{
"from_name": null,
"id": "80453606b72a4b32b90419c39f59aa09",
"to_name": null,
"type": null,
"value": {
"end": 11947,
"labels": [
"RLC"
],
"start": 11777,
"text": "\nThe learned Judge adjourned the case to September 1, 1975 \"for framing specific charges as made out from the material on record against the rest of the accused persons.\""
}
},
{
"from_name": null,
"id": "764c7d5c3cd340f98f3b7b22c03d96b1",
"to_name": null,
"type": null,
"value": {
"end": 12080,
"labels": [
"ANALYSIS"
],
"start": 11947,
"text": "\n Two revision petitions were filed against this order, one by accused Nos. 10, 13, 14 and 15 and the other by accused Nos. 17 to 20."
}
},
{
"from_name": null,
"id": "016fa0c432af44babb24143905377f82",
"to_name": null,
"type": null,
"value": {
"end": 12225,
"labels": [
"RLC"
],
"start": 12081,
"text": "Those petitions were allowed by the High'Court on the view that there was no sufficient ground for proceeding against the petitioners before it."
}
},
{
"from_name": null,
"id": "9de46c927338411eb87916c486387e97",
"to_name": null,
"type": null,
"value": {
"end": 12327,
"labels": [
"RLC"
],
"start": 12226,
"text": "The High Court accordingly quashed the proceedings in regard to. them which has led to these appeals."
}
},
{
"from_name": null,
"id": "e8a717defd2d4782a9a567d42c20d77d",
"to_name": null,
"type": null,
"value": {
"end": 12707,
"labels": [
"ARG_PETITIONER"
],
"start": 12329,
"text": "Mr. Mookerjee who. appears on behalf of the State of Karnataka contends that the High Court ought not to have exercised its; powers to quash the proceedings against the respondents without giving to the Sessions Court, which was seized of the case, an opportunity to consider whether there was sufficient material on the record on which to frame charges against the respondents."
}
},
{
"from_name": null,
"id": "184dd259ece34c08925ff4cbacbcc156",
"to_name": null,
"type": null,
"value": {
"end": 13078,
"labels": [
"ARG_PETITIONER"
],
"start": 12708,
"text": "It is argued that the Sessions Court had adjourned the case for a consideration of that very question and it was not proper for the High Court to withdraw the case, as it were, and to exercise its ex- traordinary powers, thereby preventing the Trial Court from examining the sufficiency of the material which it is the primary duty and function of that Court to examine."
}
},
{
"from_name": null,
"id": "5694c9a2f44344b2b6cb4e210dc41c3f",
"to_name": null,
"type": null,
"value": {
"end": 13317,
"labels": [
"ANALYSIS"
],
"start": 13079,
"text": "There is some apparent justification for this grievance because the language in which the sessions Court couched its order would seem to suggest that it had adjourned the case to September 1, 1975 for consideration of the question as to.\n"
}
},
{
"from_name": null,
"id": "961544b53eb7492fafe81c55e27738ee",
"to_name": null,
"type": null,
"value": {
"end": 13324,
"labels": [
"ANALYSIS"
],
"start": 13317,
"text": "whether"
}
},
{
"from_name": null,
"id": "aec378eaae0f4fd6889d6574d3e38a50",
"to_name": null,
"type": null,
"value": {
"end": 13392,
"labels": [
"ANALYSIS"
],
"start": 13325,
"text": "there was sufficient ground for proceeding against the respondents."
}
},
{
"from_name": null,
"id": "29c400f133be40d486a600ecfd6ce707",
"to_name": null,
"type": null,
"value": {
"end": 13664,
"labels": [
"ANALYSIS"
],
"start": 13393,
"text": "But a careful reading of the Sessions Courts judgment would reveal that while discharg- ing accused Nos. 11, 12 and 16 it came, to the conclusion that insofar as the other accused were. concerned there was some material to hold that they were connected with the incident."
}
},
{
"from_name": null,
"id": "57c95f04a60d49aeb4021231611d9331",
"to_name": null,
"type": null,
"value": {
"end": 13755,
"labels": [
"ANALYSIS"
],
"start": 13665,
"text": "The case was, therefore, adjourned by the Court for flaming specific charges against them."
}
},
{
"from_name": null,
"id": "aa63b1a774ac462bb91424fffd1d5495",
"to_name": null,
"type": null,
"value": {
"end": 14032,
"labels": [
"ANALYSIS"
],
"start": 13756,
"text": "In other words, the learned Judge adjourned the case not for deciding wheth- er any charge at all could be framed against the remaining accused but for the purpose of deciding as to which charge or charges could appropriately be framed on the basis of the material before him."
}
},
{
"from_name": null,
"id": "205830fdf9f3417f96c4300ab7659858",
"to_name": null,
"type": null,
"value": {
"end": 14149,
"labels": [
"ANALYSIS"
],
"start": 14033,
"text": "The grievance therefore that the High Court interfered with the sessions Court's order prematurely is not justified."
}
},
{
"from_name": null,
"id": "c6a9d9a5fefa45ad992d4533d6084577",
"to_name": null,
"type": null,
"value": {
"end": 14425,
"labels": [
"ARG_PETITIONER"
],
"start": 14149,
"text": "\n The second limb of Mr. Mookerjee's argument is that in any event the High Court could not take upon itself the task of assessing or appreciating the weight of material on the record in order to find whether any charges could be legiti- mately framed against the respondents."
}
},
{
"from_name": null,
"id": "703d496ad5ca4c039686cf3607b9eaa3",
"to_name": null,
"type": null,
"value": {
"end": 14522,
"labels": [
"ARG_PETITIONER"
],
"start": 14426,
"text": "So 117 long as there is some material on the record to connect the accused with the crime, says."
}
},
{
"from_name": null,
"id": "7b0856f1dfd842f7862fcb6f82de3c28",
"to_name": null,
"type": null,
"value": {
"end": 14603,
"labels": [
"ARG_PETITIONER"
],
"start": 14523,
"text": "the learned counsel, the case must go on and the High Court has no jurisdiction."
}
},
{
"from_name": null,
"id": "56d8e062729f4b0fb81644c4dda19c2a",
"to_name": null,
"type": null,
"value": {
"end": 14721,
"labels": [
"ARG_PETITIONER"
],
"start": 14604,
"text": "to put a precipitate or premature end to the proceedings on the belief that the prosecution is not likely to succeed."
}
},
{
"from_name": null,
"id": "1071d217d77a4223ace191e31e93216e",
"to_name": null,
"type": null,
"value": {
"end": 14781,
"labels": [
"ANALYSIS"
],
"start": 14722,
"text": "This, in our opinion, is too broad a proposition to accept."
}
},
{
"from_name": null,
"id": "07d5977507234504bb95beaa9cd8c92c",
"to_name": null,
"type": null,
"value": {
"end": 15194,
"labels": [
"STA"
],
"start": 14781,
"text": "\n-Section 227 of the Code of Criminal Procedure, 2 of 1974, provides that: \"If, upon consideration of the record of the case and the documents submitted there- with, and after hearing the submissions of the accused and the prosecution in this be- half, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.\""
}
},
{
"from_name": null,
"id": "a693f09e06f74a9bb1d62e2643818d54",
"to_name": null,
"type": null,
"value": {
"end": 15280,
"labels": [
"ANALYSIS"
],
"start": 15195,
"text": "This section is contained in Chapter XVIII called \"Trial Before a Court of Sessions\"."
}
},
{
"from_name": null,
"id": "65159a90c1464243ab4d3c37aa03532f",
"to_name": null,
"type": null,
"value": {
"end": 15558,
"labels": [
"ANALYSIS"
],
"start": 15281,
"text": "It is clear from the provi- sion that the Sessions Court has the power to discharge an accused if after perusing the record and hearing the parties he comes to the conclusion, for reasons to be re- corded, that there is not sufficient ground for proceeding against the accused."
}
},
{
"from_name": null,
"id": "cf12271151f54fe190c1a8cfb2f0d053",
"to_name": null,
"type": null,
"value": {
"end": 15832,
"labels": [
"ANALYSIS"
],
"start": 15559,
"text": "The object of the provision which requires the Sessions Judge to record his reasons is to enable the superior court to examine the correctness of the reasons for which the Sessions Judge has held that there is of is not sufficient ground for proceeding against the accused."
}
},
{
"from_name": null,
"id": "1cbd9f6c9c80437e99b280d72830f4fb",
"to_name": null,
"type": null,
"value": {
"end": 16047,
"labels": [
"ANALYSIS"
],
"start": 15833,
"text": "The High Court therefore is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case."
}
},
{
"from_name": null,
"id": "adc3d66169d84f4c85c7cc933eabd866",
"to_name": null,
"type": null,
"value": {
"end": 16414,
"labels": [
"STA"
],
"start": 16047,
"text": "\nSection 482 of the New Code, which corresponds to s. 561-A of the Code of 1898, provides that: \"Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.\""
}
},
{
"from_name": null,
"id": "90b1612630a9440db05a12a9e6998e9b",
"to_name": null,
"type": null,
"value": {
"end": 16704,
"labels": [
"ANALYSIS"
],
"start": 16414,
"text": "\nIn the, exercise of this. whole some power, the High Court is entitled to quash a proceeding if it comes to the conclu- sion that allowing the proceeding to continue would be an abuse of the process of the Court or that the; ends of justice require that the proceeding ought to be quashed."
}
},
{
"from_name": null,
"id": "fd4e2e6c5e9241579d235d6bfc8e53f5",
"to_name": null,
"type": null,
"value": {
"end": 16955,
"labels": [
"ANALYSIS"
],
"start": 16705,
"text": "The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to. achieve a salu- tary public purpose which is that a court proceeding ought not to be permitted to degenerate into weapon of harassment or persecution."
}
},
{
"from_name": null,
"id": "672c9dfb76474025afba43a8ed361776",
"to_name": null,
"type": null,
"value": {
"end": 17197,
"labels": [
"ANALYSIS"
],
"start": 16956,
"text": "In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice."
}
},
{
"from_name": null,
"id": "4e2362cddb0b418f9f9c7bb7bd429e00",
"to_name": null,
"type": null,
"value": {
"end": 17342,
"labels": [
"ANALYSIS"
],
"start": 17198,
"text": "The ends of justice are higher than the, ends of mere law though justice has got to be.\nadministered according to laws made by the, legislature."
}
},
{
"from_name": null,
"id": "db0eac7a9a3648d9a0ee6dc3cd2c47d7",
"to_name": null,
"type": null,
"value": {
"end": 17495,
"labels": [
"ANALYSIS"
],
"start": 17343,
"text": "The compelling necessity for making these observations is that without a proper realisation of the object and pur- pose of the provision which seeks to."
}
},
{
"from_name": null,
"id": "53c2ff33b08840fa8be1de3026bf07af",
"to_name": null,
"type": null,
"value": {
"end": 17613,
"labels": [
"ANALYSIS"
],
"start": 17496,
"text": "save the inherent powers of the High Court to do justice between the State and its. subjects, it would be impossible."
}
},
{
"from_name": null,
"id": "37c235da72fb45d49f1fe0b70ec5102b",
"to_name": null,
"type": null,
"value": {
"end": 17680,
"labels": [
"ANALYSIS"
],
"start": 17614,
"text": "to appreciate the width and contours of that salient jurisdiction."
}
},
{
"from_name": null,
"id": "9f87629837944e538a4002e0cb0355a2",
"to_name": null,
"type": null,
"value": {
"end": 17949,
"labels": [
"ANALYSIS"
],
"start": 17681,
"text": "118 Let us then turn to the facts of the case to see, wheth- er the High Court was justified in holding that the proceed- ings against the respondents ought to be quashed in order to prevent abuse of the process of the court and in order to secure the ends of justice."
}
},
{
"from_name": null,
"id": "9f08cdc1a45743e5b7eef2e8328390b1",
"to_name": null,
"type": null,
"value": {
"end": 18201,
"labels": [
"ANALYSIS"
],
"start": 17950,
"text": "We asked the State counsel time and again to point out any data or material on the basis of which a reasonable likelihood of the respondents being convicted of any offence in connection with the attempted murder of the complainant could be predicated."
}
},
{
"from_name": null,
"id": "8a43f807f0c44f649335f5f079a372b7",
"to_name": null,
"type": null,
"value": {
"end": 18436,
"labels": [
"ANALYSIS"
],
"start": 18202,
"text": "A few bits here and a few bits there on which the prosecution proposes to rely are woefully inadequate for connecting the respond- ents with the crime, howsoever, skilfully one may attempt to weave those bits into a presentable whole."
}
},
{
"from_name": null,
"id": "e5a56404bb8749e994badfdf269f6d49",
"to_name": null,
"type": null,
"value": {
"end": 18599,
"labels": [
"ANALYSIS"
],
"start": 18437,
"text": "There is no material on the record on which any tribunal could reason- ably convict the respondents for any offence connected with the assault on the complainant."
}
},
{
"from_name": null,
"id": "33507ef9c328450cb37a01f1e3578b08",
"to_name": null,
"type": null,
"value": {
"end": 18704,
"labels": [
"ANALYSIS"
],
"start": 18600,
"text": "It is undisputed that the respondents were nowhere near the scene of offence at the time of the assault."
}
},
{
"from_name": null,
"id": "b04503db39ea44edb6331db46e54f56b",
"to_name": null,
"type": null,
"value": {
"end": 18785,
"labels": [
"ANALYSIS"
],
"start": 18705,
"text": "What is alleged against them is, that they had conspired to commit that assault."
}
},
{
"from_name": null,
"id": "9ebf074be11e4ca7bed62e6b75e3bfb7",
"to_name": null,
"type": null,
"value": {
"end": 18950,
"labels": [
"ANALYSIS"
],
"start": 18786,
"text": "This, we think, is one of those cases in which a charge of conspiracy is hit upon for the mere reason that evidence of direct involvement of the accused is lacking."
}
},
{
"from_name": null,
"id": "502827fb39e349eda45cccf7b6b75a1c",
"to_name": null,
"type": null,
"value": {
"end": 19074,
"labels": [
"ANALYSIS"
],
"start": 18951,
"text": "we have been taken through the statements recorded by the police during the course of investigation and the other material."
}
},
{
"from_name": null,
"id": "48fb9dda2f2542aaa206ba91d6ad9f61",
"to_name": null,
"type": null,
"value": {
"end": 19295,
"labels": [
"ANALYSIS"
],
"start": 19075,
"text": "The worst that can be said against the respondents on the basis thereof is that they used to meet one another frequently after the dismissal of accused No. 1 and prior to the commission of the assault on the complainant."
}
},
{
"from_name": null,
"id": "149bd1fbd14c4a9ab17fa07562da9cb5",
"to_name": null,
"type": null,
"value": {
"end": 19422,
"labels": [
"ANALYSIS"
],
"start": 19296,
"text": "Why they met, what they said, and whether they held any deliberations at all, are matters on which no witness has said a word."
}
},
{
"from_name": null,
"id": "b7a6f2984f1c45cab1f6a1fd33c2f904",
"to_name": null,
"type": null,
"value": {
"end": 19558,
"labels": [
"ANALYSIS"
],
"start": 19423,
"text": "In the circumstances, it would be a sheer waste of public time and money to permit the proceedings to continue against the respondents."
}
},
{
"from_name": null,
"id": "87e02cfe9d5f411cb48777a359772fc2",
"to_name": null,
"type": null,
"value": {
"end": 19706,
"labels": [
"ANALYSIS"
],
"start": 19559,
"text": "The High Court was therefore justified in holding that for meeting the ends of justice the proceedings against the respondents ought to be quashed."
}
},
{
"from_name": null,
"id": "3fcf65f7740c40a395c5e374b1172721",
"to_name": null,
"type": null,
"value": {
"end": 20040,
"labels": [
"PRE_NOT_RELIED"
],
"start": 19708,
"text": "Learned counsel for the State Government relies upon a decision of this Court in R.P. Kapur v. The State of Punjab (1) in which it was held that in the exercise of its inher- ent jurisdiction under s. 561A of the Code of 1898, the High Court cannot embark upon an enquiry as to whether the evi- dence in the case is reliable or not."
}
},
{
"from_name": null,
"id": "946b3eb01f6b40e7a2d1f65291b5302f",
"to_name": null,
"type": null,
"value": {
"end": 20056,
"labels": [
"ANALYSIS"
],
"start": 20041,
"text": "That may be so."
}
},
{
"from_name": null,
"id": "7ede52f4ba8244feb72f715b16e684f3",
"to_name": null,
"type": null,
"value": {
"end": 20191,
"labels": [
"ANALYSIS"
],
"start": 20057,
"text": "But in the instant case the question is not whether any reli- ance can be placed on the veracity of this or that particu- lar witness."
}
},
{
"from_name": null,
"id": "08bdf6e705a54098a78760f3619262b7",
"to_name": null,
"type": null,
"value": {
"end": 20428,
"labels": [
"ANALYSIS"
],
"start": 20192,
"text": "The fact of the matter is that there is no material on the record on the basis of which any tribunal could reasonably come to the conclusion that the respondents are in any manner connected with, the incident leading to the prosecution."
}
},
{
"from_name": null,
"id": "5afdd85b1099438880f299c04fa5d244",
"to_name": null,
"type": null,
"value": {
"end": 20672,
"labels": [
"PRE_NOT_RELIED"
],
"start": 20429,
"text": "Gajendragadkar, J., who spoke for the Court in Kapur's(1) case observes in his judgment that it was not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of the High Court's inherent jurisdiction."
}
},
{
"from_name": null,
"id": "483870be08194878990020cd6986b030",
"to_name": null,
"type": null,
"value": {
"end": 20724,
"labels": [
"PRE_NOT_RELIED"
],
"start": 20673,
"text": "The three instances cited in the judgment as to whe"
}
},
{
"from_name": null,
"id": "43539b89cf6b4f8da66bb934628abc8c",
"to_name": null,
"type": null,
"value": {
"end": 20889,
"labels": [
"ANALYSIS"
],
"start": 20724,
"text": "n the High Court would be justified in exercising its inherent jurisdiction are only illustrative and can in the very nature of things not be regarded as exhaustive."
}
},
{
"from_name": null,
"id": "3e00998a259140e4a36b54f9f982684a",
"to_name": null,
"type": null,
"value": {
"end": 21173,
"labels": [
"ANALYSIS"
],
"start": 20890,
"text": "Considerations justifying the exercise of inherent powers for securing the ends of justice naturally vary from case to (1) [1960] 3 S.C.R. 388 119 case and a jurisdiction as wholesome as the one conferred by s. 482 ought not to be encased within the strait-jacket of a rigid formula."
}
},
{
"from_name": null,
"id": "a9a72dcedc8d46ae80c4b955bf67fde8",
"to_name": null,
"type": null,
"value": {
"end": 21274,
"labels": [
"PRE_RELIED"
],
"start": 21173,
"text": "\n On the other hand, the decisions cited. by learned counsel for the respondents in Vadilal Panchaly."
}
},
{
"from_name": null,
"id": "2cc34e196ddb48d3b10f82807e9fbdec",
"to_name": null,
"type": null,
"value": {
"end": 21458,
"labels": [
"PRE_RELIED"
],
"start": 21275,
"text": "D.D. Gha- digaonkar(1) and Cen-tarS, Spinning & Manufacturing Co. v.\n State of Maharashtra(2) show that it is wrong to say that at the stage of flaming charges the court cannot apply."
}
},
{
"from_name": null,
"id": "111cf325e53b408cb9bc11d155d2bdab",
"to_name": null,
"type": null,
"value": {
"end": 21592,
"labels": [
"PRE_RELIED"
],
"start": 21459,
"text": "its judicial mind to the consideration whether or not there is any ground for presuming the commission of the offence by the accused."
}
},
{
"from_name": null,
"id": "237191ef530e43b3a865451cd8954e79",
"to_name": null,
"type": null,
"value": {
"end": 21816,
"labels": [
"ANALYSIS"
],
"start": 21593,
"text": "As observed in the latter case, the order framing a charge affects a person's liberty substantially and therefore it is the duty of the court to consider judi- cially whether the material warrants the framing of the charge."
}
},
{
"from_name": null,
"id": "b7004f3a0116429f8b56e87df595ee16",
"to_name": null,
"type": null,
"value": {
"end": 21919,
"labels": [
"ANALYSIS"
],
"start": 21817,
"text": "It cannot blindly accept the decision of the prose- cution that the accused be. asked to face a trial."
}
},
{
"from_name": null,
"id": "ce064ce7b0c64dceb8dde55787977f96",
"to_name": null,
"type": null,
"value": {
"end": 21946,
"labels": [
"PRE_RELIED"
],
"start": 21920,
"text": "In Vadilal Panchal's case."
}
},
{
"from_name": null,
"id": "e339572f7fa7422187a6dc19e21559e7",
"to_name": null,
"type": null,
"value": {
"end": 22208,
"labels": [
"PRE_RELIED"
],
"start": 21947,
"text": "(supra) section 203 of the old Code was under consideration, which provided that the Magistrate could dismiss a complaint if after considering certain matters mentioned in the section there was in his judgment no sufficient ground for proceeding with the case.."
}
},
{
"from_name": null,
"id": "d1de57ab2cd84ee28a0073ace42021b5",
"to_name": null,
"type": null,
"value": {
"end": 22320,
"labels": [
"PRE_RELIED"
],
"start": 22209,
"text": "To art extent section 227 of the new Code contains an analogous power which is conferred on the Sessions Court."
}
},
{
"from_name": null,
"id": "ce2dae53d64c4e54b1d924936f35fc1f",
"to_name": null,
"type": null,
"value": {
"end": 22587,
"labels": [
"PRE_RELIED"
],
"start": 22321,
"text": "It was held by this Court, while considering the true scope of s. 203 of the old Code that the Magistrate. was not bound to accept the result of an enquiry or investigation and that he must apply his judicial mind to the material on which he had to form his judgment"
}
},
{
"from_name": null,
"id": "105e952984e64f1d9ffd58f4766f695b",
"to_name": null,
"type": null,
"value": {
"end": 22794,
"labels": [
"ANALYSIS"
],
"start": 22587,
"text": ". These decisions show that for' the purpose of determining whether there is sufficient ground for proceeding against an accused the court possesses a comparatively wider discretion in the exercise of which."
}
},
{
"from_name": null,
"id": "2fa06e75ecf74827b3c5b9b37697a7e5",
"to_name": null,
"type": null,
"value": {
"end": 22958,
"labels": [
"ANALYSIS"
],
"start": 22795,
"text": "it can determine the question whether the material on the record, if unrebutted, is such on the: basis of which a conviction can-be said reasonably to be possible."
}
},
{
"from_name": null,
"id": "e8cafb929a2e41a885017e12739866fb",
"to_name": null,
"type": null,
"value": {
"end": 23049,
"labels": [
"RATIO"
],
"start": 22958,
"text": "\n We are therefore in agreement with the view of the High Court that the material on which."
}
},
{
"from_name": null,
"id": "a61ce3ab4728414bb13f61f6bf9f894c",
"to_name": null,
"type": null,
"value": {
"end": 23077,
"labels": [
"RATIO"
],
"start": 23050,
"text": "the prosecution proposes.to"
}
},
{
"from_name": null,
"id": "f66bbf0dc98b447199860b8d608f9b7f",
"to_name": null,
"type": null,
"value": {
"end": 23227,
"labels": [
"RATIO"
],
"start": 23078,
"text": "rely against the respondents is wholly inade- quate to. sustain the charge that they are in any manner connected with the assault on the complainant."
}
},
{
"from_name": null,
"id": "5f8c6aae416a411e84076e2b273b28c0",
"to_name": null,
"type": null,
"value": {
"end": 23467,
"labels": [
"RPC"
],
"start": 23228,
"text": "We would, however, like to observe that nothing in our judgment or in the .judgment of the High Court should be taken as detract- ing from the case of the prosecution, to. which we have not applied our mind, as against accused Nos. 1 to 9."
}
},
{
"from_name": null,
"id": "6d1b90219d1d4c8b87207c49981420af",
"to_name": null,
"type": null,
"value": {
"end": 23535,
"labels": [
"RPC"
],
"start": 23468,
"text": "The case against those accused must take its due and lawful course."
}
},
{
"from_name": null,
"id": "be339063dde84bf28149a548b227d4fd",
"to_name": null,
"type": null,
"value": {
"end": 23575,
"labels": [
"RPC"
],
"start": 23535,
"text": "\n The appeals are accordingly dismissed."
}
},
{
"from_name": null,
"id": "33f1a3ca2a304d608b03fed4e2872479",
"to_name": null,
"type": null,
"value": {
"end": 23581,
"labels": [
"RPC"
],
"start": 23575,
"text": "\n S.R."
}
},
{
"from_name": null,
"id": "a8bbc59d4c71492cadbbbeee5a25dfe9",
"to_name": null,
"type": null,
"value": {
"end": 23629,
"labels": [
"RPC"
],
"start": 23582,
"text": " Appeals dismissed."
}
},
{
"from_name": null,
"id": "46e1f79fc48049208556fa2d011ab7bd",
"to_name": null,
"type": null,
"value": {
"end": 23702,
"labels": [
"NONE"
],
"start": 23629,
"text": "\n (1) A.I.R. 1969 S.C. 1113.\n (2) A.I.R. 1972 S.C. 545.\n 9--240SCI/77 120"
}
}
]
}
] | 13,643 | {
"text": "PETITIONER:\nSTATE OF KARNATAKA\n\n Vs.\n\nRESPONDENT:\nL. MUNISWAMY & ORS.\n\nDATE OF JUDGMENT03/03/1977\n\nBENCH:\nCHANDRACHUD, Y.V.\nBENCH:\nCHANDRACHUD, Y.V.\nGOSWAMI, P.K.\nSHINGAL, P.N.\n\nCITATION:\n\n1977 AIR 1489 1977 SCR (3) 113\n\n1977 SCC (2) 699 (7,63,64,110)\n (10)\nCITATOR INFO :\n\nE 1980 SC 962\n\nD 1992 SC1894\n\nACT:\n\n Code of Criminal Procedure, 1973 (Act II of 1974)--S.482\n (s. 561 A of -1899 Code)--Inherent power of the High Court\n to quash proceedings at the stage of framing of\n charges--Explained.\n\nHEADNOTE:\n The apellants are accused Nos. 10, 13, 14, 15 and 17 to 20\n before the Sessions Court for trial under various offences,\n viz., . 324, 326, and 307 read with s. 34 of the Penal\n Code. While discharging accused Nos. 11, 12 and 16 u/s 227\n of the Criminal Procedure Code 1973, on 8.8.1975, the\n learned Sessions Judge observed that there was \"some materi-\n al to hold that the remaining accused have had something to\n do with the incident which occurred on 6.12.1973 in I.T.I.\n Colony, Banglore\" and adjourned the case to September 1,\n 1975, \"for framing specific charges as made out from the\n material on record against the rest of the accused person .\n Two revision petitions were filed against this order, one by\n accussed Nos. 10, 13, 14 and 15 and the other by accused\n Nos. 17 to 20. These petitions were allowed by the High\n Court on the view that there was no sufficient ground for\n proceeding against the petitioners before it. The High\n Court accordingly quashed the the proceedings in regard to\n them.\n In appeal by Special Leave, the appellant State\n contended: (1) The High Court ought not to have exercised\n its power to quash the proceedings against the respondent\n without giving to the Sessions Court, which was seized of\n the case, an opportunity to consider whether there was\n sufficient material on the record on which to frame charges\n against the respondents. (ii) In any event the High Court\n could not take upon itself the task of assessing or appreci-\n ating the weight of material on the record in order to find\n whether any charges could be legitimately framed against the\n respondents.\n Dismissing the appeal, the Court\n HELD: (1) The High Court was justified in holding\n\nthat for meeting the ends of justice the proceedings against\nthe respondents ought to be quashed. It would be a sheer\nwaste of public time and money to permit the proceedings to\ncontinue against the respondent, when there is no material\non the record on which any tribunal could reasonably convict\nthem for any offence connected with the assault on the com-\nplainant. This is one of these cases in which a charge of\nconspiracy is hit upon for the mere reason that evidence of\ndirect involvement of the accused is lacking. [118 A, D-E]\n\n (2) The saving of the High Court's inherent powers,\nboth in civil and criminal matters, is designed to achieve\na Salutary public purpose which is that a Court proceedings\nought not to be permitted to degenerate into a weapon of\nharassment or persecution. In a criminal case, the veiled\nobject behind a lame prosecution, the very nature of the\nmaterial on which the structure of the prosecution rests and\nthe like would justify the High Court in quashing the pro-\nceeding in the interest of justice. [117 F-G]\n(3) Considerations justifying the exercise of inherent\npowers for securing the ends of justice vary from case to\ncase and a jurisdiction as wholesome as the one conferred by\ns. 482 ought not to be encased within the strait-jacket of a\nrigid formula. The three instances' cited in the Judgment\nin R.P. Kapoor Vs. The State of Punjab, [1960] 3 SCR 388, as\nto when the High Court would be justified in exercising its\ninherent jurisdiction are only illustrative and can in the\nvery nature of things not be regarded as exhaustive. [118\nF-H, 119 A]\n114\nR.P. Kapur vs. State of Punjab [1960] 3 SCR 338 explained..\n\n (4) It is wrong to say that at the stage of framing\ncharges the Court cannot apply its judicial mind to the\nconsideration whether or not there is any ground for presum-\ning the commission of the offence. [119 B]\n\n (5) While considering whether there is sufficient\nground for proceeding against an accused. the court pos-\nsesses a comparatively wider discretion in the exercise of\nwhich it can determine the question whether the material on\nthe record. if unrebutted, is such on the basis of which a\nconviction can be said reasonably to be possible. [119 B-E]\n\n Vadilal Panchal v. D. D. Ghadigaonkar AIR 1960 SC\n1113; Century Spinning & Manufacturing, Co. v. State of\nMaharashtra AIR 1972 SC 545 applied.\n\n (6) In the instant case the High Court is right in its\nview that the materials on which the prosecution proposed to\nrely against the respondents is wholly inadequate to\nsustain the charge that they are in any manner connected\nwith the assault on the complainant. [119 E-F]\n\n (7) The grievance that the High Court interfered with\nthe Sessions' Court's order prematurely is not justified.\nThe case was adjourned by the Sessions Judge not for\ndeciding whether any charge at all could be framed against\nthe remaining accused, but for the purpose of deciding as\nto which charge or charges could appropriately be framed\non the basis of the material before him.\n\n [116 G-H]\n (8) The object of s. 227 of the Code of Criminal Procedure,\nAct 2 of 1974, is to enable the superior Court to examine\nthe correctness of the reasons for which the Sessions Judge\nhas held that there is not sufficient ground for proceed-\ning against the accused. [117 C-D]\n\n (9) The High Court is entitled to go into the reasons\ngiven by the Sessions Judge in support of his order and to\ndetermine for itself whether the order is justified by the\nfacts and circumstances of the case. [117 D-E] .\n\n (10) In the exercise of the wholesome power u/s 482 of\nthe Act 2 of 1974 (s. 561 of 1898 Code), the High Court is\nentitled to quash a proceeding if it comes to the conclusion\nthat allowing the proceeding to continue would be an abuse\nof the process of the Court or that the ends of justice\nrequire that the proceeding ought to be quashed. [117 E-F]\nObservations:\n\n The ends of justice are higher than the ends of mere law\nthough justice has got to be administered according to laws\nmade by the legislature. Without a proper realisation of the\nobject and purpose of the provision which seeks to save the\ninherent powers of the High Court to do justice between the\nState and its subjects, it would be impossible to appreciate\nthe width and contours of that salient jurisdiction. [117\nG-H]\n\nJUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.\n 345-346 of 1976.\n (Appeals by Special Leave from the Judgment and Order dated 30-9-1975 of the Karnataka High Court in Crl. Peti- tions Nos. 248 and 253 of 1975).\n D. Mookherjee, and B.R.G.K. Achar, for the Appellant, Frank Anthony, K.B. Rohtagi and M.N. Kashyap, for the Respondents.\n The Judgment of the Court was delivered by CHANDRACHUD, J. These two appeals by social leave arise out of a judgment dated september 30, 1975 rendered by the High Court 115 of Karnataka in Criminal Petitions Nos. 248 and 253 of 1975.\n By the aforesaid judgment the High Court in the exercise of its inherent powers has quashed proceedings initiated by the State of Karnataka appellant herein, against the respond- ents.\n The incident out of which these proceedings arise took place on December 6, 1973 in the Central Avenue of the Indian Telephone Industries Colony, Bangalore. Thyagaraja Iyer, accused No. 1, who was an employee of the Indian' Telephone Industries Ltd. was dismissed from service on September 20, 1973 on the allegation that he had assaulted a Canteen supervisor. The complainant Ajit Dutt, Works Manager of the Crossbar Division, attempted to serve the dismissal order on him but he refused to accept it and threatened the complainant that he, the complainant, was primarily responsible for the dismissal and would have to answer the consequences. It is alleged that the I.T.I.\n Employees' Union took up cudgels on his behalf and re- solved to support his cause. The case of the prosecution is that accused Nos. 1 and 8 to 20 conspired to commit the murder of the complainant and that in pursuance of that conspiracy accused Nos. 1, 8 and 10 hired accused Nos. 2, a notorious criminal, to execute the object of the conspiracy.\n Accused No. 2 in turn engaged the services of accused Nos. 3 to 7 and eventually on the morning of December 6, 1973 accused Nos. 1 to 6 are alleged to have assaulted the complainant with knives, thereby committing offences under ss. 324, 326 and 307 read with s. 34. of the Penal Code.\n Accused No. 2 was charged separately under s. 307 or in the alternative under s. 326, Penal Code.\n By his order dated October 23, 1974 the learned Metro- politan Magistrate, V Court, Bangalore directed all the 20 accused to take their trial before the Sessions Court for offences under s. 324, 326 and 307 read with s. 34 of the Penal Code.\n At the commencement of the trial before the learned First Additional District and Sessions Judge, Bangalore, two preliminary questions were raised, one by the prosecution and the other by the, accused. It was contended by the prosecution that the specification of particular sections in the committal order did not preclude the Sessions Court from framing a new charge under s. 120-B of the Penal Code. On the other hand it was contended by the accused that there was no sufficient ground for proceeding with the prosecu- tion and therefore they ought to be discharged. The learned Additional Sessions Judge accepted the contention of the prosecution that he had the power to frame a charge under s.\n120-B. The correctness of that view was not challenged before us by Mr. Frank Anthony who appears on behalf of the accused. That is as it ought to be because the power of the Sessions Court to frame an appropriate charge is not tram- melled by the specifications contained in the committal order. The Sessions Court, being seized of the case, has jurisdiction to frame appropriate charges as the facts may justify or the circumstances may warrant. The contention of the accused that they ought to be discharged was accepted by the learned Additional Sessions Judge partly. lie held that there was no case against accused Nos. 11, 12 and 16 and that 116 they were therefore entitled to be discharged. By an order dated August 8, 1975 the, learned Judge. discharged those three. accused in the. exercise of his powers under s. 227 of the Code of Criminal Procedure, 1973. We are informed that the correctness of that order is under challenge before the High Court in a proceeding taken by the State of Karna- taka. We are not concerned with that order in these ap- peals. After discharging accused Nos. 11, 12 and 16 the learned. Judge, turning to the case against the remaining accused, observed that there was \"some material to hold that they have had something to do with the incident which occurred on 6-12-1973 in the I.T.I. Colony Bangalore\".\nThe learned Judge adjourned the case to September 1, 1975 \"for framing specific charges as made out from the material on record against the rest of the accused persons.\"\n Two revision petitions were filed against this order, one by accused Nos. 10, 13, 14 and 15 and the other by accused Nos. 17 to 20. Those petitions were allowed by the High'Court on the view that there was no sufficient ground for proceeding against the petitioners before it. The High Court accordingly quashed the proceedings in regard to. them which has led to these appeals.\n Mr. Mookerjee who. appears on behalf of the State of Karnataka contends that the High Court ought not to have exercised its; powers to quash the proceedings against the respondents without giving to the Sessions Court, which was seized of the case, an opportunity to consider whether there was sufficient material on the record on which to frame charges against the respondents. It is argued that the Sessions Court had adjourned the case for a consideration of that very question and it was not proper for the High Court to withdraw the case, as it were, and to exercise its ex- traordinary powers, thereby preventing the Trial Court from examining the sufficiency of the material which it is the primary duty and function of that Court to examine. There is some apparent justification for this grievance because the language in which the sessions Court couched its order would seem to suggest that it had adjourned the case to September 1, 1975 for consideration of the question as to.\nwhether there was sufficient ground for proceeding against the respondents. But a careful reading of the Sessions Courts judgment would reveal that while discharg- ing accused Nos. 11, 12 and 16 it came, to the conclusion that insofar as the other accused were. concerned there was some material to hold that they were connected with the incident. The case was, therefore, adjourned by the Court for flaming specific charges against them. In other words, the learned Judge adjourned the case not for deciding wheth- er any charge at all could be framed against the remaining accused but for the purpose of deciding as to which charge or charges could appropriately be framed on the basis of the material before him. The grievance therefore that the High Court interfered with the sessions Court's order prematurely is not justified.\n The second limb of Mr. Mookerjee's argument is that in any event the High Court could not take upon itself the task of assessing or appreciating the weight of material on the record in order to find whether any charges could be legiti- mately framed against the respondents. So 117 long as there is some material on the record to connect the accused with the crime, says. the learned counsel, the case must go on and the High Court has no jurisdiction. to put a precipitate or premature end to the proceedings on the belief that the prosecution is not likely to succeed. This, in our opinion, is too broad a proposition to accept.\n-Section 227 of the Code of Criminal Procedure, 2 of 1974, provides that: \"If, upon consideration of the record of the case and the documents submitted there- with, and after hearing the submissions of the accused and the prosecution in this be- half, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.\"\nThis section is contained in Chapter XVIII called \"Trial Before a Court of Sessions\". It is clear from the provi- sion that the Sessions Court has the power to discharge an accused if after perusing the record and hearing the parties he comes to the conclusion, for reasons to be re- corded, that there is not sufficient ground for proceeding against the accused. The object of the provision which requires the Sessions Judge to record his reasons is to enable the superior court to examine the correctness of the reasons for which the Sessions Judge has held that there is of is not sufficient ground for proceeding against the accused. The High Court therefore is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case.\nSection 482 of the New Code, which corresponds to s. 561-A of the Code of 1898, provides that: \"Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.\"\nIn the, exercise of this. whole some power, the High Court is entitled to quash a proceeding if it comes to the conclu- sion that allowing the proceeding to continue would be an abuse of the process of the Court or that the; ends of justice require that the proceeding ought to be quashed.\nThe saving of the High Court's inherent powers, both in civil and criminal matters, is designed to. achieve a salu- tary public purpose which is that a court proceeding ought not to be permitted to degenerate into weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the, ends of mere law though justice has got to be.\nadministered according to laws made by the, legislature.\nThe compelling necessity for making these observations is that without a proper realisation of the object and pur- pose of the provision which seeks to. save the inherent powers of the High Court to do justice between the State and its. subjects, it would be impossible. to appreciate the width and contours of that salient jurisdiction.\n118 Let us then turn to the facts of the case to see, wheth- er the High Court was justified in holding that the proceed- ings against the respondents ought to be quashed in order to prevent abuse of the process of the court and in order to secure the ends of justice. We asked the State counsel time and again to point out any data or material on the basis of which a reasonable likelihood of the respondents being convicted of any offence in connection with the attempted murder of the complainant could be predicated. A few bits here and a few bits there on which the prosecution proposes to rely are woefully inadequate for connecting the respond- ents with the crime, howsoever, skilfully one may attempt to weave those bits into a presentable whole. There is no material on the record on which any tribunal could reason- ably convict the respondents for any offence connected with the assault on the complainant. It is undisputed that the respondents were nowhere near the scene of offence at the time of the assault. What is alleged against them is, that they had conspired to commit that assault. This, we think, is one of those cases in which a charge of conspiracy is hit upon for the mere reason that evidence of direct involvement of the accused is lacking. we have been taken through the statements recorded by the police during the course of investigation and the other material. The worst that can be said against the respondents on the basis thereof is that they used to meet one another frequently after the dismissal of accused No. 1 and prior to the commission of the assault on the complainant. Why they met, what they said, and whether they held any deliberations at all, are matters on which no witness has said a word. In the circumstances, it would be a sheer waste of public time and money to permit the proceedings to continue against the respondents. The High Court was therefore justified in holding that for meeting the ends of justice the proceedings against the respondents ought to be quashed.\n Learned counsel for the State Government relies upon a decision of this Court in R.P. Kapur v. The State of Punjab (1) in which it was held that in the exercise of its inher- ent jurisdiction under s. 561A of the Code of 1898, the High Court cannot embark upon an enquiry as to whether the evi- dence in the case is reliable or not. That may be so. But in the instant case the question is not whether any reli- ance can be placed on the veracity of this or that particu- lar witness. The fact of the matter is that there is no material on the record on the basis of which any tribunal could reasonably come to the conclusion that the respondents are in any manner connected with, the incident leading to the prosecution. Gajendragadkar, J., who spoke for the Court in Kapur's(1) case observes in his judgment that it was not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of the High Court's inherent jurisdiction. The three instances cited in the judgment as to when the High Court would be justified in exercising its inherent jurisdiction are only illustrative and can in the very nature of things not be regarded as exhaustive. Considerations justifying the exercise of inherent powers for securing the ends of justice naturally vary from case to (1) [1960] 3 S.C.R. 388 119 case and a jurisdiction as wholesome as the one conferred by s. 482 ought not to be encased within the strait-jacket of a rigid formula.\n On the other hand, the decisions cited. by learned counsel for the respondents in Vadilal Panchaly. D.D. Gha- digaonkar(1) and Cen-tarS, Spinning & Manufacturing Co. v.\n State of Maharashtra(2) show that it is wrong to say that at the stage of flaming charges the court cannot apply. its judicial mind to the consideration whether or not there is any ground for presuming the commission of the offence by the accused. As observed in the latter case, the order framing a charge affects a person's liberty substantially and therefore it is the duty of the court to consider judi- cially whether the material warrants the framing of the charge. It cannot blindly accept the decision of the prose- cution that the accused be. asked to face a trial. In Vadilal Panchal's case. (supra) section 203 of the old Code was under consideration, which provided that the Magistrate could dismiss a complaint if after considering certain matters mentioned in the section there was in his judgment no sufficient ground for proceeding with the case.. To art extent section 227 of the new Code contains an analogous power which is conferred on the Sessions Court. It was held by this Court, while considering the true scope of s. 203 of the old Code that the Magistrate. was not bound to accept the result of an enquiry or investigation and that he must apply his judicial mind to the material on which he had to form his judgment. These decisions show that for' the purpose of determining whether there is sufficient ground for proceeding against an accused the court possesses a comparatively wider discretion in the exercise of which. it can determine the question whether the material on the record, if unrebutted, is such on the: basis of which a conviction can-be said reasonably to be possible.\n We are therefore in agreement with the view of the High Court that the material on which. the prosecution proposes.to rely against the respondents is wholly inade- quate to. sustain the charge that they are in any manner connected with the assault on the complainant. We would, however, like to observe that nothing in our judgment or in the .judgment of the High Court should be taken as detract- ing from the case of the prosecution, to. which we have not applied our mind, as against accused Nos. 1 to 9. The case against those accused must take its due and lawful course.\n The appeals are accordingly dismissed.\n S.R. Appeals dismissed.\n (1) A.I.R. 1969 S.C. 1113.\n (2) A.I.R. 1972 S.C. 545.\n 9--240SCI/77 120 "
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{
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"labels": [
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"start": 0,
"text": "IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n DATED THIS THE 13TH DAY OF JUNE 2019\n BEFORE"
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},
{
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"id": "cfc8ccd565b34789a5c4ce424b5a168a",
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"start": 131,
"text": "\n\n THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV\n CRIMINAL PETITION No.3075/2019\n\nBETWEEN: "
}
},
{
"from_name": null,
"id": "2915249e940144bc8bc1237938087984",
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"labels": [
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"start": 266,
"text": "... Petitioner\n ..."
}
},
{
"from_name": null,
"id": "d9ced212cd5c439cb83ccd5b60ec03ca",
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"end": 352,
"labels": [
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"start": 324,
"text": "Respondent\nKenneth Jideofor,"
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},
{
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"value": {
"end": 368,
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"start": 352,
"text": "\nS/o Nwabnwanne,"
}
},
{
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"id": "fbeb03f6eb6c48c99d633422f083f4ce",
"to_name": null,
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"value": {
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"labels": [
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"start": 368,
"text": "\nAged about 24 years,"
}
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{
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"id": "0fdc82a2129f4beeaaf4369d53f1d1ea",
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"value": {
"end": 422,
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"start": 389,
"text": "\nR/at House No.32, 2nd \"A\" Cross,"
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{
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"text": "\nBehind ASR Convention Hall,\nVijaya Bank Colony Extention,\nBanaswadi, Horamavu,\nKalyannagar,\nBengaluru-560043.\n\n(By Sri Kaleem Sabir., Advocate for\nSri. Hashmath Pasha, Senior Advcoate)\n\nAND:\n\nUnion of India,\nNarcotic Control Bureau,\nBengaluru Zonal Unit,\nBengaluru-560063,\nRepresented by learned\nSpecial Public Prosecutor\nMr. K.N.Mohan."
}
},
{
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"end": 1435,
"labels": [
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"start": 759,
"text": "\n\n(By Sri K.N. Mohan, SPP)\n\n\n This Criminal Petition is filed under Section 439 of the\nCode of the Criminal Procedure, praying to enlarge him on\nbail in Cr.No.NCB file No.F/48/1/1/19/BZU on the file of\nthe respondent Union of India/Narcotic Control Bureau\nBengaluru Zonal Unit, Bengaluru which is pending in\nCrl.Misc.No.3434/2019 on the file of the XXXIII Additional\nCity Civil and Sessions Judge and Special Judge for NDPS\ncases (CCH-33) Bengaluru for the offences under Section 8(c)\nread with Section 21, 29 of NDP Act.\n\n This Criminal Petition coming on for Orders, this day,\nthe Court made the following:\n\n ORDER\n "
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{
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"id": "11fce90f7a474b078990d7977829c7ea",
"to_name": null,
"type": null,
"value": {
"end": 1747,
"labels": [
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],
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"text": "The petitioner is seeking to be enlarged on bail in connection with his detention pursuant to proceedings in Crime No.NCB File No.F/48/1/1/10/BZU with respect to the offences punishable under Sections 8(c) read with Sections 21 & 29 of Narcotic, Drugs and Psychotropic Substances Act, 1985 (for short `the Act')."
}
},
{
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"type": null,
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"end": 2027,
"labels": [
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],
"start": 1747,
"text": "\n 2. The case made out by the prosecution is that on 17.01.2019 information was received by the Intelligence Officer of NCB that one Nigerian National- accused No.1 was traveling from Mumbai to Bengaluru and was carrying Cocaine with him and was likely to get down in Kalasipalya."
}
},
{
"from_name": null,
"id": "655616a683d342f1962cd37fae1d2e18",
"to_name": null,
"type": null,
"value": {
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"labels": [
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],
"start": 2028,
"text": "On the basis of such information, it is stated that the bus was followed by the Officers of NCB and when the bus came near Kalasipalya bus stop, accused No.1 was taken into custody and on the information obtained from accused No.1, it is stated that he has brought the Cocaine to give it to Victor and his two associates, who were waiting near KFC at Kammanahalli."
}
},
{
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"id": "3441ae6861cd4d498d3389c56d580262",
"to_name": null,
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"labels": [
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],
"start": 2393,
"text": "The Officers were stated to have taken accused No.1 and when they reached to the said spot, it is stated that they found three Africans were sitting in Silver Colour Car and when they were intercepted and enquired one of them, identified himself as Victor and other two persons were also taken to custody along with Victor to the Office of NCB and when searched, Cocaine of 400 grams was found from accused No.1 and it was seized."
}
},
{
"from_name": null,
"id": "0c8f798c2bea4e918ce1c4d15489f2cc",
"to_name": null,
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"value": {
"end": 2901,
"labels": [
"FAC"
],
"start": 2824,
"text": "It is stated that the petitioner-accused No.4 is in custody since 18.01.2019."
}
},
{
"from_name": null,
"id": "0036e57ce27541e8823f1c9a5dbbd6e6",
"to_name": null,
"type": null,
"value": {
"end": 3196,
"labels": [
"ARG_PETITIONER"
],
"start": 2901,
"text": "\n 3. Learned Senior counsel appearing on behalf of the petitioner states that there has been no recovery from the accused and the story of prosecution is not believable as there is no sufficient material to show as to why the seizure has not been done when accused No.1 disembarked from the bus."
}
},
{
"from_name": null,
"id": "480c0a15deab4265a7c8db9bfcd8df41",
"to_name": null,
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"end": 3332,
"labels": [
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],
"start": 3197,
"text": "It is also contended that the petitioner has been fixed in a false case, considering that there is another case against the petitioner."
}
},
{
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"id": "fe07adad3bb64178b7a31540ae479538",
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"labels": [
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],
"start": 3333,
"text": "It is also contended that the role of accused No.3 is similar to that of accused Nos.2 and 4 and accused No.2 has been released by the order of trial Court dated 25.04.2019 and accused No.4 has been released as per the order dated 09.04.2019 in Crl.P.No.1332/2019 by this Court."
}
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{
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],
"start": 3612,
"text": "Hence, the petitioner is also entitled to be enlarged on bail on the ground of principle of parity."
}
},
{
"from_name": null,
"id": "f6c6c0608fb44f8cadb11c9c83cd8fd9",
"to_name": null,
"type": null,
"value": {
"end": 3903,
"labels": [
"ARG_RESPONDENT"
],
"start": 3711,
"text": "\n 4. Learned counsel appearing on behalf of NCB states that the principle of parity is not a fixed rule and considering the criminal antecedents, the petitioner is not entitled for any relief."
}
},
{
"from_name": null,
"id": "8de48b623b7242cc822c458eb2d0e4b1",
"to_name": null,
"type": null,
"value": {
"end": 4322,
"labels": [
"ANALYSIS"
],
"start": 3903,
"text": "\n 5. Noticing the observations made by this Court, while enlarging accused No.4 on bail in Crl.P.No.1332/2019, wherein at paragraph No.4, the Court has observed and expressed doubts regarding the procedure followed with respect to seizure and also noticing that there was no recovery from the petitioner in the said case and that recovery made was only from accused No.1, the case of the petitioner is to be considered."
}
},
{
"from_name": null,
"id": "de0efe9b3ea347efa699e4fa570d30f7",
"to_name": null,
"type": null,
"value": {
"end": 4494,
"labels": [
"ANALYSIS"
],
"start": 4323,
"text": "The observation at paragraph No.7 reveals that there was no recovery from the accused and only material relied upon was the statement given by the petitioner in that case."
}
},
{
"from_name": null,
"id": "5d3f07461cf94eaeb48bc5ed16064f99",
"to_name": null,
"type": null,
"value": {
"end": 4643,
"labels": [
"ANALYSIS"
],
"start": 4495,
"text": "As regards the statement under Section 67 of Act, it is observed that the veracity of the said statement is a matter to be appreciated in the trial."
}
},
{
"from_name": null,
"id": "c1235959a4314fe3ba6ad98f0c8a8ef3",
"to_name": null,
"type": null,
"value": {
"end": 5031,
"labels": [
"ANALYSIS"
],
"start": 4643,
"text": "\n 6. Accordingly, taking note of the observations made as regards accused No.4 as well as noticing accused No.2 has also been enlarged on bail, the petitioner is similarly placed as accused Nos.2 and 4 and there has been no recovery and noticing that the statement under Section 67 of Act recorded is a matter to be proved during trial, case is made out to enlarge the petitioner on bail."
}
},
{
"from_name": null,
"id": "79816d91392f4d68828ceabfd7c86842",
"to_name": null,
"type": null,
"value": {
"end": 5381,
"labels": [
"ANALYSIS"
],
"start": 5031,
"text": "\n 7. Though, it is the contention of the learned counsel appearing for the prosecution that criminal antecedents is also a matter to be taken note, it is to be noted that though criminal antecedents would weigh in the mind of Court, the strength of the case and the material on record with respect to the matter on hand is to be a supervening factor."
}
},
{
"from_name": null,
"id": "cd5abc9c02f6422bacb0a3cbd3bfa97e",
"to_name": null,
"type": null,
"value": {
"end": 5503,
"labels": [
"RATIO"
],
"start": 5382,
"text": "In the present case, admittedly there has been no seizure from the petitioner and the recovery is only from accused No.1."
}
},
{
"from_name": null,
"id": "e04bde1dd7de4700af2d729f35d3bec6",
"to_name": null,
"type": null,
"value": {
"end": 5572,
"labels": [
"RATIO"
],
"start": 5504,
"text": "Hence, by imposing strict conditions, the petition is to be allowed."
}
},
{
"from_name": null,
"id": "7a4b8c5f3e7a429fba5ff5becf77c209",
"to_name": null,
"type": null,
"value": {
"end": 5814,
"labels": [
"ANALYSIS"
],
"start": 5572,
"text": "\n 8. It is to be noticed that the petitioner's passport has already been seized in connection with proceedings in Cr.No.415/2016 as per column No.21(b) of Narcotic, Drugs and Psychotropic Substances Act, 1985 and Section 14 of Foreigners Act."
}
},
{
"from_name": null,
"id": "d02349332f80464fa6fa6bfddede222d",
"to_name": null,
"type": null,
"value": {
"end": 6159,
"labels": [
"RPC"
],
"start": 5814,
"text": "\n Accordingly, the petition is allowed subject to the following conditions: (i) Petitioner shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) with two local sureties for the likesum to the satisfaction of the trial Court.\n (ii) Petitioner shall not leave the jurisdiction of the trial Court without prior permission."
}
},
{
"from_name": null,
"id": "17b7ff4ca734412895a0e41baf68bdb6",
"to_name": null,
"type": null,
"value": {
"end": 6413,
"labels": [
"RPC"
],
"start": 6159,
"text": "\n (iii) Petitioner shall mark his attendance once in 15 days between 10.00 a.m., and 5.00 p.m., before the Banaswadi Police and Inspector of the Banaswadi Police Station is directed to intimate the NCB about his attendance till the charge sheet is filed."
}
},
{
"from_name": null,
"id": "5f405c7ccd424d9bbcdf19cc003a69eb",
"to_name": null,
"type": null,
"value": {
"end": 6501,
"labels": [
"RPC"
],
"start": 6413,
"text": "\n (iv) Petitioner shall not tamper with the prosecution evidence directly or indirectly."
}
},
{
"from_name": null,
"id": "a64271dada3f4a5eab44983da1eebbc2",
"to_name": null,
"type": null,
"value": {
"end": 6588,
"labels": [
"RPC"
],
"start": 6501,
"text": "\n (v) Petitioner shall regularly appear before the trial Court for trial, without fail."
}
},
{
"from_name": null,
"id": "6b9f352d78424a13bdb4a28b43b0e92c",
"to_name": null,
"type": null,
"value": {
"end": 6663,
"labels": [
"RPC"
],
"start": 6588,
"text": "\n (vi) Petitioner shall not indulge in similar type of criminal activities."
}
},
{
"from_name": null,
"id": "99c7158945534abc8762bac11e2f1440",
"to_name": null,
"type": null,
"value": {
"end": 6762,
"labels": [
"RPC"
],
"start": 6664,
"text": "If he involves himself in similar type of criminal activities, the bail is liable to be cancelled."
}
},
{
"from_name": null,
"id": "bda0308d20d2474c8624c05d2ec35213",
"to_name": null,
"type": null,
"value": {
"end": 6813,
"labels": [
"RPC"
],
"start": 6762,
"text": "\n (vii) Petitioner shall furnish permanent address."
}
},
{
"from_name": null,
"id": "2b2aa35c783c45a3a885163014041d4a",
"to_name": null,
"type": null,
"value": {
"end": 6829,
"labels": [
"NONE"
],
"start": 6813,
"text": "\n Sd/- JUDGE GJM"
}
}
]
}
] | 4,111 | {
"text": "IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n DATED THIS THE 13TH DAY OF JUNE 2019\n BEFORE\n\n THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV\n CRIMINAL PETITION No.3075/2019\n\nBETWEEN: ... Petitioner\n ... Respondent\nKenneth Jideofor,\nS/o Nwabnwanne,\nAged about 24 years,\nR/at House No.32, 2nd \"A\" Cross,\nBehind ASR Convention Hall,\nVijaya Bank Colony Extention,\nBanaswadi, Horamavu,\nKalyannagar,\nBengaluru-560043.\n\n(By Sri Kaleem Sabir., Advocate for\nSri. Hashmath Pasha, Senior Advcoate)\n\nAND:\n\nUnion of India,\nNarcotic Control Bureau,\nBengaluru Zonal Unit,\nBengaluru-560063,\nRepresented by learned\nSpecial Public Prosecutor\nMr. K.N.Mohan.\n\n(By Sri K.N. Mohan, SPP)\n\n\n This Criminal Petition is filed under Section 439 of the\nCode of the Criminal Procedure, praying to enlarge him on\nbail in Cr.No.NCB file No.F/48/1/1/19/BZU on the file of\nthe respondent Union of India/Narcotic Control Bureau\nBengaluru Zonal Unit, Bengaluru which is pending in\nCrl.Misc.No.3434/2019 on the file of the XXXIII Additional\nCity Civil and Sessions Judge and Special Judge for NDPS\ncases (CCH-33) Bengaluru for the offences under Section 8(c)\nread with Section 21, 29 of NDP Act.\n\n This Criminal Petition coming on for Orders, this day,\nthe Court made the following:\n\n ORDER\n The petitioner is seeking to be enlarged on bail in connection with his detention pursuant to proceedings in Crime No.NCB File No.F/48/1/1/10/BZU with respect to the offences punishable under Sections 8(c) read with Sections 21 & 29 of Narcotic, Drugs and Psychotropic Substances Act, 1985 (for short `the Act').\n 2. The case made out by the prosecution is that on 17.01.2019 information was received by the Intelligence Officer of NCB that one Nigerian National- accused No.1 was traveling from Mumbai to Bengaluru and was carrying Cocaine with him and was likely to get down in Kalasipalya. On the basis of such information, it is stated that the bus was followed by the Officers of NCB and when the bus came near Kalasipalya bus stop, accused No.1 was taken into custody and on the information obtained from accused No.1, it is stated that he has brought the Cocaine to give it to Victor and his two associates, who were waiting near KFC at Kammanahalli. The Officers were stated to have taken accused No.1 and when they reached to the said spot, it is stated that they found three Africans were sitting in Silver Colour Car and when they were intercepted and enquired one of them, identified himself as Victor and other two persons were also taken to custody along with Victor to the Office of NCB and when searched, Cocaine of 400 grams was found from accused No.1 and it was seized. It is stated that the petitioner-accused No.4 is in custody since 18.01.2019.\n 3. Learned Senior counsel appearing on behalf of the petitioner states that there has been no recovery from the accused and the story of prosecution is not believable as there is no sufficient material to show as to why the seizure has not been done when accused No.1 disembarked from the bus. It is also contended that the petitioner has been fixed in a false case, considering that there is another case against the petitioner. It is also contended that the role of accused No.3 is similar to that of accused Nos.2 and 4 and accused No.2 has been released by the order of trial Court dated 25.04.2019 and accused No.4 has been released as per the order dated 09.04.2019 in Crl.P.No.1332/2019 by this Court. Hence, the petitioner is also entitled to be enlarged on bail on the ground of principle of parity.\n 4. Learned counsel appearing on behalf of NCB states that the principle of parity is not a fixed rule and considering the criminal antecedents, the petitioner is not entitled for any relief.\n 5. Noticing the observations made by this Court, while enlarging accused No.4 on bail in Crl.P.No.1332/2019, wherein at paragraph No.4, the Court has observed and expressed doubts regarding the procedure followed with respect to seizure and also noticing that there was no recovery from the petitioner in the said case and that recovery made was only from accused No.1, the case of the petitioner is to be considered. The observation at paragraph No.7 reveals that there was no recovery from the accused and only material relied upon was the statement given by the petitioner in that case. As regards the statement under Section 67 of Act, it is observed that the veracity of the said statement is a matter to be appreciated in the trial.\n 6. Accordingly, taking note of the observations made as regards accused No.4 as well as noticing accused No.2 has also been enlarged on bail, the petitioner is similarly placed as accused Nos.2 and 4 and there has been no recovery and noticing that the statement under Section 67 of Act recorded is a matter to be proved during trial, case is made out to enlarge the petitioner on bail.\n 7. Though, it is the contention of the learned counsel appearing for the prosecution that criminal antecedents is also a matter to be taken note, it is to be noted that though criminal antecedents would weigh in the mind of Court, the strength of the case and the material on record with respect to the matter on hand is to be a supervening factor. In the present case, admittedly there has been no seizure from the petitioner and the recovery is only from accused No.1. Hence, by imposing strict conditions, the petition is to be allowed.\n 8. It is to be noticed that the petitioner's passport has already been seized in connection with proceedings in Cr.No.415/2016 as per column No.21(b) of Narcotic, Drugs and Psychotropic Substances Act, 1985 and Section 14 of Foreigners Act.\n Accordingly, the petition is allowed subject to the following conditions: (i) Petitioner shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) with two local sureties for the likesum to the satisfaction of the trial Court.\n (ii) Petitioner shall not leave the jurisdiction of the trial Court without prior permission.\n (iii) Petitioner shall mark his attendance once in 15 days between 10.00 a.m., and 5.00 p.m., before the Banaswadi Police and Inspector of the Banaswadi Police Station is directed to intimate the NCB about his attendance till the charge sheet is filed.\n (iv) Petitioner shall not tamper with the prosecution evidence directly or indirectly.\n (v) Petitioner shall regularly appear before the trial Court for trial, without fail.\n (vi) Petitioner shall not indulge in similar type of criminal activities. If he involves himself in similar type of criminal activities, the bail is liable to be cancelled.\n (vii) Petitioner shall furnish permanent address.\n Sd/- JUDGE GJM "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "9f6421e0b8254c10851ac302c0661a51",
"to_name": null,
"type": null,
"value": {
"end": 1243,
"labels": [
"PREAMBLE"
],
"start": 5,
"text": "IN THE HIGH COURT OF KARNATAKA\n DHARWAD BENCH\n\n ON THE 15TH DAY OF OCTOBER 2020\n\n BEFORE\n\nTHE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR\n\n CRL.RP.NO.2337 OF 2011\n\nBETWEEN\n\nMANJUNATH VACHAPPA LAMANI\nAGE: 23 YEARS, OCC: COOLIE\nR/O SHIGIGATTI, TQ.KALAGHATAGI\nDISTRICT: DHARWAD.\n\n PETITIONER\n(SRI.V.G.HOLEYANNAVAR, ADVOCATE)\n\nAND\n\nTHE STATE OF KARNATAKA\nREPTD. BY SPP,\nCIRCUIT BENCH, HIGH COURT, DHARWAD\nEXCISE SUB-INSPECTOR, KALAGHATAGI.\n\n RESPONDENT\n(SRI.RAMESH B.CHIGARI, ADVOCATE)\n\n THIS REVISION PETITION IS FILED UNDER\n\nSECTION 397 R/W 401 OF CR.P.C. SEEKING TO SET\n\nASIDE THE JUDGMENT AND THE SENTENCE ORDER DATED 09.09.2011 PASSED BY THE PRL. DISTRICT AND SESSIONS JUDGE, DHARWAD IN CRL.A.NO.128/2010 CONFIRMING THE JUDGMENT AND ORDER DATED 08.11.2010 PASSED BY THE CIVIL JUDGE (JR.DN.) AND JMFC., COURT, KALAGHATGI, DHARWAD IN CC NO.70/2009 AND ACQUIT THE PETITOINER FOR THE CHARGES LEVELED AGAINST HIM.\n THIS REVISION PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING: ORDER"
}
},
{
"from_name": null,
"id": "ae95fd4c7148419e8fde137e26a14df0",
"to_name": null,
"type": null,
"value": {
"end": 1560,
"labels": [
"RLC"
],
"start": 1244,
"text": "This Revision has been preferred by accused aggrieved by the order dated 09.09.2011 passed by the Prl. District and Sessions Judge, Dharwad in Crl.A.No.128/2010 confirming the judgment of conviction and order of sentence dated 08.11.2010 passed by Civil Judge, Junior Division and JMFC., Kalagatagi in CC No.70/2009."
}
},
{
"from_name": null,
"id": "41d39166e99d4e578109eeeb21d47a30",
"to_name": null,
"type": null,
"value": {
"end": 1891,
"labels": [
"RLC"
],
"start": 1561,
"text": "Petitioner herein is convicted for the offences under Section 11, 13, 14 and 32 of Karnataka Excise Act, 1965 (herein after referred to as `the Excise Act' for brevity) and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.10,000/-, in default to undergo simple imprisonment for 3 months."
}
},
{
"from_name": null,
"id": "2cfc140fe3ea4d85b4a4b8b31ea0ef4b",
"to_name": null,
"type": null,
"value": {
"end": 2132,
"labels": [
"RLC"
],
"start": 1892,
"text": "Petitioner is also convicted to undergo rigorous imprisonment of one year and to pay fine of Rs.10,000/- and in default to undergo simple imprisonment for three months for the offence under Section 11, 13, 14 and 34 of Karnataka Excise Act."
}
},
{
"from_name": null,
"id": "44fb556c89cf4f50bada928e3e22d3aa",
"to_name": null,
"type": null,
"value": {
"end": 2174,
"labels": [
"RLC"
],
"start": 2133,
"text": "The said punishments to run concurrently."
}
},
{
"from_name": null,
"id": "6661cd761f1f463599f65a69e3c3ea41",
"to_name": null,
"type": null,
"value": {
"end": 2533,
"labels": [
"FAC"
],
"start": 2174,
"text": "\n 2. Brief facts leading to the filing of this Revision Petition is as under: It is the case of prosecution before the trial Court that on 11.07.2008 at about 8.30 p.m. the Excise Inspector received credible information that the petitioner herein was in possession of illicit liquor and was selling the same to general public in Hasarambi village near school."
}
},
{
"from_name": null,
"id": "35e92a740a9a4212ac66cffe9d1c2ca9",
"to_name": null,
"type": null,
"value": {
"end": 2835,
"labels": [
"FAC"
],
"start": 2534,
"text": "On receipt of such information, the complainant- Excise Inspector secured two panch witnesses and along with staff went to the spot in the office zeep and parked his vehicle in secluded hidden place thereby keeping a watch near the school and found the petitioner selling illicit liquor to the public."
}
},
{
"from_name": null,
"id": "481db70077bd4b4bb8abd3af8b69ba03",
"to_name": null,
"type": null,
"value": {
"end": 2956,
"labels": [
"FAC"
],
"start": 2836,
"text": "On confirmation of the same, they raided and seized 10 liters of illicit liquor from the possession of accused in a can."
}
},
{
"from_name": null,
"id": "4f7f3d51f38d442b934aefeacf340d3a",
"to_name": null,
"type": null,
"value": {
"end": 3073,
"labels": [
"FAC"
],
"start": 2958,
"text": "3. On enquiry, it was revealed by petitioner that he does not have any license or permit to possess or sell liquor."
}
},
{
"from_name": null,
"id": "2feca4756e7640d38f413811bc9a6cb8",
"to_name": null,
"type": null,
"value": {
"end": 3243,
"labels": [
"FAC"
],
"start": 3074,
"text": "The Excise Officials removed 180ML of liquor for the purpose of sample and seized the same in a bottle and affixed a label and secured the signatures of panch witnesses."
}
},
{
"from_name": null,
"id": "8be35413e39b411784bf21fecb7f02c8",
"to_name": null,
"type": null,
"value": {
"end": 3315,
"labels": [
"FAC"
],
"start": 3244,
"text": "The remaining illicit liquor was separately seized under the panchnama."
}
},
{
"from_name": null,
"id": "c24414bf630842db9eea4e51e18b0a51",
"to_name": null,
"type": null,
"value": {
"end": 3391,
"labels": [
"FAC"
],
"start": 3315,
"text": "\n Accused was arrested from the spot along with the seizure of the material."
}
},
{
"from_name": null,
"id": "a681367d4f0747db83afb5a8448d96d6",
"to_name": null,
"type": null,
"value": {
"end": 3595,
"labels": [
"FAC"
],
"start": 3392,
"text": " Thereafter, complainant preferred a complaint as per Ex.P.2 and registered a case against the petitioner in Crime No.2/08-09 for the offence under Sections 13, 14, 15, 32 and 34 of Karnataka Excise Act."
}
},
{
"from_name": null,
"id": "ee6484deac37408a8e76cb99fdeee401",
"to_name": null,
"type": null,
"value": {
"end": 3682,
"labels": [
"FAC"
],
"start": 3597,
"text": "4. Thereafter, accused was produced before the Magistrate and later released on bail."
}
},
{
"from_name": null,
"id": "da6f0962b47f434f9e60ab9c544a0112",
"to_name": null,
"type": null,
"value": {
"end": 3782,
"labels": [
"FAC"
],
"start": 3683,
"text": "On completion of investigation, PW.3 filed charge sheet against accused for the aforesaid offences."
}
},
{
"from_name": null,
"id": "583678fd5b174bad87082c1c52898c49",
"to_name": null,
"type": null,
"value": {
"end": 3901,
"labels": [
"FAC"
],
"start": 3783,
"text": "The 313 statement was recorded and accused pleaded not guilty and wanted to be tried and accordingly he was tried.\n 5."
}
},
{
"from_name": null,
"id": "cfa852561a0c4da481e8ae43bb528eaa",
"to_name": null,
"type": null,
"value": {
"end": 4087,
"labels": [
"FAC"
],
"start": 3902,
"text": "In order to prove the guilt of the accused, the prosecution examined three witnesses i.e.\nPW1 to PW3 and got marked 4 documents as Ex.P.1 to P.4 and marked one material object as M.O.1."
}
},
{
"from_name": null,
"id": "67117f6c93474d14be1ad3ad06603339",
"to_name": null,
"type": null,
"value": {
"end": 4206,
"labels": [
"FAC"
],
"start": 4088,
"text": "Petitioner herein denied the incriminating evidence against him and did not choose to lead any evidence on his behalf."
}
},
{
"from_name": null,
"id": "599c66088bcc4405bab7837319109c66",
"to_name": null,
"type": null,
"value": {
"end": 4464,
"labels": [
"RLC"
],
"start": 4206,
"text": "\n 6. On examination of the witnesses and the documents produced, the trial Court came to a conclusion that accused has committed the offence stated above and convicted him for the aforesaid offences and sentenced him to imprisonment and fine as stated above."
}
},
{
"from_name": null,
"id": "d8e0d2b0c7334a38b5c41411d8a9df40",
"to_name": null,
"type": null,
"value": {
"end": 4765,
"labels": [
"FAC"
],
"start": 4464,
"text": "\n 7. Aggrieved by the same, petitioner approached the First Appellate Court- Prl.\nDistrict and Sessions Judge, Dharwad in Crl.A.No.128/2010 contending that the judgment of conviction is liable to be set aside as order passed by the trial Court is illegal and against the principles of natural justice."
}
},
{
"from_name": null,
"id": "5458314bc48942668f4d5798d1a15d90",
"to_name": null,
"type": null,
"value": {
"end": 5016,
"labels": [
"FAC"
],
"start": 4766,
"text": "It is also the contention of petitioner that the evidence recorded was not properly appreciated and despite there being no material evidence and documents to prove the guilt of accused, the trial Court committed an error in convicting the petitioner."
}
},
{
"from_name": null,
"id": "ce871875fb7c443fb4612d07efe14154",
"to_name": null,
"type": null,
"value": {
"end": 5266,
"labels": [
"FAC"
],
"start": 5017,
"text": "It was also contended before the Appellate Court that the complainant who lodged the complaint was the Investigating Officer and the Investigating Officer cannot act as a complainant thereby jeopardizing and creating the bias against the petitioner."
}
},
{
"from_name": null,
"id": "be3274dcb1124e9cb5df973ce63469f2",
"to_name": null,
"type": null,
"value": {
"end": 5446,
"labels": [
"FAC"
],
"start": 5267,
"text": "It was also contended before the Appellate Court that the petitioner would possess 4 to 5 liters of arrack without holding any license or permit as per the Karnataka Excise Rules."
}
},
{
"from_name": null,
"id": "9470841e14be4682bdc65a901d012aef",
"to_name": null,
"type": null,
"value": {
"end": 6168,
"labels": [
"FAC"
],
"start": 5447,
"text": "The Appellate Court considered the entire material both oral and documentary placed by the Petitioner and after hearing both the parties, has raised below mentioned two points for consideration: 1) Whether the prosecution proved beyond all reasonable doubt that on 11.07.2008 at 8.30 p.m. in Hasarambi village in Kalaghatagi taluk near school accused was found in possession of 10 ltrs. of illicit liquor, selling the same to the public without having any valid license or permit and thereby committed the offence under Section 32 and 34 of Karnataka Excise Act?\n 2. Whether judgment of conviction and order of Sentence passed by the trial Court is illegal, perverse and capricious and the same is liable to be set aside?"
}
},
{
"from_name": null,
"id": "4a4ff530db994d79bc1026c6106aebd8",
"to_name": null,
"type": null,
"value": {
"end": 6483,
"labels": [
"RLC"
],
"start": 6170,
"text": "8. After answering the issue No.1 in the affirmative and second issue in the negative, Appellate Court came to the conclusion that there was no perversity or illegality in the judgment of conviction and order of sentence passed by the trial Court and found the petitioner herein guilty for the aforesaid offences."
}
},
{
"from_name": null,
"id": "cd338b865528473aaf2a8157fa1d1ada",
"to_name": null,
"type": null,
"value": {
"end": 6627,
"labels": [
"RLC"
],
"start": 6484,
"text": "Accordingly, dismissed the appeal filed by petitioner and confirmed the judgment of conviction and order of sentence passed by the trial Court."
}
},
{
"from_name": null,
"id": "6c17670cd75d435a9935d464a27e9204",
"to_name": null,
"type": null,
"value": {
"end": 6823,
"labels": [
"FAC"
],
"start": 6629,
"text": "9. Petitioner is before this Court challenging the correctness and legality of the order passed by the Appellate Court confirming the judgment of conviction and order of sentence of trial Court."
}
},
{
"from_name": null,
"id": "35be8b3cb09c4fc395876f6806567161",
"to_name": null,
"type": null,
"value": {
"end": 6922,
"labels": [
"NONE"
],
"start": 6825,
"text": "10. Heard the learned counsel for petitioner and learned Government Pleader for respondent State."
}
},
{
"from_name": null,
"id": "bc884e33fb9943ca9719a7b0d5bc34c1",
"to_name": null,
"type": null,
"value": {
"end": 7257,
"labels": [
"ARG_PETITIONER"
],
"start": 6922,
"text": "\n 11. It is the contention of the learned counsel for petitioner that petitioner is an innocent villager without any knowledge of legal provisions, intricacies and legality and is not aware about worldly aspects and being a villager without analyzing the pros and cons, has been implicated in the false case foisted by the prosecution."
}
},
{
"from_name": null,
"id": "3e523f219d51422ab0d123c68938cce5",
"to_name": null,
"type": null,
"value": {
"end": 7492,
"labels": [
"ARG_PETITIONER"
],
"start": 7258,
"text": "It is further contended by the learned counsel for petitioner that the Courts below have not considered the material evidence and the documents placed and in a mechanical manner convicted the petitioner which is arbitrary and illegal."
}
},
{
"from_name": null,
"id": "d1887499418648368cbdfab7158ce185",
"to_name": null,
"type": null,
"value": {
"end": 7826,
"labels": [
"ARG_PETITIONER"
],
"start": 7493,
"text": "It is further contended by the learned counsel for petitioner that the complaint is lodged by the Investigating Officer and the investigating officer cannot act as a complainant as the same would be biased and detrimental to the interest of petitioner and hence same is against the principles of natural justice and Rule of law.\n 12."
}
},
{
"from_name": null,
"id": "04d1f53c654a49b39dbc18de4da29049",
"to_name": null,
"type": null,
"value": {
"end": 8002,
"labels": [
"ARG_PETITIONER"
],
"start": 7827,
"text": "It is further contended by the learned counsel for petitioner that the panch witness who has signed the Ex.P.1 is not from the same locality and is not an independent witness."
}
},
{
"from_name": null,
"id": "58719007a31a4c6ea155b2a63ee94aff",
"to_name": null,
"type": null,
"value": {
"end": 8048,
"labels": [
"ARG_PETITIONER"
],
"start": 8002,
"text": "\nFurther, the said witness is a State witness."
}
},
{
"from_name": null,
"id": "9f6c17251d784a66a05fc28286d8e1b8",
"to_name": null,
"type": null,
"value": {
"end": 8276,
"labels": [
"ARG_PETITIONER"
],
"start": 8048,
"text": "\nTherefore, no credibility can be assigned to such witness and non-examination of independent witnesses of the same locality is fatal to the case of prosecution and is a violation of Section 100(4) of Code of Criminal Procedure."
}
},
{
"from_name": null,
"id": "fed31492d1d0409b864f612e60b26773",
"to_name": null,
"type": null,
"value": {
"end": 8595,
"labels": [
"ARG_PETITIONER"
],
"start": 8276,
"text": "\n 13. Learned counsel for petitioner contends that without there being any material evidence on record and the chemical examination report having been produced by the prosecution does not reveal that it is illicit liquor and was only to an extent of 180ML and the entire extent of 4 liters was not sent for examination."
}
},
{
"from_name": null,
"id": "ea72be7b63114e6fa55c08c5d82516cc",
"to_name": null,
"type": null,
"value": {
"end": 8743,
"labels": [
"ARG_PETITIONER"
],
"start": 8596,
"text": "It is further contended that the sentence imposed by the Courts below is very harsh and not commensurate with the offence being first time offence."
}
},
{
"from_name": null,
"id": "eadf7f2a454b407b9c6b7d669a4d7782",
"to_name": null,
"type": null,
"value": {
"end": 8890,
"labels": [
"ARG_PETITIONER"
],
"start": 8744,
"text": "It is also contended by the learned counsel that the Courts below have failed to give the benefit of Probation of Offenders Act to the petitioner."
}
},
{
"from_name": null,
"id": "902e08a25d5f4cb6a2d88cc140d6cab3",
"to_name": null,
"type": null,
"value": {
"end": 9061,
"labels": [
"ARG_PETITIONER"
],
"start": 8891,
"text": "Therefore, on these submissions he sought for allowing the Revision Petition and to set aside the judgment of conviction and order of sentence passed by the Courts below."
}
},
{
"from_name": null,
"id": "334c29cd2bde43a19d326b39812049b6",
"to_name": null,
"type": null,
"value": {
"end": 9318,
"labels": [
"ARG_RESPONDENT"
],
"start": 9061,
"text": "\n 14. Per contra, Sri.Ramesh B. Chigari, learned Government Pleader contends that the judgment of conviction and order of sentence is in accordance with the provisions of the Excise Act and there is no illegality or perversity committed by the Courts below."
}
},
{
"from_name": null,
"id": "215e7210da4146e5b870ae0bb339e6ec",
"to_name": null,
"type": null,
"value": {
"end": 9384,
"labels": [
"ARG_RESPONDENT"
],
"start": 9319,
"text": "Therefore, there is no requirement of interference by this Court."
}
},
{
"from_name": null,
"id": "a8f3b2d2c41a49eea58ae685d9f4b8f3",
"to_name": null,
"type": null,
"value": {
"end": 9505,
"labels": [
"ARG_RESPONDENT"
],
"start": 9385,
"text": "It is further contended that there is no bar in law for the Investigating Officer to be the complainant in a given case."
}
},
{
"from_name": null,
"id": "36307654e86b4428b2851a826c7e4607",
"to_name": null,
"type": null,
"value": {
"end": 9696,
"labels": [
"ARG_RESPONDENT"
],
"start": 9506,
"text": "Accordingly, complainant having conducted the investigation, it would not be sufficient to cast a doubt on the prosecution version and neither does it make version of prosecution vulnerable."
}
},
{
"from_name": null,
"id": "0610639fdcbc40aea93e934de51b11d3",
"to_name": null,
"type": null,
"value": {
"end": 9985,
"labels": [
"ARG_RESPONDENT"
],
"start": 9697,
"text": "Learned Government Pleader vehemently opposes the petition by contending that two courts have given concurrent finding of fact and have appreciated all the material evidence and documents produced and there is a very limited scope in deciding this petition in the revisional jurisdiction."
}
},
{
"from_name": null,
"id": "c4ad6598b86549f6a068c13b9a9c1d90",
"to_name": null,
"type": null,
"value": {
"end": 10295,
"labels": [
"ARG_RESPONDENT"
],
"start": 9985,
"text": "\n 15. It is further contended that the question raised by petitioner with regard to the investigating officer being the complainant would violate principles of natural justice, cannot be said to be a rigid rule laid down by the Apex Court as the same would depend upon the facts and circumstances of each case."
}
},
{
"from_name": null,
"id": "0bd1a582913249a3a780ef5f59abacd0",
"to_name": null,
"type": null,
"value": {
"end": 10491,
"labels": [
"ARG_RESPONDENT"
],
"start": 10296,
"text": "He further contended that when such a plea has been raised by petitioner, it is for petitioner to prove that such an act has cast bias and was done with malafide intention against the petitioner."
}
},
{
"from_name": null,
"id": "586053a6084543f4998751a64da6e591",
"to_name": null,
"type": null,
"value": {
"end": 10599,
"labels": [
"ARG_RESPONDENT"
],
"start": 10492,
"text": "He further contends that no such malafides and bias have been attributed against the Investigating Officer."
}
},
{
"from_name": null,
"id": "d7ca8f8a5e5d4f62adc80c6c609337a0",
"to_name": null,
"type": null,
"value": {
"end": 10705,
"labels": [
"ARG_RESPONDENT"
],
"start": 10599,
"text": "\n 16. Learned counsel further contends that with regard to panch witness being not from the same locality."
}
},
{
"from_name": null,
"id": "a74953cdd38943ac9409694745afdad9",
"to_name": null,
"type": null,
"value": {
"end": 10887,
"labels": [
"ARG_RESPONDENT"
],
"start": 10706,
"text": "It is stated that PW.1 Shivaji Hegappa Ingalenavar belongs to the same Kalaghatagi taluk, though, the offence has occurred at Hasarambi village which comes within Kalaghatagi taluk."
}
},
{
"from_name": null,
"id": "c972deb0112f4a919ee817dea82d2590",
"to_name": null,
"type": null,
"value": {
"end": 11179,
"labels": [
"ARG_RESPONDENT"
],
"start": 10888,
"text": "Learned Government Pleader further contends that while conducting the search in such a nature, it is permissible for the Investigating Officer to go along with the staff and also to take witness who can act as panch so that any delay in carrying out the interception and raid can be avoided."
}
},
{
"from_name": null,
"id": "028f3d7e4c34495d91ba1d5fa315aa6e",
"to_name": null,
"type": null,
"value": {
"end": 11316,
"labels": [
"ARG_RESPONDENT"
],
"start": 11180,
"text": "On the strength of said submission he seeks for dismissal of the Revision Petition and to confirm the orders passed by the Courts below."
}
},
{
"from_name": null,
"id": "24eb0a6d5a45493f8e3162df00326ab0",
"to_name": null,
"type": null,
"value": {
"end": 11554,
"labels": [
"ISSUE"
],
"start": 11316,
"text": "\n 17. After having heard the learned counsel for the parties, it is to be considered by this Court whether there has been any illegality, perversity or arbitrariness in the judgment of conviction and order of sentence of the Courts below."
}
},
{
"from_name": null,
"id": "85bd1dd33ae14669a99329d2a7b900b4",
"to_name": null,
"type": null,
"value": {
"end": 11676,
"labels": [
"ANALYSIS"
],
"start": 11554,
"text": "\nAdmittedly, there is no enmity between the complainant-Investigating Officer and the panch witnesses with the petitioner."
}
},
{
"from_name": null,
"id": "662bc783d3d84c81bde7dac87045ed2e",
"to_name": null,
"type": null,
"value": {
"end": 11822,
"labels": [
"ANALYSIS"
],
"start": 11677,
"text": "It is also not the case of the petitioner that there has been bias or malafides against him by the Investigating Officer and the panch witnesses."
}
},
{
"from_name": null,
"id": "37df620df7c2497e877064138e9729a1",
"to_name": null,
"type": null,
"value": {
"end": 11981,
"labels": [
"ANALYSIS"
],
"start": 11822,
"text": "\n 18. In the present case, the witnesses have been examined and sufficient opportunity has been given to petitioner to cross examine the prosecution witnesses."
}
},
{
"from_name": null,
"id": "76c09556c4934cadb1c1b3b14172ab93",
"to_name": null,
"type": null,
"value": {
"end": 12301,
"labels": [
"ANALYSIS"
],
"start": 11982,
"text": "With regard to the offences under Section 32 and 34 of Excise Act, there is no worthwhile evidence led by petitioner to disprove the involvement of petitioner in possession and selling of the illicit arrack and rightly the trial Court as well as Appellate Court have convicted the petitioner for the aforesaid offences."
}
},
{
"from_name": null,
"id": "9b2fad8bac384414b5bf5a5f67f136dd",
"to_name": null,
"type": null,
"value": {
"end": 12531,
"labels": [
"ANALYSIS"
],
"start": 12301,
"text": "\n 19. On the aspect of the complainant also acting as an Investigating Officer, it cannot be generalized that every case where the complainant acts as Investigating Officer, there is bias and malafides cast against the petitioner."
}
},
{
"from_name": null,
"id": "f1268e028fc34c4c8cc296ad4a65b623",
"to_name": null,
"type": null,
"value": {
"end": 12674,
"labels": [
"ANALYSIS"
],
"start": 12531,
"text": "\nOn the contrary, in the present case, the petitioner has not brought out any material before the Court to show bias and malafides against him."
}
},
{
"from_name": null,
"id": "95f3343371e34eb2bebf8f05e43f1e13",
"to_name": null,
"type": null,
"value": {
"end": 12961,
"labels": [
"ANALYSIS"
],
"start": 12675,
"text": "On the aspect of panch witness as per Section 100(4) of Code of Criminal Procedure, it is no doubt true that when a search is being made, the witnesses or panchas shall be called upon from the same locality of the offence who is independent and responsible inhabitants, of the locality."
}
},
{
"from_name": null,
"id": "6886e695fd5148d8b45d5a942ffe5f3d",
"to_name": null,
"type": null,
"value": {
"end": 13270,
"labels": [
"ANALYSIS"
],
"start": 12962,
"text": "But, there is no bar that such witness would be from nearby village or the same taluk and it is also noted that when no such person is willing to act as witness, and to see that the search and raid does not get intercepted and derailed, the prosecution can take it's own independent witness as panch witness."
}
},
{
"from_name": null,
"id": "198fe041340043719752b0308d8fc80e",
"to_name": null,
"type": null,
"value": {
"end": 13514,
"labels": [
"ANALYSIS"
],
"start": 13271,
"text": "It is also to be noted that the Material Object No.1-bottle of illicit liquor of 750 ML was sent for chemical examination as per Ex.P.4 and the report clearly reads that `sample is unfit for consumption' most specifically \"izj êU AiUgĪŢ\".\n 20."
}
},
{
"from_name": null,
"id": "45c26298281e460b8b58efd47b95272d",
"to_name": null,
"type": null,
"value": {
"end": 13722,
"labels": [
"ANALYSIS"
],
"start": 13515,
"text": "It is not in dispute that the Excise Inspector who has conducted the investigation and filed the charge sheet is competent person as contemplated under Section 55 of the Excise Act authorized to investigate."
}
},
{
"from_name": null,
"id": "2f429c9e15e7477987c78d86bac20b14",
"to_name": null,
"type": null,
"value": {
"end": 13970,
"labels": [
"ANALYSIS"
],
"start": 13723,
"text": "The trial Court as well as the First Appellate Court have considered all the material both oral and documentary and have rightly come to the conclusion that petitioner is guilty of the offence and convicted the accused for the afore said offences."
}
},
{
"from_name": null,
"id": "64a219ee0b844be792352b1b86e3ccde",
"to_name": null,
"type": null,
"value": {
"end": 14108,
"labels": [
"RATIO"
],
"start": 13970,
"text": "\n 21. In the light of above, it cannot be said that the Courts below have committed an illegality or perversity in convicting the accused."
}
},
{
"from_name": null,
"id": "839fd4125e96450e8d089cc314b2ba94",
"to_name": null,
"type": null,
"value": {
"end": 14228,
"labels": [
"RATIO"
],
"start": 14108,
"text": "\nAccordingly, the petitioner herein has not made any ground for interference with the orders passed by the Courts below."
}
},
{
"from_name": null,
"id": "69bb1f9bfe6d41c68ca6744d16ca5eb1",
"to_name": null,
"type": null,
"value": {
"end": 14354,
"labels": [
"RATIO"
],
"start": 14229,
"text": "There being no material irregularity or perversity shown by the petitioner, this petition does not deserve to be entertained."
}
},
{
"from_name": null,
"id": "ade9784a13c64a11841f99edde315cc2",
"to_name": null,
"type": null,
"value": {
"end": 14802,
"labels": [
"ANALYSIS"
],
"start": 14355,
"text": "It is the submission of the learned counsel for the petitioner that in view of the fact that he is villager and poor person making his daily livelihood through coolie work having aged parents and burden to support three family members, he requests this Court to consider sympathetically and invoke the provisions of Probation of Offenders Act and enlarge the petitioner by directing him to execute a bond by imposing certain compensation and cost."
}
},
{
"from_name": null,
"id": "b9ef79acff5c409ea5f06a316ecc5858",
"to_name": null,
"type": null,
"value": {
"end": 14968,
"labels": [
"RPC"
],
"start": 14802,
"text": "\n 22. On giving a careful thought and having heard the learned Government Pleader on said submission, I pass the following: ORDER Revision Petition is partly allowed."
}
},
{
"from_name": null,
"id": "9fdc57da02de48d48ad0d1d18331e039",
"to_name": null,
"type": null,
"value": {
"end": 15246,
"labels": [
"RPC"
],
"start": 14968,
"text": "\n The order dated 09.09.2011 passed by the Prl. District and Sessions Judge, Dharwad in Crl.A.No.128/2010 confirming the judgment of conviction and order of sentence dated 08.11.2010 passed by Civil Judge, Junior Division and JMFC., Kalagatagi in CC No.70/2009 is hereby upheld."
}
},
{
"from_name": null,
"id": "8c5d2f7c9b8b48cdbe119ac64a75a7bd",
"to_name": null,
"type": null,
"value": {
"end": 15399,
"labels": [
"RPC"
],
"start": 15246,
"text": "\n This Court is of the opinion, in the present facts of the case whether leniency can be shown and would it be expedient to release accused on probation."
}
},
{
"from_name": null,
"id": "ea3f6d73c74e4c9a91a34d4fcc469ff4",
"to_name": null,
"type": null,
"value": {
"end": 15465,
"labels": [
"RPC"
],
"start": 15399,
"text": "\n In view of the above, petitioner could be released on Probation."
}
},
{
"from_name": null,
"id": "483aca0b25ee476da14d8b16be865895",
"to_name": null,
"type": null,
"value": {
"end": 15520,
"labels": [
"RPC"
],
"start": 15466,
"text": "Petitioner shall pay cost of Rs.25,000/- to the State."
}
},
{
"from_name": null,
"id": "94c83a06084c462482d79be8d662656b",
"to_name": null,
"type": null,
"value": {
"end": 15613,
"labels": [
"RPC"
],
"start": 15521,
"text": "The non-payment of cost shall be recovered as fine in accordance with the provision of code."
}
},
{
"from_name": null,
"id": "d493e452a44e481a96380e62bba0685c",
"to_name": null,
"type": null,
"value": {
"end": 15698,
"labels": [
"NONE"
],
"start": 15613,
"text": "\n Sd/- JUDGE HMB PSYJ: CRL.RP.No.2337/2011 21.10.2020 ORDERS ON BEING SPOKEN TO"
}
},
{
"from_name": null,
"id": "3e14b45f1b7a4ef7addd79aef2f7c3e3",
"to_name": null,
"type": null,
"value": {
"end": 15863,
"labels": [
"FAC"
],
"start": 15699,
"text": "On the previous date of hearing the matter was heard at length and both the counsel have had advanced their arguments and the matter was dictated in the open Court."
}
},
{
"from_name": null,
"id": "bfd62d723efa4914aef648e6d0731460",
"to_name": null,
"type": null,
"value": {
"end": 16196,
"labels": [
"FAC"
],
"start": 15864,
"text": "This Court came to a conclusion that there was no ground made out by the petitioner to interfere with the judgment of conviction and order of sentence passed by the trial Court and affirmed by Appellate Court but was to consider the aspect of releasing the petitioner under Probation of Offenders Act for Reformation and Admonition."
}
},
{
"from_name": null,
"id": "a6426c24e1ae428d9d9d06646dce0ba8",
"to_name": null,
"type": null,
"value": {
"end": 16322,
"labels": [
"FAC"
],
"start": 16198,
"text": "2. Heard the learned counsel and partly allowed the Revision Petition only with a view to grant Probation to the petitioner."
}
},
{
"from_name": null,
"id": "74b5fc4d98314ce0a7566110dcbb5d45",
"to_name": null,
"type": null,
"value": {
"end": 17373,
"labels": [
"FAC"
],
"start": 16323,
"text": "Thereafter on careful examination by this Court, on the grant of Probation under the Probation of Offenders Act to the petitioner herein and the provisions of Section Nos.4 and 6 of Probation of Offenders Act and on considering Section 32 and 34 of the Karnataka Excise Act and having gone through the said provisions, the judgment of the Hon'ble Supreme Court in the case of Sate Through SP, New Delhi V/s Ratan Lal Arora reported in (2004) 4 SCC 590, wherein the issue of applicability of the Probation Act and Section 360 of Cr.PC was considered was relevant and hence on going through the said judgment of the Hon'ble Apex Court and in the case of Mohd.\nHashim V/s State of Uttar Pradesh and others, reported in (2017) 2 SCC 198 and in the case of State of Madhya Pradesh V/s Vikram das, reported in AIR 2019 SC 835, the issues were with regard to Section 4 of Probation of Offenders Act was dealt in detail and discussed and law laid down with regard to provisions of Probation of Offenders Act, release of the petitioner under the said Act.\n 3."
}
},
{
"from_name": null,
"id": "7389edadca3240228801e92f09404b92",
"to_name": null,
"type": null,
"value": {
"end": 17646,
"labels": [
"FAC"
],
"start": 17374,
"text": "This Court provided an opportunity to the petitioner as well as the respondent to make their submissions in view of the judgments of the Hon'ble Supreme Court and accordingly, the learned counsel argued the matter in detail, the very next day before release of this order."
}
},
{
"from_name": null,
"id": "d1b52202e5d44bb0bd8894c9fb45804e",
"to_name": null,
"type": null,
"value": {
"end": 17716,
"labels": [
"FAC"
],
"start": 17646,
"text": "\n 4. Matter is taken up today under the caption \"For being spoken to\"."
}
},
{
"from_name": null,
"id": "4e5d9bec3b2545029ecf8d88571c4a84",
"to_name": null,
"type": null,
"value": {
"end": 17872,
"labels": [
"ARG_PETITIONER"
],
"start": 17716,
"text": "\n 5. Learned counsel for the petitioner relied on the following judgments in support of his case for release of petitioner under Probation of Offenders Act."
}
},
{
"from_name": null,
"id": "f1523af4e8db4e9395493d784c6072de",
"to_name": null,
"type": null,
"value": {
"end": 18100,
"labels": [
"ARG_PETITIONER"
],
"start": 17872,
"text": "\n 1) Lakhanlal @ Lakhan Singh V/s State of Madhya Pradesh, reported in ABC 2019(II) 18 SC.\n 2) Ishar Das V/s State of Punjab, reported in 1972 AIR 1295.\n 3) State of Karnataka V/s Ravindra Sahadev Ghode in Crl.A.No.2513 of 2011."
}
},
{
"from_name": null,
"id": "7cfc4c72127a4beab906272ac6a927e8",
"to_name": null,
"type": null,
"value": {
"end": 18448,
"labels": [
"PRE_NOT_RELIED"
],
"start": 18100,
"text": "\n 6. In the case of Lakhanlal @ Lakhan Singh's case it was held that if the offender is less than 21 years of age or a woman not convicted of an offence not punishable with death or imprisonment for life; such offender can be granted benefit of probation on satisfaction of the court on the basis of parameters contained in Section 360 of the Code."
}
},
{
"from_name": null,
"id": "c31cedad5eb640308e83265c3b571ad9",
"to_name": null,
"type": null,
"value": {
"end": 18629,
"labels": [
"ANALYSIS"
],
"start": 18449,
"text": "However, in respect of an offender more than 21 years of age, the benefit of release is available only if the offence is punishable for less than seven year's imprisonment or fine."
}
},
{
"from_name": null,
"id": "6514b0bb76dd4e49851947a54d586ad3",
"to_name": null,
"type": null,
"value": {
"end": 18906,
"labels": [
"ANALYSIS"
],
"start": 18630,
"text": "The object of Section 360 of the Code is to prevent young person's from being committed to jail, who have for the first- time committed crimes through ignorance or inadvertence or the bad influence of others and who, but for such lapses, might be expected to be good citizens."
}
},
{
"from_name": null,
"id": "5689a8ebbcca4e449650ba01aa7537f8",
"to_name": null,
"type": null,
"value": {
"end": 19175,
"labels": [
"PRE_RELIED"
],
"start": 18906,
"text": "\n 7. In the case of Ishar Das, the Hon'ble Supreme Court has held that It is Manifest from plain reading of sub-section (1) of section 4 of the Act that it makes no distinction between persons of the age of more than 21 years and those of the age of less than 21 years."
}
},
{
"from_name": null,
"id": "3b72120bf91649b79ffeaf5df6e94d5c",
"to_name": null,
"type": null,
"value": {
"end": 19316,
"labels": [
"ANALYSIS"
],
"start": 19176,
"text": "On the contrary, the said sub- section is applicable to persons of all ages subject to certain conditions which have been specified therein."
}
},
{
"from_name": null,
"id": "c262e8f20d904305b16adb1577447cd8",
"to_name": null,
"type": null,
"value": {
"end": 19512,
"labels": [
"ANALYSIS"
],
"start": 19317,
"text": "Once those conditions are fulfilled and the, other formalities which are mentioned in section 4 are complied with, power is given to the court to release the accused on probation of good conduct."
}
},
{
"from_name": null,
"id": "0f2e70b94eae46a1bdf39ecda6a5c054",
"to_name": null,
"type": null,
"value": {
"end": 19695,
"labels": [
"STA"
],
"start": 19513,
"text": "Section 6 of the Act deals specifically with persons under twenty- one years of age convicted by a court for an offence punishable with imprisonment other than imprisonment for life."
}
},
{
"from_name": null,
"id": "ffdf3bf3389e42ce816ba1ab2efc47a2",
"to_name": null,
"type": null,
"value": {
"end": 20088,
"labels": [
"ANALYSIS"
],
"start": 19696,
"text": "In such a case an injunction is issued to the court not to sentence the young offender to imprisonment, unless the court is of the view that having regard to the circumstances of the case including the nature of the offence and the character of the offender (it would not be desirable to release him after admonition under section 3 or on probation of good conduct under section 4 of the Act."
}
},
{
"from_name": null,
"id": "a16900d3bbc949549144a368e7bb4bf3",
"to_name": null,
"type": null,
"value": {
"end": 20556,
"labels": [
"ANALYSIS"
],
"start": 20089,
"text": "8. It is further held that under the said provision of Food Adulteration Act there follows a proviso, according to which the court May, in case of some of the offenses under the Act, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or of fine of less than one thousand rupees or of both imprisonment for a term of less than six months and fine of less than one thousand rupees.\n 9."
}
},
{
"from_name": null,
"id": "5d97c48fcaa149e8935d123d11b320e6",
"to_name": null,
"type": null,
"value": {
"end": 20951,
"labels": [
"ANALYSIS"
],
"start": 20557,
"text": "It is further held that the question that arose for determination is whether despite the fact that a minimum sentence of imprisonment for a term of six months and a fine of rupees one thousand has been prescribed .by the legislature for a person found guilty of the offence under the Prevention of Food Adulteration Act, the court can resort to the provisions of the Probation of Offenders Act."
}
},
{
"from_name": null,
"id": "3b4d6db9fbe846a5a9ad131c50a5249e",
"to_name": null,
"type": null,
"value": {
"end": 21174,
"labels": [
"STA"
],
"start": 20952,
"text": "In this respect the Court further held that \"we find that sub-section (1) of section 4 of the Probation of Offenders Act contains the words \"notwithstanding anything contained in any other law for the time being in force\"."
}
},
{
"from_name": null,
"id": "453cec7536d94199a4175f0b41284b34",
"to_name": null,
"type": null,
"value": {
"end": 21393,
"labels": [
"ANALYSIS"
],
"start": 21175,
"text": "The above non-obstante clause points to the conclusion that the provisions of section 4 of the Probation of Offenders Act would have overriding effect and shall prevail if the other conditions prescribed are fulfilled."
}
},
{
"from_name": null,
"id": "35139df348b94b049305adc6ec46dbef",
"to_name": null,
"type": null,
"value": {
"end": 21752,
"labels": [
"PRE_RELIED"
],
"start": 21393,
"text": "\n 10. In the decision of the co-ordinate bench of this Court in the case of Ravindra Sahadev Ghode in Crl.A.No.2513/2011 the Court held that \" on considering the question of releasing the appellant therein under the Probation of Offenders Act, the Court held that \"I find that observations exercised by the trial Court is proper but there is procedural lapse."
}
},
{
"from_name": null,
"id": "7dbdcb2818504956bbfa72cb665fd962",
"to_name": null,
"type": null,
"value": {
"end": 21813,
"labels": [
"PRE_RELIED"
],
"start": 21753,
"text": "I find that the learned Judge has committed an irregularity."
}
},
{
"from_name": null,
"id": "2b8a92698b114e44860419808164ef42",
"to_name": null,
"type": null,
"value": {
"end": 22069,
"labels": [
"PRE_RELIED"
],
"start": 21814,
"text": "It is not pointed out by the prosecution that there is any occasion of failure of justice\" and further it held that \"I find that it not just proper to set aside the order of trial Court though it is procedurally erroneous in law if not against the facts.\""
}
},
{
"from_name": null,
"id": "c562167a99744ea5bb69685428cf2fc9",
"to_name": null,
"type": null,
"value": {
"end": 22282,
"labels": [
"ANALYSIS"
],
"start": 22069,
"text": "\n 11. In the said case the trial Court has extended the benefit of provisions of Probation of Offenders Act and ordered for probation for a period of six months and directed the Probation Officer to send a report."
}
},
{
"from_name": null,
"id": "ee6bfdb1b71d4126b93786acb2293108",
"to_name": null,
"type": null,
"value": {
"end": 22386,
"labels": [
"ANALYSIS"
],
"start": 22283,
"text": "The said case also pertains to the offence punishable under Sections 32 and 34 of Karnataka Excise Act."
}
},
{
"from_name": null,
"id": "dd67994405394e68a899c17700a16ba9",
"to_name": null,
"type": null,
"value": {
"end": 22759,
"labels": [
"ANALYSIS"
],
"start": 22387,
"text": "It is important to note that this Court on considering the material placed on record and submissions of the learned counsel for the petitioner and learned Government Pleader came to the conclusion that there is no material placed before the Court or nothing has been pointed out to show that there is any irregularity or perversity in the order passed by the Courts below."
}
},
{
"from_name": null,
"id": "a7a90b6e3b9543078dd990b783e7a212",
"to_name": null,
"type": null,
"value": {
"end": 23083,
"labels": [
"ANALYSIS"
],
"start": 22760,
"text": "At the time of addressing the arguments learned counsel for the petitioner fairly submitted that there may not be much on merits but the petitioner-accused deserves to be considered for reformation and Admonition and given the benefit under the Probation of Offenders Act as the offence committed is the first time offence."
}
},
{
"from_name": null,
"id": "ac0ea55ca4b24843a5ab3e6b6c185438",
"to_name": null,
"type": null,
"value": {
"end": 23375,
"labels": [
"ANALYSIS"
],
"start": 23083,
"text": "\n 12. In this view of the matter, it is important to see whether the provisions of Karnataka Excise Act, most specifically Sections 32 and 34 provides for any discretion to this Court to award either lesser sentence of punishment or to grant benefit under the Probation of Offenders Act.\n 13."
}
},
{
"from_name": null,
"id": "38e13b77fdd84e22ac39f42e46c82612",
"to_name": null,
"type": null,
"value": {
"end": 23957,
"labels": [
"STA"
],
"start": 23376,
"text": "In view of the above, it is necessary to extract Section 32.\n Section 32 of Karnataka Excise Act reads as under; \"32. Penalty for illegal import, etc.- (1) Whoever, in contravention of this Act, or any rule, notification or order, made, issued or given thereunder, or of any licence or permit granted under this Act, imports, exports, transports, manufactures, collects or possesses any intoxicant, shall, on conviction, 1[be punished for each offence with rigorous imprisonment for a term which may extend to 2[five years and with fine which may extend to fifty thousand rupees.]]"
}
},
{
"from_name": null,
"id": "295322eb075348d3b4050afd62c85f6f",
"to_name": null,
"type": null,
"value": {
"end": 24393,
"labels": [
"STA"
],
"start": 23958,
"text": "1[Provided that the punishment,- (i) for the first offence shall be not less than 2[one year rigorous imprisonment and fine of not less than ten thousand rupees]2; and (ii) for the second and subsequent offences shall be not less than 2[two years rigorous imprisonment and fine of not less than twenty thousand rupees] for each such offence.\"\n 14. Section 34 of Karnataka Excise Act reads as under; 34. Penalty for illegal possession.-"
}
},
{
"from_name": null,
"id": "3e5b18d3ddbc4ca381e15b83daf71d08",
"to_name": null,
"type": null,
"value": {
"end": 24799,
"labels": [
"STA"
],
"start": 24394,
"text": "Whoever, without lawful authority has in his possession any quantity of any intoxicant knowing the same to have been unlawfully imported, transported, manufactured, cultivated or collected, or knowing the prescribed duty not to have been paid thereon, shall, on conviction, be punished with imprisonment for a term which may extend to 2[four years and with fine which may extend to fifty thousand rupees.]"
}
},
{
"from_name": null,
"id": "2c970e278d054a01a53380cbfe7ccc1e",
"to_name": null,
"type": null,
"value": {
"end": 25242,
"labels": [
"STA"
],
"start": 24800,
"text": "3[Provided that the punishment,- (i) for the first offence shall be not less than 4[one year imprisonment and fine of rupees ten thousand]; and (ii) for the second and subsequent offences shall be not less than imprisonment for 5[two years and fine of not less than rupees twenty thousand], for each such offence: Provided further that the fine inflicted, shall not be less than four times the amount of duty leviable on such intoxicant.] 15."
}
},
{
"from_name": null,
"id": "bbe7e351c35e49a385f6b97451b0c327",
"to_name": null,
"type": null,
"value": {
"end": 25476,
"labels": [
"STA"
],
"start": 25243,
"text": "On going through the provisions stated above, the legislature has prescribed the punishment for an offence under the Section 32 as imprisonment for a term which extend to five years and fine which may extend to fifty thousand rupees."
}
},
{
"from_name": null,
"id": "0c7d436cd253440f9742d2a3bfd14c29",
"to_name": null,
"type": null,
"value": {
"end": 25618,
"labels": [
"STA"
],
"start": 25477,
"text": "The proviso (1) reads that for the first offence shall be not less than one year rigorous imprisonment and fine of not less than Rs.10,000/-."
}
},
{
"from_name": null,
"id": "b3084a075443478893e765b30a873b98",
"to_name": null,
"type": null,
"value": {
"end": 25753,
"labels": [
"STA"
],
"start": 25619,
"text": "So also under Section 34 , the proviso (i) for the first offence shall be not less than one year imprisonment and fine of Rs.10,000/-."
}
},
{
"from_name": null,
"id": "e30157c167704a039102838c6e1a7795",
"to_name": null,
"type": null,
"value": {
"end": 25879,
"labels": [
"ANALYSIS"
],
"start": 25753,
"text": "\n 16. In the present case, the petitioner has been awarded sentence of one year rigorous imprisonment and fine of Rs.10,000/-."
}
},
{
"from_name": null,
"id": "3befe972c10f4ec99588d08dd5b3ff4d",
"to_name": null,
"type": null,
"value": {
"end": 26379,
"labels": [
"PRE_RELIED"
],
"start": 25880,
"text": "On careful perusal of the judgment of the Hon'ble Supreme Court in the case of Ratan Lal Arora stated supra, the Hon'ble Apex Court while dealing with the applicability of provisions of Probation of Offenders Act and Section 360 of Cr.P.C. has held at para 12 of the judgment which is extracted below: \"12. That apart Section 7 as well as Section 13 of the Act provide for a minimum sentence of six months and one year respectively in addition to the maximum sentences as well as imposition of fine."
}
},
{
"from_name": null,
"id": "93f72a61f6e9466aa1930771c425f8ca",
"to_name": null,
"type": null,
"value": {
"end": 26532,
"labels": [
"PRE_RELIED"
],
"start": 26380,
"text": "Section 28 further stipulates that the provisions of the Act shall be in addition to and not in derogation of any other law for the time being in force."
}
},
{
"from_name": null,
"id": "fe486de67a2b4a56b5f18f6e626e7b4c",
"to_name": null,
"type": null,
"value": {
"end": 27344,
"labels": [
"PRE_RELIED"
],
"start": 26533,
"text": "In the case of Superintendent Central Excise, Bangalore vs Bahubali, (AIR 1979 SC 1271), while dealing with Rule 126-P (2) (ii) of the Defence of India Rules which prescribed a minimum sentence and Section 43 of the Defence of India Act, 1962 almost similar to the purport enshrined in Section 28 of the Act in the context of a claim for granting relief under the Probation Act, this Court observed that in cases where a specific enactment, enacted after the Probation Act prescribes a minimum sentence of imprisonment, the provisions of Probation Act cannot be invoked if the special Act contains any provision to enforce the same without reference to any other Act containing a provision, in derogation of the special enactment, there is no scope for extending the benefit of the Probation Act to the accused."
}
},
{
"from_name": null,
"id": "64b1a320d76c451687dc60959b43b89b",
"to_name": null,
"type": null,
"value": {
"end": 27688,
"labels": [
"PRE_RELIED"
],
"start": 27345,
"text": "Unlike, the provisions contained in Section 5(2) proviso of the Old Act providing for imposition of a sentence lesser than the minimum sentence of one year therein for any \"special reasons\" to be recorded in writing, the Act did not carry any such power to enable the Court concerned to show any leniency below the minimum sentence stipulated."
}
},
{
"from_name": null,
"id": "38bd5a4230d346979550382a1428d6b3",
"to_name": null,
"type": null,
"value": {
"end": 27835,
"labels": [
"PRE_RELIED"
],
"start": 27689,
"text": "Consequently, the learned Single Judge in the High Court committed a grave error of law in extending the benefit of probation even under the Code."
}
},
{
"from_name": null,
"id": "a2b3fcbc5aee4b7293e20186505009d2",
"to_name": null,
"type": null,
"value": {
"end": 28317,
"labels": [
"PRE_RELIED"
],
"start": 27836,
"text": "At the same time we may observe that though the reasons assigned by the High Court to extend the benefits of probation may not be relevant, proper or special reasons for going below the minimum sentence prescribed - which in any event is wholly impermissible, as held supra, we take them into account to confine the sentence of imprisonment to the minimum of six months under Section 7 and minimum of one year under Section 13(2) of the Act, both the sentences to run concurrently."
}
},
{
"from_name": null,
"id": "4401929f866f4f19852f66173d94b62a",
"to_name": null,
"type": null,
"value": {
"end": 28545,
"labels": [
"PRE_RELIED"
],
"start": 28318,
"text": "So far as the levy of fine in addition made by the learned Trial Judge with a default clause on two separate courts are concerned, they shall remain unaffected and are hereby confirmed.\n The appeal shall stand allowed.\""
}
},
{
"from_name": null,
"id": "069c2f9a7c5f48e188d6da5b424ccad2",
"to_name": null,
"type": null,
"value": {
"end": 28742,
"labels": [
"ANALYSIS"
],
"start": 28545,
"text": "\n 17. In the said judgment the Hon'ble Apex Court has held that the learned single Judge in the trial Court committed a grave error in law in extending the benefit of Probation even under the Code."
}
},
{
"from_name": null,
"id": "6cc4aefba7044d4b8c3d649e15f2c1db",
"to_name": null,
"type": null,
"value": {
"end": 29210,
"labels": [
"ANALYSIS"
],
"start": 28743,
"text": "The Court further held that in the case where a specific enactment is enacted after the Probation Act prescribes a minimum sentence of imprisonment, the provisions of Probation of Offenders act cannot be invoked if the special act contains any provisions to enforce the same without reference to any other act containing a provision, in derogation of the special enactment, there is no scope for extending the benefit of the Probation of Offenders Act to the accused."
}
},
{
"from_name": null,
"id": "33f4e72f800d48cfbfb28e3cc00db6e5",
"to_name": null,
"type": null,
"value": {
"end": 29346,
"labels": [
"ANALYSIS"
],
"start": 29210,
"text": "\n 18. It is relevant to note that the provisions of Offenders Act are of the year 1958 and the Karnataka Excise Act is of the year 1965."
}
},
{
"from_name": null,
"id": "590ac79b36624f36a0d6c4da1a6f1280",
"to_name": null,
"type": null,
"value": {
"end": 29870,
"labels": [
"ANALYSIS"
],
"start": 29346,
"text": "\nFurther the Apex Court has held that in view of the minimum sentence prescribed in Sections 7 and 13 of the Act (Prevention of Corruption Act), the provisions of Section 28 thereof and the fact that unlike the provisions contained in Section 5(2) proviso of the old act, the act did not carry any such power to enable the Court to show any leniency below the minimum sentence stipulated, it is held that the High Court committed a grave error of law in extending the benefit of probation even under Criminal Procedure Code."
}
},
{
"from_name": null,
"id": "131a128516914547bc1b0c91c0dcc9d8",
"to_name": null,
"type": null,
"value": {
"end": 30035,
"labels": [
"PRE_RELIED"
],
"start": 29870,
"text": "\n 19. In the case of Mohd. Hashim stated supra, the Hon'ble Apex Court again considered the issue with regard to release of accused under Probation of Offenders Act."
}
},
{
"from_name": null,
"id": "531dc80d87414b5397ba795388fa6302",
"to_name": null,
"type": null,
"value": {
"end": 30286,
"labels": [
"ANALYSIS"
],
"start": 30036,
"text": "In the said case also, the accused had sought for benefit under Section 4 of Probation of Offenders Act which was extended in favour of accused when it was challenged, the High Court concurred with the opinion expressed by the learned Sessions Judge."
}
},
{
"from_name": null,
"id": "7200f096cb744c9e8d1ab6a69fc2592b",
"to_name": null,
"type": null,
"value": {
"end": 30540,
"labels": [
"PRE_RELIED"
],
"start": 30287,
"text": "The issue before the Hon'ble Apex Court was whether the approach of the learned Sessions Judge and concurred by the High Court was legally sustainable in the said case, the offence related to 498A of IPC and Section 4 of Dowry Prohibition Act,1961.\n 20."
}
},
{
"from_name": null,
"id": "49b857ac844a4c4b9b070a53803c94b0",
"to_name": null,
"type": null,
"value": {
"end": 30806,
"labels": [
"PRE_RELIED"
],
"start": 30541,
"text": "The Hon'ble Apex Court while dealing with the said case and relying on the judgment of Ratan Lal Arora case, held that \"We may further elaborate that when the legislature has prescribed minimum sentence without discretion, the same cannot be reduced by the Courts.\""
}
},
{
"from_name": null,
"id": "55f7fc469ea94204b4e376e0b66dba1c",
"to_name": null,
"type": null,
"value": {
"end": 31204,
"labels": [
"PRE_RELIED"
],
"start": 30807,
"text": "In such cases imposition of minimum sentence be imprisonment or fine is mandatory and leaves no discretion to the Court however, sometimes, the legislature prescribes a minimum sentence and grants discretion and Courts for reasons to be recorded in writing may award lesser sentence or not award a sentence of imprisonment such discretion includes the discretion not to send the accused to prison."
}
},
{
"from_name": null,
"id": "314266efd2074673a7176c64e25071d3",
"to_name": null,
"type": null,
"value": {
"end": 31404,
"labels": [
"PRE_RELIED"
],
"start": 31205,
"text": "Minimum sentence means a sentence which must be imposed without leaving any discretion to the Court not to award minimum sentence cannot be equated with provisions which prescribe a minimum sentence."
}
},
{
"from_name": null,
"id": "7cb8203372b44b848d3b630e361e7ab9",
"to_name": null,
"type": null,
"value": {
"end": 31558,
"labels": [
"PRE_RELIED"
],
"start": 31404,
"text": "\nThe two provisions therefore are not identical and have different implications which should be recognized and accepted in the probation of offenders Act."
}
},
{
"from_name": null,
"id": "fabd719fee10461ca3eae8f7c913a8ae",
"to_name": null,
"type": null,
"value": {
"end": 31738,
"labels": [
"PRE_RELIED"
],
"start": 31559,
"text": "Thereafter, finally, the Hon'ble Apex Court held that \"we have made it clear that there is no minimum sentence and hence, the provisions of Probation of Offenders Act would apply."
}
},
{
"from_name": null,
"id": "8721deec65974e1ca0fd97c23a26e479",
"to_name": null,
"type": null,
"value": {
"end": 31872,
"labels": [
"PRE_RELIED"
],
"start": 31739,
"text": "We have also opined that the Court has to be guided by the provision of Probation of Offenders Act and the precedents of this Court.\""
}
},
{
"from_name": null,
"id": "9aa64a0947a24f478477e1fa37f31a42",
"to_name": null,
"type": null,
"value": {
"end": 32206,
"labels": [
"PRE_RELIED"
],
"start": 31872,
"text": "\n 21. The similar view was taken thereafter in the case of State of Madhya Pradesh Vs. Vikram Das stated supra wherein the Apex Court relying on the earlier two judgments stated herein held at para 8 that \" In view of aforesaid judgments that where minimum sentence is provided, the Court cannot impose less than the minimum sentence."
}
},
{
"from_name": null,
"id": "10353b2638714c0690414e5c19d8ae67",
"to_name": null,
"type": null,
"value": {
"end": 32341,
"labels": [
"PRE_RELIED"
],
"start": 32207,
"text": "It also held that provisions of Article 142 of the Constitution cannot be resorted to impose sentence less than the minimum sentence.\""
}
},
{
"from_name": null,
"id": "87ba9fb1cddf4b1b9a1062c937d0c176",
"to_name": null,
"type": null,
"value": {
"end": 32561,
"labels": [
"PRE_RELIED"
],
"start": 32342,
"text": "Therefore the appeal before the Hon'ble Apex Court was allowed and the accused was directed to undergo sentence imposed by the trial Court for an offence under Section 3(1)(ii) of the SC/ST Prevention of Atrocities Act."
}
},
{
"from_name": null,
"id": "d351d30f4c3647fcb5adc470ad9ebb15",
"to_name": null,
"type": null,
"value": {
"end": 32914,
"labels": [
"ANALYSIS"
],
"start": 32561,
"text": "\n 22. In view of the judgments of the Hon'ble Apex Court and the clear implication of the legislature prescribing minimum sentence of one year rigorous imprisonment and fine of Rs.10,000/- and the law laid down by the Hon'ble Apex Court, there is no discretion vested in this Court to provide the benefit of Probation of Offenders Act to the petitioner."
}
},
{
"from_name": null,
"id": "797f78640a12488a8c532eaad87e20cf",
"to_name": null,
"type": null,
"value": {
"end": 33131,
"labels": [
"ANALYSIS"
],
"start": 32914,
"text": "\n 23. Therefore, the argument of the learned counsel for considering release of the petitioner under the Probation of Offenders Act for reformation and admonition cannot be considered in the present facts of the case."
}
},
{
"from_name": null,
"id": "037b0ea5d9c14416ae71249df7595f66",
"to_name": null,
"type": null,
"value": {
"end": 33431,
"labels": [
"ANALYSIS"
],
"start": 33131,
"text": "\n 24. In view of the Judgment of the Hon'ble Apex Court, no discretion is provided to the Courts and also the legislation by making the law in Sections 32 and 34 of the Karnataka Excise Act, 1965 has not provided any proviso or discretion to award lesser punishment than the minimum sentence imposed."
}
},
{
"from_name": null,
"id": "f5029af89fce45568b877a53349753d2",
"to_name": null,
"type": null,
"value": {
"end": 33633,
"labels": [
"RATIO"
],
"start": 33432,
"text": "Therefore, when the special enactment does not provide for imposition of lesser punishment than prescribed, the Courts are not vested with discretion to award lesser sentence than the minimum sentence."
}
},
{
"from_name": null,
"id": "06893275004b4438bd65d453d2d2eb19",
"to_name": null,
"type": null,
"value": {
"end": 33693,
"labels": [
"RATIO"
],
"start": 33634,
"text": "In such cases Probation of Offenders Act cannot be invoked."
}
},
{
"from_name": null,
"id": "436661a90a154c799dc1c4188938be30",
"to_name": null,
"type": null,
"value": {
"end": 33904,
"labels": [
"RPC"
],
"start": 33694,
"text": "25. Hence, in view of the same, this petition deserves to be rejected and the Judgment of conviction and order of sentence passed by the trial Court and confirmed by the appellate Court is upheld and confirmed."
}
},
{
"from_name": null,
"id": "e0ecd5b0f5dd4158b7d9569409f48681",
"to_name": null,
"type": null,
"value": {
"end": 33997,
"labels": [
"RPC"
],
"start": 33904,
"text": "\n Valuable assistance provided by the learned counsel for the petitioner is placed on record."
}
},
{
"from_name": null,
"id": "c08815821917416e81ed7019cf022468",
"to_name": null,
"type": null,
"value": {
"end": 34013,
"labels": [
"NONE"
],
"start": 33997,
"text": "\n Sd/- JUDGE HMB"
}
}
]
}
] | 4,283 | {
"text": " IN THE HIGH COURT OF KARNATAKA\n DHARWAD BENCH\n\n ON THE 15TH DAY OF OCTOBER 2020\n\n BEFORE\n\nTHE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR\n\n CRL.RP.NO.2337 OF 2011\n\nBETWEEN\n\nMANJUNATH VACHAPPA LAMANI\nAGE: 23 YEARS, OCC: COOLIE\nR/O SHIGIGATTI, TQ.KALAGHATAGI\nDISTRICT: DHARWAD.\n\n PETITIONER\n(SRI.V.G.HOLEYANNAVAR, ADVOCATE)\n\nAND\n\nTHE STATE OF KARNATAKA\nREPTD. BY SPP,\nCIRCUIT BENCH, HIGH COURT, DHARWAD\nEXCISE SUB-INSPECTOR, KALAGHATAGI.\n\n RESPONDENT\n(SRI.RAMESH B.CHIGARI, ADVOCATE)\n\n THIS REVISION PETITION IS FILED UNDER\n\nSECTION 397 R/W 401 OF CR.P.C. SEEKING TO SET\n\nASIDE THE JUDGMENT AND THE SENTENCE ORDER DATED 09.09.2011 PASSED BY THE PRL. DISTRICT AND SESSIONS JUDGE, DHARWAD IN CRL.A.NO.128/2010 CONFIRMING THE JUDGMENT AND ORDER DATED 08.11.2010 PASSED BY THE CIVIL JUDGE (JR.DN.) AND JMFC., COURT, KALAGHATGI, DHARWAD IN CC NO.70/2009 AND ACQUIT THE PETITOINER FOR THE CHARGES LEVELED AGAINST HIM.\n THIS REVISION PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING: ORDER This Revision has been preferred by accused aggrieved by the order dated 09.09.2011 passed by the Prl. District and Sessions Judge, Dharwad in Crl.A.No.128/2010 confirming the judgment of conviction and order of sentence dated 08.11.2010 passed by Civil Judge, Junior Division and JMFC., Kalagatagi in CC No.70/2009. Petitioner herein is convicted for the offences under Section 11, 13, 14 and 32 of Karnataka Excise Act, 1965 (herein after referred to as `the Excise Act' for brevity) and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.10,000/-, in default to undergo simple imprisonment for 3 months. Petitioner is also convicted to undergo rigorous imprisonment of one year and to pay fine of Rs.10,000/- and in default to undergo simple imprisonment for three months for the offence under Section 11, 13, 14 and 34 of Karnataka Excise Act. The said punishments to run concurrently.\n 2. Brief facts leading to the filing of this Revision Petition is as under: It is the case of prosecution before the trial Court that on 11.07.2008 at about 8.30 p.m. the Excise Inspector received credible information that the petitioner herein was in possession of illicit liquor and was selling the same to general public in Hasarambi village near school. On receipt of such information, the complainant- Excise Inspector secured two panch witnesses and along with staff went to the spot in the office zeep and parked his vehicle in secluded hidden place thereby keeping a watch near the school and found the petitioner selling illicit liquor to the public. On confirmation of the same, they raided and seized 10 liters of illicit liquor from the possession of accused in a can.\n 3. On enquiry, it was revealed by petitioner that he does not have any license or permit to possess or sell liquor. The Excise Officials removed 180ML of liquor for the purpose of sample and seized the same in a bottle and affixed a label and secured the signatures of panch witnesses. The remaining illicit liquor was separately seized under the panchnama.\n Accused was arrested from the spot along with the seizure of the material. Thereafter, complainant preferred a complaint as per Ex.P.2 and registered a case against the petitioner in Crime No.2/08-09 for the offence under Sections 13, 14, 15, 32 and 34 of Karnataka Excise Act.\n 4. Thereafter, accused was produced before the Magistrate and later released on bail. On completion of investigation, PW.3 filed charge sheet against accused for the aforesaid offences.\nThe 313 statement was recorded and accused pleaded not guilty and wanted to be tried and accordingly he was tried.\n 5. In order to prove the guilt of the accused, the prosecution examined three witnesses i.e.\nPW1 to PW3 and got marked 4 documents as Ex.P.1 to P.4 and marked one material object as M.O.1. Petitioner herein denied the incriminating evidence against him and did not choose to lead any evidence on his behalf.\n 6. On examination of the witnesses and the documents produced, the trial Court came to a conclusion that accused has committed the offence stated above and convicted him for the aforesaid offences and sentenced him to imprisonment and fine as stated above.\n 7. Aggrieved by the same, petitioner approached the First Appellate Court- Prl.\nDistrict and Sessions Judge, Dharwad in Crl.A.No.128/2010 contending that the judgment of conviction is liable to be set aside as order passed by the trial Court is illegal and against the principles of natural justice. It is also the contention of petitioner that the evidence recorded was not properly appreciated and despite there being no material evidence and documents to prove the guilt of accused, the trial Court committed an error in convicting the petitioner. It was also contended before the Appellate Court that the complainant who lodged the complaint was the Investigating Officer and the Investigating Officer cannot act as a complainant thereby jeopardizing and creating the bias against the petitioner. It was also contended before the Appellate Court that the petitioner would possess 4 to 5 liters of arrack without holding any license or permit as per the Karnataka Excise Rules. The Appellate Court considered the entire material both oral and documentary placed by the Petitioner and after hearing both the parties, has raised below mentioned two points for consideration: 1) Whether the prosecution proved beyond all reasonable doubt that on 11.07.2008 at 8.30 p.m. in Hasarambi village in Kalaghatagi taluk near school accused was found in possession of 10 ltrs. of illicit liquor, selling the same to the public without having any valid license or permit and thereby committed the offence under Section 32 and 34 of Karnataka Excise Act?\n 2. Whether judgment of conviction and order of Sentence passed by the trial Court is illegal, perverse and capricious and the same is liable to be set aside?\n 8. After answering the issue No.1 in the affirmative and second issue in the negative, Appellate Court came to the conclusion that there was no perversity or illegality in the judgment of conviction and order of sentence passed by the trial Court and found the petitioner herein guilty for the aforesaid offences. Accordingly, dismissed the appeal filed by petitioner and confirmed the judgment of conviction and order of sentence passed by the trial Court.\n 9. Petitioner is before this Court challenging the correctness and legality of the order passed by the Appellate Court confirming the judgment of conviction and order of sentence of trial Court.\n 10. Heard the learned counsel for petitioner and learned Government Pleader for respondent State.\n 11. It is the contention of the learned counsel for petitioner that petitioner is an innocent villager without any knowledge of legal provisions, intricacies and legality and is not aware about worldly aspects and being a villager without analyzing the pros and cons, has been implicated in the false case foisted by the prosecution. It is further contended by the learned counsel for petitioner that the Courts below have not considered the material evidence and the documents placed and in a mechanical manner convicted the petitioner which is arbitrary and illegal. It is further contended by the learned counsel for petitioner that the complaint is lodged by the Investigating Officer and the investigating officer cannot act as a complainant as the same would be biased and detrimental to the interest of petitioner and hence same is against the principles of natural justice and Rule of law.\n 12. It is further contended by the learned counsel for petitioner that the panch witness who has signed the Ex.P.1 is not from the same locality and is not an independent witness.\nFurther, the said witness is a State witness.\nTherefore, no credibility can be assigned to such witness and non-examination of independent witnesses of the same locality is fatal to the case of prosecution and is a violation of Section 100(4) of Code of Criminal Procedure.\n 13. Learned counsel for petitioner contends that without there being any material evidence on record and the chemical examination report having been produced by the prosecution does not reveal that it is illicit liquor and was only to an extent of 180ML and the entire extent of 4 liters was not sent for examination. It is further contended that the sentence imposed by the Courts below is very harsh and not commensurate with the offence being first time offence. It is also contended by the learned counsel that the Courts below have failed to give the benefit of Probation of Offenders Act to the petitioner. Therefore, on these submissions he sought for allowing the Revision Petition and to set aside the judgment of conviction and order of sentence passed by the Courts below.\n 14. Per contra, Sri.Ramesh B. Chigari, learned Government Pleader contends that the judgment of conviction and order of sentence is in accordance with the provisions of the Excise Act and there is no illegality or perversity committed by the Courts below. Therefore, there is no requirement of interference by this Court. It is further contended that there is no bar in law for the Investigating Officer to be the complainant in a given case. Accordingly, complainant having conducted the investigation, it would not be sufficient to cast a doubt on the prosecution version and neither does it make version of prosecution vulnerable. Learned Government Pleader vehemently opposes the petition by contending that two courts have given concurrent finding of fact and have appreciated all the material evidence and documents produced and there is a very limited scope in deciding this petition in the revisional jurisdiction.\n 15. It is further contended that the question raised by petitioner with regard to the investigating officer being the complainant would violate principles of natural justice, cannot be said to be a rigid rule laid down by the Apex Court as the same would depend upon the facts and circumstances of each case. He further contended that when such a plea has been raised by petitioner, it is for petitioner to prove that such an act has cast bias and was done with malafide intention against the petitioner. He further contends that no such malafides and bias have been attributed against the Investigating Officer.\n 16. Learned counsel further contends that with regard to panch witness being not from the same locality. It is stated that PW.1 Shivaji Hegappa Ingalenavar belongs to the same Kalaghatagi taluk, though, the offence has occurred at Hasarambi village which comes within Kalaghatagi taluk. Learned Government Pleader further contends that while conducting the search in such a nature, it is permissible for the Investigating Officer to go along with the staff and also to take witness who can act as panch so that any delay in carrying out the interception and raid can be avoided. On the strength of said submission he seeks for dismissal of the Revision Petition and to confirm the orders passed by the Courts below.\n 17. After having heard the learned counsel for the parties, it is to be considered by this Court whether there has been any illegality, perversity or arbitrariness in the judgment of conviction and order of sentence of the Courts below.\nAdmittedly, there is no enmity between the complainant-Investigating Officer and the panch witnesses with the petitioner. It is also not the case of the petitioner that there has been bias or malafides against him by the Investigating Officer and the panch witnesses.\n 18. In the present case, the witnesses have been examined and sufficient opportunity has been given to petitioner to cross examine the prosecution witnesses. With regard to the offences under Section 32 and 34 of Excise Act, there is no worthwhile evidence led by petitioner to disprove the involvement of petitioner in possession and selling of the illicit arrack and rightly the trial Court as well as Appellate Court have convicted the petitioner for the aforesaid offences.\n 19. On the aspect of the complainant also acting as an Investigating Officer, it cannot be generalized that every case where the complainant acts as Investigating Officer, there is bias and malafides cast against the petitioner.\nOn the contrary, in the present case, the petitioner has not brought out any material before the Court to show bias and malafides against him. On the aspect of panch witness as per Section 100(4) of Code of Criminal Procedure, it is no doubt true that when a search is being made, the witnesses or panchas shall be called upon from the same locality of the offence who is independent and responsible inhabitants, of the locality. But, there is no bar that such witness would be from nearby village or the same taluk and it is also noted that when no such person is willing to act as witness, and to see that the search and raid does not get intercepted and derailed, the prosecution can take it's own independent witness as panch witness. It is also to be noted that the Material Object No.1-bottle of illicit liquor of 750 ML was sent for chemical examination as per Ex.P.4 and the report clearly reads that `sample is unfit for consumption' most specifically \"izj êU AiUgĪŢ\".\n 20. It is not in dispute that the Excise Inspector who has conducted the investigation and filed the charge sheet is competent person as contemplated under Section 55 of the Excise Act authorized to investigate. The trial Court as well as the First Appellate Court have considered all the material both oral and documentary and have rightly come to the conclusion that petitioner is guilty of the offence and convicted the accused for the afore said offences.\n 21. In the light of above, it cannot be said that the Courts below have committed an illegality or perversity in convicting the accused.\nAccordingly, the petitioner herein has not made any ground for interference with the orders passed by the Courts below. There being no material irregularity or perversity shown by the petitioner, this petition does not deserve to be entertained. It is the submission of the learned counsel for the petitioner that in view of the fact that he is villager and poor person making his daily livelihood through coolie work having aged parents and burden to support three family members, he requests this Court to consider sympathetically and invoke the provisions of Probation of Offenders Act and enlarge the petitioner by directing him to execute a bond by imposing certain compensation and cost.\n 22. On giving a careful thought and having heard the learned Government Pleader on said submission, I pass the following: ORDER Revision Petition is partly allowed.\n The order dated 09.09.2011 passed by the Prl. District and Sessions Judge, Dharwad in Crl.A.No.128/2010 confirming the judgment of conviction and order of sentence dated 08.11.2010 passed by Civil Judge, Junior Division and JMFC., Kalagatagi in CC No.70/2009 is hereby upheld.\n This Court is of the opinion, in the present facts of the case whether leniency can be shown and would it be expedient to release accused on probation.\n In view of the above, petitioner could be released on Probation. Petitioner shall pay cost of Rs.25,000/- to the State. The non-payment of cost shall be recovered as fine in accordance with the provision of code.\n Sd/- JUDGE HMB PSYJ: CRL.RP.No.2337/2011 21.10.2020 ORDERS ON BEING SPOKEN TO On the previous date of hearing the matter was heard at length and both the counsel have had advanced their arguments and the matter was dictated in the open Court. This Court came to a conclusion that there was no ground made out by the petitioner to interfere with the judgment of conviction and order of sentence passed by the trial Court and affirmed by Appellate Court but was to consider the aspect of releasing the petitioner under Probation of Offenders Act for Reformation and Admonition.\n 2. Heard the learned counsel and partly allowed the Revision Petition only with a view to grant Probation to the petitioner. Thereafter on careful examination by this Court, on the grant of Probation under the Probation of Offenders Act to the petitioner herein and the provisions of Section Nos.4 and 6 of Probation of Offenders Act and on considering Section 32 and 34 of the Karnataka Excise Act and having gone through the said provisions, the judgment of the Hon'ble Supreme Court in the case of Sate Through SP, New Delhi V/s Ratan Lal Arora reported in (2004) 4 SCC 590, wherein the issue of applicability of the Probation Act and Section 360 of Cr.PC was considered was relevant and hence on going through the said judgment of the Hon'ble Apex Court and in the case of Mohd.\nHashim V/s State of Uttar Pradesh and others, reported in (2017) 2 SCC 198 and in the case of State of Madhya Pradesh V/s Vikram das, reported in AIR 2019 SC 835, the issues were with regard to Section 4 of Probation of Offenders Act was dealt in detail and discussed and law laid down with regard to provisions of Probation of Offenders Act, release of the petitioner under the said Act.\n 3. This Court provided an opportunity to the petitioner as well as the respondent to make their submissions in view of the judgments of the Hon'ble Supreme Court and accordingly, the learned counsel argued the matter in detail, the very next day before release of this order.\n 4. Matter is taken up today under the caption \"For being spoken to\".\n 5. Learned counsel for the petitioner relied on the following judgments in support of his case for release of petitioner under Probation of Offenders Act.\n 1) Lakhanlal @ Lakhan Singh V/s State of Madhya Pradesh, reported in ABC 2019(II) 18 SC.\n 2) Ishar Das V/s State of Punjab, reported in 1972 AIR 1295.\n 3) State of Karnataka V/s Ravindra Sahadev Ghode in Crl.A.No.2513 of 2011.\n 6. In the case of Lakhanlal @ Lakhan Singh's case it was held that if the offender is less than 21 years of age or a woman not convicted of an offence not punishable with death or imprisonment for life; such offender can be granted benefit of probation on satisfaction of the court on the basis of parameters contained in Section 360 of the Code. However, in respect of an offender more than 21 years of age, the benefit of release is available only if the offence is punishable for less than seven year's imprisonment or fine. The object of Section 360 of the Code is to prevent young person's from being committed to jail, who have for the first- time committed crimes through ignorance or inadvertence or the bad influence of others and who, but for such lapses, might be expected to be good citizens.\n 7. In the case of Ishar Das, the Hon'ble Supreme Court has held that It is Manifest from plain reading of sub-section (1) of section 4 of the Act that it makes no distinction between persons of the age of more than 21 years and those of the age of less than 21 years. On the contrary, the said sub- section is applicable to persons of all ages subject to certain conditions which have been specified therein. Once those conditions are fulfilled and the, other formalities which are mentioned in section 4 are complied with, power is given to the court to release the accused on probation of good conduct. Section 6 of the Act deals specifically with persons under twenty- one years of age convicted by a court for an offence punishable with imprisonment other than imprisonment for life. In such a case an injunction is issued to the court not to sentence the young offender to imprisonment, unless the court is of the view that having regard to the circumstances of the case including the nature of the offence and the character of the offender (it would not be desirable to release him after admonition under section 3 or on probation of good conduct under section 4 of the Act.\n8. It is further held that under the said provision of Food Adulteration Act there follows a proviso, according to which the court May, in case of some of the offenses under the Act, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or of fine of less than one thousand rupees or of both imprisonment for a term of less than six months and fine of less than one thousand rupees.\n 9. It is further held that the question that arose for determination is whether despite the fact that a minimum sentence of imprisonment for a term of six months and a fine of rupees one thousand has been prescribed .by the legislature for a person found guilty of the offence under the Prevention of Food Adulteration Act, the court can resort to the provisions of the Probation of Offenders Act. In this respect the Court further held that \"we find that sub-section (1) of section 4 of the Probation of Offenders Act contains the words \"notwithstanding anything contained in any other law for the time being in force\". The above non-obstante clause points to the conclusion that the provisions of section 4 of the Probation of Offenders Act would have overriding effect and shall prevail if the other conditions prescribed are fulfilled.\n 10. In the decision of the co-ordinate bench of this Court in the case of Ravindra Sahadev Ghode in Crl.A.No.2513/2011 the Court held that \" on considering the question of releasing the appellant therein under the Probation of Offenders Act, the Court held that \"I find that observations exercised by the trial Court is proper but there is procedural lapse. I find that the learned Judge has committed an irregularity. It is not pointed out by the prosecution that there is any occasion of failure of justice\" and further it held that \"I find that it not just proper to set aside the order of trial Court though it is procedurally erroneous in law if not against the facts.\"\n 11. In the said case the trial Court has extended the benefit of provisions of Probation of Offenders Act and ordered for probation for a period of six months and directed the Probation Officer to send a report. The said case also pertains to the offence punishable under Sections 32 and 34 of Karnataka Excise Act. It is important to note that this Court on considering the material placed on record and submissions of the learned counsel for the petitioner and learned Government Pleader came to the conclusion that there is no material placed before the Court or nothing has been pointed out to show that there is any irregularity or perversity in the order passed by the Courts below. At the time of addressing the arguments learned counsel for the petitioner fairly submitted that there may not be much on merits but the petitioner-accused deserves to be considered for reformation and Admonition and given the benefit under the Probation of Offenders Act as the offence committed is the first time offence.\n 12. In this view of the matter, it is important to see whether the provisions of Karnataka Excise Act, most specifically Sections 32 and 34 provides for any discretion to this Court to award either lesser sentence of punishment or to grant benefit under the Probation of Offenders Act.\n 13. In view of the above, it is necessary to extract Section 32.\n Section 32 of Karnataka Excise Act reads as under; \"32. Penalty for illegal import, etc.- (1) Whoever, in contravention of this Act, or any rule, notification or order, made, issued or given thereunder, or of any licence or permit granted under this Act, imports, exports, transports, manufactures, collects or possesses any intoxicant, shall, on conviction, 1[be punished for each offence with rigorous imprisonment for a term which may extend to 2[five years and with fine which may extend to fifty thousand rupees.]] 1[Provided that the punishment,- (i) for the first offence shall be not less than 2[one year rigorous imprisonment and fine of not less than ten thousand rupees]2; and (ii) for the second and subsequent offences shall be not less than 2[two years rigorous imprisonment and fine of not less than twenty thousand rupees] for each such offence.\"\n 14. Section 34 of Karnataka Excise Act reads as under; 34. Penalty for illegal possession.- Whoever, without lawful authority has in his possession any quantity of any intoxicant knowing the same to have been unlawfully imported, transported, manufactured, cultivated or collected, or knowing the prescribed duty not to have been paid thereon, shall, on conviction, be punished with imprisonment for a term which may extend to 2[four years and with fine which may extend to fifty thousand rupees.] 3[Provided that the punishment,- (i) for the first offence shall be not less than 4[one year imprisonment and fine of rupees ten thousand]; and (ii) for the second and subsequent offences shall be not less than imprisonment for 5[two years and fine of not less than rupees twenty thousand], for each such offence: Provided further that the fine inflicted, shall not be less than four times the amount of duty leviable on such intoxicant.] 15. On going through the provisions stated above, the legislature has prescribed the punishment for an offence under the Section 32 as imprisonment for a term which extend to five years and fine which may extend to fifty thousand rupees. The proviso (1) reads that for the first offence shall be not less than one year rigorous imprisonment and fine of not less than Rs.10,000/-. So also under Section 34 , the proviso (i) for the first offence shall be not less than one year imprisonment and fine of Rs.10,000/-.\n 16. In the present case, the petitioner has been awarded sentence of one year rigorous imprisonment and fine of Rs.10,000/-. On careful perusal of the judgment of the Hon'ble Supreme Court in the case of Ratan Lal Arora stated supra, the Hon'ble Apex Court while dealing with the applicability of provisions of Probation of Offenders Act and Section 360 of Cr.P.C. has held at para 12 of the judgment which is extracted below: \"12. That apart Section 7 as well as Section 13 of the Act provide for a minimum sentence of six months and one year respectively in addition to the maximum sentences as well as imposition of fine. Section 28 further stipulates that the provisions of the Act shall be in addition to and not in derogation of any other law for the time being in force. In the case of Superintendent Central Excise, Bangalore vs Bahubali, (AIR 1979 SC 1271), while dealing with Rule 126-P (2) (ii) of the Defence of India Rules which prescribed a minimum sentence and Section 43 of the Defence of India Act, 1962 almost similar to the purport enshrined in Section 28 of the Act in the context of a claim for granting relief under the Probation Act, this Court observed that in cases where a specific enactment, enacted after the Probation Act prescribes a minimum sentence of imprisonment, the provisions of Probation Act cannot be invoked if the special Act contains any provision to enforce the same without reference to any other Act containing a provision, in derogation of the special enactment, there is no scope for extending the benefit of the Probation Act to the accused. Unlike, the provisions contained in Section 5(2) proviso of the Old Act providing for imposition of a sentence lesser than the minimum sentence of one year therein for any \"special reasons\" to be recorded in writing, the Act did not carry any such power to enable the Court concerned to show any leniency below the minimum sentence stipulated. Consequently, the learned Single Judge in the High Court committed a grave error of law in extending the benefit of probation even under the Code. At the same time we may observe that though the reasons assigned by the High Court to extend the benefits of probation may not be relevant, proper or special reasons for going below the minimum sentence prescribed - which in any event is wholly impermissible, as held supra, we take them into account to confine the sentence of imprisonment to the minimum of six months under Section 7 and minimum of one year under Section 13(2) of the Act, both the sentences to run concurrently. So far as the levy of fine in addition made by the learned Trial Judge with a default clause on two separate courts are concerned, they shall remain unaffected and are hereby confirmed.\n The appeal shall stand allowed.\"\n 17. In the said judgment the Hon'ble Apex Court has held that the learned single Judge in the trial Court committed a grave error in law in extending the benefit of Probation even under the Code. The Court further held that in the case where a specific enactment is enacted after the Probation Act prescribes a minimum sentence of imprisonment, the provisions of Probation of Offenders act cannot be invoked if the special act contains any provisions to enforce the same without reference to any other act containing a provision, in derogation of the special enactment, there is no scope for extending the benefit of the Probation of Offenders Act to the accused.\n 18. It is relevant to note that the provisions of Offenders Act are of the year 1958 and the Karnataka Excise Act is of the year 1965.\nFurther the Apex Court has held that in view of the minimum sentence prescribed in Sections 7 and 13 of the Act (Prevention of Corruption Act), the provisions of Section 28 thereof and the fact that unlike the provisions contained in Section 5(2) proviso of the old act, the act did not carry any such power to enable the Court to show any leniency below the minimum sentence stipulated, it is held that the High Court committed a grave error of law in extending the benefit of probation even under Criminal Procedure Code.\n 19. In the case of Mohd. Hashim stated supra, the Hon'ble Apex Court again considered the issue with regard to release of accused under Probation of Offenders Act. In the said case also, the accused had sought for benefit under Section 4 of Probation of Offenders Act which was extended in favour of accused when it was challenged, the High Court concurred with the opinion expressed by the learned Sessions Judge. The issue before the Hon'ble Apex Court was whether the approach of the learned Sessions Judge and concurred by the High Court was legally sustainable in the said case, the offence related to 498A of IPC and Section 4 of Dowry Prohibition Act,1961.\n 20. The Hon'ble Apex Court while dealing with the said case and relying on the judgment of Ratan Lal Arora case, held that \"We may further elaborate that when the legislature has prescribed minimum sentence without discretion, the same cannot be reduced by the Courts.\" In such cases imposition of minimum sentence be imprisonment or fine is mandatory and leaves no discretion to the Court however, sometimes, the legislature prescribes a minimum sentence and grants discretion and Courts for reasons to be recorded in writing may award lesser sentence or not award a sentence of imprisonment such discretion includes the discretion not to send the accused to prison. Minimum sentence means a sentence which must be imposed without leaving any discretion to the Court not to award minimum sentence cannot be equated with provisions which prescribe a minimum sentence.\nThe two provisions therefore are not identical and have different implications which should be recognized and accepted in the probation of offenders Act. Thereafter, finally, the Hon'ble Apex Court held that \"we have made it clear that there is no minimum sentence and hence, the provisions of Probation of Offenders Act would apply. We have also opined that the Court has to be guided by the provision of Probation of Offenders Act and the precedents of this Court.\"\n 21. The similar view was taken thereafter in the case of State of Madhya Pradesh Vs. Vikram Das stated supra wherein the Apex Court relying on the earlier two judgments stated herein held at para 8 that \" In view of aforesaid judgments that where minimum sentence is provided, the Court cannot impose less than the minimum sentence. It also held that provisions of Article 142 of the Constitution cannot be resorted to impose sentence less than the minimum sentence.\" Therefore the appeal before the Hon'ble Apex Court was allowed and the accused was directed to undergo sentence imposed by the trial Court for an offence under Section 3(1)(ii) of the SC/ST Prevention of Atrocities Act.\n 22. In view of the judgments of the Hon'ble Apex Court and the clear implication of the legislature prescribing minimum sentence of one year rigorous imprisonment and fine of Rs.10,000/- and the law laid down by the Hon'ble Apex Court, there is no discretion vested in this Court to provide the benefit of Probation of Offenders Act to the petitioner.\n 23. Therefore, the argument of the learned counsel for considering release of the petitioner under the Probation of Offenders Act for reformation and admonition cannot be considered in the present facts of the case.\n 24. In view of the Judgment of the Hon'ble Apex Court, no discretion is provided to the Courts and also the legislation by making the law in Sections 32 and 34 of the Karnataka Excise Act, 1965 has not provided any proviso or discretion to award lesser punishment than the minimum sentence imposed. Therefore, when the special enactment does not provide for imposition of lesser punishment than prescribed, the Courts are not vested with discretion to award lesser sentence than the minimum sentence. In such cases Probation of Offenders Act cannot be invoked.\n25. Hence, in view of the same, this petition deserves to be rejected and the Judgment of conviction and order of sentence passed by the trial Court and confirmed by the appellate Court is upheld and confirmed.\n Valuable assistance provided by the learned counsel for the petitioner is placed on record.\n Sd/- JUDGE HMB "
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"start": 0,
"text": "IN THE COURT OF THE CIVIL JUDGE & JMFC., AT\n T.NARASIPURA\n\nPresent: Sri. Abdul Khadar, B.A., LL.B.,\n Civil Judge & JMFC., T.Narasipura."
}
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"text": "\n\nDated this the 21st day of September 2011"
}
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{
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"start": 214,
"text": "\n\nC.C. No: 33/2009\n\nComplainant:"
}
},
{
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"id": "31990af4f288440c8004b0b81044d7a1",
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"text": " State by Excise Sub Inspector"
}
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"start": 353,
"text": "(By Learned A.P.P.)\n V/S\nAccused: Mahadeva @ Madesha, 35 years,\n S/o"
}
},
{
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"start": 505,
"text": "Late Basavaiah, Srirampura"
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{
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"text": "\n colony, Muguru village, T.Narasipura"
}
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{
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"start": 601,
"text": "\n Taluk."
}
},
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"text": "(By Sri.B.S. Advocate)"
}
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{
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"text": "\n\n JUDGMENT"
}
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"end": 922,
"labels": [
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],
"start": 745,
"text": "\n The Excise Sub Inspector, T.Narasipura has submitted charge sheet against the accused for the alleged offences punishable under sections 32 and 34 of the Karnataka Excise Act."
}
},
{
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"end": 1013,
"labels": [
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"start": 922,
"text": "\n 2. The following are the brief and relevant facts leading to the case of the prosecution."
}
},
{
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"id": "1d95625d29094999aec3bb4783f3370b",
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"value": {
"end": 1363,
"labels": [
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],
"start": 1013,
"text": "\n That on 1/05/08 at about 8-30 a.m. within the limits of T.Narasipura Police Station in Muguru village, in the petty shop belongs to accused, he was found in possession of 6 bottles Highway No.1 whiskey containing each 180 ml., 6 bottles Superjack whiskey containing each 180 ml. totally 160 liters in white plastic bag without having valid licence."
}
},
{
"from_name": null,
"id": "69068e4db88145aba0e928ab0c2335f9",
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"type": null,
"value": {
"end": 1515,
"labels": [
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"start": 1364,
"text": "Then the I.O. along with his staff searched the plastic bag and seized the illicit liquors in the presence of punch witnesses under mahazar and 180 ml."
}
},
{
"from_name": null,
"id": "6487277b3e964d4fbbed1d680fdce1fb",
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"value": {
"end": 1556,
"labels": [
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"text": "from each bottle has taken as sample and"
}
},
{
"from_name": null,
"id": "85972b8378c04532824c0ffba90e658a",
"to_name": null,
"type": null,
"value": {
"end": 1703,
"labels": [
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],
"start": 1557,
"text": "C.H.Rangaiah, Excise Sub-Inspector on his self complaint he registered a case in Crime No.22/07-08 for the above said offence against the accused."
}
},
{
"from_name": null,
"id": "0d57f026384d490fbbc6341408e568d3",
"to_name": null,
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"value": {
"end": 1797,
"labels": [
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],
"start": 1704,
"text": "Thereafter, he prepared F.I.R. and sent it to the Court and set the criminal law into motion."
}
},
{
"from_name": null,
"id": "ea28544aa1c34225b2d492525af24893",
"to_name": null,
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"value": {
"end": 1910,
"labels": [
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],
"start": 1797,
"text": "\n 3. During the course of investigation, the accused appeared before this Court and accused was released on bail."
}
},
{
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"id": "4c2c856ac03242718ce1470250e45b11",
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"value": {
"end": 2151,
"labels": [
"FAC"
],
"start": 1911,
"text": "CW 3 C.H.Rangaiah, Excise Sub Inspector sent the sample of Toddy 180 ml. each of 2 bottles to the Divisional Public Analysts-cum-Regional Asst. Chemical Examiner to the Government of Karnataka, Mysore Division, Mysore for chemical analysis."
}
},
{
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"id": "3cd5b70477be4f3da32714d2c7f90cf2",
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"value": {
"end": 2277,
"labels": [
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],
"start": 2152,
"text": "On receipt of the report of the chemical analysis I.O. found sufficient materials against the accused and filed charge sheet."
}
},
{
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"id": "e397488853134ad78eaeffcd1b031500",
"to_name": null,
"type": null,
"value": {
"end": 2529,
"labels": [
"ANALYSIS"
],
"start": 2277,
"text": "\n 4. On hearing both sides and on careful perusal of the charge sheet and investigation papers this Court has taken cognizance of the offence punishable under section 34, of the Karnataka Excise Act against the accused and registered the criminal case."
}
},
{
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"id": "36649955bd064bc19d56c5dadcd98370",
"to_name": null,
"type": null,
"value": {
"end": 2718,
"labels": [
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],
"start": 2529,
"text": "\n 5. After filing charge sheet this Court has issued summons for the appearance of the accused, after service of summons the accused appeared through his counsel and he is enlarged on bail."
}
},
{
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"id": "d9dc7f53a6c84a84ba2467a88ee05bdf",
"to_name": null,
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"value": {
"end": 2876,
"labels": [
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],
"start": 2718,
"text": "\nAfter securing the presence of the accused charge sheet and other investigation papers have been furnished to the accused as contemplated U/s. 207 of Cr.P.C."
}
},
{
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"id": "94480a4e52f04f1683a2f1b8bd1f361d",
"to_name": null,
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"value": {
"end": 3044,
"labels": [
"ANALYSIS"
],
"start": 2876,
"text": "\n 6. After securing the presence of the accused on hearing both sides charge U/s 34 of the Karnataka Excise Act has been framed, read over and explained to the accused."
}
},
{
"from_name": null,
"id": "8a3833f1722543fa843c3cdee414f215",
"to_name": null,
"type": null,
"value": {
"end": 3099,
"labels": [
"ANALYSIS"
],
"start": 3045,
"text": "The accused pleaded not guilty and claims to be tried."
}
},
{
"from_name": null,
"id": "0a062a09bea5499db4502aec57dd9660",
"to_name": null,
"type": null,
"value": {
"end": 3178,
"labels": [
"ANALYSIS"
],
"start": 3100,
"text": "Hence, case has been posted for recording of evidence of the prosecution side."
}
},
{
"from_name": null,
"id": "bb32c41d762d4b3bb2d1b3f85e9a9c07",
"to_name": null,
"type": null,
"value": {
"end": 3392,
"labels": [
"ANALYSIS"
],
"start": 3178,
"text": "\n 7. In order to substantiate the case made out by the prosecution it has examined as many as 2 witnesses as PW 1 and PW2 and got marked 2 documents as Ex.P.1 and P2 and their respective signatures and M.O.1 and 2."
}
},
{
"from_name": null,
"id": "b7a9fad017594b498161d28c6b4f5ae0",
"to_name": null,
"type": null,
"value": {
"end": 3659,
"labels": [
"NONE"
],
"start": 3392,
"text": "\n 8. Thereafter, after securing the presence of the accused statement of the accused U/s. 313 of Cr.P.C. has been recorded after providing an opportunity to the accused to explain the incriminating circumstances appearing in the evidence of the prosecution witnesses."
}
},
{
"from_name": null,
"id": "83efd20da9e247c2af60a5d864a7871c",
"to_name": null,
"type": null,
"value": {
"end": 3684,
"labels": [
"NONE"
],
"start": 3660,
"text": "No defence evidence led."
}
},
{
"from_name": null,
"id": "d9f3ea50261d4018a93107cb8d51cc8b",
"to_name": null,
"type": null,
"value": {
"end": 3791,
"labels": [
"NONE"
],
"start": 3685,
"text": "The accused denied the prosecution case in toto and his complicity in the commission of the alleged crime."
}
},
{
"from_name": null,
"id": "7bc9b37c5a6041b08ac72ddef11e1dfd",
"to_name": null,
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"value": {
"end": 3829,
"labels": [
"ANALYSIS"
],
"start": 3791,
"text": "\n 9. Heard the argument on both sides."
}
},
{
"from_name": null,
"id": "a8b5239b2fe84fc8af59fc5c0c19e1e0",
"to_name": null,
"type": null,
"value": {
"end": 3869,
"labels": [
"ANALYSIS"
],
"start": 3830,
"text": "Perused the materials placed on record."
}
},
{
"from_name": null,
"id": "1420643ce9bd4f518256666022f8e5fd",
"to_name": null,
"type": null,
"value": {
"end": 4322,
"labels": [
"ISSUE"
],
"start": 3871,
"text": "10. On the basis of the materials placed on record the only point that would arises for my consideration is: 1. Whether the prosecution proves beyond all-reasonable doubt that, on 1/05/08 at about 8-30 a.m. within the limits of T.Narasipura Police Station in Muguru village, in the petty shop belongs to accused, he was found in possession of 6 bottles Highway No.1 whiskey containing each 180 ml., 6 bottles Super jack whiskey containing each 180 ml."
}
},
{
"from_name": null,
"id": "14b23dad5e354c2683d2f35d2b2245c5",
"to_name": null,
"type": null,
"value": {
"end": 4485,
"labels": [
"ISSUE"
],
"start": 4323,
"text": "totally 160 liters in white plastic bag without lawful authority and thereby the accused has committed the offence punishable u/s. 34 of the Karnataka Excise Act?"
}
},
{
"from_name": null,
"id": "db2183b1fb5a4dbaa747a44355e8996b",
"to_name": null,
"type": null,
"value": {
"end": 4513,
"labels": [
"ISSUE"
],
"start": 4485,
"text": "\n 2. What order or sentence?"
}
},
{
"from_name": null,
"id": "784cf001209849a2bfaa39be13336b39",
"to_name": null,
"type": null,
"value": {
"end": 4662,
"labels": [
"ANALYSIS"
],
"start": 4513,
"text": "\n 11. On careful perusal of the materials and evidence both oral and documentary on record my findings to the above points are as follows: Point No.1"
}
},
{
"from_name": null,
"id": "7eadebdccedc46caa061dde2b6b03a96",
"to_name": null,
"type": null,
"value": {
"end": 4689,
"labels": [
"ANALYSIS"
],
"start": 4663,
"text": "In the negative Point No.2"
}
},
{
"from_name": null,
"id": "97833cdfc65f4c9890c0bd0d11d771d5",
"to_name": null,
"type": null,
"value": {
"end": 4751,
"labels": [
"ANALYSIS"
],
"start": 4690,
"text": "As per the final order for the following: REASONS Point No.1 "
}
},
{
"from_name": null,
"id": "70e107eaf9274912976680a53cbfe4a3",
"to_name": null,
"type": null,
"value": {
"end": 4907,
"labels": [
"NONE"
],
"start": 4751,
"text": ": 12. Let me analyze how for the prosecution is successful in proving the guilt of the accused to the hilt with extent of the oral and documentary evidence."
}
},
{
"from_name": null,
"id": "5bf98f1cce78443e819efe503bd32e1b",
"to_name": null,
"type": null,
"value": {
"end": 5127,
"labels": [
"ANALYSIS"
],
"start": 4908,
"text": "In the instance case, PW1 Shivakumar is the Excise guard and PW2 C.H.Rangaiah is the Excise Inspector are conducted raid along with Sectoral magistrate and they are the signatories of spot and seizure mahazar witnesses."
}
},
{
"from_name": null,
"id": "1ed33c67a2b3410ba2430f7ec4ec15ae",
"to_name": null,
"type": null,
"value": {
"end": 5142,
"labels": [
"ANALYSIS"
],
"start": 5127,
"text": "\n 13. PW1 and 2"
}
},
{
"from_name": null,
"id": "a3a3b450b0654e8fb0f76563a5330ba3",
"to_name": null,
"type": null,
"value": {
"end": 5360,
"labels": [
"ANALYSIS"
],
"start": 5143,
"text": "in their chief examination has deposed that they along with Sectoral Magistrate and punch witnesses were patrolling at Mugur Bus stand, Srirampura colony, in a petty shop belongs to accused was selling illicit liquor."
}
},
{
"from_name": null,
"id": "afbd13e3ba2f476caa661617c852e82b",
"to_name": null,
"type": null,
"value": {
"end": 5544,
"labels": [
"ANALYSIS"
],
"start": 5361,
"text": "Then they searched and they found 6 bottles Highway No.1 whiskey containing each 180 ml., 6 bottles Super jack whiskey containing each 180 ml. totally 160 liters in white plastic bag."
}
},
{
"from_name": null,
"id": "0502dc26e5804ca68bce4300b2503c8e",
"to_name": null,
"type": null,
"value": {
"end": 5597,
"labels": [
"ANALYSIS"
],
"start": 5545,
"text": "He was not having valid licence to possess the same."
}
},
{
"from_name": null,
"id": "80d9efbd64714c7090f64b5315abe223",
"to_name": null,
"type": null,
"value": {
"end": 5747,
"labels": [
"ANALYSIS"
],
"start": 5598,
"text": "On seeing them the accused ran away and on enquiry the villagers told that the name of the accused as Mahadeva and the petty shop belongs to accused."
}
},
{
"from_name": null,
"id": "c8dd0161a1a14cb7b16e09cb4c7ff3f3",
"to_name": null,
"type": null,
"value": {
"end": 6195,
"labels": [
"ANALYSIS"
],
"start": 5748,
"text": "Then PW2 seized illicit liquor in the presence of punch witnesses under mahazar as per Ex.P1 and 180 ml. from each bottle has taken as sample bottles and the accused was not having lawful authority and they seized M.O.1 and 2 under mahazar as per Ex.P1 and sample seal as per Ex.P2 and prepared FIR as per Ex.P5 and sent requisition letter as per Ex.P3 and received report as per Ex.P4 and after completion of investigation PW2 filed charge sheet."
}
},
{
"from_name": null,
"id": "7fd89f927572492281a00263130b340e",
"to_name": null,
"type": null,
"value": {
"end": 6303,
"labels": [
"ANALYSIS"
],
"start": 6196,
"text": "In their cross-examination they have denied all the questions posed by the learned counsel for the accused."
}
},
{
"from_name": null,
"id": "8e5b37d357d14b79bd6ea8aa7f7371e2",
"to_name": null,
"type": null,
"value": {
"end": 6434,
"labels": [
"ANALYSIS"
],
"start": 6304,
"text": "He has stated that Sectoral magistrate has not put his signature to Ex.P1 and they have denied that M.O.1 and 2 are empty bottles."
}
},
{
"from_name": null,
"id": "ce06a29163dc409498404973545394f0",
"to_name": null,
"type": null,
"value": {
"end": 6593,
"labels": [
"ANALYSIS"
],
"start": 6435,
"text": "Moreover they do not know the boundaries of the place of occurrence and further the I.O. not enquired the independent witnesses who were presence in the spot."
}
},
{
"from_name": null,
"id": "390365c201fa48f787c8a97b59858fd4",
"to_name": null,
"type": null,
"value": {
"end": 6792,
"labels": [
"ANALYSIS"
],
"start": 6595,
"text": "14. Further the prosecution given up C.W.2 and the learned Assistant Public Prosecutor has prayed to issue summons to CW2 and the prayer made by the learned Assistant Public Prosecutor is rejected."
}
},
{
"from_name": null,
"id": "fd32747f62ae47599ede6f5b641dbe7a",
"to_name": null,
"type": null,
"value": {
"end": 6998,
"labels": [
"ANALYSIS"
],
"start": 6793,
"text": "Therefore, without the corroborative evidence of complainant, independent eye-witnesses and punch witnesses, evidence of excise official witnesses cannot be taken into consideration to convict the accused."
}
},
{
"from_name": null,
"id": "1329130360c74ec9b0e66d3c2e5c20c0",
"to_name": null,
"type": null,
"value": {
"end": 7113,
"labels": [
"ANALYSIS"
],
"start": 6998,
"text": "\n 15. Now there arises a doubt about the sample illicit liquor bottles, which has been allegedly seized by the I.O."
}
},
{
"from_name": null,
"id": "6287587983964002a761ede7772daa94",
"to_name": null,
"type": null,
"value": {
"end": 7199,
"labels": [
"ANALYSIS"
],
"start": 7114,
"text": "The very same sample illicit liquor bottles which has been sent to chemical analysis."
}
},
{
"from_name": null,
"id": "b7ae530749424c7cbba0b4e0fccc4d9f",
"to_name": null,
"type": null,
"value": {
"end": 7355,
"labels": [
"ANALYSIS"
],
"start": 7199,
"text": "\nTherefore, whatever may be the report of the Forensic Laboratory with regard to the alcohol contents of the said bottles, which is irrelevant to this case."
}
},
{
"from_name": null,
"id": "d8162f1f41a94488a52f9fec8ba29833",
"to_name": null,
"type": null,
"value": {
"end": 7484,
"labels": [
"ANALYSIS"
],
"start": 7356,
"text": "Therefore, the contents of report of the Forensic Laboratory is of no consequence to prove the guilt of the accused to the hilt."
}
},
{
"from_name": null,
"id": "c25da38b72174a3fa01362ccc406ed63",
"to_name": null,
"type": null,
"value": {
"end": 7779,
"labels": [
"RATIO"
],
"start": 7484,
"text": "\n 16. On Scrupulous reading of the entire evidence adduced by prosecution this Court is of the opinion that the prosecution has utterly failed to prove the guilt of the accused beyond all reasonable doubt and always benefit of doubt is to be given to the accused, accordingly, it has been given."
}
},
{
"from_name": null,
"id": "bf828601c55644118e7df2e933174fd8",
"to_name": null,
"type": null,
"value": {
"end": 7820,
"labels": [
"RPC"
],
"start": 7780,
"text": "Hence, accused deserves to be acquitted."
}
},
{
"from_name": null,
"id": "7baff7db14f847d1a501ec85afbd01d9",
"to_name": null,
"type": null,
"value": {
"end": 7864,
"labels": [
"RPC"
],
"start": 7821,
"text": "Hence I answer Point No. 1 in the negative."
}
},
{
"from_name": null,
"id": "81b5c65d20f24a56a33eb7b2add464c9",
"to_name": null,
"type": null,
"value": {
"end": 7881,
"labels": [
"NONE"
],
"start": 7864,
"text": "\n 17. Point No.2:"
}
},
{
"from_name": null,
"id": "5f0ab4286849439ea0e63328cbe298b0",
"to_name": null,
"type": null,
"value": {
"end": 7997,
"labels": [
"NONE"
],
"start": 7882,
"text": "In view of my above discussion and the reasons stated therein on Point No.1, I proceed to pass the following: ORDER"
}
},
{
"from_name": null,
"id": "8ef2af88e22b4d88ab9eab4a24c003ba",
"to_name": null,
"type": null,
"value": {
"end": 8004,
"labels": [
"RPC"
],
"start": 7998,
"text": "Acting"
}
},
{
"from_name": null,
"id": "c2a036d5380342e691405bb34a2f0250",
"to_name": null,
"type": null,
"value": {
"end": 8121,
"labels": [
"RPC"
],
"start": 8005,
"text": "U/s. 248(1) of Cr.P.C. accused is hereby acquitted for the offence punishable u/sec. 34 of the Karnataka Excise Act."
}
},
{
"from_name": null,
"id": "d9cbb82b4d134c36bf821cc064247b12",
"to_name": null,
"type": null,
"value": {
"end": 8156,
"labels": [
"RPC"
],
"start": 8121,
"text": "\n Accused is hereby set at liberty."
}
},
{
"from_name": null,
"id": "87136bd029ba463cad2e6c578cd934f0",
"to_name": null,
"type": null,
"value": {
"end": 8277,
"labels": [
"RPC"
],
"start": 8156,
"text": "\n M.O.1 and 2 are ordered to be returned to the I.O. for disposal in accordance with law, under intimation of this Court."
}
},
{
"from_name": null,
"id": "fbfb29a68d6b4c7db006095dfa87930b",
"to_name": null,
"type": null,
"value": {
"end": 8396,
"labels": [
"RPC"
],
"start": 8279,
"text": "His bail bond and surety bond shall be in force for 6 months in view of amended provision under Sec.437(A) of Cr.P.C."
}
},
{
"from_name": null,
"id": "e134c372d9614b40800aaa799547b20a",
"to_name": null,
"type": null,
"value": {
"end": 8538,
"labels": [
"NONE"
],
"start": 8396,
"text": "\n (Dictated to the stenographer, transcribed by her, corrected and then pronounced by me in the open court on this 21st day of September 2011)"
}
},
{
"from_name": null,
"id": "d893b473a5044cafa2a8afb96c048709",
"to_name": null,
"type": null,
"value": {
"end": 8590,
"labels": [
"NONE"
],
"start": 8539,
"text": "( Abdul Khadar ) Civil Judge & JMFC., T.Narasipura."
}
},
{
"from_name": null,
"id": "f78a8a7069eb44a89cb4ddc733332d88",
"to_name": null,
"type": null,
"value": {
"end": 8766,
"labels": [
"NONE"
],
"start": 8592,
"text": "ANNEXURE List of witnesses examined on behalf of prosecution.\n PW1 Shivakumar PW2 C.H.Rangaiah List of documents exhibited on behalf of prosecution.\n Ex"
}
},
{
"from_name": null,
"id": "022d09ec7d244d84b384bb99ba9a717c",
"to_name": null,
"type": null,
"value": {
"end": 8818,
"labels": [
"NONE"
],
"start": 8766,
"text": ".P1 Mahazar ExP1(a)& (b) Signatures Ex.P2"
}
},
{
"from_name": null,
"id": "c941d1a3d2ac413db46debcded3040f4",
"to_name": null,
"type": null,
"value": {
"end": 8879,
"labels": [
"NONE"
],
"start": 8828,
"text": "Copy of sample seal Ex.P2(a)&(b) Signatures Ex.P3"
}
},
{
"from_name": null,
"id": "5047dc095f4b419fa9cb58f15985ddc1",
"to_name": null,
"type": null,
"value": {
"end": 9069,
"labels": [
"NONE"
],
"start": 8880,
"text": " Requisition letter sent to FSL Ex.P3(a)to(c) Signatures Ex.P4 FSL Report Ex.P5 FIR Ex.P5(a) Signature List of documents exhibited on behalf of prosecution."
}
},
{
"from_name": null,
"id": "aed21e9068504ef99ecd3d8d7953b6e4",
"to_name": null,
"type": null,
"value": {
"end": 9098,
"labels": [
"NONE"
],
"start": 9071,
"text": "M.Os.1 and 2 Sample bottles"
}
},
{
"from_name": null,
"id": "38d5305eccaa42cf8d5536d8dfaa7307",
"to_name": null,
"type": null,
"value": {
"end": 9190,
"labels": [
"NONE"
],
"start": 9099,
"text": "List of documents exhibited on behalf of accused - Nil - Civil Judge & JMFC., T.Narasipura."
}
}
]
}
] | 13,658 | {
"text": "IN THE COURT OF THE CIVIL JUDGE & JMFC., AT\n T.NARASIPURA\n\nPresent: Sri. Abdul Khadar, B.A., LL.B.,\n Civil Judge & JMFC., T.Narasipura.\n\nDated this the 21st day of September 2011\n\nC.C. No: 33/2009\n\nComplainant: State by Excise Sub Inspector\n (By Learned A.P.P.)\n V/S\nAccused: Mahadeva @ Madesha, 35 years,\n S/o Late Basavaiah, Srirampura\n colony, Muguru village, T.Narasipura\n Taluk.\n\n (By Sri.B.S. Advocate)\n\n JUDGMENT\n The Excise Sub Inspector, T.Narasipura has submitted charge sheet against the accused for the alleged offences punishable under sections 32 and 34 of the Karnataka Excise Act.\n 2. The following are the brief and relevant facts leading to the case of the prosecution.\n That on 1/05/08 at about 8-30 a.m. within the limits of T.Narasipura Police Station in Muguru village, in the petty shop belongs to accused, he was found in possession of 6 bottles Highway No.1 whiskey containing each 180 ml., 6 bottles Superjack whiskey containing each 180 ml. totally 160 liters in white plastic bag without having valid licence. Then the I.O. along with his staff searched the plastic bag and seized the illicit liquors in the presence of punch witnesses under mahazar and 180 ml. from each bottle has taken as sample and C.H.Rangaiah, Excise Sub-Inspector on his self complaint he registered a case in Crime No.22/07-08 for the above said offence against the accused. Thereafter, he prepared F.I.R. and sent it to the Court and set the criminal law into motion.\n 3. During the course of investigation, the accused appeared before this Court and accused was released on bail. CW 3 C.H.Rangaiah, Excise Sub Inspector sent the sample of Toddy 180 ml. each of 2 bottles to the Divisional Public Analysts-cum-Regional Asst. Chemical Examiner to the Government of Karnataka, Mysore Division, Mysore for chemical analysis. On receipt of the report of the chemical analysis I.O. found sufficient materials against the accused and filed charge sheet.\n 4. On hearing both sides and on careful perusal of the charge sheet and investigation papers this Court has taken cognizance of the offence punishable under section 34, of the Karnataka Excise Act against the accused and registered the criminal case.\n 5. After filing charge sheet this Court has issued summons for the appearance of the accused, after service of summons the accused appeared through his counsel and he is enlarged on bail.\nAfter securing the presence of the accused charge sheet and other investigation papers have been furnished to the accused as contemplated U/s. 207 of Cr.P.C.\n 6. After securing the presence of the accused on hearing both sides charge U/s 34 of the Karnataka Excise Act has been framed, read over and explained to the accused. The accused pleaded not guilty and claims to be tried. Hence, case has been posted for recording of evidence of the prosecution side.\n 7. In order to substantiate the case made out by the prosecution it has examined as many as 2 witnesses as PW 1 and PW2 and got marked 2 documents as Ex.P.1 and P2 and their respective signatures and M.O.1 and 2.\n 8. Thereafter, after securing the presence of the accused statement of the accused U/s. 313 of Cr.P.C. has been recorded after providing an opportunity to the accused to explain the incriminating circumstances appearing in the evidence of the prosecution witnesses. No defence evidence led. The accused denied the prosecution case in toto and his complicity in the commission of the alleged crime.\n 9. Heard the argument on both sides. Perused the materials placed on record.\n 10. On the basis of the materials placed on record the only point that would arises for my consideration is: 1. Whether the prosecution proves beyond all-reasonable doubt that, on 1/05/08 at about 8-30 a.m. within the limits of T.Narasipura Police Station in Muguru village, in the petty shop belongs to accused, he was found in possession of 6 bottles Highway No.1 whiskey containing each 180 ml., 6 bottles Super jack whiskey containing each 180 ml. totally 160 liters in white plastic bag without lawful authority and thereby the accused has committed the offence punishable u/s. 34 of the Karnataka Excise Act?\n 2. What order or sentence?\n 11. On careful perusal of the materials and evidence both oral and documentary on record my findings to the above points are as follows: Point No.1 In the negative Point No.2 As per the final order for the following: REASONS Point No.1 : 12. Let me analyze how for the prosecution is successful in proving the guilt of the accused to the hilt with extent of the oral and documentary evidence. In the instance case, PW1 Shivakumar is the Excise guard and PW2 C.H.Rangaiah is the Excise Inspector are conducted raid along with Sectoral magistrate and they are the signatories of spot and seizure mahazar witnesses.\n 13. PW1 and 2 in their chief examination has deposed that they along with Sectoral Magistrate and punch witnesses were patrolling at Mugur Bus stand, Srirampura colony, in a petty shop belongs to accused was selling illicit liquor. Then they searched and they found 6 bottles Highway No.1 whiskey containing each 180 ml., 6 bottles Super jack whiskey containing each 180 ml. totally 160 liters in white plastic bag. He was not having valid licence to possess the same. On seeing them the accused ran away and on enquiry the villagers told that the name of the accused as Mahadeva and the petty shop belongs to accused. Then PW2 seized illicit liquor in the presence of punch witnesses under mahazar as per Ex.P1 and 180 ml. from each bottle has taken as sample bottles and the accused was not having lawful authority and they seized M.O.1 and 2 under mahazar as per Ex.P1 and sample seal as per Ex.P2 and prepared FIR as per Ex.P5 and sent requisition letter as per Ex.P3 and received report as per Ex.P4 and after completion of investigation PW2 filed charge sheet. In their cross-examination they have denied all the questions posed by the learned counsel for the accused. He has stated that Sectoral magistrate has not put his signature to Ex.P1 and they have denied that M.O.1 and 2 are empty bottles. Moreover they do not know the boundaries of the place of occurrence and further the I.O. not enquired the independent witnesses who were presence in the spot.\n 14. Further the prosecution given up C.W.2 and the learned Assistant Public Prosecutor has prayed to issue summons to CW2 and the prayer made by the learned Assistant Public Prosecutor is rejected. Therefore, without the corroborative evidence of complainant, independent eye-witnesses and punch witnesses, evidence of excise official witnesses cannot be taken into consideration to convict the accused.\n 15. Now there arises a doubt about the sample illicit liquor bottles, which has been allegedly seized by the I.O. The very same sample illicit liquor bottles which has been sent to chemical analysis.\nTherefore, whatever may be the report of the Forensic Laboratory with regard to the alcohol contents of the said bottles, which is irrelevant to this case. Therefore, the contents of report of the Forensic Laboratory is of no consequence to prove the guilt of the accused to the hilt.\n 16. On Scrupulous reading of the entire evidence adduced by prosecution this Court is of the opinion that the prosecution has utterly failed to prove the guilt of the accused beyond all reasonable doubt and always benefit of doubt is to be given to the accused, accordingly, it has been given. Hence, accused deserves to be acquitted. Hence I answer Point No. 1 in the negative.\n 17. Point No.2: In view of my above discussion and the reasons stated therein on Point No.1, I proceed to pass the following: ORDER Acting U/s. 248(1) of Cr.P.C. accused is hereby acquitted for the offence punishable u/sec. 34 of the Karnataka Excise Act.\n Accused is hereby set at liberty.\n M.O.1 and 2 are ordered to be returned to the I.O. for disposal in accordance with law, under intimation of this Court.\n His bail bond and surety bond shall be in force for 6 months in view of amended provision under Sec.437(A) of Cr.P.C.\n (Dictated to the stenographer, transcribed by her, corrected and then pronounced by me in the open court on this 21st day of September 2011) ( Abdul Khadar ) Civil Judge & JMFC., T.Narasipura.\n ANNEXURE List of witnesses examined on behalf of prosecution.\n PW1 Shivakumar PW2 C.H.Rangaiah List of documents exhibited on behalf of prosecution.\n Ex.P1 Mahazar ExP1(a)& (b) Signatures Ex.P2 Copy of sample seal Ex.P2(a)&(b) Signatures Ex.P3 Requisition letter sent to FSL Ex.P3(a)to(c) Signatures Ex.P4 FSL Report Ex.P5 FIR Ex.P5(a) Signature List of documents exhibited on behalf of prosecution.\n M.Os.1 and 2 Sample bottles List of documents exhibited on behalf of accused - Nil - Civil Judge & JMFC., T.Narasipura.\n "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "6fd371b44d1d482aa963afdc2d2ca2aa",
"to_name": null,
"type": null,
"value": {
"end": 98,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nCOMMISSIONER OF INCOME-TAX\n\n Vs.\n\nRESPONDENT:\nPATEL BROTHERS & CO. LTD, ETC. ETC."
}
},
{
"from_name": null,
"id": "a3fcfd561b9549a7bd6e5a205025608d",
"to_name": null,
"type": null,
"value": {
"end": 126,
"labels": [
"PREAMBLE"
],
"start": 98,
"text": "\n\nDATE OF JUDGMENT09/05/1995"
}
},
{
"from_name": null,
"id": "7a94b2184ba74417a2df937575e0cbb1",
"to_name": null,
"type": null,
"value": {
"end": 360,
"labels": [
"PREAMBLE"
],
"start": 128,
"text": "BENCH:\nVERMA, JAGDISH SARAN (J)\nBENCH:\nVERMA, JAGDISH SARAN (J)\nSINGH N.P. (J)\nMUKHERJEE M.K. (J)\n\nCITATION: 1995 SCC (4) 485\n 1995 AIR 1829 1995 SCALE (3)650\n JT 1995 (5) 364\n\nACT:\n\nHEADNOTE:\n\nJUDGMENT:"
}
},
{
"from_name": null,
"id": "c20dce1303b24a9b95f877d553958078",
"to_name": null,
"type": null,
"value": {
"end": 721,
"labels": [
"NONE"
],
"start": 360,
"text": "\n THE 9TH DAY OF MAY,1995 Present: Hon'ble Mr.Justice J.S.Verma Hon'ble Mr.Justice N.P.Singh Hon'ble Mr.Justice M.K.Mukherjee Mr.B.B.Ahuja, Sr. Adv. Mr.B.S.Ahuja, Ms.A.Subhashini, Mrs.A.K.Verma, Mr.A.Subba Rao, Mr.S.K.Mehta, Mr.Dhruv Mehta, Mr.K.R.Nagaraja, Mr.M.G.Ramachandran, Mr.S.C.Patel, and Ms.Janki Ramachandran, Advs. with him for the appearing parties."
}
},
{
"from_name": null,
"id": "95e43db4c160480c9786e6e64dda810c",
"to_name": null,
"type": null,
"value": {
"end": 738,
"labels": [
"NONE"
],
"start": 721,
"text": "\n J U D G M E N T"
}
},
{
"from_name": null,
"id": "ad1b8fe1b4a3482cb2ea95f6c2424216",
"to_name": null,
"type": null,
"value": {
"end": 1900,
"labels": [
"NONE"
],
"start": 739,
"text": "The following Judgment of the Court was delivered: IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 1455-57 OF 1976 Commissioner of Income-tax .... Appellant vs.\n Patel Brothers & Co. Ltd. .... Respondent [WITH S.L.P.(c) Nos. 1804-1805, 4257 of 1977, C.A. Nos. 6142 of 1990, 1075-1078 of 1976, S.L.P.(c) No. 1374 of 1977, C.A.\n No. 872 of 1976, S.L.P. (c) Nos. 1385 of 1977, 8865 of 1979, Tax Ref. Case Nos. 4-6 of 1979, S.L.P. (c) No.655 of 1977, C.A.No.5662 of 1995 (@ S.L.P.(c) No. 9255 of 1981), 12475 of 1985, C.A. No.2116 of 1977, C.A.No.5663 of 1995 (@ S.L.P.\n (c) No. 2318 of 1979), C.A. Nos.33, 34-35, 36, 37, 38-39, 40, 41, 42, 43-44, 45 of 1978, 698 of 1977, S.L.P. (c) No.\n 478 of 1981, C.A.Nos.1322 of 1978, 3433-34 of 1991, 1850 of 1975, 831, 832, 1585-88, 2436, 1077, 1075-76, 1079, 1092, 1103-04, 1120 of 1977, 118 of 1984, 6137 of 1990, S.L.P.(c) No. 745 of 1978, C.A. Nos. 2519 of 1980, 1746 of 1984, Tax Ref. Case No. 3 of 1979, C.A. No.2900 of 1977, S.L.P.(c) No.\n 8357 of 1983, and C.A. Nos. 2397-98 of 1977, 1581-82 of 1977, and Tax Ref. Case No. 4 of 1977].\n JUDGMENT J.S.VERMA.J.:"
}
},
{
"from_name": null,
"id": "44e64d75a0bd455897672a09d252d5b4",
"to_name": null,
"type": null,
"value": {
"end": 2166,
"labels": [
"ANALYSIS"
],
"start": 1901,
"text": "These appeals and the connected matters involve for decision the common question of law relating to the meaning of \"entertainment expenditure\" in Section 37(2A) of the Income-tax Act, 1961 (hereinafter referred to as \"the Act\") during the relevant assessment years."
}
},
{
"from_name": null,
"id": "16e1380ec3384db99e846c115e84e635",
"to_name": null,
"type": null,
"value": {
"end": 2420,
"labels": [
"ANALYSIS"
],
"start": 2167,
"text": "The decision of the Gujarat High Court in Commissioner of Income-tax, Gujarat vs. Patel Brothers & Co. Ltd., [1977] 106 I.T.R. 424 (Guj.), on this point is challenged by the revenue in these appeals by a certificate granted under Section 261 of the Act."
}
},
{
"from_name": null,
"id": "737a7480a5ea4533a16dbb98d0e8bf5c",
"to_name": null,
"type": null,
"value": {
"end": 2466,
"labels": [
"ANALYSIS"
],
"start": 2421,
"text": "The connected matters involve the same point."
}
},
{
"from_name": null,
"id": "72cb252aec7e49e1836c6f9b7cbbae93",
"to_name": null,
"type": null,
"value": {
"end": 2745,
"labels": [
"ANALYSIS"
],
"start": 2467,
"text": "All cases relate to the period prior to 1.4.1976 from which date only Explanation 2 inserted in sub-section (2A) of Section 37 by the Finance Act, 1983 was applied retrospectively, even though sub-section (2A) was inserted w.e.f.1.10.1967 by Taxation Laws (Amendment) Act, 1967."
}
},
{
"from_name": null,
"id": "51e69b2b11eb4e689e17282c0e86f649",
"to_name": null,
"type": null,
"value": {
"end": 3022,
"labels": [
"FAC"
],
"start": 2745,
"text": "\n The material facts in these appeals illustrative of all connected matters, are these: The relevant assessment years are 1969-70, 1970-71 and 1971-72 of which the corresponding previous years ended on September 30, 1968, September 30, 1969 and September 30, 1970 respectively."
}
},
{
"from_name": null,
"id": "99bcc5b34c6942ef9459fe75af5833e3",
"to_name": null,
"type": null,
"value": {
"end": 3305,
"labels": [
"FAC"
],
"start": 3023,
"text": "The assessee, a limited company, claimed kitchen expenses of Rs.22,301/-, Rs.25,979/- and Rs.28,620/- respectively for these assessment years as expenses incurred for providing meals to its employees and its customers in the ordinary course of its business as customary trade usage."
}
},
{
"from_name": null,
"id": "3664c2e8f2254613ad72f7382b1966e1",
"to_name": null,
"type": null,
"value": {
"end": 3586,
"labels": [
"FAC"
],
"start": 3306,
"text": "The Income-tax officer disallowed the expenditure to the extent of Rs.10,101/-, Rs.12,979/-, and Rs.17,305/- respectively corresponding to the expenses incurred for meals provided to the customers even though it was found that the meals were ordinary and not in any manner lavish."
}
},
{
"from_name": null,
"id": "4905a17f671a4d84b1f7fe2327bed892",
"to_name": null,
"type": null,
"value": {
"end": 3713,
"labels": [
"FAC"
],
"start": 3587,
"text": "The assessee preferred an appeal to the Appellate Assistant Commissioner against the partial disallowance of this expenditure."
}
},
{
"from_name": null,
"id": "39a4047ae4774c909eb56200b6aa153d",
"to_name": null,
"type": null,
"value": {
"end": 3907,
"labels": [
"FAC"
],
"start": 3714,
"text": "The Appellate Assistant Commissioner held that the meals were bare necessity having regard to the nature of business and, therefore, the Income-tax officer was directed to grant that allowance."
}
},
{
"from_name": null,
"id": "fae12023952f4db5a46d7cf7c23375a7",
"to_name": null,
"type": null,
"value": {
"end": 4021,
"labels": [
"FAC"
],
"start": 3908,
"text": "The matter then went in appeal to the Tribunal which confirmed the order of the Appellate Assistant Commissioner."
}
},
{
"from_name": null,
"id": "f07f60db159c48fc9beea493f07a69e4",
"to_name": null,
"type": null,
"value": {
"end": 4540,
"labels": [
"ISSUE"
],
"start": 4022,
"text": "At the instance of the revenue, the Tribunal referred to the High Court for its decision two questions of law, namely, (1) Whether, on the facts and in the circumstances of the case, the expenditure in question was in the nature of entertainment expenditure in law?\n (2) Whether, on the facts and in the circumstances of the case, the expenditure in question would be allowable only to the limited extent of Rs.5,000/- under section 37(2A) of the Income-tax Act, 1961, for each of the assessment years under reference?"
}
},
{
"from_name": null,
"id": "8f33897e8ac743e9a56d38440bf85adf",
"to_name": null,
"type": null,
"value": {
"end": 4617,
"labels": [
"ANALYSIS"
],
"start": 4541,
"text": "Identical questions of law were referred for all the three assessment years."
}
},
{
"from_name": null,
"id": "7ceba5ef3c76416c8e4e7f54b784caaf",
"to_name": null,
"type": null,
"value": {
"end": 5176,
"labels": [
"FAC"
],
"start": 4617,
"text": "\n The High Court answered both the questions in the negative since it was found on the facts by the Tribunal that indisputably the upcountry constituents of the assessee came to Ahmedabad for the purpose of business with the assessee and having regard to the nature and magnitude of the business of the assessee, it would be necessary for the assessee to make arrangements to provide meals to them while in Ahmedabad for business with it, as it was not the revenue's case that the assessee had spent the money for throwing lavish parties for its constituents."
}
},
{
"from_name": null,
"id": "6c3c89b2193849e6b78ea5d018c6e7b2",
"to_name": null,
"type": null,
"value": {
"end": 5283,
"labels": [
"FAC"
],
"start": 5177,
"text": "It had been found that the expenditure was for serving ordinary meals as a bare necessity of the business."
}
},
{
"from_name": null,
"id": "942b3365c800431cbbc78889a6bf76cd",
"to_name": null,
"type": null,
"value": {
"end": 5376,
"labels": [
"FAC"
],
"start": 5284,
"text": "Accordingly, the references were answered against the revenue and in favour of the assessee."
}
},
{
"from_name": null,
"id": "a304b891b26d4dca925d852b9194d402",
"to_name": null,
"type": null,
"value": {
"end": 5432,
"labels": [
"FAC"
],
"start": 5377,
"text": "These appeals are by certificate against that decision."
}
},
{
"from_name": null,
"id": "fd8cd300af5346b4a16c7af138d4219c",
"to_name": null,
"type": null,
"value": {
"end": 5501,
"labels": [
"FAC"
],
"start": 5433,
"text": "The same question is involved for decision in the connected matters."
}
},
{
"from_name": null,
"id": "e71094aa2b44473bb46458b96eb363e7",
"to_name": null,
"type": null,
"value": {
"end": 5581,
"labels": [
"ANALYSIS"
],
"start": 5501,
"text": "\n There is a conflict in the view taken by the High Courts on the main question."
}
},
{
"from_name": null,
"id": "d7bdc0ccd19845e28fabd93f208e9876",
"to_name": null,
"type": null,
"value": {
"end": 5721,
"labels": [
"ANALYSIS"
],
"start": 5582,
"text": "The view taken by the High Courts of Andhra Pradesh, Rajasthan, Madhya Pradesh and Karnataka is the same as that of the Gujarat High Court."
}
},
{
"from_name": null,
"id": "da98e5c07cc8431d9a527b2d05426286",
"to_name": null,
"type": null,
"value": {
"end": 5823,
"labels": [
"ANALYSIS"
],
"start": 5722,
"text": "The contrary view has been taken by the High Courts of Allahabad, Punjab & Haryana, Patna and Kerala."
}
},
{
"from_name": null,
"id": "cd8d2a816645459bb873c18d140c604b",
"to_name": null,
"type": null,
"value": {
"end": 5987,
"labels": [
"PRE_RELIED"
],
"start": 5824,
"text": "The decision of the Delhi High Court in Commissioner of Income-tax vs.\n Rajasthan Mercantile Co. Ltd.etc. etc.,[1995] 211 ITR 400 is in line with the Gujarat view."
}
},
{
"from_name": null,
"id": "c2f57596c30a4407905f9d42923574b6",
"to_name": null,
"type": null,
"value": {
"end": 6129,
"labels": [
"ANALYSIS"
],
"start": 5988,
"text": "The difference in the views taken by different High Courts has led to one set of decisions against the revenue and another set in its favour."
}
},
{
"from_name": null,
"id": "2adae6235c7f427181494457b94adc4a",
"to_name": null,
"type": null,
"value": {
"end": 6243,
"labels": [
"ANALYSIS"
],
"start": 6129,
"text": "\n This is how in this court some appeals and other matters are by the revenue while the rest are by the assessees."
}
},
{
"from_name": null,
"id": "797a4203ca4a4af7be029177f90cd239",
"to_name": null,
"type": null,
"value": {
"end": 6444,
"labels": [
"ANALYSIS"
],
"start": 6244,
"text": "As earlier stated, all these matters relate to the period prior to 1.4.1976 and, therefore, the decision is to be based on sub-section (2A) of Section 37 of the Act minus Explanation 2 inserted later."
}
},
{
"from_name": null,
"id": "6f31f730e6634a958f108d3f4f403259",
"to_name": null,
"type": null,
"value": {
"end": 6553,
"labels": [
"ANALYSIS"
],
"start": 6445,
"text": "We would refer to the two sets of decisions after mentioning the rival contentions and the view taken by us."
}
},
{
"from_name": null,
"id": "8c5c2b9bdbd04fcc8f19c4c56fc59df2",
"to_name": null,
"type": null,
"value": {
"end": 7053,
"labels": [
"ARG_PETITIONER"
],
"start": 6553,
"text": "\n The contention of Shri B.B.Ahuja, learned counsel for the revenue is that all kinds of hospitality is entertainment and, therefore, the entire expenditure incurred under this head, even for serving ordinary meals as a bare necessity, falls under sub-section (2A) of Section 37; and the expression \"entertainment expenditure\" in sub- section (2A) must be construed to mean from the inception as defined in Explanation 2 to sub-section (2A) of Section 37, since Explanation 2 is merely clarificatory."
}
},
{
"from_name": null,
"id": "b50275b80c4f420a9365309e081ba865",
"to_name": null,
"type": null,
"value": {
"end": 7289,
"labels": [
"ARG_PETITIONER"
],
"start": 7054,
"text": "It was urged that for this reason insertion of Explanation 2 only w.e.f.1.4.1976 is immaterial and the expression \"entertainment expenditure\" in sub-section (2A) of section 37 must be so construed even for the period prior to 1.4.1976."
}
},
{
"from_name": null,
"id": "34d97be3506441019b7859745bb61085",
"to_name": null,
"type": null,
"value": {
"end": 7422,
"labels": [
"ARG_RESPONDENT"
],
"start": 7290,
"text": "In reply, Shri Harish Salve, learned counsel for the assessee contended that purposive interpretation of the provision must be made."
}
},
{
"from_name": null,
"id": "823764a5307d474db05e4b1df45a5dde",
"to_name": null,
"type": null,
"value": {
"end": 7668,
"labels": [
"ARG_RESPONDENT"
],
"start": 7423,
"text": "It was urged that the purpose was to curb the tendency of incurring lavish expenditure and not customary hospitality extended by offering ordinary meals as a bare necessity since the traditional meaning of every hospitality is not entertainment."
}
},
{
"from_name": null,
"id": "49c1054cbe0347408f51bd6af6843078",
"to_name": null,
"type": null,
"value": {
"end": 7869,
"labels": [
"ARG_RESPONDENT"
],
"start": 7669,
"text": "It was urged that the finding in all these cases was that the allowance claimed was only in respect of the expenditure incurred in providing ordinary meals as a bare necessity and not any lavish food."
}
},
{
"from_name": null,
"id": "d5dae199f4e24813ab3b8899f32d3d7f",
"to_name": null,
"type": null,
"value": {
"end": 8541,
"labels": [
"STA"
],
"start": 7869,
"text": "\n Section 37, to the extent material, is as under: \"37. General. - (1) Any expenditure (not being expenditure of the nature described in sections 30 to 36 and not being in the nature of capital expenditure or personal expenses of the assessee), laid out or expended wholly and exclusively for the purposes of the business or profession shall be allowed in computing the income chargeable under the head \"Profits and gains of business or profession\".\n (2) Notwithstanding anything contained in sub-section (1), no expenditure in the nature of entertainment expenditure shall be allowed in the case of a company, which exceeds the aggregate amount computed as hereunder:- *"
}
},
{
"from_name": null,
"id": "a909023813da458ebe4ad5581c56e998",
"to_name": null,
"type": null,
"value": {
"end": 8563,
"labels": [
"STA"
],
"start": 8541,
"text": "** **"
}
},
{
"from_name": null,
"id": "3499fbdad9cc4f34ba694a43906ab621",
"to_name": null,
"type": null,
"value": {
"end": 8569,
"labels": [
"STA"
],
"start": 8563,
"text": "* ***"
}
},
{
"from_name": null,
"id": "e814884650e34ee2ba6bc9fd55ab4618",
"to_name": null,
"type": null,
"value": {
"end": 8929,
"labels": [
"STA"
],
"start": 8570,
"text": "*(2A) Notwithstanding anything contained in sub-section (1) or sub- section (2), no allowance shall be made in respect of so much of the expenditure in the nature of entertainment expenditure incurred by an assessee during any previous year which expires after the 30th day of September, 1967, as is in excess of the aggregate amount computed as hereunder:- *"
}
},
{
"from_name": null,
"id": "b1873298b11c40aaaa725abc3178446c",
"to_name": null,
"type": null,
"value": {
"end": 8967,
"labels": [
"STA"
],
"start": 8929,
"text": "** *** **"
}
},
{
"from_name": null,
"id": "7cf9198b41294418b0a51e6e3506e2f4",
"to_name": null,
"type": null,
"value": {
"end": 8993,
"labels": [
"STA"
],
"start": 8967,
"text": "* Explanation 1.-........."
}
},
{
"from_name": null,
"id": "788728d17a3744c286faeaaee512a4a7",
"to_name": null,
"type": null,
"value": {
"end": 9639,
"labels": [
"STA"
],
"start": 8995,
"text": "***Explanation 2. -For the removal of doubts, it is hereby declared that for the purposes of this sub-section and sub-section (2B), as it stood before the 1st day of April, 1977, \"entertainment expenditure\" includes expenditure on provision of hospitality of every kind by the assessee to any person, whether by way of provision of food or beverages or in any other manner whatsoever and whether or not such provision is made by reason of any express or implied contract or custom or usage of trade, but does not include expenditure on food or beverages provided by the assessee to his employees in office, factory or other place of their work."
}
},
{
"from_name": null,
"id": "d0652c1bb5644e0f8107bb136c22e0bf",
"to_name": null,
"type": null,
"value": {
"end": 9899,
"labels": [
"STA"
],
"start": 9639,
"text": "\n **(2B) Notwithstanding anything contained in this section, no allowance shall be made in respect of expenditure in the nature of entertainment expenditure incurred within India by any assessee after the 28th day of February, 1970.\"\n (emphasis supplied) * Sub"
}
},
{
"from_name": null,
"id": "65319af231144cf9b1a70cfa9873f685",
"to_name": null,
"type": null,
"value": {
"end": 9995,
"labels": [
"STA"
],
"start": 9899,
"text": "-section (2A) was inserted w.e.f.\n 1st October, 1967 by the Taxation Laws (Amendment) Act, 1967."
}
},
{
"from_name": null,
"id": "0ed954c5b2ab432b8d8db777fbd67a54",
"to_name": null,
"type": null,
"value": {
"end": 10079,
"labels": [
"STA"
],
"start": 9997,
"text": "** Sub-section (2B) was inserted w.e.f.\n 1st April, 1970 by the Finance Act, 1970."
}
},
{
"from_name": null,
"id": "7f7e9baf14b548038213db7bbdfb231a",
"to_name": null,
"type": null,
"value": {
"end": 10172,
"labels": [
"STA"
],
"start": 10081,
"text": "*** Explanation 2 was inserted by the Finance Act, 1983 retrospectively w.e.f.\n 1.4.1976.\n "
}
},
{
"from_name": null,
"id": "c7d838355012411c8aa2de159c03acd1",
"to_name": null,
"type": null,
"value": {
"end": 10549,
"labels": [
"STA"
],
"start": 10172,
"text": "In Sampath Iyengar's Law of Income Tax, 8th Ed., vol.\n 2, reference is made to circular No. 372 dated December, 8, 1983 of the Board, (1984) 146 ITR st 31, wherein the scope and effect of the above amendments was explained as under:- \"Provision for curbing avoidable or ostentatious expenditure in business or profession- Section 37 - 30.\n Section 37 of the Income-tax Act"
}
},
{
"from_name": null,
"id": "ff1a8b75395946418ad0460a1fd3686a",
"to_name": null,
"type": null,
"value": {
"end": 10924,
"labels": [
"STA"
],
"start": 10550,
"text": "provides for deduction in the computation of taxable profits of any expenditure other than expenditure of the nature described in sections 30 to 36 and section 80VV, or expenditure in the nature of capital expenditure or personal expenses of the assessee, laid out or expended wholly and exclusively for the purposes of the business or profession carried on by the taxpayer."
}
},
{
"from_name": null,
"id": "ed7ab223c0c94abab4ec5a7a370a947d",
"to_name": null,
"type": null,
"value": {
"end": 11138,
"labels": [
"ANALYSIS"
],
"start": 10926,
"text": "With a view to curbing certain categories of avoidable or ostentatious expenditure by assessees carrying on business or profession, the Finance Act has made certain amendments to section 37 of the Income-tax Act."
}
},
{
"from_name": null,
"id": "b96c3b1867f84ef88a5a1c52d23d1b35",
"to_name": null,
"type": null,
"value": {
"end": 11219,
"labels": [
"ANALYSIS"
],
"start": 11139,
"text": "The substance of these amendments is explained in paragraphs 31 to 34 hereunder."
}
},
{
"from_name": null,
"id": "aa2013915d0b4ba8add0908778dc9622",
"to_name": null,
"type": null,
"value": {
"end": 11248,
"labels": [
"ANALYSIS"
],
"start": 11221,
"text": "Entertainment expenditure.-"
}
},
{
"from_name": null,
"id": "cc39a7e9a2924a07b6349d1cb97c66c7",
"to_name": null,
"type": null,
"value": {
"end": 11534,
"labels": [
"ANALYSIS"
],
"start": 11249,
"text": "31.1 For the removal of doubts regarding the scope of the expression \"entertainment expenditure\", the Finance Act has inserted a new Explanation for the purposes of sub-section (2A) of section 37 and also sub-section (2B) of that section as that sub-section stood before 1 April, 1977."
}
},
{
"from_name": null,
"id": "e6af90808a75412d8553145ac7f9f3d3",
"to_name": null,
"type": null,
"value": {
"end": 11887,
"labels": [
"ANALYSIS"
],
"start": 11535,
"text": "The Explanation clarifies that \"entertainment expenditure\"\n includes expenditure on provision of hospitality of every kind by the assessee to any person, whether by way of provision of food or beverages or in any other manner whatsoever and whether or not such provision is made by reason of any express or implied contract or custom, usage or trade."
}
},
{
"from_name": null,
"id": "c857b6d6739f448791a1e6008d7d4a31",
"to_name": null,
"type": null,
"value": {
"end": 12078,
"labels": [
"ANALYSIS"
],
"start": 11888,
"text": "However, expenditure incurred in providing food or beverages by an employer to his employee in office, factory or other place of their work will not be regarded as entertainment expenditure."
}
},
{
"from_name": null,
"id": "0db52aa4a19e44fc906bed582ac13401",
"to_name": null,
"type": null,
"value": {
"end": 12084,
"labels": [
"ANALYSIS"
],
"start": 12078,
"text": "\n 31.2"
}
},
{
"from_name": null,
"id": "922adfdd94034679a222f263ebc6d6d6",
"to_name": null,
"type": null,
"value": {
"end": 12242,
"labels": [
"ANALYSIS"
],
"start": 12085,
"text": "This amendment takes effect retrospectively from 1 April, 1976, and will, accordingly, apply in relation to the assessment year 1976-77 and subsequent years."
}
},
{
"from_name": null,
"id": "56a08e4e49a64f25b58a27f0413f792e",
"to_name": null,
"type": null,
"value": {
"end": 12248,
"labels": [
"ANALYSIS"
],
"start": 12242,
"text": "\n 31.3"
}
},
{
"from_name": null,
"id": "326e02fcd4a04f6cb9e3f3439e807cb2",
"to_name": null,
"type": null,
"value": {
"end": 12479,
"labels": [
"ANALYSIS"
],
"start": 12249,
"text": "Under the existing provisions of section 37(2A) of the Income-tax Act, deduction in respect of expenditure on entertainment is subject to certain limits calculated with reference to the quantum of profits as under:- (at page 2255)"
}
},
{
"from_name": null,
"id": "d3eee2328fa74ea7824e63fe2fbc3f10",
"to_name": null,
"type": null,
"value": {
"end": 12684,
"labels": [
"ANALYSIS"
],
"start": 12480,
"text": "In the Income-tax Act, 1961, Chapter IV contains provisions relating to computation of total income wherein Section D containing Sections 28 to 44D pertains to profits and gains of business or profession."
}
},
{
"from_name": null,
"id": "d0357eb7608e44ae961ecbbcc7c89d6b",
"to_name": null,
"type": null,
"value": {
"end": 12813,
"labels": [
"ANALYSIS"
],
"start": 12685,
"text": "Section. 28 specifies the income which is chargeable to income tax under the head \"profits and gains of business or profession\"."
}
},
{
"from_name": null,
"id": "5a2d9dd5d4c140658a56bbcf6bd277fd",
"to_name": null,
"type": null,
"value": {
"end": 12956,
"labels": [
"ANALYSIS"
],
"start": 12814,
"text": "Section 29 says that the income referred to in Section 28 shall be computed in accordance with the provisions contained in Sections 30 to 43D."
}
},
{
"from_name": null,
"id": "80682ce8ec464ef1ab7e9ff3dfd0c415",
"to_name": null,
"type": null,
"value": {
"end": 13073,
"labels": [
"ANALYSIS"
],
"start": 12957,
"text": "Sections 30 to 36 provide for deduction of certain expenditures incurred for the purposes of business or profession."
}
},
{
"from_name": null,
"id": "c3a04e2cfa1f42b88ab97c453e60453d",
"to_name": null,
"type": null,
"value": {
"end": 13371,
"labels": [
"ANALYSIS"
],
"start": 13074,
"text": "Then comes Section 37 which contains the general provision permitting deduction of \"any expenditure ..... laid out or expended wholly and exclusively for the purposes of the business or profession ..... in computing the income chargeable under the head \"profits and gains of business or profession"
}
},
{
"from_name": null,
"id": "75ba2fd3d3cf4fb5b5db510c84a1c6e7",
"to_name": null,
"type": null,
"value": {
"end": 13682,
"labels": [
"ANALYSIS"
],
"start": 13371,
"text": "\", by sub- section (1), sub-section (2) therein begins with a non- obstante clause to exclude from the ambit of sub-section (1) the entertainment expenditure by saying that \"no expenditure in the nature of entertainment expenditure shall be allowed\"\n in the case of a company which exceeds the specified amount."
}
},
{
"from_name": null,
"id": "cfe153f3d5a742498e943d1dadbf74ba",
"to_name": null,
"type": null,
"value": {
"end": 13747,
"labels": [
"ANALYSIS"
],
"start": 13682,
"text": "\n Similar provision is made in sub-section (2A) for any assessee."
}
},
{
"from_name": null,
"id": "eccce674ea994c0e8098c69215602d50",
"to_name": null,
"type": null,
"value": {
"end": 14071,
"labels": [
"ANALYSIS"
],
"start": 13748,
"text": "In other words, the general provision in Section 37 is that any expenditure laid out or expended wholly or exclusively for the purposes of the business or profession shall be allowed but no expenditure in the nature of entertainment shall be allowed as stated in sub-sections (2) and (2A) in excess of the amount specified."
}
},
{
"from_name": null,
"id": "4c063ab738944c88b1370b0b55dc93d1",
"to_name": null,
"type": null,
"value": {
"end": 14294,
"labels": [
"ANALYSIS"
],
"start": 14072,
"text": "For claiming deduction of the business expenditure according to the general rule, the test of commercial expediency is applied but exclusion is made of any expenditure which is in the nature of \"entertainment expenditure\"."
}
},
{
"from_name": null,
"id": "950ab970560641b7a81259f558ae29a8",
"to_name": null,
"type": null,
"value": {
"end": 14546,
"labels": [
"ANALYSIS"
],
"start": 14295,
"text": "Without anything more, it means that an expenditure incurred for commercial expediency or usage of the trade is a permissible deduction unless it partakes the character of an entertainment expenditure, in which case the permissible limit is specified."
}
},
{
"from_name": null,
"id": "e981794505884dc08553f8eef3e1587f",
"to_name": null,
"type": null,
"value": {
"end": 14713,
"labels": [
"ANALYSIS"
],
"start": 14547,
"text": "The controversy in the present case relates to the meaning of \"entertainment expenditure\" in sub-section (2A) of Section 37 before insertion of Explanation 2 therein."
}
},
{
"from_name": null,
"id": "8e23be5f0bdd455f9856f75f9f34be6b",
"to_name": null,
"type": null,
"value": {
"end": 14980,
"labels": [
"ANALYSIS"
],
"start": 14713,
"text": "\n The question involved in these matters relates to deduction of expenditure incurred in providing ordinary meals and refreshments to the outstation customers according to the customary hospitality and trade usage satisfying the general test of commercial expediency."
}
},
{
"from_name": null,
"id": "6f4ce8f4a87b4a4daf707943fb1ec5bd",
"to_name": null,
"type": null,
"value": {
"end": 15053,
"labels": [
"ANALYSIS"
],
"start": 14980,
"text": "\n Generally, \"entertainment expenditure\" is an expression of wide import."
}
},
{
"from_name": null,
"id": "fbd995cc31cb4a5e9b9c0770132b55a7",
"to_name": null,
"type": null,
"value": {
"end": 15268,
"labels": [
"ANALYSIS"
],
"start": 15054,
"text": "However, in the context of disallowance of \"entertainment expenditure\" as a business expenditure by virtue of sub-section (2A) of Section 37, the word \"entertainment\" must be construed strictly and not expansively."
}
},
{
"from_name": null,
"id": "6a3f1a236ad64dc5aee0e9385f645523",
"to_name": null,
"type": null,
"value": {
"end": 15436,
"labels": [
"ANALYSIS"
],
"start": 15269,
"text": "Ordinarily, \"entertainment\" connotes something which may be beneficial for the mental or physical well being but is not essential or indispensable for human existence."
}
},
{
"from_name": null,
"id": "c988155300e1412d8e6b100c9150af2a",
"to_name": null,
"type": null,
"value": {
"end": 15542,
"labels": [
"ANALYSIS"
],
"start": 15437,
"text": "A bare necessity, like ordinary meal, is essential or indispensable and, therefore is not \"entertainment."
}
},
{
"from_name": null,
"id": "4308346cac7e46b19ceb5f7b5db57b21",
"to_name": null,
"type": null,
"value": {
"end": 15631,
"labels": [
"ANALYSIS"
],
"start": 15543,
"text": "If such a bare necessity is offered by another, it is hospitality but not entertainment."
}
},
{
"from_name": null,
"id": "57ea5dca0ff043dbb141db3bd2877c5d",
"to_name": null,
"type": null,
"value": {
"end": 15762,
"labels": [
"ANALYSIS"
],
"start": 15632,
"text": "Unless the definition of \"entertainment\" includes hospitality, the ordinary meaning of \"entertainment\" cannot include hospitality."
}
},
{
"from_name": null,
"id": "e819af8a149d465bae47a7202461d6f6",
"to_name": null,
"type": null,
"value": {
"end": 16023,
"labels": [
"ANALYSIS"
],
"start": 15763,
"text": "For this reason, the expenditure incurred in extending customary hospitality by offering ordinary meals as a bare necessity, is not \"entertainment expenditure\"\nwithout the aid of the enlarged meaning given to the words by Explanation 2 inserted w.e.f.1.4.1976."
}
},
{
"from_name": null,
"id": "316b8eecad8748cbb43226b040e9b3a0",
"to_name": null,
"type": null,
"value": {
"end": 16201,
"labels": [
"ANALYSIS"
],
"start": 16024,
"text": "The definition in Explanation 2 is not the ordinary meaning of the words \"entertainment expenditure\", but the enlarged meaning given for the purpose of the Act w.e.f.1.4.1976.\n "
}
},
{
"from_name": null,
"id": "2188960dc7d7454b924b1a718d53b7aa",
"to_name": null,
"type": null,
"value": {
"end": 16306,
"labels": [
"ANALYSIS"
],
"start": 16201,
"text": "The object of sub-section (2A) is to disallow any lavish expenditure in the form of business expenditure."
}
},
{
"from_name": null,
"id": "a15f5a12ed234f598c4496bb555770dd",
"to_name": null,
"type": null,
"value": {
"end": 16391,
"labels": [
"ANALYSIS"
],
"start": 16307,
"text": "This is obvious from the several amendments made in the provision from time to time."
}
},
{
"from_name": null,
"id": "96a5d7d1e941450391c6591190846a75",
"to_name": null,
"type": null,
"value": {
"end": 16453,
"labels": [
"ANALYSIS"
],
"start": 16392,
"text": "It is so understood even in the circular issued by the Board."
}
},
{
"from_name": null,
"id": "aec499698b4b40e3bf875185a062d9eb",
"to_name": null,
"type": null,
"value": {
"end": 16654,
"labels": [
"ANALYSIS"
],
"start": 16454,
"text": "The object of the provision clearly is to allow deduction of the essential business expenditure incurred due to commercial expediency and according to the trade usage excluding the lavish expenditure."
}
},
{
"from_name": null,
"id": "86313e38d5444e4a910be312764b291f",
"to_name": null,
"type": null,
"value": {
"end": 16840,
"labels": [
"ANALYSIS"
],
"start": 16655,
"text": "The dispute in the present cases relates only to the amount which has been held to be essential business expenditure of this kind incurred in providing ordinary meals as bare necessity."
}
},
{
"from_name": null,
"id": "0b1d3cc464e7454eac685169b8a486fb",
"to_name": null,
"type": null,
"value": {
"end": 17070,
"labels": [
"ANALYSIS"
],
"start": 16841,
"text": "In the view taken by us, such expense did not come within the meaning of \"entertainment expenditure\" prior to 1.4.1976 when Explanation 2 was brought in by a retrospective amendment made in 1983 of sub-section (2A) of Section 37."
}
},
{
"from_name": null,
"id": "0f2995cc78c640529733da23fcd2f8a3",
"to_name": null,
"type": null,
"value": {
"end": 17261,
"labels": [
"ANALYSIS"
],
"start": 17070,
"text": "\nThe finding of fact in all cases, therefore, satisfies this test to allow deduction of the expenditure incurred by each assessee and claimed under this head for the period prior to 1.4.1976."
}
},
{
"from_name": null,
"id": "309ec6b78ed44ef9ad1f5e2dafec6cb5",
"to_name": null,
"type": null,
"value": {
"end": 17534,
"labels": [
"STA"
],
"start": 17263,
"text": "Sub-section (2A) was inserted w.e.f. 1st October, 1967 by the Taxation Laws (Amendment) Act, 1967 and Explanation 2 inserted therein by Finance Act, 1983 retrospectively w.e.f.\n 1.4.1976 while sub-section (2B) was inserted w.e.f. 1st April, 1970 by the Finance Act, 1970."
}
},
{
"from_name": null,
"id": "6578e89d7a6d46689f43882e14285001",
"to_name": null,
"type": null,
"value": {
"end": 17684,
"labels": [
"ANALYSIS"
],
"start": 17535,
"text": "As earlier stated, these cases relate to the period prior to 1.4.1976 from which date Explanation 2 to sub-section (2A) was inserted retrospectively."
}
},
{
"from_name": null,
"id": "2f0a0a0dbbd9454d9f9cb74f14944e0e",
"to_name": null,
"type": null,
"value": {
"end": 17774,
"labels": [
"ANALYSIS"
],
"start": 17685,
"text": "We have, therefore, to construe sub-section (2A) as it existed without the Explanation 2."
}
},
{
"from_name": null,
"id": "21c71d88f52a4a00801a6bd109e24d3c",
"to_name": null,
"type": null,
"value": {
"end": 17872,
"labels": [
"ANALYSIS"
],
"start": 17775,
"text": "The meaning of Explanation 2 is quite clear and it has enlarged the meaning to widen the tax net."
}
},
{
"from_name": null,
"id": "e1b7267117c04b08bdb133a5910b6e41",
"to_name": null,
"type": null,
"value": {
"end": 18061,
"labels": [
"ANALYSIS"
],
"start": 17872,
"text": "\n Learned counsel for the revenue contended that Explanation 2 is clarificatory and, therefore, even without Explanation 2 the provision must be understood and construed in the same manner."
}
},
{
"from_name": null,
"id": "ad4a6fce2c4e48d19af1c7446f3d59aa",
"to_name": null,
"type": null,
"value": {
"end": 18261,
"labels": [
"ANALYSIS"
],
"start": 18062,
"text": "It appears to us that insertion of Explanation 2 made retrospectively but restricted in its application only w.e.f.1.4.1976 is itself an indication that its application prior to 1.4.1976 is excluded."
}
},
{
"from_name": null,
"id": "32c2f0fe9cb04fba82fec5a052a61d2c",
"to_name": null,
"type": null,
"value": {
"end": 18474,
"labels": [
"ANALYSIS"
],
"start": 18262,
"text": "If Explanation 2 was merely clarificatory of the ordinary meaning, as contended by learned counsel for the revenue, it was unnecessary to restrict its restrospective application in this manner only from 1.4.1976."
}
},
{
"from_name": null,
"id": "df7ce2e31b2b47fb926639333afd6c19",
"to_name": null,
"type": null,
"value": {
"end": 18709,
"labels": [
"ANALYSIS"
],
"start": 18475,
"text": "The construction we have made of sub-section (2A) of Section 37 as it existed during the relevant assessment period cannot, therefore, be affected by Explanation 2 to sub-section (2A) which was inapplicable during the relevant period."
}
},
{
"from_name": null,
"id": "73aedf66ee044745b5b1aa2c7d98afd7",
"to_name": null,
"type": null,
"value": {
"end": 18908,
"labels": [
"ANALYSIS"
],
"start": 18711,
"text": "In our opinion, the construction we have made of the provision as it existed during the relevant period flows not merely from the language of the provision but also matches with the object thereof."
}
},
{
"from_name": null,
"id": "391fc716cf0c43699f88ad5a2eda6cff",
"to_name": null,
"type": null,
"value": {
"end": 19328,
"labels": [
"ANALYSIS"
],
"start": 18909,
"text": "It means that the expenditure incurred by the assessees in providing ordinary meals to the outstation customers according to the established business practice, was a permissible deduction inspite of sub-section (2A) of Section 37, to which the assessees were entitled in the computation of their total income for the purpose of payment of tax under the Income-tax Act, 1961 during the relevant period prior to 1.4.1976."
}
},
{
"from_name": null,
"id": "da274eb97544497fa9102cf9b613c56d",
"to_name": null,
"type": null,
"value": {
"end": 19426,
"labels": [
"ANALYSIS"
],
"start": 19330,
"text": "We shall now refer briefly to the conflicting decisions of the several High Courts on the point."
}
},
{
"from_name": null,
"id": "452f6f64a4344187a76007cb163494ef",
"to_name": null,
"type": null,
"value": {
"end": 19531,
"labels": [
"ANALYSIS"
],
"start": 19427,
"text": "Amongst the decisions in favour of the revenue is Brij Raman Dass & Sons vs. Commissioner of Income-tax."
}
},
{
"from_name": null,
"id": "3270266055304812bd5e7c3a9fef268f",
"to_name": null,
"type": null,
"value": {
"end": 19540,
"labels": [
"ANALYSIS"
],
"start": 19532,
"text": "Lucknow."
}
},
{
"from_name": null,
"id": "9e4c2a9fb17945f8bab38f9bd1bd2189",
"to_name": null,
"type": null,
"value": {
"end": 19714,
"labels": [
"ANALYSIS"
],
"start": 19541,
"text": "[1976] 104 I.T.R.\n541 of the Allahabad High Court which has been referred and followed in subsequent decisions of other High Courts taking the view in favour of the revenue."
}
},
{
"from_name": null,
"id": "86ad3c85249b42b8a47bfd3015dae068",
"to_name": null,
"type": null,
"value": {
"end": 19812,
"labels": [
"ANALYSIS"
],
"start": 19715,
"text": "In this line of cases are the decisions of the High Courts of Punjab & Haryana, Patna and Kerala."
}
},
{
"from_name": null,
"id": "9d6220d3eded49b9a53843e0c5bed91e",
"to_name": null,
"type": null,
"value": {
"end": 19994,
"labels": [
"ANALYSIS"
],
"start": 19813,
"text": "The other line of cases wherein the view taken is in favour of the assessee are the decisions of the HIgh Courts of Gujarat, Andhra Pradesh, Madhya Pradesh, Rajasthan and Karnataka."
}
},
{
"from_name": null,
"id": "69843ea2980744f8a466374a1e596dca",
"to_name": null,
"type": null,
"value": {
"end": 20207,
"labels": [
"ANALYSIS"
],
"start": 19995,
"text": "The main decision of the Gujarat High Court is Commissioner of Income-tax, Gujarat II vs. patel Brothers & Co. Ltd., [1977] 106 I.T.R. 424 which has been referred and followed in the later decisions in that line."
}
},
{
"from_name": null,
"id": "98ee53cb1f784f2aa77fe1b25795dd6b",
"to_name": null,
"type": null,
"value": {
"end": 20500,
"labels": [
"ANALYSIS"
],
"start": 20207,
"text": "\n We would first deal with the decision of the Allahabad High Court reported in [1976] 104 I.T.R. 541 which is under appeal in Civil Appeal No. 1850 of 1975 and the decision of the Gujarat High Court reported in [1977] 106 I.T.R. 424 which is under appeal in Civil Appeal Nos. 1455-57 of 1976."
}
},
{
"from_name": null,
"id": "40c7d5e3e319415ba00f9841f93db000",
"to_name": null,
"type": null,
"value": {
"end": 20765,
"labels": [
"PRE_RELIED"
],
"start": 20501,
"text": "In Brij Raman Dass & Sons (supra), it was held that sub- section (2A) of Section 37 is not an independent provision but is a proviso to sub-section (1) of section 37 since the expenditure falling under sub-section (2A) must necessarily come within sub-section (1)."
}
},
{
"from_name": null,
"id": "9e3cab60dad04de88e8c31db256a31b6",
"to_name": null,
"type": null,
"value": {
"end": 20879,
"labels": [
"PRE_RELIED"
],
"start": 20766,
"text": "Thereafter, while considering the meaning of \"entertainment\" in this context, it was held as under :- \" ........."
}
},
{
"from_name": null,
"id": "477af8c7ac1e40068ad60bd3ddbb3acd",
"to_name": null,
"type": null,
"value": {
"end": 20999,
"labels": [
"PRE_RELIED"
],
"start": 20880,
"text": "What we have to see is as to what is the meaning of the word \"entertainment\" for purposes of section 37(2A) of the Act."
}
},
{
"from_name": null,
"id": "86be44f3dce44763987f3639515f0111",
"to_name": null,
"type": null,
"value": {
"end": 21102,
"labels": [
"PRE_RELIED"
],
"start": 21000,
"text": "In the Income-tax Act, this word has not been defined and we will have to give it its general meaning."
}
},
{
"from_name": null,
"id": "021566141c554cb0ba655100fa8777b9",
"to_name": null,
"type": null,
"value": {
"end": 21278,
"labels": [
"PRE_RELIED"
],
"start": 21103,
"text": "An \"entertainment expenditure\"\n would, in our opinion, include all expenditures incurred in connection with business on the entertainment of customer and constituents."
}
},
{
"from_name": null,
"id": "63c33bcbdee54f87b3ef18dded5759e0",
"to_name": null,
"type": null,
"value": {
"end": 21415,
"labels": [
"PRE_RELIED"
],
"start": 21279,
"text": "The entertainment may consist of providing refreshments as in this case or it may consist of providing some other sort of entertainment."
}
},
{
"from_name": null,
"id": "17252881f12849b5a00f964224905dfe",
"to_name": null,
"type": null,
"value": {
"end": 21570,
"labels": [
"PRE_RELIED"
],
"start": 21417,
"text": "In Bentleys, Stokes & Lowless v.\n Beeson (H.M.Inspector of Taxes), [1952] 33 TC 491 (CA), a firm of solicitors incurred expenses in entertaining clients."
}
},
{
"from_name": null,
"id": "114b8dcdabb34a42bbcc6a4169f594a8",
"to_name": null,
"type": null,
"value": {
"end": 21633,
"labels": [
"PRE_RELIED"
],
"start": 21571,
"text": "The entertainment consisted of providing lunch to the clients."
}
},
{
"from_name": null,
"id": "6e50c960c73f40bcbcdee0d1f4bc4476",
"to_name": null,
"type": null,
"value": {
"end": 21755,
"labels": [
"PRE_RELIED"
],
"start": 21634,
"text": "It was held that expenditure was incurred wholly and exclusively for purposes of business and was an allowable deduction."
}
},
{
"from_name": null,
"id": "d85b6a306f074199b5a4d94a10455af4",
"to_name": null,
"type": null,
"value": {
"end": 21802,
"labels": [
"ANALYSIS"
],
"start": 21755,
"text": "\n The same is the position in the instant case."
}
},
{
"from_name": null,
"id": "57528847208e45788d89dbdc7d8029ae",
"to_name": null,
"type": null,
"value": {
"end": 21947,
"labels": [
"ANALYSIS"
],
"start": 21803,
"text": "The petitioner has been providing to its customers refreshments and this constitutes an expenditure in the nature of entertainment expenditure\"."
}
},
{
"from_name": null,
"id": "59784219b61a4b578e03eca6341230ea",
"to_name": null,
"type": null,
"value": {
"end": 22136,
"labels": [
"ANALYSIS"
],
"start": 21948,
"text": "the entire expenditure would have been allowed but for the amendment introduced by section 37 (2A) which restricts the allowance of such an expenditure to a maximum limit of Rs. 5,000/-\"\n "
}
},
{
"from_name": null,
"id": "f904fb398baa4997b0449421f8200c6f",
"to_name": null,
"type": null,
"value": {
"end": 22149,
"labels": [
"ANALYSIS"
],
"start": 22136,
"text": "(at page 544)"
}
},
{
"from_name": null,
"id": "92a4a943e7944acf92de1dec7b08576a",
"to_name": null,
"type": null,
"value": {
"end": 22208,
"labels": [
"ANALYSIS"
],
"start": 22150,
"text": "There is no more discussion on the point in this decision."
}
},
{
"from_name": null,
"id": "8ecd004326424af8924bcef9e53d0d2b",
"to_name": null,
"type": null,
"value": {
"end": 22311,
"labels": [
"ANALYSIS"
],
"start": 22208,
"text": "\n On the other hand, the Gujarat High Court in Patel Brothers & Co. Ltd. (supra) took a different view."
}
},
{
"from_name": null,
"id": "ca2d5e5605ec40188c7222dbf74dae99",
"to_name": null,
"type": null,
"value": {
"end": 22459,
"labels": [
"ANALYSIS"
],
"start": 22312,
"text": "In this decision, certain broad tests or guidelines have also been indicated to determine the nature of expenses allowed as entertainment expenses."
}
},
{
"from_name": null,
"id": "64415eff388a4a3b829dcbb287498fe9",
"to_name": null,
"type": null,
"value": {
"end": 22656,
"labels": [
"ANALYSIS"
],
"start": 22460,
"text": "In our opinion, that exercise is unnecessary since the broad test indicated by us is the only thing which can safely be indicated and the determination of the question in each case is one of fact."
}
},
{
"from_name": null,
"id": "e1153f913625431997818d37734d5022",
"to_name": null,
"type": null,
"value": {
"end": 23266,
"labels": [
"ANALYSIS"
],
"start": 22657,
"text": "The conclusion on the basis of the finding of fact recorded therein was stated thus : \"......... The Tribunal has agreed with the Appellate Assistant Commissioner who has found that it was customary for the assessee due to very long-established tradition that farmers who came to deliver the goods, i.e., cotton, groundnuts, rice, pulses, were given meals from the kitchen run by the assessee and if the assessee failed to give this normal courtesy, it apprehended that the farmers might offer their produce to other competitors in the field of the assessee and the assessee would lose the goods."
}
},
{
"from_name": null,
"id": "2929f450433f47d58c0a7e28c6d8e48b",
"to_name": null,
"type": null,
"value": {
"end": 23562,
"labels": [
"ANALYSIS"
],
"start": 23267,
"text": "The Appellate Assistant Commissioner has also found that the expenditure was for serving ordinary meals to the employees as well as to the farmer customers and they were not such which entertained or amused the guests since the assessee provided served meals as a bare necessity of the business."
}
},
{
"from_name": null,
"id": "1aa4952a30264709a6d4d448ca9ec85f",
"to_name": null,
"type": null,
"value": {
"end": 23746,
"labels": [
"ANALYSIS"
],
"start": 23563,
"text": "In that view of the matter, therefore, these references must be rejected and we answer the questions referred to us in the negative and against the Commissioner,......\"\n (at page 442)"
}
},
{
"from_name": null,
"id": "4a9340121f7b42a08cb5839627af0b27",
"to_name": null,
"type": null,
"value": {
"end": 23992,
"labels": [
"RATIO"
],
"start": 23747,
"text": "This conclusion of the Gujarat High Court on the finding of fact recorded by the Tribunal is consistent with the view we have taken and, therefore, we uphold the same for the reasons given by us which are sufficient to sustain the ultimate view."
}
},
{
"from_name": null,
"id": "ecf7586760c4436ba0e7842b4e47451a",
"to_name": null,
"type": null,
"value": {
"end": 24376,
"labels": [
"RATIO"
],
"start": 23993,
"text": "We may observe that the wide observations and the elaborate guidelines given in the Gujarat decision which are in excess of the broad test indicated by us and not necessary to support the conclusion, are unnecessary for the decision and, therefore, affirmance of the conclusion reached in the Gujarat decision should not be constured as an affirmance of the wide observation therein."
}
},
{
"from_name": null,
"id": "274378775b764460aaa9153e49ae0504",
"to_name": null,
"type": null,
"value": {
"end": 24529,
"labels": [
"PRE_RELIED"
],
"start": 24378,
"text": "We may now refer to the decision of the Delhi High Court in Commissioner of Income-tax vs. Rajasthan Mercantile Co. Ltd. etc. etc., [1995] 211 ITR 400."
}
},
{
"from_name": null,
"id": "b287c3ba2bfc4aafb2cffccdcbb9759b",
"to_name": null,
"type": null,
"value": {
"end": 24661,
"labels": [
"PRE_RELIED"
],
"start": 24530,
"text": "The true effect of Explanation 2 added in sub-section (2A) of Section 37 of the Act has been correctly understood therein as under."
}
},
{
"from_name": null,
"id": "1522c96e06424ab69713ac365fbeeb8f",
"to_name": null,
"type": null,
"value": {
"end": 24822,
"labels": [
"PRE_RELIED"
],
"start": 24661,
"text": "\n \"The declaration and the clarification involved in Explanation 2, are only for the purposes of assessments with effect from April 1,1976."
}
},
{
"from_name": null,
"id": "2a65eeac87d545f68d166ec7f46eff31",
"to_name": null,
"type": null,
"value": {
"end": 25075,
"labels": [
"PRE_RELIED"
],
"start": 24823,
"text": "This provision widens the concept of \"entertainment expenditure\" by including in its scope such of the expenditures which are otherwise traditionally understood as routine business expenditures incurred in connection with \"business-hospitality\""
}
},
{
"from_name": null,
"id": "8a843bcfdb6744cabf35b10468ad4a72",
"to_name": null,
"type": null,
"value": {
"end": 25196,
"labels": [
"PRE_RELIED"
],
"start": 25075,
"text": ". Therefore, the widened meaning cannot be extended to past periods when the amended Explanation 2 was not in operation.\""
}
},
{
"from_name": null,
"id": "e5c2edc903604cf08aa6d237ff4a7233",
"to_name": null,
"type": null,
"value": {
"end": 25211,
"labels": [
"ANALYSIS"
],
"start": 25196,
"text": "\n (at page 416)"
}
},
{
"from_name": null,
"id": "32f6ca603b07416aa987dc8e7e49637b",
"to_name": null,
"type": null,
"value": {
"end": 25302,
"labels": [
"RATIO"
],
"start": 25212,
"text": "We approve the above view which accords with the construction made by us of the provision."
}
},
{
"from_name": null,
"id": "f996ff7abb9f474b8d9e49abd940bb80",
"to_name": null,
"type": null,
"value": {
"end": 25546,
"labels": [
"RATIO"
],
"start": 25302,
"text": "\n In the view we have taken, the contrary view of the Allahabad High Court in Brij Raman Dass & Sons, [1976] 104 I.T.R. 541, cannot be accepted to be correct and so also the decisions of the different High Courts which have taken the same view."
}
},
{
"from_name": null,
"id": "fc352168704c4d9b84af3cffa8786e49",
"to_name": null,
"type": null,
"value": {
"end": 25698,
"labels": [
"RPC"
],
"start": 25547,
"text": "Accordingly, the decision of the Allahabad High Court and the other decisions of different High Courts taking that view are to be treated as overruled."
}
},
{
"from_name": null,
"id": "55e56cd7243746de84423ae5f6ad5991",
"to_name": null,
"type": null,
"value": {
"end": 25929,
"labels": [
"RPC"
],
"start": 25698,
"text": "\n Consequently, all these matters are decided in favour of the assessees and against the revenue with the result that the appeals of the assessees are allowed while the appeals, SLPs and Tax References by the revenue are dismissed."
}
},
{
"from_name": null,
"id": "c82ddf8b5b6c449f9cf3158d97761289",
"to_name": null,
"type": null,
"value": {
"end": 25939,
"labels": [
"RPC"
],
"start": 25930,
"text": "No costs."
}
}
]
}
] | 4,272 | {
"text": "PETITIONER:\nCOMMISSIONER OF INCOME-TAX\n\n Vs.\n\nRESPONDENT:\nPATEL BROTHERS & CO. LTD, ETC. ETC.\n\nDATE OF JUDGMENT09/05/1995\n\nBENCH:\nVERMA, JAGDISH SARAN (J)\nBENCH:\nVERMA, JAGDISH SARAN (J)\nSINGH N.P. (J)\nMUKHERJEE M.K. (J)\n\nCITATION: 1995 SCC (4) 485\n 1995 AIR 1829 1995 SCALE (3)650\n JT 1995 (5) 364\n\nACT:\n\nHEADNOTE:\n\nJUDGMENT:\n THE 9TH DAY OF MAY,1995 Present: Hon'ble Mr.Justice J.S.Verma Hon'ble Mr.Justice N.P.Singh Hon'ble Mr.Justice M.K.Mukherjee Mr.B.B.Ahuja, Sr. Adv. Mr.B.S.Ahuja, Ms.A.Subhashini, Mrs.A.K.Verma, Mr.A.Subba Rao, Mr.S.K.Mehta, Mr.Dhruv Mehta, Mr.K.R.Nagaraja, Mr.M.G.Ramachandran, Mr.S.C.Patel, and Ms.Janki Ramachandran, Advs. with him for the appearing parties.\n J U D G M E N T The following Judgment of the Court was delivered: IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 1455-57 OF 1976 Commissioner of Income-tax .... Appellant vs.\n Patel Brothers & Co. Ltd. .... Respondent [WITH S.L.P.(c) Nos. 1804-1805, 4257 of 1977, C.A. Nos. 6142 of 1990, 1075-1078 of 1976, S.L.P.(c) No. 1374 of 1977, C.A.\n No. 872 of 1976, S.L.P. (c) Nos. 1385 of 1977, 8865 of 1979, Tax Ref. Case Nos. 4-6 of 1979, S.L.P. (c) No.655 of 1977, C.A.No.5662 of 1995 (@ S.L.P.(c) No. 9255 of 1981), 12475 of 1985, C.A. No.2116 of 1977, C.A.No.5663 of 1995 (@ S.L.P.\n (c) No. 2318 of 1979), C.A. Nos.33, 34-35, 36, 37, 38-39, 40, 41, 42, 43-44, 45 of 1978, 698 of 1977, S.L.P. (c) No.\n 478 of 1981, C.A.Nos.1322 of 1978, 3433-34 of 1991, 1850 of 1975, 831, 832, 1585-88, 2436, 1077, 1075-76, 1079, 1092, 1103-04, 1120 of 1977, 118 of 1984, 6137 of 1990, S.L.P.(c) No. 745 of 1978, C.A. Nos. 2519 of 1980, 1746 of 1984, Tax Ref. Case No. 3 of 1979, C.A. No.2900 of 1977, S.L.P.(c) No.\n 8357 of 1983, and C.A. Nos. 2397-98 of 1977, 1581-82 of 1977, and Tax Ref. Case No. 4 of 1977].\n JUDGMENT J.S.VERMA.J.: These appeals and the connected matters involve for decision the common question of law relating to the meaning of \"entertainment expenditure\" in Section 37(2A) of the Income-tax Act, 1961 (hereinafter referred to as \"the Act\") during the relevant assessment years. The decision of the Gujarat High Court in Commissioner of Income-tax, Gujarat vs. Patel Brothers & Co. Ltd., [1977] 106 I.T.R. 424 (Guj.), on this point is challenged by the revenue in these appeals by a certificate granted under Section 261 of the Act. The connected matters involve the same point. All cases relate to the period prior to 1.4.1976 from which date only Explanation 2 inserted in sub-section (2A) of Section 37 by the Finance Act, 1983 was applied retrospectively, even though sub-section (2A) was inserted w.e.f.1.10.1967 by Taxation Laws (Amendment) Act, 1967.\n The material facts in these appeals illustrative of all connected matters, are these: The relevant assessment years are 1969-70, 1970-71 and 1971-72 of which the corresponding previous years ended on September 30, 1968, September 30, 1969 and September 30, 1970 respectively. The assessee, a limited company, claimed kitchen expenses of Rs.22,301/-, Rs.25,979/- and Rs.28,620/- respectively for these assessment years as expenses incurred for providing meals to its employees and its customers in the ordinary course of its business as customary trade usage. The Income-tax officer disallowed the expenditure to the extent of Rs.10,101/-, Rs.12,979/-, and Rs.17,305/- respectively corresponding to the expenses incurred for meals provided to the customers even though it was found that the meals were ordinary and not in any manner lavish. The assessee preferred an appeal to the Appellate Assistant Commissioner against the partial disallowance of this expenditure. The Appellate Assistant Commissioner held that the meals were bare necessity having regard to the nature of business and, therefore, the Income-tax officer was directed to grant that allowance. The matter then went in appeal to the Tribunal which confirmed the order of the Appellate Assistant Commissioner. At the instance of the revenue, the Tribunal referred to the High Court for its decision two questions of law, namely, (1) Whether, on the facts and in the circumstances of the case, the expenditure in question was in the nature of entertainment expenditure in law?\n (2) Whether, on the facts and in the circumstances of the case, the expenditure in question would be allowable only to the limited extent of Rs.5,000/- under section 37(2A) of the Income-tax Act, 1961, for each of the assessment years under reference?\nIdentical questions of law were referred for all the three assessment years.\n The High Court answered both the questions in the negative since it was found on the facts by the Tribunal that indisputably the upcountry constituents of the assessee came to Ahmedabad for the purpose of business with the assessee and having regard to the nature and magnitude of the business of the assessee, it would be necessary for the assessee to make arrangements to provide meals to them while in Ahmedabad for business with it, as it was not the revenue's case that the assessee had spent the money for throwing lavish parties for its constituents. It had been found that the expenditure was for serving ordinary meals as a bare necessity of the business. Accordingly, the references were answered against the revenue and in favour of the assessee. These appeals are by certificate against that decision. The same question is involved for decision in the connected matters.\n There is a conflict in the view taken by the High Courts on the main question. The view taken by the High Courts of Andhra Pradesh, Rajasthan, Madhya Pradesh and Karnataka is the same as that of the Gujarat High Court. The contrary view has been taken by the High Courts of Allahabad, Punjab & Haryana, Patna and Kerala. The decision of the Delhi High Court in Commissioner of Income-tax vs.\n Rajasthan Mercantile Co. Ltd.etc. etc.,[1995] 211 ITR 400 is in line with the Gujarat view. The difference in the views taken by different High Courts has led to one set of decisions against the revenue and another set in its favour.\n This is how in this court some appeals and other matters are by the revenue while the rest are by the assessees. As earlier stated, all these matters relate to the period prior to 1.4.1976 and, therefore, the decision is to be based on sub-section (2A) of Section 37 of the Act minus Explanation 2 inserted later. We would refer to the two sets of decisions after mentioning the rival contentions and the view taken by us.\n The contention of Shri B.B.Ahuja, learned counsel for the revenue is that all kinds of hospitality is entertainment and, therefore, the entire expenditure incurred under this head, even for serving ordinary meals as a bare necessity, falls under sub-section (2A) of Section 37; and the expression \"entertainment expenditure\" in sub- section (2A) must be construed to mean from the inception as defined in Explanation 2 to sub-section (2A) of Section 37, since Explanation 2 is merely clarificatory. It was urged that for this reason insertion of Explanation 2 only w.e.f.1.4.1976 is immaterial and the expression \"entertainment expenditure\" in sub-section (2A) of section 37 must be so construed even for the period prior to 1.4.1976. In reply, Shri Harish Salve, learned counsel for the assessee contended that purposive interpretation of the provision must be made. It was urged that the purpose was to curb the tendency of incurring lavish expenditure and not customary hospitality extended by offering ordinary meals as a bare necessity since the traditional meaning of every hospitality is not entertainment. It was urged that the finding in all these cases was that the allowance claimed was only in respect of the expenditure incurred in providing ordinary meals as a bare necessity and not any lavish food.\n Section 37, to the extent material, is as under: \"37. General. - (1) Any expenditure (not being expenditure of the nature described in sections 30 to 36 and not being in the nature of capital expenditure or personal expenses of the assessee), laid out or expended wholly and exclusively for the purposes of the business or profession shall be allowed in computing the income chargeable under the head \"Profits and gains of business or profession\".\n (2) Notwithstanding anything contained in sub-section (1), no expenditure in the nature of entertainment expenditure shall be allowed in the case of a company, which exceeds the aggregate amount computed as hereunder:- *** *** *** *(2A) Notwithstanding anything contained in sub-section (1) or sub- section (2), no allowance shall be made in respect of so much of the expenditure in the nature of entertainment expenditure incurred by an assessee during any previous year which expires after the 30th day of September, 1967, as is in excess of the aggregate amount computed as hereunder:- *** *** *** Explanation 1.-.........\n ***Explanation 2. -For the removal of doubts, it is hereby declared that for the purposes of this sub-section and sub-section (2B), as it stood before the 1st day of April, 1977, \"entertainment expenditure\" includes expenditure on provision of hospitality of every kind by the assessee to any person, whether by way of provision of food or beverages or in any other manner whatsoever and whether or not such provision is made by reason of any express or implied contract or custom or usage of trade, but does not include expenditure on food or beverages provided by the assessee to his employees in office, factory or other place of their work.\n **(2B) Notwithstanding anything contained in this section, no allowance shall be made in respect of expenditure in the nature of entertainment expenditure incurred within India by any assessee after the 28th day of February, 1970.\"\n (emphasis supplied) * Sub-section (2A) was inserted w.e.f.\n 1st October, 1967 by the Taxation Laws (Amendment) Act, 1967.\n ** Sub-section (2B) was inserted w.e.f.\n 1st April, 1970 by the Finance Act, 1970.\n *** Explanation 2 was inserted by the Finance Act, 1983 retrospectively w.e.f.\n 1.4.1976.\n In Sampath Iyengar's Law of Income Tax, 8th Ed., vol.\n 2, reference is made to circular No. 372 dated December, 8, 1983 of the Board, (1984) 146 ITR st 31, wherein the scope and effect of the above amendments was explained as under:- \"Provision for curbing avoidable or ostentatious expenditure in business or profession- Section 37 - 30.\n Section 37 of the Income-tax Act provides for deduction in the computation of taxable profits of any expenditure other than expenditure of the nature described in sections 30 to 36 and section 80VV, or expenditure in the nature of capital expenditure or personal expenses of the assessee, laid out or expended wholly and exclusively for the purposes of the business or profession carried on by the taxpayer.\n With a view to curbing certain categories of avoidable or ostentatious expenditure by assessees carrying on business or profession, the Finance Act has made certain amendments to section 37 of the Income-tax Act. The substance of these amendments is explained in paragraphs 31 to 34 hereunder.\n Entertainment expenditure.- 31.1 For the removal of doubts regarding the scope of the expression \"entertainment expenditure\", the Finance Act has inserted a new Explanation for the purposes of sub-section (2A) of section 37 and also sub-section (2B) of that section as that sub-section stood before 1 April, 1977. The Explanation clarifies that \"entertainment expenditure\"\n includes expenditure on provision of hospitality of every kind by the assessee to any person, whether by way of provision of food or beverages or in any other manner whatsoever and whether or not such provision is made by reason of any express or implied contract or custom, usage or trade. However, expenditure incurred in providing food or beverages by an employer to his employee in office, factory or other place of their work will not be regarded as entertainment expenditure.\n 31.2 This amendment takes effect retrospectively from 1 April, 1976, and will, accordingly, apply in relation to the assessment year 1976-77 and subsequent years.\n 31.3 Under the existing provisions of section 37(2A) of the Income-tax Act, deduction in respect of expenditure on entertainment is subject to certain limits calculated with reference to the quantum of profits as under:- (at page 2255) In the Income-tax Act, 1961, Chapter IV contains provisions relating to computation of total income wherein Section D containing Sections 28 to 44D pertains to profits and gains of business or profession. Section. 28 specifies the income which is chargeable to income tax under the head \"profits and gains of business or profession\". Section 29 says that the income referred to in Section 28 shall be computed in accordance with the provisions contained in Sections 30 to 43D. Sections 30 to 36 provide for deduction of certain expenditures incurred for the purposes of business or profession. Then comes Section 37 which contains the general provision permitting deduction of \"any expenditure ..... laid out or expended wholly and exclusively for the purposes of the business or profession ..... in computing the income chargeable under the head \"profits and gains of business or profession\", by sub- section (1), sub-section (2) therein begins with a non- obstante clause to exclude from the ambit of sub-section (1) the entertainment expenditure by saying that \"no expenditure in the nature of entertainment expenditure shall be allowed\"\n in the case of a company which exceeds the specified amount.\n Similar provision is made in sub-section (2A) for any assessee. In other words, the general provision in Section 37 is that any expenditure laid out or expended wholly or exclusively for the purposes of the business or profession shall be allowed but no expenditure in the nature of entertainment shall be allowed as stated in sub-sections (2) and (2A) in excess of the amount specified. For claiming deduction of the business expenditure according to the general rule, the test of commercial expediency is applied but exclusion is made of any expenditure which is in the nature of \"entertainment expenditure\". Without anything more, it means that an expenditure incurred for commercial expediency or usage of the trade is a permissible deduction unless it partakes the character of an entertainment expenditure, in which case the permissible limit is specified. The controversy in the present case relates to the meaning of \"entertainment expenditure\" in sub-section (2A) of Section 37 before insertion of Explanation 2 therein.\n The question involved in these matters relates to deduction of expenditure incurred in providing ordinary meals and refreshments to the outstation customers according to the customary hospitality and trade usage satisfying the general test of commercial expediency.\n Generally, \"entertainment expenditure\" is an expression of wide import. However, in the context of disallowance of \"entertainment expenditure\" as a business expenditure by virtue of sub-section (2A) of Section 37, the word \"entertainment\" must be construed strictly and not expansively. Ordinarily, \"entertainment\" connotes something which may be beneficial for the mental or physical well being but is not essential or indispensable for human existence. A bare necessity, like ordinary meal, is essential or indispensable and, therefore is not \"entertainment. If such a bare necessity is offered by another, it is hospitality but not entertainment. Unless the definition of \"entertainment\" includes hospitality, the ordinary meaning of \"entertainment\" cannot include hospitality. For this reason, the expenditure incurred in extending customary hospitality by offering ordinary meals as a bare necessity, is not \"entertainment expenditure\"\nwithout the aid of the enlarged meaning given to the words by Explanation 2 inserted w.e.f.1.4.1976. The definition in Explanation 2 is not the ordinary meaning of the words \"entertainment expenditure\", but the enlarged meaning given for the purpose of the Act w.e.f.1.4.1976.\n The object of sub-section (2A) is to disallow any lavish expenditure in the form of business expenditure. This is obvious from the several amendments made in the provision from time to time. It is so understood even in the circular issued by the Board. The object of the provision clearly is to allow deduction of the essential business expenditure incurred due to commercial expediency and according to the trade usage excluding the lavish expenditure. The dispute in the present cases relates only to the amount which has been held to be essential business expenditure of this kind incurred in providing ordinary meals as bare necessity. In the view taken by us, such expense did not come within the meaning of \"entertainment expenditure\" prior to 1.4.1976 when Explanation 2 was brought in by a retrospective amendment made in 1983 of sub-section (2A) of Section 37.\nThe finding of fact in all cases, therefore, satisfies this test to allow deduction of the expenditure incurred by each assessee and claimed under this head for the period prior to 1.4.1976.\n Sub-section (2A) was inserted w.e.f. 1st October, 1967 by the Taxation Laws (Amendment) Act, 1967 and Explanation 2 inserted therein by Finance Act, 1983 retrospectively w.e.f.\n 1.4.1976 while sub-section (2B) was inserted w.e.f. 1st April, 1970 by the Finance Act, 1970. As earlier stated, these cases relate to the period prior to 1.4.1976 from which date Explanation 2 to sub-section (2A) was inserted retrospectively. We have, therefore, to construe sub-section (2A) as it existed without the Explanation 2. The meaning of Explanation 2 is quite clear and it has enlarged the meaning to widen the tax net.\n Learned counsel for the revenue contended that Explanation 2 is clarificatory and, therefore, even without Explanation 2 the provision must be understood and construed in the same manner. It appears to us that insertion of Explanation 2 made retrospectively but restricted in its application only w.e.f.1.4.1976 is itself an indication that its application prior to 1.4.1976 is excluded. If Explanation 2 was merely clarificatory of the ordinary meaning, as contended by learned counsel for the revenue, it was unnecessary to restrict its restrospective application in this manner only from 1.4.1976. The construction we have made of sub-section (2A) of Section 37 as it existed during the relevant assessment period cannot, therefore, be affected by Explanation 2 to sub-section (2A) which was inapplicable during the relevant period.\n In our opinion, the construction we have made of the provision as it existed during the relevant period flows not merely from the language of the provision but also matches with the object thereof. It means that the expenditure incurred by the assessees in providing ordinary meals to the outstation customers according to the established business practice, was a permissible deduction inspite of sub-section (2A) of Section 37, to which the assessees were entitled in the computation of their total income for the purpose of payment of tax under the Income-tax Act, 1961 during the relevant period prior to 1.4.1976.\n We shall now refer briefly to the conflicting decisions of the several High Courts on the point. Amongst the decisions in favour of the revenue is Brij Raman Dass & Sons vs. Commissioner of Income-tax. Lucknow. [1976] 104 I.T.R.\n541 of the Allahabad High Court which has been referred and followed in subsequent decisions of other High Courts taking the view in favour of the revenue. In this line of cases are the decisions of the High Courts of Punjab & Haryana, Patna and Kerala. The other line of cases wherein the view taken is in favour of the assessee are the decisions of the HIgh Courts of Gujarat, Andhra Pradesh, Madhya Pradesh, Rajasthan and Karnataka. The main decision of the Gujarat High Court is Commissioner of Income-tax, Gujarat II vs. patel Brothers & Co. Ltd., [1977] 106 I.T.R. 424 which has been referred and followed in the later decisions in that line.\n We would first deal with the decision of the Allahabad High Court reported in [1976] 104 I.T.R. 541 which is under appeal in Civil Appeal No. 1850 of 1975 and the decision of the Gujarat High Court reported in [1977] 106 I.T.R. 424 which is under appeal in Civil Appeal Nos. 1455-57 of 1976.\nIn Brij Raman Dass & Sons (supra), it was held that sub- section (2A) of Section 37 is not an independent provision but is a proviso to sub-section (1) of section 37 since the expenditure falling under sub-section (2A) must necessarily come within sub-section (1). Thereafter, while considering the meaning of \"entertainment\" in this context, it was held as under :- \" ......... What we have to see is as to what is the meaning of the word \"entertainment\" for purposes of section 37(2A) of the Act. In the Income-tax Act, this word has not been defined and we will have to give it its general meaning. An \"entertainment expenditure\"\n would, in our opinion, include all expenditures incurred in connection with business on the entertainment of customer and constituents. The entertainment may consist of providing refreshments as in this case or it may consist of providing some other sort of entertainment.\n In Bentleys, Stokes & Lowless v.\n Beeson (H.M.Inspector of Taxes), [1952] 33 TC 491 (CA), a firm of solicitors incurred expenses in entertaining clients. The entertainment consisted of providing lunch to the clients. It was held that expenditure was incurred wholly and exclusively for purposes of business and was an allowable deduction.\n The same is the position in the instant case. The petitioner has been providing to its customers refreshments and this constitutes an expenditure in the nature of entertainment expenditure\". the entire expenditure would have been allowed but for the amendment introduced by section 37 (2A) which restricts the allowance of such an expenditure to a maximum limit of Rs. 5,000/-\"\n (at page 544) There is no more discussion on the point in this decision.\n On the other hand, the Gujarat High Court in Patel Brothers & Co. Ltd. (supra) took a different view. In this decision, certain broad tests or guidelines have also been indicated to determine the nature of expenses allowed as entertainment expenses. In our opinion, that exercise is unnecessary since the broad test indicated by us is the only thing which can safely be indicated and the determination of the question in each case is one of fact. The conclusion on the basis of the finding of fact recorded therein was stated thus : \"......... The Tribunal has agreed with the Appellate Assistant Commissioner who has found that it was customary for the assessee due to very long-established tradition that farmers who came to deliver the goods, i.e., cotton, groundnuts, rice, pulses, were given meals from the kitchen run by the assessee and if the assessee failed to give this normal courtesy, it apprehended that the farmers might offer their produce to other competitors in the field of the assessee and the assessee would lose the goods. The Appellate Assistant Commissioner has also found that the expenditure was for serving ordinary meals to the employees as well as to the farmer customers and they were not such which entertained or amused the guests since the assessee provided served meals as a bare necessity of the business. In that view of the matter, therefore, these references must be rejected and we answer the questions referred to us in the negative and against the Commissioner,......\"\n (at page 442) This conclusion of the Gujarat High Court on the finding of fact recorded by the Tribunal is consistent with the view we have taken and, therefore, we uphold the same for the reasons given by us which are sufficient to sustain the ultimate view. We may observe that the wide observations and the elaborate guidelines given in the Gujarat decision which are in excess of the broad test indicated by us and not necessary to support the conclusion, are unnecessary for the decision and, therefore, affirmance of the conclusion reached in the Gujarat decision should not be constured as an affirmance of the wide observation therein.\n We may now refer to the decision of the Delhi High Court in Commissioner of Income-tax vs. Rajasthan Mercantile Co. Ltd. etc. etc., [1995] 211 ITR 400. The true effect of Explanation 2 added in sub-section (2A) of Section 37 of the Act has been correctly understood therein as under.\n \"The declaration and the clarification involved in Explanation 2, are only for the purposes of assessments with effect from April 1,1976. This provision widens the concept of \"entertainment expenditure\" by including in its scope such of the expenditures which are otherwise traditionally understood as routine business expenditures incurred in connection with \"business-hospitality\". Therefore, the widened meaning cannot be extended to past periods when the amended Explanation 2 was not in operation.\"\n (at page 416) We approve the above view which accords with the construction made by us of the provision.\n In the view we have taken, the contrary view of the Allahabad High Court in Brij Raman Dass & Sons, [1976] 104 I.T.R. 541, cannot be accepted to be correct and so also the decisions of the different High Courts which have taken the same view. Accordingly, the decision of the Allahabad High Court and the other decisions of different High Courts taking that view are to be treated as overruled.\n Consequently, all these matters are decided in favour of the assessees and against the revenue with the result that the appeals of the assessees are allowed while the appeals, SLPs and Tax References by the revenue are dismissed. No costs.\n "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "464e2b8ee4984071af5e40fd8cbb5986",
"to_name": null,
"type": null,
"value": {
"end": 42,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "IN THE COURT OF THE PRL. SESSIONS JUDGE AT"
}
},
{
"from_name": null,
"id": "feadbeec93594a8f87bcee4cae53736c",
"to_name": null,
"type": null,
"value": {
"end": 83,
"labels": [
"PREAMBLE"
],
"start": 42,
"text": "\n MYSORE"
}
},
{
"from_name": null,
"id": "255812e1d7ca4e1dba0cd1e2f12903dd",
"to_name": null,
"type": null,
"value": {
"end": 772,
"labels": [
"PREAMBLE"
],
"start": 100,
"text": "Dated this the 25th day of March, 2010\n\nPresent: Sri.Sandesh.H.P.,B.A.L., LL.B.,\n Prl.District & Sessions Judge.\n\nPetitioner: Crl.Mis.No.450/2010\n\n Gowramma,\n W/o. Thammaiah,\n 60 years,\n R/at Doddahosuru Village,\n Periyapatna Taluk,\n Mysore District.\n\nRespondent: (By Sri.N. Karunakara, Advocate)\n\n Vs.\n\n Station House Officer,\n Bylakuppe Police Station,\n Periyapatna Taluk,\n Mysore District.\n\n (By Learned Public Prosecutor)\n\n : O R D E R S :"
}
},
{
"from_name": null,
"id": "01c4a5908cb040a0b2ecc5879d433a71",
"to_name": null,
"type": null,
"value": {
"end": 942,
"labels": [
"FAC"
],
"start": 773,
"text": "This petition is filed U/Sec.438 of Cr.PC., seeking Anticipatory Bail in respect of Cr.No.14/2010 for the offences punishable under Sec.498(A) and Sec.3 & 4 of D.P. Act."
}
},
{
"from_name": null,
"id": "8fdb7fc78f3e4ac49a1be00ffa30621a",
"to_name": null,
"type": null,
"value": {
"end": 1837,
"labels": [
"FAC"
],
"start": 942,
"text": "\n 2. Brief facts of the case are: It is alleged in the complaint that the marriage of the complainant was solemnized with the accused No.1 six years ago and she was living cordially along with her husband and parent-in-laws and out of the said wedlock, she is having two children and at the time of her marriage, her parents gave Rs.10,000/- and 15 gms. gold and from last two years, her husband and parent-in-laws insisted her to get Rs.50,000/- and an auto, otherwise, they were going to take away her life and subjected her for both mental and physical harassment and though a panchayath was held 3 months ago, these petitioners subjected her for harassment and told not to come till she gets money and an auto and she has been driven out from the house 3 months ago and hence, she lodged the complaint with the Police and the Police have registered a case against this petitioner and others."
}
},
{
"from_name": null,
"id": "0721c0954f49458d9ba1a99b5ea5389e",
"to_name": null,
"type": null,
"value": {
"end": 2136,
"labels": [
"ARG_PETITIONER"
],
"start": 1839,
"text": "It is the contention of the petitioner that she has not committed any offences as alleged and she is innocent and accused No.1 and 2 are already on bail and she undertakes to offer surety and abide by the terms and conditions that may be imposed by this Court in the event of her release on bail.\n"
}
},
{
"from_name": null,
"id": "7689d25959854ad69fc778f1ed9a70a9",
"to_name": null,
"type": null,
"value": {
"end": 2478,
"labels": [
"ARG_RESPONDENT"
],
"start": 2136,
"text": "3. The learned Public Prosecutor has filed his objection statement, reiterating the averments of the complaint and also it is contended that the offences alleged against the petitioner are punishable with maximum of 5 years and there is a chance of committing of similar type of offences and prayed this Court to dismiss the bail application."
}
},
{
"from_name": null,
"id": "c585e3435ad44e038059c4518f53b488",
"to_name": null,
"type": null,
"value": {
"end": 2572,
"labels": [
"NONE"
],
"start": 2480,
"text": "4. I heard the arguments of the petitioner's Counsel and also the learned Public Prosecutor."
}
},
{
"from_name": null,
"id": "60f99774a42148e2a0489814d7f04009",
"to_name": null,
"type": null,
"value": {
"end": 2744,
"labels": [
"ISSUE"
],
"start": 2573,
"text": "The points that arise for my consideration are: 1) Whether the petitioner has made out a ground to grant Anticipatory Bail, by invoking Sec.438 of Cr.P.C.?\n 2) What order?"
}
},
{
"from_name": null,
"id": "77d7a457fa924616aecda3f4119d0c8f",
"to_name": null,
"type": null,
"value": {
"end": 2901,
"labels": [
"ANALYSIS"
],
"start": 2744,
"text": "\n 5. My findings on the above points are as follows: Point No.(1) In the Affirmative Point No.(2) As per the final order, for the following: R E A S O N S 6."
}
},
{
"from_name": null,
"id": "8b844b737fb34e098003ab61208939af",
"to_name": null,
"type": null,
"value": {
"end": 2913,
"labels": [
"ANALYSIS"
],
"start": 2902,
"text": "Point No.1:"
}
},
{
"from_name": null,
"id": "36e6858b581a4e568548f5a4ec5fdd2c",
"to_name": null,
"type": null,
"value": {
"end": 3510,
"labels": [
"ANALYSIS"
],
"start": 2914,
"text": "On perusal of complaint, an allegation is made in the complaint that the marriage of the complainant was solemnized with the accused No.1 six years ago and at the time of marriage, her parents have given Rs.10,000/- as dowry and 15 gms. of golden ornaments and she was cordial in the matrimonial home till she got two children and from last two years, she was subjected to both mental and physical harassment and they insisted her to get Rs.50,000/- and an auto and 3 months ago, they driven her out from the matrimonial home and now, she is staying in her parental house along with her children."
}
},
{
"from_name": null,
"id": "a6ce3560e92b4333aa21a04a404c6840",
"to_name": null,
"type": null,
"value": {
"end": 3852,
"labels": [
"ARG_PETITIONER"
],
"start": 3510,
"text": "\n 7. It is the contention of the petitioner that she is innocent and not committed any offences as alleged in the complaint and the offences alleged against the petitioner are not punishable with death or imprisonment for life and a false allegation is made against her and she is ready to offer surety and there is an apprehension of arrest."
}
},
{
"from_name": null,
"id": "53dce35837594a019f513d0eb44e2e8e",
"to_name": null,
"type": null,
"value": {
"end": 4535,
"labels": [
"ARG_RESPONDENT"
],
"start": 3852,
"text": "\n 8. It is the contention of the learned P.P. that the complainant was subjected to harassment by this petitioner along with her son and on perusal of the case records, this petitioner is the mother-in-law of the complainant and a general allegation is made against this petitioner that along with her husband and son, the complainant was subjected to harassment and here, it has to be noted that in terms of the complaint averments, she was driven out from the matrimonial house 3 months ago and by taking into consideration of nature of allegation and also the complaint averments, the offences alleged against the petitioner are not punishable with death or imprisonment for life."
}
},
{
"from_name": null,
"id": "be4e92efaec1407bb25e36c2e22a19a3",
"to_name": null,
"type": null,
"value": {
"end": 4775,
"labels": [
"RATIO"
],
"start": 4536,
"text": "However, this Court can take note of the apprehension of the prosecution regarding tampering of prosecution witnesses by imposing some conditions to safeguard the interest of the prosecution and hence, I answered Point No.1 in Affirmative."
}
},
{
"from_name": null,
"id": "a1c7243cb0bb4e45aa48998c7d62a4be",
"to_name": null,
"type": null,
"value": {
"end": 4790,
"labels": [
"NONE"
],
"start": 4775,
"text": "\n 9. Point No.2"
}
},
{
"from_name": null,
"id": "8b3b1e9f18db41bdae596fad5c8088a6",
"to_name": null,
"type": null,
"value": {
"end": 4838,
"labels": [
"RPC"
],
"start": 4790,
"text": ": In the result, I pass the following: O R D E R"
}
},
{
"from_name": null,
"id": "3412a19eb9aa42b090c059b3ab8d8806",
"to_name": null,
"type": null,
"value": {
"end": 4894,
"labels": [
"RPC"
],
"start": 4839,
"text": "The bail petition filed U/Sec.438 of Cr.PC. is allowed."
}
},
{
"from_name": null,
"id": "9534e072fcff4a708650b475ebe2a755",
"to_name": null,
"type": null,
"value": {
"end": 5099,
"labels": [
"RPC"
],
"start": 4894,
"text": "\n The petitioner is ordered to be released on Anticipatory Bail on executing a personal bond for Rs.25,000/- with one surety for likesum, in the event of her arrest, subject to the following conditions: 1."
}
},
{
"from_name": null,
"id": "71f2f0ff2a994399a6b0d8f43cbf518e",
"to_name": null,
"type": null,
"value": {
"end": 5233,
"labels": [
"RPC"
],
"start": 5100,
"text": "The petitioner shall appear before the I.O., whenever the I.O. calls her till filing of the charge sheet to assist the investigation."
}
},
{
"from_name": null,
"id": "8a46a0946c854689b8f10a0ef4da8171",
"to_name": null,
"type": null,
"value": {
"end": 5335,
"labels": [
"RPC"
],
"start": 5233,
"text": "\n 2. The petitioner shall not tamper the prosecution witnesses and cause obstruction to investigation."
}
},
{
"from_name": null,
"id": "61e3522240f142f89790f72be67df43c",
"to_name": null,
"type": null,
"value": {
"end": 5565,
"labels": [
"RPC"
],
"start": 5335,
"text": "\n This order will be in force for a period of two months and the petitioner is directed to approach the Jurisdictional Magistrate for regular bail and the concerned Court is at liberty to consider the matter on merits Judiciously."
}
},
{
"from_name": null,
"id": "06232a13bbf24be9964089084bb83464",
"to_name": null,
"type": null,
"value": {
"end": 5778,
"labels": [
"NONE"
],
"start": 5565,
"text": "\n (Dictated to the Stenographer, transcribed by her on Computer, revised corrected and then pronounced by me in the open court on this day the 25th March 2010) (H.P. Sandesh) Prl.District & Sessions Judge, Mysore."
}
},
{
"from_name": null,
"id": "a503c3b067cd4fb6b25b38907ae35dcf",
"to_name": null,
"type": null,
"value": {
"end": 5784,
"labels": [
"NONE"
],
"start": 5778,
"text": "\n UR/*"
}
}
]
}
] | 4,217 | {
"text": "IN THE COURT OF THE PRL. SESSIONS JUDGE AT\n MYSORE\n\n Dated this the 25th day of March, 2010\n\nPresent: Sri.Sandesh.H.P.,B.A.L., LL.B.,\n Prl.District & Sessions Judge.\n\nPetitioner: Crl.Mis.No.450/2010\n\n Gowramma,\n W/o. Thammaiah,\n 60 years,\n R/at Doddahosuru Village,\n Periyapatna Taluk,\n Mysore District.\n\nRespondent: (By Sri.N. Karunakara, Advocate)\n\n Vs.\n\n Station House Officer,\n Bylakuppe Police Station,\n Periyapatna Taluk,\n Mysore District.\n\n (By Learned Public Prosecutor)\n\n : O R D E R S : This petition is filed U/Sec.438 of Cr.PC., seeking Anticipatory Bail in respect of Cr.No.14/2010 for the offences punishable under Sec.498(A) and Sec.3 & 4 of D.P. Act.\n 2. Brief facts of the case are: It is alleged in the complaint that the marriage of the complainant was solemnized with the accused No.1 six years ago and she was living cordially along with her husband and parent-in-laws and out of the said wedlock, she is having two children and at the time of her marriage, her parents gave Rs.10,000/- and 15 gms. gold and from last two years, her husband and parent-in-laws insisted her to get Rs.50,000/- and an auto, otherwise, they were going to take away her life and subjected her for both mental and physical harassment and though a panchayath was held 3 months ago, these petitioners subjected her for harassment and told not to come till she gets money and an auto and she has been driven out from the house 3 months ago and hence, she lodged the complaint with the Police and the Police have registered a case against this petitioner and others.\n It is the contention of the petitioner that she has not committed any offences as alleged and she is innocent and accused No.1 and 2 are already on bail and she undertakes to offer surety and abide by the terms and conditions that may be imposed by this Court in the event of her release on bail.\n3. The learned Public Prosecutor has filed his objection statement, reiterating the averments of the complaint and also it is contended that the offences alleged against the petitioner are punishable with maximum of 5 years and there is a chance of committing of similar type of offences and prayed this Court to dismiss the bail application.\n 4. I heard the arguments of the petitioner's Counsel and also the learned Public Prosecutor. The points that arise for my consideration are: 1) Whether the petitioner has made out a ground to grant Anticipatory Bail, by invoking Sec.438 of Cr.P.C.?\n 2) What order?\n 5. My findings on the above points are as follows: Point No.(1) In the Affirmative Point No.(2) As per the final order, for the following: R E A S O N S 6. Point No.1: On perusal of complaint, an allegation is made in the complaint that the marriage of the complainant was solemnized with the accused No.1 six years ago and at the time of marriage, her parents have given Rs.10,000/- as dowry and 15 gms. of golden ornaments and she was cordial in the matrimonial home till she got two children and from last two years, she was subjected to both mental and physical harassment and they insisted her to get Rs.50,000/- and an auto and 3 months ago, they driven her out from the matrimonial home and now, she is staying in her parental house along with her children.\n 7. It is the contention of the petitioner that she is innocent and not committed any offences as alleged in the complaint and the offences alleged against the petitioner are not punishable with death or imprisonment for life and a false allegation is made against her and she is ready to offer surety and there is an apprehension of arrest.\n 8. It is the contention of the learned P.P. that the complainant was subjected to harassment by this petitioner along with her son and on perusal of the case records, this petitioner is the mother-in-law of the complainant and a general allegation is made against this petitioner that along with her husband and son, the complainant was subjected to harassment and here, it has to be noted that in terms of the complaint averments, she was driven out from the matrimonial house 3 months ago and by taking into consideration of nature of allegation and also the complaint averments, the offences alleged against the petitioner are not punishable with death or imprisonment for life. However, this Court can take note of the apprehension of the prosecution regarding tampering of prosecution witnesses by imposing some conditions to safeguard the interest of the prosecution and hence, I answered Point No.1 in Affirmative.\n 9. Point No.2: In the result, I pass the following: O R D E R The bail petition filed U/Sec.438 of Cr.PC. is allowed.\n The petitioner is ordered to be released on Anticipatory Bail on executing a personal bond for Rs.25,000/- with one surety for likesum, in the event of her arrest, subject to the following conditions: 1. The petitioner shall appear before the I.O., whenever the I.O. calls her till filing of the charge sheet to assist the investigation.\n 2. The petitioner shall not tamper the prosecution witnesses and cause obstruction to investigation.\n This order will be in force for a period of two months and the petitioner is directed to approach the Jurisdictional Magistrate for regular bail and the concerned Court is at liberty to consider the matter on merits Judiciously.\n (Dictated to the Stenographer, transcribed by her on Computer, revised corrected and then pronounced by me in the open court on this day the 25th March 2010) (H.P. Sandesh) Prl.District & Sessions Judge, Mysore.\n UR/* "
} |
{
"group": "Criminal"
} | [
{
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{
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"labels": [
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],
"start": 47,
"text": "NON-REPORTABLE\n\n IN THE SUPREME COURT OF INDIA\nCRIMINAL APPELLATE JURISDICTION\n\nCRIMINAL APPEAL NOS. 1791-1795 OF 2014\n\nCENTRAL BUREAU OF INVESTIGATION .....APPELLANT(S)\n VERSUS\n\nSAKRU MAHAGU BINJEWAR AND ORS. .....RESPONDENT(S)\nEtc. Etc.\n\n WITH\n\nCRIMINAL APPEAL NO. 1802 OF 2014\n\n AND\n\nCRIMINAL APPEAL NO. 1801 OF 2014\n\n ORDER"
}
},
{
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"labels": [
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],
"start": 470,
"text": "\n SURYA KANT, J."
}
},
{
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"type": "labels",
"value": {
"end": 813,
"labels": [
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],
"start": 486,
"text": "\n This is a set of cross-appeals preferred by (i) Central Bureau of Investigation (hereinafter referred to as \"CBI\"), and (ii) the convicts against the judgment dated 14th July, 2010 passed by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur whereby five criminal appeals have been decided by way of a common order."
}
},
{
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"to_name": "text",
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"value": {
"end": 1047,
"labels": [
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],
"start": 814,
"text": "While the CBI is aggrieved by the commutation of death sentence, the convicts (hereinafter referred to as the `respondentsaccused' in the lead case) have questioned their conviction by the Special Court as affirmed by the High Court."
}
},
{
"from_name": "label",
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"value": {
"end": 1109,
"labels": [
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],
"start": 1047,
"text": "\n 2) Firstly, a very brief reference to the facts may be made."
}
},
{
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"id": "d5fe1c48021b4c5d9b97ad63ebd84792",
"to_name": "text",
"type": "labels",
"value": {
"end": 1284,
"labels": [
"FAC"
],
"start": 1110,
"text": "Bhaiyyalal Sudam Bhotmange was residing on the outskirts of Khairlanji Village called as `Toli' with his wife Surekha, two sons, Sudhir and Roshan and one daughter, Priyanka."
}
},
{
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"to_name": "text",
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"value": {
"end": 1330,
"labels": [
"FAC"
],
"start": 1285,
"text": "They belong to Mahar caste (Scheduled Caste)."
}
},
{
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"id": "4f2c5ad84c7e4660a52679a1bb31d8b7",
"to_name": "text",
"type": "labels",
"value": {
"end": 1408,
"labels": [
"FAC"
],
"start": 1331,
"text": "Siddharth Gajbhiye (PW-18) of nearby Village Dhusala was their family friend."
}
},
{
"from_name": "label",
"id": "992245b8f2374488996e14256b3bb2bb",
"to_name": "text",
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"value": {
"end": 1629,
"labels": [
"FAC"
],
"start": 1409,
"text": "Siddharth Gajbhiye came to the house of Bhaiyyalal Sudam Bhotmange in the morning when Accused no. 2 (Sakru) met him and demanded back wages on account of which there arose a dispute and Siddharth Gajbhiye slapped Sakru."
}
},
{
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"id": "1b4ba65885b94d78977937fe8273225b",
"to_name": "text",
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"value": {
"end": 1735,
"labels": [
"FAC"
],
"start": 1630,
"text": "In the evening when Siddharth Gajbhiye was proceeding towards Kandri, he was assaulted by some villagers."
}
},
{
"from_name": "label",
"id": "8f848c2eebf74978b884e5633c34dc68",
"to_name": "text",
"type": "labels",
"value": {
"end": 1870,
"labels": [
"FAC"
],
"start": 1736,
"text": "Upon hearing the news of the assault, Surekha Bhotmange and Priyanka rushed to the spot and brought Siddharth Gajbhiye to their house."
}
},
{
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"id": "f5d4b5e5082541f8967a3b213b1aa8f1",
"to_name": "text",
"type": "labels",
"value": {
"end": 2000,
"labels": [
"FAC"
],
"start": 1871,
"text": "After two days, Siddharth Gajbhiye lodged a report at Andhalgaon Police Station pursuant to which Crime No. 52/06 was registered."
}
},
{
"from_name": "label",
"id": "dfad51b2762e4bf89c0af426c725f1de",
"to_name": "text",
"type": "labels",
"value": {
"end": 2097,
"labels": [
"FAC"
],
"start": 2001,
"text": "Surekha Bhotmange gave a statement identifying the persons who had assaulted Siddharth Gajbhiye."
}
},
{
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"id": "56261e873db84d4db4688861a089d5f0",
"to_name": "text",
"type": "labels",
"value": {
"end": 2158,
"labels": [
"FAC"
],
"start": 2098,
"text": "On the basis of that statement, the attackers were arrested."
}
},
{
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"id": "ce4feecf665f4aee9792570c07a48d12",
"to_name": "text",
"type": "labels",
"value": {
"end": 2210,
"labels": [
"FAC"
],
"start": 2159,
"text": "They were released on bail on 29th September, 2006."
}
},
{
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"id": "9aee0a97c8d64f7fb5c128f9248d6caf",
"to_name": "text",
"type": "labels",
"value": {
"end": 2434,
"labels": [
"FAC"
],
"start": 2210,
"text": "\n 3) On 29th September, 2006 itself, at about 6.00 pm to 6.30 pm, a group of about 40 persons surrounded the house of Bhaiyyalal Sudam Bhotmange with some of them loudly implying that they were falsely implicated by Surekha."
}
},
{
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"id": "ca9431b7bdf846aa977a826247b95eac",
"to_name": "text",
"type": "labels",
"value": {
"end": 2617,
"labels": [
"FAC"
],
"start": 2435,
"text": "On seeing the crowd, Bhaiyyalal Sudam Bhotmange ran from the house whereas Surekha Bhotmange came out of the house and set fire to her cattle shed probably to ward off the attackers."
}
},
{
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"id": "200bc17fc9574bb19f83cee831d0cc89",
"to_name": "text",
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"value": {
"end": 2697,
"labels": [
"FAC"
],
"start": 2618,
"text": "Then Surekha also tried to escape but she was chased and caught by the accused."
}
},
{
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"id": "51aa9f0620844718bddc4116b3fec983",
"to_name": "text",
"type": "labels",
"value": {
"end": 2764,
"labels": [
"FAC"
],
"start": 2698,
"text": "She was assaulted with sticks, bicycle chains and kicks and fists."
}
},
{
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"id": "b576469fd0684b78b456b9d845240250",
"to_name": "text",
"type": "labels",
"value": {
"end": 2895,
"labels": [
"FAC"
],
"start": 2765,
"text": "Sudhir, son of Bhaiyyalal Sudam Bhotmange, tried to run away but he too was caught and assaulted in the same manner as his mother."
}
},
{
"from_name": "label",
"id": "6a88d47bbf3f4ff6a17c091e08f3825c",
"to_name": "text",
"type": "labels",
"value": {
"end": 2963,
"labels": [
"FAC"
],
"start": 2896,
"text": "His body was dragged near the body of Surekha who had already died."
}
},
{
"from_name": "label",
"id": "5518ee221c234c788ec2ac85f31c5952",
"to_name": "text",
"type": "labels",
"value": {
"end": 3048,
"labels": [
"FAC"
],
"start": 2964,
"text": "All the accused then searched for other family members of Bhaiyyala Sudam Bhotmange."
}
},
{
"from_name": "label",
"id": "ad95bcced9cd46d1aea10c6a53eb7529",
"to_name": "text",
"type": "labels",
"value": {
"end": 3094,
"labels": [
"FAC"
],
"start": 3049,
"text": "They traced Roshan in the nearby cattle shed."
}
},
{
"from_name": "label",
"id": "5a0cdd69d50540b4927505f5f0404449",
"to_name": "text",
"type": "labels",
"value": {
"end": 3238,
"labels": [
"FAC"
],
"start": 3095,
"text": "Roshan also tried to run away towards the hand pump but was unfortunately caught and he was assaulted in a manner alike his mother and brother."
}
},
{
"from_name": "label",
"id": "9be56fcbc2294d8e8ba00838a4824f1c",
"to_name": "text",
"type": "labels",
"value": {
"end": 3338,
"labels": [
"FAC"
],
"start": 3239,
"text": "The accused thereafter caught hold of Priyanka and beat her in the same fashion as described above."
}
},
{
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"id": "0a361c8aa5184a5bb5bac45809f24733",
"to_name": "text",
"type": "labels",
"value": {
"end": 3417,
"labels": [
"FAC"
],
"start": 3338,
"text": "\nRoshan and Priyanka also met with the same fate and they too died at the spot."
}
},
{
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"id": "db51f230bbdb4595af5c003c8239e0cd",
"to_name": "text",
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"value": {
"end": 3540,
"labels": [
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],
"start": 3418,
"text": "The accused persons, thereafter, arranged for a bullock cart; took all four dead bodies therein and threw them in a canal."
}
},
{
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"end": 3662,
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"start": 3542,
"text": "4) Bhaiyyalal Sudam Bhotmange, after running from his house, went to Dhusala and met Sidharth and narrated the incident."
}
},
{
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"end": 3719,
"labels": [
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],
"start": 3663,
"text": "Sidharth made a phone call to Andhalgaon Police Station."
}
},
{
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"labels": [
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],
"start": 3720,
"text": "Thereafter, Bhaiyyalal Sudam Bhotmange, accompanied by the son of Siddharth, went to Andhalgaon Police Station but did not lodge any report as he was totally frightened."
}
},
{
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"end": 4000,
"labels": [
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],
"start": 3890,
"text": "On the next morning, Bhaiyyalal Sudam Bhotmange went in search of his family members but could not trace them."
}
},
{
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"id": "81604b4d764b44948eff75d92a90aa4b",
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"end": 4065,
"labels": [
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],
"start": 4001,
"text": "He then went to Andhalgaon Police station and lodged the report."
}
},
{
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"value": {
"end": 4228,
"labels": [
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],
"start": 4066,
"text": "By this time, the police had received information that the dead body of a girl with a tatoo mark `Priyanka' on the hand was found in a canal which was fished out."
}
},
{
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"id": "648c4e38aa3a400093616d73ca6a1eb1",
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"end": 4293,
"labels": [
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],
"start": 4229,
"text": "Bhaiyyalal Sudam Bhotmange identified the dead body of Priyanka."
}
},
{
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"end": 4462,
"labels": [
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],
"start": 4294,
"text": "On the same day, a case under Sections 120B, 147, 148, 149, 302 and 201 of the Indian Penal Code (for short, \"IPC\") read with Section 3(1)(x) of the Act was registered."
}
},
{
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"end": 4668,
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],
"start": 4462,
"text": "\n 5) The Sub-Divisional Police Officer arrested about eighteen persons on suspicion on 1st October, 2006 and on that very day, three more dead bodies of Surekha, Sudhir and Roshan Bhotmange were also found."
}
},
{
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"value": {
"end": 4795,
"labels": [
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],
"start": 4669,
"text": "Since the investigation was not being carried out properly, the State Government handed over the further probe to State C.I.D."
}
},
{
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"id": "601e96dcdc4e4e5f941be27363a34d92",
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"end": 5016,
"labels": [
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],
"start": 4795,
"text": "\nHowever, not much progress could be made by the State C.I.D. also, hence vide Notification dated 20th November, 2006, the State Government requested Union of India to hand over the investigation of the case to the C.B.I."
}
},
{
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"end": 5453,
"labels": [
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],
"start": 5017,
"text": "The investigation was thereafter taken over by the CBI, who after recording statements of several witnesses including statements under Section 164 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the `Code'), sought discharge of thirty six suspects and also submitted Charge-Sheet against the eleven accused for the offences punishable under Sections 147, 148, 149, 120B and 302 of the IPC and offences under the Act."
}
},
{
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"end": 5748,
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],
"start": 5453,
"text": "\n 6) The Special Court at Bhandara held the respondentsaccused guilty of committing the aforesaid offences and awarded death penalty to Accused nos. 2, 3 and 6 to 9 whereas Accused nos. 1 and 11 were sentenced with life imprisonment and Accused nos. 4, 5 & 10 were acquitted of all the offences."
}
},
{
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"end": 5969,
"labels": [
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],
"start": 5749,
"text": "Accused nos. 1 to 3, 6 to 9 and 11 were not found guilty of committing any offence under the provisions of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the \"Act\")."
}
},
{
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"end": 6153,
"labels": [
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],
"start": 5970,
"text": "The aforementioned judgment gave rise to five cross-appeals at the instance of CBI as well as the convicts besides Reference Case No. 4 of 2008 for the confirmation of death sentence."
}
},
{
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"text": "\n 7) The High Court weighed the aggravating circumstances vis-a-vis mitigating circumstances as summarised in paragraphs 45 and 45A of its judgment under appeal, and came to the conclusion that in the light of the tests laid down by this Court in Bachan Singh vs. State of Punjab1 and Machhi Singh and Others vs. State of Punjab2, no case of imposing death sentence on Accused Nos. 2, 3 and 6 to 9 was made out for the reasons that (i) the incident did not take place on account of caste stature but the root cause was that the accused felt that they were falsely implicated in the crime of beating Sidharth Gajbhiye by Surekha and Priyanka; (ii) there is no evidence to suggest that the accused have a criminal record.\n 8) The High Court, thereafter proceeded to hold that the most appropriate sentence to be inflicted upon the respondentsaccused should be imprisonment for life with a condition that they shall not be released before completing 25 years of actual imprisonment including the period already undergone by them."
}
},
{
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"end": 7616,
"labels": [
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],
"start": 7181,
"text": "9) As regards the conviction of Accused nos. 1 to 3, 6 to 9 and 11 (who are in cross-appeals), the High Court firstly scrutinised the medical evidence and relying upon the statement of the Medical Officer, Dr. Avinash John Shende (PW-14) who conducted post-mortem on the dead bodies, it observed that the testimony of this witness could not be 1 (1980) 2 SCC684 2 (1983) 3 SCC470 shaken on any material aspect in the cross-examination."
}
},
{
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"end": 7695,
"labels": [
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],
"start": 7617,
"text": "The High Court thereafter held that all the four victims died homicidal death."
}
},
{
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"end": 7786,
"labels": [
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],
"start": 7696,
"text": "This conclusion was further corroborated by the inquest panchnama of the deceased persons."
}
},
{
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],
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"text": "\n 10) The High Court then dissected the entire oral evidence, especially the statements of five eye-witnesses."
}
},
{
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"labels": [
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],
"start": 7897,
"text": "The evidence of PW-2 (Mukesh Pusam) and PW-3 (Suresh Khandate) was tested on the touchstone of probabilities whereupon the High Court held that their statements inspired confidence and established the role of accused Nos. 1 to 3, 6 to 9 and 11."
}
},
{
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"end": 8407,
"labels": [
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],
"start": 8142,
"text": "The High Court also found the version of PW-5 (Rashtrapal Narnavare), PW-18 (Siddharth Gajbhiye), PW-19 (Dinesh Dhande) and PW-22 (Premlal Walke) worth credible and fully corroborative of the medical evidence to uphold the conviction of the above-mentioned accused."
}
},
{
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"value": {
"end": 9029,
"labels": [
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],
"start": 8408,
"text": "The High Court nevertheless disbelieved PW-20 (Mahadeo Zanzad) and also did not deem it necessary to bank upon the extra judicial confession allegedly made by Accused No. 2 (Sakru) before PW-10 (Anil Lede) and by Accused No. 8 (Jagdish Ratan Mandlekar) before PW-16 (Sunil Lede).\n 11) Consequently, the High Court upheld the conviction of Accused Nos. 1 to 3, 6 to 9 and 11 though it allowed in part the appeal of Accused Nos. 2,3 and 6 to 9 to the extent that their death sentence was commuted to imprisonment for life with the condition that they shall not be released before completing 25 years of actual imprisonment."
}
},
{
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"end": 9240,
"labels": [
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],
"start": 9029,
"text": "\n 12) While the CBI has questioned the rejection of death reference by the High Court in the lead case, the respondentsaccused therein have filed the cross-appeals assailing their conviction by the courts below."
}
},
{
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"end": 9521,
"labels": [
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],
"start": 9240,
"text": "\n 13) The following questions, thus, fall for consideration in these appeals: (i) Whether the High Court was justified in commuting the death sentence to life imprisonment with a condition that the respondentsaccused shall have to undergo actual sentence of not less than 25 years?"
}
},
{
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"end": 9725,
"labels": [
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],
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"text": "\n (ii) Whether the case in hand falls in the category of rarest of the rare cases and the offence(s) committed are of the gravest nature, such that no punishment less than the death sentence will suffice?"
}
},
{
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"end": 9862,
"labels": [
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],
"start": 9725,
"text": "\n (iii) Whether the conviction of appellants in the cross-appeals, namely, the respondentsaccused in the main case is sustainable in law?"
}
},
{
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"labels": [
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"text": "\n 14) We have heard learned counsel for the parties at a considerable length on the questions formulated above and have also gone through the relevant record with their assistance.\n 15) The Constitution Bench of this Court in Bachan Singh (supra), while upholding the constitutional validity of death penalty for murder as provided in Section 302 IPC and the sentencing procedure embodied in Section 354(3) of the Code, also elucidated the principles to be adhered to by the courts in the matter of award of death sentence."
}
},
{
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"end": 10694,
"labels": [
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],
"start": 10386,
"text": "This Court emphatically expressed that the courts will discharge the onerous function with evermore scrutiny and care and will be guided by the legislative policy outlined in Section 354(3) of the Code, viz., for persons convicted of murder, life imprisonment is the `rule' and death sentence an `exception'."
}
},
{
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"value": {
"end": 10849,
"labels": [
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],
"start": 10695,
"text": "The court thus viewed that `a real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality."
}
},
{
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"id": "3c1d103b18654efa928892bc85943f76",
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"value": {
"end": 10962,
"labels": [
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],
"start": 10850,
"text": "That ought to be done save in the rarest of rare case when the alternative option is unquestionably foreclosed'."
}
},
{
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"id": "f25fb99c6df341ce84de8852ed61b6de",
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"end": 11514,
"labels": [
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],
"start": 10962,
"text": "\n 16) In Machhi Singh and others (supra), this Court postulated the following two questions to be considered as a test to determine the `rarest of rare' cases in which death sentence can be inflicted: (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?\n (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?"
}
},
{
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"id": "38c917833871454cbeb32d5c612391b2",
"to_name": "text",
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"value": {
"end": 11810,
"labels": [
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],
"start": 11514,
"text": "\n 17) Machhi Singh and others (supra) further summarised the guidelines emanating from Bachan Singh's (supra), though to be applied to the facts of each individual case and thus it ruled that: \"(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability."
}
},
{
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"id": "07f1f0339bce45838fdb742239ce8ea2",
"to_name": "text",
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"value": {
"end": 11977,
"labels": [
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],
"start": 11810,
"text": "\n (ii) Before opting for the death penalty the circumstances of the `offender' also require to be taken into consideration along with the circumstances of the `crime'."
}
},
{
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"id": "361e2774eaef4a5891cee544e2b51cee",
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"end": 12050,
"labels": [
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],
"start": 11977,
"text": "\n (iii) Life imprisonment is the rule and death sentence is an exception."
}
},
{
"from_name": "label",
"id": "c63a646b1a2049e28c52536a7e3c155e",
"to_name": "text",
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"value": {
"end": 13991,
"labels": [
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],
"start": 12051,
"text": "Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.\n (iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.\"\n 18) It goes without saying that the parameters evolved in Bachan Singh's (supra) and Machhi Singh's (supra) have been consistently followed by the Courts depending upon the facts and circumstances of each case wherever the question of imposition of death sentence has arisen.\n 19) On an indepth consideration of the facts and the circumstances in which the ghastly crime of taking away the lives of four innocent persons took place, we find that the High Court was fully conscious of the binding principles illustratively laid down by this Court in the cited decisions and after carefully drawing the balance-sheet of `aggravating' and `mitigating' circumstances, the High Court rightly deemed it appropriate that the instant case does not fall amongst the exceptional category of `rarest of the rare' cases where the extreme penalty of death and death alone must be inflicted.\n 20) It needs no elaborate discussion that the judicial discretion conferred upon a Court in the matter of awarding sentence is an onerous duty which has to be exercised keeping in view the settled and binding dictates including the Doctrine of Proportionality for assigning justifiable reasons to award death penalty and also to keep in mind the Doctrine of Reform and Rehabilitation."
}
},
{
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"to_name": "text",
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"value": {
"end": 14066,
"labels": [
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],
"start": 13992,
"text": "[Ref: Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashtra3].\n 21)"
}
},
{
"from_name": "label",
"id": "e39738470c8e419984750275c6b2d299",
"to_name": "text",
"type": "labels",
"value": {
"end": 14342,
"labels": [
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],
"start": 14067,
"text": "We cannot be oblivious of the fact that the High Court in the instant case was alive to the question of the adequacy of sentence and has not commuted the death sentence into life imprisonment, as understood in the ordinary parlance to be a term of 14 years imprisonment only."
}
},
{
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"id": "a54d7cc2b0af4739906a12b83b98f0d4",
"to_name": "text",
"type": "labels",
"value": {
"end": 14679,
"labels": [
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],
"start": 14343,
"text": "The High Court, following the evolution of a new concept of sentencing conceptualized by this Court in Swamy Shraddananda (2) Alias Murali Manohar Mishra vs. State of Karnataka4 and several other previous decisions, has held that the respondentsaccused shall not be released from prison unless they complete 25 years of actual sentence."
}
},
{
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"id": "1c320eb1424e421496e25db8981a22f0",
"to_name": "text",
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"value": {
"end": 14859,
"labels": [
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],
"start": 14679,
"text": "\n 22) This Court in Swamy Shraddananda (2) (supra) has held that the punishment of imprisonment for life \"means a sentence of imprisonment for the convict in the rest of his life\"."
}
},
{
"from_name": "label",
"id": "991eb972fb4e45589c6f8fe3151d93a7",
"to_name": "text",
"type": "labels",
"value": {
"end": 14992,
"labels": [
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],
"start": 14860,
"text": "It was explained that Section 57 of the IPC does not in any way limit the punishment of imprisonment for life to a term of 20 years."
}
},
{
"from_name": "label",
"id": "53c8b6b18b964e86be7cea9a2515457e",
"to_name": "text",
"type": "labels",
"value": {
"end": 15130,
"labels": [
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],
"start": 14993,
"text": "After explaining the true import of Sections 432, 433 and 433A of the Code, the Court very aptly explained the two aspects of sentencing."
}
},
{
"from_name": "label",
"id": "26660a51ff1241f092cc65c1e4513a36",
"to_name": "text",
"type": "labels",
"value": {
"end": 15449,
"labels": [
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],
"start": 15131,
"text": "In a given case, the sentence may be excessively and unduly harsh or it may be highly 3 (2009) 6 SCC 498 4 (2008) 13 SCC 767 disproportionately inadequate where the Court comes to the conclusion that the case falls short of the `rarest of the rare' category and thus may feel reluctant in endorsing the death sentence."
}
},
{
"from_name": "label",
"id": "5721e54ae0cc46bb981ffb0f67292ea2",
"to_name": "text",
"type": "labels",
"value": {
"end": 15728,
"labels": [
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],
"start": 15450,
"text": "It was thus viewed that a far more just, reasonable and proper course would be to expand the options and to take over, as a matter of fact what lawfully belongs to the court, namely, the formalization of `special category' of sentence of more than 14 years' actual imprisonment."
}
},
{
"from_name": "label",
"id": "6d6fbb7d058243a98a35d82761448fd3",
"to_name": "text",
"type": "labels",
"value": {
"end": 16390,
"labels": [
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],
"start": 15728,
"text": "\n 23) The doubts, if any, as regards to the powers of the High Court or this Court in awarding a `special sentence' as a substitute for death sentence, have been set at rest by the Constitution Bench in Union of India Vs. V. Sriharan Alias Murugan and others5, affirming the view taken in Swamy Shraddananda (2) (supra) and holding that: \"105. ...xx......xx.......xx.... the power derived from the Penal Code for any modified punishment within the punishment provided for in the Penal Code for such specified offences can only be exercised by the High Court and in the event of further appeal only by the Supreme Court and not by any other court in this country."
}
},
{
"from_name": "label",
"id": "7902bff779da40498933f5ef07892347",
"to_name": "text",
"type": "labels",
"value": {
"end": 16674,
"labels": [
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],
"start": 16391,
"text": "To put it differently, the power to impose a modified punishment providing for any specific term of incarceration or till the end of the convicts life as an alternate to death penalty, can be exercised only by the High Court and the Supreme Court and not by any other inferior court."
}
},
{
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"value": {
"end": 16694,
"labels": [
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],
"start": 16674,
"text": "\n 106"
}
},
{
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"end": 17021,
"labels": [
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],
"start": 16694,
"text": ". Viewed in that respect, we state that the ratio laid down in Swamy Shraddananda (2)4 that a special category of sentence; instead of death; for a term exceeding 14 years and put that category beyond application of remission is well 5 (2016) 7 SCC 1 founded and we answer the said question in the affirmative.\n "
}
},
{
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"value": {
"end": 17278,
"labels": [
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],
"start": 17021,
"text": "We are, therefore, not in agreement with the opinion expressed by this Court in Sangeet vs. State of Haryana that the deprival of remission power of the appropriate as not permissible is not in consonance with the law and we specifically overrule the same.\""
}
},
{
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"to_name": "text",
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"labels": [
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],
"start": 17278,
"text": "\n 24) The recourse followed in the case in hand by the High Court in substituting the death penalty by imposing the sentence for a term not less than 25 years' actual imprisonment has got the seal of approval of this court in V. Sriharan (supra) case, which has been consistently and continuously followed in a catena of later decisions also."
}
},
{
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"id": "fc900bcc3d29457ea30ca88f55c57795",
"to_name": "text",
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"value": {
"end": 18050,
"labels": [
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],
"start": 17621,
"text": "[Ref. (i) Raju Jagdish Paswan vs. The State of Maharashtra ; 2019 (1) SCALE 735; (ii) Jagdish Vs. State of Madhya Pradesh; 2019(3) SCALE 888 & (iii) Sachin Kumar Singhraha vs. State of Madhya Pradesh; 2019(5)SCALE 39] 25) The cited decisions have indeed more intuitive and persuasive value in the instant case for the reason that the death sentence in those cases was commuted regardless of its confirmation by the High Court(s)."
}
},
{
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"id": "1a98d780f3b84886910be7477c709dec",
"to_name": "text",
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"value": {
"end": 18150,
"labels": [
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],
"start": 18051,
"text": "In the present case, the High Court itself did not find it a fit case to affirm the death sentence."
}
},
{
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"end": 18225,
"labels": [
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],
"start": 18151,
"text": "We, therefore, see no reason to take a view different than the High Court."
}
},
{
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"end": 18280,
"labels": [
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],
"start": 18226,
"text": "Question Nos. (i) and (ii) stand answered accordingly."
}
},
{
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"end": 19108,
"labels": [
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],
"start": 18280,
"text": "\n 26) Adverting to the cross-appeals preferred by the respondents accused, their Learned Counsel strenuously urged that it is a fit case for extending the benefit of doubt for:--(i) the statements of eye- witnesses (PW-2, PW-3, PW-17, PW-19 and PW-22) do not inspire confidence and are full of material inconsistencies and contradictions; (ii) there has been inordinate and unexplained delay of 22-26 hours in lodging the FIR by Bhaiyyalal Sudam Bhotmange (PW-17); (iii) there is also an unexplained delay in recording the statements of witnesses, especially the eye-witnesses which is fatal to the prosecution case; (iv) the medical evidence is at variance with the ocular testimony, hence no reliance can be placed on the statements of eye-witnesses; and that (v) the prosecution evidence is tainted and full of discrepancies."
}
},
{
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"end": 19206,
"labels": [
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],
"start": 19108,
"text": "\n 27) Having pondered over the above summarized submissions, we do not find any substance therein."
}
},
{
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"value": {
"end": 19468,
"labels": [
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],
"start": 19207,
"text": "We say so for the reasons that Dr.\nAvinash John Shende (PW-14) who conducted the post-mortem on the dead bodies of the victims found multiple `external' injuries sustained by them as reproduced by the High Court in paragraphs 15 to 16C of the impugned judgment."
}
},
{
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"id": "abc33837f6974e818657dc06c485d190",
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"value": {
"end": 19597,
"labels": [
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],
"start": 19469,
"text": "All those injuries were ante-mortem and each victim had suffered two or more injuries on vital parts of their respective bodies."
}
},
{
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"labels": [
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],
"start": 19598,
"text": "All such injuries were found sufficient enough to have caused death in the ordinary course of nature."
}
},
{
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"end": 19870,
"labels": [
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],
"start": 19701,
"text": "On `internal' examination of the dead bodies of the victims, PW- 14 found hemorrhage under the scalp in the cases of all the victims, caused mostly due to head injuries."
}
},
{
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"id": "3fc98fa55e1f4f8b8cfefbfb246c2157",
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"end": 20005,
"labels": [
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],
"start": 19871,
"text": "In the case of Surekha Bhotmange, the medical evidence further suggested that some of the injuries were caused by sharp edged weapons."
}
},
{
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"id": "a1d4352a6dff4b3d90478d86a928c379",
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"end": 20160,
"labels": [
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],
"start": 20006,
"text": "His evidence coupled with the inquest panchanama (Exhibits 86, 87, 88 and 91), unequivocally establishes that all the four victims died a homicidal death."
}
},
{
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],
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"text": "\n 28) There is an eye-witness account consisting of statements of PW- 2, PW-3, PW-19, PW-20 and PW-22."
}
},
{
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"end": 20347,
"labels": [
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],
"start": 20263,
"text": "Each one of them had witnessed the occurrence and identified most of the assailants."
}
},
{
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"value": {
"end": 20450,
"labels": [
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],
"start": 20348,
"text": "They also elaborated as to how the four hapless victims were brutally killed with premeditated intent."
}
},
{
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"value": {
"end": 20774,
"labels": [
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],
"start": 20451,
"text": "Both the courts below have evaluated the statements of eye-witnesses with specific reference to the minor discrepancies except that the High Court has declined to rely upon the statement of Mahadeo Zanzad (PW-20), and rightly so, as he had made a false statement to the Magistrate for which he was prosecuted and convicted."
}
},
{
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"end": 21016,
"labels": [
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],
"start": 20775,
"text": "Even after discarding the version of this witness in entirety there is overwhelming oral evidence on record, the testimony whereof could not be impeached in cross-examination, to establish the guilt of the respondentaccused beyond any doubt."
}
},
{
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"end": 21190,
"labels": [
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],
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"text": "There is no reason to falsely implicate the respondentsaccused, more so, when there is not even a whisper that any of the witnesses had an axe to grind against the convicts."
}
},
{
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"labels": [
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],
"start": 21191,
"text": "Similarly, the statement of Bhaiyyalal Sudam Bhotmange (PW-17) with respect to the motive of the crime cannot be discarded merely because he is the husband or the father of the victims."
}
},
{
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"end": 21454,
"labels": [
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],
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"text": "Relationship, per-se, is not a factor to affect the credibility of a witness."
}
},
{
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"id": "65d5e958713045b4a3b03425f461c50d",
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"end": 21634,
"labels": [
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],
"start": 21454,
"text": "\n 29) The delay of some hours in registration of the FIR has also been convincingly explained by the complainant--Bhaiyyalal Sudam Bhotmange (PW-17) and Siddharth Gajbhiye (PW-18)."
}
},
{
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"id": "ebcc2c78977147f6b1cfc66bd0749c4b",
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"end": 21826,
"labels": [
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],
"start": 21635,
"text": "Where the prosecution has satisfactorily explained the cause of delay in the registration of FIR, there is no rhyme or reason for a court to look at the prosecution case with suspicious eyes."
}
},
{
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"id": "0866bbe21e5d4f4ca446e5382150fddd",
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"end": 21938,
"labels": [
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],
"start": 21827,
"text": "The plea of so-called delay in recording the statements of the witnesses, is to be merely noticed and rejected."
}
},
{
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"end": 22104,
"labels": [
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],
"start": 21939,
"text": "It has come on record that the investigation was not carried out properly by the local police, therefore, the State Government handed over the case to the State CID."
}
},
{
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"id": "be6d587b4b3b49759b78f74b232e4b10",
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"end": 22209,
"labels": [
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],
"start": 22105,
"text": "No effective progress could be made by the State CID also, hence the investigation was entrusted to CBI."
}
},
{
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"id": "d36d4450424242ba9857821636f3ceb8",
"to_name": "text",
"type": "labels",
"value": {
"end": 22322,
"labels": [
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],
"start": 22210,
"text": "It is thereafter that the statements of several witnesses including under Section 164 of the Code were recorded."
}
},
{
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"id": "945a2386b1d44fad8f2f630f6ab8b23f",
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"type": "labels",
"value": {
"end": 22396,
"labels": [
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],
"start": 22323,
"text": "The long drawn process has caused no prejudice to the respondentsaccused."
}
},
{
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"id": "17a2d639cc8d40faa3fdfb481f747c65",
"to_name": "text",
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"end": 22538,
"labels": [
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],
"start": 22396,
"text": "\n 30) There are concurrent findings of facts by the Special Court as well as the High Court holding Accused Nos. 1 to 3, 6 to 9 and 11 guilty."
}
},
{
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"value": {
"end": 22823,
"labels": [
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],
"start": 22538,
"text": "\nRegardless of the restrictive scope of further re-appraisal and re- appreciation of the evidence, we have minutely scanned the ocular as well as medical evidence and are of the firm view that there is no scope of deviation from the well-reasoned conclusions drawn by the courts below."
}
},
{
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"value": {
"end": 22874,
"labels": [
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],
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"text": "No interference by this Court is, thus, warranted."
}
},
{
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"labels": [
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],
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"text": "\n 31) In the light of the above scrutinous analysis, we do not find any ground to interfere with the judgments under appeal."
}
},
{
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"value": {
"end": 23093,
"labels": [
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],
"start": 22999,
"text": "Consequently, the appeals preferred by the CBI as well as the convicts are, hereby, dismissed."
}
},
{
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"labels": [
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],
"start": 23095,
"text": ".................................................."
}
},
{
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"labels": [
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],
"start": 23146,
"text": "J.\n (ARUN MISHRA) ................................................... J.\n (BHUSHAN RAMKRISHNA GAVAI)"
}
},
{
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"labels": [
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],
"start": 23247,
"text": "................................."
}
},
{
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"value": {
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"labels": [
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],
"start": 23281,
"text": "J.\n (SURYA KANT) NEW DELHI DATED : 24-05-2019"
}
}
]
}
] | 1,777 | {
"text": " NON-REPORTABLE\n\n IN THE SUPREME COURT OF INDIA\nCRIMINAL APPELLATE JURISDICTION\n\nCRIMINAL APPEAL NOS. 1791-1795 OF 2014\n\nCENTRAL BUREAU OF INVESTIGATION .....APPELLANT(S)\n VERSUS\n\nSAKRU MAHAGU BINJEWAR AND ORS. .....RESPONDENT(S)\nEtc. Etc.\n\n WITH\n\nCRIMINAL APPEAL NO. 1802 OF 2014\n\n AND\n\nCRIMINAL APPEAL NO. 1801 OF 2014\n\n ORDER\n SURYA KANT, J.\n This is a set of cross-appeals preferred by (i) Central Bureau of Investigation (hereinafter referred to as \"CBI\"), and (ii) the convicts against the judgment dated 14th July, 2010 passed by the High Court of Judicature at Bombay, Nagpur Bench, Nagpur whereby five criminal appeals have been decided by way of a common order. While the CBI is aggrieved by the commutation of death sentence, the convicts (hereinafter referred to as the `respondentsaccused' in the lead case) have questioned their conviction by the Special Court as affirmed by the High Court.\n 2) Firstly, a very brief reference to the facts may be made.\nBhaiyyalal Sudam Bhotmange was residing on the outskirts of Khairlanji Village called as `Toli' with his wife Surekha, two sons, Sudhir and Roshan and one daughter, Priyanka. They belong to Mahar caste (Scheduled Caste). Siddharth Gajbhiye (PW-18) of nearby Village Dhusala was their family friend. Siddharth Gajbhiye came to the house of Bhaiyyalal Sudam Bhotmange in the morning when Accused no. 2 (Sakru) met him and demanded back wages on account of which there arose a dispute and Siddharth Gajbhiye slapped Sakru. In the evening when Siddharth Gajbhiye was proceeding towards Kandri, he was assaulted by some villagers. Upon hearing the news of the assault, Surekha Bhotmange and Priyanka rushed to the spot and brought Siddharth Gajbhiye to their house. After two days, Siddharth Gajbhiye lodged a report at Andhalgaon Police Station pursuant to which Crime No. 52/06 was registered. Surekha Bhotmange gave a statement identifying the persons who had assaulted Siddharth Gajbhiye. On the basis of that statement, the attackers were arrested. They were released on bail on 29th September, 2006.\n 3) On 29th September, 2006 itself, at about 6.00 pm to 6.30 pm, a group of about 40 persons surrounded the house of Bhaiyyalal Sudam Bhotmange with some of them loudly implying that they were falsely implicated by Surekha. On seeing the crowd, Bhaiyyalal Sudam Bhotmange ran from the house whereas Surekha Bhotmange came out of the house and set fire to her cattle shed probably to ward off the attackers. Then Surekha also tried to escape but she was chased and caught by the accused. She was assaulted with sticks, bicycle chains and kicks and fists. Sudhir, son of Bhaiyyalal Sudam Bhotmange, tried to run away but he too was caught and assaulted in the same manner as his mother. His body was dragged near the body of Surekha who had already died. All the accused then searched for other family members of Bhaiyyala Sudam Bhotmange. They traced Roshan in the nearby cattle shed. Roshan also tried to run away towards the hand pump but was unfortunately caught and he was assaulted in a manner alike his mother and brother. The accused thereafter caught hold of Priyanka and beat her in the same fashion as described above.\nRoshan and Priyanka also met with the same fate and they too died at the spot. The accused persons, thereafter, arranged for a bullock cart; took all four dead bodies therein and threw them in a canal.\n 4) Bhaiyyalal Sudam Bhotmange, after running from his house, went to Dhusala and met Sidharth and narrated the incident. Sidharth made a phone call to Andhalgaon Police Station. Thereafter, Bhaiyyalal Sudam Bhotmange, accompanied by the son of Siddharth, went to Andhalgaon Police Station but did not lodge any report as he was totally frightened. On the next morning, Bhaiyyalal Sudam Bhotmange went in search of his family members but could not trace them. He then went to Andhalgaon Police station and lodged the report. By this time, the police had received information that the dead body of a girl with a tatoo mark `Priyanka' on the hand was found in a canal which was fished out. Bhaiyyalal Sudam Bhotmange identified the dead body of Priyanka. On the same day, a case under Sections 120B, 147, 148, 149, 302 and 201 of the Indian Penal Code (for short, \"IPC\") read with Section 3(1)(x) of the Act was registered.\n 5) The Sub-Divisional Police Officer arrested about eighteen persons on suspicion on 1st October, 2006 and on that very day, three more dead bodies of Surekha, Sudhir and Roshan Bhotmange were also found. Since the investigation was not being carried out properly, the State Government handed over the further probe to State C.I.D.\nHowever, not much progress could be made by the State C.I.D. also, hence vide Notification dated 20th November, 2006, the State Government requested Union of India to hand over the investigation of the case to the C.B.I. The investigation was thereafter taken over by the CBI, who after recording statements of several witnesses including statements under Section 164 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the `Code'), sought discharge of thirty six suspects and also submitted Charge-Sheet against the eleven accused for the offences punishable under Sections 147, 148, 149, 120B and 302 of the IPC and offences under the Act.\n 6) The Special Court at Bhandara held the respondentsaccused guilty of committing the aforesaid offences and awarded death penalty to Accused nos. 2, 3 and 6 to 9 whereas Accused nos. 1 and 11 were sentenced with life imprisonment and Accused nos. 4, 5 & 10 were acquitted of all the offences. Accused nos. 1 to 3, 6 to 9 and 11 were not found guilty of committing any offence under the provisions of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the \"Act\"). The aforementioned judgment gave rise to five cross-appeals at the instance of CBI as well as the convicts besides Reference Case No. 4 of 2008 for the confirmation of death sentence.\n 7) The High Court weighed the aggravating circumstances vis-a-vis mitigating circumstances as summarised in paragraphs 45 and 45A of its judgment under appeal, and came to the conclusion that in the light of the tests laid down by this Court in Bachan Singh vs. State of Punjab1 and Machhi Singh and Others vs. State of Punjab2, no case of imposing death sentence on Accused Nos. 2, 3 and 6 to 9 was made out for the reasons that (i) the incident did not take place on account of caste stature but the root cause was that the accused felt that they were falsely implicated in the crime of beating Sidharth Gajbhiye by Surekha and Priyanka; (ii) there is no evidence to suggest that the accused have a criminal record.\n 8) The High Court, thereafter proceeded to hold that the most appropriate sentence to be inflicted upon the respondentsaccused should be imprisonment for life with a condition that they shall not be released before completing 25 years of actual imprisonment including the period already undergone by them.\n 9) As regards the conviction of Accused nos. 1 to 3, 6 to 9 and 11 (who are in cross-appeals), the High Court firstly scrutinised the medical evidence and relying upon the statement of the Medical Officer, Dr. Avinash John Shende (PW-14) who conducted post-mortem on the dead bodies, it observed that the testimony of this witness could not be 1 (1980) 2 SCC684 2 (1983) 3 SCC470 shaken on any material aspect in the cross-examination. The High Court thereafter held that all the four victims died homicidal death. This conclusion was further corroborated by the inquest panchnama of the deceased persons.\n 10) The High Court then dissected the entire oral evidence, especially the statements of five eye-witnesses. The evidence of PW-2 (Mukesh Pusam) and PW-3 (Suresh Khandate) was tested on the touchstone of probabilities whereupon the High Court held that their statements inspired confidence and established the role of accused Nos. 1 to 3, 6 to 9 and 11. The High Court also found the version of PW-5 (Rashtrapal Narnavare), PW-18 (Siddharth Gajbhiye), PW-19 (Dinesh Dhande) and PW-22 (Premlal Walke) worth credible and fully corroborative of the medical evidence to uphold the conviction of the above-mentioned accused. The High Court nevertheless disbelieved PW-20 (Mahadeo Zanzad) and also did not deem it necessary to bank upon the extra judicial confession allegedly made by Accused No. 2 (Sakru) before PW-10 (Anil Lede) and by Accused No. 8 (Jagdish Ratan Mandlekar) before PW-16 (Sunil Lede).\n 11) Consequently, the High Court upheld the conviction of Accused Nos. 1 to 3, 6 to 9 and 11 though it allowed in part the appeal of Accused Nos. 2,3 and 6 to 9 to the extent that their death sentence was commuted to imprisonment for life with the condition that they shall not be released before completing 25 years of actual imprisonment.\n 12) While the CBI has questioned the rejection of death reference by the High Court in the lead case, the respondentsaccused therein have filed the cross-appeals assailing their conviction by the courts below.\n 13) The following questions, thus, fall for consideration in these appeals: (i) Whether the High Court was justified in commuting the death sentence to life imprisonment with a condition that the respondentsaccused shall have to undergo actual sentence of not less than 25 years?\n (ii) Whether the case in hand falls in the category of rarest of the rare cases and the offence(s) committed are of the gravest nature, such that no punishment less than the death sentence will suffice?\n (iii) Whether the conviction of appellants in the cross-appeals, namely, the respondentsaccused in the main case is sustainable in law?\n 14) We have heard learned counsel for the parties at a considerable length on the questions formulated above and have also gone through the relevant record with their assistance.\n 15) The Constitution Bench of this Court in Bachan Singh (supra), while upholding the constitutional validity of death penalty for murder as provided in Section 302 IPC and the sentencing procedure embodied in Section 354(3) of the Code, also elucidated the principles to be adhered to by the courts in the matter of award of death sentence. This Court emphatically expressed that the courts will discharge the onerous function with evermore scrutiny and care and will be guided by the legislative policy outlined in Section 354(3) of the Code, viz., for persons convicted of murder, life imprisonment is the `rule' and death sentence an `exception'. The court thus viewed that `a real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought to be done save in the rarest of rare case when the alternative option is unquestionably foreclosed'.\n 16) In Machhi Singh and others (supra), this Court postulated the following two questions to be considered as a test to determine the `rarest of rare' cases in which death sentence can be inflicted: (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?\n (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?\n 17) Machhi Singh and others (supra) further summarised the guidelines emanating from Bachan Singh's (supra), though to be applied to the facts of each individual case and thus it ruled that: \"(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.\n (ii) Before opting for the death penalty the circumstances of the `offender' also require to be taken into consideration along with the circumstances of the `crime'.\n (iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.\n (iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.\"\n 18) It goes without saying that the parameters evolved in Bachan Singh's (supra) and Machhi Singh's (supra) have been consistently followed by the Courts depending upon the facts and circumstances of each case wherever the question of imposition of death sentence has arisen.\n 19) On an indepth consideration of the facts and the circumstances in which the ghastly crime of taking away the lives of four innocent persons took place, we find that the High Court was fully conscious of the binding principles illustratively laid down by this Court in the cited decisions and after carefully drawing the balance-sheet of `aggravating' and `mitigating' circumstances, the High Court rightly deemed it appropriate that the instant case does not fall amongst the exceptional category of `rarest of the rare' cases where the extreme penalty of death and death alone must be inflicted.\n 20) It needs no elaborate discussion that the judicial discretion conferred upon a Court in the matter of awarding sentence is an onerous duty which has to be exercised keeping in view the settled and binding dictates including the Doctrine of Proportionality for assigning justifiable reasons to award death penalty and also to keep in mind the Doctrine of Reform and Rehabilitation. [Ref: Santosh Kumar Satishbhushan Bariyar Vs. State of Maharashtra3].\n 21) We cannot be oblivious of the fact that the High Court in the instant case was alive to the question of the adequacy of sentence and has not commuted the death sentence into life imprisonment, as understood in the ordinary parlance to be a term of 14 years imprisonment only. The High Court, following the evolution of a new concept of sentencing conceptualized by this Court in Swamy Shraddananda (2) Alias Murali Manohar Mishra vs. State of Karnataka4 and several other previous decisions, has held that the respondentsaccused shall not be released from prison unless they complete 25 years of actual sentence.\n 22) This Court in Swamy Shraddananda (2) (supra) has held that the punishment of imprisonment for life \"means a sentence of imprisonment for the convict in the rest of his life\". It was explained that Section 57 of the IPC does not in any way limit the punishment of imprisonment for life to a term of 20 years. After explaining the true import of Sections 432, 433 and 433A of the Code, the Court very aptly explained the two aspects of sentencing. In a given case, the sentence may be excessively and unduly harsh or it may be highly 3 (2009) 6 SCC 498 4 (2008) 13 SCC 767 disproportionately inadequate where the Court comes to the conclusion that the case falls short of the `rarest of the rare' category and thus may feel reluctant in endorsing the death sentence. It was thus viewed that a far more just, reasonable and proper course would be to expand the options and to take over, as a matter of fact what lawfully belongs to the court, namely, the formalization of `special category' of sentence of more than 14 years' actual imprisonment.\n 23) The doubts, if any, as regards to the powers of the High Court or this Court in awarding a `special sentence' as a substitute for death sentence, have been set at rest by the Constitution Bench in Union of India Vs. V. Sriharan Alias Murugan and others5, affirming the view taken in Swamy Shraddananda (2) (supra) and holding that: \"105. ...xx......xx.......xx.... the power derived from the Penal Code for any modified punishment within the punishment provided for in the Penal Code for such specified offences can only be exercised by the High Court and in the event of further appeal only by the Supreme Court and not by any other court in this country. To put it differently, the power to impose a modified punishment providing for any specific term of incarceration or till the end of the convicts life as an alternate to death penalty, can be exercised only by the High Court and the Supreme Court and not by any other inferior court.\n 106. Viewed in that respect, we state that the ratio laid down in Swamy Shraddananda (2)4 that a special category of sentence; instead of death; for a term exceeding 14 years and put that category beyond application of remission is well 5 (2016) 7 SCC 1 founded and we answer the said question in the affirmative.\n We are, therefore, not in agreement with the opinion expressed by this Court in Sangeet vs. State of Haryana that the deprival of remission power of the appropriate as not permissible is not in consonance with the law and we specifically overrule the same.\"\n 24) The recourse followed in the case in hand by the High Court in substituting the death penalty by imposing the sentence for a term not less than 25 years' actual imprisonment has got the seal of approval of this court in V. Sriharan (supra) case, which has been consistently and continuously followed in a catena of later decisions also. [Ref. (i) Raju Jagdish Paswan vs. The State of Maharashtra ; 2019 (1) SCALE 735; (ii) Jagdish Vs. State of Madhya Pradesh; 2019(3) SCALE 888 & (iii) Sachin Kumar Singhraha vs. State of Madhya Pradesh; 2019(5)SCALE 39] 25) The cited decisions have indeed more intuitive and persuasive value in the instant case for the reason that the death sentence in those cases was commuted regardless of its confirmation by the High Court(s). In the present case, the High Court itself did not find it a fit case to affirm the death sentence. We, therefore, see no reason to take a view different than the High Court. Question Nos. (i) and (ii) stand answered accordingly.\n 26) Adverting to the cross-appeals preferred by the respondents accused, their Learned Counsel strenuously urged that it is a fit case for extending the benefit of doubt for:--(i) the statements of eye- witnesses (PW-2, PW-3, PW-17, PW-19 and PW-22) do not inspire confidence and are full of material inconsistencies and contradictions; (ii) there has been inordinate and unexplained delay of 22-26 hours in lodging the FIR by Bhaiyyalal Sudam Bhotmange (PW-17); (iii) there is also an unexplained delay in recording the statements of witnesses, especially the eye-witnesses which is fatal to the prosecution case; (iv) the medical evidence is at variance with the ocular testimony, hence no reliance can be placed on the statements of eye-witnesses; and that (v) the prosecution evidence is tainted and full of discrepancies.\n 27) Having pondered over the above summarized submissions, we do not find any substance therein. We say so for the reasons that Dr.\nAvinash John Shende (PW-14) who conducted the post-mortem on the dead bodies of the victims found multiple `external' injuries sustained by them as reproduced by the High Court in paragraphs 15 to 16C of the impugned judgment. All those injuries were ante-mortem and each victim had suffered two or more injuries on vital parts of their respective bodies. All such injuries were found sufficient enough to have caused death in the ordinary course of nature.\n On `internal' examination of the dead bodies of the victims, PW- 14 found hemorrhage under the scalp in the cases of all the victims, caused mostly due to head injuries. In the case of Surekha Bhotmange, the medical evidence further suggested that some of the injuries were caused by sharp edged weapons. His evidence coupled with the inquest panchanama (Exhibits 86, 87, 88 and 91), unequivocally establishes that all the four victims died a homicidal death.\n 28) There is an eye-witness account consisting of statements of PW- 2, PW-3, PW-19, PW-20 and PW-22. Each one of them had witnessed the occurrence and identified most of the assailants. They also elaborated as to how the four hapless victims were brutally killed with premeditated intent. Both the courts below have evaluated the statements of eye-witnesses with specific reference to the minor discrepancies except that the High Court has declined to rely upon the statement of Mahadeo Zanzad (PW-20), and rightly so, as he had made a false statement to the Magistrate for which he was prosecuted and convicted. Even after discarding the version of this witness in entirety there is overwhelming oral evidence on record, the testimony whereof could not be impeached in cross-examination, to establish the guilt of the respondentaccused beyond any doubt. There is no reason to falsely implicate the respondentsaccused, more so, when there is not even a whisper that any of the witnesses had an axe to grind against the convicts. Similarly, the statement of Bhaiyyalal Sudam Bhotmange (PW-17) with respect to the motive of the crime cannot be discarded merely because he is the husband or the father of the victims. Relationship, per-se, is not a factor to affect the credibility of a witness.\n 29) The delay of some hours in registration of the FIR has also been convincingly explained by the complainant--Bhaiyyalal Sudam Bhotmange (PW-17) and Siddharth Gajbhiye (PW-18). Where the prosecution has satisfactorily explained the cause of delay in the registration of FIR, there is no rhyme or reason for a court to look at the prosecution case with suspicious eyes. The plea of so-called delay in recording the statements of the witnesses, is to be merely noticed and rejected. It has come on record that the investigation was not carried out properly by the local police, therefore, the State Government handed over the case to the State CID. No effective progress could be made by the State CID also, hence the investigation was entrusted to CBI. It is thereafter that the statements of several witnesses including under Section 164 of the Code were recorded. The long drawn process has caused no prejudice to the respondentsaccused.\n 30) There are concurrent findings of facts by the Special Court as well as the High Court holding Accused Nos. 1 to 3, 6 to 9 and 11 guilty.\nRegardless of the restrictive scope of further re-appraisal and re- appreciation of the evidence, we have minutely scanned the ocular as well as medical evidence and are of the firm view that there is no scope of deviation from the well-reasoned conclusions drawn by the courts below. No interference by this Court is, thus, warranted.\n 31) In the light of the above scrutinous analysis, we do not find any ground to interfere with the judgments under appeal. Consequently, the appeals preferred by the CBI as well as the convicts are, hereby, dismissed.\n .................................................. J.\n (ARUN MISHRA) ................................................... J.\n (BHUSHAN RAMKRISHNA GAVAI) ................................. J.\n (SURYA KANT) NEW DELHI DATED : 24-05-2019 "
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"text": " .. APPELLANT\nAged about 23 years,\nOccupation: Labourer,\nR/o Kumbhapur,\nTah. Mauda, Distt. Nagpur.\n\n .. Versus ..\n\nState of Maharashtra through .. RESPONDENT\nPSO PS Mouda, Dist. Nagpur.\n\nMr. Aniruddha Anantha Krishnan, Advocate for Appellant.\nMrs. Geeta Tiwari, APP for Respondent\n\n ....\n\n CORAM : MANISH PITALE, J."
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"text": "The appellant has challenged judgment and order dated 16.09.2005 passed by the Sessions Court, Nagpur (trial Court), in Sessions Trial No. 466 of 2004, whereby the trial Court has convicted the appellant for offence punishable under Section 376 of the Indian Penal Code (IPC) and sentenced him to undergo rigorous imprisonment for 5 years and to pay fine of Rs.500/-.\n 2"
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"text": ". The prosecution case was that about seven months prior to the prosecutrix PW1 submitting oral report to the Police dated 8.7.2004, the appellant (original accused) had caught hold of the prosecutrix when she had gone to a nearby field to answer nature's call."
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"start": 4818,
"text": "Even in the statement recorded under Section 313 of the Code of Criminal Procedure, it had been stated by the appellant that he was falsely implicated as the prosecutrix PW1 was pregnant from her own cousin, with whom she had lived for 5 to 6 months."
}
},
{
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"id": "0cc20f436f384d96aa40afdc8e37e78c",
"to_name": "text",
"type": "labels",
"value": {
"end": 5287,
"labels": [
"ARG_PETITIONER"
],
"start": 5069,
"text": "It was submitted that in the face of such material on record, it was necessary for the Investigating Officer to have conducted DNA test of the child who was born to the prosecutrix PW1 so as to ascertain her paternity."
}
},
{
"from_name": "label",
"id": "8f2cbb0d98db4f48b5f30326efe344a1",
"to_name": "text",
"type": "labels",
"value": {
"end": 5397,
"labels": [
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],
"start": 5288,
"text": "This was deliberately not done by the Investigating Officer to shield the actual culprit in the present case."
}
},
{
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"id": "fedd8b7c628841388d5c0edd08960789",
"to_name": "text",
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"value": {
"end": 5492,
"labels": [
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],
"start": 5398,
"text": "On this basis, it was contended that the impugned judgment and order deserved to be set aside."
}
},
{
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"id": "7a94fa328f0e42ba9113646c3952164d",
"to_name": "text",
"type": "labels",
"value": {
"end": 5792,
"labels": [
"ARG_RESPONDENT"
],
"start": 5492,
"text": "\n 6. On the other hand, Mrs. Geeta Tiwari, learned Additional Public Prosecutor, appearing on behalf of the respondent-State, submitted that the evidence in respect of date of birth of the prosecutrix was elaborate as documents as well as oral evidence were brought on record to prove the said fact."
}
},
{
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"id": "9540e7d599534cb6a0555e460fdfc5a3",
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"value": {
"end": 5990,
"labels": [
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],
"start": 5793,
"text": "It was submitted that the evidence of the prosecutrix was trustworthy and that merely because DNA test was not conducted by the investigating officer, the prosecution case could not be disbelieved."
}
},
{
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"id": "d2fb3723a3ab4d1aa797648f9fd4bb11",
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"value": {
"end": 6226,
"labels": [
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],
"start": 5991,
"text": "It was submitted that the trial Court was justified in convicting and sentencing the appellant on the basis that the evidence of the prosecutrix PW1 and the medical evidence on record was sufficient to prove the guilt of the appellant."
}
},
{
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"value": {
"end": 6285,
"labels": [
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],
"start": 6228,
"text": "7. Heard counsel for the parties and perused the record."
}
},
{
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"end": 6586,
"labels": [
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],
"start": 6285,
"text": "\n In the present case if the finding rendered by the trial Court that date of birth of the prosecutrix PW1 was 10.09.1989 was accepted, there would be no question of consent in the present case and if the fact of sexual intercourse stood proved, the offence under Section 376 of the IPC, stood proved."
}
},
{
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"id": "b35a1dd776834e2689d128e06ab1c29b",
"to_name": "text",
"type": "labels",
"value": {
"end": 6811,
"labels": [
"ANALYSIS"
],
"start": 6587,
"text": "On the question of proof of date of birth, the prosecution placed on record date of birth certificate Exh.22 issued by Gram Panchayat Narsala, as also certificate issued by Head Master of Primary School and Secondary School."
}
},
{
"from_name": "label",
"id": "67358d25ad23457781d7ace54906806d",
"to_name": "text",
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"value": {
"end": 6958,
"labels": [
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],
"start": 6812,
"text": "In addition, prosecution witnesses PW8 and PW9 were examined who were the Village Development Officer and peon respectively of the Gram Panchayat."
}
},
{
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"id": "9c0239c5dee04af0bed49aa247fa9c30",
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"value": {
"end": 7086,
"labels": [
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],
"start": 6959,
"text": "These witnesses had brought the register of the Gram Panchayat wherein birth of the prosecutrix PW1 as 10.09.1989 was recorded."
}
},
{
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"id": "e810d080da184307aa646d14612eaff1",
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"type": "labels",
"value": {
"end": 7231,
"labels": [
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],
"start": 7087,
"text": "A perusal of the said document shows that the date of birth certificate Exh.22 issued by the Gram Panchayat is a document issued by public body."
}
},
{
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"id": "cd345c6dc36f4f529889097fff617e85",
"to_name": "text",
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"value": {
"end": 7572,
"labels": [
"ANALYSIS"
],
"start": 7232,
"text": "The prosecution witness PW8 being the Village Development Officer appeared before the Court along with the register Exh.36, wherein date of birth as 10.09.1989 of the prosecutrix PW1 was shown to have been recorded on 30.09.1989 itself and the said witness as well as PW9 peon of the Gram Panchayat supported the entry in the said register."
}
},
{
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"id": "47e2c83a64834aef8baa08b940235933",
"to_name": "text",
"type": "labels",
"value": {
"end": 7766,
"labels": [
"ANALYSIS"
],
"start": 7573,
"text": "Although in cross-examination there are certain admissions made by these witnesses pertaining to entry made in the said register, they cannot be said to be fatal to the case of the prosecution."
}
},
{
"from_name": "label",
"id": "0838768fdf9d4e72a1e9d7f17a004884",
"to_name": "text",
"type": "labels",
"value": {
"end": 7946,
"labels": [
"ANALYSIS"
],
"start": 7767,
"text": "It is stated by these witnesses in the cross-examination that the name of the prosecutrix PW1 has been written in a different ink as compared to the other details in the register."
}
},
{
"from_name": "label",
"id": "804d9750928844a68b218d5963c327dd",
"to_name": "text",
"type": "labels",
"value": {
"end": 8192,
"labels": [
"ANALYSIS"
],
"start": 7947,
"text": "But, this fact alone would not adversely affect the evidence of the said two witnesses based on entry in the said register, because the name of the prosecutrix PW1, could have been entered later, after the naming ceremony of the prosecutrix PW1."
}
},
{
"from_name": "label",
"id": "4039ad478a2847cd9e140a905ad2f605",
"to_name": "text",
"type": "labels",
"value": {
"end": 8478,
"labels": [
"ANALYSIS"
],
"start": 8193,
"text": "In any case, the said entry in the register read with the date of birth certificate Exh.22 issued by the Gram Panchayat and the oral evidence of the prosecution witnesses PW8 and PW9 appears to be sufficient to prove that the date of birth of the prosecutrix PW1 was indeed 10.09.1989."
}
},
{
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"id": "3fc663eac12947a48b05dcb0a525aadd",
"to_name": "text",
"type": "labels",
"value": {
"end": 8565,
"labels": [
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],
"start": 8479,
"text": "The finding rendered by the trial Court in this regard cannot be said to be erroneous."
}
},
{
"from_name": "label",
"id": "f22776b5df7c4a92866a78f5757f952c",
"to_name": "text",
"type": "labels",
"value": {
"end": 8841,
"labels": [
"ANALYSIS"
],
"start": 8565,
"text": "\n 8. The evidence on record pertaining to the claim of the prosecution that the appellant was responsible for committing forcible sexual intercourse with the prosecutrix, resulting in her giving birth to a girl child, depends primarily on the evidence of the prosecutrix PW1."
}
},
{
"from_name": "label",
"id": "993554a2554c43dd9996345a9c7773bd",
"to_name": "text",
"type": "labels",
"value": {
"end": 8948,
"labels": [
"ANALYSIS"
],
"start": 8842,
"text": "This is because the evidence given by her father PW3 and her mother PW4 was necessarily hearsay in nature."
}
},
{
"from_name": "label",
"id": "51c838cf89974737a344d76d9fdf52d8",
"to_name": "text",
"type": "labels",
"value": {
"end": 9033,
"labels": [
"ANALYSIS"
],
"start": 8949,
"text": "Therefore, it is necessary to examine in detail the evidence of the prosecutrix PW1."
}
},
{
"from_name": "label",
"id": "1b25e92d27c1446199af9842fcf52d33",
"to_name": "text",
"type": "labels",
"value": {
"end": 9313,
"labels": [
"ANALYSIS"
],
"start": 9033,
"text": "\n 9. A perusal of her evidence shows that according to her, about seven months prior to submitting oral report to the Police dated 8.7.2004, the appellant had dragged her when she had gone to the field and upon removing her clothes he had forcibly committed intercourse with her."
}
},
{
"from_name": "label",
"id": "6911bad16d26482a8e22591e9da5a374",
"to_name": "text",
"type": "labels",
"value": {
"end": 9582,
"labels": [
"ANALYSIS"
],
"start": 9314,
"text": "She has further stated that after two to four days (although the trial Court has recorded that it was after 7 days), she had gone to the house of the appellant for viewing television programme, when the appellant again committed the act of sexual intercourse with her."
}
},
{
"from_name": "label",
"id": "27a1854dd41541b0b5d305b0e44dcb98",
"to_name": "text",
"type": "labels",
"value": {
"end": 9802,
"labels": [
"ANALYSIS"
],
"start": 9583,
"text": "It appears strange that the prosecutrix PW1, having suffered forcible sexual intercourse from the appellant two to four days earlier, chose to visit his house to view television programme when he was alone in the house."
}
},
{
"from_name": "label",
"id": "ce70ccd4804a4131bb75c55a873a7755",
"to_name": "text",
"type": "labels",
"value": {
"end": 9978,
"labels": [
"ANALYSIS"
],
"start": 9803,
"text": "There are no dates or other details given by the prosecutrix as regards the aforesaid two incidents of alleged forcible sexual intercourse committed by the appellant with her."
}
},
{
"from_name": "label",
"id": "279a302525af444e8b614960f4a5ace0",
"to_name": "text",
"type": "labels",
"value": {
"end": 10080,
"labels": [
"ANALYSIS"
],
"start": 9979,
"text": "In the cross-examination, the prosecutrix admitted that the son of her maternal uncle was of her age."
}
},
{
"from_name": "label",
"id": "87e68f31229c4a9cb8ae4b3355894a47",
"to_name": "text",
"type": "labels",
"value": {
"end": 10291,
"labels": [
"ANALYSIS"
],
"start": 10081,
"text": "She also admitted that certain statements made by her in the evidence were not found in her original statement made to the Police pertaining to her blaming the appellant when it was found that she was pregnant."
}
},
{
"from_name": "label",
"id": "bbc788c268c9451b8134660449984e2f",
"to_name": "text",
"type": "labels",
"value": {
"end": 10507,
"labels": [
"ANALYSIS"
],
"start": 10292,
"text": "A specific suggestion was made on behalf of the defence that the prosecutrix PW1 was pregnant from Vishnu s/o Ambadas i.e.\n the very maternal cousin of the prosecutrix PW1, who she had conceded to be of her own age."
}
},
{
"from_name": "label",
"id": "87072bbaba33490b8892db1dc08605f1",
"to_name": "text",
"type": "labels",
"value": {
"end": 10632,
"labels": [
"ANALYSIS"
],
"start": 10508,
"text": "A suggestion was also given to her that she had falsely implicated the appellant, which she had denied in cross-examination."
}
},
{
"from_name": "label",
"id": "364c6bb834d14bd4ba809e7f3df0cd37",
"to_name": "text",
"type": "labels",
"value": {
"end": 10855,
"labels": [
"ANALYSIS"
],
"start": 10632,
"text": "\n 10. Since the trial Court has held that the evidence of the prosecutrix PW1 and that the medical evidence on record was sufficient to prove the prosecution case, it is necessary to examine the medical evidence on record."
}
},
{
"from_name": "label",
"id": "850d62c0334d41c0a45e22b9e0d02b7e",
"to_name": "text",
"type": "labels",
"value": {
"end": 10940,
"labels": [
"ANALYSIS"
],
"start": 10856,
"text": "PW5 Dr. Harsha had medically examined the prosecutrix PW1 after registration of FIR."
}
},
{
"from_name": "label",
"id": "ee68311945854dd599a3f1d6f9bbce04",
"to_name": "text",
"type": "labels",
"value": {
"end": 11090,
"labels": [
"ANALYSIS"
],
"start": 10941,
"text": "Her evidence only shows that the prosecutrix PW1 was capable of sexual intercourse and that her last menstruation was in the month of November, 2003."
}
},
{
"from_name": "label",
"id": "0c9d4b014c7a44c49cb012e183687aa1",
"to_name": "text",
"type": "labels",
"value": {
"end": 11222,
"labels": [
"ANALYSIS"
],
"start": 11091,
"text": "The medical examination report also does not reveal anything significant other than the fact that the prosecutrix PW1 was pregnant."
}
},
{
"from_name": "label",
"id": "0ef086847e1a4b6d9f25ae4bbec54766",
"to_name": "text",
"type": "labels",
"value": {
"end": 11292,
"labels": [
"ANALYSIS"
],
"start": 11222,
"text": "\n PW6 Dr. Anuprita, was the Gynecologist who examined prosecutrix PW1."
}
},
{
"from_name": "label",
"id": "2581fab8314e40fca9185ba2815128e9",
"to_name": "text",
"type": "labels",
"value": {
"end": 11387,
"labels": [
"ANALYSIS"
],
"start": 11293,
"text": "She gave statement about the tenure of pregnancy of the prosecutrix PW1 when she was examined."
}
},
{
"from_name": "label",
"id": "f6a339ff9ab143529fecf9eda5fb90ec",
"to_name": "text",
"type": "labels",
"value": {
"end": 11483,
"labels": [
"ANALYSIS"
],
"start": 11387,
"text": "\n There was nothing significant brought on record by the cross- examination of the said witness."
}
},
{
"from_name": "label",
"id": "a0309e415b4548bc89a9de915e858be8",
"to_name": "text",
"type": "labels",
"value": {
"end": 11573,
"labels": [
"ANALYSIS"
],
"start": 11484,
"text": "But, a statement made in the examination-in-chief of PW5 Dr. Harsha assumes significance."
}
},
{
"from_name": "label",
"id": "70d38d9a386347e589e4c90880b672e0",
"to_name": "text",
"type": "labels",
"value": {
"end": 11786,
"labels": [
"ANALYSIS"
],
"start": 11573,
"text": "\n The said witness has stated that when history was recorded, prosecutrix PW1 had stated to her that intercourse had taken place twice with her neighbour about six to seven months back on the promise to marry her."
}
},
{
"from_name": "label",
"id": "c2af084c688545cebfa4f2039af2f00b",
"to_name": "text",
"type": "labels",
"value": {
"end": 11956,
"labels": [
"ANALYSIS"
],
"start": 11787,
"text": "This statement of the prosecutrix PW1 given to the Doctor was at complete variance with her statements made in the oral report and in her evidence recorded in the Court."
}
},
{
"from_name": "label",
"id": "81d36ad7624f44ffbb13aa438875c021",
"to_name": "text",
"type": "labels",
"value": {
"end": 12279,
"labels": [
"ANALYSIS"
],
"start": 11956,
"text": "\n 11. The stated case of the prosecutrix PW1 in her oral report to the Police, as also her revelation to her mother and in her evidence before the Court was that the appellant had committed forcible sexual intercourse with her, firstly in the field and secondly in his house when she had gone to view television programme."
}
},
{
"from_name": "label",
"id": "d9d481be162146b18a043b126afbcc9f",
"to_name": "text",
"type": "labels",
"value": {
"end": 12432,
"labels": [
"ANALYSIS"
],
"start": 12280,
"text": "There was not a whisper of any promise of marriage by the appellant, on the basis of which he had committed sexual intercourse with the prosecutrix PW1."
}
},
{
"from_name": "label",
"id": "5966a209b8fb47c889471c888c447cb9",
"to_name": "text",
"type": "labels",
"value": {
"end": 12754,
"labels": [
"ANALYSIS"
],
"start": 12432,
"text": "\n Doctor PW5 had no reason to record wrong history of her patient and if the prosecutrix PW1 indeed made a statement to the Doctor PW5 that the appellant had sexual intercourse with her twice on the promise of marriage, it falsifies her claim in the statement made to the Police and in the evidence given before the Court."
}
},
{
"from_name": "label",
"id": "b7b0cee2cb5740d7ad86aa06684e527d",
"to_name": "text",
"type": "labels",
"value": {
"end": 12908,
"labels": [
"ANALYSIS"
],
"start": 12755,
"text": "Apart from this, in the oral report given to the Police and even in the evidence tendered in the Court, the claims made by the prosecutrix PW1 are vague."
}
},
{
"from_name": "label",
"id": "8c7b2bf66481454f9a0347e0c5ecb127",
"to_name": "text",
"type": "labels",
"value": {
"end": 13169,
"labels": [
"ANALYSIS"
],
"start": 12909,
"text": "It is stated that about seven months prior to submitting the oral report dated 8.7.2004, the first act of forcible sexual intercourse was committed by the appellant and that two to four days thereafter, a similar act was repeated in the house of the appellant."
}
},
{
"from_name": "label",
"id": "61d63bc6f60d4b938fc7ea8a478f5a8b",
"to_name": "text",
"type": "labels",
"value": {
"end": 13436,
"labels": [
"ANALYSIS"
],
"start": 13170,
"text": "As noted above, it was strange that when the prosecutrix PW1 had suffered forcible sexual intercourse from the appellant in a field just two to four days prior, she chose to visit the house of the appellant when he was alone, ostensibly to view television programme."
}
},
{
"from_name": "label",
"id": "fdbb5cd6e0dc4247882823403888eca2",
"to_name": "text",
"type": "labels",
"value": {
"end": 13553,
"labels": [
"ANALYSIS"
],
"start": 13437,
"text": "These facts, assume significance when a specific defence of false implication was raised on behalf of the appellant."
}
},
{
"from_name": "label",
"id": "39893643125c4918a0f7e8bd63765aa5",
"to_name": "text",
"type": "labels",
"value": {
"end": 13730,
"labels": [
"ANALYSIS"
],
"start": 13553,
"text": "\n 12. In the cross-examination, specific suggestions were made to the prosecutrix PW1 that she was having a love affair with her own maternal cousin from whom she was pregnant."
}
},
{
"from_name": "label",
"id": "f313a25965c143ac86429916ef08d7e2",
"to_name": "text",
"type": "labels",
"value": {
"end": 13955,
"labels": [
"ANALYSIS"
],
"start": 13731,
"text": "In the statement made by the appellant under Section 313 of the Cr.P.C. , it was specifically stated that the prosecutrix PW1 had lived with the said maternal cousin for five to six months and that she was pregnant from him."
}
},
{
"from_name": "label",
"id": "0599802fe7654b8c93cb776f0af91dfa",
"to_name": "text",
"type": "labels",
"value": {
"end": 14096,
"labels": [
"ANALYSIS"
],
"start": 13956,
"text": "In this situation, it was incumbent upon the investigating officer to have conducted DNA test of the girl child born to the prosecutrix PW1."
}
},
{
"from_name": "label",
"id": "ef0206a1814f4f3ab5d1bbb77bf592de",
"to_name": "text",
"type": "labels",
"value": {
"end": 14257,
"labels": [
"ANALYSIS"
],
"start": 14097,
"text": "It was stated in the evidence of the prosecutrix PW1 that after the girl child was born in Government Hospital at Kamthi, she had gifted that child to a couple."
}
},
{
"from_name": "label",
"id": "da319e95ef9e4d1698730a95d642e9d1",
"to_name": "text",
"type": "labels",
"value": {
"end": 14392,
"labels": [
"ANALYSIS"
],
"start": 14258,
"text": "Thus, it has come on record that a girl child was born, who was available for conducting DNA test to ascertain paternity of the child."
}
},
{
"from_name": "label",
"id": "8ce40e78c89d4d28859e37fd92bbe6b5",
"to_name": "text",
"type": "labels",
"value": {
"end": 14720,
"labels": [
"ANALYSIS"
],
"start": 14393,
"text": "When it was the specific case of the appellant that he had not committed sexual intercourse with the prosecutrix PW1 and when a defence was raised that she was pregnant from Vishnu s/o Ambadas , her maternal cousin, it was necessary for the investigating officer to have conducted DNA test to ascertain the truth in the matter."
}
},
{
"from_name": "label",
"id": "1d5ef29dd15c461693b5a10dc7c3353e",
"to_name": "text",
"type": "labels",
"value": {
"end": 14745,
"labels": [
"ANALYSIS"
],
"start": 14721,
"text": "But, he failed to do so."
}
},
{
"from_name": "label",
"id": "1a3746921d1b4b5eb0c920f3f0b2991e",
"to_name": "text",
"type": "labels",
"value": {
"end": 14894,
"labels": [
"ANALYSIS"
],
"start": 14746,
"text": "When specifically asked in the cross-examination, the investigating officer PW7 simply stated that he did not find it necessary to conduct DNA test."
}
},
{
"from_name": "label",
"id": "842a27cf3f3b4e8e86dad5862296930e",
"to_name": "text",
"type": "labels",
"value": {
"end": 15006,
"labels": [
"ANALYSIS"
],
"start": 14895,
"text": "A suggestion was also given in cross-examination that he had purposely not conducted DNA test, which he denied."
}
},
{
"from_name": "label",
"id": "eb136ce22d6346038cb42bee7fb2844f",
"to_name": "text",
"type": "labels",
"value": {
"end": 15176,
"labels": [
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"text": "\n 13. The failure on the part of the investigating officer PW7 to conduct DNA test becomes fatal for the prosecution, in the facts and circumstances of the present case."
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"text": "As noted above, the evidence of the prosecutrix PW1 is absolutely vague as regards two alleged acts of forcible sexual intercourse inflicted by the appellant on her."
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"text": "There is absence of particulars and the allegation appears to have been made in very general and vague terms."
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"text": "The statement of the prosecutrix that when she was found to be pregnant, she told her mother that the appellant was responsible, is also an omission, which has been proved in the cross-examination of the investigating officer PW7."
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"text": "In this situation, it was absolutely necessary for the prosecution to have brought on record material to show that the girl child born to the prosecutrix PW1 was indeed fathered by the appellant."
}
},
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"text": "This is so, because the sole testimony of the prosecutrix PW1 in the present case does not appear to be trustworthy and of sterling quality."
}
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"text": "It would be unsafe to convict the appellant on the sole testimony of the prosecutrix PW1, in the face of the aforesaid material on record."
}
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"text": "\n 14. The trial Court failed to appreciate this aspect of the matter and convicted the appellant on the evidence of the prosecutrix PW1, read with the medical evidence."
}
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"text": "A perusal of the medical evidence shows that there was nothing significant brought on record against the appellant."
}
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"text": "All that the documentary evidence and the evidence of two Doctors PW5 and PW6 shows that the prosecutrix PW1 was capable of sexual intercourse and that she was pregnant at the time of the medical examination."
}
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"labels": [
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],
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"text": "The clinching proof against the appellant would only have been DNA test, which was not conducted in the present case."
}
},
{
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"labels": [
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],
"start": 16771,
"text": "\n 15. In the case of Mukesh and another .vs. State (NCT of Delhi) (2017) 6 Supreme Court Cases 1, the Hon'ble Supreme Court, after taking into account various earlier judgments pertaining to authenticity of DNA test, has held as follows:- \"228."
}
},
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"labels": [
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],
"start": 17018,
"text": "From the aforesaid authorities , it is quite clear that DNA report deserves to be accepted unless it is absolutely dented and for non-acceptance of the same, it is to be established that there had been no quality control or quality assurance."
}
},
{
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"id": "4c876589700d483e960d420f95a95471",
"to_name": "text",
"type": "labels",
"value": {
"end": 17384,
"labels": [
"PRE_RELIED"
],
"start": 17261,
"text": "If the sampling is proper and if there is no evidence as to tampering of samples, the DNA test report is to be accepted.\"\n "
}
},
{
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"id": "1e1f604ff690442a90311b7330a5784a",
"to_name": "text",
"type": "labels",
"value": {
"end": 17718,
"labels": [
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],
"start": 17384,
"text": "Hence , there cannot be any doubt that DNA test in the present case would have been proper, scientific and clinching evidence to prove the guilt of the appellant. Having not conducted the said test, the prosecution case has suffered a fatal blow, which the trial Court did not appreciate while passing the impugned judgment and order."
}
},
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"id": "e860f5a85a9a4b5ebae50fb10064b0e9",
"to_name": "text",
"type": "labels",
"value": {
"end": 17988,
"labels": [
"RATIO"
],
"start": 17718,
"text": "\n 16. In view of the above, it becomes obvious that the evidence brought on record by the prosecution fell short of proving its case beyond reasonable doubt against the appellant and that the conviction and sentence imposed by the trial Court was unsustainable."
}
},
{
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"id": "ec0646757ed94a12a1788dc923866d73",
"to_name": "text",
"type": "labels",
"value": {
"end": 18025,
"labels": [
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],
"start": 17989,
"text": "Accordingly, this appeal is allowed."
}
},
{
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"to_name": "text",
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"end": 18170,
"labels": [
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],
"start": 18027,
"text": "The impugned judgment and order passed by the trial Court is set aside and the appellant is acquitted of the offence with which he was charged."
}
},
{
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"id": "d5727eebc2b344ccba5eb538cac683c0",
"to_name": "text",
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"value": {
"end": 18240,
"labels": [
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],
"start": 18171,
"text": "Since the appellant is on bail, the bail bonds shall stand cancelled."
}
},
{
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"id": "b290089cc0d94d3da5d0529b68176748",
"to_name": "text",
"type": "labels",
"value": {
"end": 18281,
"labels": [
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],
"start": 18240,
"text": "\n (Manish Pitale, J. ) ...\n halwai/p.s.\n "
}
}
]
}
] | 1,782 | {
"text": " IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n NAGPUR BENCH : NAGPUR\n\n Criminal Appeal No.545 of 2005\n ...\n\nGanesh Pralhad Sontakke, .. APPELLANT\nAged about 23 years,\nOccupation: Labourer,\nR/o Kumbhapur,\nTah. Mauda, Distt. Nagpur.\n\n .. Versus ..\n\nState of Maharashtra through .. RESPONDENT\nPSO PS Mouda, Dist. Nagpur.\n\nMr. Aniruddha Anantha Krishnan, Advocate for Appellant.\nMrs. Geeta Tiwari, APP for Respondent\n\n ....\n\n CORAM : MANISH PITALE, J.\n\nDATE OF RESERVING JUDGMENT : JULY 09, 2018.\nDATE OF PRONOUNCING JUDGMENT : JULY 25,2018 JUDGMENT 1. The appellant has challenged judgment and order dated 16.09.2005 passed by the Sessions Court, Nagpur (trial Court), in Sessions Trial No. 466 of 2004, whereby the trial Court has convicted the appellant for offence punishable under Section 376 of the Indian Penal Code (IPC) and sentenced him to undergo rigorous imprisonment for 5 years and to pay fine of Rs.500/-.\n 2. The prosecution case was that about seven months prior to the prosecutrix PW1 submitting oral report to the Police dated 8.7.2004, the appellant (original accused) had caught hold of the prosecutrix when she had gone to a nearby field to answer nature's call. He allegedly removed her clothes and committed forcible sexual intercourse with her. After about eight days, when the prosecutrix had gone to the house of the appellant for viewing television programme, as no other person was present, the appellant again committed sexual intercourse with her. It is relevant that the house of the appellant was adjoining the house of the prosecutrix PW1 and that the appellant was on visiting terms with the family of the prosecutrix PW1. According to the prosecution, after some period when the prosecutrix PW1 started suffering abdominal pain, she was taken for medical examination and it was found that she was pregnant. The prosecutrix PW1 then disclosed details about the said acts of sexual intercourse committed by the appellant to her mother Vanita PW4. Thereafter oral report dated 8.7.2004 was submitted in the Police Station leading to registration of first information report (FIR) against the appellant under Sections 376 and 506 of the IPC. Upon completion of investigation and filing of charge sheet, trial commenced against the appellant.\n 3. The prosecution examined nine witnesses in support of its case. PW1 was the prosecutrix herself, PW2 Bandu was panch witness for spot panchanama, PW3 Dhondba was the father of the prosecutrix, PW4 Vanita was the mother, PW5 Dr.\n Harsha medically examined the prosecutrix, PW6 Dr. Anuprita was the Gynecologist who examined the prosecutrix, PW7 was the investigating officer, PW8 was the Village Development Officer of Gram Panchayat and PW9 was the peon working in the Gram Panchayat.\n 4. The prosecutrix PW1 claimed that her date of birth was 10.09.1989, demonstrating that when the incident occurred she was less than 16 years of age. In order to support the said claim, school leaving certificate and birth certificate from Gram Panchayat were produced. The aforesaid prosecution witnesses PW8 and PW9 were examined to prove the date of birth of the prosecutrix PW1. On the basis of such material, the trial Court found that the date of birth of the prosecutrix was indeed 10.09.1989 and that, therefore, consent was immaterial in the present case, as she was found to be less than 16 years of age. The trial Court also found that the evidence of the prosecutrix PW1 read with the medical evidence on record, was sufficient to prove the case of the prosecution beyond reasonable doubt. On this basis, the trial Court convicted and sentenced the appellant.\n 5. Mr. Aniruddha Anantha Krishnan, learned counsel appearing for the appellant, submitted that the trial Court had committed error in giving finding to the effect that date of birth as 10.09.1989 stood proved in the present case. It was submitted that the oral and documentary evidence on record on the said point was not sufficient to prove the claim of the prosecutrix PW1. It was submitted that the witnesses PW8 and PW9 had admitted in cross-examination that there were certain over writings in the original register wherein the birth of the prosecutrix PW1 had been recorded by the Gram Panchayat. It was further submitted that the evidence of the prosecutrix as regards the incidents of alleged forcible sexual intercourse by the appellant was vague and that it was not reliable. A specific suggestion had been given on behalf of the defence that the prosecutrix PW1 was having an affair with her own cousin from whom she was pregnant. Even in the statement recorded under Section 313 of the Code of Criminal Procedure, it had been stated by the appellant that he was falsely implicated as the prosecutrix PW1 was pregnant from her own cousin, with whom she had lived for 5 to 6 months. It was submitted that in the face of such material on record, it was necessary for the Investigating Officer to have conducted DNA test of the child who was born to the prosecutrix PW1 so as to ascertain her paternity. This was deliberately not done by the Investigating Officer to shield the actual culprit in the present case. On this basis, it was contended that the impugned judgment and order deserved to be set aside.\n 6. On the other hand, Mrs. Geeta Tiwari, learned Additional Public Prosecutor, appearing on behalf of the respondent-State, submitted that the evidence in respect of date of birth of the prosecutrix was elaborate as documents as well as oral evidence were brought on record to prove the said fact. It was submitted that the evidence of the prosecutrix was trustworthy and that merely because DNA test was not conducted by the investigating officer, the prosecution case could not be disbelieved. It was submitted that the trial Court was justified in convicting and sentencing the appellant on the basis that the evidence of the prosecutrix PW1 and the medical evidence on record was sufficient to prove the guilt of the appellant.\n 7. Heard counsel for the parties and perused the record.\n In the present case if the finding rendered by the trial Court that date of birth of the prosecutrix PW1 was 10.09.1989 was accepted, there would be no question of consent in the present case and if the fact of sexual intercourse stood proved, the offence under Section 376 of the IPC, stood proved. On the question of proof of date of birth, the prosecution placed on record date of birth certificate Exh.22 issued by Gram Panchayat Narsala, as also certificate issued by Head Master of Primary School and Secondary School. In addition, prosecution witnesses PW8 and PW9 were examined who were the Village Development Officer and peon respectively of the Gram Panchayat. These witnesses had brought the register of the Gram Panchayat wherein birth of the prosecutrix PW1 as 10.09.1989 was recorded. A perusal of the said document shows that the date of birth certificate Exh.22 issued by the Gram Panchayat is a document issued by public body. The prosecution witness PW8 being the Village Development Officer appeared before the Court along with the register Exh.36, wherein date of birth as 10.09.1989 of the prosecutrix PW1 was shown to have been recorded on 30.09.1989 itself and the said witness as well as PW9 peon of the Gram Panchayat supported the entry in the said register. Although in cross-examination there are certain admissions made by these witnesses pertaining to entry made in the said register, they cannot be said to be fatal to the case of the prosecution. It is stated by these witnesses in the cross-examination that the name of the prosecutrix PW1 has been written in a different ink as compared to the other details in the register. But, this fact alone would not adversely affect the evidence of the said two witnesses based on entry in the said register, because the name of the prosecutrix PW1, could have been entered later, after the naming ceremony of the prosecutrix PW1. In any case, the said entry in the register read with the date of birth certificate Exh.22 issued by the Gram Panchayat and the oral evidence of the prosecution witnesses PW8 and PW9 appears to be sufficient to prove that the date of birth of the prosecutrix PW1 was indeed 10.09.1989. The finding rendered by the trial Court in this regard cannot be said to be erroneous.\n 8. The evidence on record pertaining to the claim of the prosecution that the appellant was responsible for committing forcible sexual intercourse with the prosecutrix, resulting in her giving birth to a girl child, depends primarily on the evidence of the prosecutrix PW1. This is because the evidence given by her father PW3 and her mother PW4 was necessarily hearsay in nature. Therefore, it is necessary to examine in detail the evidence of the prosecutrix PW1.\n 9. A perusal of her evidence shows that according to her, about seven months prior to submitting oral report to the Police dated 8.7.2004, the appellant had dragged her when she had gone to the field and upon removing her clothes he had forcibly committed intercourse with her. She has further stated that after two to four days (although the trial Court has recorded that it was after 7 days), she had gone to the house of the appellant for viewing television programme, when the appellant again committed the act of sexual intercourse with her. It appears strange that the prosecutrix PW1, having suffered forcible sexual intercourse from the appellant two to four days earlier, chose to visit his house to view television programme when he was alone in the house. There are no dates or other details given by the prosecutrix as regards the aforesaid two incidents of alleged forcible sexual intercourse committed by the appellant with her. In the cross-examination, the prosecutrix admitted that the son of her maternal uncle was of her age. She also admitted that certain statements made by her in the evidence were not found in her original statement made to the Police pertaining to her blaming the appellant when it was found that she was pregnant. A specific suggestion was made on behalf of the defence that the prosecutrix PW1 was pregnant from Vishnu s/o Ambadas i.e.\n the very maternal cousin of the prosecutrix PW1, who she had conceded to be of her own age. A suggestion was also given to her that she had falsely implicated the appellant, which she had denied in cross-examination.\n 10. Since the trial Court has held that the evidence of the prosecutrix PW1 and that the medical evidence on record was sufficient to prove the prosecution case, it is necessary to examine the medical evidence on record. PW5 Dr. Harsha had medically examined the prosecutrix PW1 after registration of FIR. Her evidence only shows that the prosecutrix PW1 was capable of sexual intercourse and that her last menstruation was in the month of November, 2003. The medical examination report also does not reveal anything significant other than the fact that the prosecutrix PW1 was pregnant.\n PW6 Dr. Anuprita, was the Gynecologist who examined prosecutrix PW1. She gave statement about the tenure of pregnancy of the prosecutrix PW1 when she was examined.\n There was nothing significant brought on record by the cross- examination of the said witness. But, a statement made in the examination-in-chief of PW5 Dr. Harsha assumes significance.\n The said witness has stated that when history was recorded, prosecutrix PW1 had stated to her that intercourse had taken place twice with her neighbour about six to seven months back on the promise to marry her. This statement of the prosecutrix PW1 given to the Doctor was at complete variance with her statements made in the oral report and in her evidence recorded in the Court.\n 11. The stated case of the prosecutrix PW1 in her oral report to the Police, as also her revelation to her mother and in her evidence before the Court was that the appellant had committed forcible sexual intercourse with her, firstly in the field and secondly in his house when she had gone to view television programme. There was not a whisper of any promise of marriage by the appellant, on the basis of which he had committed sexual intercourse with the prosecutrix PW1.\n Doctor PW5 had no reason to record wrong history of her patient and if the prosecutrix PW1 indeed made a statement to the Doctor PW5 that the appellant had sexual intercourse with her twice on the promise of marriage, it falsifies her claim in the statement made to the Police and in the evidence given before the Court. Apart from this, in the oral report given to the Police and even in the evidence tendered in the Court, the claims made by the prosecutrix PW1 are vague. It is stated that about seven months prior to submitting the oral report dated 8.7.2004, the first act of forcible sexual intercourse was committed by the appellant and that two to four days thereafter, a similar act was repeated in the house of the appellant. As noted above, it was strange that when the prosecutrix PW1 had suffered forcible sexual intercourse from the appellant in a field just two to four days prior, she chose to visit the house of the appellant when he was alone, ostensibly to view television programme. These facts, assume significance when a specific defence of false implication was raised on behalf of the appellant.\n 12. In the cross-examination, specific suggestions were made to the prosecutrix PW1 that she was having a love affair with her own maternal cousin from whom she was pregnant. In the statement made by the appellant under Section 313 of the Cr.P.C. , it was specifically stated that the prosecutrix PW1 had lived with the said maternal cousin for five to six months and that she was pregnant from him. In this situation, it was incumbent upon the investigating officer to have conducted DNA test of the girl child born to the prosecutrix PW1. It was stated in the evidence of the prosecutrix PW1 that after the girl child was born in Government Hospital at Kamthi, she had gifted that child to a couple. Thus, it has come on record that a girl child was born, who was available for conducting DNA test to ascertain paternity of the child. When it was the specific case of the appellant that he had not committed sexual intercourse with the prosecutrix PW1 and when a defence was raised that she was pregnant from Vishnu s/o Ambadas , her maternal cousin, it was necessary for the investigating officer to have conducted DNA test to ascertain the truth in the matter. But, he failed to do so. When specifically asked in the cross-examination, the investigating officer PW7 simply stated that he did not find it necessary to conduct DNA test. A suggestion was also given in cross-examination that he had purposely not conducted DNA test, which he denied.\n 13. The failure on the part of the investigating officer PW7 to conduct DNA test becomes fatal for the prosecution, in the facts and circumstances of the present case. As noted above, the evidence of the prosecutrix PW1 is absolutely vague as regards two alleged acts of forcible sexual intercourse inflicted by the appellant on her. There is absence of particulars and the allegation appears to have been made in very general and vague terms. The statement of the prosecutrix that when she was found to be pregnant, she told her mother that the appellant was responsible, is also an omission, which has been proved in the cross-examination of the investigating officer PW7. In this situation, it was absolutely necessary for the prosecution to have brought on record material to show that the girl child born to the prosecutrix PW1 was indeed fathered by the appellant. This is so, because the sole testimony of the prosecutrix PW1 in the present case does not appear to be trustworthy and of sterling quality. It would be unsafe to convict the appellant on the sole testimony of the prosecutrix PW1, in the face of the aforesaid material on record.\n 14. The trial Court failed to appreciate this aspect of the matter and convicted the appellant on the evidence of the prosecutrix PW1, read with the medical evidence. A perusal of the medical evidence shows that there was nothing significant brought on record against the appellant. All that the documentary evidence and the evidence of two Doctors PW5 and PW6 shows that the prosecutrix PW1 was capable of sexual intercourse and that she was pregnant at the time of the medical examination. The clinching proof against the appellant would only have been DNA test, which was not conducted in the present case.\n 15. In the case of Mukesh and another .vs. State (NCT of Delhi) (2017) 6 Supreme Court Cases 1, the Hon'ble Supreme Court, after taking into account various earlier judgments pertaining to authenticity of DNA test, has held as follows:- \"228. From the aforesaid authorities , it is quite clear that DNA report deserves to be accepted unless it is absolutely dented and for non-acceptance of the same, it is to be established that there had been no quality control or quality assurance. If the sampling is proper and if there is no evidence as to tampering of samples, the DNA test report is to be accepted.\"\n Hence , there cannot be any doubt that DNA test in the present case would have been proper, scientific and clinching evidence to prove the guilt of the appellant. Having not conducted the said test, the prosecution case has suffered a fatal blow, which the trial Court did not appreciate while passing the impugned judgment and order.\n 16. In view of the above, it becomes obvious that the evidence brought on record by the prosecution fell short of proving its case beyond reasonable doubt against the appellant and that the conviction and sentence imposed by the trial Court was unsustainable. Accordingly, this appeal is allowed.\n The impugned judgment and order passed by the trial Court is set aside and the appellant is acquitted of the offence with which he was charged. Since the appellant is on bail, the bail bonds shall stand cancelled.\n (Manish Pitale, J. ) ...\n halwai/p.s.\n "
} |
{
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} | [
{
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{
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"labels": [
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"start": 0,
"text": "IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\nDATED THIS THE 26TH DAY OF FEBRUARY 2016"
}
},
{
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"id": "47d2270fc7044094bcd28091f00e377c",
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"start": 85,
"text": "\n\n PRESENT\n\n THE HON'BLE MR.JUSTICE JAYANT PATEL\n\n AND"
}
},
{
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"value": {
"end": 252,
"labels": [
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],
"start": 182,
"text": "THE HON'BLE MRS.JUSTICE S.SUJATHA\n\n ITA No.432/2010\n\nBETWEEN\n\n"
}
},
{
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"id": "380634ab34ec44dbb41cf712e9fc9019",
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"value": {
"end": 347,
"labels": [
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],
"start": 252,
"text": "1. COMMISSIONER OF INCOME TAX-III,\n C.R. BUILDING\n QUEENS ROAD\n BANGALORE."
}
},
{
"from_name": null,
"id": "f4e677bf9d07475494e3f6cdee793b02",
"to_name": null,
"type": null,
"value": {
"end": 672,
"labels": [
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],
"start": 349,
"text": "2. ASSISTANT COMMISSIONER\n\n OF INCOME-TAX, CIRCLE-2(1)\n\n MANGALORE. ...APPELLANTS\n\n(BY SRI. E.I.SANMATHI, ADVOCATE)\n\nAND\n\nM/S. HASSAN HAJEE & CO. ....RESPONDENT\nNEAR OLD MUNICIPAL OFFICE\nBUNDER, MANGALORE.\n\n(BY SMT.JINITA CHATTERJEE, ADVOCATE\nFOR SRI.S.PARTHASARATHI, ADVOCATE)\n\n "
}
},
{
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"id": "2c492b08746d4c77938511cd3c75e9e9",
"to_name": null,
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"value": {
"end": 954,
"labels": [
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],
"start": 672,
"text": "THIS APPEAL IS FILED UNDER SECTION 260-A\nOF INCOME TAX ACT 1961, TO SET ASIDE THE\nORDER DATED 16.07.2010 PASSED BY THE ITAT, `B'\nBENCH BANGALORE AS SOUGHT FOR, IN THE\nRESPONDENT-ASSESSEE'S CASE, IN APPEAL\nPROCEEDINGS ITA NOs.67 & 68/BANG/2010, IN THE\nINTEREST OF JUSTICE AND EQUITY."
}
},
{
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"value": {
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"labels": [
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],
"start": 954,
"text": "\n\n THIS APPEAL COMING ON FOR HEARING,"
}
},
{
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"to_name": null,
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"end": 1095,
"labels": [
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"start": 999,
"text": "THIS\nDAY, JAYANT PATEL, J., DELIVERED THE\nFOLLOWING:\n\n JUDGMENT\n "
}
},
{
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],
"start": 1095,
"text": "The present appeal is directed against the Order dated 24.07.2009 passed by the Income Tax Appellate Tribunal, Bangalore Bench `B', Bangalore Bench `B', Bangalore, [hereinafter referred to as `Tribunal', for short] in ITA Nos.67 & 68/Bang/2010, by raising the following substantial questions of law."
}
},
{
"from_name": null,
"id": "c7cbac904f11485ea8057ea6bc0a28fe",
"to_name": null,
"type": null,
"value": {
"end": 1630,
"labels": [
"ISSUE"
],
"start": 1394,
"text": "\n \"1. Whether under the facts and circumstances of the case, the tribunal was right in law in restricting the addition to 1.6% in respect of an expenditure which is of such nature as covered by section 37(1) of the income tax Act, 1961?"
}
},
{
"from_name": null,
"id": "19c3e511f6c548aba6ebd46dc558a436",
"to_name": null,
"type": null,
"value": {
"end": 1996,
"labels": [
"ISSUE"
],
"start": 1632,
"text": "2. Whether under the facts and circumstances of the case, the tribunal right in law in restricting the addition to 1.6% in respect of wages instead of 10.3% and 6.6% adopted by the assessing authority respectively for the Assessment Years 2002- 03 and 2003-04, when the onus to prove the genuineness of expenditure claimed has not been discharged by the assessee\"?"
}
},
{
"from_name": null,
"id": "570f2122e4bc486e8d54420768ec8109",
"to_name": null,
"type": null,
"value": {
"end": 2150,
"labels": [
"NONE"
],
"start": 1998,
"text": "2. We have heard Mr. E.I. Sanmathi, learned Counsel for the Appellants Revenue and Ms. Jinita Chatterjee, learned Counsel appearing for the Respondent."
}
},
{
"from_name": null,
"id": "ae5c05a86b5348a18abb30c19112adc9",
"to_name": null,
"type": null,
"value": {
"end": 2524,
"labels": [
"RLC"
],
"start": 2152,
"text": "3. We may record that the Tribunal on the aspects of restriction of disallowance to the extent of 1.6% in the impugned order at paragraph-11.1, has observed thus: \"In the instant case, we find the restriction of disallowance to 1.6% of the total wages paid for asst. year 2002-03 (Rs.4,38,27,054) and for assessment year 2003-04 (Rs.4,62,71,697) is reasonable and correct."
}
},
{
"from_name": null,
"id": "5678c5f63d1d4e8da9f488e633b583ae",
"to_name": null,
"type": null,
"value": {
"end": 2725,
"labels": [
"RLC"
],
"start": 2524,
"text": "\n The Tribunal for assessment year 2004-05 (ITA No.947/08 dated 30.04.2009) had sustained the disallowance of Rs.15 lakhs, which works to 1.6% of the total wages amounting to Rs.9,28,18,382/-."
}
},
{
"from_name": null,
"id": "91e1b3ef5d514df8be85eccc1b56866a",
"to_name": null,
"type": null,
"value": {
"end": 2863,
"labels": [
"RLC"
],
"start": 2726,
"text": "The total wages as a percentage of gross turnover was lower in the concerned two assessment years as compared to assessment year 2004-05."
}
},
{
"from_name": null,
"id": "cea2248323264272b87f6b7b82011938",
"to_name": null,
"type": null,
"value": {
"end": 3002,
"labels": [
"RLC"
],
"start": 2864,
"text": "Therefore, restricting the disallowance to 1.6% of the total wages is only reasonable under the given facts and circumstances of the case."
}
},
{
"from_name": null,
"id": "dfd48bd0727844e9af7a028f4553c393",
"to_name": null,
"type": null,
"value": {
"end": 3112,
"labels": [
"RLC"
],
"start": 3003,
"text": "Moreover, the revenue has not brought in any material to dispel the finding of the learned CIT(A).\n "
}
},
{
"from_name": null,
"id": "8fb1b87e7b494d6ab121faf921af7130",
"to_name": null,
"type": null,
"value": {
"end": 3261,
"labels": [
"RLC"
],
"start": 3112,
"text": "Hence, we hold that the order of the CIT(A) is correct and in accordance with law and therefore, the grounds raised by the revenue are rejected.\"\n 4."
}
},
{
"from_name": null,
"id": "bc062711d46d4c5d8bd8ac73199acadf",
"to_name": null,
"type": null,
"value": {
"end": 3306,
"labels": [
"NONE"
],
"start": 3262,
"text": "We would have further considered the matter."
}
},
{
"from_name": null,
"id": "3a9c68208bfa44b295826eb011ee7268",
"to_name": null,
"type": null,
"value": {
"end": 3699,
"labels": [
"ANALYSIS"
],
"start": 3307,
"text": "However, learned Counsel for the Appellants- Revenue has brought to our notice that the decision of the Tribunal itself in ITA No.947/Bang/2008 dated 30.04.2009 was carried before this Court in ITA No.450/2009 and this Court vide Judgment dated 1.6.2015 has set aside the said Order of the Tribunal and has remanded the matter to the Tribunal for further consideration in accordance with law."
}
},
{
"from_name": null,
"id": "a11aca22374349719ac013acbb855202",
"to_name": null,
"type": null,
"value": {
"end": 4087,
"labels": [
"ANALYSIS"
],
"start": 3699,
"text": "\n 5. In view of the above, one of the vital basis for the decision of the Tribunal in the impugned Order was its earlier view in ITA No.947/Bang/2008 dated 30.04.2009 and when this Court has by the aforesaid Judgment in ITA No.450/2009 has set aside the said order of the Tribunal and has remanded the matter, we find that similar course deserves to be adopted even in the present matter."
}
},
{
"from_name": null,
"id": "43f6fac5f97048ae916b7d5e19098d84",
"to_name": null,
"type": null,
"value": {
"end": 4380,
"labels": [
"ANALYSIS"
],
"start": 4087,
"text": "\n 6. We may record that this Court in the above referred decision in ITA No.450/2009, had observed thus: \"This appeal is filed by the Revenue questioning the order dated 30.4.2009 passed by the Income Tax Appellate Tribunal, Bangalore Bench `A' in ITA No.947/Bang/08 (Assessment year 2004-05)."
}
},
{
"from_name": null,
"id": "6859a5814b964e96a0ab0d36a3ab0c98",
"to_name": null,
"type": null,
"value": {
"end": 4542,
"labels": [
"ANALYSIS"
],
"start": 4381,
"text": "The appellants have prayed for confirmation of the order dated 22.4.2008 passed by the Commissioner of Income Tax (Appeals) {`Appellate Commissioner' for short}."
}
},
{
"from_name": null,
"id": "7f812304f2f84d8d9096d3a4e133633f",
"to_name": null,
"type": null,
"value": {
"end": 4940,
"labels": [
"ANALYSIS"
],
"start": 4544,
"text": "2. The assessee is involved in Stevedoring operations of vessels and carrying on loading and unloading work at the port; assessee has engaged labour force from New Mangalore Port Trust (`NMPT' for short), registered cargo Handling Workers Administrative Wing (RCHWAW); the payment to the labour so engaged would be made by cheques to NMPT and in turn NMPT would disburse the wages to the workers."
}
},
{
"from_name": null,
"id": "b6995b1de0a34ff68290cdb6a44e6a1f",
"to_name": null,
"type": null,
"value": {
"end": 5311,
"labels": [
"ANALYSIS"
],
"start": 4941,
"text": "Case of the assessee is that as the registered labour force at NMPT did not agree to work beyond the limit fixed by them, the assessee had engaged the services of the private workers and had made payment in cash to the extent of Rs.1,17,59,931/- and through cheques to sub-contractors to the extent of Rs.2,70,70,745/-; the payments were made through self made vouchers."
}
},
{
"from_name": null,
"id": "b94bf656ba0f4f96adb8d5bda645a67e",
"to_name": null,
"type": null,
"value": {
"end": 5626,
"labels": [
"ANALYSIS"
],
"start": 5312,
"text": "According to the assessee, loading and unloading operations were carried out by it by making the following payments: (a) Rs.2,53,29,660/- through cheque to NMPT Workers' Union.\n (b) Rs.2,70,70,745/- to sub-contractors who brought the workers privately to the port for the purpose of unloading the iron ore."
}
},
{
"from_name": null,
"id": "5f027aef29c445f1a028422295479f6b",
"to_name": null,
"type": null,
"value": {
"end": 5688,
"labels": [
"ANALYSIS"
],
"start": 5627,
"text": "The payments were made through cheque to the sub-contractors."
}
},
{
"from_name": null,
"id": "368fcd9ead414aab8f09060a2abe3c1e",
"to_name": null,
"type": null,
"value": {
"end": 5825,
"labels": [
"ANALYSIS"
],
"start": 5690,
"text": "(c) Cash of Rs.1,17,59,931/- was paid by the assessee to the gang leaders who had brought the workers privately as speed money.\n 3."
}
},
{
"from_name": null,
"id": "5d72617bdd024b6183da3dd4f819e6ae",
"to_name": null,
"type": null,
"value": {
"end": 5972,
"labels": [
"ANALYSIS"
],
"start": 5826,
"text": "The Assessing Officer allowed the contention of the assesee insofar as it relates to payment through cheque to the NMPT Union and sub-contractors."
}
},
{
"from_name": null,
"id": "adcd0f8c18ff4ce399b709deb754bf3f",
"to_name": null,
"type": null,
"value": {
"end": 6220,
"labels": [
"ANALYSIS"
],
"start": 5973,
"text": "However, the Assessing Officer has disallowed the claim of the assessee to the extent of 20% in respect of cash payment to gang leaders as mentioned supra, which means the Assessing Authority allowed the claim of the assessee to the extent of 80%."
}
},
{
"from_name": null,
"id": "34a41f8e6a99467cab8d446444b62504",
"to_name": null,
"type": null,
"value": {
"end": 6432,
"labels": [
"ANALYSIS"
],
"start": 6222,
"text": "Questioning the order passed by the Assessing Authority, the assessee filed appeal No.ITA/174/ CIT(A)/MNG/2006-07 before the Appellate Commissioner under Section 246 of the Income Tax Act (`the Act' for short)."
}
},
{
"from_name": null,
"id": "4b27856a8df84a18abf9ae2961ee09d6",
"to_name": null,
"type": null,
"value": {
"end": 6580,
"labels": [
"ANALYSIS"
],
"start": 6433,
"text": "The Appellate Commissioner while adjudicating the appeal issued show cause notice under Section 251(2) of the Act for enhancement of tax liability."
}
},
{
"from_name": null,
"id": "fe51b02ba41c4faeb60f6077e661ab98",
"to_name": null,
"type": null,
"value": {
"end": 6814,
"labels": [
"ANALYSIS"
],
"start": 6581,
"text": "After hearing both the parties, the Appellate Commissioner enhanced the tax liability by setting aside the order passed by the Assessing Officer in respect of payments made to sub-contractors through cheque a sum of Rs.2,70,70,745/-."
}
},
{
"from_name": null,
"id": "2a998d6a95ea40eb995eb4b941200cfc",
"to_name": null,
"type": null,
"value": {
"end": 6971,
"labels": [
"ANALYSIS"
],
"start": 6814,
"text": "\nHowever Appellate Commissioner affirmed the order passed by the Assessing Officer insofar as it relates to speed money paid to various gang leaders in cash."
}
},
{
"from_name": null,
"id": "6ebf1ff04097468086c026edb46460eb",
"to_name": null,
"type": null,
"value": {
"end": 7153,
"labels": [
"ANALYSIS"
],
"start": 6971,
"text": "\n The order of the Appellate Commissioner is carried further by the assessee before the Income Tax Appellate Tribunal, Bangalore Bench `A' in ITA No.947/Bang/08 by filing the appeal."
}
},
{
"from_name": null,
"id": "8dadd3e6ff1b499889918f932498034e",
"to_name": null,
"type": null,
"value": {
"end": 7383,
"labels": [
"ANALYSIS"
],
"start": 7154,
"text": "The Income Tax Appellate Tribunal by its order dated 30.4.2009 allowed the appeal of the assessee in part and restricted the addition to the extent of Rs.15,00,000/- as against Rs.2,94,00,000/- made by the Appellate Commissioner."
}
},
{
"from_name": null,
"id": "0705930464334efdbfea763b28e57007",
"to_name": null,
"type": null,
"value": {
"end": 7687,
"labels": [
"ANALYSIS"
],
"start": 7385,
"text": "4. Sri Jeevan J. Neeralgi, learned standing counsel for the appellants as well as Sri S. Parthasarathi, learned advocate for the assessee have taken us through the entire material on record, more particularly the orders passed by the Appellate Commissioner and Income Tax Appellate Tribunal, Bangalore."
}
},
{
"from_name": null,
"id": "7bf0b3444e50445f91b26bb0bab67e95",
"to_name": null,
"type": null,
"value": {
"end": 7856,
"labels": [
"ANALYSIS"
],
"start": 7689,
"text": "5. The Appellate Commissioner has in his detailed order clarified as to how the order passed by the Assessing Authority is unsustainable to the extent mentioned supra."
}
},
{
"from_name": null,
"id": "7b812e768a6f4642809591c906ced534",
"to_name": null,
"type": null,
"value": {
"end": 8165,
"labels": [
"ANALYSIS"
],
"start": 7856,
"text": "\nTo verify the genuineness of the payments made by the assessee to the sub-contractors through cheques, summons under Section 131 of the Income Tax Act issued to all the sub- contractors mentioned in the assessment order and their statements recorded on oath by the Assessing Officer also came to be examined."
}
},
{
"from_name": null,
"id": "185089f7b85a4c5ca434e6ebd477e76a",
"to_name": null,
"type": null,
"value": {
"end": 8407,
"labels": [
"ANALYSIS"
],
"start": 8166,
"text": "It came to be noticed by the Appellate Commissioner that all the sub- contractors have stated that they have carried loading and unloading work at the port for the assessee by engaging private labour and they have further confirmed the bill."
}
},
{
"from_name": null,
"id": "0595fe79bd354503ab764ea3356d7c45",
"to_name": null,
"type": null,
"value": {
"end": 8597,
"labels": [
"ANALYSIS"
],
"start": 8408,
"text": "All these labour contractors are assessed to tax and they have filed returns belatedly declaring the above labour contract proceeds and offered income to tax under Section 44-AD of the Act."
}
},
{
"from_name": null,
"id": "8299efde87d140549837299ca70e89e8",
"to_name": null,
"type": null,
"value": {
"end": 8759,
"labels": [
"ANALYSIS"
],
"start": 8597,
"text": "\nHowever the Appellate Commissioner, on facts has found that the vouchers issued to the sub-contractors and payments made to them are highly suspicious in nature."
}
},
{
"from_name": null,
"id": "0c9670237c4545ce98f4f12a73e5dc99",
"to_name": null,
"type": null,
"value": {
"end": 8909,
"labels": [
"ANALYSIS"
],
"start": 8760,
"text": "The details collected from the assessee were made available to the Financial Advisor and Chief Accounts Officer, NMPT, Mangalore for getting reports."
}
},
{
"from_name": null,
"id": "05f78c9d4ab34f8c85d43ddbafedbed9",
"to_name": null,
"type": null,
"value": {
"end": 9136,
"labels": [
"ANALYSIS"
],
"start": 8910,
"text": "The details received from NMPT, Mangalore when compared with the details which the assessee has made available before the Appellate Commissioner fully tallied with each other in terms of date, item and quantity in metric tons."
}
},
{
"from_name": null,
"id": "d4e32823dbc44fb8bb64f6cf74cc279a",
"to_name": null,
"type": null,
"value": {
"end": 9292,
"labels": [
"ANALYSIS"
],
"start": 9137,
"text": "In other words, the entire cargo was handled by the assessee with the help of NMPT labour, for which assessee has paid a sum of Rs.2,53,29,660/- by cheque."
}
},
{
"from_name": null,
"id": "05f23172e09044cf9be072f973fe4a6b",
"to_name": null,
"type": null,
"value": {
"end": 9532,
"labels": [
"ANALYSIS"
],
"start": 9293,
"text": "Hence, it appears a genuine doubt arose in the mind of the Appellate Commissioner as to whether the actual payments were made to the sub- contractors or not in the matter of engaging the workers and payment of money to them as speed money."
}
},
{
"from_name": null,
"id": "e42c6cbd0d274b8ca282831c86cd9660",
"to_name": null,
"type": null,
"value": {
"end": 9689,
"labels": [
"ANALYSIS"
],
"start": 9533,
"text": "The letter written by the assessee to the Appellate Commissioner discloses that the total cargo handled during the financial year 2003-04 was 8,00,000 tons."
}
},
{
"from_name": null,
"id": "d0c7674394d84c0188041d72ef355370",
"to_name": null,
"type": null,
"value": {
"end": 10002,
"labels": [
"ANALYSIS"
],
"start": 9690,
"text": "On verification of the details obtained from the NMPT, Mangalore vide letter dated 17.10.2007, it was found that the details furnished by the assessee tallied with the details furnished by NMPT and hence the assessee was asked to explain as to whom payment of Rs.2,70,70,745/- had been made and for what service."
}
},
{
"from_name": null,
"id": "68d92d4bf04349e8817411e0fd27a964",
"to_name": null,
"type": null,
"value": {
"end": 10276,
"labels": [
"ANALYSIS"
],
"start": 10003,
"text": "It is also found by the appellate Commissioner that all the statements of sub-contractors recorded by the Assessing Officer are of stereo type and same 18 questions were asked by the Assessing Officer to all the sub-contractors and all of them have given identical replies."
}
},
{
"from_name": null,
"id": "fc86befbc771426f9584820e77084dd3",
"to_name": null,
"type": null,
"value": {
"end": 10431,
"labels": [
"ANALYSIS"
],
"start": 10277,
"text": "Virtually, it means that stereo type statements are repeated by the Assessing Officer while considering the case on hand in respect of 18 sub-contractors."
}
},
{
"from_name": null,
"id": "851b77be1db347eea7e2143fdaa28153",
"to_name": null,
"type": null,
"value": {
"end": 10588,
"labels": [
"ANALYSIS"
],
"start": 10432,
"text": "It is also borne out from the records that the sub-contractors have not maintained any list of accounts in respect of labour contract works of the assessee."
}
},
{
"from_name": null,
"id": "44f5dd3f6dbf4983be1e84a05a30da45",
"to_name": null,
"type": null,
"value": {
"end": 10774,
"labels": [
"ANALYSIS"
],
"start": 10588,
"text": "\nThey have not maintained any records regarding the labourers engaged, the details like names and addresses of the workers etc., and the same are not available with the sub- contractors."
}
},
{
"from_name": null,
"id": "5ef1f3dac6b04e2f9e5d2720c771d262",
"to_name": null,
"type": null,
"value": {
"end": 10888,
"labels": [
"ANALYSIS"
],
"start": 10775,
"text": "Even the list of accounts and other details are not available to know the total number of labourers engaged etc.,"
}
},
{
"from_name": null,
"id": "682fa8a2f6cf4a85a1cd01fb92e00c3b",
"to_name": null,
"type": null,
"value": {
"end": 11033,
"labels": [
"ANALYSIS"
],
"start": 10889,
"text": "It is also admitted by the sub-contractors that they have not maintained any records to show as to how much payments were made to the labourers."
}
},
{
"from_name": null,
"id": "add869c568d84711ac644531c53a93f7",
"to_name": null,
"type": null,
"value": {
"end": 11214,
"labels": [
"ANALYSIS"
],
"start": 11034,
"text": " It is further admitted before the Assessing Officer that they have not maintained any evidence like vouchers, receipts in respect of payments made to the labourers etc., "
}
},
{
"from_name": null,
"id": "7394c5366f384c6c9199e14b89e4cee9",
"to_name": null,
"type": null,
"value": {
"end": 11283,
"labels": [
"ANALYSIS"
],
"start": 11214,
"text": "Regarding payment to individual labourers, no details are maintained."
}
},
{
"from_name": null,
"id": "66618b7244254c74a04f17c18914f97e",
"to_name": null,
"type": null,
"value": {
"end": 11360,
"labels": [
"ANALYSIS"
],
"start": 11284,
"text": "There is no written agreement between the assessee and the sub- contractors."
}
},
{
"from_name": null,
"id": "d481856eb435418da214bd1fdcc01c58",
"to_name": null,
"type": null,
"value": {
"end": 11596,
"labels": [
"ANALYSIS"
],
"start": 11361,
"text": "The bills produced by the sub- contractors before the authorities are computer generated bills which are identical in respect of all the sub-contractors and they did not have any service tax registration number, cell phone number etc.,"
}
},
{
"from_name": null,
"id": "712931fb208a4864a820f67d85aab299",
"to_name": null,
"type": null,
"value": {
"end": 11795,
"labels": [
"ANALYSIS"
],
"start": 11597,
"text": " On perusal of their bank account records, it is observed by the Appellate Commissioner that when the payment by cheque was made, the amount was withdrawn by cash on the same day or on the next day."
}
},
{
"from_name": null,
"id": "5ba48e20323f4e3cac92a1ec94efafd0",
"to_name": null,
"type": null,
"value": {
"end": 12026,
"labels": [
"ANALYSIS"
],
"start": 11795,
"text": "\n 6. In addition to the same, the Tribunal, on facts has found that the Appellate Commissioner did not find availability of any big labour force which can be engaged by assessee or any other cargo handling concern for the business."
}
},
{
"from_name": null,
"id": "97a199f65b124fdc8d882072ab586836",
"to_name": null,
"type": null,
"value": {
"end": 12230,
"labels": [
"ANALYSIS"
],
"start": 12027,
"text": "It is found that NMPT labour is so organized and strong that they would not allow any private sub-contractors to carry on the work and receive the huge payments as indicated by the assessee in this case."
}
},
{
"from_name": null,
"id": "e47a8bea6f304f81acce389b90966380",
"to_name": null,
"type": null,
"value": {
"end": 12434,
"labels": [
"ANALYSIS"
],
"start": 12231,
"text": "It is also found by the appellate Commissioner that even the nature of work and infrastructure available at NMPT port does not require engagement of huge labour force of the nature indicated by assessee."
}
},
{
"from_name": null,
"id": "e2876a0b4e9e499990e97cdc45842ac6",
"to_name": null,
"type": null,
"value": {
"end": 12543,
"labels": [
"ANALYSIS"
],
"start": 12435,
"text": "Most of the cargo handling process was mechanized and therefore the requirement of labour force was minimum."
}
},
{
"from_name": null,
"id": "4236f1e276a74e9b92284efb41fb0690",
"to_name": null,
"type": null,
"value": {
"end": 12720,
"labels": [
"ANALYSIS"
],
"start": 12543,
"text": "\nOn these amongst other grounds, as set out in detail in his order, the appellate Commissioner disallowed the sum of Rs.2,70,70,745/- which was allowed by the Assessing Officer."
}
},
{
"from_name": null,
"id": "8a786fdb92974690b58fb6029726713f",
"to_name": null,
"type": null,
"value": {
"end": 12851,
"labels": [
"ANALYSIS"
],
"start": 12722,
"text": "7. The Appellate Tribunal while deciding the appeal, has casually proceeded to sustain the order passed by the Assessing Officer."
}
},
{
"from_name": null,
"id": "3460eb3de877407f8f472b7478b569b6",
"to_name": null,
"type": null,
"value": {
"end": 13011,
"labels": [
"ANALYSIS"
],
"start": 12852,
"text": "None of the major points decided by the Appellate Commissioner are answered by the Tribunal while setting aside the order passed by the Appellate Commissioner."
}
},
{
"from_name": null,
"id": "38820a5eee7045ac915bdda62eba51d7",
"to_name": null,
"type": null,
"value": {
"end": 13168,
"labels": [
"ANALYSIS"
],
"start": 13011,
"text": "\nThough the order passed by the Tribunal runs to number of pages, the crux of the matter is not adverted to by the Tribunal while arriving at the conclusion."
}
},
{
"from_name": null,
"id": "cdf41e30715842f0a3f9e334178f0f0f",
"to_name": null,
"type": null,
"value": {
"end": 13403,
"labels": [
"RATIO"
],
"start": 13169,
"text": "On careful perusal of the order passed by the Tribunal, we are of the opinion that the order of the Tribunal cannot be sustained inasmuch as the Tribunal has not applied its mind judiciously to the facts and circumstances of the case."
}
},
{
"from_name": null,
"id": "11037e8966bf44e0a2963b08709d81c8",
"to_name": null,
"type": null,
"value": {
"end": 13537,
"labels": [
"RATIO"
],
"start": 13404,
"text": "In view of the same, interest of justice requires that the matter has to be re-dealt by the Income Tax Appellate Tribunal, Bangalore."
}
},
{
"from_name": null,
"id": "e7f946de50e643ee81e866d1de1ebefa",
"to_name": null,
"type": null,
"value": {
"end": 13613,
"labels": [
"RATIO"
],
"start": 13538,
"text": "By the said process, no prejudice would be caused to either of the parties."
}
},
{
"from_name": null,
"id": "5231bbd3182b40a0a5560882ac2a34de",
"to_name": null,
"type": null,
"value": {
"end": 13821,
"labels": [
"RPC"
],
"start": 13613,
"text": "\n Accordingly, following order is passed: (i) The order dated 30th April 2009 passed by the Income Tax Appellate Tribunal, Bangalore Bench `A' in ITA No.947/Bang/08 (Assessment year 2004-05) stands set aside."
}
},
{
"from_name": null,
"id": "f429b0c9986c4ef69ab2ab45eced28c3",
"to_name": null,
"type": null,
"value": {
"end": 13992,
"labels": [
"RPC"
],
"start": 13821,
"text": "\n (ii) The matter in ITA No.947/Bang/08 is restored to the file of the Income Tax Appellate Tribunal, Bangalore Bench `A' for fresh disposal in accordance with law."
}
},
{
"from_name": null,
"id": "5e593a28efb7413a8650a6c703f20805",
"to_name": null,
"type": null,
"value": {
"end": 14116,
"labels": [
"RPC"
],
"start": 13992,
"text": "\n This Court hopes that the Income Tax Appellate Tribunal will apply its mind judiciously before arriving at the conclusion."
}
},
{
"from_name": null,
"id": "622a059f70c94830aed99fc244cbeca9",
"to_name": null,
"type": null,
"value": {
"end": 14216,
"labels": [
"RPC"
],
"start": 14116,
"text": "\n In view of the remand order, the substantial questions of law raised in this appeal are kept open."
}
},
{
"from_name": null,
"id": "d2b7066b2d8c47389af86b3bc29762bb",
"to_name": null,
"type": null,
"value": {
"end": 14352,
"labels": [
"RPC"
],
"start": 14216,
"text": "\n 7. As the issues involved are the same, we do not find that any different view deserves to be taken than was taken in ITA No.450/2009."
}
},
{
"from_name": null,
"id": "9d18a92abcd54e1288a2cd58bafc3cf5",
"to_name": null,
"type": null,
"value": {
"end": 14546,
"labels": [
"RPC"
],
"start": 14353,
"text": "Hence, the impugned Order passed by the Tribunal dated 16.07.2010 in ITA Nos.67/Bang/2010 is set aside with a further direction that the matter shall stand restored to the file of the Tribunal."
}
},
{
"from_name": null,
"id": "e000d90f02674b95b5812d49869f31e0",
"to_name": null,
"type": null,
"value": {
"end": 14688,
"labels": [
"RPC"
],
"start": 14547,
"text": "The Tribunal shall examine the matter and take appropriate decision in accordance with law after hearing both the sides as early as possible."
}
},
{
"from_name": null,
"id": "4ae43fa1f23146bb9dc3b4c21ac2c8eb",
"to_name": null,
"type": null,
"value": {
"end": 14739,
"labels": [
"RPC"
],
"start": 14690,
"text": "8. The appeal is allowed to the aforesaid extent."
}
},
{
"from_name": null,
"id": "ebdc8b87ce6644b9b992d8001ed11625",
"to_name": null,
"type": null,
"value": {
"end": 14802,
"labels": [
"RPC"
],
"start": 14739,
"text": "\nConsidering the facts and circumstances, no order as to costs."
}
},
{
"from_name": null,
"id": "d4680e5919cf43ef88ef645b5f269674",
"to_name": null,
"type": null,
"value": {
"end": 14830,
"labels": [
"NONE"
],
"start": 14802,
"text": "\n Sd/- JUDGE Sd/- JUDGE AN/-"
}
}
]
}
] | 4,231 | {
"text": "IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\nDATED THIS THE 26TH DAY OF FEBRUARY 2016\n\n PRESENT\n\n THE HON'BLE MR.JUSTICE JAYANT PATEL\n\n AND\n\n THE HON'BLE MRS.JUSTICE S.SUJATHA\n\n ITA No.432/2010\n\nBETWEEN\n\n1. COMMISSIONER OF INCOME TAX-III,\n C.R. BUILDING\n QUEENS ROAD\n BANGALORE.\n\n2. ASSISTANT COMMISSIONER\n\n OF INCOME-TAX, CIRCLE-2(1)\n\n MANGALORE. ...APPELLANTS\n\n(BY SRI. E.I.SANMATHI, ADVOCATE)\n\nAND\n\nM/S. HASSAN HAJEE & CO. ....RESPONDENT\nNEAR OLD MUNICIPAL OFFICE\nBUNDER, MANGALORE.\n\n(BY SMT.JINITA CHATTERJEE, ADVOCATE\nFOR SRI.S.PARTHASARATHI, ADVOCATE)\n\n THIS APPEAL IS FILED UNDER SECTION 260-A\nOF INCOME TAX ACT 1961, TO SET ASIDE THE\nORDER DATED 16.07.2010 PASSED BY THE ITAT, `B'\nBENCH BANGALORE AS SOUGHT FOR, IN THE\nRESPONDENT-ASSESSEE'S CASE, IN APPEAL\nPROCEEDINGS ITA NOs.67 & 68/BANG/2010, IN THE\nINTEREST OF JUSTICE AND EQUITY.\n\n THIS APPEAL COMING ON FOR HEARING, THIS\nDAY, JAYANT PATEL, J., DELIVERED THE\nFOLLOWING:\n\n JUDGMENT\n The present appeal is directed against the Order dated 24.07.2009 passed by the Income Tax Appellate Tribunal, Bangalore Bench `B', Bangalore Bench `B', Bangalore, [hereinafter referred to as `Tribunal', for short] in ITA Nos.67 & 68/Bang/2010, by raising the following substantial questions of law.\n \"1. Whether under the facts and circumstances of the case, the tribunal was right in law in restricting the addition to 1.6% in respect of an expenditure which is of such nature as covered by section 37(1) of the income tax Act, 1961?\n 2. Whether under the facts and circumstances of the case, the tribunal right in law in restricting the addition to 1.6% in respect of wages instead of 10.3% and 6.6% adopted by the assessing authority respectively for the Assessment Years 2002- 03 and 2003-04, when the onus to prove the genuineness of expenditure claimed has not been discharged by the assessee\"?\n 2. We have heard Mr. E.I. Sanmathi, learned Counsel for the Appellants Revenue and Ms. Jinita Chatterjee, learned Counsel appearing for the Respondent.\n 3. We may record that the Tribunal on the aspects of restriction of disallowance to the extent of 1.6% in the impugned order at paragraph-11.1, has observed thus: \"In the instant case, we find the restriction of disallowance to 1.6% of the total wages paid for asst. year 2002-03 (Rs.4,38,27,054) and for assessment year 2003-04 (Rs.4,62,71,697) is reasonable and correct.\n The Tribunal for assessment year 2004-05 (ITA No.947/08 dated 30.04.2009) had sustained the disallowance of Rs.15 lakhs, which works to 1.6% of the total wages amounting to Rs.9,28,18,382/-. The total wages as a percentage of gross turnover was lower in the concerned two assessment years as compared to assessment year 2004-05. Therefore, restricting the disallowance to 1.6% of the total wages is only reasonable under the given facts and circumstances of the case. Moreover, the revenue has not brought in any material to dispel the finding of the learned CIT(A).\n Hence, we hold that the order of the CIT(A) is correct and in accordance with law and therefore, the grounds raised by the revenue are rejected.\"\n 4. We would have further considered the matter. However, learned Counsel for the Appellants- Revenue has brought to our notice that the decision of the Tribunal itself in ITA No.947/Bang/2008 dated 30.04.2009 was carried before this Court in ITA No.450/2009 and this Court vide Judgment dated 1.6.2015 has set aside the said Order of the Tribunal and has remanded the matter to the Tribunal for further consideration in accordance with law.\n 5. In view of the above, one of the vital basis for the decision of the Tribunal in the impugned Order was its earlier view in ITA No.947/Bang/2008 dated 30.04.2009 and when this Court has by the aforesaid Judgment in ITA No.450/2009 has set aside the said order of the Tribunal and has remanded the matter, we find that similar course deserves to be adopted even in the present matter.\n 6. We may record that this Court in the above referred decision in ITA No.450/2009, had observed thus: \"This appeal is filed by the Revenue questioning the order dated 30.4.2009 passed by the Income Tax Appellate Tribunal, Bangalore Bench `A' in ITA No.947/Bang/08 (Assessment year 2004-05). The appellants have prayed for confirmation of the order dated 22.4.2008 passed by the Commissioner of Income Tax (Appeals) {`Appellate Commissioner' for short}.\n 2. The assessee is involved in Stevedoring operations of vessels and carrying on loading and unloading work at the port; assessee has engaged labour force from New Mangalore Port Trust (`NMPT' for short), registered cargo Handling Workers Administrative Wing (RCHWAW); the payment to the labour so engaged would be made by cheques to NMPT and in turn NMPT would disburse the wages to the workers. Case of the assessee is that as the registered labour force at NMPT did not agree to work beyond the limit fixed by them, the assessee had engaged the services of the private workers and had made payment in cash to the extent of Rs.1,17,59,931/- and through cheques to sub-contractors to the extent of Rs.2,70,70,745/-; the payments were made through self made vouchers. According to the assessee, loading and unloading operations were carried out by it by making the following payments: (a) Rs.2,53,29,660/- through cheque to NMPT Workers' Union.\n (b) Rs.2,70,70,745/- to sub-contractors who brought the workers privately to the port for the purpose of unloading the iron ore. The payments were made through cheque to the sub-contractors.\n (c) Cash of Rs.1,17,59,931/- was paid by the assessee to the gang leaders who had brought the workers privately as speed money.\n 3. The Assessing Officer allowed the contention of the assesee insofar as it relates to payment through cheque to the NMPT Union and sub-contractors. However, the Assessing Officer has disallowed the claim of the assessee to the extent of 20% in respect of cash payment to gang leaders as mentioned supra, which means the Assessing Authority allowed the claim of the assessee to the extent of 80%.\n Questioning the order passed by the Assessing Authority, the assessee filed appeal No.ITA/174/ CIT(A)/MNG/2006-07 before the Appellate Commissioner under Section 246 of the Income Tax Act (`the Act' for short). The Appellate Commissioner while adjudicating the appeal issued show cause notice under Section 251(2) of the Act for enhancement of tax liability. After hearing both the parties, the Appellate Commissioner enhanced the tax liability by setting aside the order passed by the Assessing Officer in respect of payments made to sub-contractors through cheque a sum of Rs.2,70,70,745/-.\nHowever Appellate Commissioner affirmed the order passed by the Assessing Officer insofar as it relates to speed money paid to various gang leaders in cash.\n The order of the Appellate Commissioner is carried further by the assessee before the Income Tax Appellate Tribunal, Bangalore Bench `A' in ITA No.947/Bang/08 by filing the appeal. The Income Tax Appellate Tribunal by its order dated 30.4.2009 allowed the appeal of the assessee in part and restricted the addition to the extent of Rs.15,00,000/- as against Rs.2,94,00,000/- made by the Appellate Commissioner.\n 4. Sri Jeevan J. Neeralgi, learned standing counsel for the appellants as well as Sri S. Parthasarathi, learned advocate for the assessee have taken us through the entire material on record, more particularly the orders passed by the Appellate Commissioner and Income Tax Appellate Tribunal, Bangalore.\n 5. The Appellate Commissioner has in his detailed order clarified as to how the order passed by the Assessing Authority is unsustainable to the extent mentioned supra.\nTo verify the genuineness of the payments made by the assessee to the sub-contractors through cheques, summons under Section 131 of the Income Tax Act issued to all the sub- contractors mentioned in the assessment order and their statements recorded on oath by the Assessing Officer also came to be examined. It came to be noticed by the Appellate Commissioner that all the sub- contractors have stated that they have carried loading and unloading work at the port for the assessee by engaging private labour and they have further confirmed the bill. All these labour contractors are assessed to tax and they have filed returns belatedly declaring the above labour contract proceeds and offered income to tax under Section 44-AD of the Act.\nHowever the Appellate Commissioner, on facts has found that the vouchers issued to the sub-contractors and payments made to them are highly suspicious in nature. The details collected from the assessee were made available to the Financial Advisor and Chief Accounts Officer, NMPT, Mangalore for getting reports. The details received from NMPT, Mangalore when compared with the details which the assessee has made available before the Appellate Commissioner fully tallied with each other in terms of date, item and quantity in metric tons. In other words, the entire cargo was handled by the assessee with the help of NMPT labour, for which assessee has paid a sum of Rs.2,53,29,660/- by cheque. Hence, it appears a genuine doubt arose in the mind of the Appellate Commissioner as to whether the actual payments were made to the sub- contractors or not in the matter of engaging the workers and payment of money to them as speed money. The letter written by the assessee to the Appellate Commissioner discloses that the total cargo handled during the financial year 2003-04 was 8,00,000 tons. On verification of the details obtained from the NMPT, Mangalore vide letter dated 17.10.2007, it was found that the details furnished by the assessee tallied with the details furnished by NMPT and hence the assessee was asked to explain as to whom payment of Rs.2,70,70,745/- had been made and for what service. It is also found by the appellate Commissioner that all the statements of sub-contractors recorded by the Assessing Officer are of stereo type and same 18 questions were asked by the Assessing Officer to all the sub-contractors and all of them have given identical replies. Virtually, it means that stereo type statements are repeated by the Assessing Officer while considering the case on hand in respect of 18 sub-contractors. It is also borne out from the records that the sub-contractors have not maintained any list of accounts in respect of labour contract works of the assessee.\nThey have not maintained any records regarding the labourers engaged, the details like names and addresses of the workers etc., and the same are not available with the sub- contractors. Even the list of accounts and other details are not available to know the total number of labourers engaged etc., It is also admitted by the sub-contractors that they have not maintained any records to show as to how much payments were made to the labourers. It is further admitted before the Assessing Officer that they have not maintained any evidence like vouchers, receipts in respect of payments made to the labourers etc., Regarding payment to individual labourers, no details are maintained. There is no written agreement between the assessee and the sub- contractors. The bills produced by the sub- contractors before the authorities are computer generated bills which are identical in respect of all the sub-contractors and they did not have any service tax registration number, cell phone number etc., On perusal of their bank account records, it is observed by the Appellate Commissioner that when the payment by cheque was made, the amount was withdrawn by cash on the same day or on the next day.\n 6. In addition to the same, the Tribunal, on facts has found that the Appellate Commissioner did not find availability of any big labour force which can be engaged by assessee or any other cargo handling concern for the business. It is found that NMPT labour is so organized and strong that they would not allow any private sub-contractors to carry on the work and receive the huge payments as indicated by the assessee in this case. It is also found by the appellate Commissioner that even the nature of work and infrastructure available at NMPT port does not require engagement of huge labour force of the nature indicated by assessee. Most of the cargo handling process was mechanized and therefore the requirement of labour force was minimum.\nOn these amongst other grounds, as set out in detail in his order, the appellate Commissioner disallowed the sum of Rs.2,70,70,745/- which was allowed by the Assessing Officer.\n 7. The Appellate Tribunal while deciding the appeal, has casually proceeded to sustain the order passed by the Assessing Officer. None of the major points decided by the Appellate Commissioner are answered by the Tribunal while setting aside the order passed by the Appellate Commissioner.\nThough the order passed by the Tribunal runs to number of pages, the crux of the matter is not adverted to by the Tribunal while arriving at the conclusion. On careful perusal of the order passed by the Tribunal, we are of the opinion that the order of the Tribunal cannot be sustained inasmuch as the Tribunal has not applied its mind judiciously to the facts and circumstances of the case. In view of the same, interest of justice requires that the matter has to be re-dealt by the Income Tax Appellate Tribunal, Bangalore. By the said process, no prejudice would be caused to either of the parties.\n Accordingly, following order is passed: (i) The order dated 30th April 2009 passed by the Income Tax Appellate Tribunal, Bangalore Bench `A' in ITA No.947/Bang/08 (Assessment year 2004-05) stands set aside.\n (ii) The matter in ITA No.947/Bang/08 is restored to the file of the Income Tax Appellate Tribunal, Bangalore Bench `A' for fresh disposal in accordance with law.\n This Court hopes that the Income Tax Appellate Tribunal will apply its mind judiciously before arriving at the conclusion.\n In view of the remand order, the substantial questions of law raised in this appeal are kept open.\n 7. As the issues involved are the same, we do not find that any different view deserves to be taken than was taken in ITA No.450/2009. Hence, the impugned Order passed by the Tribunal dated 16.07.2010 in ITA Nos.67/Bang/2010 is set aside with a further direction that the matter shall stand restored to the file of the Tribunal. The Tribunal shall examine the matter and take appropriate decision in accordance with law after hearing both the sides as early as possible.\n 8. The appeal is allowed to the aforesaid extent.\nConsidering the facts and circumstances, no order as to costs.\n Sd/- JUDGE Sd/- JUDGE AN/- "
} |
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"text": "\n\n CRIMINAL PETITION No.100935/2020\n "
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}
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"text": "\n BETWEEN:\n\n SANGAPPA S/O BASAPPA YEMMETTI"
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"text": "\n TQ: KALAGHATAGI, DIST:"
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],
"start": 877,
"text": "\n KALAGHATAGI."
}
},
{
"from_name": null,
"id": "9a712588ae91487bb6f8c06396166715",
"to_name": null,
"type": null,
"value": {
"end": 1580,
"labels": [
"PREAMBLE"
],
"start": 975,
"text": "... RESPONDENT\n (BY SRI. RAMESH B. CHIGARI, HCGP)\n\n THIS CRIMINAL PETITION IS FILED U/SEC.439 OF\n CR.P.C., PRAYING TO RELEASE OF THE PETITIONERS /\n ACCUSED 9 ON BAIL IN KALAGHTAGI POLICE STATION\n CRIME NO.112/2019 I.E., FOR THE OFFENCE UNDER\n SECTION 143, 147, 148, 448, 504, 506, 341, 307,\n 302, 324, 326, 120B, 201 R/W 149 OF IPC AND\n\nSECTION 27 OF THE ARMS ACT 1959 WHICH IS\nPENDING ON THE FILE OF IV ADDL. DISTRICT AND\nSESSIONS JUDGE, DHARWAD.\n\nIN CRL.P.NO.100951/2020\nBETWEEN:\n\n1. KALLAPPA BASAPPA KARADI\n AGE: 50 YEARS, OCC: AGRICULTURE,\n\n2."
}
},
{
"from_name": null,
"id": "971aa593c7d1485e8d15f2bf7466cd90",
"to_name": null,
"type": null,
"value": {
"end": 1651,
"labels": [
"PREAMBLE"
],
"start": 1581,
"text": "MAHESH FAKEERAPPA KARADI\n AGE: 26 YEARS, OCC: PRIVATE WORK,\n\n3."
}
},
{
"from_name": null,
"id": "cf29a2279e154a16b25f38296c878502",
"to_name": null,
"type": null,
"value": {
"end": 1707,
"labels": [
"PREAMBLE"
],
"start": 1652,
"text": "MARUTI HALAPPA AKKI\n AGE: 42 YEARS, OCC: COOLIE,"
}
},
{
"from_name": null,
"id": "ef55b4fc30b8464a943f832e907c0b5c",
"to_name": null,
"type": null,
"value": {
"end": 1767,
"labels": [
"PREAMBLE"
],
"start": 1709,
"text": "4. IRAYYA BASAYYA PUJAR\n AGE: 20 YEARS, OCC: MASON,"
}
},
{
"from_name": null,
"id": "2cff2f24ee9e41be8aeb607262133c12",
"to_name": null,
"type": null,
"value": {
"end": 1840,
"labels": [
"PREAMBLE"
],
"start": 1769,
"text": "5. BASAYYA FAKIRAYYA PUJAR\n AGE: 51 YEARS, OCC: AGRICULTURE,\n\n6."
}
},
{
"from_name": null,
"id": "adcd86e1eb3b41a3a9e2499717cee7b3",
"to_name": null,
"type": null,
"value": {
"end": 1908,
"labels": [
"PREAMBLE"
],
"start": 1841,
"text": "SHEKHAPPA HANUMANTHAPPA JODALLI\n AGE: 56 YEARS, OCC: COOLIE,"
}
},
{
"from_name": null,
"id": "9b022b7fd024475e97397b15bb145edb",
"to_name": null,
"type": null,
"value": {
"end": 1947,
"labels": [
"PREAMBLE"
],
"start": 1910,
"text": "7. SHANKRAYYA MALLAYYA PUJAR @ YADWAD"
}
},
{
"from_name": null,
"id": "e953feb5c808401389c98e2051dd065f",
"to_name": null,
"type": null,
"value": {
"end": 2259,
"labels": [
"PREAMBLE"
],
"start": 1947,
"text": "\n AGE: 20 YEARS, OCC: PRIVATE WORK,\n\nALL ARE R/O R/O: JAMMINHAAL, ...PETITIONERS\nTQ: KALAGHATAGI,\nDIST: DHARWAD-581204.\n\n(BY SRI. K.L. PATIL, ADVOCATE)\n\nAND:\n\nTHE STATE OF KARNATAKA\nTHROUGH KALGHATAGI POLICE STATION,\nREPRESENTED BY\nSTATE PUBLIC PROSECUTOR,\nHIGH COURT OF KARNATAKA,\n\nDHARWAD BENCH."
}
},
{
"from_name": null,
"id": "1588cba8d1ce43068a5ba48ed87f9798",
"to_name": null,
"type": null,
"value": {
"end": 2389,
"labels": [
"PREAMBLE"
],
"start": 2329,
"text": "... RESPONDENT\n\n(BY SRI. RAMESH B. CHIGARI, HCGP)\n\n "
}
},
{
"from_name": null,
"id": "050ff94fea0b47c0961efee77db4e70b",
"to_name": null,
"type": null,
"value": {
"end": 3057,
"labels": [
"PREAMBLE"
],
"start": 2389,
"text": "THIS CRIMINAL PETITION IS FILED U/SEC.439 OF\nCR.P.C., PRAYING TO RELEASE THE PETITIONERS /\nACCUSED NO.10 TO 14, 16 AND 17 ON BAIL IN\nKALAGHATAGI POLICE STATION CRIME NO.112/2019\nWHICH IS NUMBERED AS S.C.NO.20/2020 ON THE FILE\nOF IV ADDL. DISTRICT AND SESSION JUDGE,\nDHARWAD, REGISTERED FOR THE OFFENCES\nPUNISHABLE UNDER SECTIONS 143, 147, 148, 448,\n504, 506, 341, 307, 302, 324, 326, 120B, 201 R/W\nSECTION 149 OF IPC AND SECTION 27 OF THE ARMS\nACT, 1959.\n\nRESERVED ON : 04.09.2020\n\nPRONOUNCED ON : 08.09.2020\n\n THESE CRIMINAL PETITIONS HAVING BEEN\nHEARD AND RESERVED FOR ORDERS AND COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:"
}
},
{
"from_name": null,
"id": "657207de0f5947e6a55a570a576fbb1d",
"to_name": null,
"type": null,
"value": {
"end": 3064,
"labels": [
"PREAMBLE"
],
"start": 3058,
"text": "ORDER "
}
},
{
"from_name": null,
"id": "cdff18fd871e4e7489d46244d1f19fa0",
"to_name": null,
"type": null,
"value": {
"end": 3329,
"labels": [
"FAC"
],
"start": 3064,
"text": "Criminal Petition No.100935/2020 has been filed by accused No.9 and Criminal Petition No.100951/2020 has been filed by accused Nos.10 to 14, 16 and 17 under Section 439 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the `Cr.P.C.', for brevity)."
}
},
{
"from_name": null,
"id": "6a47462a8a714f7e9ba85ca6949b21f4",
"to_name": null,
"type": null,
"value": {
"end": 3679,
"labels": [
"FAC"
],
"start": 3329,
"text": "\nBoth the petitions have been filed seeking bail in Crime No.112/2019 of Kalaghatagi Police Station for the offences punishable under Sections 143, 147, 148, 448, 504, 506, 341, 307, 302, 324, 326, 120B, 201 read with Section 149 of The Indian Penal Code (hereinafter referred to as the `IPC', for brevity) and under Section 27 of The Arms Act, 1959."
}
},
{
"from_name": null,
"id": "233ac6bb11aa4409823f9b33d2bbdf71",
"to_name": null,
"type": null,
"value": {
"end": 3798,
"labels": [
"FAC"
],
"start": 3679,
"text": "\n 2. The case of the prosecution is that the complainant is the brother of deceased Veerabhadrappa Basavanneppa Sattur."
}
},
{
"from_name": null,
"id": "daff159c839f47b6a40322356b8f9dfb",
"to_name": null,
"type": null,
"value": {
"end": 3918,
"labels": [
"FAC"
],
"start": 3799,
"text": "The said Veerabhadrappa was a member of Gram Panchayat for last 15 years and President of PLD Bank, Dhummawada Society."
}
},
{
"from_name": null,
"id": "7f0d2550436e4bdfb0457f3352fa9612",
"to_name": null,
"type": null,
"value": {
"end": 4127,
"labels": [
"FAC"
],
"start": 3919,
"text": "It is alleged that during the Gram Panchayat election, because of political rivalry, petitioner Nos.1 to 3 had grouse against Veerabhadrappa and that cases were filed against each other in the police station."
}
},
{
"from_name": null,
"id": "f70680c0cbc24216851b09a37457bbcc",
"to_name": null,
"type": null,
"value": {
"end": 4252,
"labels": [
"FAC"
],
"start": 4128,
"text": "The family of Pujar also had differences with his brother Veerabhadrappa in respect of performing pooja in Basavanna temple."
}
},
{
"from_name": null,
"id": "aecfd329c19f491f941d48faab654e82",
"to_name": null,
"type": null,
"value": {
"end": 4638,
"labels": [
"FAC"
],
"start": 4253,
"text": "On 09.09.2019, at about 7.00 pm, the complainant was proceeding towards his house along with the cattle and when he passed on the road near the house of accused No.1-Basavaraj Shivappa Akki, accused No.2-Basavaraj Sangappa Akki, they took objection for using the pathway and picked up a quarrel and the complainant went to his house saying that he would not use the pathway henceforth."
}
},
{
"from_name": null,
"id": "d94f2e459f924b998986b7e38ab34afd",
"to_name": null,
"type": null,
"value": {
"end": 4783,
"labels": [
"FAC"
],
"start": 4639,
"text": "It is further alleged that accused Nos.1 and 2 came to his house along with others, gained entry into the house and pulled him out of the house."
}
},
{
"from_name": null,
"id": "0626f5389dc646c589349b78adb09d03",
"to_name": null,
"type": null,
"value": {
"end": 4957,
"labels": [
"FAC"
],
"start": 4784,
"text": "The accused persons who were holding weapons in their hands started assaulting the complainant and dragged him to the land belonging to accused No.1-Basavaraj Shivappa Akki."
}
},
{
"from_name": null,
"id": "f1e300552f404f51b85a82e65d20e242",
"to_name": null,
"type": null,
"value": {
"end": 5114,
"labels": [
"FAC"
],
"start": 4958,
"text": "Accused No.1 with talwar (chopper) assaulted on the right hand, accused No.13-Irayya Basaiah Pujar with iron rod assaulted on the person of the complainant."
}
},
{
"from_name": null,
"id": "e18521be6cf645b6b7e5a6561a562127",
"to_name": null,
"type": null,
"value": {
"end": 5299,
"labels": [
"FAC"
],
"start": 5115,
"text": "The wife of the complainant telephonically informed Veerabhadrappa-deceasead and Nagappa and both of them came to the spot along with their children Ravikumar, Basavaraj and Eranna."
}
},
{
"from_name": null,
"id": "ef9cb5162f634c398f37b2255c025af1",
"to_name": null,
"type": null,
"value": {
"end": 5324,
"labels": [
"FAC"
],
"start": 5300,
"text": "The accused abused them."
}
},
{
"from_name": null,
"id": "0834c45e56ca4ce8800b0c28b54a0833",
"to_name": null,
"type": null,
"value": {
"end": 5614,
"labels": [
"FAC"
],
"start": 5325,
"text": "Accused No.3-Fakkirapa Prahald Chulaki and accused No.4-Krishna Chulaki with a talwar assaulted on the head of Veerabhadrappa and he fell down and at that time accused No.5-Mallappa Chulaki and accused No.6-Channiah Pujar threw stones on the head of Veerabhadrappa and he died on the spot."
}
},
{
"from_name": null,
"id": "1584fdd435d4494eab7e39f5b1018db3",
"to_name": null,
"type": null,
"value": {
"end": 5925,
"labels": [
"FAC"
],
"start": 5615,
"text": "It is further alleged that accused No.2-Basavaraj Sangappa Akki and accused No.9-Sangappa Basappa Yemmetti caught hold of Ravikumar-deceased, accused No.7- Praveen Kallappa Karadi with talawar assaulted on his head and accused No.8-Siddaram Halappa Akki with iron rod assaulted on the head and caused injuries."
}
},
{
"from_name": null,
"id": "194b862c8f574c43b24f3eb428692ab1",
"to_name": null,
"type": null,
"value": {
"end": 6122,
"labels": [
"FAC"
],
"start": 5926,
"text": "It is further alleged that accused No.12-Maruthi Halappa Akki caught hold of Nagappa and accused No.10- Kallappa Basappa Karadi with talwar assaulted on the hand and that his fingers were cut off."
}
},
{
"from_name": null,
"id": "731ac9ea1e324823890490e1555247af",
"to_name": null,
"type": null,
"value": {
"end": 6197,
"labels": [
"FAC"
],
"start": 6123,
"text": "Accused No.11- Mahesh Fakkirappa Karadi assaulted with club on his person."
}
},
{
"from_name": null,
"id": "2bbcff7c2f384f52a4b8b0200f76d19d",
"to_name": null,
"type": null,
"value": {
"end": 6406,
"labels": [
"FAC"
],
"start": 6198,
"text": "It is further alleged that accused No.14-Basiah Fakkiruiah Pujar with club and accused No.15-Yallappa Basappa Yemmetti with iron pipe assaulted on the head and other parts of body of Basavaraj Nagappa Sattur."
}
},
{
"from_name": null,
"id": "ed5dcc51f6404df794018c48fb3cbe79",
"to_name": null,
"type": null,
"value": {
"end": 6651,
"labels": [
"FAC"
],
"start": 6407,
"text": "It is further alleged that accused No.16-Shekappa Hanamanthappa Jodalli with club, accused No.17- Shankriah Malliah Yadawad with a chopper assaulted on the left shoulder and other parts of the body of Iranna Kallappa Sattur and caused injuries."
}
},
{
"from_name": null,
"id": "f1351e4b861b4033bd1a34e67cc4cbcc",
"to_name": null,
"type": null,
"value": {
"end": 6808,
"labels": [
"FAC"
],
"start": 6652,
"text": "One Kasturi, Smt. Sarjavva Davalsab, Hussainsab, Fakkirappa, Basalingappa and others on coming to know of the incident, came there and pacified the quarrel."
}
},
{
"from_name": null,
"id": "5b3638637fc8468a9254dbbf6d0ea6a3",
"to_name": null,
"type": null,
"value": {
"end": 6934,
"labels": [
"FAC"
],
"start": 6809,
"text": "The incident is said to have taken place on 09.09.2019 at 8.00 pm and the injured were removed to the hospital for treatment."
}
},
{
"from_name": null,
"id": "ea4bfcf81c6446a1a75297266b98329b",
"to_name": null,
"type": null,
"value": {
"end": 6998,
"labels": [
"FAC"
],
"start": 6935,
"text": "The said injured Ravikumar died during treatment on 10.09.2019."
}
},
{
"from_name": null,
"id": "959a23fb61aa454ea8b50f9121dabdce",
"to_name": null,
"type": null,
"value": {
"end": 7090,
"labels": [
"FAC"
],
"start": 6999,
"text": "The respondent- police, after completion of the investigation, have submitted charge sheet."
}
},
{
"from_name": null,
"id": "f2c28515b97b45c0a0d22415935ecf7a",
"to_name": null,
"type": null,
"value": {
"end": 7246,
"labels": [
"FAC"
],
"start": 7091,
"text": "The petitioner/accused No.9 filed bail application in Crl.Misc.No.40/2020 and the same came to be rejected by order dated 19.05.2020 by the Sessions Court."
}
},
{
"from_name": null,
"id": "70e073384253420582186bfbb677b193",
"to_name": null,
"type": null,
"value": {
"end": 7428,
"labels": [
"FAC"
],
"start": 7247,
"text": "The petitioners/accused Nos.10 to 14, 16 and 17 have filed bail application in Crl.MIsc.\nNo.96/2020 and the same came to be rejected by order dated 20.05.2020 by the Sessions Court."
}
},
{
"from_name": null,
"id": "bbbeb58df29d42138f4ce70a5a5a2742",
"to_name": null,
"type": null,
"value": {
"end": 7480,
"labels": [
"FAC"
],
"start": 7429,
"text": "Therefore, they are before this Court seeking bail."
}
},
{
"from_name": null,
"id": "d5face002b214d41aa743e47422fb851",
"to_name": null,
"type": null,
"value": {
"end": 7753,
"labels": [
"NONE"
],
"start": 7482,
"text": "3. Heard the arguments of Sri. Vasant G.\nHoleyannavar, learned counsel for the petitioner in Crl.P.No.100935/2020 and Sri. K.L. Patil, learned counsel for the petitioners in Crl.P. No.100951/2020 and the learned High Court Government Pleader for the respondent-State.\n 4."
}
},
{
"from_name": null,
"id": "5100c86e425e409d8efc23af8936a9d9",
"to_name": null,
"type": null,
"value": {
"end": 8112,
"labels": [
"ARG_PETITIONER"
],
"start": 7754,
"text": "It is the submission of the learned counsel for the petitioner in Crl.P. No. 100935/2020 that the petitioner/accused No.9 is the brother of accused No.15 who has contested the Gram Panchayat election against the deceased Veerabhadrappa and due to the political rivalry, the petitioner/accused No.9 and accused No.15 have been falsely implicated in this case."
}
},
{
"from_name": null,
"id": "e2158ceef7fe4655bf7968ebd2f4dc09",
"to_name": null,
"type": null,
"value": {
"end": 8208,
"labels": [
"ARG_PETITIONER"
],
"start": 8113,
"text": "It is his further submission that the petitioner is innocent and has not committed any offence."
}
},
{
"from_name": null,
"id": "45c06e14e824494dad4b7584a5ba1ca2",
"to_name": null,
"type": null,
"value": {
"end": 8400,
"labels": [
"ARG_PETITIONER"
],
"start": 8209,
"text": "It is his further submission that the overt act alleged against the petitioner/accused No.9 is that he caught hold of deceased Ravikumar and accused Nos.7 and 8 assaulted with talwar and rod."
}
},
{
"from_name": null,
"id": "80061bdf37e448a08a9237e9f05cc6af",
"to_name": null,
"type": null,
"value": {
"end": 8474,
"labels": [
"ARG_PETITIONER"
],
"start": 8401,
"text": "It is his further submission that accused No.9 has not assaulted any one."
}
},
{
"from_name": null,
"id": "3802c726b6f64cacbd452796dc1b3282",
"to_name": null,
"type": null,
"value": {
"end": 8623,
"labels": [
"ARG_PETITIONER"
],
"start": 8475,
"text": "It is his further submission that accused Nos.5, 6 and 15 are granted bail and the petitioner is entitled for grant of bail on the ground of parity."
}
},
{
"from_name": null,
"id": "ed8127fbdd634ab3ae8e120f74d33c1b",
"to_name": null,
"type": null,
"value": {
"end": 8753,
"labels": [
"ARG_PETITIONER"
],
"start": 8624,
"text": "It is his further submission that charge sheet has been filed and the petitioner is not required for any custodial interrogation."
}
},
{
"from_name": null,
"id": "7a1482dd14294704aa3867c2aedcd859",
"to_name": null,
"type": null,
"value": {
"end": 8802,
"labels": [
"ARG_PETITIONER"
],
"start": 8753,
"text": "\nWith these, he prayed for allowing the petition."
}
},
{
"from_name": null,
"id": "d3592b7bab3e4d53908b1e9c2e772775",
"to_name": null,
"type": null,
"value": {
"end": 9020,
"labels": [
"ARG_PETITIONER"
],
"start": 8802,
"text": "\n 5. Learned counsel for the petitioners in Crl.P.No.100951/2020 has submitted that the petitioners i.e., accused Nos.10 to 14, 16 and 17 have not assaulted any of the deceased i.e., either Veerabhadrappa or Ravikumar."
}
},
{
"from_name": null,
"id": "da77f98a3ccc4aa386ff9fc43aefecf2",
"to_name": null,
"type": null,
"value": {
"end": 9267,
"labels": [
"ARG_PETITIONER"
],
"start": 9021,
"text": "The overt act alleged against accused Nos.10, 11, 14, 16 and 17 are regarding assault made by them on Nagappa Sattur, Basavaraj Sattur and Iranna Sattur and the said assault is not on the vital parts of the body and they are only simple injuries."
}
},
{
"from_name": null,
"id": "27e9c1b826e048e1bf9833071dffe6e3",
"to_name": null,
"type": null,
"value": {
"end": 9488,
"labels": [
"ARG_PETITIONER"
],
"start": 9268,
"text": "It is his further submission that the overt act alleged against accused No.12 is that he held Nagappa Sattur and there is no overt act alleged against accused No.13 and only his presence has been stated in the complaint."
}
},
{
"from_name": null,
"id": "a704f47284fd4fc182b844b5cf84db3d",
"to_name": null,
"type": null,
"value": {
"end": 9590,
"labels": [
"ARG_PETITIONER"
],
"start": 9489,
"text": "It is his further submission that the petitioners have been implicated only due to political rivalry."
}
},
{
"from_name": null,
"id": "113035dd331849de968f191991f9151e",
"to_name": null,
"type": null,
"value": {
"end": 9755,
"labels": [
"ARG_PETITIONER"
],
"start": 9591,
"text": "It is his further submission that accused Nos.5, 6 and 15 are granted bail by this Court and the petitioners are entitled for grant of bail on the ground of parity."
}
},
{
"from_name": null,
"id": "8abb8eaa32ed43c48a3f305727960df1",
"to_name": null,
"type": null,
"value": {
"end": 9887,
"labels": [
"ARG_PETITIONER"
],
"start": 9756,
"text": "It is his further submission that charge sheet has been filed and the petitioners are not required for any custodial interrogation."
}
},
{
"from_name": null,
"id": "cba4735e764c412883987d710329023c",
"to_name": null,
"type": null,
"value": {
"end": 9936,
"labels": [
"ARG_PETITIONER"
],
"start": 9888,
"text": "With these, he prayed for allowing the petition."
}
},
{
"from_name": null,
"id": "c87bdc9618fd4646bbca1b8ac131d334",
"to_name": null,
"type": null,
"value": {
"end": 10089,
"labels": [
"ARG_RESPONDENT"
],
"start": 9936,
"text": "\n 6. Per contra, learned High Court Government Pleader contended that there are injured eyewitnesses to the incident and the case involves double murder."
}
},
{
"from_name": null,
"id": "fde0b52c48a8422ab315e4c4a24221ce",
"to_name": null,
"type": null,
"value": {
"end": 10291,
"labels": [
"ARG_RESPONDENT"
],
"start": 10090,
"text": "It is his further submission that the overt act of the petitioners have been specifically stated in the complaint and by the eyewitnesses which shows their involvement in the commission of the offence."
}
},
{
"from_name": null,
"id": "3020cfdf16574009982823168f23ab2d",
"to_name": null,
"type": null,
"value": {
"end": 10564,
"labels": [
"ARG_RESPONDENT"
],
"start": 10292,
"text": "It is his further submission that the wife of the deceased has filed an application before CPI seeking protection as there is threat to her life by the accused persons and in that regard, proceedings under Section 107 of Cr.P.C.\nhas been initiated against the petitioners."
}
},
{
"from_name": null,
"id": "516ac1270e6542e094193320c8427cb7",
"to_name": null,
"type": null,
"value": {
"end": 10732,
"labels": [
"ARG_RESPONDENT"
],
"start": 10565,
"text": "It is his further submission that if the petitioners are granted bail, they will commit similar offences and there is threat to the complainant and his family members."
}
},
{
"from_name": null,
"id": "c385d0f7fced40dc80d4e21bb5bd8239",
"to_name": null,
"type": null,
"value": {
"end": 10779,
"labels": [
"ARG_RESPONDENT"
],
"start": 10732,
"text": "\nWith this, he prayed to dismiss the petitions."
}
},
{
"from_name": null,
"id": "ec623e99d98043f1bc513fc8991a458e",
"to_name": null,
"type": null,
"value": {
"end": 10986,
"labels": [
"NONE"
],
"start": 10779,
"text": "\n 7. Having regard to the submission made by the learned counsel for the petitioners in both the petitions and the learned High Court Government Pleader, this Court has gone through the charge sheet records."
}
},
{
"from_name": null,
"id": "127c03ece9a74dd5972690c1b195b7d8",
"to_name": null,
"type": null,
"value": {
"end": 11616,
"labels": [
"ANALYSIS"
],
"start": 10986,
"text": "\n 8. It is well settled that matters to be considered in an application for bail are: \"(i) Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail."
}
},
{
"from_name": null,
"id": "01758a467b2d4cf7b7642aa208484718",
"to_name": null,
"type": null,
"value": {
"end": 11973,
"labels": [
"ANALYSIS"
],
"start": 11617,
"text": "While a vague allegation that the accused may tamper with the evidence or witnesses, may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused.\""
}
},
{
"from_name": null,
"id": "3476a64fb75347ee8fdacb40b0852a71",
"to_name": null,
"type": null,
"value": {
"end": 12287,
"labels": [
"PRE_RELIED"
],
"start": 11973,
"text": "\n 9. In a decision reported in (2018) 3 SCC 22 in the case of Dataram Singh v. State of Uttara Pradesh and Another, the Hon'ble Apex Court held as under: \"A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty."
}
},
{
"from_name": null,
"id": "1e9c588123cf4122897ace8e004a2060",
"to_name": null,
"type": null,
"value": {
"end": 12541,
"labels": [
"ANALYSIS"
],
"start": 12287,
"text": "\n However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences."
}
},
{
"from_name": null,
"id": "f79a2ff52c0e4744b0fcfb0e84e59d16",
"to_name": null,
"type": null,
"value": {
"end": 12773,
"labels": [
"ANALYSIS"
],
"start": 12542,
"text": "Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception."
}
},
{
"from_name": null,
"id": "842d864a8e1345ff82a883fe1ebe3e88",
"to_name": null,
"type": null,
"value": {
"end": 12950,
"labels": [
"ANALYSIS"
],
"start": 12773,
"text": "\n Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods."
}
},
{
"from_name": null,
"id": "bf9ebb1f6b8d41e79234e7125cb4b7ef",
"to_name": null,
"type": null,
"value": {
"end": 13026,
"labels": [
"ANALYSIS"
],
"start": 12951,
"text": "This does not do any good to our criminal jurisprudence or to our society.\""
}
},
{
"from_name": null,
"id": "d23ae891596f4c6096dc301d220c3f71",
"to_name": null,
"type": null,
"value": {
"end": 13169,
"labels": [
"ANALYSIS"
],
"start": 13028,
"text": "10. The overt act alleged against accused No.9 is that he caught hold of Ravikumar and accused No.s7 and 8 assaulted him with talwar and rod."
}
},
{
"from_name": null,
"id": "71dd2497e03140b5831adacb21baa7e3",
"to_name": null,
"type": null,
"value": {
"end": 13265,
"labels": [
"ANALYSIS"
],
"start": 13170,
"text": "Thre is no allegation that accused No.9 has assaulted any of the deceased or injured witnesses."
}
},
{
"from_name": null,
"id": "0068fc0a5a264886af3be8f7efa603b0",
"to_name": null,
"type": null,
"value": {
"end": 13476,
"labels": [
"ANALYSIS"
],
"start": 13266,
"text": "The overt act alleged against accused No.12 is that he held Nagappa Sattur and accused No.10 assaulted Nagappa Sattur with sword to his fingers and accused No.11 has assaulted Nagappa Sattur with stick on body."
}
},
{
"from_name": null,
"id": "8a4603a8335949b0aa76aebfbdfd8b43",
"to_name": null,
"type": null,
"value": {
"end": 13700,
"labels": [
"ANALYSIS"
],
"start": 13477,
"text": "The wound certificate of Nagappa Sattur reveal that 4 fingers are amputated and the said injury is grievous and that he has sustained cut lacerated wound on upper part of right elbow and the said injury is simple in nature."
}
},
{
"from_name": null,
"id": "267f69f09b014b5bade32e2971266aee",
"to_name": null,
"type": null,
"value": {
"end": 13794,
"labels": [
"ANALYSIS"
],
"start": 13701,
"text": "The overt act alleged against accused No.14 is that he assaulted Basavaraj Sattur with stick."
}
},
{
"from_name": null,
"id": "3e1f383a6f044cdcba6c1f803f7faf7f",
"to_name": null,
"type": null,
"value": {
"end": 13928,
"labels": [
"ANALYSIS"
],
"start": 13795,
"text": "The wound certificate of Basavaraj Sattur reveal that he has sustained injury to hand and it is opined that it is grievous in nature."
}
},
{
"from_name": null,
"id": "97541a0eec4847d886b3ca4e5e295664",
"to_name": null,
"type": null,
"value": {
"end": 14072,
"labels": [
"ANALYSIS"
],
"start": 13929,
"text": "The overt act alleged against accused No.16 is that he assaulted Iranna Sattur with stick and accused No.17 assaulted Iranna Sattur with Machu."
}
},
{
"from_name": null,
"id": "053213e019b748619ff6d8aa115dc3e3",
"to_name": null,
"type": null,
"value": {
"end": 14274,
"labels": [
"ANALYSIS"
],
"start": 14073,
"text": "The wound certificate of Iranna Sattur reveal two injuries (i) cut lacerated wound over left upper arm and (ii) multiple contusions abrasion on left shoulder and they are opined to be simple in nature."
}
},
{
"from_name": null,
"id": "688288fd416545d88d068f5b243a896b",
"to_name": null,
"type": null,
"value": {
"end": 14359,
"labels": [
"ANALYSIS"
],
"start": 14275,
"text": "No overt act is alleged against accused No.13 but his mere presence has been stated."
}
},
{
"from_name": null,
"id": "af9bedc71d4343288965ee38be14fd20",
"to_name": null,
"type": null,
"value": {
"end": 14482,
"labels": [
"ANALYSIS"
],
"start": 14360,
"text": "Apart from the above said overt act by accused Nos.9 to 14, 16 and 17, no other overt acts have been alleged against them."
}
},
{
"from_name": null,
"id": "259eecfe3477495e828b8f5e37af8cf3",
"to_name": null,
"type": null,
"value": {
"end": 14616,
"labels": [
"ANALYSIS"
],
"start": 14483,
"text": "There is no allegation of petitioners/accused Nos.9 to 14, 16 and 17 assaulting either deceased Veerabhadrappa or deceased Ravikumar."
}
},
{
"from_name": null,
"id": "da75d9d0d49e4443bb122380f457f4ff",
"to_name": null,
"type": null,
"value": {
"end": 14746,
"labels": [
"ANALYSIS"
],
"start": 14617,
"text": "Therefore, the petitioners/accused Nos.9 to 14, 16 and 17 are entitled for grant of bail subject to certain terms and conditions."
}
},
{
"from_name": null,
"id": "0ac8e64e7bed4a06a92d0b547347ee01",
"to_name": null,
"type": null,
"value": {
"end": 14918,
"labels": [
"ARG_RESPONDENT"
],
"start": 14747,
"text": "The main objection of the prosecution is that in the event of granting bail, the petitioners are likely to cause threat to the complainant and other prosecution witnesses."
}
},
{
"from_name": null,
"id": "d52592b2a9fe4d82bddcee0e64029e1e",
"to_name": null,
"type": null,
"value": {
"end": 14988,
"labels": [
"ANALYSIS"
],
"start": 14919,
"text": "The said objection may be set right by imposing stringent conditions."
}
},
{
"from_name": null,
"id": "48a880790257499a9aecb27f085342a1",
"to_name": null,
"type": null,
"value": {
"end": 15227,
"labels": [
"RATIO"
],
"start": 14990,
"text": "11. In the facts and circumstances of the case and submission of the counsel, this Court is of the view that there are valid grounds for granting bail to petitioners/accused Nos.9 to 14, 16 and 17 subject to certain terms and conditions."
}
},
{
"from_name": null,
"id": "dc4c9a323ee24b5cacae31b0b36936cd",
"to_name": null,
"type": null,
"value": {
"end": 15357,
"labels": [
"RPC"
],
"start": 15228,
"text": "Hence, I proceed to pass the following: ORDER Criminal Petition No. 100935/2020 and Criminal Petition No.100951/2020 are allowed."
}
},
{
"from_name": null,
"id": "5dd7c662bd0548a0919bf68bf53e1b29",
"to_name": null,
"type": null,
"value": {
"end": 15752,
"labels": [
"RPC"
],
"start": 15358,
"text": " The petitioners/accused Nos.9 to 14, 16 and 17 shall be released on bail in Crime No.112/2019 of Kalghatagi Police Station subject to the following conditions: i) The petitioners/accused Nos.9 to 14, 16 and 17 shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees one lakh only) each with two sureties for the like sum to the satisfaction of the jurisdictional Court."
}
},
{
"from_name": null,
"id": "1e62811bb55e42dabfa2f3dfbce0b277",
"to_name": null,
"type": null,
"value": {
"end": 15838,
"labels": [
"RPC"
],
"start": 15753,
"text": "Due to COVID-19, the petitioners are permitted to furnish sureties within two months."
}
},
{
"from_name": null,
"id": "18b0eba494b5423597caac5ff2ebb5da",
"to_name": null,
"type": null,
"value": {
"end": 15946,
"labels": [
"RPC"
],
"start": 15839,
"text": "If circumstances arise, the jurisdictional Court is permitted to extend the period for furnishing sureties."
}
},
{
"from_name": null,
"id": "8aa6d0b3262d4ecbbb2c6f9b81083fd3",
"to_name": null,
"type": null,
"value": {
"end": 16056,
"labels": [
"RPC"
],
"start": 15946,
"text": "\n ii) The petitioners/accused Nos.9 to 14, 16 and 17 shall not indulge in tampering the prosecution witnesses."
}
},
{
"from_name": null,
"id": "30475edbc03b4924a21a04e28d50f947",
"to_name": null,
"type": null,
"value": {
"end": 16181,
"labels": [
"RPC"
],
"start": 16056,
"text": "\n iii) The petitioners/accused Nos.9 to 14, 16 and 17 shall not give any threat to the complainant and prosecution witnesses."
}
},
{
"from_name": null,
"id": "80998939f19744f5ba7fd98749aa8b99",
"to_name": null,
"type": null,
"value": {
"end": 16367,
"labels": [
"RPC"
],
"start": 16181,
"text": "\n iv) The petitioners/accused Nos.9 to 14, 16 and 17 shall mark their attendance in the jurisdictional Police Station every Sunday between 10.00 am and 6.00 pm till disposal of the case."
}
},
{
"from_name": null,
"id": "95cee11dff554d4eb9d80a097f86aca4",
"to_name": null,
"type": null,
"value": {
"end": 16383,
"labels": [
"NONE"
],
"start": 16367,
"text": "\n Sd/- JUDGE kmv"
}
}
]
}
] | 4,187 | {
"text": " IN THE HIGH COURT OF KARNATAKA\n DHARWAD BENCH\n\n DATED THIS THE 8th DAY OF SEPTEMBER 2020\n BEFORE\n\nTHE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR\n\n CRIMINAL PETITION No.100935/2020\n c/w CRIMINAL PETITION No.100951/2020\n\n IN CRL.P.NO.100935/2020\n BETWEEN:\n\n SANGAPPA S/O BASAPPA YEMMETTI\n AGE: 46 YEARS, OCC: AGRICULTURE,\n R/O: JAMMIHAL VILLAGE,\n TQ: KALAGHATAGI, DIST: DHARWAD.\n\n ...PETITIONER\n (BY SRI. VASANT G. HOLEYANNAVAR, ADVOCATE)\n\n AND:\n\n THE STATE OF KARANTAKA\n REPT. BY STATE PUBLIC PROSECUTOR,\n HIGH COURT OF KARNATAKA,\n DHARWAD, THROUGH PSI\n KALAGHATAGI POLICE STATION,\n KALAGHATAGI.\n\n ... RESPONDENT\n (BY SRI. RAMESH B. CHIGARI, HCGP)\n\n THIS CRIMINAL PETITION IS FILED U/SEC.439 OF\n CR.P.C., PRAYING TO RELEASE OF THE PETITIONERS /\n ACCUSED 9 ON BAIL IN KALAGHTAGI POLICE STATION\n CRIME NO.112/2019 I.E., FOR THE OFFENCE UNDER\n SECTION 143, 147, 148, 448, 504, 506, 341, 307,\n 302, 324, 326, 120B, 201 R/W 149 OF IPC AND\n\nSECTION 27 OF THE ARMS ACT 1959 WHICH IS\nPENDING ON THE FILE OF IV ADDL. DISTRICT AND\nSESSIONS JUDGE, DHARWAD.\n\nIN CRL.P.NO.100951/2020\nBETWEEN:\n\n1. KALLAPPA BASAPPA KARADI\n AGE: 50 YEARS, OCC: AGRICULTURE,\n\n2. MAHESH FAKEERAPPA KARADI\n AGE: 26 YEARS, OCC: PRIVATE WORK,\n\n3. MARUTI HALAPPA AKKI\n AGE: 42 YEARS, OCC: COOLIE,\n\n4. IRAYYA BASAYYA PUJAR\n AGE: 20 YEARS, OCC: MASON,\n\n5. BASAYYA FAKIRAYYA PUJAR\n AGE: 51 YEARS, OCC: AGRICULTURE,\n\n6. SHEKHAPPA HANUMANTHAPPA JODALLI\n AGE: 56 YEARS, OCC: COOLIE,\n\n7. SHANKRAYYA MALLAYYA PUJAR @ YADWAD\n AGE: 20 YEARS, OCC: PRIVATE WORK,\n\nALL ARE R/O R/O: JAMMINHAAL, ...PETITIONERS\nTQ: KALAGHATAGI,\nDIST: DHARWAD-581204.\n\n(BY SRI. K.L. PATIL, ADVOCATE)\n\nAND:\n\nTHE STATE OF KARNATAKA\nTHROUGH KALGHATAGI POLICE STATION,\nREPRESENTED BY\nSTATE PUBLIC PROSECUTOR,\nHIGH COURT OF KARNATAKA,\n\nDHARWAD BENCH.\n ... RESPONDENT\n\n(BY SRI. RAMESH B. CHIGARI, HCGP)\n\n THIS CRIMINAL PETITION IS FILED U/SEC.439 OF\nCR.P.C., PRAYING TO RELEASE THE PETITIONERS /\nACCUSED NO.10 TO 14, 16 AND 17 ON BAIL IN\nKALAGHATAGI POLICE STATION CRIME NO.112/2019\nWHICH IS NUMBERED AS S.C.NO.20/2020 ON THE FILE\nOF IV ADDL. DISTRICT AND SESSION JUDGE,\nDHARWAD, REGISTERED FOR THE OFFENCES\nPUNISHABLE UNDER SECTIONS 143, 147, 148, 448,\n504, 506, 341, 307, 302, 324, 326, 120B, 201 R/W\nSECTION 149 OF IPC AND SECTION 27 OF THE ARMS\nACT, 1959.\n\nRESERVED ON : 04.09.2020\n\nPRONOUNCED ON : 08.09.2020\n\n THESE CRIMINAL PETITIONS HAVING BEEN\nHEARD AND RESERVED FOR ORDERS AND COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING: ORDER Criminal Petition No.100935/2020 has been filed by accused No.9 and Criminal Petition No.100951/2020 has been filed by accused Nos.10 to 14, 16 and 17 under Section 439 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the `Cr.P.C.', for brevity).\nBoth the petitions have been filed seeking bail in Crime No.112/2019 of Kalaghatagi Police Station for the offences punishable under Sections 143, 147, 148, 448, 504, 506, 341, 307, 302, 324, 326, 120B, 201 read with Section 149 of The Indian Penal Code (hereinafter referred to as the `IPC', for brevity) and under Section 27 of The Arms Act, 1959.\n 2. The case of the prosecution is that the complainant is the brother of deceased Veerabhadrappa Basavanneppa Sattur. The said Veerabhadrappa was a member of Gram Panchayat for last 15 years and President of PLD Bank, Dhummawada Society. It is alleged that during the Gram Panchayat election, because of political rivalry, petitioner Nos.1 to 3 had grouse against Veerabhadrappa and that cases were filed against each other in the police station. The family of Pujar also had differences with his brother Veerabhadrappa in respect of performing pooja in Basavanna temple. On 09.09.2019, at about 7.00 pm, the complainant was proceeding towards his house along with the cattle and when he passed on the road near the house of accused No.1-Basavaraj Shivappa Akki, accused No.2-Basavaraj Sangappa Akki, they took objection for using the pathway and picked up a quarrel and the complainant went to his house saying that he would not use the pathway henceforth. It is further alleged that accused Nos.1 and 2 came to his house along with others, gained entry into the house and pulled him out of the house. The accused persons who were holding weapons in their hands started assaulting the complainant and dragged him to the land belonging to accused No.1-Basavaraj Shivappa Akki. Accused No.1 with talwar (chopper) assaulted on the right hand, accused No.13-Irayya Basaiah Pujar with iron rod assaulted on the person of the complainant. The wife of the complainant telephonically informed Veerabhadrappa-deceasead and Nagappa and both of them came to the spot along with their children Ravikumar, Basavaraj and Eranna. The accused abused them. Accused No.3-Fakkirapa Prahald Chulaki and accused No.4-Krishna Chulaki with a talwar assaulted on the head of Veerabhadrappa and he fell down and at that time accused No.5-Mallappa Chulaki and accused No.6-Channiah Pujar threw stones on the head of Veerabhadrappa and he died on the spot. It is further alleged that accused No.2-Basavaraj Sangappa Akki and accused No.9-Sangappa Basappa Yemmetti caught hold of Ravikumar-deceased, accused No.7- Praveen Kallappa Karadi with talawar assaulted on his head and accused No.8-Siddaram Halappa Akki with iron rod assaulted on the head and caused injuries. It is further alleged that accused No.12-Maruthi Halappa Akki caught hold of Nagappa and accused No.10- Kallappa Basappa Karadi with talwar assaulted on the hand and that his fingers were cut off. Accused No.11- Mahesh Fakkirappa Karadi assaulted with club on his person. It is further alleged that accused No.14-Basiah Fakkiruiah Pujar with club and accused No.15-Yallappa Basappa Yemmetti with iron pipe assaulted on the head and other parts of body of Basavaraj Nagappa Sattur. It is further alleged that accused No.16-Shekappa Hanamanthappa Jodalli with club, accused No.17- Shankriah Malliah Yadawad with a chopper assaulted on the left shoulder and other parts of the body of Iranna Kallappa Sattur and caused injuries. One Kasturi, Smt. Sarjavva Davalsab, Hussainsab, Fakkirappa, Basalingappa and others on coming to know of the incident, came there and pacified the quarrel. The incident is said to have taken place on 09.09.2019 at 8.00 pm and the injured were removed to the hospital for treatment. The said injured Ravikumar died during treatment on 10.09.2019. The respondent- police, after completion of the investigation, have submitted charge sheet. The petitioner/accused No.9 filed bail application in Crl.Misc.No.40/2020 and the same came to be rejected by order dated 19.05.2020 by the Sessions Court. The petitioners/accused Nos.10 to 14, 16 and 17 have filed bail application in Crl.MIsc.\nNo.96/2020 and the same came to be rejected by order dated 20.05.2020 by the Sessions Court. Therefore, they are before this Court seeking bail.\n 3. Heard the arguments of Sri. Vasant G.\nHoleyannavar, learned counsel for the petitioner in Crl.P.No.100935/2020 and Sri. K.L. Patil, learned counsel for the petitioners in Crl.P. No.100951/2020 and the learned High Court Government Pleader for the respondent-State.\n 4. It is the submission of the learned counsel for the petitioner in Crl.P. No. 100935/2020 that the petitioner/accused No.9 is the brother of accused No.15 who has contested the Gram Panchayat election against the deceased Veerabhadrappa and due to the political rivalry, the petitioner/accused No.9 and accused No.15 have been falsely implicated in this case. It is his further submission that the petitioner is innocent and has not committed any offence. It is his further submission that the overt act alleged against the petitioner/accused No.9 is that he caught hold of deceased Ravikumar and accused Nos.7 and 8 assaulted with talwar and rod. It is his further submission that accused No.9 has not assaulted any one. It is his further submission that accused Nos.5, 6 and 15 are granted bail and the petitioner is entitled for grant of bail on the ground of parity. It is his further submission that charge sheet has been filed and the petitioner is not required for any custodial interrogation.\nWith these, he prayed for allowing the petition.\n 5. Learned counsel for the petitioners in Crl.P.No.100951/2020 has submitted that the petitioners i.e., accused Nos.10 to 14, 16 and 17 have not assaulted any of the deceased i.e., either Veerabhadrappa or Ravikumar. The overt act alleged against accused Nos.10, 11, 14, 16 and 17 are regarding assault made by them on Nagappa Sattur, Basavaraj Sattur and Iranna Sattur and the said assault is not on the vital parts of the body and they are only simple injuries. It is his further submission that the overt act alleged against accused No.12 is that he held Nagappa Sattur and there is no overt act alleged against accused No.13 and only his presence has been stated in the complaint. It is his further submission that the petitioners have been implicated only due to political rivalry. It is his further submission that accused Nos.5, 6 and 15 are granted bail by this Court and the petitioners are entitled for grant of bail on the ground of parity. It is his further submission that charge sheet has been filed and the petitioners are not required for any custodial interrogation. With these, he prayed for allowing the petition.\n 6. Per contra, learned High Court Government Pleader contended that there are injured eyewitnesses to the incident and the case involves double murder. It is his further submission that the overt act of the petitioners have been specifically stated in the complaint and by the eyewitnesses which shows their involvement in the commission of the offence. It is his further submission that the wife of the deceased has filed an application before CPI seeking protection as there is threat to her life by the accused persons and in that regard, proceedings under Section 107 of Cr.P.C.\nhas been initiated against the petitioners. It is his further submission that if the petitioners are granted bail, they will commit similar offences and there is threat to the complainant and his family members.\nWith this, he prayed to dismiss the petitions.\n 7. Having regard to the submission made by the learned counsel for the petitioners in both the petitions and the learned High Court Government Pleader, this Court has gone through the charge sheet records.\n 8. It is well settled that matters to be considered in an application for bail are: \"(i) Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail. While a vague allegation that the accused may tamper with the evidence or witnesses, may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused.\"\n 9. In a decision reported in (2018) 3 SCC 22 in the case of Dataram Singh v. State of Uttara Pradesh and Another, the Hon'ble Apex Court held as under: \"A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty.\n However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception.\n Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.\"\n 10. The overt act alleged against accused No.9 is that he caught hold of Ravikumar and accused No.s7 and 8 assaulted him with talwar and rod. Thre is no allegation that accused No.9 has assaulted any of the deceased or injured witnesses. The overt act alleged against accused No.12 is that he held Nagappa Sattur and accused No.10 assaulted Nagappa Sattur with sword to his fingers and accused No.11 has assaulted Nagappa Sattur with stick on body. The wound certificate of Nagappa Sattur reveal that 4 fingers are amputated and the said injury is grievous and that he has sustained cut lacerated wound on upper part of right elbow and the said injury is simple in nature. The overt act alleged against accused No.14 is that he assaulted Basavaraj Sattur with stick. The wound certificate of Basavaraj Sattur reveal that he has sustained injury to hand and it is opined that it is grievous in nature. The overt act alleged against accused No.16 is that he assaulted Iranna Sattur with stick and accused No.17 assaulted Iranna Sattur with Machu. The wound certificate of Iranna Sattur reveal two injuries (i) cut lacerated wound over left upper arm and (ii) multiple contusions abrasion on left shoulder and they are opined to be simple in nature. No overt act is alleged against accused No.13 but his mere presence has been stated. Apart from the above said overt act by accused Nos.9 to 14, 16 and 17, no other overt acts have been alleged against them. There is no allegation of petitioners/accused Nos.9 to 14, 16 and 17 assaulting either deceased Veerabhadrappa or deceased Ravikumar. Therefore, the petitioners/accused Nos.9 to 14, 16 and 17 are entitled for grant of bail subject to certain terms and conditions. The main objection of the prosecution is that in the event of granting bail, the petitioners are likely to cause threat to the complainant and other prosecution witnesses. The said objection may be set right by imposing stringent conditions.\n 11. In the facts and circumstances of the case and submission of the counsel, this Court is of the view that there are valid grounds for granting bail to petitioners/accused Nos.9 to 14, 16 and 17 subject to certain terms and conditions. Hence, I proceed to pass the following: ORDER Criminal Petition No. 100935/2020 and Criminal Petition No.100951/2020 are allowed. The petitioners/accused Nos.9 to 14, 16 and 17 shall be released on bail in Crime No.112/2019 of Kalghatagi Police Station subject to the following conditions: i) The petitioners/accused Nos.9 to 14, 16 and 17 shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees one lakh only) each with two sureties for the like sum to the satisfaction of the jurisdictional Court. Due to COVID-19, the petitioners are permitted to furnish sureties within two months. If circumstances arise, the jurisdictional Court is permitted to extend the period for furnishing sureties.\n ii) The petitioners/accused Nos.9 to 14, 16 and 17 shall not indulge in tampering the prosecution witnesses.\n iii) The petitioners/accused Nos.9 to 14, 16 and 17 shall not give any threat to the complainant and prosecution witnesses.\n iv) The petitioners/accused Nos.9 to 14, 16 and 17 shall mark their attendance in the jurisdictional Police Station every Sunday between 10.00 am and 6.00 pm till disposal of the case.\n Sd/- JUDGE kmv "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "49c56de4f2fc4e909d408096265e9b22",
"to_name": null,
"type": null,
"value": {
"end": 93,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\nDATED THIS THE 22ND DAY OF DECEMBER 2016\n\nBEFORE"
}
},
{
"from_name": null,
"id": "41e68e629de6427eac35fcd3c8c80cb5",
"to_name": null,
"type": null,
"value": {
"end": 162,
"labels": [
"PREAMBLE"
],
"start": 93,
"text": "\n\nTHE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA\n\nCRL. P. NO.9084 OF 2016"
}
},
{
"from_name": null,
"id": "e0cc351633f34f24ac2b5ab856d44695",
"to_name": null,
"type": null,
"value": {
"end": 213,
"labels": [
"PREAMBLE"
],
"start": 162,
"text": "\n\nBETWEEN: ...PETITIONER"
}
},
{
"from_name": null,
"id": "2ea1bcf999f543169410e056cd19e311",
"to_name": null,
"type": null,
"value": {
"end": 388,
"labels": [
"PREAMBLE"
],
"start": 213,
"text": "\n\nNAGESH\nS/O NARAYANASWAMY\nAGED ABOUT 28 YEARS\nRESIDING AT ALAHALLI VILLAGE\nVOKKALERI HOBLI\nTHYAVANAHALLI POST\nKOLAR TALUK,\nKOLAR DISTRICT 563 130\n\n(BY SRI. LOKESH S.G., ADV.)"
}
},
{
"from_name": null,
"id": "95201a948a9641e6b449840825eb091d",
"to_name": null,
"type": null,
"value": {
"end": 394,
"labels": [
"PREAMBLE"
],
"start": 388,
"text": "\n\nAND:"
}
},
{
"from_name": null,
"id": "cf81d45b628646b2988eee322fb169ae",
"to_name": null,
"type": null,
"value": {
"end": 607,
"labels": [
"PREAMBLE"
],
"start": 396,
"text": "STATE BY KOLAR EXCISE POLICE ...RESPONDENT\nREPRESENTED BY\nDEPUTY SUPERINTENDENT OF EXCISE\nREPRESENTED BY STATE P.P.\nHIGH COURT OF KARNATAKA\nBANGALORE 560 001\n\n(BY SRI. B. VISHWESWARAIAH, HCGP.)\n\n "
}
},
{
"from_name": null,
"id": "0883d3cd8865416cb6f606b061a9ca86",
"to_name": null,
"type": null,
"value": {
"end": 964,
"labels": [
"PREAMBLE"
],
"start": 607,
"text": "THIS CRL.P IS FILED U/S. 438 OF CR.P.C. PRAYING\nTO ENLARGE THE PETITIONER ON BAIL IN THE EVENT OF\nHIS ARREST IN CR.NO.20/2016 OF KOLAR EXCISE POLICE,\nKOLAR FOR THE OFFENCE P/U/S 8, 20(B) (ii) (A), 42(1)60(1),\n63 OF NDPS ACT.\n\n THIS PETITION COMING ON FOR ORDERS THIS DAY,\nTHE COURT MADE THE FOLLOWING:\n\n O R D E R\n "
}
},
{
"from_name": null,
"id": "af1d00c830114644a688acb8839dd551",
"to_name": null,
"type": null,
"value": {
"end": 1290,
"labels": [
"FAC"
],
"start": 964,
"text": "This criminal petition is filed under section 438 of Cr.P.C., for an order of anticipatory bail in Cr.No.20/2016 registered by the Kolar Excise Police for the offences punishable under sections 8, 20(b)(ii)(A) and section 42(1) 60(1), 63 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short \"NDPS Act 1985\")."
}
},
{
"from_name": null,
"id": "ed006d6cc6824f1c8e1beab35ced6c60",
"to_name": null,
"type": null,
"value": {
"end": 1542,
"labels": [
"FAC"
],
"start": 1291,
"text": "The application moved by the petitioner before the Principal Sessions Judge, Kolar has been rejected by order dated 25.11.2016 in Crl.Misc.No.706/2016 for the reason that I.O. is required to interrogate the petitioner to ascertain the source of ganja."
}
},
{
"from_name": null,
"id": "b3093e6d20bd451aa7ef7b5d3b294812",
"to_name": null,
"type": null,
"value": {
"end": 1907,
"labels": [
"FAC"
],
"start": 1544,
"text": "2. In the F.I.R. it is stated that on 10.11.2016 at 12.45 p.m., the Deputy Superintendent of Police, Kolar Division along with Assistant Commissioner of Excise and his staff raided the petty shop belonging to accused No.2 and seized 500 gms. of ganja which was kept for selling purposes and arrested Rangappa accused No.1 and Venkatappa accused No.2 at the spot."
}
},
{
"from_name": null,
"id": "8a4bc065f22a4f298e9d1098a99fde0c",
"to_name": null,
"type": null,
"value": {
"end": 1955,
"labels": [
"FAC"
],
"start": 1908,
"text": "The petitioner herein is shown as accused No.3."
}
},
{
"from_name": null,
"id": "d2033b28642b4363bae16961d53fe3b4",
"to_name": null,
"type": null,
"value": {
"end": 2026,
"labels": [
"FAC"
],
"start": 1956,
"text": "There are no allegations whatsoever against the petitioner in the FIR."
}
},
{
"from_name": null,
"id": "9010c2b65b9f4c6283611be459fceb30",
"to_name": null,
"type": null,
"value": {
"end": 2335,
"labels": [
"FAC"
],
"start": 2026,
"text": "\n 3. Learned HCGP would submit that the quantity of the psychotropic substance involved in this case is only 500 gms. which falls within the small quantity and therefore, the petition filed under section 438 of Cr.P.C., is not maintainable as the offences alleged against the petitioner are bailable offences."
}
},
{
"from_name": null,
"id": "5c236b1492da4e53bfdf3a7472c8c5c8",
"to_name": null,
"type": null,
"value": {
"end": 2557,
"labels": [
"ISSUE"
],
"start": 2337,
"text": "4. In view of the above contention, the only point that arise for consideration is, whether the application for bail under section 438 of Cr.P.C. is maintainable in respect of the offences alleged against the petitioner?"
}
},
{
"from_name": null,
"id": "b0aa9c7a2798455d82ab74b86c165588",
"to_name": null,
"type": null,
"value": {
"end": 2673,
"labels": [
"ANALYSIS"
],
"start": 2557,
"text": "\n 5. It is the case of the prosecution that 500 gms.\nof ganja was seized from the possession of accused Nos.1 and 2."
}
},
{
"from_name": null,
"id": "cf41d7ad2b574372bfb89a6146c1acc8",
"to_name": null,
"type": null,
"value": {
"end": 2823,
"labels": [
"ANALYSIS"
],
"start": 2674,
"text": "As per the table notified under clauses (viia) and (xxiiia) of section 2 of the NDPS Act, 1985, ganja upto 1000 gms., is specified as small quantity."
}
},
{
"from_name": null,
"id": "31319a122ff94d0cbe0ad46ecedf0d2e",
"to_name": null,
"type": null,
"value": {
"end": 2928,
"labels": [
"ANALYSIS"
],
"start": 2824,
"text": "Case is registered against the petitioner under section 8, 20(B)(ii)(A), 42(1), 60(1) and 63 of the Act."
}
},
{
"from_name": null,
"id": "6a3b2759596247aabaaf89be9a1eb70a",
"to_name": null,
"type": null,
"value": {
"end": 3080,
"labels": [
"ANALYSIS"
],
"start": 2928,
"text": "\n 6. Section 8 of the NDPS Act prohibits a person from possessing any narcotic drug or psychotropic substance except for medical or scientific purposes."
}
},
{
"from_name": null,
"id": "de73699a49ab476b84eb4f72fe3eadb7",
"to_name": null,
"type": null,
"value": {
"end": 3136,
"labels": [
"STA"
],
"start": 3080,
"text": "\n 7. Section 20 of the NDPS Act provides for punishment."
}
},
{
"from_name": null,
"id": "02a48a8317fd4082987af0f9580d0a5a",
"to_name": null,
"type": null,
"value": {
"end": 3242,
"labels": [
"STA"
],
"start": 3137,
"text": "It reads as under: \"Section 20. Punishment for contravention in relation to cannabis plant and cannabis.-"
}
},
{
"from_name": null,
"id": "5360c6b0b3cd409db362204beefe1102",
"to_name": null,
"type": null,
"value": {
"end": 3975,
"labels": [
"STA"
],
"start": 3243,
"text": "Whoever, in contravention of any provisions of this Act or any rule or order made or condition of licence granted thereunder,- (a) cultivates any cannabis plant; or (b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable (i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees; and (ii) where such contravention relates to sub-clause (b),- (A) and involves small quantity, with rigorous imprisonment for a term which may extend to one year or with fine, which may extend to ten thousand rupees, or with both."
}
},
{
"from_name": null,
"id": "0788fe0c5027453abeaf8c5823199dba",
"to_name": null,
"type": null,
"value": {
"end": 4576,
"labels": [
"STA"
],
"start": 3975,
"text": "\n (B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees; (C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.\"\n 8."
}
},
{
"from_name": null,
"id": "0b0f9524a6c0466f91043fb969d166ce",
"to_name": null,
"type": null,
"value": {
"end": 4854,
"labels": [
"ANALYSIS"
],
"start": 4577,
"text": "In the instant case, as the contraband seized from the possession of accused Nos.1 and 2 is of small quantity, the offences alleged against the petitioner are punishable with rigorous imprisonment of one year or with fine, which may extend to ten thousand rupees, or with both."
}
},
{
"from_name": null,
"id": "35c62748c9c14b5fb5cfe00f8dc46be0",
"to_name": null,
"type": null,
"value": {
"end": 5001,
"labels": [
"ANALYSIS"
],
"start": 4854,
"text": "\n 9. In this context, it may also be necessary to refer to section 36-A of the NDPS Act which deals with the offences triable by the Special Court."
}
},
{
"from_name": null,
"id": "df2c154debfb4ecfae0ab8913f563784",
"to_name": null,
"type": null,
"value": {
"end": 5093,
"labels": [
"STA"
],
"start": 5002,
"text": "Sub-section (a) thereof reads as under: \"Section 36A.- Offences triable by Special Courts.-"
}
},
{
"from_name": null,
"id": "d30c74ca9f4a4573bb789bc40b8b7aa7",
"to_name": null,
"type": null,
"value": {
"end": 5544,
"labels": [
"STA"
],
"start": 5094,
"text": "(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government.\"\n 10."
}
},
{
"from_name": null,
"id": "6f0d3e9d17ff4782b54e0b593d7f3868",
"to_name": null,
"type": null,
"value": {
"end": 5852,
"labels": [
"ANALYSIS"
],
"start": 5545,
"text": "From the above provisions it is clear that all offences which are punishable with imprisonment for a term of more than three years are triable only by the Special Court whereas the other offences could be tried by the Special Court or by the judicial magistrate in accordance with the provisions of the Act."
}
},
{
"from_name": null,
"id": "881c13a1738542dca4f02804a05eed18",
"to_name": null,
"type": null,
"value": {
"end": 5891,
"labels": [
"ANALYSIS"
],
"start": 5852,
"text": "\n 11. The Act is a self-contained code."
}
},
{
"from_name": null,
"id": "c6ce73329b8a4ceab2d05e78727cd519",
"to_name": null,
"type": null,
"value": {
"end": 6018,
"labels": [
"ANALYSIS"
],
"start": 5892,
"text": "However, the application of the provisions of Cr.P.C. have not been excluded either expressly or by implication under the Act."
}
},
{
"from_name": null,
"id": "3080b84953a04509a2747ce2f5857ba3",
"to_name": null,
"type": null,
"value": {
"end": 6155,
"labels": [
"ANALYSIS"
],
"start": 6019,
"text": "With regard to the grant of bail, section 37 of the Act imposes certain restrictions in respect of the offences committed under the Act."
}
},
{
"from_name": null,
"id": "4b0eaf6ab9e3498e86530cb651cf1cc5",
"to_name": null,
"type": null,
"value": {
"end": 6258,
"labels": [
"STA"
],
"start": 6156,
"text": "The said section is extracted as here below: \"Section 37. Offences to be cognizable and non-bailable.-"
}
},
{
"from_name": null,
"id": "cd1e33be1e4749129e4b90641412b020",
"to_name": null,
"type": null,
"value": {
"end": 6735,
"labels": [
"STA"
],
"start": 6259,
"text": "(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless-- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release.\""
}
},
{
"from_name": null,
"id": "576aa7a3424640459eb4722dfcbd160b",
"to_name": null,
"type": null,
"value": {
"end": 6966,
"labels": [
"STA"
],
"start": 6735,
"text": "\n (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail."
}
},
{
"from_name": null,
"id": "3ba03ae12f6745bbb5d24cce2df047c2",
"to_name": null,
"type": null,
"value": {
"end": 7213,
"labels": [
"STA"
],
"start": 6966,
"text": "\n (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.\"\n 12."
}
},
{
"from_name": null,
"id": "b058e192a0a4436a9372d133e75bee11",
"to_name": null,
"type": null,
"value": {
"end": 7468,
"labels": [
"ANALYSIS"
],
"start": 7214,
"text": "A bare perusal of the above provision reveals that the restrictions imposed under section 37 pertain only to the grant of bail to the persons accused of the offences under sections 19, 24 or section 27A and also for offence involving commercial quantity."
}
},
{
"from_name": null,
"id": "829c01b730974302b4b17a55b4d03a7b",
"to_name": null,
"type": null,
"value": {
"end": 7568,
"labels": [
"ANALYSIS"
],
"start": 7469,
"text": "To this extent, the provisions of section 37 override the provisions of Code of Criminal Procedure."
}
},
{
"from_name": null,
"id": "8eba50066f2c450d8718e4d7bfdf1e60",
"to_name": null,
"type": null,
"value": {
"end": 7682,
"labels": [
"ANALYSIS"
],
"start": 7569,
"text": "In other matters, the provisions of the Code of Criminal Procedure will apply to the offences under the NDPS Act."
}
},
{
"from_name": null,
"id": "9254fb44faef4daeae2b644dfa600473",
"to_name": null,
"type": null,
"value": {
"end": 7874,
"labels": [
"ANALYSIS"
],
"start": 7683,
"text": "Therefore, the argument of the learned Public Prosecutor that in view of the small quantity involved in the case, the application does not lie under section 438 of Cr.P.C. cannot be accepted."
}
},
{
"from_name": null,
"id": "0d74e4b58e2e484aa8d972bbfc475459",
"to_name": null,
"type": null,
"value": {
"end": 8014,
"labels": [
"RATIO"
],
"start": 7875,
"text": "But while considering the bail application under section 438 of Cr.P.C., it has to be noted that the investigation is still under progress."
}
},
{
"from_name": null,
"id": "71a07993b43844fd807be7be50e4aee1",
"to_name": null,
"type": null,
"value": {
"end": 8207,
"labels": [
"RATIO"
],
"start": 8015,
"text": "It cannot be foreseen at this juncture whether after thorough investigation any further quantity of the contraband would be unearthed by the authorized officers in the course of investigation."
}
},
{
"from_name": null,
"id": "b509883e9b734d43b5b538d7c3d4b2f3",
"to_name": null,
"type": null,
"value": {
"end": 8412,
"labels": [
"RATIO"
],
"start": 8208,
"text": "Therefore, solely on the basis of the weight of the contraband articles seized by the police, it would be hazardous and contrary to the intendment of the Act to admit the petitioner for anticipatory bail."
}
},
{
"from_name": null,
"id": "59e641c6d6f84666a42a82ea5f0ad191",
"to_name": null,
"type": null,
"value": {
"end": 8507,
"labels": [
"RPC"
],
"start": 8413,
"text": "In that view of the matter, the application deserves to be rejected and it is hereby rejected."
}
},
{
"from_name": null,
"id": "93d69b888fb041b6b07d1bdfd06b6e27",
"to_name": null,
"type": null,
"value": {
"end": 8557,
"labels": [
"RPC"
],
"start": 8507,
"text": "\n Accordingly, the criminal petition is dismissed."
}
},
{
"from_name": null,
"id": "07fb87a0bcf54f36b299dba1b49417fe",
"to_name": null,
"type": null,
"value": {
"end": 8578,
"labels": [
"NONE"
],
"start": 8557,
"text": "\n SD/- JUDGE Bs.\nBss."
}
}
]
}
] | 4,077 | {
"text": "IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\nDATED THIS THE 22ND DAY OF DECEMBER 2016\n\nBEFORE\n\nTHE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA\n\nCRL. P. NO.9084 OF 2016\n\nBETWEEN: ...PETITIONER\n\nNAGESH\nS/O NARAYANASWAMY\nAGED ABOUT 28 YEARS\nRESIDING AT ALAHALLI VILLAGE\nVOKKALERI HOBLI\nTHYAVANAHALLI POST\nKOLAR TALUK,\nKOLAR DISTRICT 563 130\n\n(BY SRI. LOKESH S.G., ADV.)\n\nAND:\n\nSTATE BY KOLAR EXCISE POLICE ...RESPONDENT\nREPRESENTED BY\nDEPUTY SUPERINTENDENT OF EXCISE\nREPRESENTED BY STATE P.P.\nHIGH COURT OF KARNATAKA\nBANGALORE 560 001\n\n(BY SRI. B. VISHWESWARAIAH, HCGP.)\n\n THIS CRL.P IS FILED U/S. 438 OF CR.P.C. PRAYING\nTO ENLARGE THE PETITIONER ON BAIL IN THE EVENT OF\nHIS ARREST IN CR.NO.20/2016 OF KOLAR EXCISE POLICE,\nKOLAR FOR THE OFFENCE P/U/S 8, 20(B) (ii) (A), 42(1)60(1),\n63 OF NDPS ACT.\n\n THIS PETITION COMING ON FOR ORDERS THIS DAY,\nTHE COURT MADE THE FOLLOWING:\n\n O R D E R\n This criminal petition is filed under section 438 of Cr.P.C., for an order of anticipatory bail in Cr.No.20/2016 registered by the Kolar Excise Police for the offences punishable under sections 8, 20(b)(ii)(A) and section 42(1) 60(1), 63 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short \"NDPS Act 1985\"). The application moved by the petitioner before the Principal Sessions Judge, Kolar has been rejected by order dated 25.11.2016 in Crl.Misc.No.706/2016 for the reason that I.O. is required to interrogate the petitioner to ascertain the source of ganja.\n 2. In the F.I.R. it is stated that on 10.11.2016 at 12.45 p.m., the Deputy Superintendent of Police, Kolar Division along with Assistant Commissioner of Excise and his staff raided the petty shop belonging to accused No.2 and seized 500 gms. of ganja which was kept for selling purposes and arrested Rangappa accused No.1 and Venkatappa accused No.2 at the spot. The petitioner herein is shown as accused No.3. There are no allegations whatsoever against the petitioner in the FIR.\n 3. Learned HCGP would submit that the quantity of the psychotropic substance involved in this case is only 500 gms. which falls within the small quantity and therefore, the petition filed under section 438 of Cr.P.C., is not maintainable as the offences alleged against the petitioner are bailable offences.\n 4. In view of the above contention, the only point that arise for consideration is, whether the application for bail under section 438 of Cr.P.C. is maintainable in respect of the offences alleged against the petitioner?\n 5. It is the case of the prosecution that 500 gms.\nof ganja was seized from the possession of accused Nos.1 and 2. As per the table notified under clauses (viia) and (xxiiia) of section 2 of the NDPS Act, 1985, ganja upto 1000 gms., is specified as small quantity. Case is registered against the petitioner under section 8, 20(B)(ii)(A), 42(1), 60(1) and 63 of the Act.\n 6. Section 8 of the NDPS Act prohibits a person from possessing any narcotic drug or psychotropic substance except for medical or scientific purposes.\n 7. Section 20 of the NDPS Act provides for punishment. It reads as under: \"Section 20. Punishment for contravention in relation to cannabis plant and cannabis.- Whoever, in contravention of any provisions of this Act or any rule or order made or condition of licence granted thereunder,- (a) cultivates any cannabis plant; or (b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable (i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine which may extend to one lakh rupees; and (ii) where such contravention relates to sub-clause (b),- (A) and involves small quantity, with rigorous imprisonment for a term which may extend to one year or with fine, which may extend to ten thousand rupees, or with both.\n (B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years and with fine which may extend to one lakh rupees; (C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.\"\n 8. In the instant case, as the contraband seized from the possession of accused Nos.1 and 2 is of small quantity, the offences alleged against the petitioner are punishable with rigorous imprisonment of one year or with fine, which may extend to ten thousand rupees, or with both.\n 9. In this context, it may also be necessary to refer to section 36-A of the NDPS Act which deals with the offences triable by the Special Court. Sub-section (a) thereof reads as under: \"Section 36A.- Offences triable by Special Courts.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) all offences under this Act which are punishable with imprisonment for a term of more than three years shall be triable only by the Special court constituted for the area in which the offence has been committed or where there are more Special Courts than one for such area, by such one of them as may be specified in this behalf by the Government.\"\n 10. From the above provisions it is clear that all offences which are punishable with imprisonment for a term of more than three years are triable only by the Special Court whereas the other offences could be tried by the Special Court or by the judicial magistrate in accordance with the provisions of the Act.\n 11. The Act is a self-contained code. However, the application of the provisions of Cr.P.C. have not been excluded either expressly or by implication under the Act. With regard to the grant of bail, section 37 of the Act imposes certain restrictions in respect of the offences committed under the Act. The said section is extracted as here below: \"Section 37. Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under section 19 or section 24 or section 27A and also for offences involving commercial quantity shall be released on bail or on his own bond unless-- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release.\"\n (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.\n (2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, on granting of bail.\"\n 12. A bare perusal of the above provision reveals that the restrictions imposed under section 37 pertain only to the grant of bail to the persons accused of the offences under sections 19, 24 or section 27A and also for offence involving commercial quantity. To this extent, the provisions of section 37 override the provisions of Code of Criminal Procedure. In other matters, the provisions of the Code of Criminal Procedure will apply to the offences under the NDPS Act. Therefore, the argument of the learned Public Prosecutor that in view of the small quantity involved in the case, the application does not lie under section 438 of Cr.P.C. cannot be accepted. But while considering the bail application under section 438 of Cr.P.C., it has to be noted that the investigation is still under progress. It cannot be foreseen at this juncture whether after thorough investigation any further quantity of the contraband would be unearthed by the authorized officers in the course of investigation. Therefore, solely on the basis of the weight of the contraband articles seized by the police, it would be hazardous and contrary to the intendment of the Act to admit the petitioner for anticipatory bail. In that view of the matter, the application deserves to be rejected and it is hereby rejected.\n Accordingly, the criminal petition is dismissed.\n SD/- JUDGE Bs.\nBss.\n"
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "1e13f8a4ba994e3eb9aee890481e1dbe",
"to_name": null,
"type": null,
"value": {
"end": 102,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\n DATED THIS THE 1ST DAY OF MARCH, 2019\n\n BEFORE"
}
},
{
"from_name": null,
"id": "02ccdd3c447c4cd7a9bdcfaa8cd92551",
"to_name": null,
"type": null,
"value": {
"end": 150,
"labels": [
"PREAMBLE"
],
"start": 102,
"text": "\n\nTHE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY"
}
},
{
"from_name": null,
"id": "3b7bdb9ec873488496672c8d2e537c9b",
"to_name": null,
"type": null,
"value": {
"end": 189,
"labels": [
"PREAMBLE"
],
"start": 150,
"text": "\n\n CRIMINAL APPEAL No.1046 OF 2010"
}
},
{
"from_name": null,
"id": "ee4891b1b6444937b6e06752a158ed63",
"to_name": null,
"type": null,
"value": {
"end": 199,
"labels": [
"PREAMBLE"
],
"start": 189,
"text": "\n\nBETWEEN:"
}
},
{
"from_name": null,
"id": "c2fb800a9f1b4a838989f1f08ceddbbd",
"to_name": null,
"type": null,
"value": {
"end": 739,
"labels": [
"PREAMBLE"
],
"start": 231,
"text": "...Appellant\n\nSri. Giridhara Ganiga\nS/o. Srinivas Ganiga,\nAged about 47 years,\nResiding at Shreeram Bldg. Board,\nHigh School Road,\nUDUPI\n\n(By Sri. R. Srinivasa Gowda, Advocate)\n\nAND:\n\nSri. Adarsh\nS/o. P.V.Gopala Krishna,\nAged about 34 years,\nResiding at No.74/A, 12th Main,\n27th Cross, B.S.K. 2nd Stage,\nBangalore-560070.\n\n ...Respondent\n(By Sri. P.D. Subramanya, Advocate)\n\n *****\n "
}
},
{
"from_name": null,
"id": "3c97b5625097496685354b237368b69a",
"to_name": null,
"type": null,
"value": {
"end": 1154,
"labels": [
"PREAMBLE"
],
"start": 739,
"text": "This Criminal Appeal is filed under Section 378(4) of\nCr.P.C praying to set aside the judgment dated:23.06.2009\npassed by the Presiding Officer, FTC, Udupi in\nCrl.A.No.58/2008 acquitting the respondent/accused for\nthe offence punishable under Section 138 of N.I.Act.\n\n This Criminal Appeal coming on for Hearing, this day,\nthe Court delivered the following:\n\n J U D G M E N T\n "
}
},
{
"from_name": null,
"id": "15a47a359b3c4ac99e2f63ce2568efbd",
"to_name": null,
"type": null,
"value": {
"end": 1868,
"labels": [
"RLC"
],
"start": 1154,
"text": "In a private complaint filed by the present appellant/complainant under Section 200 of Code of Criminal Procedure (hereinafter referred to as \"Cr.P.C.\"\n for brevity), against the present respondent/accused, for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as \"N.I.Act\"), the learned III Additional Civil Judge (Jr.Dvn.) & J.M.F.C., Udupi (hereinafter for brevity referred to as \"Trial Court\"), in C.C.No.5522/2004, pronounced the judgment of conviction, convicting the present respondent/accused - Sri. Adarsh, on 22-01-2008 and sentenced him to pay a fine of `1,35,000/- and in default, to undergo Simple Imprisonment for a period of one year."
}
},
{
"from_name": null,
"id": "ac5dd1e8edd2479393ac7b76dcd9cef8",
"to_name": null,
"type": null,
"value": {
"end": 2313,
"labels": [
"RLC"
],
"start": 1869,
"text": "Against the said judgment and order of conviction, the present respondent/accused- Sri Adarsh preferred a Criminal Appeal No.58/2008 before the learned Presiding Officer, Fast Track Court at Udupi, (hereinafter for brevity referred to as the `Lower Appellate Court'), which by its impugned judgment and order dated 23-06-2009 allowed the appeal filed by the respondent/accused and set aside the judgment of conviction passed by the Trial Court."
}
},
{
"from_name": null,
"id": "887d159ce1b34a42b8e7290aa29c10b8",
"to_name": null,
"type": null,
"value": {
"end": 2452,
"labels": [
"FAC"
],
"start": 2314,
"text": "It is challenging the said judgment of acquittal passed by the Lower Appellate Court, the appellant/complainant has preferred this appeal."
}
},
{
"from_name": null,
"id": "7011cb8cd12a40fcb33026fbb766d961",
"to_name": null,
"type": null,
"value": {
"end": 2655,
"labels": [
"FAC"
],
"start": 2452,
"text": "\n 2. The summary of the case of the complainant in the Trial Court is that, the accused who is his close relative had borrowed a hand loan of a sum of `1,30,000/- on 14-11-2000 for his business purposes."
}
},
{
"from_name": null,
"id": "2a91239036114a19ad0c016ed28c328a",
"to_name": null,
"type": null,
"value": {
"end": 2830,
"labels": [
"FAC"
],
"start": 2655,
"text": "\nIn order to discharge the said debt, accused issued to him a cheque bearing No.0531933 dated 14-11-2000 drawn on Vyshya Bank Limited, Udupi Branch, favouring the complainant."
}
},
{
"from_name": null,
"id": "17b0f6ef564443ae87fe1505bb0d83cb",
"to_name": null,
"type": null,
"value": {
"end": 2939,
"labels": [
"FAC"
],
"start": 2831,
"text": "When presented, the said cheque was returned dishonoured with the banker's endorsement `funds insufficient'."
}
},
{
"from_name": null,
"id": "db13272dd3d5467693efab216943d1b8",
"to_name": null,
"type": null,
"value": {
"end": 3047,
"labels": [
"FAC"
],
"start": 2940,
"text": "Thereafter, the complainant issued a legal notice to the accused calling upon him to pay the cheque amount."
}
},
{
"from_name": null,
"id": "a7de1822563049f794a0895d9ba0cf76",
"to_name": null,
"type": null,
"value": {
"end": 3350,
"labels": [
"FAC"
],
"start": 3048,
"text": "However, the accused neither made any payment nor replied to the legal notice which constrained the complainant to institute a criminal case against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the \"N.I. Act\" for brevity)."
}
},
{
"from_name": null,
"id": "d01c2e804e424ba090b6a8aea3977c9f",
"to_name": null,
"type": null,
"value": {
"end": 3467,
"labels": [
"FAC"
],
"start": 3350,
"text": "\n 3. To prove his case, the complainant got himself examined as PW-1 and got marked documents from Exs.P-1 to P-5(a)."
}
},
{
"from_name": null,
"id": "bbdf2dca19014ee4b17b385eab23ccb9",
"to_name": null,
"type": null,
"value": {
"end": 3638,
"labels": [
"FAC"
],
"start": 3468,
"text": "From the side of the accused, four witnesses were examined as DW1 to DW4, wherein the accused himself got examined as DW4 and documents from Exs.D1 to D7 were got marked."
}
},
{
"from_name": null,
"id": "4814aab629cc44d8b7b5bf63eb1f8612",
"to_name": null,
"type": null,
"value": {
"end": 3803,
"labels": [
"RLC"
],
"start": 3638,
"text": "\n 4. After hearing both side, the Trial Court by its impugned judgment dated 22-01-2008, convicted the accused for the alleged offence under Section 138 of N.I. Act."
}
},
{
"from_name": null,
"id": "164f47ac090e4911b630c03382479e41",
"to_name": null,
"type": null,
"value": {
"end": 3881,
"labels": [
"RLC"
],
"start": 3804,
"text": "However, the Lower Appellate Court acquitted the accused of the said offence."
}
},
{
"from_name": null,
"id": "30b3fec005894bb897d2927cf1d94abf",
"to_name": null,
"type": null,
"value": {
"end": 3993,
"labels": [
"FAC"
],
"start": 3882,
"text": "It is against the said judgment of Lower Appellate Court, the appellant/ complainant has preferred this appeal."
}
},
{
"from_name": null,
"id": "c00c728ccba54559866a3ecac623711c",
"to_name": null,
"type": null,
"value": {
"end": 4471,
"labels": [
"FAC"
],
"start": 3993,
"text": "\n 5. Even though the appellant as well as the respondent were represented by their counsels, however, considering that the said learned counsels did not appear in the matter for addressing the arguments despite giving them several and sufficient opportunities, this Court, through a detailed order dated 25-01-2019 appointed two learned Advocates from the Panel of the Legal Services Committee of this Court to represent and appear for the appellant and respondent respectively."
}
},
{
"from_name": null,
"id": "58b54f263ba34ffb85d05d85838312a4",
"to_name": null,
"type": null,
"value": {
"end": 4594,
"labels": [
"FAC"
],
"start": 4471,
"text": "\nAs such, the learned counsels from the Panel of the High Court Legal Services Committee are representing the parties here."
}
},
{
"from_name": null,
"id": "be7a1749c97e44c582c9a175a2356ba9",
"to_name": null,
"type": null,
"value": {
"end": 4673,
"labels": [
"FAC"
],
"start": 4594,
"text": "\n 6. Lower Court records were called and the same are placed before this Court."
}
},
{
"from_name": null,
"id": "5449bb48bb0d4c6583be9ac7251a5fd2",
"to_name": null,
"type": null,
"value": {
"end": 4798,
"labels": [
"FAC"
],
"start": 4673,
"text": "\n 7. Heard the arguments from both side and perused the materials placed before this Court including the Lower Court records."
}
},
{
"from_name": null,
"id": "c132de4a3f7f4714aa9ed0b8af054810",
"to_name": null,
"type": null,
"value": {
"end": 4919,
"labels": [
"FAC"
],
"start": 4800,
"text": "8. For the sake of convenience, the parties would be hereinafter referred to as per their ranks before the Trial Court."
}
},
{
"from_name": null,
"id": "3b517e4a17804202b7157ad938980a71",
"to_name": null,
"type": null,
"value": {
"end": 5146,
"labels": [
"ARG_PETITIONER"
],
"start": 4921,
"text": "9. Learned counsel for the appellant/complainant in his arguments submitted that the issuance of cheque by the accused to the complainant is not in dispute, so also, dishonor of the cheque for the reason `funds insufficient'."
}
},
{
"from_name": null,
"id": "c97f5b878b43470d90e3258e8b9a245d",
"to_name": null,
"type": null,
"value": {
"end": 5241,
"labels": [
"ARG_PETITIONER"
],
"start": 5147,
"text": "The legal notice issued to the accused did not receive any reply or response from the accused."
}
},
{
"from_name": null,
"id": "95ff6c6447c54440a5b42ceadacd3f49",
"to_name": null,
"type": null,
"value": {
"end": 5339,
"labels": [
"ARG_PETITIONER"
],
"start": 5242,
"text": "As such, the presumption under Section 139 of the N.I. Act operates in favour of the complainant."
}
},
{
"from_name": null,
"id": "d9a00c1affca40aa90eeb8ffd9ecdfd5",
"to_name": null,
"type": null,
"value": {
"end": 5675,
"labels": [
"ARG_PETITIONER"
],
"start": 5340,
"text": "Even though the accused was not successful in rebutting the said presumption, the Lower Appellate Court by observing that the complainant failed to prove that he had financial capacity to lend the money, has set aside the judgment of conviction passed by the Trial Court, which finding of the Lower Appellate Court is an erroneous one."
}
},
{
"from_name": null,
"id": "51f2ddbd09f44e049d1b32bd5b068803",
"to_name": null,
"type": null,
"value": {
"end": 5864,
"labels": [
"ARG_RESPONDENT"
],
"start": 5677,
"text": "10. The learned counsel for the respondent, in his arguments submitted that the accused has explained the circumstances under which these two cheques were given to the complainant by him."
}
},
{
"from_name": null,
"id": "59f4edde5e0243eba28e15526002e98e",
"to_name": null,
"type": null,
"value": {
"end": 5984,
"labels": [
"ARG_RESPONDENT"
],
"start": 5865,
"text": "He has made it clear that issuance of a cheque was on the condition that the complainant should execute loan documents."
}
},
{
"from_name": null,
"id": "3708813d26aa4fd59c74f3a9accb85a2",
"to_name": null,
"type": null,
"value": {
"end": 6069,
"labels": [
"ARG_RESPONDENT"
],
"start": 5985,
"text": "Since the complainant did not comply the said condition, the cheque got dishonoured."
}
},
{
"from_name": null,
"id": "15bc237691224b188d05714eb87214ec",
"to_name": null,
"type": null,
"value": {
"end": 6152,
"labels": [
"ARG_RESPONDENT"
],
"start": 6070,
"text": "Thus, the accused was not a borrower and the complainant was in fact the borrower."
}
},
{
"from_name": null,
"id": "ab0a0c4e73f0429f8bcfe6c6c7c04d1b",
"to_name": null,
"type": null,
"value": {
"end": 6361,
"labels": [
"ARG_RESPONDENT"
],
"start": 6152,
"text": "\n Further, the complainant had no source of income to lend it to the accused has also been brought in his cross-examination, as such, the Lower Appellate Court has rightly pronounced the judgment of acquittal."
}
},
{
"from_name": null,
"id": "68deac2b37ca4ea39d8a7a6b522c5187",
"to_name": null,
"type": null,
"value": {
"end": 6574,
"labels": [
"ANALYSIS"
],
"start": 6363,
"text": "11. After going through the entire material placed before this Court, it is not in dispute that the mother of the accused is the younger sister of the complainant's wife, as such the parties are close relatives."
}
},
{
"from_name": null,
"id": "f366b29513f344169d4cbc78146ca504",
"to_name": null,
"type": null,
"value": {
"end": 6909,
"labels": [
"ANALYSIS"
],
"start": 6575,
"text": "Even though the complainant has reiterated the summary of his complaint even in his Examination-in-chief, as PW-1, but the accused in the cross-examination of PW-1 has disclosed his defence contending that the cheque in question along with one more cheque was given by him to the complainant when the complainant was in need of money."
}
},
{
"from_name": null,
"id": "a6721818d0e046c08ccbfa25e374aa21",
"to_name": null,
"type": null,
"value": {
"end": 7059,
"labels": [
"ANALYSIS"
],
"start": 6910,
"text": "However, the issuance of those two cheques was on the condition that the complainant should execute a demand promissory note and furnish a guarantor."
}
},
{
"from_name": null,
"id": "26522c514fa448998bbe41a20bccf36c",
"to_name": null,
"type": null,
"value": {
"end": 7246,
"labels": [
"ANALYSIS"
],
"start": 7060,
"text": "Since the complainant failed to comply with the said condition, the accused did not remit the amount to his Bank Account to honour the cheques, due to which, the cheques got dishonoured."
}
},
{
"from_name": null,
"id": "fb634a5f69694ca09e75b93783ddee85",
"to_name": null,
"type": null,
"value": {
"end": 7355,
"labels": [
"ANALYSIS"
],
"start": 7247,
"text": "The suggestions made to PW-1 in his cross-examination on this loan were not admitted as true by the witness."
}
},
{
"from_name": null,
"id": "e6de112632ed4c899bc94ef51f8d60bc",
"to_name": null,
"type": null,
"value": {
"end": 7549,
"labels": [
"ANALYSIS"
],
"start": 7357,
"text": "12. The accused apart from putting his defence in the form of suggestions to PW-1 in his cross- examination, also tendered his evidence as DW-4 and reiterated the same defence as his evidence."
}
},
{
"from_name": null,
"id": "7bae47b990b24387888ec902f6ffccba",
"to_name": null,
"type": null,
"value": {
"end": 7687,
"labels": [
"ANALYSIS"
],
"start": 7550,
"text": "However, in his cross- examination, denial suggestions were made to him denying that defence of the accused was a new found story by him."
}
},
{
"from_name": null,
"id": "0c0722b5d9984f51a47dab4632d15181",
"to_name": null,
"type": null,
"value": {
"end": 7812,
"labels": [
"ANALYSIS"
],
"start": 7688,
"text": "As PW-1 denied the suggestions made to him in his cross-examination, even DW-4 has also denied those suggestions put to him."
}
},
{
"from_name": null,
"id": "bfc7ce8309104d229dc2d611384067f1",
"to_name": null,
"type": null,
"value": {
"end": 7983,
"labels": [
"ANALYSIS"
],
"start": 7812,
"text": "\n 13. In the light of the above, the undisputed fact remains that a cheque in question along with one more cheque was admitted as issued by the accused to the complainant."
}
},
{
"from_name": null,
"id": "ada60669794b431e9d200d39a21498cc",
"to_name": null,
"type": null,
"value": {
"end": 8173,
"labels": [
"ANALYSIS"
],
"start": 7984,
"text": "Therefore, once the issuance of cheque stood proved, the presumption under Section 139 of N.I.\nAct about the existence of the legally enforceable debt operates in favour of the complainant."
}
},
{
"from_name": null,
"id": "5870335faf684e94ae97fbf69eb87f20",
"to_name": null,
"type": null,
"value": {
"end": 8277,
"labels": [
"STA"
],
"start": 8173,
"text": "\n 14. Section 139 of the N.I. Act speaks about presumption in favour of holder of negotiable instrument."
}
},
{
"from_name": null,
"id": "6bad94e88b8647a2a6447272b3849734",
"to_name": null,
"type": null,
"value": {
"end": 8516,
"labels": [
"STA"
],
"start": 8278,
"text": "It says that, unless contrary is proved, it shall be presumed that the holder of a cheque receives the cheque of the nature referred to under Section 138 of the N.I.Act for the discharge in whole or in part of any debt or other liability."
}
},
{
"from_name": null,
"id": "11c45ed1e21f4e7ead65a563f906d418",
"to_name": null,
"type": null,
"value": {
"end": 8904,
"labels": [
"PRE_RELIED"
],
"start": 8517,
"text": "The Hon'ble Apex Court in the case of Rangappa vs- Sri Mohan, reported in [2010 (11) SCC 441], while analysing Section 139 of N.I.Act, was also pleased to observe that once the issuance of the cheque in favour of the complainant is established, a presumption about the existence of legally enforceable debt forms in favour of the complainant, however, the said presumption is rebuttable."
}
},
{
"from_name": null,
"id": "192c3b8532854978ac574c2d19403c6e",
"to_name": null,
"type": null,
"value": {
"end": 9167,
"labels": [
"ARG_RESPONDENT"
],
"start": 8904,
"text": "\n 15. In order to rebut the presumption accrued in favour of the complainant, the defence taken by the accused is firstly that the issuance of cheque was not towards any legally enforceable debt, but as a debt/loan to the complainant, however, it was conditional."
}
},
{
"from_name": null,
"id": "3d640fd5b45f402ab59037f3a8d3df04",
"to_name": null,
"type": null,
"value": {
"end": 9321,
"labels": [
"ARG_RESPONDENT"
],
"start": 9167,
"text": "\n 16. The second defence taken by the accused was that the complainant had no capacity/source to lend the loan as on the alleged date of lending the loan."
}
},
{
"from_name": null,
"id": "5868f70267d64233855141a22739a1bc",
"to_name": null,
"type": null,
"value": {
"end": 9634,
"labels": [
"ANALYSIS"
],
"start": 9321,
"text": "\n 17. The first contention of the accused that cheque in question was given to the complainant as a loan, however, it was subject to the complainant executing a promissory note and furnishing a guarantor in favour of the accused, was, for the first time, canvassed by the accused in the cross-examination of PW-1."
}
},
{
"from_name": null,
"id": "31395791376c40e3b2d4daa588eaf26f",
"to_name": null,
"type": null,
"value": {
"end": 9741,
"labels": [
"ANALYSIS"
],
"start": 9635,
"text": "The suggestion made by the accused to PW-1 in that regard has been specifically denied by the complainant."
}
},
{
"from_name": null,
"id": "d214d9ccadc141b1870a2e015d19d9a3",
"to_name": null,
"type": null,
"value": {
"end": 10042,
"labels": [
"ANALYSIS"
],
"start": 9742,
"text": "It was suggested to PW-1 that the complainant/PW-1 wanted to join the Police Service as a Sub-Inspector of Police and also wanted to put up a house in a vacant site belonging to him and towards the same, he had taken the loan from the accused.\nHowever, the complainant did not admit the same as true."
}
},
{
"from_name": null,
"id": "8fc3deac82f8473ba0adc4f5ad69db5b",
"to_name": null,
"type": null,
"value": {
"end": 10149,
"labels": [
"ANALYSIS"
],
"start": 10042,
"text": "\n The accused who got himself examined as DW-4 also reiterated the same stand in his Examination-in- chief."
}
},
{
"from_name": null,
"id": "c569d63840fe439eb61cb6d833962fae",
"to_name": null,
"type": null,
"value": {
"end": 10232,
"labels": [
"ANALYSIS"
],
"start": 10150,
"text": " However, the complainant made denial suggestions to him in his cross-examination."
}
},
{
"from_name": null,
"id": "76220a538f4a42a7a6e030645ce69209",
"to_name": null,
"type": null,
"value": {
"end": 10611,
"labels": [
"ANALYSIS"
],
"start": 10234,
"text": "18. In order to show that cheque in question along with one more similar cheque was given to the complainant as a loan, but with a condition of he executing a demand promissory note has been confined only in the form of a suggestion by the accused to the complainant and the same is not supported either by any oral evidence of any other witness or by any documentary evidence."
}
},
{
"from_name": null,
"id": "8d0aea2cd0c04e96961d9c04cdbcdfaa",
"to_name": null,
"type": null,
"value": {
"end": 11147,
"labels": [
"ANALYSIS"
],
"start": 10611,
"text": "\n The said contention that the cheque in question was given as a loan to the complainant cannot be accepted for the following reasons:- [i] The accused though says that he had issued two cheques to the complainant as loan, no where he has stated as to what was the loan amount he wanted to give to the complainant and nowhere he has stated as to the loan amount mentioned in the cheques given by him; [ii] Admittedly, the accused/DW-4 is an educated person working as a Civil Engineer and knows the consequences of issuance of a cheque."
}
},
{
"from_name": null,
"id": "8eb9f3f6823c428e8af0db42a615c868",
"to_name": null,
"type": null,
"value": {
"end": 11213,
"labels": [
"ANALYSIS"
],
"start": 11148,
"text": "DW-4 has made statements in that regard in his cross-examination."
}
},
{
"from_name": null,
"id": "fa8b1cdbae6041cab052fe81161b9052",
"to_name": null,
"type": null,
"value": {
"end": 11489,
"labels": [
"ANALYSIS"
],
"start": 11213,
"text": "\nThat being the case, when he was aware of the consequences of issuance of a cheque, his statement that without getting or before getting the promissory note or the guarantor, he ventured to issue two cheques without any amount mentioned therein, is very difficult to believe."
}
},
{
"from_name": null,
"id": "e2511349d4de4091afa6ca16cc4c8a8c",
"to_name": null,
"type": null,
"value": {
"end": 11778,
"labels": [
"ANALYSIS"
],
"start": 11489,
"text": "\n [iii] If the accused had really intended to give loan to the complainant and cheques were in fact issued to the complainant not as a repayment of the loan, but as a loan by accused himself to the complainant, then, the accused was expected to have sufficient balance in his Bank Account."
}
},
{
"from_name": null,
"id": "fff1d27cf66a4c48a6acc8f7430b0710",
"to_name": null,
"type": null,
"value": {
"end": 11858,
"labels": [
"ANALYSIS"
],
"start": 11779,
"text": "Admittedly, the cheque when presented, was dishonoured as `funds insufficient'."
}
},
{
"from_name": null,
"id": "329467b9a4df488fbcbce2175eba80d9",
"to_name": null,
"type": null,
"value": {
"end": 12070,
"labels": [
"ANALYSIS"
],
"start": 11860,
"text": "[iv] No doubt, the accused has given an explanation in his cross-examination that he had arranged money and wanted to remit the money in his account provided the complainant executed the demand promissory note."
}
},
{
"from_name": null,
"id": "e572960006c84190ac87619a6b6dd4ee",
"to_name": null,
"type": null,
"value": {
"end": 12228,
"labels": [
"ANALYSIS"
],
"start": 12071,
"text": "The accused also stated that he had made financial arrangement through his friend, one Sri.\nShekar Kundar of Kemmannu and one Sri. P.B. Aravind of Bengaluru."
}
},
{
"from_name": null,
"id": "f58804fd31584b11985346771ed37a1c",
"to_name": null,
"type": null,
"value": {
"end": 12303,
"labels": [
"ANALYSIS"
],
"start": 12229,
"text": "But, neither of them was examined as witness from the side of the accused."
}
},
{
"from_name": null,
"id": "7d0dfadd2ad447769eaac874cda3eb49",
"to_name": null,
"type": null,
"value": {
"end": 12446,
"labels": [
"ANALYSIS"
],
"start": 12305,
"text": "[v] The accused also stated that both those friends had given him money amounting to `3,03,000/- which he had kept with his brother, Vishwas."
}
},
{
"from_name": null,
"id": "f09830b7434741cdb64bd3514ca8fcf7",
"to_name": null,
"type": null,
"value": {
"end": 12604,
"labels": [
"ANALYSIS"
],
"start": 12447,
"text": "However, the accused has not stated as to how come he made an arrangement for a sum of `3,03,000/-, when the cheque amount was only for a sum of `1,30,000/-."
}
},
{
"from_name": null,
"id": "57791a1b2ab544f7a0bb48e0b7edb504",
"to_name": null,
"type": null,
"value": {
"end": 12700,
"labels": [
"ANALYSIS"
],
"start": 12605,
"text": "He has also not examined his brother Vishwas with whom he is said to have kept the said amount."
}
},
{
"from_name": null,
"id": "27ca6c54695e433eb9894e19df5c9e1a",
"to_name": null,
"type": null,
"value": {
"end": 12953,
"labels": [
"ANALYSIS"
],
"start": 12701,
"text": "Therefore, the defence of the accused that the cheque in question was given not towards the repayment of the loan, but as a loan to be given by him to the complainant, has neither been established by him, nor would inspire any confidence to believe it."
}
},
{
"from_name": null,
"id": "41313a4f10714864b04792d1b1dc0d00",
"to_name": null,
"type": null,
"value": {
"end": 13103,
"labels": [
"ANALYSIS"
],
"start": 12953,
"text": "\n As such, the first contention of the accused that the cheque in question was given as a loan but not as a repayment towards loan, is not acceptable."
}
},
{
"from_name": null,
"id": "538c03c6c90144b4b7bd209d95757b8b",
"to_name": null,
"type": null,
"value": {
"end": 13309,
"labels": [
"ANALYSIS"
],
"start": 13103,
"text": "\n 19. The second argument from the aside of the accused which was also his contention in the Lower Appellate Court is that the complainant had no capacity or source to lend the cheque amount to the accused."
}
},
{
"from_name": null,
"id": "845ed1cd7f4042beab846ba980146037",
"to_name": null,
"type": null,
"value": {
"end": 13473,
"labels": [
"ANALYSIS"
],
"start": 13309,
"text": "\n 20. In that regard, the accused apart from subjecting PW-1 to a detailed cross-examination also got examined three witnesses as DW-1, DW-2 and DW-3 from his side."
}
},
{
"from_name": null,
"id": "da4a6055fe3440d3bc3fa91eaf54b2fb",
"to_name": null,
"type": null,
"value": {
"end": 13661,
"labels": [
"ANALYSIS"
],
"start": 13473,
"text": "\n In the cross-examination of PW1, it has come out that the complainant/PW-1 was working as a Supervisor in the Family Welfare Department at Udupi since a year to the date of his evidence."
}
},
{
"from_name": null,
"id": "5e75bc8e852a418cb0c69270d6b89aa7",
"to_name": null,
"type": null,
"value": {
"end": 13782,
"labels": [
"ANALYSIS"
],
"start": 13662,
"text": "Prior to that, he was working as a Warden at Government Hostel at Udupi and drawing monthly salary of a sum of `9,000/-."
}
},
{
"from_name": null,
"id": "1bd99e14e1a349009ca9d3ab90ddbbbe",
"to_name": null,
"type": null,
"value": {
"end": 14089,
"labels": [
"ANALYSIS"
],
"start": 13783,
"text": "PW-1 has also stated that in the year 2000, which is the relevant year in this case of loan transaction, he was getting monthly salary of a sum of `8,000/-, and out of it, he used to incur expenditure of a sum of `3,000/- to `4,000/- towards maintenance of the family and rest of the amount, he was saving."
}
},
{
"from_name": null,
"id": "9c60bfdd87b443688ec485fb819d0938",
"to_name": null,
"type": null,
"value": {
"end": 14187,
"labels": [
"ANALYSIS"
],
"start": 14090,
"text": "Thus, according to PW-1, every month, he was saving not less than `4,000/- to `5,000/- per month."
}
},
{
"from_name": null,
"id": "28d9d57bc1aa43b5a83d6667d7d3af92",
"to_name": null,
"type": null,
"value": {
"end": 14288,
"labels": [
"ANALYSIS"
],
"start": 14188,
"text": "The said statement of the witness has not been denied or disputed in his further cross- examination."
}
},
{
"from_name": null,
"id": "bd5bc3f4d95444239301a4bd367f95ac",
"to_name": null,
"type": null,
"value": {
"end": 14609,
"labels": [
"ANALYSIS"
],
"start": 14288,
"text": "\n 21. So far as the availability of fund with the complainant to lend the amount to the accused at the time of the alleged loan is concerned, PW-1 in his very same cross-examination has also stated that he had lent the amount out of the savings made by him in his salary and also the amount that he had kept in his house."
}
},
{
"from_name": null,
"id": "d6546d086a5d4f29850a243553c36884",
"to_name": null,
"type": null,
"value": {
"end": 14755,
"labels": [
"ANALYSIS"
],
"start": 14610,
"text": "He has also stated that he does not remember as to how much amount he had kept at home and how much money he had withdrawn from his Bank Account."
}
},
{
"from_name": null,
"id": "3412fd4614a14055be39d9adb73cbc42",
"to_name": null,
"type": null,
"value": {
"end": 14954,
"labels": [
"ANALYSIS"
],
"start": 14755,
"text": "\n 22. In order to show that the complainant had no sufficient funds in his Bank Account, the accused, apart from examining himself, got examined three witnesses from his side as DW-1, DW-2, and DW-3."
}
},
{
"from_name": null,
"id": "200d2c2cff424818a5ba5d5a98a21768",
"to_name": null,
"type": null,
"value": {
"end": 15232,
"labels": [
"ANALYSIS"
],
"start": 14956,
"text": "DW-1, the then Manager of Canara Bank, Town Branch, Udupi has stated that the Savings Bank Account No.15459 was pertaining to the complainant - Sri. Giriraj Ganiga and that there was no entry of any withdrawal made from his Bank Account on 14-10-2000 as well as on 14-11-2000."
}
},
{
"from_name": null,
"id": "78a1c71a0a7f487480b6c9d268d130ac",
"to_name": null,
"type": null,
"value": {
"end": 15270,
"labels": [
"ANALYSIS"
],
"start": 15233,
"text": "A Bank Statement was marked as Ex.D1."
}
},
{
"from_name": null,
"id": "6d67ca340c934badb3ad12b53929a37b",
"to_name": null,
"type": null,
"value": {
"end": 15412,
"labels": [
"ANALYSIS"
],
"start": 15271,
"text": "However, in his cross-examination, he has stated that he cannot give details or explanation with respect to all other entries shown in Ex.D1."
}
},
{
"from_name": null,
"id": "7fc0a63c0e0e4ffc8889b3439ec33366",
"to_name": null,
"type": null,
"value": {
"end": 15482,
"labels": [
"ANALYSIS"
],
"start": 15412,
"text": "\n DW-2 is a Senior Manager of Syndicate Bank, Founders' Branch, Udupi."
}
},
{
"from_name": null,
"id": "3d0170a0e7cd469381d35a3f7c3d473e",
"to_name": null,
"type": null,
"value": {
"end": 15713,
"labels": [
"ANALYSIS"
],
"start": 15483,
"text": "After marking the document said to have been issued by his Branch as Ex.D2, the witness has stated that the said document is with respect to the Savings Bank Account No.296 in their Branch, standing in the name of the complainant."
}
},
{
"from_name": null,
"id": "9729ce078114447aa9ebe7757d5d978c",
"to_name": null,
"type": null,
"value": {
"end": 15883,
"labels": [
"ANALYSIS"
],
"start": 15714,
"text": "The witness has stated, in the year 2000, there was only one entry on 13-08-2000, which was with respect to withdrawal of a sum of `52/- towards dividend warrant amount."
}
},
{
"from_name": null,
"id": "72262d89bdec4f258e4bc27c6039e5bc",
"to_name": null,
"type": null,
"value": {
"end": 15988,
"labels": [
"ANALYSIS"
],
"start": 15884,
"text": "The balance found in the said Bank Account of the complainant in the year 2000 was only a sum of `360/-."
}
},
{
"from_name": null,
"id": "4cfa367a84e54dc3a011cda66bbc8786",
"to_name": null,
"type": null,
"value": {
"end": 16255,
"labels": [
"ANALYSIS"
],
"start": 15988,
"text": "\n DW-3, the Managing Director of Udupi Taluk Lamp Co-operative Society has stated that the documents shown to him and marked as Ex.D3 was with respect to the Savings Bank Account No.2099 standing in the name of the complainant, which Account was opened on 13-02-2001."
}
},
{
"from_name": null,
"id": "52af3d0a609049e981a7b2f68dfbcde5",
"to_name": null,
"type": null,
"value": {
"end": 16625,
"labels": [
"ANALYSIS"
],
"start": 16255,
"text": "\n 23. From the above evidence of DW-1, DW-2 and DW-3, though it could be inferred that as on 14-11-2000, there was no balance equivalent to the alleged loan amount in any of or all the three bank accounts of the complainant put together, but it is not the case of the complainant that he had only these three bank accounts and did not have any other account in his name."
}
},
{
"from_name": null,
"id": "515b3dc6f5db4b5ba91283cf87441876",
"to_name": null,
"type": null,
"value": {
"end": 16843,
"labels": [
"ANALYSIS"
],
"start": 16627,
"text": "24. It was not even suggested to PW-1 in his cross-examination that except these three bank accounts with respect to whom DW-1, DW-2 and DW-3 were examined, the complainant had no other accounts in any other banks. "
}
},
{
"from_name": null,
"id": "80b50d0f7eb9401abfad69fc1964dea5",
"to_name": null,
"type": null,
"value": {
"end": 17053,
"labels": [
"ANALYSIS"
],
"start": 16843,
"text": "Further, it is also not the statement of PW-1 that he withdrew any portion of the loan amount from any one of these three bank accounts and on any particular day, more particularly on 14-11- 2000 or 14-10-2000."
}
},
{
"from_name": null,
"id": "821bdcf34a894f12bf2bf48ad7732196",
"to_name": null,
"type": null,
"value": {
"end": 17433,
"labels": [
"ANALYSIS"
],
"start": 17054,
"text": "That being the case, without ascertaining from PW-1 or without suggesting to PW-1 that he had only these three bank accounts and that he had withdrawn a particular sum from any of these three bank accounts on a particular date, merely examining three bank officials would not help the accused in any manner to establish or show that the complainant had no capacity to lend money."
}
},
{
"from_name": null,
"id": "92cc3ba42ecd467abad7b04752662dee",
"to_name": null,
"type": null,
"value": {
"end": 17638,
"labels": [
"ANALYSIS"
],
"start": 17435,
"text": "25. As already observed above, the complainant has no where stated that it is only after withdrawing the amount from a particular bank account, on a particular date that he has lent money to the accused."
}
},
{
"from_name": null,
"id": "f346029565cd4758a7aa829b1c159102",
"to_name": null,
"type": null,
"value": {
"end": 17750,
"labels": [
"ANALYSIS"
],
"start": 17639,
"text": "But it is his specific case that he had some money kept in his house and some amount he withdrew from the bank."
}
},
{
"from_name": null,
"id": "bfcf91c06a1d4b45a20b6d6b6b58911e",
"to_name": null,
"type": null,
"value": {
"end": 17849,
"labels": [
"ANALYSIS"
],
"start": 17751,
"text": "He has not stated how much he withdrew from his bank account and from which bank and on what date."
}
},
{
"from_name": null,
"id": "788cc14a1f304b4eab9ee0934c596e7e",
"to_name": null,
"type": null,
"value": {
"end": 17981,
"labels": [
"ANALYSIS"
],
"start": 17849,
"text": "\n 26. Thus, the contention of the accused that the complainant had no financial source or capacity to lend money, is not acceptable."
}
},
{
"from_name": null,
"id": "46e3a6533c814f9c902ac99232328cd9",
"to_name": null,
"type": null,
"value": {
"end": 18078,
"labels": [
"ANALYSIS"
],
"start": 17982,
"text": "His attempt to rebut the presumption has fallen short of giving him the favour he was expecting."
}
},
{
"from_name": null,
"id": "2ea7156931bf4285ab10988719ccc728",
"to_name": null,
"type": null,
"value": {
"end": 18476,
"labels": [
"ANALYSIS"
],
"start": 18078,
"text": "\n 27. The Lower Appellate Court, without analyzing the evidence in its proper perspective, has been carried away only by the evidence of DW-1, DW-2 and DW-3 and jumped to a conclusion that the complainant had no financial capacity to lend money which resulted in it setting aside the judgment of the Trial Court which was a very reasoned one after due appreciation of the evidence placed before it."
}
},
{
"from_name": null,
"id": "6687080e2c714043a289f07da869509a",
"to_name": null,
"type": null,
"value": {
"end": 18949,
"labels": [
"ANALYSIS"
],
"start": 18476,
"text": "\n 28. In such a situation, when the issuance of cheque in favour of the complainant is an admitted fact and the presumption under Section 139 of the N.I. Act was operating in favour of the complainant and when the accused could not able to rebut the said presumption, though he has led his evidence and examined few witnesses, the only inference that could be drawn is that the complainant could able to prove the alleged guilt against the accused beyond reasonable doubts."
}
},
{
"from_name": null,
"id": "3fad94fd5c2d4470b4798cb064af2607",
"to_name": null,
"type": null,
"value": {
"end": 19083,
"labels": [
"ANALYSIS"
],
"start": 18950,
"text": "However, the Lower Appellate Court, as observed above, has wrongly reversed the finding of the Trial Court and acquitted the accused."
}
},
{
"from_name": null,
"id": "3e6bab736c8c44dcbe156ece22a49db9",
"to_name": null,
"type": null,
"value": {
"end": 19310,
"labels": [
"RATIO"
],
"start": 19083,
"text": "\n 29. The Trial Court since has appropriately held the accused guilty of the alleged offence after appreciating the evidence placed before it in its proper perspective, I do not find any reason to interfere in the said finding."
}
},
{
"from_name": null,
"id": "16faa3b70c054610ac392d10cfc03fa2",
"to_name": null,
"type": null,
"value": {
"end": 19504,
"labels": [
"RATIO"
],
"start": 19311,
"text": "Since the Trial Court has also ordered the sentence which is proportionate to the criminality of the proven guilt, I do not find any reason to modify the said sentence part of the offence also."
}
},
{
"from_name": null,
"id": "951c7d1bccd848afacf59c472986a424",
"to_name": null,
"type": null,
"value": {
"end": 19700,
"labels": [
"RATIO"
],
"start": 19506,
"text": "30. As such, the said judgment of the Lower Appellate Court which is challenged in this appeal deserves to be set aside and the judgment of the Trial Court requires to be restored and confirmed."
}
},
{
"from_name": null,
"id": "09802b78f9084ebc8be46e90ef930a57",
"to_name": null,
"type": null,
"value": {
"end": 19807,
"labels": [
"RPC"
],
"start": 19700,
"text": "\n Accordingly, I proceed to pass the following: ORDER The Appeal filed by complainant/appellant is allowed."
}
},
{
"from_name": null,
"id": "6897aadabf1b4e8f8deb624319ba23a9",
"to_name": null,
"type": null,
"value": {
"end": 20169,
"labels": [
"RPC"
],
"start": 19807,
"text": "\n The judgment of acquittal passed by the learned Presiding Officer, Fast Track Court, Udupi, dated 23-06-2009 in Criminal Appeal No.58/2008 is hereby set aside; and the judgment of conviction passed by the learned III Additional Civil Judge (Jr.Dn.) & JMFC, Udupi, dated 22-01-2008 in Criminal Case No.5522/2004 is restored and hereby confirmed.\n "
}
},
{
"from_name": null,
"id": "aa19386e968d4e87a4afe25b814adf6d",
"to_name": null,
"type": null,
"value": {
"end": 20360,
"labels": [
"RPC"
],
"start": 20169,
"text": "The Registry is directed to transmit a copy of this judgment to the Trial Court forthwith along with Lower Court records, to enable it to proceed further in the matter in accordance with law."
}
},
{
"from_name": null,
"id": "2ce80291186c4987bc77ade10fc87b0c",
"to_name": null,
"type": null,
"value": {
"end": 20706,
"labels": [
"RPC"
],
"start": 20360,
"text": "\n Considering the effort put by the learned counsel for the complainant as also the learned counsel for the respondent from the panel Advocates of the High Court Legal Services Committee, it is recommended to the Committee to consider the remuneration/ honorarium payable to the learned counsels at not less than `4,000/- to each Advocate."
}
},
{
"from_name": null,
"id": "502295dec6084cfba4e32e9d94962a99",
"to_name": null,
"type": null,
"value": {
"end": 20827,
"labels": [
"NONE"
],
"start": 20706,
"text": "\n An entire copy of this judgment also be delivered to the respondent/accused immediately, free of cost.\n Sd/- JUDGE BMV*"
}
}
]
}
] | 4,110 | {
"text": "IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\n DATED THIS THE 1ST DAY OF MARCH, 2019\n\n BEFORE\n\nTHE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY\n\n CRIMINAL APPEAL No.1046 OF 2010\n\nBETWEEN: ...Appellant\n\nSri. Giridhara Ganiga\nS/o. Srinivas Ganiga,\nAged about 47 years,\nResiding at Shreeram Bldg. Board,\nHigh School Road,\nUDUPI\n\n(By Sri. R. Srinivasa Gowda, Advocate)\n\nAND:\n\nSri. Adarsh\nS/o. P.V.Gopala Krishna,\nAged about 34 years,\nResiding at No.74/A, 12th Main,\n27th Cross, B.S.K. 2nd Stage,\nBangalore-560070.\n\n ...Respondent\n(By Sri. P.D. Subramanya, Advocate)\n\n *****\n This Criminal Appeal is filed under Section 378(4) of\nCr.P.C praying to set aside the judgment dated:23.06.2009\npassed by the Presiding Officer, FTC, Udupi in\nCrl.A.No.58/2008 acquitting the respondent/accused for\nthe offence punishable under Section 138 of N.I.Act.\n\n This Criminal Appeal coming on for Hearing, this day,\nthe Court delivered the following:\n\n J U D G M E N T\n In a private complaint filed by the present appellant/complainant under Section 200 of Code of Criminal Procedure (hereinafter referred to as \"Cr.P.C.\"\n for brevity), against the present respondent/accused, for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter for brevity referred to as \"N.I.Act\"), the learned III Additional Civil Judge (Jr.Dvn.) & J.M.F.C., Udupi (hereinafter for brevity referred to as \"Trial Court\"), in C.C.No.5522/2004, pronounced the judgment of conviction, convicting the present respondent/accused - Sri. Adarsh, on 22-01-2008 and sentenced him to pay a fine of `1,35,000/- and in default, to undergo Simple Imprisonment for a period of one year. Against the said judgment and order of conviction, the present respondent/accused- Sri Adarsh preferred a Criminal Appeal No.58/2008 before the learned Presiding Officer, Fast Track Court at Udupi, (hereinafter for brevity referred to as the `Lower Appellate Court'), which by its impugned judgment and order dated 23-06-2009 allowed the appeal filed by the respondent/accused and set aside the judgment of conviction passed by the Trial Court. It is challenging the said judgment of acquittal passed by the Lower Appellate Court, the appellant/complainant has preferred this appeal.\n 2. The summary of the case of the complainant in the Trial Court is that, the accused who is his close relative had borrowed a hand loan of a sum of `1,30,000/- on 14-11-2000 for his business purposes.\nIn order to discharge the said debt, accused issued to him a cheque bearing No.0531933 dated 14-11-2000 drawn on Vyshya Bank Limited, Udupi Branch, favouring the complainant. When presented, the said cheque was returned dishonoured with the banker's endorsement `funds insufficient'. Thereafter, the complainant issued a legal notice to the accused calling upon him to pay the cheque amount. However, the accused neither made any payment nor replied to the legal notice which constrained the complainant to institute a criminal case against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the \"N.I. Act\" for brevity).\n 3. To prove his case, the complainant got himself examined as PW-1 and got marked documents from Exs.P-1 to P-5(a). From the side of the accused, four witnesses were examined as DW1 to DW4, wherein the accused himself got examined as DW4 and documents from Exs.D1 to D7 were got marked.\n 4. After hearing both side, the Trial Court by its impugned judgment dated 22-01-2008, convicted the accused for the alleged offence under Section 138 of N.I. Act. However, the Lower Appellate Court acquitted the accused of the said offence. It is against the said judgment of Lower Appellate Court, the appellant/ complainant has preferred this appeal.\n 5. Even though the appellant as well as the respondent were represented by their counsels, however, considering that the said learned counsels did not appear in the matter for addressing the arguments despite giving them several and sufficient opportunities, this Court, through a detailed order dated 25-01-2019 appointed two learned Advocates from the Panel of the Legal Services Committee of this Court to represent and appear for the appellant and respondent respectively.\nAs such, the learned counsels from the Panel of the High Court Legal Services Committee are representing the parties here.\n 6. Lower Court records were called and the same are placed before this Court.\n 7. Heard the arguments from both side and perused the materials placed before this Court including the Lower Court records.\n 8. For the sake of convenience, the parties would be hereinafter referred to as per their ranks before the Trial Court.\n 9. Learned counsel for the appellant/complainant in his arguments submitted that the issuance of cheque by the accused to the complainant is not in dispute, so also, dishonor of the cheque for the reason `funds insufficient'. The legal notice issued to the accused did not receive any reply or response from the accused. As such, the presumption under Section 139 of the N.I. Act operates in favour of the complainant. Even though the accused was not successful in rebutting the said presumption, the Lower Appellate Court by observing that the complainant failed to prove that he had financial capacity to lend the money, has set aside the judgment of conviction passed by the Trial Court, which finding of the Lower Appellate Court is an erroneous one.\n 10. The learned counsel for the respondent, in his arguments submitted that the accused has explained the circumstances under which these two cheques were given to the complainant by him. He has made it clear that issuance of a cheque was on the condition that the complainant should execute loan documents. Since the complainant did not comply the said condition, the cheque got dishonoured. Thus, the accused was not a borrower and the complainant was in fact the borrower.\n Further, the complainant had no source of income to lend it to the accused has also been brought in his cross-examination, as such, the Lower Appellate Court has rightly pronounced the judgment of acquittal.\n 11. After going through the entire material placed before this Court, it is not in dispute that the mother of the accused is the younger sister of the complainant's wife, as such the parties are close relatives. Even though the complainant has reiterated the summary of his complaint even in his Examination-in-chief, as PW-1, but the accused in the cross-examination of PW-1 has disclosed his defence contending that the cheque in question along with one more cheque was given by him to the complainant when the complainant was in need of money. However, the issuance of those two cheques was on the condition that the complainant should execute a demand promissory note and furnish a guarantor. Since the complainant failed to comply with the said condition, the accused did not remit the amount to his Bank Account to honour the cheques, due to which, the cheques got dishonoured. The suggestions made to PW-1 in his cross-examination on this loan were not admitted as true by the witness.\n 12. The accused apart from putting his defence in the form of suggestions to PW-1 in his cross- examination, also tendered his evidence as DW-4 and reiterated the same defence as his evidence. However, in his cross- examination, denial suggestions were made to him denying that defence of the accused was a new found story by him. As PW-1 denied the suggestions made to him in his cross-examination, even DW-4 has also denied those suggestions put to him.\n 13. In the light of the above, the undisputed fact remains that a cheque in question along with one more cheque was admitted as issued by the accused to the complainant. Therefore, once the issuance of cheque stood proved, the presumption under Section 139 of N.I.\nAct about the existence of the legally enforceable debt operates in favour of the complainant.\n 14. Section 139 of the N.I. Act speaks about presumption in favour of holder of negotiable instrument. It says that, unless contrary is proved, it shall be presumed that the holder of a cheque receives the cheque of the nature referred to under Section 138 of the N.I.Act for the discharge in whole or in part of any debt or other liability. The Hon'ble Apex Court in the case of Rangappa vs- Sri Mohan, reported in [2010 (11) SCC 441], while analysing Section 139 of N.I.Act, was also pleased to observe that once the issuance of the cheque in favour of the complainant is established, a presumption about the existence of legally enforceable debt forms in favour of the complainant, however, the said presumption is rebuttable.\n 15. In order to rebut the presumption accrued in favour of the complainant, the defence taken by the accused is firstly that the issuance of cheque was not towards any legally enforceable debt, but as a debt/loan to the complainant, however, it was conditional.\n 16. The second defence taken by the accused was that the complainant had no capacity/source to lend the loan as on the alleged date of lending the loan.\n 17. The first contention of the accused that cheque in question was given to the complainant as a loan, however, it was subject to the complainant executing a promissory note and furnishing a guarantor in favour of the accused, was, for the first time, canvassed by the accused in the cross-examination of PW-1. The suggestion made by the accused to PW-1 in that regard has been specifically denied by the complainant. It was suggested to PW-1 that the complainant/PW-1 wanted to join the Police Service as a Sub-Inspector of Police and also wanted to put up a house in a vacant site belonging to him and towards the same, he had taken the loan from the accused.\nHowever, the complainant did not admit the same as true.\n The accused who got himself examined as DW-4 also reiterated the same stand in his Examination-in- chief. However, the complainant made denial suggestions to him in his cross-examination.\n 18. In order to show that cheque in question along with one more similar cheque was given to the complainant as a loan, but with a condition of he executing a demand promissory note has been confined only in the form of a suggestion by the accused to the complainant and the same is not supported either by any oral evidence of any other witness or by any documentary evidence.\n The said contention that the cheque in question was given as a loan to the complainant cannot be accepted for the following reasons:- [i] The accused though says that he had issued two cheques to the complainant as loan, no where he has stated as to what was the loan amount he wanted to give to the complainant and nowhere he has stated as to the loan amount mentioned in the cheques given by him; [ii] Admittedly, the accused/DW-4 is an educated person working as a Civil Engineer and knows the consequences of issuance of a cheque. DW-4 has made statements in that regard in his cross-examination.\nThat being the case, when he was aware of the consequences of issuance of a cheque, his statement that without getting or before getting the promissory note or the guarantor, he ventured to issue two cheques without any amount mentioned therein, is very difficult to believe.\n [iii] If the accused had really intended to give loan to the complainant and cheques were in fact issued to the complainant not as a repayment of the loan, but as a loan by accused himself to the complainant, then, the accused was expected to have sufficient balance in his Bank Account. Admittedly, the cheque when presented, was dishonoured as `funds insufficient'.\n [iv] No doubt, the accused has given an explanation in his cross-examination that he had arranged money and wanted to remit the money in his account provided the complainant executed the demand promissory note. The accused also stated that he had made financial arrangement through his friend, one Sri.\nShekar Kundar of Kemmannu and one Sri. P.B. Aravind of Bengaluru. But, neither of them was examined as witness from the side of the accused.\n [v] The accused also stated that both those friends had given him money amounting to `3,03,000/- which he had kept with his brother, Vishwas. However, the accused has not stated as to how come he made an arrangement for a sum of `3,03,000/-, when the cheque amount was only for a sum of `1,30,000/-. He has also not examined his brother Vishwas with whom he is said to have kept the said amount. Therefore, the defence of the accused that the cheque in question was given not towards the repayment of the loan, but as a loan to be given by him to the complainant, has neither been established by him, nor would inspire any confidence to believe it.\n As such, the first contention of the accused that the cheque in question was given as a loan but not as a repayment towards loan, is not acceptable.\n 19. The second argument from the aside of the accused which was also his contention in the Lower Appellate Court is that the complainant had no capacity or source to lend the cheque amount to the accused.\n 20. In that regard, the accused apart from subjecting PW-1 to a detailed cross-examination also got examined three witnesses as DW-1, DW-2 and DW-3 from his side.\n In the cross-examination of PW1, it has come out that the complainant/PW-1 was working as a Supervisor in the Family Welfare Department at Udupi since a year to the date of his evidence. Prior to that, he was working as a Warden at Government Hostel at Udupi and drawing monthly salary of a sum of `9,000/-. PW-1 has also stated that in the year 2000, which is the relevant year in this case of loan transaction, he was getting monthly salary of a sum of `8,000/-, and out of it, he used to incur expenditure of a sum of `3,000/- to `4,000/- towards maintenance of the family and rest of the amount, he was saving. Thus, according to PW-1, every month, he was saving not less than `4,000/- to `5,000/- per month. The said statement of the witness has not been denied or disputed in his further cross- examination.\n 21. So far as the availability of fund with the complainant to lend the amount to the accused at the time of the alleged loan is concerned, PW-1 in his very same cross-examination has also stated that he had lent the amount out of the savings made by him in his salary and also the amount that he had kept in his house. He has also stated that he does not remember as to how much amount he had kept at home and how much money he had withdrawn from his Bank Account.\n 22. In order to show that the complainant had no sufficient funds in his Bank Account, the accused, apart from examining himself, got examined three witnesses from his side as DW-1, DW-2, and DW-3.\n DW-1, the then Manager of Canara Bank, Town Branch, Udupi has stated that the Savings Bank Account No.15459 was pertaining to the complainant - Sri. Giriraj Ganiga and that there was no entry of any withdrawal made from his Bank Account on 14-10-2000 as well as on 14-11-2000. A Bank Statement was marked as Ex.D1. However, in his cross-examination, he has stated that he cannot give details or explanation with respect to all other entries shown in Ex.D1.\n DW-2 is a Senior Manager of Syndicate Bank, Founders' Branch, Udupi. After marking the document said to have been issued by his Branch as Ex.D2, the witness has stated that the said document is with respect to the Savings Bank Account No.296 in their Branch, standing in the name of the complainant. The witness has stated, in the year 2000, there was only one entry on 13-08-2000, which was with respect to withdrawal of a sum of `52/- towards dividend warrant amount. The balance found in the said Bank Account of the complainant in the year 2000 was only a sum of `360/-.\n DW-3, the Managing Director of Udupi Taluk Lamp Co-operative Society has stated that the documents shown to him and marked as Ex.D3 was with respect to the Savings Bank Account No.2099 standing in the name of the complainant, which Account was opened on 13-02-2001.\n 23. From the above evidence of DW-1, DW-2 and DW-3, though it could be inferred that as on 14-11-2000, there was no balance equivalent to the alleged loan amount in any of or all the three bank accounts of the complainant put together, but it is not the case of the complainant that he had only these three bank accounts and did not have any other account in his name.\n 24. It was not even suggested to PW-1 in his cross-examination that except these three bank accounts with respect to whom DW-1, DW-2 and DW-3 were examined, the complainant had no other accounts in any other banks. Further, it is also not the statement of PW-1 that he withdrew any portion of the loan amount from any one of these three bank accounts and on any particular day, more particularly on 14-11- 2000 or 14-10-2000. That being the case, without ascertaining from PW-1 or without suggesting to PW-1 that he had only these three bank accounts and that he had withdrawn a particular sum from any of these three bank accounts on a particular date, merely examining three bank officials would not help the accused in any manner to establish or show that the complainant had no capacity to lend money.\n 25. As already observed above, the complainant has no where stated that it is only after withdrawing the amount from a particular bank account, on a particular date that he has lent money to the accused. But it is his specific case that he had some money kept in his house and some amount he withdrew from the bank. He has not stated how much he withdrew from his bank account and from which bank and on what date.\n 26. Thus, the contention of the accused that the complainant had no financial source or capacity to lend money, is not acceptable. His attempt to rebut the presumption has fallen short of giving him the favour he was expecting.\n 27. The Lower Appellate Court, without analyzing the evidence in its proper perspective, has been carried away only by the evidence of DW-1, DW-2 and DW-3 and jumped to a conclusion that the complainant had no financial capacity to lend money which resulted in it setting aside the judgment of the Trial Court which was a very reasoned one after due appreciation of the evidence placed before it.\n 28. In such a situation, when the issuance of cheque in favour of the complainant is an admitted fact and the presumption under Section 139 of the N.I. Act was operating in favour of the complainant and when the accused could not able to rebut the said presumption, though he has led his evidence and examined few witnesses, the only inference that could be drawn is that the complainant could able to prove the alleged guilt against the accused beyond reasonable doubts. However, the Lower Appellate Court, as observed above, has wrongly reversed the finding of the Trial Court and acquitted the accused.\n 29. The Trial Court since has appropriately held the accused guilty of the alleged offence after appreciating the evidence placed before it in its proper perspective, I do not find any reason to interfere in the said finding. Since the Trial Court has also ordered the sentence which is proportionate to the criminality of the proven guilt, I do not find any reason to modify the said sentence part of the offence also.\n 30. As such, the said judgment of the Lower Appellate Court which is challenged in this appeal deserves to be set aside and the judgment of the Trial Court requires to be restored and confirmed.\n Accordingly, I proceed to pass the following: ORDER The Appeal filed by complainant/appellant is allowed.\n The judgment of acquittal passed by the learned Presiding Officer, Fast Track Court, Udupi, dated 23-06-2009 in Criminal Appeal No.58/2008 is hereby set aside; and the judgment of conviction passed by the learned III Additional Civil Judge (Jr.Dn.) & JMFC, Udupi, dated 22-01-2008 in Criminal Case No.5522/2004 is restored and hereby confirmed.\n The Registry is directed to transmit a copy of this judgment to the Trial Court forthwith along with Lower Court records, to enable it to proceed further in the matter in accordance with law.\n Considering the effort put by the learned counsel for the complainant as also the learned counsel for the respondent from the panel Advocates of the High Court Legal Services Committee, it is recommended to the Committee to consider the remuneration/ honorarium payable to the learned counsels at not less than `4,000/- to each Advocate.\n An entire copy of this judgment also be delivered to the respondent/accused immediately, free of cost.\n Sd/- JUDGE BMV* "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
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"id": "061dbb85701d4135b1900e0ce942691f",
"to_name": null,
"type": null,
"value": {
"end": 168,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "* IN THE HIGH COURT OF DELHI AT NEW DELHI\n+ CRIMINAL APPEAL No.1399/2012\n\n% Date of decision : 30th January, 2015"
}
},
{
"from_name": null,
"id": "3501d84005db4f7b969eee439b35d6c7",
"to_name": null,
"type": null,
"value": {
"end": 282,
"labels": [
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],
"start": 168,
"text": "\n\nANGOORI DEVI ………. APPELLANT\n Through : "
}
},
{
"from_name": null,
"id": "891323f5666d4c78950d9c4c875c3cdc",
"to_name": null,
"type": null,
"value": {
"end": 318,
"labels": [
"PREAMBLE"
],
"start": 282,
"text": "Mr. Ajay Burman, Advocate, Mr.Aditya"
}
},
{
"from_name": null,
"id": "b7c036122ca14cdaacca7e34c00d6830",
"to_name": null,
"type": null,
"value": {
"end": 391,
"labels": [
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],
"start": 362,
"text": "Swarup Agarwal and Mr. Harsit"
}
},
{
"from_name": null,
"id": "200c1b5d8dd14571baf1c2268848f702",
"to_name": null,
"type": null,
"value": {
"end": 452,
"labels": [
"PREAMBLE"
],
"start": 391,
"text": "\n Khurana, Advocate"
}
},
{
"from_name": null,
"id": "334aaeb8286e4fa4b11aa7d4ad2329ea",
"to_name": null,
"type": null,
"value": {
"end": 608,
"labels": [
"PREAMBLE"
],
"start": 488,
"text": "versus\nSTATE ……….RESPONDENT\n Through : "
}
},
{
"from_name": null,
"id": "b472699e16994f01aac18e4795fb6bcd",
"to_name": null,
"type": null,
"value": {
"end": 647,
"labels": [
"PREAMBLE"
],
"start": 608,
"text": "Mr. Firoz Khan Ghazi, APP for the State"
}
},
{
"from_name": null,
"id": "52731a6c2d4442d88f2aafa78cc1c168",
"to_name": null,
"type": null,
"value": {
"end": 725,
"labels": [
"PREAMBLE"
],
"start": 647,
"text": "\n with SI Roshan Lal, Police Station"
}
},
{
"from_name": null,
"id": "4f244b5f647446a48c4176640a44b2f1",
"to_name": null,
"type": null,
"value": {
"end": 900,
"labels": [
"PREAMBLE"
],
"start": 726,
"text": "–\n Nangloi.\n\nCORAM :\n\n HON’BLE MR. JUSTICE G. S. SISTANI\n HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL\n\nJUDGMENT (ORAL) 1."
}
},
{
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"to_name": null,
"type": null,
"value": {
"end": 1350,
"labels": [
"RLC"
],
"start": 901,
"text": " The present appeal arises out of the judgment dated 10.09.2012 and order on sentence dated 25.09.2012 by which the present appellant who is mother-in-law of the deceased, has been sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.25,000/-, in default of payment of fine, the appellant had been directed to undergo simple imprisonment for two months for the offence punishable under Section 498-A Indian Penal Code."
}
},
{
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"id": "eed9a463799c4d30a93f3a29f9018dea",
"to_name": null,
"type": null,
"value": {
"end": 1358,
"labels": [
"FAC"
],
"start": 1350,
"text": "\n2. "
}
},
{
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"id": "05ba290a7ae54178a0cfa774893be7dc",
"to_name": null,
"type": null,
"value": {
"end": 1682,
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],
"start": 1358,
"text": "Before the rival submissions of the parties can be considered, the case of the prosecution as set out by the trial court is as under: “(2) The case of the prosecution is that on 28.04.2007 DD No.65-B was received in the Police Station Nangloi regarding the fact that Anita W/o. Manoj 7Kumar was got admitted in RML Hospital."
}
},
{
"from_name": null,
"id": "955b11787e56423a80a8f7f8556bd09d",
"to_name": null,
"type": null,
"value": {
"end": 1835,
"labels": [
"FAC"
],
"start": 1683,
"text": "Pursuant to the said information S.I. Raghuvir Singh reached RML Hospital and collected the MLC of Anita who was declared „brought dead‟ by the doctors."
}
},
{
"from_name": null,
"id": "81d97d545b744c4cacd8e30db5b05aaf",
"to_name": null,
"type": null,
"value": {
"end": 2014,
"labels": [
"FAC"
],
"start": 1836,
"text": "One Kuldeep Singh Dalal the brother of the deceased met SI Raghuvir Singh who informed him that the marriage of his sister Anita was solemnized with Manoj Kumar in the year 2001."
}
},
{
"from_name": null,
"id": "f9dfeaee394c408294bdd369550874ec",
"to_name": null,
"type": null,
"value": {
"end": 2164,
"labels": [
"FAC"
],
"start": 2015,
"text": "Since the death was causing within seven years of marriage, information was sent to SDM Punjabi Bagh and the dead body was got preserved at Mortuary."
}
},
{
"from_name": null,
"id": "d6e07d2715004d37bf3c8f71c1bba543",
"to_name": null,
"type": null,
"value": {
"end": 2356,
"labels": [
"FAC"
],
"start": 2164,
"text": "\n On 29.4.2007 the parents of the deceased i.e. Amir Singh (Father), Satwanti Devi (Mother) and Kuldeep Singh Dalal (Brother) were called by the SDM who recorded their statements."
}
},
{
"from_name": null,
"id": "eb35463ad61846ed937ce1e6d79ed91f",
"to_name": null,
"type": null,
"value": {
"end": 2606,
"labels": [
"FAC"
],
"start": 2356,
"text": "\n (3) The father of the deceased namely Amir Singh Dalal informed the SDM that the deceased Anita who was his youngest daughter, was married to Manoj Kumar on 2.4.2001 according to Hindu rites and customs and they had given dowry as per his capacity."
}
},
{
"from_name": null,
"id": "7274979781034c0a89ec5ac3533d864f",
"to_name": null,
"type": null,
"value": {
"end": 2836,
"labels": [
"FAC"
],
"start": 2607,
"text": "According to Amir Singh Dalal, at that time accused Manoj was running a shop whereas his daughter Anita was working in RML Hospital as Staff Nurse and was earning Rs.15,000/- at that time and Rs.20,000/- at the time of her death."
}
},
{
"from_name": null,
"id": "554e97ab91514783af1f741d6b96b41a",
"to_name": null,
"type": null,
"value": {
"end": 3147,
"labels": [
"FAC"
],
"start": 2851,
"text": "He further informed the SDM that after the marriage accused Manoj started consuming liquor and closed his shop on account of which the entire household affairs was running from the salary of her daughter Anita and Manoj started bearing Anita on account of dowry demands and used to torture Anita."
}
},
{
"from_name": null,
"id": "4d43a6fa6bf94c009c683d1d8adcb3ee",
"to_name": null,
"type": null,
"value": {
"end": 3686,
"labels": [
"FAC"
],
"start": 3148,
"text": "Amit Singh Dalal alleged that the accused Manoj withdrew large amount from the GPF account of Anita and spent the same on his bad habits and all the family members of accused Manoj i.e. his mother Angoori Devi, his younger brother Vinod and the wife of his younger brother Shalu started beating to Anita on account of demand of dowry pursuant to which they (Amir Singh Dalal and his family members) visited the house of Anita on many occasions and made efforts to make the accused understand but the beatings to his daughter did not stop."
}
},
{
"from_name": null,
"id": "9ee53eb69e6946b4b42b2cb92a36a75f",
"to_name": null,
"type": null,
"value": {
"end": 3781,
"labels": [
"FAC"
],
"start": 3687,
"text": "According to Amir Singh Dalal, at last on 28.4.2001 all the accused committed murder of Anita."
}
},
{
"from_name": null,
"id": "bf42c73e3c254f36aed14665f7f08aa2",
"to_name": null,
"type": null,
"value": {
"end": 3874,
"labels": [
"FAC"
],
"start": 3781,
"text": "\n (4) On the basis of the statement of Amir Singh Dalal, the present case was got registered."
}
},
{
"from_name": null,
"id": "25a6f193c7864f9bb5e84f72ef9c8c75",
"to_name": null,
"type": null,
"value": {
"end": 4079,
"labels": [
"FAC"
],
"start": 3875,
"text": "On 18.5.2007 the accused Manoj and Vinod were arrested on 19.5.2007 the accused Angoori Devi was arrested and on 29.8.2007 the accused Shalu surrendered in the Police Station after which she was arrested."
}
},
{
"from_name": null,
"id": "6f4a944f63484e089deb03f0adecfd39",
"to_name": null,
"type": null,
"value": {
"end": 4231,
"labels": [
"FAC"
],
"start": 4080,
"text": "Pursuant to the arrest of accused Shahu, she got recovered the weapon of offence i.e. Thapi with which all the accused inflicted injuries upon Anita.\n "
}
},
{
"from_name": null,
"id": "ce73197cc0eb434eaf32f0ddf5083a88",
"to_name": null,
"type": null,
"value": {
"end": 4360,
"labels": [
"FAC"
],
"start": 4231,
"text": "After completion of investigation charge sheet was filed against all the accused namely, Manoj, Vinod, Angoori Devi and Shalu.” 3"
}
},
{
"from_name": null,
"id": "51688807fca24f5b8300a37a0cf10112",
"to_name": null,
"type": null,
"value": {
"end": 4447,
"labels": [
"FAC"
],
"start": 4360,
"text": ". In order to prove its case, the prosecution has examined as many as 32 witnesses."
}
},
{
"from_name": null,
"id": "e002bce915064cd09a634afd502dbc39",
"to_name": null,
"type": null,
"value": {
"end": 4611,
"labels": [
"FAC"
],
"start": 4448,
"text": "We may also notice that a separate appeal has already been filed by the husband of the deceased, who has been convicted under Section 302 of the Indian Penal Code."
}
},
{
"from_name": null,
"id": "130ebea93b224e249da9a325c77f8a6e",
"to_name": null,
"type": null,
"value": {
"end": 4816,
"labels": [
"FAC"
],
"start": 4612,
"text": "The State has placed reliance on the evidence of PW-2, brother of the deceased; PW-3, mother of the deceased; PW-5, PW-7 PW-8, who are the colleagues of the deceased; PW-9 the real sister of the deceased."
}
},
{
"from_name": null,
"id": "abe26f0a59044507907872b34b4a112d",
"to_name": null,
"type": null,
"value": {
"end": 4863,
"labels": [
"FAC"
],
"start": 4817,
"text": "MLC has been proved by Dr.Sunil Saxena, PW-10."
}
},
{
"from_name": null,
"id": "efb337596bbe451c86c0caa9a0479a27",
"to_name": null,
"type": null,
"value": {
"end": 5139,
"labels": [
"ARG_PETITIONER"
],
"start": 4871,
"text": "At the outset, Mr. Ajay Burman, learned counsel for the appellant submits that the appellant has already undergone the sentence awarded to her i.e. about 1 year 2 months out of the three years and the unexpired portion of the sentence is approximately 1 year 9 months."
}
},
{
"from_name": null,
"id": "a85504ab68064f3ca772573ee1843b3b",
"to_name": null,
"type": null,
"value": {
"end": 5312,
"labels": [
"ARG_PETITIONER"
],
"start": 5140,
"text": "Mr. Burman further submits that the appellant does not wish to contest the matter on merit but prays that the order of sentence be modified to the period already undergone."
}
},
{
"from_name": null,
"id": "ae25cb230d6747b0ba4be04a1fa9cda2",
"to_name": null,
"type": null,
"value": {
"end": 5481,
"labels": [
"ARG_PETITIONER"
],
"start": 5313,
"text": "Mr. Burman further submits that the appellant is a cancer patient and an old lady of more than 77 years of age and has never been convicted for any offence in the past."
}
},
{
"from_name": null,
"id": "51d9d351734e4461ba03587793348d1f",
"to_name": null,
"type": null,
"value": {
"end": 5643,
"labels": [
"ARG_PETITIONER"
],
"start": 5481,
"text": "\n5. It is also contended by Mr.Burman that in fact allegations made against the appellant are general in nature and no specific role has been assigned to her."
}
},
{
"from_name": null,
"id": "975241dce2584c6eb363442aa1bf833e",
"to_name": null,
"type": null,
"value": {
"end": 5864,
"labels": [
"ARG_PETITIONER"
],
"start": 5644,
"text": "He further submits that the appellant has been dragged into the matrimonial dispute between the deceased and her husband, who has been convicted under Section 302 Indian Penal Code and has been awarded life imprisonment."
}
},
{
"from_name": null,
"id": "c1a2a40efc964350a6dfe71d3719e971",
"to_name": null,
"type": null,
"value": {
"end": 6160,
"labels": [
"ARG_PETITIONER"
],
"start": 5865,
"text": "He further submits that upon reading of the evidence of the witnesses PW2 Kuldeep Singh Dalal, who is the father of the deceased, PW3 Satwanti Devi, mother of the deceased and PW9 Vandana Rathi, younger sister of the deceased would show that there are material contradictions in their testimony."
}
},
{
"from_name": null,
"id": "19133b12731a49fe9e45f982f06346ec",
"to_name": null,
"type": null,
"value": {
"end": 6376,
"labels": [
"ARG_PETITIONER"
],
"start": 6161,
"text": "It s also contended that PW2 Kuldeep Singh Dalal in his complaint dated 28 th/29th April, 2001, Ex.PW2/A has not levelled allegation regarding harassment and cruelty against above appellant and other family members."
}
},
{
"from_name": null,
"id": "80299d95f7ac44df9b894e9f6b223e82",
"to_name": null,
"type": null,
"value": {
"end": 6730,
"labels": [
"ARG_PETITIONER"
],
"start": 6377,
"text": "This witness also during his cross examination neither disclosed the dates and events of the harassment and cruelty nor such details were provided in the statement under Section 161 Code of Criminal Procedure, which would show that all the close family members being interested witnesses had made excoriated and material improvements in their testimony."
}
},
{
"from_name": null,
"id": "e7d20170f3ba4c2dad0ffd9be4848c49",
"to_name": null,
"type": null,
"value": {
"end": 7058,
"labels": [
"ARG_PETITIONER"
],
"start": 6730,
"text": "\n6. Another argument advanced by Mr. Burman is that PW2 Satwanti Devi has made material improvements in her testimony although in the statement dated 29.04.2012 Ex.PW3/A given before Sub-Divisional Magistrate wherein she had not levelled allegation regarding harassment and cruelty against the above appellant, Angoori Devi."
}
},
{
"from_name": null,
"id": "44d9d3ca4af946118725f3bc7a00d3b9",
"to_name": null,
"type": null,
"value": {
"end": 7284,
"labels": [
"ARG_PETITIONER"
],
"start": 7059,
"text": "Mr. Burman also submits that the basic case of the prosecution is that after marriage, the husband of the deceased had left his job and was living on the salary of his wife, who was employed as Nurse in a government hospital."
}
},
{
"from_name": null,
"id": "15e0bc2df3cd4302802ac82602fe4f98",
"to_name": null,
"type": null,
"value": {
"end": 7540,
"labels": [
"ARG_PETITIONER"
],
"start": 7285,
"text": "It is also a case of the prosecution that the husband of the deceased was involved in a criminal case and his family members had put immense pressure on the deceased to arrange money for the purpose of engaging a lawyer and to secure bail for her husband."
}
},
{
"from_name": null,
"id": "c00bcc81ec5d43a3bc2fbd4cb8f45b90",
"to_name": null,
"type": null,
"value": {
"end": 7633,
"labels": [
"ARG_PETITIONER"
],
"start": 7541,
"text": "It is also contended that the appellant had no role to play and has been falsely implicated."
}
},
{
"from_name": null,
"id": "5090c0cef5814fc19b694b260e51c78c",
"to_name": null,
"type": null,
"value": {
"end": 7641,
"labels": [
"ARG_RESPONDENT"
],
"start": 7634,
"text": "7. "
}
},
{
"from_name": null,
"id": "4da93f2c69d8485bb0f07caf987ff309",
"to_name": null,
"type": null,
"value": {
"end": 7828,
"labels": [
"ARG_RESPONDENT"
],
"start": 7641,
"text": "Mr. Firoz Khan Ghazi, learned APP for the State submits that the Learned Trial Court has awarded maximum punishment to the present appellant based on her role ascribed, which duly proved."
}
},
{
"from_name": null,
"id": "8554981958f34b66a95d7344780ef4db",
"to_name": null,
"type": null,
"value": {
"end": 7925,
"labels": [
"ANALYSIS"
],
"start": 7836,
"text": "We have heard counsel for both the parties and carefully examined the evidence on record."
}
},
{
"from_name": null,
"id": "5472eca20f1a40539e75399f827dfa3a",
"to_name": null,
"type": null,
"value": {
"end": 7977,
"labels": [
"ANALYSIS"
],
"start": 7926,
"text": "The judgment on conviction has not been challenged."
}
},
{
"from_name": null,
"id": "858403861d2d45e8a8ab3c8abf2336da",
"to_name": null,
"type": null,
"value": {
"end": 8099,
"labels": [
"ANALYSIS"
],
"start": 7978,
"text": "Mr. Burman has only prayed for modification in the order of sentence keeping in view the age and health of the appellant."
}
},
{
"from_name": null,
"id": "63e7d810adba4d77ad8ad095a4c31b1a",
"to_name": null,
"type": null,
"value": {
"end": 8331,
"labels": [
"PRE_RELIED"
],
"start": 8099,
"text": "\n9. In the case of Ram Das Singh & Ors. Vs. State of Bihar reported at JT 2000 (9) SC 569, the Apex Court while considering the age of the appellant, who was 80 years of age, reduced the sentence to the period already undergone."
}
},
{
"from_name": null,
"id": "68180185884f46a2974e9d7b2ffe4460",
"to_name": null,
"type": null,
"value": {
"end": 8608,
"labels": [
"PRE_RELIED"
],
"start": 8332,
"text": "Similar view was taken by the Supreme Court in a recent decision rendered in the case of Gurdip Singh Vs. State of Punjab reported at (2013) 10 SCC 395, wherein the court took into consideration the late evening age of the appellant and reduced the sentence already undergone."
}
},
{
"from_name": null,
"id": "ed58e9a4ed904970be53293677e85a4b",
"to_name": null,
"type": null,
"value": {
"end": 8967,
"labels": [
"RPC"
],
"start": 8616,
"text": "Having regard to the submissions made and more particularly that the appellant is an old lady of more than 77 years of age suffering from cancer, is on the ventilator, the first time offender and has already undergone the sentence of about 1 year 2 months out of three years awarded to her and fine also stands deposited, the appeal is partly allowed."
}
},
{
"from_name": null,
"id": "af909808c2a64974a07e2e7754b26eed",
"to_name": null,
"type": null,
"value": {
"end": 9034,
"labels": [
"RPC"
],
"start": 8968,
"text": "The order of sentence is modified to the period already undergone."
}
},
{
"from_name": null,
"id": "b23ca2c8d90d4bfa85f229324b7258ab",
"to_name": null,
"type": null,
"value": {
"end": 9091,
"labels": [
"RPC"
],
"start": 9035,
"text": "Bail bond be cancelled and the surety stands discharged."
}
},
{
"from_name": null,
"id": "c0be93a93e63410ca95863f60b014cff",
"to_name": null,
"type": null,
"value": {
"end": 9141,
"labels": [
"RPC"
],
"start": 9091,
"text": "\n11. Appeal stands disposed of, in above terms."
}
},
{
"from_name": null,
"id": "49f5603bcec74ace9b3eecd7e02eaf9c",
"to_name": null,
"type": null,
"value": {
"end": 9208,
"labels": [
"NONE"
],
"start": 9141,
"text": "\n G.S.SISTANI, J SANGITA DHINGRA SEHGAL, J JANUARY 30, 2015 gr /ssn"
}
}
]
}
] | 4,218 | {
"text": "* IN THE HIGH COURT OF DELHI AT NEW DELHI\n+ CRIMINAL APPEAL No.1399/2012\n\n% Date of decision : 30th January, 2015\n\nANGOORI DEVI ………. APPELLANT\n Through : Mr. Ajay Burman, Advocate, Mr.Aditya\n Swarup Agarwal and Mr. Harsit\n Khurana, Advocate\n\n versus\nSTATE ……….RESPONDENT\n Through : Mr. Firoz Khan Ghazi, APP for the State\n with SI Roshan Lal, Police Station –\n Nangloi.\n\nCORAM :\n\n HON’BLE MR. JUSTICE G. S. SISTANI\n HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL\n\nJUDGMENT (ORAL) 1. The present appeal arises out of the judgment dated 10.09.2012 and order on sentence dated 25.09.2012 by which the present appellant who is mother-in-law of the deceased, has been sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.25,000/-, in default of payment of fine, the appellant had been directed to undergo simple imprisonment for two months for the offence punishable under Section 498-A Indian Penal Code.\n2. Before the rival submissions of the parties can be considered, the case of the prosecution as set out by the trial court is as under: “(2) The case of the prosecution is that on 28.04.2007 DD No.65-B was received in the Police Station Nangloi regarding the fact that Anita W/o. Manoj 7Kumar was got admitted in RML Hospital. Pursuant to the said information S.I. Raghuvir Singh reached RML Hospital and collected the MLC of Anita who was declared „brought dead‟ by the doctors. One Kuldeep Singh Dalal the brother of the deceased met SI Raghuvir Singh who informed him that the marriage of his sister Anita was solemnized with Manoj Kumar in the year 2001. Since the death was causing within seven years of marriage, information was sent to SDM Punjabi Bagh and the dead body was got preserved at Mortuary.\n On 29.4.2007 the parents of the deceased i.e. Amir Singh (Father), Satwanti Devi (Mother) and Kuldeep Singh Dalal (Brother) were called by the SDM who recorded their statements.\n (3) The father of the deceased namely Amir Singh Dalal informed the SDM that the deceased Anita who was his youngest daughter, was married to Manoj Kumar on 2.4.2001 according to Hindu rites and customs and they had given dowry as per his capacity. According to Amir Singh Dalal, at that time accused Manoj was running a shop whereas his daughter Anita was working in RML Hospital as Staff Nurse and was earning Rs.15,000/- at that time and Rs.20,000/- at the time of her death.\n He further informed the SDM that after the marriage accused Manoj started consuming liquor and closed his shop on account of which the entire household affairs was running from the salary of her daughter Anita and Manoj started bearing Anita on account of dowry demands and used to torture Anita. Amit Singh Dalal alleged that the accused Manoj withdrew large amount from the GPF account of Anita and spent the same on his bad habits and all the family members of accused Manoj i.e. his mother Angoori Devi, his younger brother Vinod and the wife of his younger brother Shalu started beating to Anita on account of demand of dowry pursuant to which they (Amir Singh Dalal and his family members) visited the house of Anita on many occasions and made efforts to make the accused understand but the beatings to his daughter did not stop. According to Amir Singh Dalal, at last on 28.4.2001 all the accused committed murder of Anita.\n (4) On the basis of the statement of Amir Singh Dalal, the present case was got registered. On 18.5.2007 the accused Manoj and Vinod were arrested on 19.5.2007 the accused Angoori Devi was arrested and on 29.8.2007 the accused Shalu surrendered in the Police Station after which she was arrested. Pursuant to the arrest of accused Shahu, she got recovered the weapon of offence i.e. Thapi with which all the accused inflicted injuries upon Anita.\n After completion of investigation charge sheet was filed against all the accused namely, Manoj, Vinod, Angoori Devi and Shalu.” 3. In order to prove its case, the prosecution has examined as many as 32 witnesses. We may also notice that a separate appeal has already been filed by the husband of the deceased, who has been convicted under Section 302 of the Indian Penal Code. The State has placed reliance on the evidence of PW-2, brother of the deceased; PW-3, mother of the deceased; PW-5, PW-7 PW-8, who are the colleagues of the deceased; PW-9 the real sister of the deceased. MLC has been proved by Dr.Sunil Saxena, PW-10.\n4. At the outset, Mr. Ajay Burman, learned counsel for the appellant submits that the appellant has already undergone the sentence awarded to her i.e. about 1 year 2 months out of the three years and the unexpired portion of the sentence is approximately 1 year 9 months. Mr. Burman further submits that the appellant does not wish to contest the matter on merit but prays that the order of sentence be modified to the period already undergone. Mr. Burman further submits that the appellant is a cancer patient and an old lady of more than 77 years of age and has never been convicted for any offence in the past.\n5. It is also contended by Mr.Burman that in fact allegations made against the appellant are general in nature and no specific role has been assigned to her. He further submits that the appellant has been dragged into the matrimonial dispute between the deceased and her husband, who has been convicted under Section 302 Indian Penal Code and has been awarded life imprisonment. He further submits that upon reading of the evidence of the witnesses PW2 Kuldeep Singh Dalal, who is the father of the deceased, PW3 Satwanti Devi, mother of the deceased and PW9 Vandana Rathi, younger sister of the deceased would show that there are material contradictions in their testimony. It s also contended that PW2 Kuldeep Singh Dalal in his complaint dated 28 th/29th April, 2001, Ex.PW2/A has not levelled allegation regarding harassment and cruelty against above appellant and other family members. This witness also during his cross examination neither disclosed the dates and events of the harassment and cruelty nor such details were provided in the statement under Section 161 Code of Criminal Procedure, which would show that all the close family members being interested witnesses had made excoriated and material improvements in their testimony.\n6. Another argument advanced by Mr. Burman is that PW2 Satwanti Devi has made material improvements in her testimony although in the statement dated 29.04.2012 Ex.PW3/A given before Sub-Divisional Magistrate wherein she had not levelled allegation regarding harassment and cruelty against the above appellant, Angoori Devi. Mr. Burman also submits that the basic case of the prosecution is that after marriage, the husband of the deceased had left his job and was living on the salary of his wife, who was employed as Nurse in a government hospital. It is also a case of the prosecution that the husband of the deceased was involved in a criminal case and his family members had put immense pressure on the deceased to arrange money for the purpose of engaging a lawyer and to secure bail for her husband. It is also contended that the appellant had no role to play and has been falsely implicated.\n7. Mr. Firoz Khan Ghazi, learned APP for the State submits that the Learned Trial Court has awarded maximum punishment to the present appellant based on her role ascribed, which duly proved.\n8. We have heard counsel for both the parties and carefully examined the evidence on record. The judgment on conviction has not been challenged. Mr. Burman has only prayed for modification in the order of sentence keeping in view the age and health of the appellant.\n9. In the case of Ram Das Singh & Ors. Vs. State of Bihar reported at JT 2000 (9) SC 569, the Apex Court while considering the age of the appellant, who was 80 years of age, reduced the sentence to the period already undergone. Similar view was taken by the Supreme Court in a recent decision rendered in the case of Gurdip Singh Vs. State of Punjab reported at (2013) 10 SCC 395, wherein the court took into consideration the late evening age of the appellant and reduced the sentence already undergone.\n10. Having regard to the submissions made and more particularly that the appellant is an old lady of more than 77 years of age suffering from cancer, is on the ventilator, the first time offender and has already undergone the sentence of about 1 year 2 months out of three years awarded to her and fine also stands deposited, the appeal is partly allowed. The order of sentence is modified to the period already undergone. Bail bond be cancelled and the surety stands discharged.\n11. Appeal stands disposed of, in above terms.\n G.S.SISTANI, J SANGITA DHINGRA SEHGAL, J JANUARY 30, 2015 gr /ssn "
} |
{
"group": "Criminal"
} | [
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"text": " IN THE HIGH COURT OF JUDICATURE AT BOMBAY"
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"text": "\n NAGPUR BENCH : NAGPUR\n\n "
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"text": "Criminal Application No.1173 of 2010"
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"text": "\n\nVilas s/o Rambhau Majrikar, .... Applicant."
}
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"text": "\naged 53 years, Occ.service,\nDeputy Regional Transport Officer,\nr/o.Plot No.202, Balkrishna Apartment,\nLaxmi Nagar, Nagpur"
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"text": "\nthrough Police Station Officer,\nUmrer Police Station, Umrer,"
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"text": "\n\n[Shri A.S. Mardikar, Sr. Advocate as Amicus Curiae."
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"text": "\nAssisted by Shri R.S. Parsodkar, Adv. for applicant."
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"text": "\nShri S.V. Manohar, Advocate General."
}
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"text": "\nSmt. B.H. Dangre, Public Prosecutor for State.]"
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"text": "With\n\n "
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"text": "Criminal Application No.1249 of 2010"
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"text": "Ramesh s/o Rambhauji Majrikar, "
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"text": ".... Applicant."
}
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"start": 855,
"text": "\naged 59 years, Occ.service,\nChief Executive Officer,\nHingoli Zilla Parishad, Hingoli,\nr/o.Hingoli.\n\nVersus\n\n\nState of Maharashtra, "
}
},
{
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"text": ".... Non applicant."
}
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"value": {
"end": 1173,
"labels": [
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"start": 1042,
"text": "through Police Station Officer,\n\nUmrer Police Station, Umrer,\nDistrict Nagpur.\n\n[Shri A.S. Mardikar, Sr. Advocate as Amicus Curiae."
}
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{
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"id": "c21f59e508b34f8ba5f52c670cc51839",
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"text": "\nAssisted by Shri R.S. Parsodkar, Adv. for applicant."
}
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"id": "a42df74359b3448cb4451b09872a18af",
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"text": "\nShri S.V. Manohar, Advocate General."
}
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{
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"id": "a0f45f9a0e0f45f4b02bd72c394fe263",
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"end": 1506,
"labels": [
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"start": 1263,
"text": "\nSmt. B.H. Dangre, Public Prosecutor for State.]\n\n With\n\n Criminal Application No.1944 of 2010\n\nManohar Bhaurao Majrikar, .... Applicant."
}
},
{
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"id": "46ac5be0b7014f998efcbc022c6d5244",
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"text": "\naged 50 years, Occ.service,"
}
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"value": {
"end": 1583,
"labels": [
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"text": " .... Non applicant."
}
},
{
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"id": "64254826aa78472498102aac535ee594",
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"type": null,
"value": {
"end": 1754,
"labels": [
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"start": 1583,
"text": "\nr/o.MSTCL, Nashik, permanent resident of\nUmer, District Nagpur.\nVersus\nState of Maharashtra,\nthrough Police Station Officer,\nUmrer Police Station, Umrer,\nDistrict Nagpur."
}
},
{
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"id": "a5db9fc3d3a947e8883f496498579f64",
"to_name": null,
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"value": {
"end": 1807,
"labels": [
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"start": 1754,
"text": "\n\n[Shri A.S. Mardikar, Sr. Advocate as Amicus Curiae."
}
},
{
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"id": "c221917ee24c40b39d2d9b767a341320",
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"type": null,
"value": {
"end": 1860,
"labels": [
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],
"start": 1807,
"text": "\nAssisted by Shri R.S. Parsodkar, Adv. for applicant."
}
},
{
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"id": "16a8ffcb1e754c10b148d5a95a5844d9",
"to_name": null,
"type": null,
"value": {
"end": 1897,
"labels": [
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"start": 1860,
"text": "\nShri S.V. Manohar, Advocate General."
}
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{
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"value": {
"end": 1945,
"labels": [
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"start": 1897,
"text": "\nSmt. B.H. Dangre, Public Prosecutor for State.]"
}
},
{
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"id": "8b342ba3d3464494bda0cd397097fbcb",
"to_name": null,
"type": null,
"value": {
"end": 2494,
"labels": [
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],
"start": 1981,
"text": "With\n\nCriminal Application (APL) No.4 of 2014\n\nKhushal s/o Gomaji Neware, .... Applicant.\naged 39 years, Occ.Gramsevak,\nGrampanchayat Rangi, P.S. Dhanora,\nDistrict Gadchiroli.\n\n 3 (Amendment carried out\n as per Courts order\n Versus dated 11022014)\n\n1] State of Maharashtra, .... Non applicants."
}
},
{
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"id": "590548a817f542d5be04e45aae87942e",
"to_name": null,
"type": null,
"value": {
"end": 2565,
"labels": [
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"start": 2499,
"text": "through Police Station Officer,\n Kurkheda, District Gadchiroli."
}
},
{
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"id": "7dc50567975543f7a2de4c0e5c4b043a",
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"type": null,
"value": {
"end": 2631,
"labels": [
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],
"start": 2567,
"text": "2] Joint Commissioner &\n Vice Chairman, Scheduled Tribes\n "
}
},
{
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"id": "b4cceac4a09e4232bf4cd902c6b73134",
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"type": null,
"value": {
"end": 2642,
"labels": [
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],
"start": 2631,
"text": "Certificate"
}
},
{
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"id": "dc59c754983641d08248562a8cf08f24",
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"value": {
"end": 2661,
"labels": [
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],
"start": 2643,
"text": "Scrutiny Committee"
}
},
{
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"value": {
"end": 2677,
"labels": [
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"text": ",\n Gadchiroli"
}
},
{
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"type": null,
"value": {
"end": 2735,
"labels": [
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],
"start": 2677,
"text": ".\n\n3] Sunil s/o Dayaram Uikey,\n Vigilance Officer,\n "
}
},
{
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"id": "d5f09483989b4d91a5cf7879ebb9a869",
"to_name": null,
"type": null,
"value": {
"end": 2799,
"labels": [
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],
"start": 2735,
"text": "Scheduled Tribes Certificate Scrutiny\n Committee, Gadchiroli."
}
},
{
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"id": "e91231cb00dd45b5a28962991940db02",
"to_name": null,
"type": null,
"value": {
"end": 2852,
"labels": [
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],
"start": 2801,
"text": "[Shri A.S. Mardikar, Sr. Advocate as Amicus Curiae."
}
},
{
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"id": "555f712c03ec41b4897c132680117e87",
"to_name": null,
"type": null,
"value": {
"end": 2905,
"labels": [
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],
"start": 2852,
"text": "\nAssisted by Shri R.S. Parsodkar, Adv. for applicant."
}
},
{
"from_name": null,
"id": "8b04c22743214ecd8ef29d66e76b5f6b",
"to_name": null,
"type": null,
"value": {
"end": 2942,
"labels": [
"PREAMBLE"
],
"start": 2905,
"text": "\nShri S.V. Manohar, Advocate General."
}
},
{
"from_name": null,
"id": "76c0819390224c94862a8b8f6142b24b",
"to_name": null,
"type": null,
"value": {
"end": 3439,
"labels": [
"PREAMBLE"
],
"start": 2942,
"text": "\nSmt. B.H. Dangre, Public Prosecutor for State.]\n\n With\n\n Criminal Application (APL) No.42 of 2014\n\nJitendra Wasudeo Kadhikhaye, .... Applicant.\naged 36 years, Occ. Service as Gramsevak,\nr/o.Tilak Nagar, Brahmapuri,\nDistrict Chandrapur.\n\nVersus\n1] State of Maharashtra,\n\n through Police Station Brahmapuri,\n District Chandrapur.\n\n 4 ...."
}
},
{
"from_name": null,
"id": "8ddde31d1e184e02ac42c537965aed4f",
"to_name": null,
"type": null,
"value": {
"end": 3455,
"labels": [
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],
"start": 3440,
"text": "Non applicants."
}
},
{
"from_name": null,
"id": "e2743e4f45654c3baf2624eaf2e70977",
"to_name": null,
"type": null,
"value": {
"end": 3556,
"labels": [
"PREAMBLE"
],
"start": 3457,
"text": "2] Scheduled Tribe Certificate\n Scrutiny Committee, Gadchiroli,\n through its Vice Chairman."
}
},
{
"from_name": null,
"id": "ae9e895b4b7b4557a73f1a8dd149d980",
"to_name": null,
"type": null,
"value": {
"end": 3602,
"labels": [
"PREAMBLE"
],
"start": 3558,
"text": "[Shri Amit Balpande, Advocate for applicant."
}
},
{
"from_name": null,
"id": "475568ac9b024caf96a2e9cbf0498a8b",
"to_name": null,
"type": null,
"value": {
"end": 3656,
"labels": [
"PREAMBLE"
],
"start": 3602,
"text": "\nSmt. S.S. Jachak, Addl. Public Prosecutor for State.]"
}
},
{
"from_name": null,
"id": "9581439b105b418fb15929173dc6288b",
"to_name": null,
"type": null,
"value": {
"end": 3800,
"labels": [
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],
"start": 3671,
"text": "CORAM : A.B. CHAUDHARI &\n P.N. DESHMUKH, JJ.\n\n Date of reserving the judgment :24/04/2015."
}
},
{
"from_name": null,
"id": "e9105bca3c914b8e9c7926e696ca5b0c",
"to_name": null,
"type": null,
"value": {
"end": 3903,
"labels": [
"PREAMBLE"
],
"start": 3814,
"text": "Date of pronouncing the judgment : 22/06/2015.\n\nJ U D G M E N T [ Per A.B. Chaudhari, J.]"
}
},
{
"from_name": null,
"id": "7233e850808b407aa5a9a2e0b6cda301",
"to_name": null,
"type": null,
"value": {
"end": 3977,
"labels": [
"NONE"
],
"start": 3904,
"text": "1] Rule in Criminal Application (APL) No.42 of 2014.\n 2] "
}
},
{
"from_name": null,
"id": "59ec9e5208534450acc9a2eeff0b473f",
"to_name": null,
"type": null,
"value": {
"end": 4106,
"labels": [
"NONE"
],
"start": 3977,
"text": "All these applications were heard together since common questions of law are involved and are disposed of by the common judgment."
}
},
{
"from_name": null,
"id": "8194899f73c245db85b1c638c2e39449",
"to_name": null,
"type": null,
"value": {
"end": 4700,
"labels": [
"FAC"
],
"start": 4108,
"text": "3] By order dated 09012015, prima faice, we found that sub section (2) of Section 11 of the Maharashtra Scheduled Castes, Scheduled Tribes, DeNotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 [for short, `the Act of 2000'], does not contemplate filing of case by the Police Officer in accordance with Chapter XII of the Code of Criminal Procedure but contemplates the filing of a complaint case in accordance with Chapter XV of the Code of Criminal Procedure."
}
},
{
"from_name": null,
"id": "a017dae04aa3437eb670e4404b9faa94",
"to_name": null,
"type": null,
"value": {
"end": 4999,
"labels": [
"FAC"
],
"start": 4701,
"text": "Thereafter, these applications were heard from time to time and looking to the important issues involved and the filing of number of F.I.Rs in the Police Station and the chargesheets in the Court i.e. the police cases, this Court had heard the learned Advocate General for the State of Maharashtra."
}
},
{
"from_name": null,
"id": "299fb4bbe15b487c9f03c4acb5d4b3f7",
"to_name": null,
"type": null,
"value": {
"end": 5306,
"labels": [
"FAC"
],
"start": 5001,
"text": "4] The facts in all these cases are almost identical and in nutshell are stated as under : All these applicants claimed to be belonging to Scheduled Tribe on the basis of certificates in their favour which were issued to them admittedly before 23052001 i.e. the date when the Act of 2000 came into force."
}
},
{
"from_name": null,
"id": "2b19add6496a4fb9ae2954cba6f31936",
"to_name": null,
"type": null,
"value": {
"end": 5600,
"labels": [
"FAC"
],
"start": 5307,
"text": "The Scheduled Tribes Caste Scrutiny Committee had verified the caste claim of all these applicants and came to the conclusion that in all these cases the applicants or the candidates before the Committee had failed to establish the affinity and the ethnic linkage with `Halba Scheduled Tribe'."
}
},
{
"from_name": null,
"id": "a67df4c4ad7b4552a3c34a88d8cf0e5b",
"to_name": null,
"type": null,
"value": {
"end": 5850,
"labels": [
"FAC"
],
"start": 5601,
"text": "By making an order after adjudication the Committee then in its order itself made a reference to Section 10(1) of the Act of 2000, by which the benefits enjoyed or taken by virtue of the appointment in the Scheduled Tribes category can be withdrawn."
}
},
{
"from_name": null,
"id": "dda91f0035934b8daf6719984c13e5ad",
"to_name": null,
"type": null,
"value": {
"end": 5966,
"labels": [
"FAC"
],
"start": 5851,
"text": "The Committee then referred to Sections 11(1)(a), 11(1)(b) and Section 11(2) of the Act of 2000 in its final order."
}
},
{
"from_name": null,
"id": "31183099c8eb4c52b523f418fe776370",
"to_name": null,
"type": null,
"value": {
"end": 6015,
"labels": [
"FAC"
],
"start": 5967,
"text": "Para no.36 of this order reads as under : \"36) "
}
},
{
"from_name": null,
"id": "8318acf5753e44bf9de1210517ed3789",
"to_name": null,
"type": null,
"value": {
"end": 6133,
"labels": [
"FAC"
],
"start": 6015,
"text": "Therefore the Scrutiny Committee vide the powers vested in it under section 11(2) of the Maharashtra Scheduled Castes."
}
},
{
"from_name": null,
"id": "c205ed026de54928a20467e4c563e831",
"to_name": null,
"type": null,
"value": {
"end": 6638,
"labels": [
"FAC"
],
"start": 6134,
"text": "Scheduled Tribes, DeNotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (Maharashtra Act No. XXIII of 2001), hereby authorises Shri N.Z. Kumre, the Deputy Superintendent of Police of the Police Vigilance Cell, Scheduled Tribe Certification Scrutiny Committee, Nagpur to lodge a complaint in the form of F.I.R. with the concern Police Station against Shri Vilas Rambhauji Majrikar.\""
}
},
{
"from_name": null,
"id": "09fb26dc4741449297e16cb3621064eb",
"to_name": null,
"type": null,
"value": {
"end": 6938,
"labels": [
"FAC"
],
"start": 6638,
"text": "\n 5] The Committee thereafter went ahead and referred to Section 13(1) of the said Act and found that the competent authority issuing caste certificate dated 28051984 in case of applicant Vilas Rambhauji Majrikar was also required to be prosecuted after obtaining sanction from the State Government."
}
},
{
"from_name": null,
"id": "7d90e57d66d34950aaf17c466edd96a7",
"to_name": null,
"type": null,
"value": {
"end": 7017,
"labels": [
"FAC"
],
"start": 6939,
"text": "We quote para no.37 of the said order in that context, which reads thus : \"37)"
}
},
{
"from_name": null,
"id": "e572df2efba840d6a8023adcb0cc5829",
"to_name": null,
"type": null,
"value": {
"end": 7488,
"labels": [
"FAC"
],
"start": 7019,
"text": "According to Section 13 (1) of the Maharashtra Scheduled Castes, Scheduled Tribes, DeNotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (Maharashtra Act No. XXIII of 2001), any person or authority performing the function of Competent Authority under this Act, who intentionally issues a false Caste Certificate, shall on conviction, be punished."
}
},
{
"from_name": null,
"id": "72a9279c9a8545159aff7fb61e214a5f",
"to_name": null,
"type": null,
"value": {
"end": 7762,
"labels": [
"FAC"
],
"start": 7489,
"text": "According to Rule 4(9) of the Maharashtra Scheduled Tribes (Regulation of Issuance of Verification of) Certificate Rules, 2003, the competent authority should have conducted the enquiry in respect of elderly blood relation and forefathers pertaining to school, land record."
}
},
{
"from_name": null,
"id": "f1a7fbd61e4546e39730526c599f5863",
"to_name": null,
"type": null,
"value": {
"end": 8124,
"labels": [
"FAC"
],
"start": 7763,
"text": "But in the present case the Competent Authority did not do so, and therefore the Scrutiny Committee decides to grant hearing to the Caste Certificate issuing Executive Magistrate, Umred, Distt. Nagpur and then obtain the sanction of the State Government in the Revenue Department to file a complaint against the said Executive Magistrate, Umred, Distt. Nagpur.\""
}
},
{
"from_name": null,
"id": "de622706564440ea817ca581dffbd634",
"to_name": null,
"type": null,
"value": {
"end": 8134,
"labels": [
"ISSUE"
],
"start": 8124,
"text": "\n 6] "
}
},
{
"from_name": null,
"id": "17dea023b70d483794d8d59b1f63182f",
"to_name": null,
"type": null,
"value": {
"end": 8189,
"labels": [
"ISSUE"
],
"start": 8134,
"text": "As earlier stated similar are the facts in other cases."
}
},
{
"from_name": null,
"id": "145206a2e5c940e5b3e0e30cbe19caaa",
"to_name": null,
"type": null,
"value": {
"end": 8457,
"labels": [
"ISSUE"
],
"start": 8190,
"text": "After hearing the learned Counsel for the rival parties and the learned Advocate General, we framed the following two questions on 09012015 in the light of the above facts and in view of submissions made before us in order to concentrate on the legal issues involved."
}
},
{
"from_name": null,
"id": "e270639ed87d494fb568fad5529c064f",
"to_name": null,
"type": null,
"value": {
"end": 9562,
"labels": [
"ISSUE"
],
"start": 8457,
"text": "\n Two questions : \"1] In the wake of Section 11(2) read with Section 12 of the Maharashtra Scheduled Castes, Scheduled Tribes, De Notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000, whether the Police Station Officer acting under Section 154 of the Code of Criminal Procedure can register an offence under Section 12 of the Act when Section 11(2) contemplates filing of a private complaint by Scrutiny Committee or its authorised officer ?\n 2] Whether a caste certificate obtained before 23rd May, 2001 i.e. prior to coming into force of Maharashtra Scheduled Castes, Scheduled Tribes, DeNotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000, if found to be false or obtained by any other fraudulent means could attract the offence under Section 11, or under Section 13 of the Act which makes issuance of false caste certificate punishable?\""
}
},
{
"from_name": null,
"id": "707e6327ebbc4c0dbb18838c130d4f72",
"to_name": null,
"type": null,
"value": {
"end": 9576,
"labels": [
"NONE"
],
"start": 9562,
"text": "\n Arguments 7]"
}
},
{
"from_name": null,
"id": "c4944f71809d44a8addae779db638d18",
"to_name": null,
"type": null,
"value": {
"end": 9862,
"labels": [
"ARG_PETITIONER"
],
"start": 9576,
"text": " In support of the applications Shri R.S. Parsodkar, the learned Counsel for the applicants submitted that the caste certificates in favour of the applicants in all these cases were issued by the competent authority admittedly before 23052001 i.e. when the Act of 2000 came into force."
}
},
{
"from_name": null,
"id": "5c731bc56769480d91a4fc700d0b31be",
"to_name": null,
"type": null,
"value": {
"end": 10222,
"labels": [
"ARG_PETITIONER"
],
"start": 9863,
"text": "When the caste certificates were issued the provisions regarding law as to the criminal offences under Sections 10(1), 11, 12 or 13 did not exist because the Act of 2000 itself came into force with effect from 23052001 and therefore no criminal offences could be alleged either against the applicants or the competent authority issuing the caste certificates."
}
},
{
"from_name": null,
"id": "6d9d35c5f4fc479f90dba2e2461ab8d2",
"to_name": null,
"type": null,
"value": {
"end": 10569,
"labels": [
"ARG_PETITIONER"
],
"start": 10223,
"text": "Shri R.S. Parsodkar, the learned Counsel then argued that the practice adopted by the Scrutiny Committee after invalidating the claim of the candidates for Scheduled Tribes is to direct its officer to file F.I.R. with the Police Station under the above provisions of the Act of 2000 merely because the caste claim is not proved by the candidates."
}
},
{
"from_name": null,
"id": "90e8d40b632f463e91f5974f33572c26",
"to_name": null,
"type": null,
"value": {
"end": 10955,
"labels": [
"ARG_PETITIONER"
],
"start": 10569,
"text": "\n According to him, failure to prove the caste claim for want of evidence or for any other reason would not automatically constitute offence under the Act of 2000 and in these cases the Committee has not recorded any finding about obtaining any false certificate or by fraudulent means nor that the competent authority issuing certificate did so fraudulently or with criminal intention."
}
},
{
"from_name": null,
"id": "beb30527f1ea455da950605e616456ba",
"to_name": null,
"type": null,
"value": {
"end": 11243,
"labels": [
"ARG_PETITIONER"
],
"start": 10956,
"text": "Shri R.S. Parsodkar, the learned Counsel then argued that at any rate the caste certificate issued by the competent authority before coming into force of the Act of 2000 even if it is found to be wrong, Section 13 is not attracted as the said section cannot have retrospective operation."
}
},
{
"from_name": null,
"id": "3ddadb44398f42499097ec84cffdd5c6",
"to_name": null,
"type": null,
"value": {
"end": 11482,
"labels": [
"ARG_PETITIONER"
],
"start": 11244,
"text": "The learned Counsel for the applicants then argued that though the offences have been made nonbailable and cognizable, but looking to the language of Section 11(2), what is contemplated is a private complaint case and not the police case."
}
},
{
"from_name": null,
"id": "dd08e182f52b48fd852e942166db12a1",
"to_name": null,
"type": null,
"value": {
"end": 11596,
"labels": [
"ARG_PETITIONER"
],
"start": 11483,
"text": "The Counsel for the applicants therefore prayed for quashing of F.I.R. and the criminal cases filed against them."
}
},
{
"from_name": null,
"id": "770c9d6bfec44ef58aee75b2f021ca3a",
"to_name": null,
"type": null,
"value": {
"end": 11741,
"labels": [
"NONE"
],
"start": 11596,
"text": "\n 8] Per contra, Shri Sunil V. Manohar, the learned Advocate General with Smt. B.H. Dangre, the learned Public Prosecutor addressed this Court."
}
},
{
"from_name": null,
"id": "e6f5fefba75c42a89f893a05f45b0c34",
"to_name": null,
"type": null,
"value": {
"end": 11973,
"labels": [
"ARG_RESPONDENT"
],
"start": 11742,
"text": "In fairness the learned Advocate General referred to Article 20(1) of the Constitution of India so also a English decision in the case of Noss Farm Products, Limited vs Lilico, decided on June 7, 1945, reported at K.B.D. Vol.2 609."
}
},
{
"from_name": null,
"id": "6f8ebc938a01410dbc39d83d203085a6",
"to_name": null,
"type": null,
"value": {
"end": 12136,
"labels": [
"ARG_RESPONDENT"
],
"start": 11974,
"text": "Shri S.V. Manohar, the learned Advocate General thus stated the legal position that Act providing for the offences punishable do not have retrospective operation."
}
},
{
"from_name": null,
"id": "73f04bfaa0dd475b87540082a6290529",
"to_name": null,
"type": null,
"value": {
"end": 12283,
"labels": [
"ARG_RESPONDENT"
],
"start": 12137,
"text": "He also pointed out that the offences under Section 11 of the said Act have been made cognizable and nonbailable by putting an nonabstante clause."
}
},
{
"from_name": null,
"id": "cb3e5caa2d2b4247b3536958e56e1b02",
"to_name": null,
"type": null,
"value": {
"end": 12440,
"labels": [
"ARG_RESPONDENT"
],
"start": 12284,
"text": "The question whether the police case could be filed or not will have to be examined in the light of Section 11(b) of the said Act, this being a special Act."
}
},
{
"from_name": null,
"id": "7ea5dfa76b4a427cb781ff9ea14fd253",
"to_name": null,
"type": null,
"value": {
"end": 12607,
"labels": [
"NONE"
],
"start": 12440,
"text": "\n Consideration 9] We have heard the learned Counsel for the rival sides at length in the light of the facts quoted by us above and the questions framed by us above."
}
},
{
"from_name": null,
"id": "31992221a8dd41798d69adf4bd9b2a88",
"to_name": null,
"type": null,
"value": {
"end": 12660,
"labels": [
"NONE"
],
"start": 12608,
"text": "We proceed to deal with the same here as under : 10]"
}
},
{
"from_name": null,
"id": "ce082dd66eb34422b71745ababa43062",
"to_name": null,
"type": null,
"value": {
"end": 13074,
"labels": [
"STA"
],
"start": 12662,
"text": "Article 20(1) of the Constitution of India reads thus : \"Art.20. Protection in respect of conviction for offence (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.\"\n "
}
},
{
"from_name": null,
"id": "3da4159c2eb246dea3ab090967aaf461",
"to_name": null,
"type": null,
"value": {
"end": 13190,
"labels": [
"ANALYSIS"
],
"start": 13074,
"text": "The above constitutional guarantee shows prohibition to make the previsions for offences in any law retrospectively."
}
},
{
"from_name": null,
"id": "ee42b8bd7fd9405082144642844ddda0",
"to_name": null,
"type": null,
"value": {
"end": 14144,
"labels": [
"STA"
],
"start": 13190,
"text": "\n 11] Section 10(1) of the Act of 2000 reads thus : \"10(1) However not being a person belonging to any of the Scheduled Castes, Scheduled Tribes, Denotified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category secures admission in any educational institution against a seat reserved for such Castes, Tribes or Classes, or in any other Company or Corporation, owned or controlled by the Government or in any Government aided institution or Cooperative Society against a post reserved for such Castes, Tribes or Classes by producing a false Caste Certificate shall, on cancellation of the Caste Certificate by the Scrutiny Committee, be liable to be debarred from the concerned educational institution, or as the case may be, discharged from the said employment forthwith and any other benefits enjoyed or derived by virtue of such admission or appointment by such person as aforesaid shall be withdrawn forthwith.\""
}
},
{
"from_name": null,
"id": "f12dcb5ade56422fa3aac88a0a26aed1",
"to_name": null,
"type": null,
"value": {
"end": 14283,
"labels": [
"ANALYSIS"
],
"start": 14144,
"text": "\n 12] The above provision, thus, clearly provides enabling the power to withdraw the benefits secured on the basis of false certificate.\n "
}
},
{
"from_name": null,
"id": "9e3d23a9c09c45b3bb48650bf5343f5f",
"to_name": null,
"type": null,
"value": {
"end": 14416,
"labels": [
"STA"
],
"start": 14283,
"text": "The next provision is Section 11 of the Act of 2000 which is reproduced below in its entirety as under : \"11. Offences and penalties."
}
},
{
"from_name": null,
"id": "a999241d39fc4946b4ce206e6341256c",
"to_name": null,
"type": null,
"value": {
"end": 15597,
"labels": [
"STA"
],
"start": 14416,
"text": "\n (1) Whoever, (a) obtain a false Caste Certificate by furnishing false information or filing false statement or documents or by any other fraudulent means; or (b) not being a person belonging to any of the Scheduled Castes, Scheduled Tribes, Denotified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category secures any benefits or appointments exclusively reserved for such Castes, Tribes or Classes in the Government, local authority or any other company or corporation owned or controlled by the Government or in any Government aided institution, or secures admission in any educational institution against a seat exclusively reserved for such Castes, Tribes or Classes or is elected to any of the elective offices of any local authority or Cooperative Society against the office, reserved for such Castes, Tribes or Classes by producing a false Caste Certificate; shall, on conviction, be punished, with rigorous imprisonment for a term which shall not be less than six months but which may extent up to two years or with fine which shall not be less than two thousand rupees, but which may extend up to twenty thousand rupees or both."
}
},
{
"from_name": null,
"id": "d94cc384771d4d598649b742ffc95dee",
"to_name": null,
"type": null,
"value": {
"end": 15831,
"labels": [
"STA"
],
"start": 15597,
"text": "\n (2) No court shall take cognizance of an offence punishable under this section except upon a complaint, in writing, made by the Scrutiny Committee or by any other officer duly authorized by the Scrutiny Committee for this purpose.\""
}
},
{
"from_name": null,
"id": "0e37898359904cebb66e32009a3261cb",
"to_name": null,
"type": null,
"value": {
"end": 16001,
"labels": [
"STA"
],
"start": 15833,
"text": "13] It is clear from Section 11(1)(a) that obtaining a false caste certificate by furnishing false information etc or by any other fraudulent means is an offence."
}
},
{
"from_name": null,
"id": "bb5ee017da1e460eb947bbb20cbbedf5",
"to_name": null,
"type": null,
"value": {
"end": 16168,
"labels": [
"STA"
],
"start": 16002,
"text": "Section 11(1)(b) relates to production of false certificate for obtaining benefits by a person not belonging to such reserved category which has been made an offence."
}
},
{
"from_name": null,
"id": "93ed64145a684974abc4568f39acf2b4",
"to_name": null,
"type": null,
"value": {
"end": 16262,
"labels": [
"STA"
],
"start": 16169,
"text": "The sentence provided is not less than six months which may extend to two years or with fine."
}
},
{
"from_name": null,
"id": "11e875988a584f6b8d475ba90eaa95bd",
"to_name": null,
"type": null,
"value": {
"end": 16341,
"labels": [
"STA"
],
"start": 16263,
"text": "Subsection (2) of Section 11 provides a procedure for filing of criminal case."
}
},
{
"from_name": null,
"id": "40b883fea1a24324951922158cd2ecb2",
"to_name": null,
"type": null,
"value": {
"end": 16447,
"labels": [
"STA"
],
"start": 16342,
"text": "Subsection (2) of Section 11 provides that no Court shall take cognizance of offences under this section."
}
},
{
"from_name": null,
"id": "9786ca4430ce4add9e7366784d387d5e",
"to_name": null,
"type": null,
"value": {
"end": 16590,
"labels": [
"STA"
],
"start": 16448,
"text": "It provides that upon filing of a compliant in writing made by the Scrutiny Committee or its authorized officer the Court may take cognizance."
}
},
{
"from_name": null,
"id": "264287f10083411799dcaaf6a9fec450",
"to_name": null,
"type": null,
"value": {
"end": 16893,
"labels": [
"ANALYSIS"
],
"start": 16591,
"text": "This clearly means that what is contemplated is filing of a private case by a Scrutiny Committee or its authorized officer in accordance with Chapter XV of the Code of Criminal Procedure and it does not contemplate filing of police case in accordance with Chapter XII of the Code of Criminal Procedure."
}
},
{
"from_name": null,
"id": "b7807ef55425417d81d64cca99c8eb3b",
"to_name": null,
"type": null,
"value": {
"end": 17008,
"labels": [
"STA"
],
"start": 16893,
"text": "\n 14] Section 12 of the Act of 2000, reads thus : \"12. Offences under Act to be cognizable and non bailable."
}
},
{
"from_name": null,
"id": "e4579bef0b984f828c0ba5fb372b0a09",
"to_name": null,
"type": null,
"value": {
"end": 17418,
"labels": [
"STA"
],
"start": 17009,
"text": " Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (a) offences punishable under section 11 shall be cognizable and nonbailable; (b) every offence punishable under this Act, shall be tried by any Magistrate of First Class in a summary way and provisions of sections 262 except sub section (2) to 265 both inclusive of this Code, shall as far as possible may be applied to such trial.\""
}
},
{
"from_name": null,
"id": "ae44fec7f6fa468eb2b81acf128b77d5",
"to_name": null,
"type": null,
"value": {
"end": 17424,
"labels": [
"ANALYSIS"
],
"start": 17418,
"text": "\n 15] "
}
},
{
"from_name": null,
"id": "b4aa1bf91bb943628cbf57455ea60675",
"to_name": null,
"type": null,
"value": {
"end": 17631,
"labels": [
"ANALYSIS"
],
"start": 17432,
"text": "By merely making the offence under this Section 11 cognizable and nonbailable, the position would not change and the operation and effect of Section 11(2) does not get obliterated or non operational."
}
},
{
"from_name": null,
"id": "17694f66ae9c42fda1232c09900243b6",
"to_name": null,
"type": null,
"value": {
"end": 17786,
"labels": [
"ANALYSIS"
],
"start": 17632,
"text": "We are therefore of the opinion that even though offences have been made cognizable or nonbailable, Section 11(2) must be held to operate with full force."
}
},
{
"from_name": null,
"id": "9d7e51b533a3471aa7a2065d8e153254",
"to_name": null,
"type": null,
"value": {
"end": 17969,
"labels": [
"ANALYSIS"
],
"start": 17787,
"text": "That means what is contemplated by Section 11(2) is filing of a private complaint by the Scrutiny Committee or its authorized officer before the Court who could then take cognizance."
}
},
{
"from_name": null,
"id": "6256bb8c5cf74239931197958c9a77af",
"to_name": null,
"type": null,
"value": {
"end": 18057,
"labels": [
"ANALYSIS"
],
"start": 17970,
"text": "In other words, filing of a police case is not contemplated by the aforesaid provision."
}
},
{
"from_name": null,
"id": "8468beaa21374eb0b031d26e6449e5f1",
"to_name": null,
"type": null,
"value": {
"end": 18071,
"labels": [
"ANALYSIS"
],
"start": 18059,
"text": "16] "
}
},
{
"from_name": null,
"id": "a3d6d8fdc2c84b479c462e785249e75e",
"to_name": null,
"type": null,
"value": {
"end": 18458,
"labels": [
"ANALYSIS"
],
"start": 18071,
"text": "In the light of the above discussion with reference to question no.1, therefore, we are of the considered opinion that filing of a police case by registration of F.I.R. before the criminal Court is not contemplated and what is contemplated is filing of a private complaint by a Scrutiny Committee or its authorized officer in accordance with Chapter XV of the Code of Criminal Procedure."
}
},
{
"from_name": null,
"id": "21a90bbc6c8540aeb4927dc9fc0242fc",
"to_name": null,
"type": null,
"value": {
"end": 18694,
"labels": [
"RATIO"
],
"start": 18459,
"text": "We, therefore, answer question no.1 accordingly and hold that filing of final report by the police under Section 173 of the Code of Criminal Procedure by way of chargesheet is illegal and contrary to the provisions of law as aforesaid."
}
},
{
"from_name": null,
"id": "44a1485805984978b0597f71269358a3",
"to_name": null,
"type": null,
"value": {
"end": 18906,
"labels": [
"ANALYSIS"
],
"start": 18694,
"text": "\n 17] The next question with reference to para no.37 of the order passed by the Committee proposing action for prosecution of the competent authority issuing caste certificate falls for our consideration."
}
},
{
"from_name": null,
"id": "d5531af661da4c648fac22f495a8ca73",
"to_name": null,
"type": null,
"value": {
"end": 19233,
"labels": [
"ANALYSIS"
],
"start": 18906,
"text": "\n The Maharashtra Scheduled Caste, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 came into force with effect from 23052001 including the provisions of Section 13 of the said Act."
}
},
{
"from_name": null,
"id": "5eb6f2e27957424a90ea2209902cc15f",
"to_name": null,
"type": null,
"value": {
"end": 19327,
"labels": [
"STA"
],
"start": 19234,
"text": "Section 13 of the Act of 2000, reads thus : \"13. Penalty for issuing false Caste Certificate."
}
},
{
"from_name": null,
"id": "079b0362a948466cac36fc4c7732c12d",
"to_name": null,
"type": null,
"value": {
"end": 19739,
"labels": [
"STA"
],
"start": 19327,
"text": "\n (1)Any person or authority performing the functions of Competent Authority under this Act, who intentionally issues a false Caste Certificate, shall on conviction, be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend upto two years or with fine which shall not be less than two thousand rupees, but which may extend upto twenty thousand rupees or both."
}
},
{
"from_name": null,
"id": "9e93a988118c432ca2ed1bc7d46cfc01",
"to_name": null,
"type": null,
"value": {
"end": 20150,
"labels": [
"STA"
],
"start": 19741,
"text": "(2)No court shall take cognizance of an offence punishable under this section except with the previous sanction of the Government.\"\n 18] Section 13 has been engrafted with a view to punish those who issue false caste certificates intentionally while performing their function as competent authority with a rider that such a prosecution could be launched with the sanction under Section 13 of the Act of 2000."
}
},
{
"from_name": null,
"id": "85405af9ff18411da1530145a84f5327",
"to_name": null,
"type": null,
"value": {
"end": 20341,
"labels": [
"ANALYSIS"
],
"start": 20151,
"text": "The question no.2 framed above a competent authority issuing caste certificate before coming into force the Act of 2000 i.e. 23052001, could be prosecuted under Section 13 of the Act or not?"
}
},
{
"from_name": null,
"id": "384008206f5c408ba6440ebd1a35fb31",
"to_name": null,
"type": null,
"value": {
"end": 20492,
"labels": [
"ANALYSIS"
],
"start": 20342,
"text": "In all these cases the caste certificates admittedly were issued by the competent authority before 23052001 and at that time Section 13 did not exist."
}
},
{
"from_name": null,
"id": "982b541433a94197a3c3698cf86bb8b9",
"to_name": null,
"type": null,
"value": {
"end": 20592,
"labels": [
"ANALYSIS"
],
"start": 20492,
"text": "\n Following are the dates of issuance of caste certificate by competent authority in these case : i]"
}
},
{
"from_name": null,
"id": "a7b4582a71b44b63ab8e679314dcf130",
"to_name": null,
"type": null,
"value": {
"end": 20706,
"labels": [
"ANALYSIS"
],
"start": 20593,
"text": "Cri. Appln. No. 1173/10 Vilas Majrikar 25081984 ii] Cri,Appln. No. 1249/10 Ramesh Majrikar 20091972 iii] Crim."
}
},
{
"from_name": null,
"id": "72ae7d4aa73941ffa4e67c94a039cf07",
"to_name": null,
"type": null,
"value": {
"end": 20715,
"labels": [
"ANALYSIS"
],
"start": 20706,
"text": "Appln. No"
}
},
{
"from_name": null,
"id": "83726d2c3a164d2f891d879eeb1133f2",
"to_name": null,
"type": null,
"value": {
"end": 20753,
"labels": [
"ANALYSIS"
],
"start": 20715,
"text": ". 1944/10 Manohar Majrikar 12081981 iv"
}
},
{
"from_name": null,
"id": "89e89972ad9c4642b36ce08f158ff052",
"to_name": null,
"type": null,
"value": {
"end": 20818,
"labels": [
"ANALYSIS"
],
"start": 20753,
"text": "] Crim.Appln. No. 4/14 Khushal Neware 18081990 v] Crim.Appln."
}
},
{
"from_name": null,
"id": "e970e010933643118f7ded2a5ab9cef4",
"to_name": null,
"type": null,
"value": {
"end": 20864,
"labels": [
"ANALYSIS"
],
"start": 20819,
"text": "[APL] No. 42/14 Jitendra Kadhikhaye 16101995."
}
},
{
"from_name": null,
"id": "f0854f9826dc48699eff30ce1ef6bb49",
"to_name": null,
"type": null,
"value": {
"end": 20917,
"labels": [
"ANALYSIS"
],
"start": 20864,
"text": "\n 19] Section 13 provides for imprisonment and fine."
}
},
{
"from_name": null,
"id": "248bf25aa12040b1926df8940890d429",
"to_name": null,
"type": null,
"value": {
"end": 21017,
"labels": [
"ANALYSIS"
],
"start": 20918,
"text": "We think the observations made in the judgment cited supra by the learned Advocate General are apt."
}
},
{
"from_name": null,
"id": "119024a6e0fb4426b6311ae934087c5d",
"to_name": null,
"type": null,
"value": {
"end": 21390,
"labels": [
"ANALYSIS"
],
"start": 21018,
"text": "We quote them as under : \"We are asked to say here that the meaning of that provision is, that if a man sells what is perfectly legal and proper according to law, nevertheless a year afterwardsand, it may be said, the law having in the meantime been altered he is to be brought before a police court and, being a reputable person, is to be charged with a criminal offence."
}
},
{
"from_name": null,
"id": "ebbecfb09acc49e38d9ef1fa63132545",
"to_name": null,
"type": null,
"value": {
"end": 21434,
"labels": [
"ANALYSIS"
],
"start": 21391,
"text": "To my mind that is a monstrous proposition."
}
},
{
"from_name": null,
"id": "4da5de5161654bd9b4def3ecd4883343",
"to_name": null,
"type": null,
"value": {
"end": 21700,
"labels": [
"ANALYSIS"
],
"start": 21435,
"text": "I cannot conceive of any Act of Parliament being passed having such an effect, and, in my view, the Food and Drugs Act, 1938, certainly does not have that effect because the act or default mentioned in sect.83(3) plainly has the meaning of wrongful act or default.\""
}
},
{
"from_name": null,
"id": "dc02673bbf9c4374806962e637ea5919",
"to_name": null,
"type": null,
"value": {
"end": 21838,
"labels": [
"RATIO"
],
"start": 21700,
"text": "\n 20] It is, thus, clear that on the date when the caste certificate was issued there was no law making for constitution of such offence."
}
},
{
"from_name": null,
"id": "867f24c1ea8146f3ae372710a594ddb1",
"to_name": null,
"type": null,
"value": {
"end": 22094,
"labels": [
"RATIO"
],
"start": 21839,
"text": "The Scrutiny Committee however by making observations made in para no.\n37 of the order, which are reproduced above, did not advert the aspect of this matter and straightway proposed to prosecute the competent authority under Section 13 of the Act of 2000."
}
},
{
"from_name": null,
"id": "5e7179cb65b142cb8c2ca66a1e90f5d6",
"to_name": null,
"type": null,
"value": {
"end": 22227,
"labels": [
"RATIO"
],
"start": 22095,
"text": "To sum up the provisions of Section 13 must be held to be prospective in nature and cannot be held to be retrospective in operation."
}
},
{
"from_name": null,
"id": "2c08c40a644c4e64b87899d6815d6ffc",
"to_name": null,
"type": null,
"value": {
"end": 22474,
"labels": [
"RATIO"
],
"start": 22228,
"text": "We, therefore, answer question no.2 accordingly and hold that no offence under Sections 11 or 13 of the Act of 2000 could be constituted by obtaining a certificate if the certificate was issued before 23052001, the date Act, 2000 came into force."
}
},
{
"from_name": null,
"id": "1318192dad40427f89ee54a2bb0649ec",
"to_name": null,
"type": null,
"value": {
"end": 22564,
"labels": [
"RATIO"
],
"start": 22476,
"text": "21] The upshot of the above discussion is that all these applications must succeed."
}
},
{
"from_name": null,
"id": "a554da54947c46e0a385dfa5516d2025",
"to_name": null,
"type": null,
"value": {
"end": 22624,
"labels": [
"RPC"
],
"start": 22565,
"text": "In the result, we make the following order : O r d e r A] "
}
},
{
"from_name": null,
"id": "3edb59d1fcea4700a640233d617cdaa5",
"to_name": null,
"type": null,
"value": {
"end": 22835,
"labels": [
"RPC"
],
"start": 22624,
"text": "Criminal Application No.1173 of 2010, Criminal Application No.1249 of 2010, Criminal Application No.1944 of 2010, Criminal Application (APL) No.4 of 2014 and Criminal Application (APL) No.42 of 2014 are allowed."
}
},
{
"from_name": null,
"id": "49945e69c0ec40d9bcb24ec683ef91ee",
"to_name": null,
"type": null,
"value": {
"end": 23095,
"labels": [
"RPC"
],
"start": 22835,
"text": "\n B] Rule is made absolute in terms of prayer clause (1) of Criminal Application No.1173 of 2010, Criminal Application No.1249 of 2010, Criminal Application No.1944 of 2010, Criminal Application (APL) No.4 of 2014 and Criminal Application (APL) No.42 of 2014."
}
},
{
"from_name": null,
"id": "096fe7e3e06a443694c32c51cf6ad387",
"to_name": null,
"type": null,
"value": {
"end": 23106,
"labels": [
"RPC"
],
"start": 23095,
"text": "\n No costs."
}
},
{
"from_name": null,
"id": "32923c162cee423bb1f506e10e6aa1ee",
"to_name": null,
"type": null,
"value": {
"end": 23137,
"labels": [
"NONE"
],
"start": 23108,
"text": "JUDGE JUDGE Deshmukh"
}
}
]
}
] | 4,251 | {
"text": " IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n NAGPUR BENCH : NAGPUR\n\n Criminal Application No.1173 of 2010\n\nVilas s/o Rambhau Majrikar, .... Applicant.\naged 53 years, Occ.service,\nDeputy Regional Transport Officer,\nr/o.Plot No.202, Balkrishna Apartment,\nLaxmi Nagar, Nagpur\n\nVersus .... Non applicant.\nState of Maharashtra,\nthrough Police Station Officer,\nUmrer Police Station, Umrer,\nDistrict Nagpur.\n\n[Shri A.S. Mardikar, Sr. Advocate as Amicus Curiae.\nAssisted by Shri R.S. Parsodkar, Adv. for applicant.\nShri S.V. Manohar, Advocate General.\nSmt. B.H. Dangre, Public Prosecutor for State.]\n\n With\n\n Criminal Application No.1249 of 2010\n\nRamesh s/o Rambhauji Majrikar, .... Applicant.\naged 59 years, Occ.service,\nChief Executive Officer,\nHingoli Zilla Parishad, Hingoli,\nr/o.Hingoli.\n\nVersus\n\n\nState of Maharashtra, .... Non applicant.\nthrough Police Station Officer,\n\nUmrer Police Station, Umrer,\nDistrict Nagpur.\n\n[Shri A.S. Mardikar, Sr. Advocate as Amicus Curiae.\nAssisted by Shri R.S. Parsodkar, Adv. for applicant.\nShri S.V. Manohar, Advocate General.\nSmt. B.H. Dangre, Public Prosecutor for State.]\n\n With\n\n Criminal Application No.1944 of 2010\n\nManohar Bhaurao Majrikar, .... Applicant.\naged 50 years, Occ.service, .... Non applicant.\nr/o.MSTCL, Nashik, permanent resident of\nUmer, District Nagpur.\nVersus\nState of Maharashtra,\nthrough Police Station Officer,\nUmrer Police Station, Umrer,\nDistrict Nagpur.\n\n[Shri A.S. Mardikar, Sr. Advocate as Amicus Curiae.\nAssisted by Shri R.S. Parsodkar, Adv. for applicant.\nShri S.V. Manohar, Advocate General.\nSmt. B.H. Dangre, Public Prosecutor for State.]\n\n With\n\nCriminal Application (APL) No.4 of 2014\n\nKhushal s/o Gomaji Neware, .... Applicant.\naged 39 years, Occ.Gramsevak,\nGrampanchayat Rangi, P.S. Dhanora,\nDistrict Gadchiroli.\n\n 3 (Amendment carried out\n as per Courts order\n Versus dated 11022014)\n\n1] State of Maharashtra, .... Non applicants.\n through Police Station Officer,\n Kurkheda, District Gadchiroli.\n\n2] Joint Commissioner &\n Vice Chairman, Scheduled Tribes\n Certificate Scrutiny Committee,\n Gadchiroli.\n\n3] Sunil s/o Dayaram Uikey,\n Vigilance Officer,\n Scheduled Tribes Certificate Scrutiny\n Committee, Gadchiroli.\n\n[Shri A.S. Mardikar, Sr. Advocate as Amicus Curiae.\nAssisted by Shri R.S. Parsodkar, Adv. for applicant.\nShri S.V. Manohar, Advocate General.\nSmt. B.H. Dangre, Public Prosecutor for State.]\n\n With\n\n Criminal Application (APL) No.42 of 2014\n\nJitendra Wasudeo Kadhikhaye, .... Applicant.\naged 36 years, Occ. Service as Gramsevak,\nr/o.Tilak Nagar, Brahmapuri,\nDistrict Chandrapur.\n\nVersus\n1] State of Maharashtra,\n\n through Police Station Brahmapuri,\n District Chandrapur.\n\n 4 .... Non applicants.\n\n2] Scheduled Tribe Certificate\n Scrutiny Committee, Gadchiroli,\n through its Vice Chairman.\n\n[Shri Amit Balpande, Advocate for applicant.\nSmt. S.S. Jachak, Addl. Public Prosecutor for State.]\n\n CORAM : A.B. CHAUDHARI &\n P.N. DESHMUKH, JJ.\n\n Date of reserving the judgment :24/04/2015.\n Date of pronouncing the judgment : 22/06/2015.\n\nJ U D G M E N T [ Per A.B. Chaudhari, J.] 1] Rule in Criminal Application (APL) No.42 of 2014.\n 2] All these applications were heard together since common questions of law are involved and are disposed of by the common judgment.\n 3] By order dated 09012015, prima faice, we found that sub section (2) of Section 11 of the Maharashtra Scheduled Castes, Scheduled Tribes, DeNotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 [for short, `the Act of 2000'], does not contemplate filing of case by the Police Officer in accordance with Chapter XII of the Code of Criminal Procedure but contemplates the filing of a complaint case in accordance with Chapter XV of the Code of Criminal Procedure. Thereafter, these applications were heard from time to time and looking to the important issues involved and the filing of number of F.I.Rs in the Police Station and the chargesheets in the Court i.e. the police cases, this Court had heard the learned Advocate General for the State of Maharashtra.\n 4] The facts in all these cases are almost identical and in nutshell are stated as under : All these applicants claimed to be belonging to Scheduled Tribe on the basis of certificates in their favour which were issued to them admittedly before 23052001 i.e. the date when the Act of 2000 came into force. The Scheduled Tribes Caste Scrutiny Committee had verified the caste claim of all these applicants and came to the conclusion that in all these cases the applicants or the candidates before the Committee had failed to establish the affinity and the ethnic linkage with `Halba Scheduled Tribe'. By making an order after adjudication the Committee then in its order itself made a reference to Section 10(1) of the Act of 2000, by which the benefits enjoyed or taken by virtue of the appointment in the Scheduled Tribes category can be withdrawn. The Committee then referred to Sections 11(1)(a), 11(1)(b) and Section 11(2) of the Act of 2000 in its final order. Para no.36 of this order reads as under : \"36) Therefore the Scrutiny Committee vide the powers vested in it under section 11(2) of the Maharashtra Scheduled Castes. Scheduled Tribes, DeNotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (Maharashtra Act No. XXIII of 2001), hereby authorises Shri N.Z. Kumre, the Deputy Superintendent of Police of the Police Vigilance Cell, Scheduled Tribe Certification Scrutiny Committee, Nagpur to lodge a complaint in the form of F.I.R. with the concern Police Station against Shri Vilas Rambhauji Majrikar.\"\n 5] The Committee thereafter went ahead and referred to Section 13(1) of the said Act and found that the competent authority issuing caste certificate dated 28051984 in case of applicant Vilas Rambhauji Majrikar was also required to be prosecuted after obtaining sanction from the State Government. We quote para no.37 of the said order in that context, which reads thus : \"37) According to Section 13 (1) of the Maharashtra Scheduled Castes, Scheduled Tribes, DeNotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (Maharashtra Act No. XXIII of 2001), any person or authority performing the function of Competent Authority under this Act, who intentionally issues a false Caste Certificate, shall on conviction, be punished. According to Rule 4(9) of the Maharashtra Scheduled Tribes (Regulation of Issuance of Verification of) Certificate Rules, 2003, the competent authority should have conducted the enquiry in respect of elderly blood relation and forefathers pertaining to school, land record. But in the present case the Competent Authority did not do so, and therefore the Scrutiny Committee decides to grant hearing to the Caste Certificate issuing Executive Magistrate, Umred, Distt. Nagpur and then obtain the sanction of the State Government in the Revenue Department to file a complaint against the said Executive Magistrate, Umred, Distt. Nagpur.\"\n 6] As earlier stated similar are the facts in other cases. After hearing the learned Counsel for the rival parties and the learned Advocate General, we framed the following two questions on 09012015 in the light of the above facts and in view of submissions made before us in order to concentrate on the legal issues involved.\n Two questions : \"1] In the wake of Section 11(2) read with Section 12 of the Maharashtra Scheduled Castes, Scheduled Tribes, De Notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000, whether the Police Station Officer acting under Section 154 of the Code of Criminal Procedure can register an offence under Section 12 of the Act when Section 11(2) contemplates filing of a private complaint by Scrutiny Committee or its authorised officer ?\n 2] Whether a caste certificate obtained before 23rd May, 2001 i.e. prior to coming into force of Maharashtra Scheduled Castes, Scheduled Tribes, DeNotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000, if found to be false or obtained by any other fraudulent means could attract the offence under Section 11, or under Section 13 of the Act which makes issuance of false caste certificate punishable?\"\n Arguments 7] In support of the applications Shri R.S. Parsodkar, the learned Counsel for the applicants submitted that the caste certificates in favour of the applicants in all these cases were issued by the competent authority admittedly before 23052001 i.e. when the Act of 2000 came into force. When the caste certificates were issued the provisions regarding law as to the criminal offences under Sections 10(1), 11, 12 or 13 did not exist because the Act of 2000 itself came into force with effect from 23052001 and therefore no criminal offences could be alleged either against the applicants or the competent authority issuing the caste certificates. Shri R.S. Parsodkar, the learned Counsel then argued that the practice adopted by the Scrutiny Committee after invalidating the claim of the candidates for Scheduled Tribes is to direct its officer to file F.I.R. with the Police Station under the above provisions of the Act of 2000 merely because the caste claim is not proved by the candidates.\n According to him, failure to prove the caste claim for want of evidence or for any other reason would not automatically constitute offence under the Act of 2000 and in these cases the Committee has not recorded any finding about obtaining any false certificate or by fraudulent means nor that the competent authority issuing certificate did so fraudulently or with criminal intention. Shri R.S. Parsodkar, the learned Counsel then argued that at any rate the caste certificate issued by the competent authority before coming into force of the Act of 2000 even if it is found to be wrong, Section 13 is not attracted as the said section cannot have retrospective operation. The learned Counsel for the applicants then argued that though the offences have been made nonbailable and cognizable, but looking to the language of Section 11(2), what is contemplated is a private complaint case and not the police case. The Counsel for the applicants therefore prayed for quashing of F.I.R. and the criminal cases filed against them.\n 8] Per contra, Shri Sunil V. Manohar, the learned Advocate General with Smt. B.H. Dangre, the learned Public Prosecutor addressed this Court. In fairness the learned Advocate General referred to Article 20(1) of the Constitution of India so also a English decision in the case of Noss Farm Products, Limited vs Lilico, decided on June 7, 1945, reported at K.B.D. Vol.2 609. Shri S.V. Manohar, the learned Advocate General thus stated the legal position that Act providing for the offences punishable do not have retrospective operation. He also pointed out that the offences under Section 11 of the said Act have been made cognizable and nonbailable by putting an nonabstante clause. The question whether the police case could be filed or not will have to be examined in the light of Section 11(b) of the said Act, this being a special Act.\n Consideration 9] We have heard the learned Counsel for the rival sides at length in the light of the facts quoted by us above and the questions framed by us above. We proceed to deal with the same here as under : 10] Article 20(1) of the Constitution of India reads thus : \"Art.20. Protection in respect of conviction for offence (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.\"\n The above constitutional guarantee shows prohibition to make the previsions for offences in any law retrospectively.\n 11] Section 10(1) of the Act of 2000 reads thus : \"10(1) However not being a person belonging to any of the Scheduled Castes, Scheduled Tribes, Denotified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category secures admission in any educational institution against a seat reserved for such Castes, Tribes or Classes, or in any other Company or Corporation, owned or controlled by the Government or in any Government aided institution or Cooperative Society against a post reserved for such Castes, Tribes or Classes by producing a false Caste Certificate shall, on cancellation of the Caste Certificate by the Scrutiny Committee, be liable to be debarred from the concerned educational institution, or as the case may be, discharged from the said employment forthwith and any other benefits enjoyed or derived by virtue of such admission or appointment by such person as aforesaid shall be withdrawn forthwith.\"\n 12] The above provision, thus, clearly provides enabling the power to withdraw the benefits secured on the basis of false certificate.\n The next provision is Section 11 of the Act of 2000 which is reproduced below in its entirety as under : \"11. Offences and penalties.\n (1) Whoever, (a) obtain a false Caste Certificate by furnishing false information or filing false statement or documents or by any other fraudulent means; or (b) not being a person belonging to any of the Scheduled Castes, Scheduled Tribes, Denotified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category secures any benefits or appointments exclusively reserved for such Castes, Tribes or Classes in the Government, local authority or any other company or corporation owned or controlled by the Government or in any Government aided institution, or secures admission in any educational institution against a seat exclusively reserved for such Castes, Tribes or Classes or is elected to any of the elective offices of any local authority or Cooperative Society against the office, reserved for such Castes, Tribes or Classes by producing a false Caste Certificate; shall, on conviction, be punished, with rigorous imprisonment for a term which shall not be less than six months but which may extent up to two years or with fine which shall not be less than two thousand rupees, but which may extend up to twenty thousand rupees or both.\n (2) No court shall take cognizance of an offence punishable under this section except upon a complaint, in writing, made by the Scrutiny Committee or by any other officer duly authorized by the Scrutiny Committee for this purpose.\"\n 13] It is clear from Section 11(1)(a) that obtaining a false caste certificate by furnishing false information etc or by any other fraudulent means is an offence. Section 11(1)(b) relates to production of false certificate for obtaining benefits by a person not belonging to such reserved category which has been made an offence. The sentence provided is not less than six months which may extend to two years or with fine. Subsection (2) of Section 11 provides a procedure for filing of criminal case. Subsection (2) of Section 11 provides that no Court shall take cognizance of offences under this section. It provides that upon filing of a compliant in writing made by the Scrutiny Committee or its authorized officer the Court may take cognizance. This clearly means that what is contemplated is filing of a private case by a Scrutiny Committee or its authorized officer in accordance with Chapter XV of the Code of Criminal Procedure and it does not contemplate filing of police case in accordance with Chapter XII of the Code of Criminal Procedure.\n 14] Section 12 of the Act of 2000, reads thus : \"12. Offences under Act to be cognizable and non bailable. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (a) offences punishable under section 11 shall be cognizable and nonbailable; (b) every offence punishable under this Act, shall be tried by any Magistrate of First Class in a summary way and provisions of sections 262 except sub section (2) to 265 both inclusive of this Code, shall as far as possible may be applied to such trial.\"\n 15] By merely making the offence under this Section 11 cognizable and nonbailable, the position would not change and the operation and effect of Section 11(2) does not get obliterated or non operational. We are therefore of the opinion that even though offences have been made cognizable or nonbailable, Section 11(2) must be held to operate with full force. That means what is contemplated by Section 11(2) is filing of a private complaint by the Scrutiny Committee or its authorized officer before the Court who could then take cognizance. In other words, filing of a police case is not contemplated by the aforesaid provision.\n 16] In the light of the above discussion with reference to question no.1, therefore, we are of the considered opinion that filing of a police case by registration of F.I.R. before the criminal Court is not contemplated and what is contemplated is filing of a private complaint by a Scrutiny Committee or its authorized officer in accordance with Chapter XV of the Code of Criminal Procedure. We, therefore, answer question no.1 accordingly and hold that filing of final report by the police under Section 173 of the Code of Criminal Procedure by way of chargesheet is illegal and contrary to the provisions of law as aforesaid.\n 17] The next question with reference to para no.37 of the order passed by the Committee proposing action for prosecution of the competent authority issuing caste certificate falls for our consideration.\n The Maharashtra Scheduled Caste, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 came into force with effect from 23052001 including the provisions of Section 13 of the said Act. Section 13 of the Act of 2000, reads thus : \"13. Penalty for issuing false Caste Certificate.\n (1)Any person or authority performing the functions of Competent Authority under this Act, who intentionally issues a false Caste Certificate, shall on conviction, be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend upto two years or with fine which shall not be less than two thousand rupees, but which may extend upto twenty thousand rupees or both.\n (2)No court shall take cognizance of an offence punishable under this section except with the previous sanction of the Government.\"\n 18] Section 13 has been engrafted with a view to punish those who issue false caste certificates intentionally while performing their function as competent authority with a rider that such a prosecution could be launched with the sanction under Section 13 of the Act of 2000. The question no.2 framed above a competent authority issuing caste certificate before coming into force the Act of 2000 i.e. 23052001, could be prosecuted under Section 13 of the Act or not? In all these cases the caste certificates admittedly were issued by the competent authority before 23052001 and at that time Section 13 did not exist.\n Following are the dates of issuance of caste certificate by competent authority in these case : i] Cri. Appln. No. 1173/10 Vilas Majrikar 25081984 ii] Cri,Appln. No. 1249/10 Ramesh Majrikar 20091972 iii] Crim.Appln. No. 1944/10 Manohar Majrikar 12081981 iv] Crim.Appln. No. 4/14 Khushal Neware 18081990 v] Crim.Appln. [APL] No. 42/14 Jitendra Kadhikhaye 16101995.\n 19] Section 13 provides for imprisonment and fine. We think the observations made in the judgment cited supra by the learned Advocate General are apt. We quote them as under : \"We are asked to say here that the meaning of that provision is, that if a man sells what is perfectly legal and proper according to law, nevertheless a year afterwardsand, it may be said, the law having in the meantime been altered he is to be brought before a police court and, being a reputable person, is to be charged with a criminal offence. To my mind that is a monstrous proposition. I cannot conceive of any Act of Parliament being passed having such an effect, and, in my view, the Food and Drugs Act, 1938, certainly does not have that effect because the act or default mentioned in sect.83(3) plainly has the meaning of wrongful act or default.\"\n 20] It is, thus, clear that on the date when the caste certificate was issued there was no law making for constitution of such offence. The Scrutiny Committee however by making observations made in para no.\n37 of the order, which are reproduced above, did not advert the aspect of this matter and straightway proposed to prosecute the competent authority under Section 13 of the Act of 2000. To sum up the provisions of Section 13 must be held to be prospective in nature and cannot be held to be retrospective in operation. We, therefore, answer question no.2 accordingly and hold that no offence under Sections 11 or 13 of the Act of 2000 could be constituted by obtaining a certificate if the certificate was issued before 23052001, the date Act, 2000 came into force.\n 21] The upshot of the above discussion is that all these applications must succeed. In the result, we make the following order : O r d e r A] Criminal Application No.1173 of 2010, Criminal Application No.1249 of 2010, Criminal Application No.1944 of 2010, Criminal Application (APL) No.4 of 2014 and Criminal Application (APL) No.42 of 2014 are allowed.\n B] Rule is made absolute in terms of prayer clause (1) of Criminal Application No.1173 of 2010, Criminal Application No.1249 of 2010, Criminal Application No.1944 of 2010, Criminal Application (APL) No.4 of 2014 and Criminal Application (APL) No.42 of 2014.\n No costs.\n JUDGE JUDGE Deshmukh "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "63f900103d0147e9a53b193fe90b01c1",
"to_name": null,
"type": null,
"value": {
"end": 45,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "PETITIONER:\nR. G. JACOB\n\n Vs.\n\nRESPONDENT:"
}
},
{
"from_name": null,
"id": "fa32d14fdb6c44c89a3850bc71c9dc16",
"to_name": null,
"type": null,
"value": {
"end": 98,
"labels": [
"PREAMBLE"
],
"start": 45,
"text": "\nUNION OF INDIA\n\nDATE OF JUDGMENT:\n28/08/1962\n\nBENCH:"
}
},
{
"from_name": null,
"id": "f40bd6038166443ca3544dc4835fff35",
"to_name": null,
"type": null,
"value": {
"end": 115,
"labels": [
"PREAMBLE"
],
"start": 98,
"text": "\nDAYAL, RAGHUBAR\n"
}
},
{
"from_name": null,
"id": "1f4c5d5cbe99404a91e38bfc806eba86",
"to_name": null,
"type": null,
"value": {
"end": 818,
"labels": [
"PREAMBLE"
],
"start": 115,
"text": "BENCH:\nDAYAL, RAGHUBAR\nGAJENDRAGADKAR, P.B.\nGUPTA, K.C. DAS\n\nCITATION:\n\n1963 AIR 550 1963 SCR (3) 800\n\nCITATOR INFO : (19)\n (3)\nR 1972 SC2284\n\nRF 1986 SC2045\n\nACT:\nCirminal Trial-Public Servant accepting valuable things for\nsecuring export permit-'Subordinate', Meaning of-If means\nfunctionally subordinate--Indian Penal Code, 1860 (Act 45 of\n1860), s. 165.\n\nHEADNOTE:\nThe word 'subordinate' used without any qualification in s.\n165 of the Indian Penal Code indicates that the Legislature\nintended to include within its ambit also such subordinates\nas had no connection with the functions with which the\nproceeding or business was concerned."
}
},
{
"from_name": null,
"id": "fa8c185052be4aaa9d44fc7fa55c6970",
"to_name": null,
"type": null,
"value": {
"end": 935,
"labels": [
"PREAMBLE"
],
"start": 819,
"text": "That word cannot be\nread as functionally subordinate' so as to defeat the inten-\ntion and policy of the Legislature."
}
},
{
"from_name": null,
"id": "793890c4e9064204b744c55fcd5bda70",
"to_name": null,
"type": null,
"value": {
"end": 1230,
"labels": [
"PREAMBLE"
],
"start": 936,
"text": "Consequently where an Assistant Controller of Imports was\nprosecuted for accepting valuable things for helping an\napplicant, who had appealed to the joint Chief Controller of\nImports and Exports. to secure a permit to export goods and\nwas convicted under s. 165 of the Indian Penal Code by the\n"
}
},
{
"from_name": null,
"id": "c45a0943beff43ae8548a9471eff0114",
"to_name": null,
"type": null,
"value": {
"end": 1243,
"labels": [
"PREAMBLE"
],
"start": 1230,
"text": "special Judge"
}
},
{
"from_name": null,
"id": "e9f4e8761c684e2f91e7a8c1d3df5079",
"to_name": null,
"type": null,
"value": {
"end": 1582,
"labels": [
"PREAMBLE"
],
"start": 1244,
"text": "and such conviction was affirmed by the High\nCourt and the contention on appeal to this Court was that,\nalthough the appellant might be administratively subordinate\nto the joint Chief Controller of Imports and Exports, he was\nnot functionally so, having nothing to do with export\npermits, and was not, therefore, liable under the section."
}
},
{
"from_name": null,
"id": "8dbf0b3928ab4e16ae17dcd6e21482ee",
"to_name": null,
"type": null,
"value": {
"end": 1742,
"labels": [
"PREAMBLE"
],
"start": 1582,
"text": "\nHeld, that the appellant was subordinate to the joint Chief\nController of Imports and Exports within the meaning of the\nsection and had been rightly convicted."
}
},
{
"from_name": null,
"id": "f9ac6ac432414658a474048839ec2ef1",
"to_name": null,
"type": null,
"value": {
"end": 1820,
"labels": [
"PREAMBLE"
],
"start": 1742,
"text": "\n\nJUDGMENT:\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 116 of 1961."
}
},
{
"from_name": null,
"id": "ec9a0492b513437588d39d564861951d",
"to_name": null,
"type": null,
"value": {
"end": 2024,
"labels": [
"NONE"
],
"start": 1821,
"text": "Appeal from the judgment and order dated December 14, 1960 of the Madras High Court in Criminal Appeal No. 933 of 1959.S. Mohan Kumar Mangalam, R. Ganapathy Iyer and G.\n Gopalakrishan, for the appellant."
}
},
{
"from_name": null,
"id": "9b55e68c6e28433f89d97113e06b626a",
"to_name": null,
"type": null,
"value": {
"end": 2131,
"labels": [
"NONE"
],
"start": 2024,
"text": "\nC. K. Daphtary Solicitor General of India, D, R. Prem, R. N. Sachthey and P. D. Menon, for the respondent."
}
},
{
"from_name": null,
"id": "b637b25304c14aa4888dc8c990528840",
"to_name": null,
"type": null,
"value": {
"end": 2137,
"labels": [
"NONE"
],
"start": 2131,
"text": "\n1962."
}
},
{
"from_name": null,
"id": "da62d209134a4817a5155f575a24ca77",
"to_name": null,
"type": null,
"value": {
"end": 2148,
"labels": [
"NONE"
],
"start": 2138,
"text": "August 28."
}
},
{
"from_name": null,
"id": "997ada3071fe438c83102d87adb4587b",
"to_name": null,
"type": null,
"value": {
"end": 2206,
"labels": [
"NONE"
],
"start": 2149,
"text": "The Judgement of the Court was delivered by DAS GUPTA, J."
}
},
{
"from_name": null,
"id": "be8dbdd176064e3d92235f6338102f38",
"to_name": null,
"type": null,
"value": {
"end": 2601,
"labels": [
"FAC"
],
"start": 2207,
"text": "The appellant who was the Assistant Controller of Imports in the office of the Joint Chief Controller of Imports and Exports, Madras, was tried by the Special judge, Madras on three charges-one under section 161 of the Indian Penal Code, another under s. 5 (1) (d) read with s. 5 (2) of the Prevention of Corruption Act and the third-which was added later-under s. 165 of the Indian Penal Code."
}
},
{
"from_name": null,
"id": "f2a9a995080a45e4a93dbc7ad21f9f2d",
"to_name": null,
"type": null,
"value": {
"end": 2766,
"labels": [
"RLC"
],
"start": 2602,
"text": "He was acquitted of the first two charges but was convicted of an offence under s. 165 of the Indian Penal Code and sentenced to rigorous imprisonment for one year."
}
},
{
"from_name": null,
"id": "da27f1b3bfce4171b2f18dd08fec19b3",
"to_name": null,
"type": null,
"value": {
"end": 2990,
"labels": [
"RLC"
],
"start": 2766,
"text": "\nHe appealed to the High Court of Madras; but the High Court dismissed the appeal and affirmed the order of conviction, but reduced the sentence to that of fine of Rs. 400/- in default rigorous imprisonment for three months."
}
},
{
"from_name": null,
"id": "9d2ed5ac21ad4126b737dcdf15f68203",
"to_name": null,
"type": null,
"value": {
"end": 3136,
"labels": [
"RLC"
],
"start": 2991,
"text": "The High Court has however granted a certificate under Article 134 (1) (c) of the constitution that this was a fit case for appeal to this Court."
}
},
{
"from_name": null,
"id": "8b9fa8251814491282585ee6ec402db4",
"to_name": null,
"type": null,
"value": {
"end": 3197,
"labels": [
"FAC"
],
"start": 3137,
"text": "On the basis of that certificate this appeal has been filed."
}
},
{
"from_name": null,
"id": "00c358f331a94d8382416a30edb0ebc9",
"to_name": null,
"type": null,
"value": {
"end": 3430,
"labels": [
"FAC"
],
"start": 3197,
"text": "\nThis prosecution case is that one K. R. Naidu (who has been examined as prosecution witness No. 8) a merchant having export business in onions, chillies and groundnuts made on January 21, 1958, an application for export of chillies."
}
},
{
"from_name": null,
"id": "f9067dcda9534be2ae2ae3778414e71b",
"to_name": null,
"type": null,
"value": {
"end": 3519,
"labels": [
"FAC"
],
"start": 3431,
"text": "He was informed by a letter dated March 5, 1958, that the application had been rejected."
}
},
{
"from_name": null,
"id": "234c0d184b4a4184bf891c82293b68aa",
"to_name": null,
"type": null,
"value": {
"end": 3651,
"labels": [
"FAC"
],
"start": 3520,
"text": "This letter was purported to be signed by the Assistant Controllerof Exports for the Joint Chief Controller of Imports and Exports."
}
},
{
"from_name": null,
"id": "fa0f8741e5844a14b20e411ac7063665",
"to_name": null,
"type": null,
"value": {
"end": 3819,
"labels": [
"FAC"
],
"start": 3652,
"text": "Arumugam (prosecution witness No. 1) who bad been acting on behalf of Naidu in this matter then sought the assistance of this appellant for getting a permit for Naidu."
}
},
{
"from_name": null,
"id": "af7daa81cc284b9d9f85d54046788894",
"to_name": null,
"type": null,
"value": {
"end": 4027,
"labels": [
"FAC"
],
"start": 3819,
"text": "\nWhen he met the appellant later the same evening the appellant told him that an appeal would have to be preferred against the rejection order to the Joint Chief Controller of Imports and Exports, Rangaswamy."
}
},
{
"from_name": null,
"id": "83a1ff6f6c4a41a3b230583de27bf086",
"to_name": null,
"type": null,
"value": {
"end": 4170,
"labels": [
"FAC"
],
"start": 4028,
"text": "The appellant also proposed that if he was given two bags of cement and Rs.\n50/-he would use his influence and help him to get him the permit."
}
},
{
"from_name": null,
"id": "40022b67c77b4c6bb9eb9a62220ed9f7",
"to_name": null,
"type": null,
"value": {
"end": 4291,
"labels": [
"FAC"
],
"start": 4171,
"text": "Arumugam agreed and the appellant gave Arumugam a sheet of paper stating the address to which the cement was to be sent."
}
},
{
"from_name": null,
"id": "da3ea2fd9b214fa094d2a5ead2ddecac",
"to_name": null,
"type": null,
"value": {
"end": 4403,
"labels": [
"FAC"
],
"start": 4292,
"text": "On the next day the memorandum of appeal was sent by registered post to Rangaswamy, the Joint Chief Controller."
}
},
{
"from_name": null,
"id": "e43d55b9e3364eb9b1c70515de7ac42d",
"to_name": null,
"type": null,
"value": {
"end": 4548,
"labels": [
"FAC"
],
"start": 4404,
"text": "The same day Arumugam saw the Deputy Superintendent, Special Police Establishment, and gave him a complaint in writing mentioning all the facts."
}
},
{
"from_name": null,
"id": "784f1391b01741b597c7bf27976635fe",
"to_name": null,
"type": null,
"value": {
"end": 4652,
"labels": [
"FAC"
],
"start": 4549,
"text": "A trap was thereafter laid with a view to catch the appellant in the actual act of accepting the bribe."
}
},
{
"from_name": null,
"id": "1ee0346be52b4ff985d3a04f68a758f9",
"to_name": null,
"type": null,
"value": {
"end": 4914,
"labels": [
"FAC"
],
"start": 4653,
"text": "On the evening of April 3, 1958, Arumugam went to the house of the appellant with two cement bags which had been marked by putting attested cards inside the bags and Rs. 50/in currency notes the number of which were noted by the Deputy Superintendent of Police."
}
},
{
"from_name": null,
"id": "694ec82a57dd4330b43ddaad2e49ff12",
"to_name": null,
"type": null,
"value": {
"end": 4982,
"labels": [
"FAC"
],
"start": 4915,
"text": "The appellant accepted the cement bags and the money from Arumugam,"
}
},
{
"from_name": null,
"id": "bb595025e6eb41c799ef4089ea6d3a8d",
"to_name": null,
"type": null,
"value": {
"end": 5068,
"labels": [
"FAC"
],
"start": 4983,
"text": "The two cement bags were put in a. room of the building as directed by the appellant."
}
},
{
"from_name": null,
"id": "13f89a0121ad4c6ab9322270a0623150",
"to_name": null,
"type": null,
"value": {
"end": 5287,
"labels": [
"FAC"
],
"start": 5069,
"text": "Immediately after this the Deputy Superintendent of Police, who had been waiting according to the arrangement a little distance away from the house came into the cause on getting the pre- arranged signal from Arumugam."
}
},
{
"from_name": null,
"id": "6cc35184ad3247c3b84dd5ea5b321320",
"to_name": null,
"type": null,
"value": {
"end": 5381,
"labels": [
"FAC"
],
"start": 5288,
"text": "He revealed his identity to the appellant and asked him to produce the money and cement bags."
}
},
{
"from_name": null,
"id": "e5cc5cee94ab4cdca921e9369f6d9a4d",
"to_name": null,
"type": null,
"value": {
"end": 5583,
"labels": [
"FAC"
],
"start": 5382,
"text": "The accused then took him upstairs and opened an Almirah with his own keys and produced from inside the Almirah the very notes of which the number had been taken by the Deputy Superintendent of Police."
}
},
{
"from_name": null,
"id": "51f4b8a7894a48b7af1b4ab2c93d37bd",
"to_name": null,
"type": null,
"value": {
"end": 5650,
"labels": [
"FAC"
],
"start": 5584,
"text": "The cement bags with the marks inside were also found down-stairs."
}
},
{
"from_name": null,
"id": "9c3e39da9ab04e4facca43c710666fdc",
"to_name": null,
"type": null,
"value": {
"end": 5682,
"labels": [
"FAC"
],
"start": 5651,
"text": "The accused pleaded not guilty."
}
},
{
"from_name": null,
"id": "c7fd32e105334e5ea6e11c5bc1d48a0d",
"to_name": null,
"type": null,
"value": {
"end": 6036,
"labels": [
"FAC"
],
"start": 5683,
"text": "He admits the recovery of the cement bags and the currency notes from his house but pleads that neither of these have been given to him and that the notes were found on the table and the cement bags were in the hall nearby; and these had been kept in his house without his knowledge or consent by Arumugam who wanted to make up a false case against him."
}
},
{
"from_name": null,
"id": "307a4c57629346b39154c7f82d97f2a9",
"to_name": null,
"type": null,
"value": {
"end": 6183,
"labels": [
"FAC"
],
"start": 6037,
"text": "According to him the whole story of his being approached by Arumugam or his asking for cement bags or money, or accepting them, is entirely false."
}
},
{
"from_name": null,
"id": "ee1ab175f51c4ba59458b0e3f4d80014",
"to_name": null,
"type": null,
"value": {
"end": 6407,
"labels": [
"FAC"
],
"start": 6184,
"text": "The Special Judge as also the High Court accepted the prosecution evidence in these matters as true and rejected the defence version and Mr. Kumaramangalam has rightly not tried to challenge before us the findings of facts."
}
},
{
"from_name": null,
"id": "4dceac99e3df4b45b54676d9e62efeca",
"to_name": null,
"type": null,
"value": {
"end": 6568,
"labels": [
"FAC"
],
"start": 6408,
"text": "His principal contention in support of the appeal is that assuming the findings to be true, an offence under s. 165, Indian Penal Code had not been established."
}
},
{
"from_name": null,
"id": "df2a5f9aa0f544d0b891e9aa1514575d",
"to_name": null,
"type": null,
"value": {
"end": 6728,
"labels": [
"ANALYSIS"
],
"start": 6569,
"text": "This contention is based mainly on the fact that the appellant was Assistant Controller of Imports only and had no connection with the issue of export permits."
}
},
{
"from_name": null,
"id": "11f42aa15f4249c6a0351e88278d6006",
"to_name": null,
"type": null,
"value": {
"end": 7028,
"labels": [
"ANALYSIS"
],
"start": 6729,
"text": "According to the learned Counsel he was not therefore \"subordinate\" to the Joint Chief Cont- roller of Imports and Exports to whom the appeal petition had been filed and consequently his acceptance of cement bags from Arumugam did not amount to an offence under section 165 of the Indian Penal Code."
}
},
{
"from_name": null,
"id": "24bc9da602674ca6bcbab2c534c5c5cb",
"to_name": null,
"type": null,
"value": {
"end": 7083,
"labels": [
"STA"
],
"start": 7029,
"text": "Section 165 of the Indian Penal Code runs thus:- \"165."
}
},
{
"from_name": null,
"id": "f1a310efe99e4232b7e6703fafce1321",
"to_name": null,
"type": null,
"value": {
"end": 7849,
"labels": [
"STA"
],
"start": 7084,
"text": "Whoever, being a public servant, accepts or obtains, or agrees to accept or attempts to obtain, for himself or for any other person, any valuable thing without consideration, or for a consideration which knows to be inadequate from any person whom he knows to have been or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by such public servant, or having arty connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.\""
}
},
{
"from_name": null,
"id": "978fdf0e0a7e4e71b405d0456aa2d037",
"to_name": null,
"type": null,
"value": {
"end": 7997,
"labels": [
"ANALYSIS"
],
"start": 7850,
"text": "What has been proved in this case is ; (1) that the appellant, a public servant, accepted some valuable things from Arumugam without consideration."
}
},
{
"from_name": null,
"id": "59e3ac0a7157456abbcd91a400ca4a6d",
"to_name": null,
"type": null,
"value": {
"end": 8099,
"labels": [
"ANALYSIS"
],
"start": 7998,
"text": "(2) Arumugam was concerned in an appeal against an order rejecting an application for export licence."
}
},
{
"from_name": null,
"id": "7143fd336b9242fb8ae875b58a2478fb",
"to_name": null,
"type": null,
"value": {
"end": 8241,
"labels": [
"ANALYSIS"
],
"start": 8100,
"text": "(3) this proceeding bad connection with the official functions of the Joint Chief Controller of Imports and Exports who was a public servant."
}
},
{
"from_name": null,
"id": "55b8927a89f145aba2cdad6712676c56",
"to_name": null,
"type": null,
"value": {
"end": 8410,
"labels": [
"ANALYSIS"
],
"start": 8241,
"text": "\n(4) The appellant knew that Arumugam was concerned in this proceeding having connection with the official function of the Joint Chief Controller of Imports and Exports."
}
},
{
"from_name": null,
"id": "fd044aaf49e545b7ba2a5e084bce4839",
"to_name": null,
"type": null,
"value": {
"end": 8534,
"labels": [
"ANALYSIS"
],
"start": 8411,
"text": "(5) The appellant was in respect of his official position subordinate to the Joint Chief Controller of Imports and Exports."
}
},
{
"from_name": null,
"id": "34685b77331144209777ef1e30be663c",
"to_name": null,
"type": null,
"value": {
"end": 8724,
"labels": [
"ANALYSIS"
],
"start": 8535,
"text": "It may be mentioned that it is not disputed that at the relevant time, viz., March, 1958, the accused was the Assistant Controller of Imports only and had nothing to do with export permits."
}
},
{
"from_name": null,
"id": "eb0b8d73258a4251b134895cef5cdfbe",
"to_name": null,
"type": null,
"value": {
"end": 8841,
"labels": [
"ANALYSIS"
],
"start": 8724,
"text": "\n All the ingredients of an offence under s.165, Indian Penal Code, appear therefore to have been proved prima facie."
}
},
{
"from_name": null,
"id": "5b27fac3b8d144eebf598704504ef1cc",
"to_name": null,
"type": null,
"value": {
"end": 9178,
"labels": [
"ANALYSIS"
],
"start": 8842,
"text": "Mr.\nKumaramangalam's contention is that the fifth fact mentioned above, viz., that the appellant was in respect of his official position 'subordinate\" to the Joint Chief Controller of Imports and Export is not sufficient to establish his \"subordination\" to the Joint Chief Controller of Imports and Exports within the meaning of s. 165."
}
},
{
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"id": "f10a7e5385084d45b840e753f730135f",
"to_name": null,
"type": null,
"value": {
"end": 9301,
"labels": [
"ANALYSIS"
],
"start": 9178,
"text": "\nSubordination of public servants to other public servants is a well known and inevitable feature of public administration."
}
},
{
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"id": "659c1051e43a4c26ac64072da03d53d1",
"to_name": null,
"type": null,
"value": {
"end": 9436,
"labels": [
"ANALYSIS"
],
"start": 9302,
"text": "And, when a question arises in any case whether a public servant A is a subordinate to public servant B it presents little difficulty."
}
},
{
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"id": "22cd939aa95545d28572505e56d76e7b",
"to_name": null,
"type": null,
"value": {
"end": 10014,
"labels": [
"ANALYSIS"
],
"start": 9437,
"text": "Thus, in that branch of the State's public administration which deals with regulation of Imports into and exports from India, one would state without difficulty that an Assistant Controller of Imports is \"subordinate\" to the Joint Chief Controller of Imports and Exports; so also the Assistant Controller of Exports is subordinate to the Joint Chief Controller of Imports and Exports; but the Assistant Controller of Exports is not subordinate to the Assistant Controller of Imports; nor is the Assistant Controller of Import subordinate to the Assistant Controller of Exports."
}
},
{
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"id": "065b6e7d45944a9a8578bc04da341634",
"to_name": null,
"type": null,
"value": {
"end": 10134,
"labels": [
"ANALYSIS"
],
"start": 10015,
"text": "According to the learned Counsel, in s. 165 the word \"subordinate\" should be interpreted as \"functionally subordinate\"."
}
},
{
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"id": "1f1a26ae94024a47a1d090575d1ba3fd",
"to_name": null,
"type": null,
"value": {
"end": 10544,
"labels": [
"ANALYSIS"
],
"start": 10135,
"text": "He contends that while the appellant was administratively subordinate to the Joint Chief Controller of Imports and Exports he was not \"functionally subordinate\" to that officer; as Assistant Controller of Imports, he had nothing to do with the matter of appeal against the rejection of the application for exports, so, he was not \"subordinate\" to the Joint Chief Controller, within the meaning of the section."
}
},
{
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"id": "50aaa540995645d9a87d27b1d2c50bfa",
"to_name": null,
"type": null,
"value": {
"end": 10742,
"labels": [
"ANALYSIS"
],
"start": 10544,
"text": "\nThe use of the words \"functionally subordinate\" does not appear to be very happy; as in every case of administrative subordination there is also subordination in respect of some functions at least."
}
},
{
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"id": "d595ba144e524ddc8cbb3fa05d61165a",
"to_name": null,
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"value": {
"end": 10951,
"labels": [
"ANALYSIS"
],
"start": 10743,
"text": "What the learned Counsel really meansby his argument is that \"subordinate\" in the section means \"subordinate in respect of those very official functions with which the business or transaction has connection.\""
}
},
{
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"id": "bbae7c4905bc4255aa8f0f114ccc3a1f",
"to_name": null,
"type": null,
"value": {
"end": 11635,
"labels": [
"ANALYSIS"
],
"start": 10952,
"text": "In support of his arguments he has drawn our attention to the provisions of a. 161, s. 162 and s. 163 of the Indian Penal Code and he points out that s. 161 makes punishable the taking by a public servant of gratification in respect of his officials act or his official functions; s. 162 makes punishable the taking of gratification by any person for inducing by corrupt or illegal means a public servant to do or not to do some thing in connection with his official functions; s. 163 makes punishable the taking of gratification by any person for inducing by the exercise of personal influence a public servant to do or not to do something in connection with his officials function."
}
},
{
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"id": "cc9f6ffe77ee4a41bf7377188e42e363",
"to_name": null,
"type": null,
"value": {
"end": 11731,
"labels": [
"STA"
],
"start": 11635,
"text": "\nSection 164 it may be mentioned makes punishable the abetment of offences under s. 162 and 163."
}
},
{
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"id": "2519b8b79bb2480d8d3b2541f9e45d9d",
"to_name": null,
"type": null,
"value": {
"end": 12049,
"labels": [
"ANALYSIS"
],
"start": 11732,
"text": "In this context, the learned Counsel argues, the words in s. 165 should be so interpreted as to make punishable only such taking of gratification by a public servant as has in some way connection with his own official functions, and so he argues \"subordinate\" in the section should be interpreted as suggested by him."
}
},
{
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"id": "1dc888867cd6433ea206f690fc4aca5f",
"to_name": null,
"type": null,
"value": {
"end": 12202,
"labels": [
"ANALYSIS"
],
"start": 12050,
"text": "To a emphasise his point he gave this illustration , X the Collector of a District is dealing with a matter of assessment of revenue on A's application."
}
},
{
"from_name": null,
"id": "9acb8ae6341b4ea0a6773186f15501b4",
"to_name": null,
"type": null,
"value": {
"end": 12510,
"labels": [
"ANALYSIS"
],
"start": 12203,
"text": "Y a office Peon of a department under the Collector which has nothing to do with revenue matters accepts money from A knowing that A has such business with X; Y will then be committing an offence under is. 165 even though Y has no connection whatsoever with the functions of X in respect of A's application."
}
},
{
"from_name": null,
"id": "22f17e5a385f4fd085f253a7ff142e37",
"to_name": null,
"type": null,
"value": {
"end": 12702,
"labels": [
"ANALYSIS"
],
"start": 12510,
"text": "\nIt will perhaps not often happen that Y will have an opportunity of accepting money from A when he has not even a plausible chance of doing something for A in connection with the application."
}
},
{
"from_name": null,
"id": "c9a0dade642148539cc94907e5d2146d",
"to_name": null,
"type": null,
"value": {
"end": 12908,
"labels": [
"ANALYSIS"
],
"start": 12703,
"text": "But, assuming that he has that opportunity and does accept the money as stated in the illustration above, we cannot see what untoward consequences will ensue if Y's conduct is made punishable under s. 165."
}
},
{
"from_name": null,
"id": "2fd353c7ce6c4579a9b6984ddf1746c5",
"to_name": null,
"type": null,
"value": {
"end": 13045,
"labels": [
"ANALYSIS"
],
"start": 12909,
"text": "It has to be noticed that s. 165 has been so worded as to cover cases of corruption which do not come within s. 161 or a. 162 or s. 163."
}
},
{
"from_name": null,
"id": "8fac7b7f853a406ea3e9b429b1c46169",
"to_name": null,
"type": null,
"value": {
"end": 13302,
"labels": [
"ANALYSIS"
],
"start": 13046,
"text": "When with that intention the legislature has used the word \"subordinate\" in s. 165 without any limitation there is no justification for reading into the word the limitation suggested by the learned Counsel by the words \"in respect of those very functions\"."
}
},
{
"from_name": null,
"id": "656e47c412c54b44819ebd82878bc1fc",
"to_name": null,
"type": null,
"value": {
"end": 13456,
"labels": [
"ANALYSIS"
],
"start": 13303,
"text": "It is plain that the interpretation suggested by Mr. Kumaramangalam needs the addition of some words in the section, and that is clearly not permissible."
}
},
{
"from_name": null,
"id": "17f2a85db2ca46d295f7413ad3df1b3a",
"to_name": null,
"type": null,
"value": {
"end": 13717,
"labels": [
"ANALYSIS"
],
"start": 13457,
"text": "By the use of the word \"subordinate\" without any qualifying words, the legislature has expressed its legislative intention of making punishable such subordinates also who have no connection with the function with which the business or transaction is concerned."
}
},
{
"from_name": null,
"id": "7456a6d7bfd84ffa8dce100ca2d59537",
"to_name": null,
"type": null,
"value": {
"end": 13900,
"labels": [
"ANALYSIS"
],
"start": 13718,
"text": "To limit the meaning of \"subordinate\" in the section as suggested by the learned Counsel would be defeating that legislative intention and laying down a different legislative policy."
}
},
{
"from_name": null,
"id": "e048599a5c88438c89baefb3c97e3e76",
"to_name": null,
"type": null,
"value": {
"end": 13935,
"labels": [
"ANALYSIS"
],
"start": 13901,
"text": "This the Court has no power to do."
}
},
{
"from_name": null,
"id": "1b5928e419e34a479934e0c3612b6b87",
"to_name": null,
"type": null,
"value": {
"end": 14052,
"labels": [
"ANALYSIS"
],
"start": 13936,
"text": "The argument that \"subordinate\" means something-more than \"administratively subordinate\" must therefore be rejected,"
}
},
{
"from_name": null,
"id": "25dd999bae1b4a4ab648ece094956ab2",
"to_name": null,
"type": null,
"value": {
"end": 14293,
"labels": [
"ANALYSIS"
],
"start": 14053,
"text": "The appellant has therefore rightly been held to be \"Subordinate\" to the Joint Chief Controller, even though the appellant had no functions to discharge in connection with the appeal before the Joint Chief Controller of Imports and Exports."
}
},
{
"from_name": null,
"id": "c445e37baa7d47b08aeffc754d5f8bf0",
"to_name": null,
"type": null,
"value": {
"end": 14529,
"labels": [
"ANALYSIS"
],
"start": 14293,
"text": "\nMr. Kumaramangalam then wanted to argue that the facts and circumstances of the case showed that Arumugam was a police informer and that he was really not concerned in the appeal before theJoint Chief Controller of Imports and Exports."
}
},
{
"from_name": null,
"id": "b0bffbd6ff76449b8ad3ad7bdc346aa2",
"to_name": null,
"type": null,
"value": {
"end": 14649,
"labels": [
"ANALYSIS"
],
"start": 14530,
"text": "Therefore, he points out, it would be reasonable to hold that no offence under s. 165 had been committed by his client."
}
},
{
"from_name": null,
"id": "2a048a3110504d469c166cf5420c7556",
"to_name": null,
"type": null,
"value": {
"end": 14968,
"labels": [
"ANALYSIS"
],
"start": 14650,
"text": "We find however that the High Court granted the certificate only on the ground that the question raised by the Counsel as regards the interpretation of the word \"subordinate\" in the section was a substantial question of law, which was not covered by any specific authority and was also a question of public importance."
}
},
{
"from_name": null,
"id": "a0fa2c6858464de0a2f8828f739a98fc",
"to_name": null,
"type": null,
"value": {
"end": 15150,
"labels": [
"RATIO"
],
"start": 14969,
"text": "In view of this we do not think it right to investigate the further question sought to be raised by Mr. Kumaramangalam in this case and we have not allowed him to argue that matter."
}
},
{
"from_name": null,
"id": "e647298fc99e40bbacd35c5d52d6740d",
"to_name": null,
"type": null,
"value": {
"end": 15308,
"labels": [
"RATIO"
],
"start": 15150,
"text": "\nWe think it proper to add that we have not been able to appreciate why the High Court thought it necessary to reduce the sentence imposed by the Trial Court."
}
},
{
"from_name": null,
"id": "be294027a0d04bd8b5dc09823843efd0",
"to_name": null,
"type": null,
"value": {
"end": 15345,
"labels": [
"RPC"
],
"start": 15308,
"text": "\nThe appeal is accordingly dismissed."
}
},
{
"from_name": null,
"id": "88a5472cd38c44af8c4329701382ce5d",
"to_name": null,
"type": null,
"value": {
"end": 15363,
"labels": [
"RPC"
],
"start": 15345,
"text": "\nAppeal dismissed."
}
}
]
}
] | 4,135 | {
"text": "PETITIONER:\nR. G. JACOB\n\n Vs.\n\nRESPONDENT:\nUNION OF INDIA\n\nDATE OF JUDGMENT:\n28/08/1962\n\nBENCH:\nDAYAL, RAGHUBAR\nBENCH:\nDAYAL, RAGHUBAR\nGAJENDRAGADKAR, P.B.\nGUPTA, K.C. DAS\n\nCITATION:\n\n1963 AIR 550 1963 SCR (3) 800\n\nCITATOR INFO : (19)\n (3)\nR 1972 SC2284\n\nRF 1986 SC2045\n\nACT:\nCirminal Trial-Public Servant accepting valuable things for\nsecuring export permit-'Subordinate', Meaning of-If means\nfunctionally subordinate--Indian Penal Code, 1860 (Act 45 of\n1860), s. 165.\n\nHEADNOTE:\nThe word 'subordinate' used without any qualification in s.\n165 of the Indian Penal Code indicates that the Legislature\nintended to include within its ambit also such subordinates\nas had no connection with the functions with which the\nproceeding or business was concerned. That word cannot be\nread as functionally subordinate' so as to defeat the inten-\ntion and policy of the Legislature.\nConsequently where an Assistant Controller of Imports was\nprosecuted for accepting valuable things for helping an\napplicant, who had appealed to the joint Chief Controller of\nImports and Exports. to secure a permit to export goods and\nwas convicted under s. 165 of the Indian Penal Code by the\nspecial Judge and such conviction was affirmed by the High\nCourt and the contention on appeal to this Court was that,\nalthough the appellant might be administratively subordinate\nto the joint Chief Controller of Imports and Exports, he was\nnot functionally so, having nothing to do with export\npermits, and was not, therefore, liable under the section.\nHeld, that the appellant was subordinate to the joint Chief\nController of Imports and Exports within the meaning of the\nsection and had been rightly convicted.\n\nJUDGMENT:\nCRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 116 of 1961.\nAppeal from the judgment and order dated December 14, 1960 of the Madras High Court in Criminal Appeal No. 933 of 1959.S. Mohan Kumar Mangalam, R. Ganapathy Iyer and G.\n Gopalakrishan, for the appellant.\nC. K. Daphtary Solicitor General of India, D, R. Prem, R. N. Sachthey and P. D. Menon, for the respondent.\n1962. August 28. The Judgement of the Court was delivered by DAS GUPTA, J. The appellant who was the Assistant Controller of Imports in the office of the Joint Chief Controller of Imports and Exports, Madras, was tried by the Special judge, Madras on three charges-one under section 161 of the Indian Penal Code, another under s. 5 (1) (d) read with s. 5 (2) of the Prevention of Corruption Act and the third-which was added later-under s. 165 of the Indian Penal Code. He was acquitted of the first two charges but was convicted of an offence under s. 165 of the Indian Penal Code and sentenced to rigorous imprisonment for one year.\nHe appealed to the High Court of Madras; but the High Court dismissed the appeal and affirmed the order of conviction, but reduced the sentence to that of fine of Rs. 400/- in default rigorous imprisonment for three months. The High Court has however granted a certificate under Article 134 (1) (c) of the constitution that this was a fit case for appeal to this Court. On the basis of that certificate this appeal has been filed.\nThis prosecution case is that one K. R. Naidu (who has been examined as prosecution witness No. 8) a merchant having export business in onions, chillies and groundnuts made on January 21, 1958, an application for export of chillies. He was informed by a letter dated March 5, 1958, that the application had been rejected. This letter was purported to be signed by the Assistant Controllerof Exports for the Joint Chief Controller of Imports and Exports. Arumugam (prosecution witness No. 1) who bad been acting on behalf of Naidu in this matter then sought the assistance of this appellant for getting a permit for Naidu.\nWhen he met the appellant later the same evening the appellant told him that an appeal would have to be preferred against the rejection order to the Joint Chief Controller of Imports and Exports, Rangaswamy. The appellant also proposed that if he was given two bags of cement and Rs.\n50/-he would use his influence and help him to get him the permit. Arumugam agreed and the appellant gave Arumugam a sheet of paper stating the address to which the cement was to be sent. On the next day the memorandum of appeal was sent by registered post to Rangaswamy, the Joint Chief Controller. The same day Arumugam saw the Deputy Superintendent, Special Police Establishment, and gave him a complaint in writing mentioning all the facts. A trap was thereafter laid with a view to catch the appellant in the actual act of accepting the bribe. On the evening of April 3, 1958, Arumugam went to the house of the appellant with two cement bags which had been marked by putting attested cards inside the bags and Rs. 50/in currency notes the number of which were noted by the Deputy Superintendent of Police. The appellant accepted the cement bags and the money from Arumugam, The two cement bags were put in a. room of the building as directed by the appellant. Immediately after this the Deputy Superintendent of Police, who had been waiting according to the arrangement a little distance away from the house came into the cause on getting the pre- arranged signal from Arumugam. He revealed his identity to the appellant and asked him to produce the money and cement bags. The accused then took him upstairs and opened an Almirah with his own keys and produced from inside the Almirah the very notes of which the number had been taken by the Deputy Superintendent of Police. The cement bags with the marks inside were also found down-stairs.\nThe accused pleaded not guilty. He admits the recovery of the cement bags and the currency notes from his house but pleads that neither of these have been given to him and that the notes were found on the table and the cement bags were in the hall nearby; and these had been kept in his house without his knowledge or consent by Arumugam who wanted to make up a false case against him. According to him the whole story of his being approached by Arumugam or his asking for cement bags or money, or accepting them, is entirely false.\nThe Special Judge as also the High Court accepted the prosecution evidence in these matters as true and rejected the defence version and Mr. Kumaramangalam has rightly not tried to challenge before us the findings of facts. His principal contention in support of the appeal is that assuming the findings to be true, an offence under s. 165, Indian Penal Code had not been established. This contention is based mainly on the fact that the appellant was Assistant Controller of Imports only and had no connection with the issue of export permits. According to the learned Counsel he was not therefore \"subordinate\" to the Joint Chief Cont- roller of Imports and Exports to whom the appeal petition had been filed and consequently his acceptance of cement bags from Arumugam did not amount to an offence under section 165 of the Indian Penal Code. Section 165 of the Indian Penal Code runs thus:- \"165. Whoever, being a public servant, accepts or obtains, or agrees to accept or attempts to obtain, for himself or for any other person, any valuable thing without consideration, or for a consideration which knows to be inadequate from any person whom he knows to have been or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by such public servant, or having arty connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.\"\nWhat has been proved in this case is ; (1) that the appellant, a public servant, accepted some valuable things from Arumugam without consideration. (2) Arumugam was concerned in an appeal against an order rejecting an application for export licence. (3) this proceeding bad connection with the official functions of the Joint Chief Controller of Imports and Exports who was a public servant.\n(4) The appellant knew that Arumugam was concerned in this proceeding having connection with the official function of the Joint Chief Controller of Imports and Exports. (5) The appellant was in respect of his official position subordinate to the Joint Chief Controller of Imports and Exports. It may be mentioned that it is not disputed that at the relevant time, viz., March, 1958, the accused was the Assistant Controller of Imports only and had nothing to do with export permits.\n All the ingredients of an offence under s.165, Indian Penal Code, appear therefore to have been proved prima facie. Mr.\nKumaramangalam's contention is that the fifth fact mentioned above, viz., that the appellant was in respect of his official position 'subordinate\" to the Joint Chief Controller of Imports and Export is not sufficient to establish his \"subordination\" to the Joint Chief Controller of Imports and Exports within the meaning of s. 165.\nSubordination of public servants to other public servants is a well known and inevitable feature of public administration. And, when a question arises in any case whether a public servant A is a subordinate to public servant B it presents little difficulty. Thus, in that branch of the State's public administration which deals with regulation of Imports into and exports from India, one would state without difficulty that an Assistant Controller of Imports is \"subordinate\" to the Joint Chief Controller of Imports and Exports; so also the Assistant Controller of Exports is subordinate to the Joint Chief Controller of Imports and Exports; but the Assistant Controller of Exports is not subordinate to the Assistant Controller of Imports; nor is the Assistant Controller of Import subordinate to the Assistant Controller of Exports. According to the learned Counsel, in s. 165 the word \"subordinate\" should be interpreted as \"functionally subordinate\". He contends that while the appellant was administratively subordinate to the Joint Chief Controller of Imports and Exports he was not \"functionally subordinate\" to that officer; as Assistant Controller of Imports, he had nothing to do with the matter of appeal against the rejection of the application for exports, so, he was not \"subordinate\" to the Joint Chief Controller, within the meaning of the section.\nThe use of the words \"functionally subordinate\" does not appear to be very happy; as in every case of administrative subordination there is also subordination in respect of some functions at least. What the learned Counsel really meansby his argument is that \"subordinate\" in the section means \"subordinate in respect of those very official functions with which the business or transaction has connection.\" In support of his arguments he has drawn our attention to the provisions of a. 161, s. 162 and s. 163 of the Indian Penal Code and he points out that s. 161 makes punishable the taking by a public servant of gratification in respect of his officials act or his official functions; s. 162 makes punishable the taking of gratification by any person for inducing by corrupt or illegal means a public servant to do or not to do some thing in connection with his official functions; s. 163 makes punishable the taking of gratification by any person for inducing by the exercise of personal influence a public servant to do or not to do something in connection with his officials function.\nSection 164 it may be mentioned makes punishable the abetment of offences under s. 162 and 163. In this context, the learned Counsel argues, the words in s. 165 should be so interpreted as to make punishable only such taking of gratification by a public servant as has in some way connection with his own official functions, and so he argues \"subordinate\" in the section should be interpreted as suggested by him. To a emphasise his point he gave this illustration , X the Collector of a District is dealing with a matter of assessment of revenue on A's application. Y a office Peon of a department under the Collector which has nothing to do with revenue matters accepts money from A knowing that A has such business with X; Y will then be committing an offence under is. 165 even though Y has no connection whatsoever with the functions of X in respect of A's application.\nIt will perhaps not often happen that Y will have an opportunity of accepting money from A when he has not even a plausible chance of doing something for A in connection with the application. But, assuming that he has that opportunity and does accept the money as stated in the illustration above, we cannot see what untoward consequences will ensue if Y's conduct is made punishable under s. 165. It has to be noticed that s. 165 has been so worded as to cover cases of corruption which do not come within s. 161 or a. 162 or s. 163. When with that intention the legislature has used the word \"subordinate\" in s. 165 without any limitation there is no justification for reading into the word the limitation suggested by the learned Counsel by the words \"in respect of those very functions\". It is plain that the interpretation suggested by Mr. Kumaramangalam needs the addition of some words in the section, and that is clearly not permissible. By the use of the word \"subordinate\" without any qualifying words, the legislature has expressed its legislative intention of making punishable such subordinates also who have no connection with the function with which the business or transaction is concerned. To limit the meaning of \"subordinate\" in the section as suggested by the learned Counsel would be defeating that legislative intention and laying down a different legislative policy. This the Court has no power to do. The argument that \"subordinate\" means something-more than \"administratively subordinate\" must therefore be rejected, The appellant has therefore rightly been held to be \"Subordinate\" to the Joint Chief Controller, even though the appellant had no functions to discharge in connection with the appeal before the Joint Chief Controller of Imports and Exports.\nMr. Kumaramangalam then wanted to argue that the facts and circumstances of the case showed that Arumugam was a police informer and that he was really not concerned in the appeal before theJoint Chief Controller of Imports and Exports. Therefore, he points out, it would be reasonable to hold that no offence under s. 165 had been committed by his client. We find however that the High Court granted the certificate only on the ground that the question raised by the Counsel as regards the interpretation of the word \"subordinate\" in the section was a substantial question of law, which was not covered by any specific authority and was also a question of public importance. In view of this we do not think it right to investigate the further question sought to be raised by Mr. Kumaramangalam in this case and we have not allowed him to argue that matter.\nWe think it proper to add that we have not been able to appreciate why the High Court thought it necessary to reduce the sentence imposed by the Trial Court.\nThe appeal is accordingly dismissed.\nAppeal dismissed."
} |
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"start": 49,
"text": "\n\n DISTRICT- SUNDARGARH."
}
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"text": "\n\nPresent :"
}
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"start": 107,
"text": " Sri Amaresh Nayak,M.A, LL.M.,\n S.D.J.M., Panposh."
}
},
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"end": 246,
"labels": [
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"start": 201,
"text": "G.R. Case No. 734/16\n Trial."
}
},
{
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"id": "6c01025df2c14ef8b040ac35cf93ac51",
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"end": 258,
"labels": [
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"start": 247,
"text": "No.123/2016"
}
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"start": 258,
"text": "\n\n S T A T E\n\n Vrs.\n\n 1.Santanu Chhatria @ Gandhi, aged about 21\n years, S/o-Late Jayaram Chhatria.\n\n 2.Anu Chhatria, aged about 28 years, D/o-Late\n Jayaram Chhatria.\n\n 3.Rasa Chhatria, aged about 50 years, W/o-Late\n Jayaram Chhatria\n "
}
},
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"value": {
"end": 748,
"labels": [
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],
"start": 658,
"text": "All are resident of Dwarikadas Daffai,\n P.S-Birmitrapur, Dist-Sundargarh."
}
},
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"id": "bd8505bc8a4b4337a93ec8cd11e838b8",
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"end": 1003,
"labels": [
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"start": 768,
"text": "4.Pima Chhatria, aged about 27 years,D/o- Late\n Jayaram Chatria and W/o-Sunil Tandi of Golghar\n of Sector-5, P.S- Sector-7, Dist-Sundargarh.\n\n ..."
}
},
{
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"value": {
"end": 1019,
"labels": [
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"start": 1003,
"text": "Accused persons."
}
},
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"end": 1073,
"labels": [
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"start": 1019,
"text": "\n\nOffences U/s 452/294/323/506/34 of Indian Penal Code"
}
},
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"start": 1073,
"text": "\n\nCounsel for Prosecution :"
}
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"end": 1174,
"labels": [
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"start": 1108,
"text": "Shri J.B.Sunani\nCounsel for Defence : A.P.P., Rourkela."
}
},
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"end": 1279,
"labels": [
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"start": 1174,
"text": "\n Shri B.Garud & Assts.\n\n Adv., Rourkela."
}
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"start": 1279,
"text": "\n\nDate of Argument : 10.07.2017\nDate of Judgment"
}
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"end": 1342,
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"start": 1329,
"text": " : 24.07.2017"
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"end": 1390,
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"start": 1342,
"text": "\n\n J U D G M E N T"
}
},
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"id": "32dc67dabcc6435a883a0da683193bac",
"to_name": "text",
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"value": {
"end": 1502,
"labels": [
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"start": 1390,
"text": "\n The accused persons stand charged for the offences punishable U/s 452/294/323/506/34 of the Indian Penal Code."
}
},
{
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"id": "8dba5f3876824438a818db9e4e4d0105",
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"end": 1770,
"labels": [
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"start": 1502,
"text": "\n 2. The prosecution case in nut shell is as follows :- On 09.05.2016 at about 11.30 A.M the complainant Geeta Badaik lodged a written report at Birmitrapur P.S to the effect that neice of accused Santanu @ Gandhi used to go to her house for doing tuition of her son."
}
},
{
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"id": "3a14e32ba6c54212ac03ba8bab4641d4",
"to_name": "text",
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"value": {
"end": 1846,
"labels": [
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],
"start": 1771,
"text": "Some times her uncle accused Santanu @ Gandhi also used to go to her house."
}
},
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"id": "c7d86eb52a7c4964a615b039b4f0f7db",
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"value": {
"end": 1937,
"labels": [
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],
"start": 1847,
"text": "Subsequently, complainant and her husband denied the accused Santanu to go to their house."
}
},
{
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"id": "776416310fba4f4ca9a786da921130fd",
"to_name": "text",
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"value": {
"end": 2160,
"labels": [
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],
"start": 1938,
"text": "On 03.05.2016 at about 10 A.M while her husband was absent in the house accused Santanu @ Gandhi went to her house and abused her in filthy language, assaulted her by pressing her neck and threatened with dire consequence."
}
},
{
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"id": "565ed4801eeb428ea540feeba9eb0b32",
"to_name": "text",
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"value": {
"end": 2205,
"labels": [
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],
"start": 2161,
"text": "Accused also threatened to kill her husband."
}
},
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"id": "3b1a36f1e0514ebd94769b40e380b52c",
"to_name": "text",
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"value": {
"end": 2416,
"labels": [
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],
"start": 2205,
"text": "\n Again on 04-05- 2016, the mother of accused Gandhi and his two sisters namely Pima and Annu went to her house, dragged her from the house and abused her in filthy language and threatened with dire consequence."
}
},
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"id": "e1f15f4753e74546b0c22f3fca7e74fa",
"to_name": "text",
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"value": {
"end": 2547,
"labels": [
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],
"start": 2418,
"text": "On her report IIC, Birmitrapur P.S registered P.S. case No.62/2016 and directed ASI of police B.K.Barla to take up investigation."
}
},
{
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"id": "3c421124dfee42dab319f51af24b016d",
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"value": {
"end": 2800,
"labels": [
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],
"start": 2548,
"text": "During course of investigation, subsuequent I.O ASI of Police Mohan Chandra Kharsel visited the spot, prepared spot map, examined the complainant and other witnesses and on completion of investigation submitted charge sheet against the accused persons."
}
},
{
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"value": {
"end": 2876,
"labels": [
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"start": 2800,
"text": "\n 3. The accused persons pleaded innocence and false implication."
}
},
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"labels": [
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"start": 2878,
"text": "4. The points for determination in this case are as follows:- (I) Whether on 03.05.2016 and 04.05.2016 at around 10AM, accused persons in furtherance of their common intention committed house tresspass by forcibly entering into the house of complainant with an intent to assault the complainant ?"
}
},
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"start": 3175,
"text": "\n (II)Whether on the said dates, time and place accused persons in furtherance of their common intention abused the informant in obscene language causing annoyance to her and others ?"
}
},
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],
"start": 3361,
"text": "\n (III)Whether on the said dates, time and place accused persons in furtherance of their common intention assaulted the informant causing injury and thus voluntarily caused hurt ?"
}
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"start": 3543,
"text": "\n (IV)Whether on the said dates, time and place accused persons in furtherance of their common intention threatened the informant as well to her husband with dire consequence ?"
}
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"id": "d91d756ed64e4a0a9a829431e424340a",
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"end": 3791,
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"text": "\n 5. In support of its case prosecution has examined nine witnesses."
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"end": 4145,
"labels": [
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"start": 3792,
"text": "P.W.1 is the informant, P.W.2 is the husband of P.W.1, P.W.3 is an independent occurrence witness, P.W.4 is the younger sister of the complainant, P.W.5 is the cousin brother-in-law of complainant, P.W.6 is the Medical Officer who examined the complainant-cum-injured, P.W.7 is the elder sister of complainant, P.W.8 and P.W.9 are the I.Os of this case."
}
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"text": "On the other hand defence has examined all the accused persons as witnesses along with another having altogether examined five defence witnesses as D.W.1, D.W.2, D.W.3, D.W.4 and D.W.5 in support of its plea."
}
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"start": 4354,
"text": "\n 6. P.W.1 who is the complainant in this case deposed before this court that neice of accused Santanu used to visit their house for doing tuition of her son."
}
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"start": 4514,
"text": "She further stated that along with his neice accused Santanu also started coming to their house and since 4 to 5 months prior to the date of incident, Santanu and his neice used to visit their house."
}
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"end": 4895,
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],
"start": 4714,
"text": "P.W.1 further stated that her husband denied accused Santanu to visit their house and for which they discontinued tuition but inspite of that Santanu continued to visit their house."
}
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"labels": [
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"start": 4896,
"text": "P.W.1 stated that on dtd. 03.05.2016 she along with her husband had gone to market and had returned from market and her son had gone for tuition at nearby place and when he returned, she opened the door and went to kitchen and started cooking there."
}
},
{
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"end": 5307,
"labels": [
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],
"start": 5146,
"text": "At that point of time accused Santanu entered into their house finding the door of the house open and pressed her neck and assaulted her by slapping on her face."
}
},
{
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"id": "e1e6c75c2488450d968de65fc24aa600",
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"value": {
"end": 5398,
"labels": [
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],
"start": 5308,
"text": "P.W.1 further stated that accused asked her as to why she denied him to visit their house."
}
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"id": "d225a38432c341418f2c5469788dc582",
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"value": {
"end": 5470,
"labels": [
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],
"start": 5399,
"text": "It is further alleged that accused also threatened her husband to kill."
}
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"value": {
"end": 5681,
"labels": [
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],
"start": 5471,
"text": "P.W.1 further stated in her evidence that at the time of incident, her brother-in-law ( P.W.5) arrived at the spot and rescued her and she intimated the matter to her husband over phone who arrived at the spot."
}
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"id": "cad320c5b5ef4f45bcb993d752381803",
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"end": 5943,
"labels": [
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],
"start": 5682,
"text": "P.W.1 further stated that after this incident on dtd 04-05-2016 at 10 A.M. two sisters of accused Santanu namely Pima and Anu and their mother arrived there and forcibly tried to remove her of their house and pushed and dragged her in the corridor of her house."
}
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"end": 6155,
"labels": [
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],
"start": 5944,
"text": "She further stated that her husband arrived on getting information and accused persons Pima, Anu and mother of Santanu abused her in filthy language by saying 'CHARITRAHIN', 'VASIYA' for which she felt insulted."
}
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{
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"id": "04b70908a4064c75ba27930316329248",
"to_name": "text",
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"value": {
"end": 6264,
"labels": [
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],
"start": 6156,
"text": "P.W.-1 admitted her signature on the FIR which is marked as Ext-1 and her signature on it marked as Ext-1/1."
}
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{
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"id": "4aa7f8e2e5b2411bab668e0358c4db52",
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"value": {
"end": 6384,
"labels": [
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],
"start": 6266,
"text": "P.W.1 admitted her signature on the Medical Report which is marked as Ext-2 and her signature on it marked as Ext-2/1."
}
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{
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"id": "da3634fb2505408ea5d1bdc012c2417e",
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"value": {
"end": 6454,
"labels": [
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],
"start": 6385,
"text": "P.W.2 who is the husband of P.W.1 corroborated the evidence of P.W.1."
}
},
{
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"id": "2b98bbedebdd4d378d6f9b04747a49c2",
"to_name": "text",
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"value": {
"end": 6723,
"labels": [
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],
"start": 6455,
"text": "P.W.2 stated that on 03.05.2016 he was in his duty and on getting telephonic call from his wife at about 9 A.M to 10 A.M, he immediately rushed to his residence and found that accused Santanu and his brother Arun (P.W.- 5) and other ladies were present in their house."
}
},
{
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"id": "12688e4d6ccb418fb1c24117316aad3e",
"to_name": "text",
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"end": 6856,
"labels": [
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],
"start": 6724,
"text": "P.W.2 further stated that P.W.5 was trying to restrain the accused person but accused Santanu was creating disturbance and fighting."
}
},
{
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"id": "5f1d66a0ebf543b39dac499ee840f22f",
"to_name": "text",
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"value": {
"end": 6999,
"labels": [
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],
"start": 6857,
"text": "P.W.2 further stated that he tried to pacify the matter but accused Santanu continued to abuse her wife saying that his wife is characterless."
}
},
{
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"id": "b31a27750e1e4a07a353935eef51e2f7",
"to_name": "text",
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"end": 7162,
"labels": [
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],
"start": 7000,
"text": "P.W.2 further stated that on the next day i.e. 04.05.2016 he again got call that accused Santanu had arrived in his house and creating disturbance and assaulting."
}
},
{
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"id": "22caf33a69ee42479f60ce2a2ac4dd2c",
"to_name": "text",
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"value": {
"end": 7368,
"labels": [
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],
"start": 7163,
"text": "On getting such information he reached at the house and found that accused Santanu's mother and his two sister Pima and Annu were abusing his wife saying him 'VYASIA' and on his arrival they left the spot."
}
},
{
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"id": "fe590255b6954e0c9daa63c0268d8ed2",
"to_name": "text",
"type": "labels",
"value": {
"end": 7474,
"labels": [
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],
"start": 7369,
"text": "P.W.-2 categorically stated that he felt defamed due to such abusive language used by the accused person."
}
},
{
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"id": "ae258b41097f4be9ac5a153111668c2a",
"to_name": "text",
"type": "labels",
"value": {
"end": 7591,
"labels": [
"ANALYSIS"
],
"start": 7475,
"text": "P.W.1 and P.W.2 both are occurrence witnesses in this case who corroborated the prosecution story in their evidence."
}
},
{
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"id": "f3dd199c29d34c2e8fc9bf0573cdd74a",
"to_name": "text",
"type": "labels",
"value": {
"end": 7734,
"labels": [
"ANALYSIS"
],
"start": 7592,
"text": "P.W.4-Sabita Badaik and P.W-7 Gulabi Badaik are post occurrence witnesses in this case who happens to be the elder sisters of the complainant."
}
},
{
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"id": "8f54a785f3ba455cad6d869ecbe1547b",
"to_name": "text",
"type": "labels",
"value": {
"end": 7962,
"labels": [
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],
"start": 7735,
"text": "P.W.-4 and P.W.-7 stated in their evidence that on 04.05.2016, her sister Gita Badaik (P.W.1) called them over phone and stated that her neighbour Santanu @ Gandhi had entered into her house and abused her and pressed her neck."
}
},
{
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"id": "f8f47fd568194da6a2e4d6496e2a88f8",
"to_name": "text",
"type": "labels",
"value": {
"end": 8252,
"labels": [
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],
"start": 7963,
"text": "P.W.4 and P.W.-7 stated that at the time of getting information about the incident they were at Rourkela and on getting such information P.W.-4 along with P.W.-7 her another sister Gulabi Badaik proceeded to the spot at Birmitrapur and on their arrival P.W.1 narrated the incident to them."
}
},
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"end": 8653,
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],
"start": 8253,
"text": "P.W.4 and P.W.-7 further stated that P.W.-1 narrated the incident to them that on 03.05.2016 accused Gandhi had entered their house, abused her and pressed her neck and on the next day i.e. on 04-05-2016 at around 10 A.M., two sisters of the accused Santanu @ Gandhi namely Anu and Pima along along with their mother dragged P.W.-1 out of her house and abused her saying 'BHASIYA' and 'CHARITRAHINA'."
}
},
{
"from_name": "label",
"id": "6e6d63057fa04a1a86dadabb40967098",
"to_name": "text",
"type": "labels",
"value": {
"end": 8720,
"labels": [
"ANALYSIS"
],
"start": 8654,
"text": "P.W.4 stated that husband of Geeta arrived there and rescued them."
}
},
{
"from_name": "label",
"id": "ff58d448a9864831a484d2e41d168a7f",
"to_name": "text",
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"value": {
"end": 8824,
"labels": [
"ANALYSIS"
],
"start": 8721,
"text": "P.W.5 is another occurrence witness in this case who is cousin brother-in-law of Geeta Badaik ( P.W.1)."
}
},
{
"from_name": "label",
"id": "f5eb16f195654a2688c8209ec8bc88f0",
"to_name": "text",
"type": "labels",
"value": {
"end": 9020,
"labels": [
"ANALYSIS"
],
"start": 8825,
"text": "P.W.5 stated that on 03.05.2016 at about 9 A.M to 10 A.M he had been to his sister-in-law's house i.e. P.W.-1 Geeta Badaik for drinking water and he saw that accused Santanu was assaulting P.W.1."
}
},
{
"from_name": "label",
"id": "48109e5793c34672bee1fcd19f246b00",
"to_name": "text",
"type": "labels",
"value": {
"end": 9090,
"labels": [
"ANALYSIS"
],
"start": 9021,
"text": "P.W.5 stated that he rescued her and other people had gathered there."
}
},
{
"from_name": "label",
"id": "52bd62c02b9b463d91a7c6881d0c185c",
"to_name": "text",
"type": "labels",
"value": {
"end": 9164,
"labels": [
"ANALYSIS"
],
"start": 9091,
"text": "P.W.-5 further stated that P.W.1 intimated her husband who arrived there."
}
},
{
"from_name": "label",
"id": "d771aca65fa2408b865ff2894d6a6fdb",
"to_name": "text",
"type": "labels",
"value": {
"end": 9315,
"labels": [
"ANALYSIS"
],
"start": 9165,
"text": "P.W.-5 explictly stated that P.W.-2 had previously restrained Santanu to come to their house but he did not listen and continued to visit their house."
}
},
{
"from_name": "label",
"id": "d2d832331aef47c08389c56c486f19c0",
"to_name": "text",
"type": "labels",
"value": {
"end": 9772,
"labels": [
"ANALYSIS"
],
"start": 9315,
"text": "\n 7. In order to constitute an offence U/sec.452 of I.P.C. prosecution has to prove that accused persons have committed criminal trespass by entering into or remaining unlawfully in any building or tent or vessel used as a human dwelling, or any building, used as a place of worship or as a place for custody of property with an intent to have made preparation to cause hurt to any person or for assaulting any person or putting in fear of hurt or assault."
}
},
{
"from_name": "label",
"id": "4c0425f92ab04645b11b907207101e20",
"to_name": "text",
"type": "labels",
"value": {
"end": 10146,
"labels": [
"ANALYSIS"
],
"start": 9773,
"text": "In the instant case prosecution witnesses have supported the case of the prosecution and have clearly stated that on 03.05.2016 accused Santanu entered into the house of the complainant P.W.-1 and on the following day i.e. on 04.05.2016 accused persons Pima Chhatria, Annu Chhatria and mother of Santanu @ Gandhi went inside the house of P.W.1 and abused and assaulted her."
}
},
{
"from_name": "label",
"id": "a377f9a447c4481ba5a285d78b027594",
"to_name": "text",
"type": "labels",
"value": {
"end": 10294,
"labels": [
"ANALYSIS"
],
"start": 10147,
"text": "The fact of such house trespass into the house of P.W.1 has been duly corroborated by P.W.1, P.W.2 and P.W.5 who are direct witnesses in this case."
}
},
{
"from_name": "label",
"id": "d490c311005f403dad6c416255b0c818",
"to_name": "text",
"type": "labels",
"value": {
"end": 10462,
"labels": [
"ANALYSIS"
],
"start": 10295,
"text": "P.W.4 and P.W.7 who are post occurrence witnesses in this case have also supported the case of the prosecution and corroborated the evidence of P.W.1, P.W.2 and P.W.5."
}
},
{
"from_name": "label",
"id": "dfa9fe456dfe41838e9348563a36caf6",
"to_name": "text",
"type": "labels",
"value": {
"end": 10868,
"labels": [
"ANALYSIS"
],
"start": 10462,
"text": "\nThough the evidence of P.W.4 and P.W-7 are hearsay but it seems consistent and corroborates with the occurrence witnesses. Section- 452 I.P.C provides that such house trespass is committed by the accused i)either with preparation of causing hurt to a person, ii)assaulting any person, iii)wrongful restrain of any person, iv)for putting some person in fear of hurt, or of assault or of wrongful restraint."
}
},
{
"from_name": "label",
"id": "4d000742a9ff4c5983dcb593b85ebbb6",
"to_name": "text",
"type": "labels",
"value": {
"end": 11131,
"labels": [
"ANALYSIS"
],
"start": 10869,
"text": "In the instant case there is ample evidence on record to suggest that accused Santanu trespassed into the house of P.W.1 on 03.05.2016 and assaulted P.W.1 and further on 04.05.2017 other accused persons forcibly entered into the house of P.W.1 and assaulted her."
}
},
{
"from_name": "label",
"id": "eb6b19ba91b54ba8946770b2c7df8720",
"to_name": "text",
"type": "labels",
"value": {
"end": 11203,
"labels": [
"ANALYSIS"
],
"start": 11132,
"text": "All the prosecution witnesses have squarely proved the alleged offence."
}
},
{
"from_name": "label",
"id": "2e1e4657b9304b308e62e37bc84304c6",
"to_name": "text",
"type": "labels",
"value": {
"end": 11289,
"labels": [
"ANALYSIS"
],
"start": 11204,
"text": "So ingredients of Section-452 of I.P.C. is well made out against the accused persons."
}
},
{
"from_name": "label",
"id": "49d5d5c106e94d2a9ad6a930d1834352",
"to_name": "text",
"type": "labels",
"value": {
"end": 11436,
"labels": [
"ANALYSIS"
],
"start": 11289,
"text": "\n 8. In order to constitue an offence U/Sec 323 of IPC, prosecution is to establish that the accused persons voluntariy caused hurt to the victim."
}
},
{
"from_name": "label",
"id": "fc613a847f8e4b75a1563c8050ad3a3e",
"to_name": "text",
"type": "labels",
"value": {
"end": 11555,
"labels": [
"ANALYSIS"
],
"start": 11437,
"text": "P.W.-1 stated in her evidence that accused Santanu pressed her neck and assaulted her and further slapped her on face."
}
},
{
"from_name": "label",
"id": "b4b83deaac91459bac8888ae045544ad",
"to_name": "text",
"type": "labels",
"value": {
"end": 11633,
"labels": [
"ANALYSIS"
],
"start": 11555,
"text": "\n P.W.-1 also stated that other accused persons dragged her and assaulted her."
}
},
{
"from_name": "label",
"id": "124127b2bb7643e8a6bcc52f1902ef56",
"to_name": "text",
"type": "labels",
"value": {
"end": 11691,
"labels": [
"ANALYSIS"
],
"start": 11634,
"text": "P.W.-2 and P.W-5 also corroborated the evidence of P.W-1."
}
},
{
"from_name": "label",
"id": "a8c09d478af641b1a39c52f90aa3d6e8",
"to_name": "text",
"type": "labels",
"value": {
"end": 11900,
"labels": [
"ANALYSIS"
],
"start": 11692,
"text": "Prosecution has examined the Medical Officer as P.W.6 who stated in his evidence that on 09.05.2016 on police requisition he examined the victim Gita Badaik, W/o-Bijay Badaik and found the following injuries."
}
},
{
"from_name": "label",
"id": "061ad1558f754d4b8575b252122d879a",
"to_name": "text",
"type": "labels",
"value": {
"end": 11996,
"labels": [
"ANALYSIS"
],
"start": 11902,
"text": "i) Two Nos of bruise of size 2\"x 1\"x 1/4\" and another 1/2\"x 1\"x1/4\"\non left side of the neck ."
}
},
{
"from_name": "label",
"id": "026525156e1547b6ae4401e547c67a61",
"to_name": "text",
"type": "labels",
"value": {
"end": 12085,
"labels": [
"ANALYSIS"
],
"start": 11997,
"text": "The nature of injury is simple and might have been caused by Rough hard object (Finger)."
}
},
{
"from_name": "label",
"id": "3837e3030617492a8fb8f4d46cda9d31",
"to_name": "text",
"type": "labels",
"value": {
"end": 12128,
"labels": [
"ANALYSIS"
],
"start": 12086,
"text": "The colour of the injury changed to black."
}
},
{
"from_name": "label",
"id": "d05df003326c4a8085d06defd23ec571",
"to_name": "text",
"type": "labels",
"value": {
"end": 12196,
"labels": [
"ANALYSIS"
],
"start": 12129,
"text": "Hence the time of injury is more than 72 hours from the examiation."
}
},
{
"from_name": "label",
"id": "9562c233a86749489a47f3aaf119b174",
"to_name": "text",
"type": "labels",
"value": {
"end": 12279,
"labels": [
"ANALYSIS"
],
"start": 12198,
"text": "ii) Two Nos of bruise of 2\"x 3/4\"x 1/4\" and another 1/2\"x3/4\"x1/4\"\non left cheek."
}
},
{
"from_name": "label",
"id": "1d9256f96bc748e79b913b8b929b7bd9",
"to_name": "text",
"type": "labels",
"value": {
"end": 12372,
"labels": [
"ANALYSIS"
],
"start": 12280,
"text": "The nature of injury is simple and might have been caused by Rough and Hard object (Finger)."
}
},
{
"from_name": "label",
"id": "97ce01d6c8594fd8bbc0d57767c3c3e3",
"to_name": "text",
"type": "labels",
"value": {
"end": 12415,
"labels": [
"ANALYSIS"
],
"start": 12373,
"text": "The colour of the injury changed to black."
}
},
{
"from_name": "label",
"id": "82418f0f289546d9af0ab925e4ec8fad",
"to_name": "text",
"type": "labels",
"value": {
"end": 12474,
"labels": [
"ANALYSIS"
],
"start": 12416,
"text": "Time of injury is more that 72 hours from the examination."
}
},
{
"from_name": "label",
"id": "ced016c13e874418a843072ecbb153c5",
"to_name": "text",
"type": "labels",
"value": {
"end": 12565,
"labels": [
"ANALYSIS"
],
"start": 12474,
"text": "\n P.W.-6 further stated that such injuries may be caused due to pressure on neck with hand."
}
},
{
"from_name": "label",
"id": "534fbbe47b8f41f5bcaff72766f1246b",
"to_name": "text",
"type": "labels",
"value": {
"end": 12741,
"labels": [
"ANALYSIS"
],
"start": 12567,
"text": "8.1 With regard to the medical examination of P.W-1, Medical officer P.W.6 stated in her evidence that on 09.05.2016, he received police requisition and examined the victim."
}
},
{
"from_name": "label",
"id": "f4ae22e47395430faac3411d61c65683",
"to_name": "text",
"type": "labels",
"value": {
"end": 12861,
"labels": [
"ANALYSIS"
],
"start": 12742,
"text": "P.W.-6 admitted his signature on the medical report which is marked as Ext.2 and his signature on it marked as Ext.2/1."
}
},
{
"from_name": "label",
"id": "def1df5ed959454ca9208c05a3c968d7",
"to_name": "text",
"type": "labels",
"value": {
"end": 13062,
"labels": [
"ANALYSIS"
],
"start": 12862,
"text": "The evidence of medical officer P.W.6 fully corroborates with the evidence of P.W.1 and P.W.2 with regard to the manner, nature , time since injury and parts of the body on which injury was inflicted."
}
},
{
"from_name": "label",
"id": "84ae04eb727b44819fae13341fb0b937",
"to_name": "text",
"type": "labels",
"value": {
"end": 13182,
"labels": [
"ANALYSIS"
],
"start": 13063,
"text": "Both P.W.1 and P.W.2 stated in their evidence that accused persons dragged P.W.-1 and accused santanu pressed her neck."
}
},
{
"from_name": "label",
"id": "9146bd86f7de4c9c9a05eaad7ca02747",
"to_name": "text",
"type": "labels",
"value": {
"end": 13338,
"labels": [
"ANALYSIS"
],
"start": 13183,
"text": "P.W.6 deposed in his evidence that he had prepared the injury report marked as Ext.2 which reveals that injury is sustained by P.W.1 on her neck and cheek."
}
},
{
"from_name": "label",
"id": "3bc1b1497bad4e0cbb5f0e1ccdf70cbd",
"to_name": "text",
"type": "labels",
"value": {
"end": 13524,
"labels": [
"ANALYSIS"
],
"start": 13339,
"text": "P.W.1 and P.W.2 had deposed in their evidence that P.W.-1 had sustained injury as accused Santanu pressed her neck and other accused persons dragged her from her home and assaulted her."
}
},
{
"from_name": "label",
"id": "f3d896e80c0e403ba61c58f259eb49ba",
"to_name": "text",
"type": "labels",
"value": {
"end": 13702,
"labels": [
"ANALYSIS"
],
"start": 13525,
"text": "P.W.6 corroborated the same with his opinion report that the nature of injury found on the neck and cheek of the injured might have been caused by Rough hard object like finger."
}
},
{
"from_name": "label",
"id": "0e67dc10c4904688afa676554939bf25",
"to_name": "text",
"type": "labels",
"value": {
"end": 13817,
"labels": [
"ANALYSIS"
],
"start": 13703,
"text": "The time of injury as reflected in the Medical report marked as Ext-2 also corroborates with the time of incident."
}
},
{
"from_name": "label",
"id": "4163c66c2ee54c648a4d4e4707501ea2",
"to_name": "text",
"type": "labels",
"value": {
"end": 13931,
"labels": [
"ANALYSIS"
],
"start": 13818,
"text": "The Medical report reveals that the injury might have been caused more than 72 hours from the time of examiation."
}
},
{
"from_name": "label",
"id": "7a53e2c54fe144b386c9c2abb26d19a8",
"to_name": "text",
"type": "labels",
"value": {
"end": 14044,
"labels": [
"ANALYSIS"
],
"start": 13932,
"text": "The incident occurred on 03-05-2016 and 04-05-2016 and the medical examination of P.W.-1 was made on 09-05-2016."
}
},
{
"from_name": "label",
"id": "fdd4a33b7fb24cf5b75a067236d43f78",
"to_name": "text",
"type": "labels",
"value": {
"end": 14241,
"labels": [
"ARG_RESPONDENT"
],
"start": 14044,
"text": "\n 8.2 Learned defence counsel during course of argument brought to light that victim P.W.1 and her husband P.W.2 and brother-in law P.W.-5 are related witnesses and hence are interested."
}
},
{
"from_name": "label",
"id": "8d2e90da19764192b077e4ec981c6114",
"to_name": "text",
"type": "labels",
"value": {
"end": 14602,
"labels": [
"ARG_RESPONDENT"
],
"start": 14242,
"text": "Ld. defence counsel in the course of argument assailed the case of the prosecution and submitted before this court that there is previous animosity and bitterness between the informant and the accused persons and P.W.-1 and P.W.-2 are interested witness and hence much relevance cannot be given to their evidences and their evidence are liable to be discarded."
}
},
{
"from_name": "label",
"id": "7661a8fcafe541a18bf58c03196eff03",
"to_name": "text",
"type": "labels",
"value": {
"end": 14879,
"labels": [
"ARG_RESPONDENT"
],
"start": 14603,
"text": "It is the settled principle of appreciation of evidence that while appreciating the evidence of an interested or related witness having an interest in seeing the accused punished and also having some enmity with the accused, the court should take enormous care and precaution."
}
},
{
"from_name": "label",
"id": "32c714f19460435f9269845a68eedb5a",
"to_name": "text",
"type": "labels",
"value": {
"end": 14935,
"labels": [
"ANALYSIS"
],
"start": 14880,
"text": "A related witness is not akin to an interested witness."
}
},
{
"from_name": "label",
"id": "050f86f1667b40b1ae63cd12872636f9",
"to_name": "text",
"type": "labels",
"value": {
"end": 15041,
"labels": [
"ANALYSIS"
],
"start": 14936,
"text": "A witness may be called an \"interested\" only when he derives some benefit in seeing the accused punished."
}
},
{
"from_name": "label",
"id": "0bb342f6b90e4f1899bfe5ca573a392a",
"to_name": "text",
"type": "labels",
"value": {
"end": 15176,
"labels": [
"ANALYSIS"
],
"start": 15042,
"text": "A witness who is a natural one and is the only possible eyewitness in the circumstances of the case cannot be said to be \"interested\"."
}
},
{
"from_name": "label",
"id": "1f0549a452be4cb3bb1cdf9d1e66c5c4",
"to_name": "text",
"type": "labels",
"value": {
"end": 15397,
"labels": [
"ARG_RESPONDENT"
],
"start": 15176,
"text": "\n 8.3 Learned defence counsel during course of argument brought to light the fact that there was previous animosity and hostile relationship between the accused persons and the victim-injured P.W.1 and her husband P.W.2."
}
},
{
"from_name": "label",
"id": "ff2d4038ef5240c890a3bcd87ef4d303",
"to_name": "text",
"type": "labels",
"value": {
"end": 15580,
"labels": [
"ARG_RESPONDENT"
],
"start": 15398,
"text": "Learned counsel argued that the accused persons had been falsely implicated as P.W.-1 had asked for money from the accused Santanu and on his refusal, she had lodged this false case."
}
},
{
"from_name": "label",
"id": "f1e88ef001fe474ebbb0c5f8def3aa10",
"to_name": "text",
"type": "labels",
"value": {
"end": 15779,
"labels": [
"ANALYSIS"
],
"start": 15581,
"text": "It is established position of law that the evidences of the related or interested witnesses can not be discarded only on the ground that they had previous enmity or bitterness in their relationship."
}
},
{
"from_name": "label",
"id": "3b249717ea664bbcbf2d7faf22b2881f",
"to_name": "text",
"type": "labels",
"value": {
"end": 15909,
"labels": [
"ANALYSIS"
],
"start": 15780,
"text": "Rather their evidences is to be appreciated with due care and precaution in order to oviate the possibility of false implication."
}
},
{
"from_name": "label",
"id": "5041fb15d44645b4b65c9baa73a3c5cb",
"to_name": "text",
"type": "labels",
"value": {
"end": 16051,
"labels": [
"ANALYSIS"
],
"start": 15910,
"text": "In the case at hand, the injury sustained by P.W.1 has been duly proved by the Medical Officer(P.W.6 ) in the medical report marked as Ext-2."
}
},
{
"from_name": "label",
"id": "aa9d56cc2bd146d3803105ffe62ea5da",
"to_name": "text",
"type": "labels",
"value": {
"end": 16208,
"labels": [
"ANALYSIS"
],
"start": 16052,
"text": "There is no contradiction in the evidence of P.W.1 and P.W.2 to disbelieve the fact that accused persons did not assault the victim on the date of incident."
}
},
{
"from_name": "label",
"id": "e50a3fe2c5c54780902a32d63a8a8f22",
"to_name": "text",
"type": "labels",
"value": {
"end": 16367,
"labels": [
"ANALYSIS"
],
"start": 16208,
"text": "\nBoth P.W.1 and P.W.2 have corroborated the evidence with regard to the manner, time of incident, manner of assault and injury sustained on the body of P.W.-1."
}
},
{
"from_name": "label",
"id": "12c3fded2c90455aacaea82ab34b16d3",
"to_name": "text",
"type": "labels",
"value": {
"end": 16464,
"labels": [
"ANALYSIS"
],
"start": 16368,
"text": "P.W.3 is an independent occurrence witness in this case who resiled from his previous statement."
}
},
{
"from_name": "label",
"id": "e72e85aab2334a7a8fb2257b95aab22c",
"to_name": "text",
"type": "labels",
"value": {
"end": 16941,
"labels": [
"ANALYSIS"
],
"start": 16465,
"text": "Prosecution has put leading questions to P.W.-3 U/Sec 154 of the Indian Evidence act and P.W-3 denied the suggestion and stated before this court that he had not stated to police that accused person Santanu assaulted P.W.-1 and that her son Arun Bankara dragged the accused Santanu from the house of the P.W.-1 and pacified the matter and that on the next day accused persons Santanu, Pima, Anu and others arrived at the house of the P.W.-1 and abused her in filthy language ."
}
},
{
"from_name": "label",
"id": "5a39a3da1a0049f9bbb1f2b0520d53ba",
"to_name": "text",
"type": "labels",
"value": {
"end": 17114,
"labels": [
"ANALYSIS"
],
"start": 16941,
"text": "\n 8.4 In the cross examination of P.W.-1 and P.W-2, defence had tried to bring the fact that there was bitterness in the relationship between the informant and the accused."
}
},
{
"from_name": "label",
"id": "45694621448d40b782078c93b44eb266",
"to_name": "text",
"type": "labels",
"value": {
"end": 17217,
"labels": [
"ANALYSIS"
],
"start": 17115,
"text": "But there is no evidence on record that P.W.-1 and P.W-2 had any differences with the accused persons."
}
},
{
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"id": "ed02f72d6f9b4812b097ef68696b1b46",
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"end": 17362,
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"start": 17218,
"text": "Further, in absence of any enmity with the accused, there is no reason as to why P.W-1 would implicate the accused persons falsely in this case."
}
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"start": 17363,
"text": "Defence had taken the plea that the informant (P.W.-1 ) had previous animosity or vendetta with the accused as the informant had sought for monetary help from accused Santanu and since he refused to pay, this false case had been foisted against them.\n"
}
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"text": "But the bitterness of relationship has not been established from the evidence on record."
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"text": "Ld defence counsel had not succeeded in shaking the evidence of P.W-1 and P.W-2 in any manner regarding commission of the offence by the accused persons."
}
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"text": "Since their evidence is consistent and trustworthy, the fact of being a relative or interested witness is not a ground to affect the credibility of a witness."
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"labels": [
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"text": "\nIn view of the aforementioned discussion it can be safely held that the prosecution had proved beyond reasonable doubt that the accused persons assaulted P.W.-1 causing injury which is imperative to rope the accused for commission of offence U/Sec 323 of IPC."
}
},
{
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"text": "Thus, the most vital ingredients of the offence U/Sec 323 of IPC are proved."
}
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"labels": [
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"start": 18352,
"text": "\n 9. Section-294 of I.P.C is attracted when someone does any obscene act in any public place or sings, recites or utters any obscene songs, ballad or words, in or near any public place and has so caused annoyance to others."
}
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{
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"labels": [
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"start": 18577,
"text": "In the instant case, P.W.1 had categorically stated in her evidence that on 04.05.2016 accused persons Pima and Annu and their mother arrived at her house and abused her saying 'Charitrahina' and 'Vaishya'."
}
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{
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"labels": [
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"start": 18784,
"text": "P.W.1 had categorically stated that she was insulted because of such abusive words used by the accused persons."
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"labels": [
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"start": 18896,
"text": "P.W.2 also stated that accused person Santanu abused her wife saying characterless on dtd. 03-05-2016 and on 04-05-2016 Pima and Annu and their mother abused her wife saying 'VAISYA'."
}
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{
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"labels": [
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"start": 19080,
"text": "In the instant case in order to constitute the offence U/sec.294 of I.P.C the prosecution has to prove that accused persons abused the informant-P.W.1 in obscene language in a public place and that such use of obscene words caused annoyance to others."
}
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"end": 19497,
"labels": [
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"start": 19332,
"text": "In the instant case both P.W.1 and P.W.2 have corroborated the prosecution story regarding abusive language used by the accused persons and annoyance caused to them."
}
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"labels": [
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"start": 19498,
"text": "P.W.-1 had stated in her evidence that she felt insulted because of the abusive laguage spoken by the accused persons."
}
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"labels": [
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"start": 19617,
"text": "P.W-2 had also stated that he felt defamed because of such obscene words uttered by the accused persons."
}
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{
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"end": 19821,
"labels": [
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"start": 19722,
"text": "Now it has to be seen whether the place of occurrence can be construed to be a public place or not."
}
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{
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"labels": [
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"start": 19822,
"text": "The alleged incident occurred inside the house of the accused and was extended upto the corrider of the house of P.W-1 and P.W.-1 had stated that she was drageed and removed out of the house by the accused persons."
}
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{
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"labels": [
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"start": 20037,
"text": "There is evidence on record that other people have gathered there at the spot."
}
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{
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"end": 20319,
"labels": [
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"start": 20116,
"text": "On bare perusal of the evidence of P.W.-1 and P.W-2 , it is quite evident that the spot of occurrence is inside the house of P.W.-1 and the incident was taken outside by dragging P.W.-1 out of her house."
}
},
{
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"end": 20569,
"labels": [
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],
"start": 20320,
"text": "Hence it cannot be construed that the incident strictly was confined to four walls of the house of P.W.-1 as she was dragged outside her house and other persons were present there at the spot and the incident happened within their sight and hearing."
}
},
{
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"end": 20627,
"labels": [
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],
"start": 20570,
"text": "Hence the same comes under the purview of Public place. ."
}
},
{
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"end": 20697,
"labels": [
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"start": 20628,
"text": "There is no water tight compartment to define what is a public place."
}
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{
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"labels": [
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],
"start": 20698,
"text": "The same had to be adjudged on the parameters of the general perception."
}
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{
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"end": 20870,
"labels": [
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"start": 20771,
"text": "A public place in common parlance is a place where general public had got access and free movement."
}
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{
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"id": "9db0dc62e4c44e9492eedb468ccdee15",
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"end": 21030,
"labels": [
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"start": 20871,
"text": "The incident commenced inside the house and the moment P.W.-1 was dragged out of her house and abused there, the incident is no longer confined to their house."
}
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{
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"id": "fcdfc512110146ebbe234ee2e424d070",
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"end": 21243,
"labels": [
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"start": 21031,
"text": "In the context of this case the spot can very well be held to be a public place where all the occurrence witnesses gathered at the time of incident and there is unrestricted access to the place by general public."
}
},
{
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"id": "a0f47a81d8684e9ab053e8c60695e3ff",
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"end": 21399,
"labels": [
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],
"start": 21244,
"text": "The second most important limb of section 294 of IPC is whether annoyance was caused to others in view of the obscene language used by the accused persons."
}
},
{
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"id": "e024edf1740849fe8e94e9027d72695c",
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"value": {
"end": 21540,
"labels": [
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],
"start": 21400,
"text": "P.W.\n1 had categorically stated in her evidence that she felt insulted by such use of obscene language by the accused person in abusing her."
}
},
{
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"id": "ec17d13985294ea5b29a03227fa3a5ed",
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"end": 21660,
"labels": [
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],
"start": 21541,
"text": "The word annoyance used in this section has to be interpreted in the light of the facts and circumstances of this case."
}
},
{
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"id": "4050375022d747079669a3d601bf6df8",
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"end": 21820,
"labels": [
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],
"start": 21661,
"text": "The interpretation of the word annoyance cannot be constricted to the mere revelation by the witnesses that they felt annoyed on hearing such abusive language."
}
},
{
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"id": "f547214f300f40af8e3b27e5c968934c",
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"value": {
"end": 21914,
"labels": [
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],
"start": 21821,
"text": "It is also to be inferred by necessary implications and conduct of the persons present there."
}
},
{
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"id": "cb437715a2994ad386c61e553674080e",
"to_name": "text",
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"value": {
"end": 22123,
"labels": [
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],
"start": 21915,
"text": "P.W.-1 explicity stated that she felt insulted because of such abusive language used by he accused persons and P.W-2 also stated that he was defamed because of the obscene words spoken by the accused persons."
}
},
{
"from_name": "label",
"id": "369982dd17db4313beada8b7fdf14846",
"to_name": "text",
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"value": {
"end": 22313,
"labels": [
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],
"start": 22124,
"text": "The evidence of P.W.-1 corroborates the contents of the FIR marked as Ext-1 wherein it has been explicitly stated that the accused persons abused her by saying 'charitrahina' and 'Vaishya'."
}
},
{
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"id": "bb0cfda2959949cc8eb88e84e717c0cf",
"to_name": "text",
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"value": {
"end": 22444,
"labels": [
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],
"start": 22314,
"text": "Ld defence counsel had not succeeded in shaking the evidence of P.W-1 and P.W-2 in any manner regarding commission of the offence."
}
},
{
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"id": "0dd5a51b4e0d4c47a66adf4b6e9f1906",
"to_name": "text",
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"end": 22766,
"labels": [
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],
"start": 22445,
"text": "In view of the aforementioned discussion it can be safely held that the prosecution had proved that the offence took place in a public place and that the obscene language used by the accused persons had caused annoyance to others which is imperative to rope the accused persons for commission of offence U/Sec 294 of IPC."
}
},
{
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"id": "21f15f75d2644906b89a37570e6ad202",
"to_name": "text",
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"value": {
"end": 22843,
"labels": [
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],
"start": 22767,
"text": "Thus, the most vital ingredients of the offence U/Sec 294 of IPC are proved."
}
},
{
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"id": "91dae61d5e5f457589a99676bf1d2fc0",
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"end": 23225,
"labels": [
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],
"start": 22843,
"text": "\n 10. In order to constitute an offence U/Sec 506 of IPC, prosecution has to prove that (i) accused persons threatened the informant with an intent to cause injury to his person, reputation or property (ii) accused did so with an intent to cause alarm to the victim (iii) in consequence of the above the victim was caused to perform any act which he was not legally bound to do so."
}
},
{
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"value": {
"end": 23329,
"labels": [
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],
"start": 23227,
"text": "In the case in hand P.W.-1 stated that accused threatened her and also threatened to kill her husband."
}
},
{
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"id": "1c56817ae1ed4452af45960b91f5affe",
"to_name": "text",
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"value": {
"end": 23431,
"labels": [
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],
"start": 23330,
"text": "None of the other prosecution witnesses have stated that accused person had threatened the informant."
}
},
{
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"id": "c7c41d6755f340fab0fdf6d2fe6484ff",
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"value": {
"end": 23537,
"labels": [
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],
"start": 23432,
"text": "There is no evidence on record to suggest that any alarm was caused to P.W-1 because of such threatening."
}
},
{
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"id": "904636ec860548f68e38979aa7e3fe73",
"to_name": "text",
"type": "labels",
"value": {
"end": 23602,
"labels": [
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],
"start": 23538,
"text": "P.W-1 had not immediately reported the matter at police station."
}
},
{
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"id": "31ed09acd4ba46a5b2a7765278c9dfed",
"to_name": "text",
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"value": {
"end": 23739,
"labels": [
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],
"start": 23603,
"text": "Mere threatening to cause any harm or injury does not constitute an offence U/Sec 506 of IPC if no alarm is caused in consequence of it."
}
},
{
"from_name": "label",
"id": "2b3557e428cc4e22994ee3859ee75365",
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"value": {
"end": 23879,
"labels": [
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],
"start": 23740,
"text": "Hence , in view of the above discussion I do not find that prosecution has proved the offence U/Sec 506 of IPC beyond all reasonable doubt."
}
},
{
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"id": "99590c51e9404c7b8aaf4a9d641b6fc1",
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"value": {
"end": 23960,
"labels": [
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],
"start": 23879,
"text": "\n 11. The delay of lodging of FIR had not been substantiated by the prosecution."
}
},
{
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"id": "b5a8d5c4dadf4fdeab8b9ca6634a29ae",
"to_name": "text",
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"value": {
"end": 24024,
"labels": [
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],
"start": 23961,
"text": "The defence had also not brought any allegation for such delay."
}
},
{
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"id": "093a0913d84f47a0b4a40a704f041ac1",
"to_name": "text",
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"value": {
"end": 24128,
"labels": [
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],
"start": 24025,
"text": "The defence had examined the accused persons as D.W.-1, D.W.-2, D.W.-3 and D.W.-4 as defence witnesses."
}
},
{
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"id": "22ca1ba6e8ac4817b746ec77783bcfdb",
"to_name": "text",
"type": "labels",
"value": {
"end": 24195,
"labels": [
"ANALYSIS"
],
"start": 24129,
"text": "Defence had also examined D.W.5 as an independent defence witness."
}
},
{
"from_name": "label",
"id": "60ed5cf6ffae4d4eb588b49e88bb92b2",
"to_name": "text",
"type": "labels",
"value": {
"end": 24356,
"labels": [
"ANALYSIS"
],
"start": 24196,
"text": "All the defence witnesses deposed that at the time of incident they were not present at the spot as they had gone to house of accused Pima Chhatria at Rourkela."
}
},
{
"from_name": "label",
"id": "f06f80cd8f25402ca1e53dd268965a12",
"to_name": "text",
"type": "labels",
"value": {
"end": 24571,
"labels": [
"ANALYSIS"
],
"start": 24357,
"text": "They stated that on 01-05-2016, accused Santanu along with his friends were playing cricket and at that time Arun Bankara (P.W.-5) arrived there and assaulted accused Santanu and that he was rescued by his friends."
}
},
{
"from_name": "label",
"id": "79ec98bd93274debb743ffef2161aaab",
"to_name": "text",
"type": "labels",
"value": {
"end": 24674,
"labels": [
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],
"start": 24572,
"text": "It is further stated that P.W.-1,P.W.-2 and P.W.- 3 assaulted and abused Santanu at the cricket field."
}
},
{
"from_name": "label",
"id": "bf55753eb5e84479836ccc0a0a7fcaeb",
"to_name": "text",
"type": "labels",
"value": {
"end": 24802,
"labels": [
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],
"start": 24675,
"text": "It is further stated that after the same, P.W.-1 and P.W.-2 went to the house of accused persons and abused and assaulted them."
}
},
{
"from_name": "label",
"id": "dbbcd44b86264bcd97cef7b3eeb45f2e",
"to_name": "text",
"type": "labels",
"value": {
"end": 25032,
"labels": [
"ANALYSIS"
],
"start": 24803,
"text": "It is further stated that P.W.-1 had lodged this false case as neice of Santanu namely Anjali Deep demanded the tuition fees which were due to her but P.W.-1 refused to pay the same for which Santanu had interfered in the matter."
}
},
{
"from_name": "label",
"id": "a652d864a3f14b6ea22eaf892be4ef77",
"to_name": "text",
"type": "labels",
"value": {
"end": 25165,
"labels": [
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],
"start": 25033,
"text": "It is further stated that P.W.-1 had asked for monetary help from Santanu and when he did not pay, this false case had been foisted."
}
},
{
"from_name": "label",
"id": "10b600516ade452187e0c1980dc217d8",
"to_name": "text",
"type": "labels",
"value": {
"end": 25367,
"labels": [
"ANALYSIS"
],
"start": 25166,
"text": "It is further stated by the defence witnesses that in the evening of 01-05-2016 they went to the house of accused Pima Chhatria at Roukela and hence were not present at the spot of incident as alleged."
}
},
{
"from_name": "label",
"id": "f89a8dae14034e11b67bba1d62cf0dfd",
"to_name": "text",
"type": "labels",
"value": {
"end": 25487,
"labels": [
"ANALYSIS"
],
"start": 25367,
"text": "\n On careful appreciation of the defence witnesses, it is revealed that the accused persons had taken the plea of Alibi."
}
},
{
"from_name": "label",
"id": "3eabf7755780462b9d6bf470ad026460",
"to_name": "text",
"type": "labels",
"value": {
"end": 25659,
"labels": [
"ANALYSIS"
],
"start": 25488,
"text": "The same plea has not been taken by defence at the time of cross- examination of prosecution witnesses or at the time of statement of accused recorded U/sec.313 of Cr.P.C."
}
},
{
"from_name": "label",
"id": "09cfb263e8f8463faadb509df3769113",
"to_name": "text",
"type": "labels",
"value": {
"end": 25758,
"labels": [
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],
"start": 25660,
"text": "But I do not find the evidence of the defence credible enough to sake the case of the prosecution."
}
},
{
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"id": "127db6c051124be49019a043e99e195a",
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"text": "12. From my above discussions, I am of the view that the prosecution has able to prove the case against the accused persons for committing offence U/S 452/294/323/34 of I.P.C. but failed to prove the offence against the accused U/S-506/34 of I.P.C.\n 13. "
}
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"text": "Considering the facts and circumstances of the case and the evidence in its proper perspective, this Court came to a conclusion that the prosecution is able to prove its case beyond all reasonable doubt against the accused persons for committing the offences U/Sec 452/294/323/34 of IPC but has failed to prove its case beyond all reasonable doubt against the accused persons for committing an offence U/Sec 506/34 of IPC."
}
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"text": "Hence, the accused persons are found guilty for committing the offences U/Sec 452/294/323/34 IPC and convicted them thereunder U/Sec 248(2) of Cr.PC."
}
},
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"text": "Accused persons are found not guilty for committing offence U/Sec 506/34 of IPC and acquitted thereof U/Sec 248(1) of Cr.PC."
}
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"text": "\n S.D.J.M,PANPOSH, ROURKELA 14."
}
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"text": "The convicts are the nighbour of the vicim."
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"text": "The offence is committed against women."
}
},
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"text": "The manner of offence is henios in nature and amounts to an offence against the weaker section of the society."
}
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"text": "\nConsidering the facts and circumstances of the case, nature and manner of commission of the offence, I am not inclined to extent the benevolent provision of Probation of Offenders Act 1958 in favour of the convict."
}
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"text": "\n S.D.J.M,PANPOSH, ROURKELA 15 ."
}
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"text": " HEARING ON THE QUESTION OF SENTENCE Heard Ld. Counsel for the convicts and Ld. APP on the point of sentence."
}
},
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"text": "The Ld. Counsel for the convicts prays to take a lenient view as convicts belong to one family and three of the convicts are women and the convict Santanu is the only son of the parents and is the sole bread earner of his family."
}
},
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"text": "All the members of his family are solely dependant on him and he toils hard to earn a square meal a day for his family."
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"text": "Ld counsel submitted that accused Rasa Chhatria is a widow and old lady."
}
},
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],
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"text": "On the other hand the Ld. APP prays for stringent punishment as the offence is targetted against women in the broad day light."
}
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"text": "\n Typed by me in official laptop in the open court S.D.J.M., Panposh."
}
},
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"text": "\n 16. Accordingly, I sentence each convicts to undergo simple imprisionment for a term of Three (03) years and a fine of Rs 1000/- (One thousand only) and in default of payment of fine to further undergo Thirty (30) days of simple imprisionment for committing an offence U/Sec 452 I.P.C. And sentence each convicts to undergo simple imprisionment for a term of one (01) Year and a fine of Rs.600/- (Six hundred only) and in default of payment of fine to further undergo Fifteen (15) days of simple imprisionment for committing an offence U/Sec 323 I.P.C. And sentence each convicts to undergo simple imprisoment for a term of Three (03) months and fine of Rs 300/-(Rupees three hundred) and in default of payment of fine to further undergo 10 (Ten) days of simple imprisonment for committing an offence U/Sec 294 of IPC."
}
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"text": "All the sentences shall run concurently."
}
},
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"value": {
"end": 28920,
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"start": 28787,
"text": "The UTP period already undergone, if any, be set off against the sentence of imprisionment as per the provision of section 428 Cr.Pc."
}
},
{
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"text": "\n S.D.J.M., Panposh."
}
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"end": 29054,
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"start": 28948,
"text": "Pronounced the judgment in the open court on this the 24th day of July, 2017, under my seal and signature."
}
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"text": "Status of the Acuused persons-"
}
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"text": "All the accused persons were on bail by the court and are present in the court at the time of pronouncement of the judgment."
}
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"text": "\n S.D.J.M.,Panposh."
}
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"text": "\n Partly Dictated and Partly typed by me in official laptop & corrected by me."
}
},
{
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"labels": [
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"start": 29308,
"text": "\n S.D.J.M., Panposh."
}
},
{
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"to_name": "text",
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"value": {
"end": 29374,
"labels": [
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],
"start": 29330,
"text": "List of witnesses for prosecution :- P.W.1 :"
}
},
{
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"end": 29565,
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],
"start": 29375,
"text": "Geeta Badaik P.W.2: Bijay Badaik P.W.3:Karmi Bankara P.W.4:Sabita Badaik P.W.5:Arun Bankara P.W.6:Dr. Debashis Ghosh P.W.7:Gulabi Badaik P.W.8:Mohan Chandra Kharsel P.W.9:Binod Kishore Barla"
}
},
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"end": 30052,
"labels": [
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],
"start": 29566,
"text": "List of witnesses for Defence :- D.W.1 Santanu Chhatria @ Gandhi D.W.2 Anu Chhatria D.W.3 Pima Chhatria D.W.4 Sumitra Chhatria @ Rasa D.W.5 Anjali Deep @ Rinki List the Exhibits marked for Prosecution :- Ext.1 F.I.R.\n Ext.1/1 Signature of P.W.1 on Ext.1 Ext.1/2 Signature of P.W.9 on Ext.1 Ext.2 Injury Report.\nExt.2/1 Signature of P.W.1 on Ext.2.\nExt.2/2 Signature of P.W.6 on Ext.2 Ext.3 Spot map Ext.3/1 Signature of P.W.9 on Ext.3 Ext.4 Injury Requisition."
}
},
{
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"value": {
"end": 30199,
"labels": [
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],
"start": 30053,
"text": "Ext.4/1 Signature of P.W.9 on Ext.4 List of Exhibits marked for Defence :- -NIL- S.D.J.M.,Panposh.\n The case record is put up today for judgment."
}
},
{
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"end": 30269,
"labels": [
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"text": "Accused persons are present before this court today and filed hazira."
}
},
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"end": 30328,
"labels": [
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"text": "Learned defence counsel and learned A.P.P is also present."
}
},
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"end": 30476,
"labels": [
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],
"start": 30329,
"text": "Judgment is ready vide separate sheets and the same is pronounced today in the open court on this 24th July,2017 under hand and seal of this court."
}
},
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"labels": [
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],
"start": 30477,
"text": "The accused persons are found guilty for committing the offences U/sec.452/ 294/ 323 of I.P.C and convicted thereunder U/sec.248(2) of Cr.P.C."
}
},
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],
"start": 30620,
"text": "Accused persons are found not guilty for committing offence U/sec.506 of I.P.C and acquitted thereunder U/sec.248(1) Cr.P.C."
}
},
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"text": "This court was not inclined to extent the benevolent provision of Probation of Offenders Act in favour of the convicts and conducted hearing on the question of sentence."
}
},
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],
"start": 30915,
"text": "Heard learned counsel for the convict and learned A.P.P on the question of sentence."
}
},
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"start": 31000,
"text": "Accordingly, I sentence each convicts to undergo simple imprisonment for a term of Three (03) years and a fine of Rs 1000/-(One thousand only) and in default of payment of fine to further undergo Thirty (30) days of simple imprisionment for committing an offence U/Sec 452 I.P.C. And sentence each convicts to undergo simple imprisionment for a term of one (01) Year and a fine of Rs.600/- (Six hundred only) and in default of payment of fine to further undergo Fifteen (15) days of simple imprisionment for committing an offence U/Sec 323 I.P.C."
}
},
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"value": {
"end": 31778,
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],
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"text": "And simple imprisoment for a term of Three (03) months and fine of Rs 300/-(Rupees three hundred) and in default of payment of fine to further undergo 10 (Ten) days of simple imprisonment for committing an offence U/Sec 294 of IPC."
}
},
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"text": "All the sentences shall run concurently."
}
},
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"to_name": "text",
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"end": 31954,
"labels": [
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],
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"text": "The UTP period already undergone, if any, be set off against the sentence of imprisionment as per the provision of section 428 Cr.P.C."
}
},
{
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"end": 32009,
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],
"start": 31955,
"text": "Issue free copy of the judgment today to the convicts."
}
},
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"value": {
"end": 32042,
"labels": [
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],
"start": 32009,
"text": "\n S.D.J.M.,Panposh Fine not paid."
}
},
{
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"id": "c146d12d31a64b12908b8dd054e2b553",
"to_name": "text",
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"value": {
"end": 32071,
"labels": [
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],
"start": 32043,
"text": "Start a separate Misc. Case."
}
},
{
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"type": "labels",
"value": {
"end": 32334,
"labels": [
"ARG_RESPONDENT"
],
"start": 32073,
"text": "S.D.J.M.,Panposh Learned counsel for the convicts files a petition U/sec.389(3) of Cr.P.C. with a prayer to release the convicts on bail as the convicts shall prefer appeal before the appellate court challenging the conviction and sentence passed by this court."
}
},
{
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"to_name": "text",
"type": "labels",
"value": {
"end": 32406,
"labels": [
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],
"start": 32335,
"text": "The convicts were on court bail and maximum sentence passed is 3 years."
}
},
{
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"id": "9ccfa11248af4d81a29936eff089592c",
"to_name": "text",
"type": "labels",
"value": {
"end": 32575,
"labels": [
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],
"start": 32407,
"text": "In view of Section-389(3) of Cr.P.C , I am inclined to release the convicts on bail for preferring appeal before the appellate court for a period of 30 days from today."
}
},
{
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"id": "0fee4b2541264abc9358bcdea7127bbe",
"to_name": "text",
"type": "labels",
"value": {
"end": 32702,
"labels": [
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],
"start": 32576,
"text": "Hence, convicts be released on bail on furnishing bail bond of Rs.20,000/- with one solvent sureties each for the like amount."
}
},
{
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"id": "a6b2c104d15c437e96d98c4a7a9ef86b",
"to_name": "text",
"type": "labels",
"value": {
"end": 32803,
"labels": [
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],
"start": 32703,
"text": "The sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended."
}
},
{
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"id": "73f5fa1cabb449c886f0afe2163af02b",
"to_name": "text",
"type": "labels",
"value": {
"end": 32825,
"labels": [
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],
"start": 32804,
"text": "Put up on 24.08.2017."
}
},
{
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"id": "60175dcda7ce476b96cf9cca3f3e9f03",
"to_name": "text",
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"value": {
"end": 32843,
"labels": [
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],
"start": 32825,
"text": "\n S.D.J.M.,Panposh"
}
}
]
}
] | 1,773 | {
"text": "IN THE COURT OF THE S.D.J.M., PANPOSH AT ROURKELA\n\n DISTRICT- SUNDARGARH.\n\nPresent : Sri Amaresh Nayak,M.A, LL.M.,\n S.D.J.M., Panposh.\n\n G.R. Case No. 734/16\n Trial. No.123/2016\n\n S T A T E\n\n Vrs.\n\n 1.Santanu Chhatria @ Gandhi, aged about 21\n years, S/o-Late Jayaram Chhatria.\n\n 2.Anu Chhatria, aged about 28 years, D/o-Late\n Jayaram Chhatria.\n\n 3.Rasa Chhatria, aged about 50 years, W/o-Late\n Jayaram Chhatria\n All are resident of Dwarikadas Daffai,\n P.S-Birmitrapur, Dist-Sundargarh.\n\n 4.Pima Chhatria, aged about 27 years,D/o- Late\n Jayaram Chatria and W/o-Sunil Tandi of Golghar\n of Sector-5, P.S- Sector-7, Dist-Sundargarh.\n\n ...Accused persons.\n\nOffences U/s 452/294/323/506/34 of Indian Penal Code\n\nCounsel for Prosecution : Shri J.B.Sunani\nCounsel for Defence : A.P.P., Rourkela.\n Shri B.Garud & Assts.\n\n Adv., Rourkela.\n\nDate of Argument : 10.07.2017\nDate of Judgment : 24.07.2017\n\n J U D G M E N T\n The accused persons stand charged for the offences punishable U/s 452/294/323/506/34 of the Indian Penal Code.\n 2. The prosecution case in nut shell is as follows :- On 09.05.2016 at about 11.30 A.M the complainant Geeta Badaik lodged a written report at Birmitrapur P.S to the effect that neice of accused Santanu @ Gandhi used to go to her house for doing tuition of her son. Some times her uncle accused Santanu @ Gandhi also used to go to her house. Subsequently, complainant and her husband denied the accused Santanu to go to their house. On 03.05.2016 at about 10 A.M while her husband was absent in the house accused Santanu @ Gandhi went to her house and abused her in filthy language, assaulted her by pressing her neck and threatened with dire consequence. Accused also threatened to kill her husband.\n Again on 04-05- 2016, the mother of accused Gandhi and his two sisters namely Pima and Annu went to her house, dragged her from the house and abused her in filthy language and threatened with dire consequence.\n On her report IIC, Birmitrapur P.S registered P.S. case No.62/2016 and directed ASI of police B.K.Barla to take up investigation. During course of investigation, subsuequent I.O ASI of Police Mohan Chandra Kharsel visited the spot, prepared spot map, examined the complainant and other witnesses and on completion of investigation submitted charge sheet against the accused persons.\n 3. The accused persons pleaded innocence and false implication.\n 4. The points for determination in this case are as follows:- (I) Whether on 03.05.2016 and 04.05.2016 at around 10AM, accused persons in furtherance of their common intention committed house tresspass by forcibly entering into the house of complainant with an intent to assault the complainant ?\n (II)Whether on the said dates, time and place accused persons in furtherance of their common intention abused the informant in obscene language causing annoyance to her and others ?\n (III)Whether on the said dates, time and place accused persons in furtherance of their common intention assaulted the informant causing injury and thus voluntarily caused hurt ?\n (IV)Whether on the said dates, time and place accused persons in furtherance of their common intention threatened the informant as well to her husband with dire consequence ?\n 5. In support of its case prosecution has examined nine witnesses. P.W.1 is the informant, P.W.2 is the husband of P.W.1, P.W.3 is an independent occurrence witness, P.W.4 is the younger sister of the complainant, P.W.5 is the cousin brother-in-law of complainant, P.W.6 is the Medical Officer who examined the complainant-cum-injured, P.W.7 is the elder sister of complainant, P.W.8 and P.W.9 are the I.Os of this case. On the other hand defence has examined all the accused persons as witnesses along with another having altogether examined five defence witnesses as D.W.1, D.W.2, D.W.3, D.W.4 and D.W.5 in support of its plea.\n 6. P.W.1 who is the complainant in this case deposed before this court that neice of accused Santanu used to visit their house for doing tuition of her son. She further stated that along with his neice accused Santanu also started coming to their house and since 4 to 5 months prior to the date of incident, Santanu and his neice used to visit their house. P.W.1 further stated that her husband denied accused Santanu to visit their house and for which they discontinued tuition but inspite of that Santanu continued to visit their house. P.W.1 stated that on dtd. 03.05.2016 she along with her husband had gone to market and had returned from market and her son had gone for tuition at nearby place and when he returned, she opened the door and went to kitchen and started cooking there. At that point of time accused Santanu entered into their house finding the door of the house open and pressed her neck and assaulted her by slapping on her face. P.W.1 further stated that accused asked her as to why she denied him to visit their house. It is further alleged that accused also threatened her husband to kill. P.W.1 further stated in her evidence that at the time of incident, her brother-in-law ( P.W.5) arrived at the spot and rescued her and she intimated the matter to her husband over phone who arrived at the spot. P.W.1 further stated that after this incident on dtd 04-05-2016 at 10 A.M. two sisters of accused Santanu namely Pima and Anu and their mother arrived there and forcibly tried to remove her of their house and pushed and dragged her in the corridor of her house. She further stated that her husband arrived on getting information and accused persons Pima, Anu and mother of Santanu abused her in filthy language by saying 'CHARITRAHIN', 'VASIYA' for which she felt insulted. P.W.-1 admitted her signature on the FIR which is marked as Ext-1 and her signature on it marked as Ext-1/1.\n P.W.1 admitted her signature on the Medical Report which is marked as Ext-2 and her signature on it marked as Ext-2/1. P.W.2 who is the husband of P.W.1 corroborated the evidence of P.W.1. P.W.2 stated that on 03.05.2016 he was in his duty and on getting telephonic call from his wife at about 9 A.M to 10 A.M, he immediately rushed to his residence and found that accused Santanu and his brother Arun (P.W.- 5) and other ladies were present in their house. P.W.2 further stated that P.W.5 was trying to restrain the accused person but accused Santanu was creating disturbance and fighting. P.W.2 further stated that he tried to pacify the matter but accused Santanu continued to abuse her wife saying that his wife is characterless. P.W.2 further stated that on the next day i.e. 04.05.2016 he again got call that accused Santanu had arrived in his house and creating disturbance and assaulting. On getting such information he reached at the house and found that accused Santanu's mother and his two sister Pima and Annu were abusing his wife saying him 'VYASIA' and on his arrival they left the spot. P.W.-2 categorically stated that he felt defamed due to such abusive language used by the accused person. P.W.1 and P.W.2 both are occurrence witnesses in this case who corroborated the prosecution story in their evidence. P.W.4-Sabita Badaik and P.W-7 Gulabi Badaik are post occurrence witnesses in this case who happens to be the elder sisters of the complainant. P.W.-4 and P.W.-7 stated in their evidence that on 04.05.2016, her sister Gita Badaik (P.W.1) called them over phone and stated that her neighbour Santanu @ Gandhi had entered into her house and abused her and pressed her neck. P.W.4 and P.W.-7 stated that at the time of getting information about the incident they were at Rourkela and on getting such information P.W.-4 along with P.W.-7 her another sister Gulabi Badaik proceeded to the spot at Birmitrapur and on their arrival P.W.1 narrated the incident to them. P.W.4 and P.W.-7 further stated that P.W.-1 narrated the incident to them that on 03.05.2016 accused Gandhi had entered their house, abused her and pressed her neck and on the next day i.e. on 04-05-2016 at around 10 A.M., two sisters of the accused Santanu @ Gandhi namely Anu and Pima along along with their mother dragged P.W.-1 out of her house and abused her saying 'BHASIYA' and 'CHARITRAHINA'. P.W.4 stated that husband of Geeta arrived there and rescued them. P.W.5 is another occurrence witness in this case who is cousin brother-in-law of Geeta Badaik ( P.W.1). P.W.5 stated that on 03.05.2016 at about 9 A.M to 10 A.M he had been to his sister-in-law's house i.e. P.W.-1 Geeta Badaik for drinking water and he saw that accused Santanu was assaulting P.W.1. P.W.5 stated that he rescued her and other people had gathered there. P.W.-5 further stated that P.W.1 intimated her husband who arrived there. P.W.-5 explictly stated that P.W.-2 had previously restrained Santanu to come to their house but he did not listen and continued to visit their house.\n 7. In order to constitute an offence U/sec.452 of I.P.C. prosecution has to prove that accused persons have committed criminal trespass by entering into or remaining unlawfully in any building or tent or vessel used as a human dwelling, or any building, used as a place of worship or as a place for custody of property with an intent to have made preparation to cause hurt to any person or for assaulting any person or putting in fear of hurt or assault. In the instant case prosecution witnesses have supported the case of the prosecution and have clearly stated that on 03.05.2016 accused Santanu entered into the house of the complainant P.W.-1 and on the following day i.e. on 04.05.2016 accused persons Pima Chhatria, Annu Chhatria and mother of Santanu @ Gandhi went inside the house of P.W.1 and abused and assaulted her. The fact of such house trespass into the house of P.W.1 has been duly corroborated by P.W.1, P.W.2 and P.W.5 who are direct witnesses in this case. P.W.4 and P.W.7 who are post occurrence witnesses in this case have also supported the case of the prosecution and corroborated the evidence of P.W.1, P.W.2 and P.W.5.\nThough the evidence of P.W.4 and P.W-7 are hearsay but it seems consistent and corroborates with the occurrence witnesses. Section- 452 I.P.C provides that such house trespass is committed by the accused i)either with preparation of causing hurt to a person, ii)assaulting any person, iii)wrongful restrain of any person, iv)for putting some person in fear of hurt, or of assault or of wrongful restraint. In the instant case there is ample evidence on record to suggest that accused Santanu trespassed into the house of P.W.1 on 03.05.2016 and assaulted P.W.1 and further on 04.05.2017 other accused persons forcibly entered into the house of P.W.1 and assaulted her. All the prosecution witnesses have squarely proved the alleged offence. So ingredients of Section-452 of I.P.C. is well made out against the accused persons.\n 8. In order to constitue an offence U/Sec 323 of IPC, prosecution is to establish that the accused persons voluntariy caused hurt to the victim. P.W.-1 stated in her evidence that accused Santanu pressed her neck and assaulted her and further slapped her on face.\n P.W.-1 also stated that other accused persons dragged her and assaulted her. P.W.-2 and P.W-5 also corroborated the evidence of P.W-1. Prosecution has examined the Medical Officer as P.W.6 who stated in his evidence that on 09.05.2016 on police requisition he examined the victim Gita Badaik, W/o-Bijay Badaik and found the following injuries.\n i) Two Nos of bruise of size 2\"x 1\"x 1/4\" and another 1/2\"x 1\"x1/4\"\non left side of the neck . The nature of injury is simple and might have been caused by Rough hard object (Finger). The colour of the injury changed to black. Hence the time of injury is more than 72 hours from the examiation.\n ii) Two Nos of bruise of 2\"x 3/4\"x 1/4\" and another 1/2\"x3/4\"x1/4\"\non left cheek. The nature of injury is simple and might have been caused by Rough and Hard object (Finger). The colour of the injury changed to black. Time of injury is more that 72 hours from the examination.\n P.W.-6 further stated that such injuries may be caused due to pressure on neck with hand.\n 8.1 With regard to the medical examination of P.W-1, Medical officer P.W.6 stated in her evidence that on 09.05.2016, he received police requisition and examined the victim. P.W.-6 admitted his signature on the medical report which is marked as Ext.2 and his signature on it marked as Ext.2/1. The evidence of medical officer P.W.6 fully corroborates with the evidence of P.W.1 and P.W.2 with regard to the manner, nature , time since injury and parts of the body on which injury was inflicted. Both P.W.1 and P.W.2 stated in their evidence that accused persons dragged P.W.-1 and accused santanu pressed her neck. P.W.6 deposed in his evidence that he had prepared the injury report marked as Ext.2 which reveals that injury is sustained by P.W.1 on her neck and cheek. P.W.1 and P.W.2 had deposed in their evidence that P.W.-1 had sustained injury as accused Santanu pressed her neck and other accused persons dragged her from her home and assaulted her. P.W.6 corroborated the same with his opinion report that the nature of injury found on the neck and cheek of the injured might have been caused by Rough hard object like finger. The time of injury as reflected in the Medical report marked as Ext-2 also corroborates with the time of incident. The Medical report reveals that the injury might have been caused more than 72 hours from the time of examiation. The incident occurred on 03-05-2016 and 04-05-2016 and the medical examination of P.W.-1 was made on 09-05-2016.\n 8.2 Learned defence counsel during course of argument brought to light that victim P.W.1 and her husband P.W.2 and brother-in law P.W.-5 are related witnesses and hence are interested. Ld. defence counsel in the course of argument assailed the case of the prosecution and submitted before this court that there is previous animosity and bitterness between the informant and the accused persons and P.W.-1 and P.W.-2 are interested witness and hence much relevance cannot be given to their evidences and their evidence are liable to be discarded. It is the settled principle of appreciation of evidence that while appreciating the evidence of an interested or related witness having an interest in seeing the accused punished and also having some enmity with the accused, the court should take enormous care and precaution. A related witness is not akin to an interested witness. A witness may be called an \"interested\" only when he derives some benefit in seeing the accused punished. A witness who is a natural one and is the only possible eyewitness in the circumstances of the case cannot be said to be \"interested\".\n 8.3 Learned defence counsel during course of argument brought to light the fact that there was previous animosity and hostile relationship between the accused persons and the victim-injured P.W.1 and her husband P.W.2. Learned counsel argued that the accused persons had been falsely implicated as P.W.-1 had asked for money from the accused Santanu and on his refusal, she had lodged this false case. It is established position of law that the evidences of the related or interested witnesses can not be discarded only on the ground that they had previous enmity or bitterness in their relationship. Rather their evidences is to be appreciated with due care and precaution in order to oviate the possibility of false implication. In the case at hand, the injury sustained by P.W.1 has been duly proved by the Medical Officer(P.W.6 ) in the medical report marked as Ext-2. There is no contradiction in the evidence of P.W.1 and P.W.2 to disbelieve the fact that accused persons did not assault the victim on the date of incident.\nBoth P.W.1 and P.W.2 have corroborated the evidence with regard to the manner, time of incident, manner of assault and injury sustained on the body of P.W.-1. P.W.3 is an independent occurrence witness in this case who resiled from his previous statement. Prosecution has put leading questions to P.W.-3 U/Sec 154 of the Indian Evidence act and P.W-3 denied the suggestion and stated before this court that he had not stated to police that accused person Santanu assaulted P.W.-1 and that her son Arun Bankara dragged the accused Santanu from the house of the P.W.-1 and pacified the matter and that on the next day accused persons Santanu, Pima, Anu and others arrived at the house of the P.W.-1 and abused her in filthy language .\n 8.4 In the cross examination of P.W.-1 and P.W-2, defence had tried to bring the fact that there was bitterness in the relationship between the informant and the accused. But there is no evidence on record that P.W.-1 and P.W-2 had any differences with the accused persons. Further, in absence of any enmity with the accused, there is no reason as to why P.W-1 would implicate the accused persons falsely in this case. Defence had taken the plea that the informant (P.W.-1 ) had previous animosity or vendetta with the accused as the informant had sought for monetary help from accused Santanu and since he refused to pay, this false case had been foisted against them.\nBut the bitterness of relationship has not been established from the evidence on record. Ld defence counsel had not succeeded in shaking the evidence of P.W-1 and P.W-2 in any manner regarding commission of the offence by the accused persons. Since their evidence is consistent and trustworthy, the fact of being a relative or interested witness is not a ground to affect the credibility of a witness.\nIn view of the aforementioned discussion it can be safely held that the prosecution had proved beyond reasonable doubt that the accused persons assaulted P.W.-1 causing injury which is imperative to rope the accused for commission of offence U/Sec 323 of IPC. Thus, the most vital ingredients of the offence U/Sec 323 of IPC are proved.\n 9. Section-294 of I.P.C is attracted when someone does any obscene act in any public place or sings, recites or utters any obscene songs, ballad or words, in or near any public place and has so caused annoyance to others. In the instant case, P.W.1 had categorically stated in her evidence that on 04.05.2016 accused persons Pima and Annu and their mother arrived at her house and abused her saying 'Charitrahina' and 'Vaishya'. P.W.1 had categorically stated that she was insulted because of such abusive words used by the accused persons. P.W.2 also stated that accused person Santanu abused her wife saying characterless on dtd. 03-05-2016 and on 04-05-2016 Pima and Annu and their mother abused her wife saying 'VAISYA'. In the instant case in order to constitute the offence U/sec.294 of I.P.C the prosecution has to prove that accused persons abused the informant-P.W.1 in obscene language in a public place and that such use of obscene words caused annoyance to others. In the instant case both P.W.1 and P.W.2 have corroborated the prosecution story regarding abusive language used by the accused persons and annoyance caused to them. P.W.-1 had stated in her evidence that she felt insulted because of the abusive laguage spoken by the accused persons. P.W-2 had also stated that he felt defamed because of such obscene words uttered by the accused persons. Now it has to be seen whether the place of occurrence can be construed to be a public place or not. The alleged incident occurred inside the house of the accused and was extended upto the corrider of the house of P.W-1 and P.W.-1 had stated that she was drageed and removed out of the house by the accused persons. There is evidence on record that other people have gathered there at the spot. On bare perusal of the evidence of P.W.-1 and P.W-2 , it is quite evident that the spot of occurrence is inside the house of P.W.-1 and the incident was taken outside by dragging P.W.-1 out of her house. Hence it cannot be construed that the incident strictly was confined to four walls of the house of P.W.-1 as she was dragged outside her house and other persons were present there at the spot and the incident happened within their sight and hearing. Hence the same comes under the purview of Public place. . There is no water tight compartment to define what is a public place. The same had to be adjudged on the parameters of the general perception. A public place in common parlance is a place where general public had got access and free movement. The incident commenced inside the house and the moment P.W.-1 was dragged out of her house and abused there, the incident is no longer confined to their house. In the context of this case the spot can very well be held to be a public place where all the occurrence witnesses gathered at the time of incident and there is unrestricted access to the place by general public. The second most important limb of section 294 of IPC is whether annoyance was caused to others in view of the obscene language used by the accused persons. P.W.\n1 had categorically stated in her evidence that she felt insulted by such use of obscene language by the accused person in abusing her. The word annoyance used in this section has to be interpreted in the light of the facts and circumstances of this case. The interpretation of the word annoyance cannot be constricted to the mere revelation by the witnesses that they felt annoyed on hearing such abusive language. It is also to be inferred by necessary implications and conduct of the persons present there. P.W.-1 explicity stated that she felt insulted because of such abusive language used by he accused persons and P.W-2 also stated that he was defamed because of the obscene words spoken by the accused persons. The evidence of P.W.-1 corroborates the contents of the FIR marked as Ext-1 wherein it has been explicitly stated that the accused persons abused her by saying 'charitrahina' and 'Vaishya'. Ld defence counsel had not succeeded in shaking the evidence of P.W-1 and P.W-2 in any manner regarding commission of the offence. In view of the aforementioned discussion it can be safely held that the prosecution had proved that the offence took place in a public place and that the obscene language used by the accused persons had caused annoyance to others which is imperative to rope the accused persons for commission of offence U/Sec 294 of IPC. Thus, the most vital ingredients of the offence U/Sec 294 of IPC are proved.\n 10. In order to constitute an offence U/Sec 506 of IPC, prosecution has to prove that (i) accused persons threatened the informant with an intent to cause injury to his person, reputation or property (ii) accused did so with an intent to cause alarm to the victim (iii) in consequence of the above the victim was caused to perform any act which he was not legally bound to do so.\n In the case in hand P.W.-1 stated that accused threatened her and also threatened to kill her husband. None of the other prosecution witnesses have stated that accused person had threatened the informant. There is no evidence on record to suggest that any alarm was caused to P.W-1 because of such threatening. P.W-1 had not immediately reported the matter at police station. Mere threatening to cause any harm or injury does not constitute an offence U/Sec 506 of IPC if no alarm is caused in consequence of it. Hence , in view of the above discussion I do not find that prosecution has proved the offence U/Sec 506 of IPC beyond all reasonable doubt.\n 11. The delay of lodging of FIR had not been substantiated by the prosecution. The defence had also not brought any allegation for such delay. The defence had examined the accused persons as D.W.-1, D.W.-2, D.W.-3 and D.W.-4 as defence witnesses. Defence had also examined D.W.5 as an independent defence witness. All the defence witnesses deposed that at the time of incident they were not present at the spot as they had gone to house of accused Pima Chhatria at Rourkela. They stated that on 01-05-2016, accused Santanu along with his friends were playing cricket and at that time Arun Bankara (P.W.-5) arrived there and assaulted accused Santanu and that he was rescued by his friends. It is further stated that P.W.-1,P.W.-2 and P.W.- 3 assaulted and abused Santanu at the cricket field. It is further stated that after the same, P.W.-1 and P.W.-2 went to the house of accused persons and abused and assaulted them. It is further stated that P.W.-1 had lodged this false case as neice of Santanu namely Anjali Deep demanded the tuition fees which were due to her but P.W.-1 refused to pay the same for which Santanu had interfered in the matter. It is further stated that P.W.-1 had asked for monetary help from Santanu and when he did not pay, this false case had been foisted. It is further stated by the defence witnesses that in the evening of 01-05-2016 they went to the house of accused Pima Chhatria at Roukela and hence were not present at the spot of incident as alleged.\n On careful appreciation of the defence witnesses, it is revealed that the accused persons had taken the plea of Alibi. The same plea has not been taken by defence at the time of cross- examination of prosecution witnesses or at the time of statement of accused recorded U/sec.313 of Cr.P.C. But I do not find the evidence of the defence credible enough to sake the case of the prosecution.\n 12. From my above discussions, I am of the view that the prosecution has able to prove the case against the accused persons for committing offence U/S 452/294/323/34 of I.P.C. but failed to prove the offence against the accused U/S-506/34 of I.P.C.\n 13. Considering the facts and circumstances of the case and the evidence in its proper perspective, this Court came to a conclusion that the prosecution is able to prove its case beyond all reasonable doubt against the accused persons for committing the offences U/Sec 452/294/323/34 of IPC but has failed to prove its case beyond all reasonable doubt against the accused persons for committing an offence U/Sec 506/34 of IPC. Hence, the accused persons are found guilty for committing the offences U/Sec 452/294/323/34 IPC and convicted them thereunder U/Sec 248(2) of Cr.PC. Accused persons are found not guilty for committing offence U/Sec 506/34 of IPC and acquitted thereof U/Sec 248(1) of Cr.PC.\n S.D.J.M,PANPOSH, ROURKELA 14. The convicts are the nighbour of the vicim. The offence is committed against women. The manner of offence is henios in nature and amounts to an offence against the weaker section of the society.\nConsidering the facts and circumstances of the case, nature and manner of commission of the offence, I am not inclined to extent the benevolent provision of Probation of Offenders Act 1958 in favour of the convict.\n S.D.J.M,PANPOSH, ROURKELA 15 . HEARING ON THE QUESTION OF SENTENCE Heard Ld. Counsel for the convicts and Ld. APP on the point of sentence. The Ld. Counsel for the convicts prays to take a lenient view as convicts belong to one family and three of the convicts are women and the convict Santanu is the only son of the parents and is the sole bread earner of his family. All the members of his family are solely dependant on him and he toils hard to earn a square meal a day for his family. Ld counsel submitted that accused Rasa Chhatria is a widow and old lady. On the other hand the Ld. APP prays for stringent punishment as the offence is targetted against women in the broad day light.\n Typed by me in official laptop in the open court S.D.J.M., Panposh.\n 16. Accordingly, I sentence each convicts to undergo simple imprisionment for a term of Three (03) years and a fine of Rs 1000/- (One thousand only) and in default of payment of fine to further undergo Thirty (30) days of simple imprisionment for committing an offence U/Sec 452 I.P.C. And sentence each convicts to undergo simple imprisionment for a term of one (01) Year and a fine of Rs.600/- (Six hundred only) and in default of payment of fine to further undergo Fifteen (15) days of simple imprisionment for committing an offence U/Sec 323 I.P.C. And sentence each convicts to undergo simple imprisoment for a term of Three (03) months and fine of Rs 300/-(Rupees three hundred) and in default of payment of fine to further undergo 10 (Ten) days of simple imprisonment for committing an offence U/Sec 294 of IPC. All the sentences shall run concurently. The UTP period already undergone, if any, be set off against the sentence of imprisionment as per the provision of section 428 Cr.Pc.\n S.D.J.M., Panposh.\n Pronounced the judgment in the open court on this the 24th day of July, 2017, under my seal and signature.\n Status of the Acuused persons- All the accused persons were on bail by the court and are present in the court at the time of pronouncement of the judgment.\n S.D.J.M.,Panposh.\n Partly Dictated and Partly typed by me in official laptop & corrected by me.\n S.D.J.M., Panposh.\n List of witnesses for prosecution :- P.W.1 : Geeta Badaik P.W.2: Bijay Badaik P.W.3:Karmi Bankara P.W.4:Sabita Badaik P.W.5:Arun Bankara P.W.6:Dr. Debashis Ghosh P.W.7:Gulabi Badaik P.W.8:Mohan Chandra Kharsel P.W.9:Binod Kishore Barla List of witnesses for Defence :- D.W.1 Santanu Chhatria @ Gandhi D.W.2 Anu Chhatria D.W.3 Pima Chhatria D.W.4 Sumitra Chhatria @ Rasa D.W.5 Anjali Deep @ Rinki List the Exhibits marked for Prosecution :- Ext.1 F.I.R.\n Ext.1/1 Signature of P.W.1 on Ext.1 Ext.1/2 Signature of P.W.9 on Ext.1 Ext.2 Injury Report.\nExt.2/1 Signature of P.W.1 on Ext.2.\nExt.2/2 Signature of P.W.6 on Ext.2 Ext.3 Spot map Ext.3/1 Signature of P.W.9 on Ext.3 Ext.4 Injury Requisition.\nExt.4/1 Signature of P.W.9 on Ext.4 List of Exhibits marked for Defence :- -NIL- S.D.J.M.,Panposh.\n The case record is put up today for judgment. Accused persons are present before this court today and filed hazira. Learned defence counsel and learned A.P.P is also present. Judgment is ready vide separate sheets and the same is pronounced today in the open court on this 24th July,2017 under hand and seal of this court. The accused persons are found guilty for committing the offences U/sec.452/ 294/ 323 of I.P.C and convicted thereunder U/sec.248(2) of Cr.P.C. Accused persons are found not guilty for committing offence U/sec.506 of I.P.C and acquitted thereunder U/sec.248(1) Cr.P.C. This court was not inclined to extent the benevolent provision of Probation of Offenders Act in favour of the convicts and conducted hearing on the question of sentence. Heard learned counsel for the convict and learned A.P.P on the question of sentence. Accordingly, I sentence each convicts to undergo simple imprisonment for a term of Three (03) years and a fine of Rs 1000/-(One thousand only) and in default of payment of fine to further undergo Thirty (30) days of simple imprisionment for committing an offence U/Sec 452 I.P.C. And sentence each convicts to undergo simple imprisionment for a term of one (01) Year and a fine of Rs.600/- (Six hundred only) and in default of payment of fine to further undergo Fifteen (15) days of simple imprisionment for committing an offence U/Sec 323 I.P.C. And simple imprisoment for a term of Three (03) months and fine of Rs 300/-(Rupees three hundred) and in default of payment of fine to further undergo 10 (Ten) days of simple imprisonment for committing an offence U/Sec 294 of IPC. All the sentences shall run concurently. The UTP period already undergone, if any, be set off against the sentence of imprisionment as per the provision of section 428 Cr.P.C. Issue free copy of the judgment today to the convicts.\n S.D.J.M.,Panposh Fine not paid. Start a separate Misc. Case.\n S.D.J.M.,Panposh Learned counsel for the convicts files a petition U/sec.389(3) of Cr.P.C. with a prayer to release the convicts on bail as the convicts shall prefer appeal before the appellate court challenging the conviction and sentence passed by this court. The convicts were on court bail and maximum sentence passed is 3 years. In view of Section-389(3) of Cr.P.C , I am inclined to release the convicts on bail for preferring appeal before the appellate court for a period of 30 days from today. Hence, convicts be released on bail on furnishing bail bond of Rs.20,000/- with one solvent sureties each for the like amount. The sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended. Put up on 24.08.2017.\n S.D.J.M.,Panposh "
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"text": "PETITIONER:\nCHAND KHAN & ANR.\n\n Vs.\n\nRESPONDENT:\nSTATE OF UTTAR PRADESH\n\nDATE OF JUDGMENT11/07/1995"
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"text": "BENCH:\nMUKHERJEE M.K. (J)\nBENCH:\nMUKHERJEE M.K. (J)\nANAND, A.S. (J)\n\nCITATION: 1995 SCC (5) 448\n 1995 AIR 2140 1995 SCALE (4)276\n JT 1995 (5) 329\n\nACT:\n\nHEADNOTE:\n\nJUDGMENT"
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"value": {
"end": 514,
"labels": [
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],
"start": 301,
"text": ": THE 11TH DAY OF JULY, 1995 Present: Hon'ble Dr.Justice A.S.Anand Hon'ble Mr.Justice M.K.Mukherjee Mr.D.D.Thakur, Sr. Adv. Mr.Suman Kapoor, and Mr.Pankaj Kalra, Advs. with him for the appellants."
}
},
{
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"end": 578,
"labels": [
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],
"start": 514,
"text": "\nMr.Anis Ahmed Khan and Mr.A.S.Pundir, Advs. for the Respondent."
}
},
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"value": {
"end": 595,
"labels": [
"PREAMBLE"
],
"start": 578,
"text": "\n J U D G M E N T"
}
},
{
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"end": 708,
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],
"start": 596,
"text": "The following Judgment of the Court was delivered: IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION"
}
},
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"text": "CRIMINAL"
}
},
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"start": 718,
"text": "APPEAL NO. 716 OF 1991 Chand Khan and anr.\n Versus State of Uttar Pradesh J U D G M E N T M.K. MUKHERJEE"
}
},
{
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"id": "873f0590571c48d98f99a2eeff547648",
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"text": ". J.\n "
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},
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"start": 845,
"text": "Chand Khan and Shabbu, the two appellants before us, and seven others were placed on trial before an Additional Sessions Judge of Rampur to answer common charges under Sections 452, 302/149, 325/149, 324/149 and 323/149 of the Indian Penal Code (`IPC' for short)."
}
},
{
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"labels": [
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"start": 1109,
"text": "Against five of them, including the two appellants, a charge under Section 148 IPC and against the other four a charge under Section 147 IPC were also framed."
}
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"id": "f62f4b923d5a4449a2642d77f6f30819",
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"text": "Besides, a separate charge under Section 302 IPC was framed against appellant Shabbu."
}
},
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"text": "The trial ended in an order of acquittal recorded in favour of all the persons araigned."
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"start": 1443,
"text": "Aggrieved thereby the State of Uttar Pradesh preferred an appeal which was partly allowed by the High Court by setting aside the acquittal of the two appellants and three others."
}
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"end": 1939,
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"text": "After setting aside their acquittal the High Court convicted the two appellants for the offence under Section 302 IPC as also for the other offences for which they were charged and sentenced them to suffer imprisonment for life for the former conviction and for the period already undergone for the other convictions."
}
},
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"text": "\nThe other three were convicted of all the charges levelled against them except the one under Section 302/149 IPC and sentenced to imprisonment for the period already undergone."
}
},
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"start": 2116,
"text": "\nAssailing the above order of conviction and sentence only the two appellants have filed this appeal invoking their statutory right under Section 379 Criminal Procedure Code."
}
},
{
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"start": 2290,
"text": "\n Facts which are not in dispute are that Shah Alam (the deceased), his cousin Faheem Khan (P.W.6) and appellant Chand Khan were carrying on business of Karchobi from two separate workshops in Mohalla Gher Pipalwala within the police station of Ganj."
}
},
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"labels": [
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"start": 2541,
"text": "Aslam (P.W.7), a boy aged about 7/8 years, had been working for the appellant Chand Khan in his business but a few days before the incident out of which the present appeal arises he left his services and joined the set-up of Faheem Khan."
}
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{
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"labels": [
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"start": 2779,
"text": "On May 26, 1977 at or about 1 P.M.\nthe two appellants and accused Ishtiaq Khan went to the workshop of Faheem Khan and asked him to release Aslam so that he could work with Chand Khan again."
}
},
{
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"text": "When Faheem Khan refused to oblige they assaulted him."
}
},
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"value": {
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"start": 3025,
"text": "For that incident, he lodged a complaint with the police the same afternoon."
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"start": 3101,
"text": "\nHowever, according to the prosecution Shah Alam and Faheem Khan used to carry on their above business jointly but as adequate accommodation was not available at one and the same place they were maintaining two workshops, one in the house of one Allah Rakha Khan and the other in the terrace of Md.\nJama Khan."
}
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"start": 3412,
"text": "The prosecution version of the incident is that on the same night (on May 26, 1977) the two appellants along with the other accused persons went to the house of Shah Alam to teach him a lesson for the report his business partner Faheem Khan had lodged against some of them earlier in the afternoon for assaulting him."
}
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"start": 3730,
"text": "For that purpose the two appellants went armed with Knives and the rest with other weapons including danda."
}
},
{
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"id": "fa81fcb721fb45fd9073415ce17b14ce",
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"labels": [
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],
"start": 3838,
"text": "Shah Alam was then sitting on a cot in the open space in front of his house along with Irshad Khan, Babar Khan and Kaisher (P.W.2)."
}
},
{
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"id": "41ac83decc024b48958f6a6a77eb752b",
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"text": "Immediately after entering the premises the accused persons started assaulting them."
}
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{
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],
"start": 4055,
"text": "Chand Khan gave two knife blows to Shah Alam and some others hit Irshad Khan, Babar Khan and Kaisher Khan with dandas."
}
},
{
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"id": "7e41112895ae4eb0ba84a0bf7136517a",
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"value": {
"end": 4389,
"labels": [
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],
"start": 4174,
"text": "When the victims cried aloud, Keramat Ali Khan (P.W.1), father of the deceased Shah Alam, who was inside the house came out and some people from the mohalla including Kallan Mian @ Mardan Mian (P.W.4) arrived there."
}
},
{
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"value": {
"end": 4576,
"labels": [
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],
"start": 4390,
"text": "In the meantime some of the miscreants including Chand Khan entered into the house of Keramat and assaulted his daughter Sm. Naeema Parveen (P.W.5) and his sister-in-law Sm. Raees Begum."
}
},
{
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"id": "6f0e030c13244a38b0a1bd063f5c9acd",
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"end": 4743,
"labels": [
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],
"start": 4577,
"text": "When Sm. Naeema Parveen found that Chand Khan was about to beat her mother she picked up a knife used for cutting vegetables which was lying nearby and assaulted him."
}
},
{
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"id": "1e407136e2314d398bb7bc377897167e",
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],
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"text": "\nWhile coming out of the house Shabhu thrust his knife on the neck of Shah Alam felling him down."
}
},
{
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"labels": [
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"text": "All of them then fled away."
}
},
{
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"value": {
"end": 4992,
"labels": [
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],
"start": 4869,
"text": "Keramat Ali Khan arranged immediate hospitalisation of all the injured including Shah Alam, whose condition was precarious."
}
},
{
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"end": 5061,
"labels": [
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"start": 4993,
"text": "Before, however, any treatment could be administered Shah Alam died."
}
},
{
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"value": {
"end": 5217,
"labels": [
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],
"start": 5062,
"text": "While in the hospital Keramat Ali Khan got a complaint written by Asmat Ali Khan (P.W.9) as per his dictation and forwarded the same to the police station."
}
},
{
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"id": "8e1b64026e5848738c215490d2108e03",
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"value": {
"end": 5399,
"labels": [
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],
"start": 5219,
"text": "At the hospital, Dr. S.P. Pandey (P.W.3) examined Sm.\nNaeema Parveen (P.W.5), Irshad Khan, Babar Khan, Sm. Raees Begum and Kaisher Khan (P.W.2) and found injuries on their persons."
}
},
{
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"id": "3d6f029a7c03443d93d6e139ecddec8b",
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"value": {
"end": 5578,
"labels": [
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],
"start": 5400,
"text": "P.W.5 had two incised wounds which, according to P.W.3, could be caused by sharp edged weapon and the other four had sustained contusions, which could be caused by blunt weapons."
}
},
{
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"id": "fcbe6e06c0a740369bda19d4226f3cc0",
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"value": {
"end": 5721,
"labels": [
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],
"start": 5579,
"text": "Chand Khan, who was also brought under arrest to the hospital in that very night as he had injuries on his person, was also examined by P.W.3."
}
},
{
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"id": "f0ed33d0a2ae406a932707302bbe3d7e",
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"value": {
"end": 5839,
"labels": [
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],
"start": 5722,
"text": "He found three incised wounds on his person, all of which, according to him, could be caused by a sharp edged weapon."
}
},
{
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"id": "2d421904fa0d43f38a8404e73b2ff3eb",
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"value": {
"end": 5987,
"labels": [
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],
"start": 5840,
"text": "Besides, P.W.3 examined Faheem Khan for injuries which, he alleged, were sustained by him in the incident that took place earlier in the afternoon."
}
},
{
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"id": "8f6a30d33e594173b609cb3dbc092d7a",
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"value": {
"end": 6104,
"labels": [
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],
"start": 5988,
"text": "According to P.W.3 the two stab injuries he found on his person were likely to have been caused by a pointed weapon."
}
},
{
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"id": "675d41174cf74157b9ae87043204a316",
"to_name": "text",
"type": "labels",
"value": {
"end": 6218,
"labels": [
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],
"start": 6104,
"text": "\n The post-mortem examination on the body of Shah Alam was held by Dr. O.N. Gupta on the following day (27.5.1977)"
}
},
{
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"id": "9cda1af3ba9e4030a3885b2eb8ff1f8e",
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"value": {
"end": 6277,
"labels": [
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],
"start": 6219,
"text": "He found the following external injuries on his person:- <"
}
},
{
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"id": "e1761e0b321c4eef95223d246f6e8b4a",
"to_name": "text",
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"value": {
"end": 6283,
"labels": [
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],
"start": 6277,
"text": "SLS> 1"
}
},
{
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"id": "908b75afd7fe497d93b666a9d051ebf0",
"to_name": "text",
"type": "labels",
"value": {
"end": 6452,
"labels": [
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],
"start": 6283,
"text": ". Incised punctured wound 5 cm. x 3 cm.\n x chest cavity deep on the base of left side neck, 5 cm. from the left sterno clavicular joint with direction downwards."
}
},
{
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"id": "934ff9b2677b4af3ab159c79e7009111",
"to_name": "text",
"type": "labels",
"value": {
"end": 6555,
"labels": [
"FAC"
],
"start": 6462,
"text": "2. Abrasion 4 cm. x 1 cm. on the right side forehead 3 cm. above right eye brows.\n 3."
}
},
{
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"id": "4e8c3a0012d04b949c7bb1e1fb8f91a0",
"to_name": "text",
"type": "labels",
"value": {
"end": 6564,
"labels": [
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],
"start": 6556,
"text": "Abrasion"
}
},
{
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"id": "1507d0c49b08450abf13a655502753ec",
"to_name": "text",
"type": "labels",
"value": {
"end": 6606,
"labels": [
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],
"start": 6565,
"text": "3 cm. x 2 cm. on right side forehead 3 cm"
}
},
{
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"id": "be659fd5cc6b431ca7c1174d00164d29",
"to_name": "text",
"type": "labels",
"value": {
"end": 6625,
"labels": [
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],
"start": 6606,
"text": ". lateral to injury"
}
},
{
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"id": "f427fe6933b140bd89207015c340c643",
"to_name": "text",
"type": "labels",
"value": {
"end": 6717,
"labels": [
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],
"start": 6626,
"text": "No. 1.\n 4. Abrasion 2 cm. x 1cm. on the left side scapular region back.\n 5."
}
},
{
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"id": "21238cc47c1e4548862539ddc29e5db9",
"to_name": "text",
"type": "labels",
"value": {
"end": 6811,
"labels": [
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],
"start": 6718,
"text": "Incised wound 2 cm. x 1 cm. x skin deep on the left side back at inner angle of left scapula."
}
},
{
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"id": "d1ae4327bba54e4f9ff8920eed6f1b0f",
"to_name": "text",
"type": "labels",
"value": {
"end": 6932,
"labels": [
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],
"start": 6811,
"text": "\n 6. Incised punctured wound 3 cm. x 1 cm.\n chest cavity deep on left side back 4 cm. below injury No. 5."
}
},
{
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"id": "144ca5eba1db4d7489161bc8f3b917dd",
"to_name": "text",
"type": "labels",
"value": {
"end": 7259,
"labels": [
"FAC"
],
"start": 6933,
"text": "<SLE> On internal examination of the dead body he found that the sixth rit was cut under injury No. 6; the pleura was cut beneath the injuries No. 1 and 6, the left lung was cut through and through upper lobe was cut both under injury No.1 and 6 and the pericardium and the right side of the heart were cut by the injury No.1."
}
},
{
"from_name": "label",
"id": "1d5931cde5754c49ae92dbf947f239ef",
"to_name": "text",
"type": "labels",
"value": {
"end": 7369,
"labels": [
"FAC"
],
"start": 7260,
"text": "Dr. Gupta opined that the death was due to shock and haemorrhage as a result of the injuries to vital organs."
}
},
{
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"id": "1b4f4dd82c7044d0954662b828af2013",
"to_name": "text",
"type": "labels",
"value": {
"end": 7531,
"labels": [
"FAC"
],
"start": 7379,
"text": "Shri V.P. Singh (P.W.16) Station House Officer of Ganj Police Station took up investigation of the case registered on the complaint of Keramat Ali Khan."
}
},
{
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"id": "a7088417b3354e8a8006d26f8beb3792",
"to_name": "text",
"type": "labels",
"value": {
"end": 7760,
"labels": [
"FAC"
],
"start": 7532,
"text": "Besides, interrogating him and the injured persons in the hospital on that very night, he inspected the place of occurrence, prepared a site plan and seized some blood stained earth from near the gate of the complainant's house."
}
},
{
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"id": "3401eb035d904ffea5fcc63985c8c75a",
"to_name": "text",
"type": "labels",
"value": {
"end": 7854,
"labels": [
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],
"start": 7761,
"text": "After completion of investigation he submitted charge-sheet against the nine accused persons."
}
},
{
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"id": "266836c7ec444039834531b3d9eb4d43",
"to_name": "text",
"type": "labels",
"value": {
"end": 7979,
"labels": [
"FAC"
],
"start": 7864,
"text": "The appellants and the other accused persons pleaded not guilty and asserted that they had been falsely implicated."
}
},
{
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"id": "eccae0407a1c4742a66946d1be982769",
"to_name": "text",
"type": "labels",
"value": {
"end": 8136,
"labels": [
"FAC"
],
"start": 7980,
"text": "In his statement recorded under Section 313 Dr.\nP.C.Chand Khan, however, admitted that earlier P.W.7 used to work at his workshop but P.W.6 weaned him away."
}
},
{
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"id": "8e23321fb4d54a6da785b8d803921efe",
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"value": {
"end": 8296,
"labels": [
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],
"start": 8137,
"text": "He also admitted that he had gone to the workshop of Faheem Khan with Shabbu and Ishtiad and asked him to hand over Aslam to him and that he had assaulted him."
}
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{
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"text": "He however denied to have assaulted him with a knife."
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"text": "As regards the incident in question, his version was that on that night there was a festivity in the house of his cousin Sajjan and Mahboob (since acquitted) to which he was an invitee."
}
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{
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"text": "As Rafiouddin of their mohalla was also invited in that function he went to his house which was near the house of the complainant to accompany him."
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"text": "There, on hearing his voice, Shah Alam and Kaisher Khan came out with knives accompanied by Babar Khan and Irshad Khan and started beating him."
}
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"start": 8829,
"text": "When he cried aloud Shabbu (appellant), Sharif and Salim who were standing nearby and talking among themselves arrived there."
}
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{
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"labels": [
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"text": "When Shah Alam and his companions attempted to assault Shabbu and others, they in their defence assaulted them."
}
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{
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"text": "As the ladies of the house had come out then they also sustained minor injuries."
}
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{
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"labels": [
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],
"start": 9148,
"text": "Appellant Shabbu, in his statement under Section 313 Dr.P.C. admitted the assault on Faheem Khan in that afternoon but denied his presence at the time of the incident in question."
}
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{
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"end": 9443,
"labels": [
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"start": 9329,
"text": "To prove its case the prosecution examined sixteen witnesses but no witness was examined on behalf of the defence."
}
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{
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"end": 9555,
"labels": [
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"text": "On consideration of the evidence adduced the trial Court held that the prosecution case was unworthy of credit."
}
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{
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"start": 9555,
"text": "\nOn appeal the learned Judges of the High Court found the evidence of the four eye-witnesses examined by the prosecution, namely, P.Ws. 1, 2, 4 and 5 convincing and the reasons given by the trial Court for disbelieving them and, for that matter, discarding the case of the prosecution were perverse."
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"labels": [
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"start": 9854,
"text": "\n It was urgeo on behalf of the appellants that as the trial Court gave detailed reasons for disbelieving the evidence of the prosecution witnesses the High Court was not justified in interfering with the same even if another reasonably possible view of the evidence in favour of the prosecution might be taken."
}
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"start": 10166,
"text": "Having heard the learned counsel at length and seen the judgments of the learned Courts below in the light of the evidence on record, we find that the High Court committed no error or injustice in interfering with the order of acquittal for it has noticed all the salient features of the case in the judgment of the trial Court, discussed them well and disapproved them for cogent and justified reasons."
}
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{
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"text": "We are in complete agreement with the High Court that the judgment of trial Court was perverse and deserved to be set aside."
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{
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"labels": [
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"start": 10696,
"text": "In the context of the respective cases of the parties, it could not be - nor was it - disputed that an incident of assault took place in the night of May 26, 1977 in or around the residential premises of Keramat Ali Khan (P.W.1) in the backdrop of an earlier incident in the afternoon in which Faheem Khan (P.W.6) was injured."
}
},
{
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"labels": [
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"start": 11023,
"text": "It was also not disputed that in the incident in question Shah Alam met with his death while some others including appellant Chand Khan sustained injuries."
}
},
{
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"labels": [
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],
"start": 11179,
"text": "In that view of the matter the principal question that fell for determination before the learned Courts below was whether it took place within the residential premises of P.W.1 and in the manner as alleged by the prosecution or in the lane outside his house as claimed by the defence."
}
},
{
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"end": 11774,
"labels": [
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],
"start": 11464,
"text": "To prove its version of the incident, the prosecution relied, needless to say, upon the evidence of the four eye-witnesses referred to earlier while the defence relied upon the statement of the accused including the appellant Chand Khan made under Section 313 Dr.P.C. and the circumstances appearing on record."
}
},
{
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"labels": [
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],
"start": 11776,
"text": "In negativing the prosecution version the trial Court first held, for reasons given, that the assault on Faheem Khan in the afternoon by Chand Khan could not be a motive for committing the murder of Shah Alam and that no other motive was ascribed by the prosecution."
}
},
{
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],
"start": 12043,
"text": "Even if we proceed on the basis that the prosecution failed to prove the genesis or motive and that the above finding of the trial Court in this regard is unexceptionable still then this appeal cannot succeed on that score for proof of motive is not essential for success of a prosecution case where - as in the instant case - the ocular testimony in support of it is convincing and reliable."
}
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{
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"labels": [
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"text": "Indeed, as our discussion to follow will show the findings recorded by the trial Court for discarding the evidence of the four eye witnesses are based either on presumption, surmise and conjecture or on undue and unjustified reliance upon minor and immaterial contradictions."
}
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{
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"labels": [
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"start": 12713,
"text": "In dealing with the evidence of the four eye - witnesses the trial Court first observed that having regard to the incident that took place in that afternoon."
}
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{
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"labels": [
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],
"start": 12871,
"text": "Faheem Khan and Shah Alam could only be the targets of the attack of the accused persons and not others, namely, Kaisher Khan, Babar Khan and Irshad Khan as testified by them."
}
},
{
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"labels": [
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"start": 13047,
"text": "It next observed that if their evidence that Shah Alam and the above three persons were sitting together in front of the complainant's house and were talking to each other when the accused arrived there was to be believed, the latter could have caught hold of Shah Alam from out of those persons and put him to death in no time and then gone back."
}
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{
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"labels": [
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"start": 13395,
"text": "After making the above observations the trial Court held: <SLS> \"It may be that the members of the complainant's house might have come-out at their door on hearing the noise and alarm of this incident and that they might be rebuking and even accusing these accused-persons on their assaulting Shah Alam etc\".\n "
}
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"labels": [
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"start": 13711,
"text": "<SLE> The trial Court also disbelieved the prosecution case as to the manner in which the accused persons entered into the house of the complainant and beat the female members and, in explaining away the injuries found on the persons of Sm. Naeema Parveen and Sm. Raees Begum, observed: <SLS> \"........and truth of the matter appears to be that Sm. Naeema Parveen and Sm. Raees Begum had accidently sustained their injuries in this incident when they had entered in the arena of the fight for defending Shah Alam etc. from the assault of the accused.\"\n "
}
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{
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"labels": [
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],
"start": 14264,
"text": "<SLE> The High Court brushed aside the first of the above quoted findings of the trial Court with the following comments:"
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{
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"end": 14784,
"labels": [
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],
"start": 14386,
"text": "<SLS> \"The observation of the Additional Sessions Judge that the accused were likely to single out Shah Alam and to assault him alone in Shah Alam, Irshad Khan, Babar Khan and Kaiser Khan had been found sitting on the cot is misconceived and devoid of sense for Babar Khan the brother of Shah Alam and Kaisher Khan and Irshad Khan who were his close relatives could not have been silent soectators."
}
},
{
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"end": 14863,
"labels": [
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],
"start": 14785,
"text": "It is for this reason that they had all sustained injuries around the cot.\"\n <"
}
},
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"end": 15174,
"labels": [
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],
"start": 14863,
"text": "SLE> As regards the other finding the High Court observed that in view of the nature of the injuries sustained by Sm.\n Naeema Parveen and Sm. Raees Begum and in the absence of any suggestion put forward by the defence that those injuries were caused accidentally the criticism of the trial Court was perverse.\n "
}
},
{
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"end": 15312,
"labels": [
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],
"start": 15174,
"text": "On a close analysis of the materials on record we are of the opinion that the High Court was fully justified in making the above comments."
}
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"end": 15468,
"labels": [
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],
"start": 15313,
"text": "That Kaisher Khan (P.W.2), Babar Khan and Irshad Khan were present at the material time as testified by the four eye witnesses was admitted by the defence."
}
},
{
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"end": 15593,
"labels": [
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],
"start": 15469,
"text": "It was also admitted that besides Shah Alam the above three persons as well as lady members of the house sustained injuries."
}
},
{
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"labels": [
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],
"start": 15594,
"text": "However, according to them, they had beaten Shah Alam and other male members in exercise of their right of private defence and the ladies sustained simple injuries as they had then come out of the house."
}
},
{
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"end": 15939,
"labels": [
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],
"start": 15798,
"text": "The trial Court therefore was not at all justified in disbelieving even the presence of Irshad Khan, Babar Khan and Kaisher Khan at the spot."
}
},
{
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"id": "50d5d1f1b80a492a84ff7e9a52301877",
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"value": {
"end": 16317,
"labels": [
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],
"start": 15940,
"text": " Then again, keeping in view the fact that the injuries sustained by Sm. Naeema Parveen could be caused by a sharp edged weapon only and it being not the case of the defence that they had with them any such weapon the finding of the trial Court that Sm. Naeema Parveen and Sm. Raees Begum had accidentally sustained their injuries must be said to be based on conjecture only."
}
},
{
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"end": 16492,
"labels": [
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],
"start": 16317,
"text": "\n Another reason which weighed with the trial Court in disbelieving the prosecution case was that there were discrepancies in evidence as to the details and manner of assault."
}
},
{
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"id": "d9943dbe95924884aa4a1e9022ba8bb7",
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"value": {
"end": 16926,
"labels": [
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],
"start": 16493,
"text": "While detailing those discrepancies the trial Court observed: <SLS> \"According to the complainant Keramat Ali Khan that cot was lying just in front of the main door of his house at a distance of only 2 to 3 steps from the door and the entire beating outside his house had taken place near that cot and the last fatal blow of the chhuri was also inflicted by Shabbu accused on Shah Alam at only 2 or 3 steps in front of his main door."
}
},
{
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"value": {
"end": 17053,
"labels": [
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],
"start": 16927,
"text": "On the other hand, according to Sm. Naeema Parveen, that cot was lying at 6 or 7 steps in front of the main door of the house."
}
},
{
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"id": "e1821ab96d084f229ab60dd2ad120ce8",
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"value": {
"end": 17303,
"labels": [
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],
"start": 17054,
"text": "According to P.W. Kaisher Khan, to whom that cot belonged, the cot was lying by the side of his chapper, i.e., towards the north- west of the complainant's door and, according to him it was lying at 6 or 7 steps from that door towards the left side."
}
},
{
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"labels": [
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],
"start": 17304,
"text": "According to P.W. Mardan Mian alias Kallan Mian also, that cot was lying at 7 or 8 steps towards the north- west from the complainant's door."
}
},
{
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"id": "ff5c75ed0ed94cc0981eaf35704dbbab",
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],
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"text": "P.W.\n "
}
},
{
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"end": 17576,
"labels": [
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],
"start": 17452,
"text": "Keraman Ali Khan, at first, stated before me that the accused-persons had beaten Shah Alam etc, towards the east of the cot."
}
},
{
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"end": 17714,
"labels": [
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],
"start": 17577,
"text": "Then he stated in the next breath that some of them were beating on one side, while the others were beating on the other side of the cot."
}
},
{
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"labels": [
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],
"start": 17715,
"text": "Further on he stated that the victims were roaming around that cot, while being beaten, and the samething has been stated by some other witnesses.\""
}
},
{
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"end": 18018,
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],
"start": 17864,
"text": "<SLE> The discrepancies pointed out by the trial Court are patently of minor character and cannot detract from the evidentiary value of the eye-witnesses."
}
},
{
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"value": {
"end": 18156,
"labels": [
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],
"start": 18019,
"text": "The High Court was, therefore, fully justified in ignoring those discrepancies while dealing with the evidence of the four eye-witnesses."
}
},
{
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"id": "2cac0b7859794e4a87c67e7d003b447d",
"to_name": "text",
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"value": {
"end": 18403,
"labels": [
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],
"start": 18156,
"text": "\n The next reason canvassed by the trial Court for disbelieving the prosecution case was that the evidence of P.Ws. Kaisher Khan (P.W.2) and Mardan Mian (P.W.4) only established that some of the accused persons had assaulted Shah Alam and not all."
}
},
{
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"value": {
"end": 18841,
"labels": [
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],
"start": 18404,
"text": "Having recorded the above finding it was imperative for the trial Court to consider the case of the individual accused on their respective merits in the light of other evidence on record and not to outright reject the evidence of the two witnesses in its entirely for it is trite that the principle Single in uno. Falsus in omnibus\"\ndoes not apply to criminal trials and it is the duty of the Court to disengage the truth from falsenood."
}
},
{
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"id": "2e9d27fdfffa4a6d864916368c343e5c",
"to_name": "text",
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"value": {
"end": 18970,
"labels": [
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],
"start": 18841,
"text": "\n The judgment of the trial Court is replete with similar such findings which the High Court has rightly not accepted as correct."
}
},
{
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"id": "4f0c9f9f8da0430cbdcb67a9ef5b9240",
"to_name": "text",
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"value": {
"end": 19184,
"labels": [
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],
"start": 18971,
"text": "However, to avoid prolixity we refrain from detailing or discussing all of them and refer only to the concluding one to highlight the absurd and perverse approach of the trial Court in dispensing criminal justice."
}
},
{
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"value": {
"end": 19195,
"labels": [
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],
"start": 19185,
"text": "It reads:-"
}
},
{
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],
"start": 19196,
"text": "<SLS> \"It is quite probable that Shah Alam etc. miont be bearing grudge and ill-will against Chand Khan etc."
}
},
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"text": "On account of the noon incident of that day, in which the accused Chand Khan, Ishtiaq Khan and Shabbu had an altercation with P.W. Raheem Khan and had then beaten him; and it may be that Shah Alam etc. might have caught-hold of Chand Khan accused when he had gone to the house of Rafiquddin for calling him and that they might have taken him from there in front of the complainant's house and might have assaulted him with churis."
}
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"text": "Then, it is also quite probable that the accused Sharif Khan, Salim Khan and Shabbu might have arrived on the spot on hearing the alarm raised by Chand khan accused and that Shah Alam etc. might have tried to assault them also and thereupon they might have assaulted Shah Alam etc. with dandas and chhuri in defence of Chand Khan accused, as also in their own selfdefence."
}
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"text": "It has come in evidence that the house of Shabbu accused is situated quite near to the road crossing and that the house of Salim Khan accused is also situated in the same locality."
}
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{
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"text": "So, it is quite possible that the accused Shabbu, Salim Khan and Chand Khan might be standing at the road crossing near the house of Shabbu accused and might be talking to each-other at that time and that they might have reached the sput on hearing the alarm raised by Chand Khan accused.\"\n (emphasis supplied)"
}
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"text": "<SLE> By frequent recourse to and reliance upon the words \"might be\" and \"might have\" in the above quoted passage the trial Court, instead of finding out which of the contending versions was correct and acceptable, gave out a version of its own relying solely on presumption, surmise and conjecture."
}
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"text": "The trial Court would have been, on a proper discussion and aporaisal of the evidence, fully justified to hold that the prosecution case was unreliable and record an order of acquittal in favour of accused without going into the question as to whether the defence case was true, for burden of proof was upon the prosecution."
}
},
{
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"text": "Equally justified the trial Court would have been in recording such an order if it found the defence case probable."
}
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{
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"text": "But it was not at all justified to make out a third case entering into the domain of speculation."
}
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"text": "The High Court was, therefore, right in basing its decision on a fresh and proper appraisal of the evidence leaving aside the obstinate findings of the trial Court."
}
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"text": "Having gone through the record we do not find any reason to differ from the decision so arrived at by the High Court."
}
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"text": "\n Mr. Thakur, learned counsel for the appellants, however submitted that even if it was held that the reasons which weighed with the trial Court in recording the order of acquittal were faulty and unsustainable still then the order of acquittal was liable to be upheld for the evidence on record did not Justify the impugned Judgment rendered by the High Court."
}
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"text": "To bring home his contention Mr. Thakur urged that the incident that took place in the afternoon in which Faheem Khan was assaulted by Chand Khan might have been a motive for the former to assault the latter and not vice- versa."
}
},
{
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"text": "In that context, Mr. Thakur urged, the defence version of the incident in question was more probable than that of the prosecution."
}
},
{
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"text": "This contention of Mr. Thakur need not be gone into for we have earlier observed, and at the risk of repetition may again point out, that as the evidence on record clearly proves that the incident took place in the manner alleged by the prosecution absence or insufficency of motive is immaterial."
}
},
{
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"labels": [
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],
"start": 22742,
"text": "Mr. Thakur next submitted that the evidence of the prosecution withesses so far as it related to the assault on Sm. Naeema Praveen and Chand Khan inside the house was patently false; firstly. because no blood was found inside the house and secondly because no knife was produced by Sm. Naeema Praveen much less seized by the Investigation Officer."
}
},
{
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"labels": [
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],
"start": 23090,
"text": "In support of this contention he drew our attention to the evidence of the Investigation Officer (PW 16) wherein he stated that neither he had seen nor shown the vegetable cutting knife used by Sm. Naeema Praveen and that he had found blood at the place which was about 8 steps from the northern main door outside the house of Keramat Ali and nowhere else."
}
},
{
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"text": "We are not impressed by any of the above contentions."
}
},
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"end": 23673,
"labels": [
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],
"start": 23500,
"text": "\n There is no evidence on record to show that there was profuse bleeding from the injuries sustained by the two ladies and Chand Khan for blood to trickle down to the floor."
}
},
{
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"labels": [
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],
"start": 23674,
"text": "On the contrary, the find of blood near the threshold of P.W.1's house fits in with the evidence of the eye- witnesses and the nature of injuries sustained by Shah Alam."
}
},
{
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"labels": [
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],
"start": 23843,
"text": "\nFrom the evidence of Sm. Naeema Praveen (PW 5) we get that when the accused persons started beating the members of their family inside their premises, she her mother and aunt (Raees Begum) started shouting and cursing them."
}
},
{
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"end": 24139,
"labels": [
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],
"start": 24068,
"text": "Then, when they found Chand Khan was approaching them they went inside."
}
},
{
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"end": 24271,
"labels": [
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],
"start": 24139,
"text": "\nThere Ishtiaq Khan gave two chhuri blows on the left side of her face and Sharik Khan gave two danda blows to her aunt Raees Begum."
}
},
{
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"id": "484cd9972bd048719d2bdb165dff0dce",
"to_name": "text",
"type": "labels",
"value": {
"end": 24374,
"labels": [
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],
"start": 24272,
"text": "When she found Chand Khan was about to beat her mother, she struck him with a vegetable cutting knife."
}
},
{
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"id": "68e45ac4ce234ffea1d886ab4c46f279",
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"value": {
"end": 24490,
"labels": [
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],
"start": 24375,
"text": "The above evidence of P.W.5 stands substantially corroborated by the other three eye-witnesses referred to earlier."
}
},
{
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"id": "fd3e83852b4f4dfea6b0f849626e61af",
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"end": 24616,
"labels": [
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],
"start": 24491,
"text": "Then again the nature of injuries as found by the doctor upon her, Sm. Raees Begum and Chand Khan fits in with her testimony."
}
},
{
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"id": "649a7e94121341e297961a4d58eade3b",
"to_name": "text",
"type": "labels",
"value": {
"end": 24781,
"labels": [
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],
"start": 24617,
"text": "In our opinion the best corroborative piece of evidence is furnished by the F.I.R. which was lodged by Keramat Ali (P.W.1) on the basis of what he heard from P.W.5."
}
},
{
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"id": "69562c2da786456384e3a48a0988afb8",
"to_name": "text",
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"value": {
"end": 25065,
"labels": [
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],
"start": 24782,
"text": "In the F.I.R., which was lodged within two hours of the incident, the substratum of the entire prosecution case finds place including a statement that during the incident Sm. Naeema Praveen had, in defending herself, given a blow to one of the accused with a vegetable cutting knife."
}
},
{
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"id": "95fab53be9f341ddbd23cbf992912d3a",
"to_name": "text",
"type": "labels",
"value": {
"end": 25566,
"labels": [
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],
"start": 25066,
"text": "In view of the above statement recorded in the F.I.R., the Investigation Officer (P.W.16) ought to have taken steps to seize the knife even if P.W. 5 had not produced it for, one of the essential requisites of a proper investigation is collection of evidence relating to the commission of the offence and that necessarily includes, in a case of assault, seizure of the weapon of offence, but then failure to collect evidence and failure to produce evidence collected during investigation at the trial"
}
},
{
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"id": "0d2ca1904f1f4f86abb0e55446f0c048",
"to_name": "text",
"type": "labels",
"value": {
"end": 25617,
"labels": [
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],
"start": 25567,
"text": "carry two different connotations and consequences."
}
},
{
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"id": "3b900667593b4b81880ca7d6dfe4b4a4",
"to_name": "text",
"type": "labels",
"value": {
"end": 25862,
"labels": [
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],
"start": 25618,
"text": "While, the former may entitle the Court to hold the investigation to be perfunctory or tainted affecting the entire trial in case of the latter the Court may legitimately draw a presumption in accordance with Section 114(g) of the Evidence Act."
}
},
{
"from_name": "label",
"id": "ffb34c59694c4c319b6e5da871afb45e",
"to_name": "text",
"type": "labels",
"value": {
"end": 26098,
"labels": [
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],
"start": 25863,
"text": "As the case presented before us comes under the first category of failures we have to find out whether we will be justified in discarding the prosecution case solely for the remissness of the Investigating Officer in seizing the knife."
}
},
{
"from_name": "label",
"id": "1171bed51e4448cfbf79f6962972e6cc",
"to_name": "text",
"type": "labels",
"value": {
"end": 26429,
"labels": [
"ANALYSIS"
],
"start": 26099,
"text": "The consistent and reliable evidence of the eye witnesses coupled with the nature of injuries sustained by some of them and Chand Khan and the fact that in the F.I.R. it has clearly been stated that one of the miscreants had been assaulted by a vegetable cutting knife do not persuade us to answer the question in the affirmative."
}
},
{
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"id": "fb57c3f395d84567bef483e0fbab2ac9",
"to_name": "text",
"type": "labels",
"value": {
"end": 26656,
"labels": [
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],
"start": 26430,
"text": "Mr. Thakur lastly submitted that the entire prosecution story was improbable for if really the incident had happened in the manner alleged by it, the persons present in P.W.1's house would have sustained more serious injuries."
}
},
{
"from_name": "label",
"id": "08ca521853b74dfa99d3d33974326bab",
"to_name": "text",
"type": "labels",
"value": {
"end": 26861,
"labels": [
"RATIO"
],
"start": 26657,
"text": "We do not find any substance in this contention for it is evident that Shah Alam was the main target and the assault on others was carried out to thwart any resistance from those present in the courtyard."
}
},
{
"from_name": "label",
"id": "ed42e7aa27af40b79d331de4ea95e409",
"to_name": "text",
"type": "labels",
"value": {
"end": 27167,
"labels": [
"RATIO"
],
"start": 26861,
"text": "\n As all the points raised by Mr. Thakur fail and as on a conspectus of the entire evidence we are fully satisfied that the conclusions drawn by the High Court, particularly regarding the roles played by the two appellants in the riot and the murder of Shah Alam are unexceptionable, we dismiss the appeal."
}
},
{
"from_name": "label",
"id": "0c6eebfb82f04e2b9aa486c5169f9f67",
"to_name": "text",
"type": "labels",
"value": {
"end": 27268,
"labels": [
"RPC"
],
"start": 27168,
"text": "The appellants, who are on bail, shall now surrender to their bail bonds to serve out the sentences."
}
}
]
}
] | 1,744 | {
"text": "PETITIONER:\nCHAND KHAN & ANR.\n\n Vs.\n\nRESPONDENT:\nSTATE OF UTTAR PRADESH\n\nDATE OF JUDGMENT11/07/1995\n\nBENCH:\nMUKHERJEE M.K. (J)\nBENCH:\nMUKHERJEE M.K. (J)\nANAND, A.S. (J)\n\nCITATION: 1995 SCC (5) 448\n 1995 AIR 2140 1995 SCALE (4)276\n JT 1995 (5) 329\n\nACT:\n\nHEADNOTE:\n\nJUDGMENT: THE 11TH DAY OF JULY, 1995 Present: Hon'ble Dr.Justice A.S.Anand Hon'ble Mr.Justice M.K.Mukherjee Mr.D.D.Thakur, Sr. Adv. Mr.Suman Kapoor, and Mr.Pankaj Kalra, Advs. with him for the appellants.\nMr.Anis Ahmed Khan and Mr.A.S.Pundir, Advs. for the Respondent.\n J U D G M E N T The following Judgment of the Court was delivered: IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 716 OF 1991 Chand Khan and anr.\n Versus State of Uttar Pradesh J U D G M E N T M.K. MUKHERJEE. J.\n Chand Khan and Shabbu, the two appellants before us, and seven others were placed on trial before an Additional Sessions Judge of Rampur to answer common charges under Sections 452, 302/149, 325/149, 324/149 and 323/149 of the Indian Penal Code (`IPC' for short). Against five of them, including the two appellants, a charge under Section 148 IPC and against the other four a charge under Section 147 IPC were also framed. Besides, a separate charge under Section 302 IPC was framed against appellant Shabbu. The trial ended in an order of acquittal recorded in favour of all the persons araigned. Aggrieved thereby the State of Uttar Pradesh preferred an appeal which was partly allowed by the High Court by setting aside the acquittal of the two appellants and three others. After setting aside their acquittal the High Court convicted the two appellants for the offence under Section 302 IPC as also for the other offences for which they were charged and sentenced them to suffer imprisonment for life for the former conviction and for the period already undergone for the other convictions.\nThe other three were convicted of all the charges levelled against them except the one under Section 302/149 IPC and sentenced to imprisonment for the period already undergone.\nAssailing the above order of conviction and sentence only the two appellants have filed this appeal invoking their statutory right under Section 379 Criminal Procedure Code.\n Facts which are not in dispute are that Shah Alam (the deceased), his cousin Faheem Khan (P.W.6) and appellant Chand Khan were carrying on business of Karchobi from two separate workshops in Mohalla Gher Pipalwala within the police station of Ganj. Aslam (P.W.7), a boy aged about 7/8 years, had been working for the appellant Chand Khan in his business but a few days before the incident out of which the present appeal arises he left his services and joined the set-up of Faheem Khan. On May 26, 1977 at or about 1 P.M.\nthe two appellants and accused Ishtiaq Khan went to the workshop of Faheem Khan and asked him to release Aslam so that he could work with Chand Khan again. When Faheem Khan refused to oblige they assaulted him. For that incident, he lodged a complaint with the police the same afternoon.\nHowever, according to the prosecution Shah Alam and Faheem Khan used to carry on their above business jointly but as adequate accommodation was not available at one and the same place they were maintaining two workshops, one in the house of one Allah Rakha Khan and the other in the terrace of Md.\nJama Khan.\n The prosecution version of the incident is that on the same night (on May 26, 1977) the two appellants along with the other accused persons went to the house of Shah Alam to teach him a lesson for the report his business partner Faheem Khan had lodged against some of them earlier in the afternoon for assaulting him. For that purpose the two appellants went armed with Knives and the rest with other weapons including danda. Shah Alam was then sitting on a cot in the open space in front of his house along with Irshad Khan, Babar Khan and Kaisher (P.W.2). Immediately after entering the premises the accused persons started assaulting them. Chand Khan gave two knife blows to Shah Alam and some others hit Irshad Khan, Babar Khan and Kaisher Khan with dandas. When the victims cried aloud, Keramat Ali Khan (P.W.1), father of the deceased Shah Alam, who was inside the house came out and some people from the mohalla including Kallan Mian @ Mardan Mian (P.W.4) arrived there.\nIn the meantime some of the miscreants including Chand Khan entered into the house of Keramat and assaulted his daughter Sm. Naeema Parveen (P.W.5) and his sister-in-law Sm. Raees Begum. When Sm. Naeema Parveen found that Chand Khan was about to beat her mother she picked up a knife used for cutting vegetables which was lying nearby and assaulted him.\nWhile coming out of the house Shabhu thrust his knife on the neck of Shah Alam felling him down. All of them then fled away. Keramat Ali Khan arranged immediate hospitalisation of all the injured including Shah Alam, whose condition was precarious. Before, however, any treatment could be administered Shah Alam died. While in the hospital Keramat Ali Khan got a complaint written by Asmat Ali Khan (P.W.9) as per his dictation and forwarded the same to the police station.\n At the hospital, Dr. S.P. Pandey (P.W.3) examined Sm.\nNaeema Parveen (P.W.5), Irshad Khan, Babar Khan, Sm. Raees Begum and Kaisher Khan (P.W.2) and found injuries on their persons. P.W.5 had two incised wounds which, according to P.W.3, could be caused by sharp edged weapon and the other four had sustained contusions, which could be caused by blunt weapons. Chand Khan, who was also brought under arrest to the hospital in that very night as he had injuries on his person, was also examined by P.W.3. He found three incised wounds on his person, all of which, according to him, could be caused by a sharp edged weapon. Besides, P.W.3 examined Faheem Khan for injuries which, he alleged, were sustained by him in the incident that took place earlier in the afternoon. According to P.W.3 the two stab injuries he found on his person were likely to have been caused by a pointed weapon.\n The post-mortem examination on the body of Shah Alam was held by Dr. O.N. Gupta on the following day (27.5.1977) He found the following external injuries on his person:- <SLS> 1. Incised punctured wound 5 cm. x 3 cm.\n x chest cavity deep on the base of left side neck, 5 cm. from the left sterno clavicular joint with direction downwards.\n 2. Abrasion 4 cm. x 1 cm. on the right side forehead 3 cm. above right eye brows.\n 3. Abrasion 3 cm. x 2 cm. on right side forehead 3 cm. lateral to injury No. 1.\n 4. Abrasion 2 cm. x 1cm. on the left side scapular region back.\n 5. Incised wound 2 cm. x 1 cm. x skin deep on the left side back at inner angle of left scapula.\n 6. Incised punctured wound 3 cm. x 1 cm.\n chest cavity deep on left side back 4 cm. below injury No. 5.\n<SLE> On internal examination of the dead body he found that the sixth rit was cut under injury No. 6; the pleura was cut beneath the injuries No. 1 and 6, the left lung was cut through and through upper lobe was cut both under injury No.1 and 6 and the pericardium and the right side of the heart were cut by the injury No.1. Dr. Gupta opined that the death was due to shock and haemorrhage as a result of the injuries to vital organs.\n Shri V.P. Singh (P.W.16) Station House Officer of Ganj Police Station took up investigation of the case registered on the complaint of Keramat Ali Khan. Besides, interrogating him and the injured persons in the hospital on that very night, he inspected the place of occurrence, prepared a site plan and seized some blood stained earth from near the gate of the complainant's house. After completion of investigation he submitted charge-sheet against the nine accused persons.\n The appellants and the other accused persons pleaded not guilty and asserted that they had been falsely implicated. In his statement recorded under Section 313 Dr.\nP.C.Chand Khan, however, admitted that earlier P.W.7 used to work at his workshop but P.W.6 weaned him away. He also admitted that he had gone to the workshop of Faheem Khan with Shabbu and Ishtiad and asked him to hand over Aslam to him and that he had assaulted him. He however denied to have assaulted him with a knife. As regards the incident in question, his version was that on that night there was a festivity in the house of his cousin Sajjan and Mahboob (since acquitted) to which he was an invitee. As Rafiouddin of their mohalla was also invited in that function he went to his house which was near the house of the complainant to accompany him. There, on hearing his voice, Shah Alam and Kaisher Khan came out with knives accompanied by Babar Khan and Irshad Khan and started beating him. When he cried aloud Shabbu (appellant), Sharif and Salim who were standing nearby and talking among themselves arrived there. When Shah Alam and his companions attempted to assault Shabbu and others, they in their defence assaulted them. As the ladies of the house had come out then they also sustained minor injuries. Appellant Shabbu, in his statement under Section 313 Dr.P.C. admitted the assault on Faheem Khan in that afternoon but denied his presence at the time of the incident in question.\n To prove its case the prosecution examined sixteen witnesses but no witness was examined on behalf of the defence. On consideration of the evidence adduced the trial Court held that the prosecution case was unworthy of credit.\nOn appeal the learned Judges of the High Court found the evidence of the four eye-witnesses examined by the prosecution, namely, P.Ws. 1, 2, 4 and 5 convincing and the reasons given by the trial Court for disbelieving them and, for that matter, discarding the case of the prosecution were perverse.\n It was urgeo on behalf of the appellants that as the trial Court gave detailed reasons for disbelieving the evidence of the prosecution witnesses the High Court was not justified in interfering with the same even if another reasonably possible view of the evidence in favour of the prosecution might be taken. Having heard the learned counsel at length and seen the judgments of the learned Courts below in the light of the evidence on record, we find that the High Court committed no error or injustice in interfering with the order of acquittal for it has noticed all the salient features of the case in the judgment of the trial Court, discussed them well and disapproved them for cogent and justified reasons. We are in complete agreement with the High Court that the judgment of trial Court was perverse and deserved to be set aside.\n In the context of the respective cases of the parties, it could not be - nor was it - disputed that an incident of assault took place in the night of May 26, 1977 in or around the residential premises of Keramat Ali Khan (P.W.1) in the backdrop of an earlier incident in the afternoon in which Faheem Khan (P.W.6) was injured. It was also not disputed that in the incident in question Shah Alam met with his death while some others including appellant Chand Khan sustained injuries. In that view of the matter the principal question that fell for determination before the learned Courts below was whether it took place within the residential premises of P.W.1 and in the manner as alleged by the prosecution or in the lane outside his house as claimed by the defence. To prove its version of the incident, the prosecution relied, needless to say, upon the evidence of the four eye-witnesses referred to earlier while the defence relied upon the statement of the accused including the appellant Chand Khan made under Section 313 Dr.P.C. and the circumstances appearing on record.\n In negativing the prosecution version the trial Court first held, for reasons given, that the assault on Faheem Khan in the afternoon by Chand Khan could not be a motive for committing the murder of Shah Alam and that no other motive was ascribed by the prosecution. Even if we proceed on the basis that the prosecution failed to prove the genesis or motive and that the above finding of the trial Court in this regard is unexceptionable still then this appeal cannot succeed on that score for proof of motive is not essential for success of a prosecution case where - as in the instant case - the ocular testimony in support of it is convincing and reliable. Indeed, as our discussion to follow will show the findings recorded by the trial Court for discarding the evidence of the four eye witnesses are based either on presumption, surmise and conjecture or on undue and unjustified reliance upon minor and immaterial contradictions.\n In dealing with the evidence of the four eye - witnesses the trial Court first observed that having regard to the incident that took place in that afternoon. Faheem Khan and Shah Alam could only be the targets of the attack of the accused persons and not others, namely, Kaisher Khan, Babar Khan and Irshad Khan as testified by them. It next observed that if their evidence that Shah Alam and the above three persons were sitting together in front of the complainant's house and were talking to each other when the accused arrived there was to be believed, the latter could have caught hold of Shah Alam from out of those persons and put him to death in no time and then gone back. After making the above observations the trial Court held: <SLS> \"It may be that the members of the complainant's house might have come-out at their door on hearing the noise and alarm of this incident and that they might be rebuking and even accusing these accused-persons on their assaulting Shah Alam etc\".\n <SLE> The trial Court also disbelieved the prosecution case as to the manner in which the accused persons entered into the house of the complainant and beat the female members and, in explaining away the injuries found on the persons of Sm. Naeema Parveen and Sm. Raees Begum, observed: <SLS> \"........and truth of the matter appears to be that Sm. Naeema Parveen and Sm. Raees Begum had accidently sustained their injuries in this incident when they had entered in the arena of the fight for defending Shah Alam etc. from the assault of the accused.\"\n <SLE> The High Court brushed aside the first of the above quoted findings of the trial Court with the following comments: <SLS> \"The observation of the Additional Sessions Judge that the accused were likely to single out Shah Alam and to assault him alone in Shah Alam, Irshad Khan, Babar Khan and Kaiser Khan had been found sitting on the cot is misconceived and devoid of sense for Babar Khan the brother of Shah Alam and Kaisher Khan and Irshad Khan who were his close relatives could not have been silent soectators. It is for this reason that they had all sustained injuries around the cot.\"\n <SLE> As regards the other finding the High Court observed that in view of the nature of the injuries sustained by Sm.\n Naeema Parveen and Sm. Raees Begum and in the absence of any suggestion put forward by the defence that those injuries were caused accidentally the criticism of the trial Court was perverse.\n On a close analysis of the materials on record we are of the opinion that the High Court was fully justified in making the above comments. That Kaisher Khan (P.W.2), Babar Khan and Irshad Khan were present at the material time as testified by the four eye witnesses was admitted by the defence. It was also admitted that besides Shah Alam the above three persons as well as lady members of the house sustained injuries. However, according to them, they had beaten Shah Alam and other male members in exercise of their right of private defence and the ladies sustained simple injuries as they had then come out of the house. The trial Court therefore was not at all justified in disbelieving even the presence of Irshad Khan, Babar Khan and Kaisher Khan at the spot. Then again, keeping in view the fact that the injuries sustained by Sm. Naeema Parveen could be caused by a sharp edged weapon only and it being not the case of the defence that they had with them any such weapon the finding of the trial Court that Sm. Naeema Parveen and Sm. Raees Begum had accidentally sustained their injuries must be said to be based on conjecture only.\n Another reason which weighed with the trial Court in disbelieving the prosecution case was that there were discrepancies in evidence as to the details and manner of assault. While detailing those discrepancies the trial Court observed: <SLS> \"According to the complainant Keramat Ali Khan that cot was lying just in front of the main door of his house at a distance of only 2 to 3 steps from the door and the entire beating outside his house had taken place near that cot and the last fatal blow of the chhuri was also inflicted by Shabbu accused on Shah Alam at only 2 or 3 steps in front of his main door. On the other hand, according to Sm. Naeema Parveen, that cot was lying at 6 or 7 steps in front of the main door of the house. According to P.W. Kaisher Khan, to whom that cot belonged, the cot was lying by the side of his chapper, i.e., towards the north- west of the complainant's door and, according to him it was lying at 6 or 7 steps from that door towards the left side. According to P.W. Mardan Mian alias Kallan Mian also, that cot was lying at 7 or 8 steps towards the north- west from the complainant's door. P.W.\n Keraman Ali Khan, at first, stated before me that the accused-persons had beaten Shah Alam etc, towards the east of the cot. Then he stated in the next breath that some of them were beating on one side, while the others were beating on the other side of the cot. Further on he stated that the victims were roaming around that cot, while being beaten, and the samething has been stated by some other witnesses.\"\n <SLE> The discrepancies pointed out by the trial Court are patently of minor character and cannot detract from the evidentiary value of the eye-witnesses. The High Court was, therefore, fully justified in ignoring those discrepancies while dealing with the evidence of the four eye-witnesses.\n The next reason canvassed by the trial Court for disbelieving the prosecution case was that the evidence of P.Ws. Kaisher Khan (P.W.2) and Mardan Mian (P.W.4) only established that some of the accused persons had assaulted Shah Alam and not all. Having recorded the above finding it was imperative for the trial Court to consider the case of the individual accused on their respective merits in the light of other evidence on record and not to outright reject the evidence of the two witnesses in its entirely for it is trite that the principle Single in uno. Falsus in omnibus\"\ndoes not apply to criminal trials and it is the duty of the Court to disengage the truth from falsenood.\n The judgment of the trial Court is replete with similar such findings which the High Court has rightly not accepted as correct. However, to avoid prolixity we refrain from detailing or discussing all of them and refer only to the concluding one to highlight the absurd and perverse approach of the trial Court in dispensing criminal justice. It reads:- <SLS> \"It is quite probable that Shah Alam etc. miont be bearing grudge and ill-will against Chand Khan etc. On account of the noon incident of that day, in which the accused Chand Khan, Ishtiaq Khan and Shabbu had an altercation with P.W. Raheem Khan and had then beaten him; and it may be that Shah Alam etc. might have caught-hold of Chand Khan accused when he had gone to the house of Rafiquddin for calling him and that they might have taken him from there in front of the complainant's house and might have assaulted him with churis. Then, it is also quite probable that the accused Sharif Khan, Salim Khan and Shabbu might have arrived on the spot on hearing the alarm raised by Chand khan accused and that Shah Alam etc. might have tried to assault them also and thereupon they might have assaulted Shah Alam etc. with dandas and chhuri in defence of Chand Khan accused, as also in their own selfdefence. It has come in evidence that the house of Shabbu accused is situated quite near to the road crossing and that the house of Salim Khan accused is also situated in the same locality. So, it is quite possible that the accused Shabbu, Salim Khan and Chand Khan might be standing at the road crossing near the house of Shabbu accused and might be talking to each-other at that time and that they might have reached the sput on hearing the alarm raised by Chand Khan accused.\"\n (emphasis supplied) <SLE> By frequent recourse to and reliance upon the words \"might be\" and \"might have\" in the above quoted passage the trial Court, instead of finding out which of the contending versions was correct and acceptable, gave out a version of its own relying solely on presumption, surmise and conjecture. The trial Court would have been, on a proper discussion and aporaisal of the evidence, fully justified to hold that the prosecution case was unreliable and record an order of acquittal in favour of accused without going into the question as to whether the defence case was true, for burden of proof was upon the prosecution. Equally justified the trial Court would have been in recording such an order if it found the defence case probable. But it was not at all justified to make out a third case entering into the domain of speculation. The High Court was, therefore, right in basing its decision on a fresh and proper appraisal of the evidence leaving aside the obstinate findings of the trial Court. Having gone through the record we do not find any reason to differ from the decision so arrived at by the High Court.\n Mr. Thakur, learned counsel for the appellants, however submitted that even if it was held that the reasons which weighed with the trial Court in recording the order of acquittal were faulty and unsustainable still then the order of acquittal was liable to be upheld for the evidence on record did not Justify the impugned Judgment rendered by the High Court. To bring home his contention Mr. Thakur urged that the incident that took place in the afternoon in which Faheem Khan was assaulted by Chand Khan might have been a motive for the former to assault the latter and not vice- versa. In that context, Mr. Thakur urged, the defence version of the incident in question was more probable than that of the prosecution. This contention of Mr. Thakur need not be gone into for we have earlier observed, and at the risk of repetition may again point out, that as the evidence on record clearly proves that the incident took place in the manner alleged by the prosecution absence or insufficency of motive is immaterial. Mr. Thakur next submitted that the evidence of the prosecution withesses so far as it related to the assault on Sm. Naeema Praveen and Chand Khan inside the house was patently false; firstly. because no blood was found inside the house and secondly because no knife was produced by Sm. Naeema Praveen much less seized by the Investigation Officer. In support of this contention he drew our attention to the evidence of the Investigation Officer (PW 16) wherein he stated that neither he had seen nor shown the vegetable cutting knife used by Sm. Naeema Praveen and that he had found blood at the place which was about 8 steps from the northern main door outside the house of Keramat Ali and nowhere else. We are not impressed by any of the above contentions.\n There is no evidence on record to show that there was profuse bleeding from the injuries sustained by the two ladies and Chand Khan for blood to trickle down to the floor. On the contrary, the find of blood near the threshold of P.W.1's house fits in with the evidence of the eye- witnesses and the nature of injuries sustained by Shah Alam.\nFrom the evidence of Sm. Naeema Praveen (PW 5) we get that when the accused persons started beating the members of their family inside their premises, she her mother and aunt (Raees Begum) started shouting and cursing them. Then, when they found Chand Khan was approaching them they went inside.\nThere Ishtiaq Khan gave two chhuri blows on the left side of her face and Sharik Khan gave two danda blows to her aunt Raees Begum. When she found Chand Khan was about to beat her mother, she struck him with a vegetable cutting knife. The above evidence of P.W.5 stands substantially corroborated by the other three eye-witnesses referred to earlier. Then again the nature of injuries as found by the doctor upon her, Sm. Raees Begum and Chand Khan fits in with her testimony. In our opinion the best corroborative piece of evidence is furnished by the F.I.R. which was lodged by Keramat Ali (P.W.1) on the basis of what he heard from P.W.5. In the F.I.R., which was lodged within two hours of the incident, the substratum of the entire prosecution case finds place including a statement that during the incident Sm. Naeema Praveen had, in defending herself, given a blow to one of the accused with a vegetable cutting knife. In view of the above statement recorded in the F.I.R., the Investigation Officer (P.W.16) ought to have taken steps to seize the knife even if P.W. 5 had not produced it for, one of the essential requisites of a proper investigation is collection of evidence relating to the commission of the offence and that necessarily includes, in a case of assault, seizure of the weapon of offence, but then failure to collect evidence and failure to produce evidence collected during investigation at the trial carry two different connotations and consequences. While, the former may entitle the Court to hold the investigation to be perfunctory or tainted affecting the entire trial in case of the latter the Court may legitimately draw a presumption in accordance with Section 114(g) of the Evidence Act. As the case presented before us comes under the first category of failures we have to find out whether we will be justified in discarding the prosecution case solely for the remissness of the Investigating Officer in seizing the knife. The consistent and reliable evidence of the eye witnesses coupled with the nature of injuries sustained by some of them and Chand Khan and the fact that in the F.I.R. it has clearly been stated that one of the miscreants had been assaulted by a vegetable cutting knife do not persuade us to answer the question in the affirmative. Mr. Thakur lastly submitted that the entire prosecution story was improbable for if really the incident had happened in the manner alleged by it, the persons present in P.W.1's house would have sustained more serious injuries. We do not find any substance in this contention for it is evident that Shah Alam was the main target and the assault on others was carried out to thwart any resistance from those present in the courtyard.\n As all the points raised by Mr. Thakur fail and as on a conspectus of the entire evidence we are fully satisfied that the conclusions drawn by the High Court, particularly regarding the roles played by the two appellants in the riot and the murder of Shah Alam are unexceptionable, we dismiss the appeal. The appellants, who are on bail, shall now surrender to their bail bonds to serve out the sentences.\n"
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{
"result": [
{
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"end": 123,
"labels": [
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],
"start": 0,
"text": " 1/22\n\nIN THE HIGH COURT OF KARNATAKA, BENGALURU\n\n DATED THIS THE 30TH DAY OF JULY, 2018\n\n PRESENT\n\n"
}
},
{
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],
"start": 123,
"text": "THE HON'BLE"
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"start": 135,
"text": "DR. JUSTICE VINEET KOTHARI"
}
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{
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"start": 161,
"text": "\n\n AND"
}
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{
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"value": {
"end": 269,
"labels": [
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],
"start": 176,
"text": "\n\n THE HON'BLE MRS. JUSTICE S. SUJATHA\n\n INCOME TAX APPEAL NO.105 OF 2007\n\nBETWEEN:"
}
},
{
"from_name": null,
"id": "91b880fe4e3e46e6822578c323ad56c7",
"to_name": null,
"type": null,
"value": {
"end": 383,
"labels": [
"PREAMBLE"
],
"start": 269,
"text": "\n\n1. THE COMMISSIONER OF INCOME-TAX\n CENTRAL CIRCLE, C.R.BUILDING\n QUEENS ROAD\n BANGALORE."
}
},
{
"from_name": null,
"id": "13de7b519cb34e97ab5460313f543021",
"to_name": null,
"type": null,
"value": {
"end": 502,
"labels": [
"PREAMBLE"
],
"start": 383,
"text": "\n\n2. THE DEPUTY COMMISSIONER OF INCOME-TAX\n CIRCLE-11(3), C.R.BUILDING\n QUEENS ROAD\n BANGALORE."
}
},
{
"from_name": null,
"id": "b98e79bdd79c4557a4d26b1a33ffd124",
"to_name": null,
"type": null,
"value": {
"end": 591,
"labels": [
"PREAMBLE"
],
"start": 502,
"text": "\n ...APPELLANTS"
}
},
{
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"id": "fe8a91b86539473c9b531e2a915bb530",
"to_name": null,
"type": null,
"value": {
"end": 736,
"labels": [
"PREAMBLE"
],
"start": 601,
"text": "(BY MR. K.V. ARAVIND, ADV.)\n\nAND:\n\n M/S.LUWA INDIA PVT. LTD.\n II STAGE, INDUSTRIAL SUBURB\n YESHWANTHPUR\n BANGALORE."
}
},
{
"from_name": null,
"id": "616d06e86e064561bd8359cc153d701c",
"to_name": null,
"type": null,
"value": {
"end": 833,
"labels": [
"PREAMBLE"
],
"start": 777,
"text": "...RESPONDENT\n\n (BY MR. S.PARTHASARATHI &\n MRS"
}
},
{
"from_name": null,
"id": "c38dbb9ab96641cf84470d57435ded9b",
"to_name": null,
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"value": {
"end": 1865,
"labels": [
"PREAMBLE"
],
"start": 833,
"text": ". SOUMYA K., ADV. )\n\n The Commissioner of Income-Tax & Anr.\n vs.\n\n M/s.Luwa India Pvt. Ltd.\n\n 2/22\n\n * * *\n THIS INCOME TAX APPEAL IS FILED UNDER SECTION\n260A OF THE INCOME TAX ACT, 1961, PRAYING TO\nFORMULATE THE SUBSTANTIAL QUESTIONS OF LAW STATED\nTHEREIN AND ALLOW THE APPEAL AND SET ASIDE THE\nORDER PASSED BY THE INCOME-TAX APPELLATE TRIBUNAL,\nBANGALORE IN ITA No.67/BANG/2005 DATED 06.07.2006\nCONFIRMING THE ORDER OF THE APPELLATE COMMISSIONER\nAND CONFIRM THE ORDER PASSED BY THE DY.,\nCOMMISSIONER OF INCOME TAX, CIRCLE-11(3), BANGALORE\nIN THE INTEREST OF JUSTICE AND EQUITY.\n\n THIS INCOME TAX APPEAL IS COMING ON FOR ORDERS"
}
},
{
"from_name": null,
"id": "7c093e2ef46d4b6c85b9d08c1ffdced5",
"to_name": null,
"type": null,
"value": {
"end": 1956,
"labels": [
"PREAMBLE"
],
"start": 1866,
"text": "THIS DAY, S. SUJATHA J., MADE THE FOLLOWING:-\n\n O R D E R"
}
},
{
"from_name": null,
"id": "1e201469894c4c30b41a244f3992f648",
"to_name": null,
"type": null,
"value": {
"end": 2074,
"labels": [
"NONE"
],
"start": 1956,
"text": "\n Mr. K.V. Aravind, Adv. for Appellants - Revenue Mr. S.Parthasarathi & Mrs. Sowmya K., Advs for Respondent - Assessee"
}
},
{
"from_name": null,
"id": "58ed383cc63e43e2b84834f14ff24ed1",
"to_name": null,
"type": null,
"value": {
"end": 2654,
"labels": [
"RLC"
],
"start": 2075,
"text": "This Income Tax Appeal filed by the Appellant- Revenue earlier came to be disposed of by a co-ordinate Bench of this Court on 03.11.2011, on the ground that the appeal was not maintainable due to the tax effect involved being less than the prescribed monetary limit of Rs.20 lakhs in the Instructions issued by Central Board of Direct Taxes in 2011 (for short the `CBDT').\n The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 3/22 "
}
},
{
"from_name": null,
"id": "070d5e37f6f241c89f8d7e48602c4290",
"to_name": null,
"type": null,
"value": {
"end": 3719,
"labels": [
"FAC"
],
"start": 2654,
"text": "2. The matter was remanded back to this Court by orders of the Hon'ble Supreme Court by a common order passed in some Civil Appeals, including the lead Civil Appeal No.16815 of 2017 @ SLP (C) No.1425 of 2014 (THE COMMISSIONER OF INCOME TAX, BANGALORE-I & ANOTHER vs. M/S.GEMINI DISTILLERIES) reported in (2017) 398 ITR 343 decided on 12.10.2017, but the said order of the two- judges Bench of Hon'ble Supreme Court in the case of M/s. Gemini Distilleries (supra) came to be explained by a later decision of the Hon'ble Supreme Court in the case of DIRECTOR OF INCOME-TAX vs. S.R.M.B.\nDAIRY FARMING (P.) LTD. reported in (2018) 400 ITR 9 (SC) decided on 23.11.2017 about the retrospective application of the CBDT Circulars with regard to monetary limits for maintaining the pending appeals The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 4/22 before the Hon'ble High Court under Section 260A of the Income Tax Act."
}
},
{
"from_name": null,
"id": "3928ab37610d49b6bd52bb416b716551",
"to_name": null,
"type": null,
"value": {
"end": 4582,
"labels": [
"PRE_RELIED"
],
"start": 3720,
"text": "The Hon'ble Supreme Court in S.R.M.B.Dairy Farming (P.) Ltd. (supra) held as under:- \"Appeal to High Court Monetary limits for litigation by Department Circular to apply to pending appeals but Circular not to be applied by court ipso facto when matter has cascading effect or where common principles involved in large number of matters Income Tax Act, 1961 ss. 260A, 268A Instruction No.3 of 2011, dated 9-2-2011.\n The view adopted by the Delhi High Court making the circular applicable to pending matters came up before a three- Judges Bench of this Court in SLP (C) No.CC 13694 of 2011 titled CIT v. Surya Herbal Ltd. when the following order was passed on August 29, 2011: \"Delay condoned.\n The Commissioner of Income-Tax & Anr.\n vs.\n M/s."
}
},
{
"from_name": null,
"id": "aa9e3ab892504639a18be6c157d07163",
"to_name": null,
"type": null,
"value": {
"end": 4592,
"labels": [
"PRE_RELIED"
],
"start": 4582,
"text": "Luwa India"
}
},
{
"from_name": null,
"id": "5473237cadc84829af66376582f2841b",
"to_name": null,
"type": null,
"value": {
"end": 4602,
"labels": [
"PRE_RELIED"
],
"start": 4593,
"text": "Pvt. Ltd."
}
},
{
"from_name": null,
"id": "6633882c06a04bc49e9c76715b720670",
"to_name": null,
"type": null,
"value": {
"end": 4608,
"labels": [
"PRE_RELIED"
],
"start": 4602,
"text": "\n 5/22"
}
},
{
"from_name": null,
"id": "0ae7ca0d6fe44698b37fec5d3ee7ed76",
"to_name": null,
"type": null,
"value": {
"end": 4808,
"labels": [
"PRE_RELIED"
],
"start": 4609,
"text": "Liberty is given to the Department to move the High Court pointing out that the Circular dated February 9, 2011 should not be applied ipso facto, particularly, when the matter has a cascading effect."
}
},
{
"from_name": null,
"id": "39631bb4defc4ddb9ec70f74231ccaf5",
"to_name": null,
"type": null,
"value": {
"end": 4960,
"labels": [
"PRE_RELIED"
],
"start": 4809,
"text": "There are cases under the Income-tax Act, 1961 in which a common principle may be involved in subsequent group of matters or a large number of matters."
}
},
{
"from_name": null,
"id": "7c7551b861d443acaf95147836d918f9",
"to_name": null,
"type": null,
"value": {
"end": 5083,
"labels": [
"PRE_RELIED"
],
"start": 4961,
"text": "In our view, in such cases if attention of the High Court is drawn, the High Court will not apply the circular ipso facto."
}
},
{
"from_name": null,
"id": "2dc49f31ab3f494da542813215877483",
"to_name": null,
"type": null,
"value": {
"end": 5175,
"labels": [
"PRE_RELIED"
],
"start": 5084,
"text": "For that purpose, liberty is granted to the Department to move the High Court in two weeks."
}
},
{
"from_name": null,
"id": "c7b50df36b514bf7977394b331f66fa3",
"to_name": null,
"type": null,
"value": {
"end": 5234,
"labels": [
"PRE_RELIED"
],
"start": 5175,
"text": "\n The Special Leave Petition is, accordingly, disposed of.\""
}
},
{
"from_name": null,
"id": "28ff4cfeb4eb4f21a291da514396c9ea",
"to_name": null,
"type": null,
"value": {
"end": 5324,
"labels": [
"ANALYSIS"
],
"start": 5234,
"text": "\n 20. The aforesaid order, in our view, actually should have laid the controversy to rest."
}
},
{
"from_name": null,
"id": "42894f597cc64f68a681d75930ee53a9",
"to_name": null,
"type": null,
"value": {
"end": 5524,
"labels": [
"ANALYSIS"
],
"start": 5325,
"text": "The retrospective applicability of the The Commissioner of Income-Tax & Anr.\n vs.\n "
}
},
{
"from_name": null,
"id": "d84ba12761dc4e0bbfa4aff426d638e3",
"to_name": null,
"type": null,
"value": {
"end": 5532,
"labels": [
"ANALYSIS"
],
"start": 5524,
"text": "M/s.Luwa"
}
},
{
"from_name": null,
"id": "74a709ed11ec40c4a0f23c2a0f799289",
"to_name": null,
"type": null,
"value": {
"end": 5548,
"labels": [
"ANALYSIS"
],
"start": 5533,
"text": "India Pvt. Ltd."
}
},
{
"from_name": null,
"id": "64d57c25c5ab464d9035962847fec7e1",
"to_name": null,
"type": null,
"value": {
"end": 6004,
"labels": [
"ANALYSIS"
],
"start": 5550,
"text": "6/22 Circular dated February 9, 2011 was not interfered with, but with two caveats (i) Circular should not be applied by the High Courts ipso facto when the matter had a cascading effect; (ii) where common principles may be involved in subsequent group of matters or a large number of matters.\nIt was opined that in such cases, the attention of the High Court would be drawn and the Department was even given liberty to move the High Court in two weeks."
}
},
{
"from_name": null,
"id": "a168dd22b411489fb2139269d3c2d3c5",
"to_name": null,
"type": null,
"value": {
"end": 6082,
"labels": [
"ANALYSIS"
],
"start": 6005,
"text": "In our view this order holds the field and should continue to hold the field."
}
},
{
"from_name": null,
"id": "ead607400f2b453fbfd0168d3dd4dbe4",
"to_name": null,
"type": null,
"value": {
"end": 6640,
"labels": [
"ANALYSIS"
],
"start": 6082,
"text": "\n 21. Unfortunately, this order was not brought to the notice of the subsequent two Judges Bench of this court in CIT v. Suman Dhamija again arising from a Delhi High Court order, wherein it was simply stated that since the appeals were preferred before 2011 and the instructions were dated February 9, 2011, the earlier cases would not The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 7/22 be covered by the instruction."
}
},
{
"from_name": null,
"id": "c16357a7e6d84b2a84e35b074b9c4f14",
"to_name": null,
"type": null,
"value": {
"end": 6797,
"labels": [
"ANALYSIS"
],
"start": 6641,
"text": "This order in turn had been followed by another two- Judges Bench in Civil Appeal No.16815 of 2017 titled CIT v. Gemini Distilleries dated October 12, 2017."
}
},
{
"from_name": null,
"id": "f4e6357961dc4c63aeec38a7f50634e2",
"to_name": null,
"type": null,
"value": {
"end": 6950,
"labels": [
"ANALYSIS"
],
"start": 6797,
"text": "\n 22. Once again, in another matter CIT v.\nCentury Park, the line adopted by the three- Judges Bench in Surya Herbal Ltd. Case (supra) has been followed."
}
},
{
"from_name": null,
"id": "d7030585aa19458b83953d7d3ad2be49",
"to_name": null,
"type": null,
"value": {
"end": 7360,
"labels": [
"PRE_RELIED"
],
"start": 6950,
"text": "\n 23. We have already given our imprimatur to the observations made by the Karnataka High Court in a detailed analysis in Ranka and Ranka case (supra), which was dealt with the litigation policy philosophy behind applying the circular and the benefit being extended in view thereof to all assesses where appeals have been pending, but below the financial limit, as otherwise an anomalous situation would arise."
}
},
{
"from_name": null,
"id": "d2f4b05dca914c3f9dd11fcf3a846320",
"to_name": null,
"type": null,
"value": {
"end": 7552,
"labels": [
"NONE"
],
"start": 7360,
"text": "\n The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 8/22"
}
},
{
"from_name": null,
"id": "ae8b470403104a7ab9c03c06cd8d48e6",
"to_name": null,
"type": null,
"value": {
"end": 7697,
"labels": [
"PRE_RELIED"
],
"start": 7552,
"text": " 24. We may also take note of the judgment of this court in Suchitra Components Ltd.\nv. CCE on the general principle of application of circulars."
}
},
{
"from_name": null,
"id": "6fbbe6ebaf514795978469b050ac72bf",
"to_name": null,
"type": null,
"value": {
"end": 7915,
"labels": [
"PRE_RELIED"
],
"start": 7698,
"text": "Reliance was placed on the view expressed in CCE v. Mysore Electricals Industries Ltd. opining that a beneficial circular has to be applied retrospectively while an oppressive circular has to be applied prospectively."
}
},
{
"from_name": null,
"id": "3cc4713416fb495c9aca0b7c866a0cd2",
"to_name": null,
"type": null,
"value": {
"end": 8205,
"labels": [
"ANALYSIS"
],
"start": 7915,
"text": "\n 25. We are of the view that the mater needs to be put to rest and a clarity be obtained in view of the impact of this issue on pending cases before the High Courts as well as the cases which have been disposed of by various High Courts by applying Circular of 2011 to pending litigations."
}
},
{
"from_name": null,
"id": "46d0da0d4cb44c74abd7dca1f992ab94",
"to_name": null,
"type": null,
"value": {
"end": 8699,
"labels": [
"ANALYSIS"
],
"start": 8206,
"text": "In our view the matter has been squarely put to rest taking further care of the interest of the Revenue by the order passed by the three-Judges Bench of this court in Surya Herbal Ltd. Case (supra), which had put two caveats even to The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 9/22 the retrospective application of the circular.\n "
}
},
{
"from_name": null,
"id": "5a84c8be3ac640538a958391826d2134",
"to_name": null,
"type": null,
"value": {
"end": 8921,
"labels": [
"ANALYSIS"
],
"start": 8699,
"text": "The subsequent orders have been passed by the two-Judges Bench without those orders being brought to the notice of the court, a duty which was cast on the Department to have done so to avoid the ambiguity which has arisen."
}
},
{
"from_name": null,
"id": "d8b3f1e3474d486ea32796689393e082",
"to_name": null,
"type": null,
"value": {
"end": 9115,
"labels": [
"ANALYSIS"
],
"start": 8922,
"text": "Thus, the said view of the three- Judges Bench would hold water and the circular would apply even to pending matters but subject to the two caveats provided in Surya Herbal Ltd. Case (supra).\n "
}
},
{
"from_name": null,
"id": "bea383dc882f409c9d94d10b9b5f1eb8",
"to_name": null,
"type": null,
"value": {
"end": 9187,
"labels": [
"ANALYSIS"
],
"start": 9115,
"text": "The appeals of the Revenue are, thus, dismissed in the aforesaid terms.\""
}
},
{
"from_name": null,
"id": "18dedf532ca54ec0a878b34c1919df33",
"to_name": null,
"type": null,
"value": {
"end": 9609,
"labels": [
"ANALYSIS"
],
"start": 9187,
"text": "\n 3. Recently, the CBDT has again revised the Instructions in this regard and besides para 13 specifically allowing withdrawal of pending appeals, the monetary limits for maintaining such Income Tax appeals before the High Court is raised from The Commissioner of Income-Tax & Anr.\n vs.\n M/s."
}
},
{
"from_name": null,
"id": "13bd907920504d1fbb1935b83e504d15",
"to_name": null,
"type": null,
"value": {
"end": 9629,
"labels": [
"ANALYSIS"
],
"start": 9609,
"text": "Luwa India Pvt. Ltd."
}
},
{
"from_name": null,
"id": "25c59c4dc34040f388dfc001616d2449",
"to_name": null,
"type": null,
"value": {
"end": 9663,
"labels": [
"ANALYSIS"
],
"start": 9629,
"text": "\n 10/22 Rs.20 lakhs to Rs.50 lakhs"
}
},
{
"from_name": null,
"id": "b2db3eaab56743a7ae6ad81798d1fc3c",
"to_name": null,
"type": null,
"value": {
"end": 10087,
"labels": [
"ANALYSIS"
],
"start": 9663,
"text": ". The said Circular is quoted extenso below:- \"Circular No. 3/2018 F No. 279/Misc. 142/2007-ITJ (Pt) Government of India Ministry of Finance Department of Revenue Central Board Direct Taxes New Delhi the 11th July, 2018 Subject: Revision of monetary limits for filing of appeals by the Department before Income Tax Appellate Tribunal, High Courts and SLPs/appeals before Supreme Court - measures for reducing litigation-Reg."
}
},
{
"from_name": null,
"id": "194a338e01e14adab20a1945592f7195",
"to_name": null,
"type": null,
"value": {
"end": 10365,
"labels": [
"ANALYSIS"
],
"start": 10087,
"text": "\n Reference is invited to Board's Circular No.21 of 2015 dated 10.12.2015 wherein monetary limits and other conditions for filing departmental appeals (in Income-tax matters) before Income Tax Appellate Tribunal, High Courts and SLPs/appeals before Supreme Court were specified."
}
},
{
"from_name": null,
"id": "f85e3485978248e8a242679388cca4d0",
"to_name": null,
"type": null,
"value": {
"end": 10700,
"labels": [
"ANALYSIS"
],
"start": 10367,
"text": "2. In supersession of the above Circular, it has been decided by the Board that departmental appeals may be filed on merits before Income Tax The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 11/22"
}
},
{
"from_name": null,
"id": "f730c446b5624e6691f2d22c93aabe9a",
"to_name": null,
"type": null,
"value": {
"end": 10841,
"labels": [
"ANALYSIS"
],
"start": 10701,
"text": "Appellate Tribunal and High Courts and SLPs/appeals before Supreme Court keeping in view the monetary limits and conditions specified below."
}
},
{
"from_name": null,
"id": "e58a9b08d25d4eb7a722570a0b2e0452",
"to_name": null,
"type": null,
"value": {
"end": 10972,
"labels": [
"ANALYSIS"
],
"start": 10843,
"text": "3. Henceforth, appeals/SLPs shall not be filed in cases where the tax effect does not exceed the monetary limits given hereunder:"
}
},
{
"from_name": null,
"id": "65e719c66e3047728666a11a621a42f4",
"to_name": null,
"type": null,
"value": {
"end": 11024,
"labels": [
"ANALYSIS"
],
"start": 10973,
"text": "Sl. Appeals/SLPs in Monetary Limit (Rs.) No."
}
},
{
"from_name": null,
"id": "8fb3df98e1e247658807a9e0669cea3c",
"to_name": null,
"type": null,
"value": {
"end": 11059,
"labels": [
"ANALYSIS"
],
"start": 11025,
"text": "Income-tax matters 20,00,000 1"
}
},
{
"from_name": null,
"id": "80866211e92f4c039edd0f2066aebcf3",
"to_name": null,
"type": null,
"value": {
"end": 11118,
"labels": [
"ANALYSIS"
],
"start": 11059,
"text": ". Before Appellate 50,00,000 1,00,00,000 Tribunal 2."
}
},
{
"from_name": null,
"id": "36cccc229f4149e793411e0e1b10063b",
"to_name": null,
"type": null,
"value": {
"end": 11139,
"labels": [
"ANALYSIS"
],
"start": 11119,
"text": "Before High Court 3."
}
},
{
"from_name": null,
"id": "3af6aeb78d904d3c99277278fd99b16b",
"to_name": null,
"type": null,
"value": {
"end": 11297,
"labels": [
"ANALYSIS"
],
"start": 11140,
"text": "Before Supreme Court It is clarified that an appeal should not be filed merely because the tax effect in a case exceeds the monetary limits prescribed above."
}
},
{
"from_name": null,
"id": "6952ac0184a34271a84abe6061dcf880",
"to_name": null,
"type": null,
"value": {
"end": 11368,
"labels": [
"ANALYSIS"
],
"start": 11298,
"text": "Filing of appeal in such cases is to be decided on merits of the case."
}
},
{
"from_name": null,
"id": "79955269e7274348b406b2c8b442594d",
"to_name": null,
"type": null,
"value": {
"end": 11882,
"labels": [
"ANALYSIS"
],
"start": 11370,
"text": "4. For this purpose, `tax effect' means the difference between the tax on the total income assessed and the tax that would have been chargeable had such total income been reduced by the amount of income in respect of the issues The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 12/22 against which appeal is intended to be filed (hereinafter referred to as `disputed issues')."
}
},
{
"from_name": null,
"id": "354ba78b0d9a411db5d3a44cc09523d0",
"to_name": null,
"type": null,
"value": {
"end": 11958,
"labels": [
"ANALYSIS"
],
"start": 11882,
"text": "\nFurther, `tax effect' shall be tax including applicable surcharge and cess."
}
},
{
"from_name": null,
"id": "74b52f383daf4bc2921809b29472626d",
"to_name": null,
"type": null,
"value": {
"end": 12075,
"labels": [
"ANALYSIS"
],
"start": 11959,
"text": "However, the tax will not include any interest thereon, except where chargeability of interest itself is in dispute."
}
},
{
"from_name": null,
"id": "8cc01b8777b445e886c4f76525f0df4e",
"to_name": null,
"type": null,
"value": {
"end": 12189,
"labels": [
"ANALYSIS"
],
"start": 12075,
"text": "\nIn case the chargeability of interest is the issue under dispute, the amount of interest shall be the tax effect."
}
},
{
"from_name": null,
"id": "9e364979e4974dc689ab42b8f74c798c",
"to_name": null,
"type": null,
"value": {
"end": 12317,
"labels": [
"ANALYSIS"
],
"start": 12190,
"text": "In cases where returned loss is reduced or assessed as income, the tax effect would include notional tax on disputed additions."
}
},
{
"from_name": null,
"id": "37aaf03e3f94444fb83edc43cc1759ab",
"to_name": null,
"type": null,
"value": {
"end": 12444,
"labels": [
"ANALYSIS"
],
"start": 12317,
"text": "\nIn case of penalty orders, the tax effect will mean quantum of penalty deleted or reduced in the order to be appealed against."
}
},
{
"from_name": null,
"id": "b258c8bf40b14f778b146175b3a5e8bd",
"to_name": null,
"type": null,
"value": {
"end": 12603,
"labels": [
"ANALYSIS"
],
"start": 12444,
"text": "\n 5. The Assessing Officer shall calculate the tax effect separately for every assessment year in respect of the disputed issues in the case of every assessee."
}
},
{
"from_name": null,
"id": "41e5d3563cb04c6db7c127c56928efd5",
"to_name": null,
"type": null,
"value": {
"end": 12865,
"labels": [
"ANALYSIS"
],
"start": 12604,
"text": "If, in the case of an assessee, the disputed issues arise in more than one assessment year, appeal can be filed in respect of such assessment year or years in which the tax effect in respect of the disputed issues exceeds the monetary limit specified in para 3."
}
},
{
"from_name": null,
"id": "dd617fd1cb13441fadc368026b6cc52b",
"to_name": null,
"type": null,
"value": {
"end": 12913,
"labels": [
"ANALYSIS"
],
"start": 12866,
"text": "No appeal The Commissioner of Income-Tax & Anr."
}
},
{
"from_name": null,
"id": "618d100614e84c11909ae05ec239e3fd",
"to_name": null,
"type": null,
"value": {
"end": 13060,
"labels": [
"ANALYSIS"
],
"start": 12913,
"text": "\n vs.\n M/s.Luwa India Pvt. Ltd."
}
},
{
"from_name": null,
"id": "acf421d8cca4422aa92ef64cadc5eae0",
"to_name": null,
"type": null,
"value": {
"end": 13201,
"labels": [
"ANALYSIS"
],
"start": 13060,
"text": "\n 13/22 shall be filed in respect of an assessment year or years in which the tax effect is less than the monetary limit specified in para 3."
}
},
{
"from_name": null,
"id": "db4fc5e06a204567805cfa34bf925862",
"to_name": null,
"type": null,
"value": {
"end": 13321,
"labels": [
"ANALYSIS"
],
"start": 13202,
"text": "In other words, henceforth, appeals can be filed only with reference to the tax effect in the relevant assessment year."
}
},
{
"from_name": null,
"id": "d7c49c8f1d084a6cbf67a56b7f167eb2",
"to_name": null,
"type": null,
"value": {
"end": 13768,
"labels": [
"ANALYSIS"
],
"start": 13322,
"text": "However, in case of a composite order of any High Court or appellate authority, which involves more than one assessment year and common issues in more than one assessment year, appeals shall be filed in respect of all such assessment years even if the tax effect is less than the prescribed monetary limits in any of the year(s), if it is decided to file appeal in respect of the year(s) in which tax effect exceeds the monetary limit prescribed."
}
},
{
"from_name": null,
"id": "af3f76bb3c3e4c48ab194ac69afe1607",
"to_name": null,
"type": null,
"value": {
"end": 13889,
"labels": [
"ANALYSIS"
],
"start": 13769,
"text": "In case where a composite order/ judgment involves more than one assessee, each assessee shall be dealt with separately."
}
},
{
"from_name": null,
"id": "430eddd53520460f9eafbec74e845f8e",
"to_name": null,
"type": null,
"value": {
"end": 14247,
"labels": [
"ANALYSIS"
],
"start": 13891,
"text": "6. Further, where income is computed under the provisions of section 115JB or section 115JC, for the purposes of determination of `tax effect', tax on the total income assessed shall be computed as per the following formula- The Commissioner of Income-Tax & Anr.\n vs.\n M/"
}
},
{
"from_name": null,
"id": "8f49fd6b0f114decb3b0a70e473ca6a2",
"to_name": null,
"type": null,
"value": {
"end": 14269,
"labels": [
"ANALYSIS"
],
"start": 14247,
"text": "s.Luwa India Pvt. Ltd."
}
},
{
"from_name": null,
"id": "259a78c54782489ba2b66c2439172680",
"to_name": null,
"type": null,
"value": {
"end": 14963,
"labels": [
"ANALYSIS"
],
"start": 14269,
"text": "\n 14/22 (A - B)+(C - D) where, A = the total income assessed as per the provisions other than the provisions contained in section 115JB or section 115JC (herein called general provisions); B = the total income that would have been chargeable had the total income assessed as per the general provisions been reduced by the amount of the disputed issues under general provisions; C = the total income assessed as per the provisions contained in section 115JB or section 115JC; D = the total income that would have been chargeable had the total income assessed as per the provisions contained in section 115JB or section 1I5JCwas reduced by the amount of disputed issues under the said provisions:"
}
},
{
"from_name": null,
"id": "ab3a7c6eeaed4460b4cb7ba39427004d",
"to_name": null,
"type": null,
"value": {
"end": 15155,
"labels": [
"NONE"
],
"start": 14964,
"text": "The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 15/22"
}
},
{
"from_name": null,
"id": "f800e4045eaf45f09c8be7b332f4c7c5",
"to_name": null,
"type": null,
"value": {
"end": 15421,
"labels": [
"ANALYSIS"
],
"start": 15156,
"text": "However, where the amount of disputed issues is considered both under the provisions contained in section 115JB or section 115JC and under general provisions, such amount shall not be reduced from total income assessed while determining the amount under item D.\n 7."
}
},
{
"from_name": null,
"id": "a85befbacbd34028883cf97b3858b189",
"to_name": null,
"type": null,
"value": {
"end": 15844,
"labels": [
"ANALYSIS"
],
"start": 15422,
"text": "In a case where appeal before a Tribunal or a Court is not filed only on account of the tax effect being less than the monetary limit specified above, the Pr.\nCommissioner of Income-tax/ Commissioner of Income Tax shall specifically record that \"even though the decision is not acceptable, appeal is not being filed only on the consideration that the tax effect is less than the monetary limit specified in this Circular\"."
}
},
{
"from_name": null,
"id": "81e50c16dbd54f208e780fa027ceac22",
"to_name": null,
"type": null,
"value": {
"end": 15983,
"labels": [
"ANALYSIS"
],
"start": 15845,
"text": "Further, in such cases, there will be no presumption that the Income-tax Department has acquiesced in the decision on the disputed issues."
}
},
{
"from_name": null,
"id": "9d4488b0972d4af188aafeacd99f1748",
"to_name": null,
"type": null,
"value": {
"end": 16140,
"labels": [
"ANALYSIS"
],
"start": 15984,
"text": "The Income-tax Department shall not be precluded from filing an appeal against the disputed issues in the case of the same assessee for any other assessment"
}
},
{
"from_name": null,
"id": "df99253d6f3d427eb914491a2d65952f",
"to_name": null,
"type": null,
"value": {
"end": 16299,
"labels": [
"NONE"
],
"start": 16140,
"text": " The Commissioner of Income-Tax & Anr.\n vs."
}
},
{
"from_name": null,
"id": "bd15833625ad4091b66a4b238064f126",
"to_name": null,
"type": null,
"value": {
"end": 16332,
"labels": [
"NONE"
],
"start": 16299,
"text": "\n M/s.Luwa India Pvt. Ltd.\n 16/22"
}
},
{
"from_name": null,
"id": "9d280c8f39fd4b4d81b7f9a069b0f0e7",
"to_name": null,
"type": null,
"value": {
"end": 16479,
"labels": [
"ANALYSIS"
],
"start": 16332,
"text": " year, or in the case of any other assessee for the same or any other assessment year, if the tax effect exceeds the specified monetary limits.\n 8."
}
},
{
"from_name": null,
"id": "5f783d815361429da460eb3bcb9de627",
"to_name": null,
"type": null,
"value": {
"end": 16914,
"labels": [
"ANALYSIS"
],
"start": 16480,
"text": "In the past, a number of instances have come to the notice of the Board, whereby an assessee has claimed relief from the Tribunal or the Court only on the ground that the Department has implicitly accepted the decision of the Tribunal or Court in the case of the assessee for any other assessment year or in the case of any other assessee for the same or any other assessment year, by not filing an appeal on the same disputed issues."
}
},
{
"from_name": null,
"id": "b75bc21ec4a642ac8379249290cb2633",
"to_name": null,
"type": null,
"value": {
"end": 17290,
"labels": [
"ANALYSIS"
],
"start": 16915,
"text": "The Departmental representatives/counsels must make every effort to bring to the notice of the Tribunal or the Court that the appeal in such cases was not filed or not admitted only for the reason of the tax effect being less than the specified monetary limit and, therefore, no inference should be drawn that the decisions rendered therein were acceptable to the Department."
}
},
{
"from_name": null,
"id": "32b12b4794274be58bbc357d38592f30",
"to_name": null,
"type": null,
"value": {
"end": 18030,
"labels": [
"STA"
],
"start": 17291,
"text": "Accordingly, they should impress upon the Tribunal or the Court that such cases do not have any precedent value and also bring to The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 17/22 the notice of the Tribunal/ Court the provisions of sub section (4) of section 268A of the Income-tax Act, 1961 which read as under : \"(4) The Appellate Tribunal or Court, hearing such appeal or reference, shall have regard to the orders, instructions or directions issued under sub-section (1) and the circumstances under which such appeal or application for reference was filed or not filed in respect of any case.\""
}
},
{
"from_name": null,
"id": "e7858b1046a24439848c418505f33476",
"to_name": null,
"type": null,
"value": {
"end": 18239,
"labels": [
"ANALYSIS"
],
"start": 18030,
"text": "\n 9. As the evidence of not filing appeal due to this Circular may have to be produced in courts, the judicial folders in the office of Pr.CsIT/ CsIT must be maintained in a systemic manner for easy retrieval."
}
},
{
"from_name": null,
"id": "4e6bf3da77604fb8902c527230c88f37",
"to_name": null,
"type": null,
"value": {
"end": 19018,
"labels": [
"ANALYSIS"
],
"start": 18241,
"text": "10. Adverse judgments relating to the following issues should be contested on merits notwithstanding that the tax effect entailed is less than the monetary limits specified in para 3 above or there is no tax effect: The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 18/22 (a) Where the Constitutional validity of the provisions of an Act or Rule is under challenge, or (b) Where Board's order, Notification, Instruction or Circular has been held to be illegal or ultra vires, or (c) Where Revenue Audit objection in the case has been accepted by the Department, or (d) Where the addition relates to undisclosed foreign assets/ bank accounts."
}
},
{
"from_name": null,
"id": "23eab98dd7524cfc8754faed950a961b",
"to_name": null,
"type": null,
"value": {
"end": 19147,
"labels": [
"ANALYSIS"
],
"start": 19020,
"text": "11. The monetary limits specified in para 3 above shall not apply to writ matters and Direct tax matters other than Income tax."
}
},
{
"from_name": null,
"id": "ebc2fa8abbeb492393fa32ba77b620b8",
"to_name": null,
"type": null,
"value": {
"end": 19268,
"labels": [
"ANALYSIS"
],
"start": 19148,
"text": "Filing of appeals in other Direct tax matters shall continue to be governed by relevant provisions of statute and rules."
}
},
{
"from_name": null,
"id": "0fa4844bfe1a46698f66e2cba7a80c92",
"to_name": null,
"type": null,
"value": {
"end": 19497,
"labels": [
"ANALYSIS"
],
"start": 19269,
"text": "Further, in cases where the tax effect is not quantifiable or not involved, such as the case of registration of trusts or institutions under section 12A/12AA of the IT Act, 1961 etc., filing The Commissioner of Income-Tax & Anr."
}
},
{
"from_name": null,
"id": "eb1e954d80374e0bacad5e479f817890",
"to_name": null,
"type": null,
"value": {
"end": 19622,
"labels": [
"ANALYSIS"
],
"start": 19497,
"text": "\n vs.\n M/"
}
},
{
"from_name": null,
"id": "ef8ec8c410254765a8c325c6064c22e6",
"to_name": null,
"type": null,
"value": {
"end": 19628,
"labels": [
"ANALYSIS"
],
"start": 19622,
"text": "s.Luwa"
}
},
{
"from_name": null,
"id": "6bbe6b13dc3849edbdf48961f3a31a27",
"to_name": null,
"type": null,
"value": {
"end": 19638,
"labels": [
"ANALYSIS"
],
"start": 19629,
"text": "India Pvt"
}
},
{
"from_name": null,
"id": "af881bb361ad4559b51dbb3200f85937",
"to_name": null,
"type": null,
"value": {
"end": 19644,
"labels": [
"ANALYSIS"
],
"start": 19638,
"text": ". Ltd."
}
},
{
"from_name": null,
"id": "7241c98920af4c8fa59a914cb6568b68",
"to_name": null,
"type": null,
"value": {
"end": 19811,
"labels": [
"ANALYSIS"
],
"start": 19644,
"text": "\n 19/22 of appeal shall not be governed by the limits specified in para 3 above and decision to file appeals in such cases may be taken on merits of a particular case."
}
},
{
"from_name": null,
"id": "e787cf7897bb4a37abbb3b4be8011664",
"to_name": null,
"type": null,
"value": {
"end": 19980,
"labels": [
"ANALYSIS"
],
"start": 19811,
"text": "\n 12. It is clarified that the monetary limit of Rs. 20 lakhs for filing appeals before the ITAT would apply equally to cross objections under section 253(4) of the Act."
}
},
{
"from_name": null,
"id": "c2392876aa5d4b339f0c7dab5afa9dea",
"to_name": null,
"type": null,
"value": {
"end": 20098,
"labels": [
"ANALYSIS"
],
"start": 19981,
"text": "Cross objections below this monetary limit, already filed, should be pursued for dismissal as withdrawn/ not pressed."
}
},
{
"from_name": null,
"id": "b5389aff259f4a9ab40e661cee1c4f7e",
"to_name": null,
"type": null,
"value": {
"end": 20184,
"labels": [
"ANALYSIS"
],
"start": 20099,
"text": "Filing of cross objections below the monetary limit may not be considered henceforth."
}
},
{
"from_name": null,
"id": "795daef83fa548df9a1d4c50ae6048d9",
"to_name": null,
"type": null,
"value": {
"end": 20388,
"labels": [
"ANALYSIS"
],
"start": 20184,
"text": "\nSimilarly, references to High Courts and SLPs/appeals before Supreme Court below the monetary limit of Rs. 50 lakhs and Rs. 1 Crore respectively should be pursued for dismissal as withdrawn/ not pressed."
}
},
{
"from_name": null,
"id": "6561539df760449988e49b876ab78b57",
"to_name": null,
"type": null,
"value": {
"end": 20488,
"labels": [
"ANALYSIS"
],
"start": 20389,
"text": "References before High Court and SLPs/ appeals below these limits may not be considered henceforth."
}
},
{
"from_name": null,
"id": "c0a71e8943464c069b8965ad3b5ba2a2",
"to_name": null,
"type": null,
"value": {
"end": 20904,
"labels": [
"RPC"
],
"start": 20490,
"text": "13. This Circular will apply to SLPs/appeals/cross objections/references to be filed henceforth in SC/HCs/Tribunal and it shall The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 20/22 also apply retrospectively to pending SLPs/ appeals/cross objections/references."
}
},
{
"from_name": null,
"id": "7646235d1ebc44fdbb8a2766789c7c5b",
"to_name": null,
"type": null,
"value": {
"end": 21003,
"labels": [
"RPC"
],
"start": 20905,
"text": "Pending appeals below the specified tax limits in para 3 above may be withdrawn/not pressed.\"\n 14."
}
},
{
"from_name": null,
"id": "747dfb5b75cd475a82c28f9cdfbe4a02",
"to_name": null,
"type": null,
"value": {
"end": 21060,
"labels": [
"RPC"
],
"start": 21004,
"text": "The above may be brought to the notice of all concerned."
}
},
{
"from_name": null,
"id": "956e02ed79a64a11a1af932893a34a30",
"to_name": null,
"type": null,
"value": {
"end": 21123,
"labels": [
"ANALYSIS"
],
"start": 21060,
"text": "\n 15. This issue under Section 268A of the Income-tax Act 1961."
}
},
{
"from_name": null,
"id": "6c77dc17b78b45c3b5eb7ef8d53e4cff",
"to_name": null,
"type": null,
"value": {
"end": 21155,
"labels": [
"NONE"
],
"start": 21123,
"text": "\n 16. Hindi version will follow."
}
},
{
"from_name": null,
"id": "3d16028d93914ae79dfd3988d655ad83",
"to_name": null,
"type": null,
"value": {
"end": 21224,
"labels": [
"NONE"
],
"start": 21155,
"text": "\n Sd/- (11/07/2018) (Neetika Bansal) Director (ITJ), CBDT, New Delhi."
}
},
{
"from_name": null,
"id": "32cda1b98b884c0081acb58ffc3f134a",
"to_name": null,
"type": null,
"value": {
"end": 21468,
"labels": [
"ARG_PETITIONER"
],
"start": 21226,
"text": "4. Learned counsel for the appellant-Revenue with regard to paragraph No.20 of the judgment of the Hon'ble Supreme Court in the case of DIRECTOR OF INCOME TAX vs. S.R.M.B. DAIRY FARMING (P.) LTD.\n quoted above and in the case of CIT vs. SURYA"
}
},
{
"from_name": null,
"id": "b1a40d6a784240f88de39ea530e60538",
"to_name": null,
"type": null,
"value": {
"end": 21905,
"labels": [
"ARG_PETITIONER"
],
"start": 21469,
"text": "The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 21/22 HERBAL LTD. (supra) has submitted before us that the present appeal filed by Revenue neither has any cascading tax effect nor it involves any issues of common principles involved in a group of matters or a large number of matters."
}
},
{
"from_name": null,
"id": "18413dd1ca314d6b9abc77e8f816a0ff",
"to_name": null,
"type": null,
"value": {
"end": 22206,
"labels": [
"ANALYSIS"
],
"start": 21906,
"text": "Thus, the decision initially pointed out by the learned counsel for the appellant- Revenue in the case of CIT vs. M/S.GEMINI DISTILLERIES does not come in the way of the present appeal being withdrawn and the withdrawal of the appeal can be permitted as per recent CBDT Circular dated 11.07.2018.\n 5."
}
},
{
"from_name": null,
"id": "7a8b125657014dc0836640f255057560",
"to_name": null,
"type": null,
"value": {
"end": 22283,
"labels": [
"ANALYSIS"
],
"start": 22207,
"text": "Learned counsel for the respondent- Assessee does not dispute this position."
}
},
{
"from_name": null,
"id": "c77d9f4d1ed3410188e5fb8c92edc471",
"to_name": null,
"type": null,
"value": {
"end": 22587,
"labels": [
"RPC"
],
"start": 22285,
"text": "6. Accordingly, in view of the aforesaid reasons and the Circular dated 11.07.2018 issued by the The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 22/22"
}
},
{
"from_name": null,
"id": "e0c17d52555c4059aad3395c20ae1448",
"to_name": null,
"type": null,
"value": {
"end": 22698,
"labels": [
"RPC"
],
"start": 22588,
"text": "Central Board of Direct Taxes, the present appeal filed by the appellant-Revenue is permitted to be withdrawn."
}
},
{
"from_name": null,
"id": "015f62aeab6f4823bf975cd09a974a8f",
"to_name": null,
"type": null,
"value": {
"end": 22763,
"labels": [
"RPC"
],
"start": 22698,
"text": "\n The appeal is, accordingly, dismissed as withdrawn/not pressed."
}
},
{
"from_name": null,
"id": "b1bdd90aaf70498fa9f99692b68b3358",
"to_name": null,
"type": null,
"value": {
"end": 22773,
"labels": [
"RPC"
],
"start": 22764,
"text": "No costs."
}
},
{
"from_name": null,
"id": "ebbef84ce4b94962a868240bf550fad1",
"to_name": null,
"type": null,
"value": {
"end": 22800,
"labels": [
"NONE"
],
"start": 22773,
"text": "\n Sd/- JUDGE Sd/- JUDGE VMB"
}
}
]
}
] | 4,278 | {
"text": " 1/22\n\nIN THE HIGH COURT OF KARNATAKA, BENGALURU\n\n DATED THIS THE 30TH DAY OF JULY, 2018\n\n PRESENT\n\nTHE HON'BLE DR. JUSTICE VINEET KOTHARI\n\n AND\n\n THE HON'BLE MRS. JUSTICE S. SUJATHA\n\n INCOME TAX APPEAL NO.105 OF 2007\n\nBETWEEN:\n\n1. THE COMMISSIONER OF INCOME-TAX\n CENTRAL CIRCLE, C.R.BUILDING\n QUEENS ROAD\n BANGALORE.\n\n2. THE DEPUTY COMMISSIONER OF INCOME-TAX\n CIRCLE-11(3), C.R.BUILDING\n QUEENS ROAD\n BANGALORE.\n ...APPELLANTS\n (BY MR. K.V. ARAVIND, ADV.)\n\nAND:\n\n M/S.LUWA INDIA PVT. LTD.\n II STAGE, INDUSTRIAL SUBURB\n YESHWANTHPUR\n BANGALORE.\n\n ...RESPONDENT\n\n (BY MR. S.PARTHASARATHI &\n MRS. SOUMYA K., ADV. )\n\n The Commissioner of Income-Tax & Anr.\n vs.\n\n M/s.Luwa India Pvt. Ltd.\n\n 2/22\n\n * * *\n THIS INCOME TAX APPEAL IS FILED UNDER SECTION\n260A OF THE INCOME TAX ACT, 1961, PRAYING TO\nFORMULATE THE SUBSTANTIAL QUESTIONS OF LAW STATED\nTHEREIN AND ALLOW THE APPEAL AND SET ASIDE THE\nORDER PASSED BY THE INCOME-TAX APPELLATE TRIBUNAL,\nBANGALORE IN ITA No.67/BANG/2005 DATED 06.07.2006\nCONFIRMING THE ORDER OF THE APPELLATE COMMISSIONER\nAND CONFIRM THE ORDER PASSED BY THE DY.,\nCOMMISSIONER OF INCOME TAX, CIRCLE-11(3), BANGALORE\nIN THE INTEREST OF JUSTICE AND EQUITY.\n\n THIS INCOME TAX APPEAL IS COMING ON FOR ORDERS\nTHIS DAY, S. SUJATHA J., MADE THE FOLLOWING:-\n\n O R D E R\n Mr. K.V. Aravind, Adv. for Appellants - Revenue Mr. S.Parthasarathi & Mrs. Sowmya K., Advs for Respondent - Assessee This Income Tax Appeal filed by the Appellant- Revenue earlier came to be disposed of by a co-ordinate Bench of this Court on 03.11.2011, on the ground that the appeal was not maintainable due to the tax effect involved being less than the prescribed monetary limit of Rs.20 lakhs in the Instructions issued by Central Board of Direct Taxes in 2011 (for short the `CBDT').\n The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 3/22 2. The matter was remanded back to this Court by orders of the Hon'ble Supreme Court by a common order passed in some Civil Appeals, including the lead Civil Appeal No.16815 of 2017 @ SLP (C) No.1425 of 2014 (THE COMMISSIONER OF INCOME TAX, BANGALORE-I & ANOTHER vs. M/S.GEMINI DISTILLERIES) reported in (2017) 398 ITR 343 decided on 12.10.2017, but the said order of the two- judges Bench of Hon'ble Supreme Court in the case of M/s. Gemini Distilleries (supra) came to be explained by a later decision of the Hon'ble Supreme Court in the case of DIRECTOR OF INCOME-TAX vs. S.R.M.B.\nDAIRY FARMING (P.) LTD. reported in (2018) 400 ITR 9 (SC) decided on 23.11.2017 about the retrospective application of the CBDT Circulars with regard to monetary limits for maintaining the pending appeals The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 4/22 before the Hon'ble High Court under Section 260A of the Income Tax Act. The Hon'ble Supreme Court in S.R.M.B.Dairy Farming (P.) Ltd. (supra) held as under:- \"Appeal to High Court Monetary limits for litigation by Department Circular to apply to pending appeals but Circular not to be applied by court ipso facto when matter has cascading effect or where common principles involved in large number of matters Income Tax Act, 1961 ss. 260A, 268A Instruction No.3 of 2011, dated 9-2-2011.\n The view adopted by the Delhi High Court making the circular applicable to pending matters came up before a three- Judges Bench of this Court in SLP (C) No.CC 13694 of 2011 titled CIT v. Surya Herbal Ltd. when the following order was passed on August 29, 2011: \"Delay condoned.\n The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 5/22 Liberty is given to the Department to move the High Court pointing out that the Circular dated February 9, 2011 should not be applied ipso facto, particularly, when the matter has a cascading effect. There are cases under the Income-tax Act, 1961 in which a common principle may be involved in subsequent group of matters or a large number of matters. In our view, in such cases if attention of the High Court is drawn, the High Court will not apply the circular ipso facto. For that purpose, liberty is granted to the Department to move the High Court in two weeks.\n The Special Leave Petition is, accordingly, disposed of.\"\n 20. The aforesaid order, in our view, actually should have laid the controversy to rest. The retrospective applicability of the The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 6/22 Circular dated February 9, 2011 was not interfered with, but with two caveats (i) Circular should not be applied by the High Courts ipso facto when the matter had a cascading effect; (ii) where common principles may be involved in subsequent group of matters or a large number of matters.\nIt was opined that in such cases, the attention of the High Court would be drawn and the Department was even given liberty to move the High Court in two weeks. In our view this order holds the field and should continue to hold the field.\n 21. Unfortunately, this order was not brought to the notice of the subsequent two Judges Bench of this court in CIT v. Suman Dhamija again arising from a Delhi High Court order, wherein it was simply stated that since the appeals were preferred before 2011 and the instructions were dated February 9, 2011, the earlier cases would not The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 7/22 be covered by the instruction. This order in turn had been followed by another two- Judges Bench in Civil Appeal No.16815 of 2017 titled CIT v. Gemini Distilleries dated October 12, 2017.\n 22. Once again, in another matter CIT v.\nCentury Park, the line adopted by the three- Judges Bench in Surya Herbal Ltd. Case (supra) has been followed.\n 23. We have already given our imprimatur to the observations made by the Karnataka High Court in a detailed analysis in Ranka and Ranka case (supra), which was dealt with the litigation policy philosophy behind applying the circular and the benefit being extended in view thereof to all assesses where appeals have been pending, but below the financial limit, as otherwise an anomalous situation would arise.\n The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 8/22 24. We may also take note of the judgment of this court in Suchitra Components Ltd.\nv. CCE on the general principle of application of circulars. Reliance was placed on the view expressed in CCE v. Mysore Electricals Industries Ltd. opining that a beneficial circular has to be applied retrospectively while an oppressive circular has to be applied prospectively.\n 25. We are of the view that the mater needs to be put to rest and a clarity be obtained in view of the impact of this issue on pending cases before the High Courts as well as the cases which have been disposed of by various High Courts by applying Circular of 2011 to pending litigations. In our view the matter has been squarely put to rest taking further care of the interest of the Revenue by the order passed by the three-Judges Bench of this court in Surya Herbal Ltd. Case (supra), which had put two caveats even to The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 9/22 the retrospective application of the circular.\n The subsequent orders have been passed by the two-Judges Bench without those orders being brought to the notice of the court, a duty which was cast on the Department to have done so to avoid the ambiguity which has arisen. Thus, the said view of the three- Judges Bench would hold water and the circular would apply even to pending matters but subject to the two caveats provided in Surya Herbal Ltd. Case (supra).\n The appeals of the Revenue are, thus, dismissed in the aforesaid terms.\"\n 3. Recently, the CBDT has again revised the Instructions in this regard and besides para 13 specifically allowing withdrawal of pending appeals, the monetary limits for maintaining such Income Tax appeals before the High Court is raised from The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 10/22 Rs.20 lakhs to Rs.50 lakhs. The said Circular is quoted extenso below:- \"Circular No. 3/2018 F No. 279/Misc. 142/2007-ITJ (Pt) Government of India Ministry of Finance Department of Revenue Central Board Direct Taxes New Delhi the 11th July, 2018 Subject: Revision of monetary limits for filing of appeals by the Department before Income Tax Appellate Tribunal, High Courts and SLPs/appeals before Supreme Court - measures for reducing litigation-Reg.\n Reference is invited to Board's Circular No.21 of 2015 dated 10.12.2015 wherein monetary limits and other conditions for filing departmental appeals (in Income-tax matters) before Income Tax Appellate Tribunal, High Courts and SLPs/appeals before Supreme Court were specified.\n 2. In supersession of the above Circular, it has been decided by the Board that departmental appeals may be filed on merits before Income Tax The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 11/22 Appellate Tribunal and High Courts and SLPs/appeals before Supreme Court keeping in view the monetary limits and conditions specified below.\n 3. Henceforth, appeals/SLPs shall not be filed in cases where the tax effect does not exceed the monetary limits given hereunder: Sl. Appeals/SLPs in Monetary Limit (Rs.) No. Income-tax matters 20,00,000 1. Before Appellate 50,00,000 1,00,00,000 Tribunal 2. Before High Court 3. Before Supreme Court It is clarified that an appeal should not be filed merely because the tax effect in a case exceeds the monetary limits prescribed above. Filing of appeal in such cases is to be decided on merits of the case.\n 4. For this purpose, `tax effect' means the difference between the tax on the total income assessed and the tax that would have been chargeable had such total income been reduced by the amount of income in respect of the issues The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 12/22 against which appeal is intended to be filed (hereinafter referred to as `disputed issues').\nFurther, `tax effect' shall be tax including applicable surcharge and cess. However, the tax will not include any interest thereon, except where chargeability of interest itself is in dispute.\nIn case the chargeability of interest is the issue under dispute, the amount of interest shall be the tax effect. In cases where returned loss is reduced or assessed as income, the tax effect would include notional tax on disputed additions.\nIn case of penalty orders, the tax effect will mean quantum of penalty deleted or reduced in the order to be appealed against.\n 5. The Assessing Officer shall calculate the tax effect separately for every assessment year in respect of the disputed issues in the case of every assessee. If, in the case of an assessee, the disputed issues arise in more than one assessment year, appeal can be filed in respect of such assessment year or years in which the tax effect in respect of the disputed issues exceeds the monetary limit specified in para 3. No appeal The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 13/22 shall be filed in respect of an assessment year or years in which the tax effect is less than the monetary limit specified in para 3. In other words, henceforth, appeals can be filed only with reference to the tax effect in the relevant assessment year. However, in case of a composite order of any High Court or appellate authority, which involves more than one assessment year and common issues in more than one assessment year, appeals shall be filed in respect of all such assessment years even if the tax effect is less than the prescribed monetary limits in any of the year(s), if it is decided to file appeal in respect of the year(s) in which tax effect exceeds the monetary limit prescribed. In case where a composite order/ judgment involves more than one assessee, each assessee shall be dealt with separately.\n 6. Further, where income is computed under the provisions of section 115JB or section 115JC, for the purposes of determination of `tax effect', tax on the total income assessed shall be computed as per the following formula- The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 14/22 (A - B)+(C - D) where, A = the total income assessed as per the provisions other than the provisions contained in section 115JB or section 115JC (herein called general provisions); B = the total income that would have been chargeable had the total income assessed as per the general provisions been reduced by the amount of the disputed issues under general provisions; C = the total income assessed as per the provisions contained in section 115JB or section 115JC; D = the total income that would have been chargeable had the total income assessed as per the provisions contained in section 115JB or section 1I5JCwas reduced by the amount of disputed issues under the said provisions: The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 15/22 However, where the amount of disputed issues is considered both under the provisions contained in section 115JB or section 115JC and under general provisions, such amount shall not be reduced from total income assessed while determining the amount under item D.\n 7. In a case where appeal before a Tribunal or a Court is not filed only on account of the tax effect being less than the monetary limit specified above, the Pr.\nCommissioner of Income-tax/ Commissioner of Income Tax shall specifically record that \"even though the decision is not acceptable, appeal is not being filed only on the consideration that the tax effect is less than the monetary limit specified in this Circular\". Further, in such cases, there will be no presumption that the Income-tax Department has acquiesced in the decision on the disputed issues. The Income-tax Department shall not be precluded from filing an appeal against the disputed issues in the case of the same assessee for any other assessment The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 16/22 year, or in the case of any other assessee for the same or any other assessment year, if the tax effect exceeds the specified monetary limits.\n 8. In the past, a number of instances have come to the notice of the Board, whereby an assessee has claimed relief from the Tribunal or the Court only on the ground that the Department has implicitly accepted the decision of the Tribunal or Court in the case of the assessee for any other assessment year or in the case of any other assessee for the same or any other assessment year, by not filing an appeal on the same disputed issues. The Departmental representatives/counsels must make every effort to bring to the notice of the Tribunal or the Court that the appeal in such cases was not filed or not admitted only for the reason of the tax effect being less than the specified monetary limit and, therefore, no inference should be drawn that the decisions rendered therein were acceptable to the Department. Accordingly, they should impress upon the Tribunal or the Court that such cases do not have any precedent value and also bring to The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 17/22 the notice of the Tribunal/ Court the provisions of sub section (4) of section 268A of the Income-tax Act, 1961 which read as under : \"(4) The Appellate Tribunal or Court, hearing such appeal or reference, shall have regard to the orders, instructions or directions issued under sub-section (1) and the circumstances under which such appeal or application for reference was filed or not filed in respect of any case.\"\n 9. As the evidence of not filing appeal due to this Circular may have to be produced in courts, the judicial folders in the office of Pr.CsIT/ CsIT must be maintained in a systemic manner for easy retrieval.\n 10. Adverse judgments relating to the following issues should be contested on merits notwithstanding that the tax effect entailed is less than the monetary limits specified in para 3 above or there is no tax effect: The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 18/22 (a) Where the Constitutional validity of the provisions of an Act or Rule is under challenge, or (b) Where Board's order, Notification, Instruction or Circular has been held to be illegal or ultra vires, or (c) Where Revenue Audit objection in the case has been accepted by the Department, or (d) Where the addition relates to undisclosed foreign assets/ bank accounts.\n 11. The monetary limits specified in para 3 above shall not apply to writ matters and Direct tax matters other than Income tax. Filing of appeals in other Direct tax matters shall continue to be governed by relevant provisions of statute and rules. Further, in cases where the tax effect is not quantifiable or not involved, such as the case of registration of trusts or institutions under section 12A/12AA of the IT Act, 1961 etc., filing The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 19/22 of appeal shall not be governed by the limits specified in para 3 above and decision to file appeals in such cases may be taken on merits of a particular case.\n 12. It is clarified that the monetary limit of Rs. 20 lakhs for filing appeals before the ITAT would apply equally to cross objections under section 253(4) of the Act. Cross objections below this monetary limit, already filed, should be pursued for dismissal as withdrawn/ not pressed. Filing of cross objections below the monetary limit may not be considered henceforth.\nSimilarly, references to High Courts and SLPs/appeals before Supreme Court below the monetary limit of Rs. 50 lakhs and Rs. 1 Crore respectively should be pursued for dismissal as withdrawn/ not pressed. References before High Court and SLPs/ appeals below these limits may not be considered henceforth.\n 13. This Circular will apply to SLPs/appeals/cross objections/references to be filed henceforth in SC/HCs/Tribunal and it shall The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 20/22 also apply retrospectively to pending SLPs/ appeals/cross objections/references. Pending appeals below the specified tax limits in para 3 above may be withdrawn/not pressed.\"\n 14. The above may be brought to the notice of all concerned.\n 15. This issue under Section 268A of the Income-tax Act 1961.\n 16. Hindi version will follow.\n Sd/- (11/07/2018) (Neetika Bansal) Director (ITJ), CBDT, New Delhi.\n 4. Learned counsel for the appellant-Revenue with regard to paragraph No.20 of the judgment of the Hon'ble Supreme Court in the case of DIRECTOR OF INCOME TAX vs. S.R.M.B. DAIRY FARMING (P.) LTD.\n quoted above and in the case of CIT vs. SURYA The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 21/22 HERBAL LTD. (supra) has submitted before us that the present appeal filed by Revenue neither has any cascading tax effect nor it involves any issues of common principles involved in a group of matters or a large number of matters. Thus, the decision initially pointed out by the learned counsel for the appellant- Revenue in the case of CIT vs. M/S.GEMINI DISTILLERIES does not come in the way of the present appeal being withdrawn and the withdrawal of the appeal can be permitted as per recent CBDT Circular dated 11.07.2018.\n 5. Learned counsel for the respondent- Assessee does not dispute this position.\n 6. Accordingly, in view of the aforesaid reasons and the Circular dated 11.07.2018 issued by the The Commissioner of Income-Tax & Anr.\n vs.\n M/s.Luwa India Pvt. Ltd.\n 22/22 Central Board of Direct Taxes, the present appeal filed by the appellant-Revenue is permitted to be withdrawn.\n The appeal is, accordingly, dismissed as withdrawn/not pressed. No costs.\n Sd/- JUDGE Sd/- JUDGE VMB "
} |
{
"group": "Tax"
} | [
{
"result": [
{
"from_name": null,
"id": "1f8ece164fdc4cfeabb80ffb7e5a9283",
"to_name": null,
"type": null,
"value": {
"end": 36,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": " 1/13"
}
},
{
"from_name": null,
"id": "56f9598a4df84effab010c6176aa6f06",
"to_name": null,
"type": null,
"value": {
"end": 344,
"labels": [
"PREAMBLE"
],
"start": 38,
"text": "IN THE HIGH COURT OF KARNATAKA, BENGALURU\n\nDATED THIS THE 30TH DAY OF AUGUST 2018\n\nPRESENT\n\nTHE HON'BLE Dr.JUSTICE VINEET KOTHARI\n\n AND\n\nTHE HON'BLE Mrs.JUSTICE S.SUJATHA\n\nI.T.A.No.174 OF 2016\n\nBetween:\n\n1. Commissioner of\n Income Tax (Exemptions)\n Mangaluru.\n\n2."
}
},
{
"from_name": null,
"id": "390636937a274fe5933319c597ee2ec5",
"to_name": null,
"type": null,
"value": {
"end": 429,
"labels": [
"PREAMBLE"
],
"start": 345,
"text": "The Assistant ...Appellants\n Commissioner of Income Tax"
}
},
{
"from_name": null,
"id": "a2983dc94b8c4861a13453061b0851a7",
"to_name": null,
"type": null,
"value": {
"end": 682,
"labels": [
"PREAMBLE"
],
"start": 430,
"text": " ...Respondent\n Circle1(1), Mangaluru.\n\n(By Mr.Sanmathi E I, Advocate)\n\nAnd:\n\nMangalore Urban\nDevelopment Authority\nUrva Stores, Ashok Nagar,\nMangalore 575 006.\nPAN: AAALC0002E\n\n(By Mr.S.Parthasarathi, Advocate &\nMrs.Sheetal Borkar, Advocate)"
}
},
{
"from_name": null,
"id": "146c17d9436b4aac81cd6f56c2097f17",
"to_name": null,
"type": null,
"value": {
"end": 973,
"labels": [
"PREAMBLE"
],
"start": 682,
"text": "\n\n Vs.\n Mangalore Urban Development Authority\n\n 2/13"
}
},
{
"from_name": null,
"id": "b4f5a7b7b062438d9ed6ff5f5b93d72c",
"to_name": null,
"type": null,
"value": {
"end": 1647,
"labels": [
"PREAMBLE"
],
"start": 984,
"text": "This Income Tax Appeal is filed under Section 260-A of the\nIncome Tax Act 1961, arising out of order dated 11/03/2015\npassed in ITA No.695/Bang/2014, for the Assessment Year\n2010-11 praying to decide the foregoing question of law and / or\nsuch other questions of law as may be formulated by the Hon'ble\nCourt as deemed fit and set aside the appellate order dated\n11/03/2015 passed by the ITAT, `A' Bench, Bengaluru, in appeal\nproceedings No. ITA No.695/Bang/2014 for Assessment Year\n2010-11, as sought for in this appeal; and to grant such other\nrelief as deemed fit, in the interest of justice.\n\n This Income Tax Appeal coming on for Admission, this day\n"
}
},
{
"from_name": null,
"id": "3c92b538b3b0465d90f3e48d71e068be",
"to_name": null,
"type": null,
"value": {
"end": 1732,
"labels": [
"PREAMBLE"
],
"start": 1647,
"text": "S.Sujatha J. delivered the following:-\n\n JUDGMENT"
}
},
{
"from_name": null,
"id": "5eecf44efc6344d4a7c0ddd5185f3ec8",
"to_name": null,
"type": null,
"value": {
"end": 1859,
"labels": [
"NONE"
],
"start": 1732,
"text": "\n Mr.Sanmathi E.I., Adv. for Appellants Revenue.\nMr.S.Parthasarathi, Adv. & Mrs.Sheetal Borkar, Adv. for Respondent Assessee."
}
},
{
"from_name": null,
"id": "1efe1e5d5d9b4187a12f6e2498a0d258",
"to_name": null,
"type": null,
"value": {
"end": 2307,
"labels": [
"FAC"
],
"start": 1861,
"text": "1. Revenue has filed this appeal raising purported substantial questions of law under Section 260-A of the Income Tax Act, 1961 arising from the order of learned Tribunal dated 11.03.2015 in ITA No.695/BNG/2014 for the Assessment Year 2010-2011 - The Asst. Commissioner of Income-tax vs. Mangalore Urban Development Authority.\n Vs.\n Mangalore Urban Development Authority 3/13 2."
}
},
{
"from_name": null,
"id": "9e0a7c7d009749459e436c268c71ee13",
"to_name": null,
"type": null,
"value": {
"end": 2426,
"labels": [
"ISSUE"
],
"start": 2308,
"text": "The suggested substantial questions of law in the memo of appeal of Revenue are quoted below for ready reference:- \"1."
}
},
{
"from_name": null,
"id": "35ea7fe7fd4f4812b63e1d6a473d4a5e",
"to_name": null,
"type": null,
"value": {
"end": 3119,
"labels": [
"ISSUE"
],
"start": 2427,
"text": "Whether on the facts and in the circumstances of the case the Tribunal is right in holding that the assessee is eligible for carry forward of deficit of the assessee to the subsequent years when the income of a charitable or religious trust/institution is required to be computed by applying general commercial principles without referring to the regular provisions of Income Tax as contained under Chapter-IV and as such while arriving at the income of a charitable or religious trust/institution, various heads of income as contemplated under section 14 and specific provisions of computation of income under respective heads as envisaged under section 15 to 59 are not pressed into action?"
}
},
{
"from_name": null,
"id": "3ee2901841f241b191fef79f120ed9a5",
"to_name": null,
"type": null,
"value": {
"end": 3604,
"labels": [
"ISSUE"
],
"start": 3121,
"text": "2. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in holding that the assessee is Vs.\n Mangalore Urban Development Authority 4/13 entitled to carry forward of excess application without appreciating that the provisions of sections 70 to 80 of IT Act are not applicable to trusts as they only deal with carry forward and set off of loss and not excess expenditure or deficit?"
}
},
{
"from_name": null,
"id": "df0c713491eb4fa5a462b1cf96e5efec",
"to_name": null,
"type": null,
"value": {
"end": 3946,
"labels": [
"ISSUE"
],
"start": 3604,
"text": "\n 3. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in holding that assessee is entitled to claim depreciation on capital assets when it amounts to double deduction as the income of the assessee is already exempt and amended provisions of the Act also denies such claim for depreciation by Trust?\"\n 3."
}
},
{
"from_name": null,
"id": "5d316d270ca84668b1d529564ecdc163",
"to_name": null,
"type": null,
"value": {
"end": 4282,
"labels": [
"ARG_PETITIONER"
],
"start": 3947,
"text": "The learned counsel for Revenue submits that the controversy raised in the present appeal is covered by a decision of this Court in ITA No.231/2018 (D.D 14.08.2018), in the case of Pr. Commissioner of Income- Tax (Exemptions) and Another vs. M/s Green Wood High Vs.\n "
}
},
{
"from_name": null,
"id": "a5b6ad9a72754ae29a639e74af878bfd",
"to_name": null,
"type": null,
"value": {
"end": 4332,
"labels": [
"ARG_PETITIONER"
],
"start": 4282,
"text": "Mangalore Urban Development Authority 5/13 School."
}
},
{
"from_name": null,
"id": "03d71186908046e39b4b238d1e20e32e",
"to_name": null,
"type": null,
"value": {
"end": 4415,
"labels": [
"ARG_PETITIONER"
],
"start": 4333,
"text": "The relevant portion of the said order is extracted hereunder for ready reference:"
}
},
{
"from_name": null,
"id": "76f3f42ca6fb4654a375ff4db3cb79d6",
"to_name": null,
"type": null,
"value": {
"end": 5301,
"labels": [
"ARG_PETITIONER"
],
"start": 4416,
"text": "\"3. This Court in the case of `Commissioner of Income Tax-III, Pune v. Rajasthan & Gujarati Charitable Foundation Poona' [2018] 89 taxmann.com 127 [SC] with regard to allowability and Depreciation in the hands of Religious and Charitable Trust held as under: \"5. Learned Counsel at the Bar submitted that so far as the issue regarding claim of Depreciation under Section 32 of the Act is concerned, the controversy is no longer res integra, having been settled by the Hon'ble Supreme Court in the case of `Commissioner of Income Tax-III, Pune v. Rajasthan & Gujarati Charitable Foundation Poona' [2018] 89 taxmann.com 127 [SC], by which the Hon'ble Supreme Court has affirmed the view taken by the Bombay High Court in `Commissioner of Income Tax v.\n Institute of Banking Personnel Vs.\n Mangalore Urban Development Authority 6/13 Selection (IBPS)'"
}
},
{
"from_name": null,
"id": "9924ec6d640f45bfbbd0345a9af13cb2",
"to_name": null,
"type": null,
"value": {
"end": 5323,
"labels": [
"ARG_PETITIONER"
],
"start": 5302,
"text": "[2003] 131 Taxman 386"
}
},
{
"from_name": null,
"id": "d49f413a3d0a4a6b955c8abe5028cbdb",
"to_name": null,
"type": null,
"value": {
"end": 5331,
"labels": [
"ARG_PETITIONER"
],
"start": 5324,
"text": "[Bom.]."
}
},
{
"from_name": null,
"id": "b29eaf37dc5f4698865b0d3beb3750ae",
"to_name": null,
"type": null,
"value": {
"end": 5483,
"labels": [
"ARG_PETITIONER"
],
"start": 5332,
"text": "The relevant portion of the said Judgment of Bombay High Court as quoted by the Hon'ble Supreme Court and affirmed is quoted below for ready reference."
}
},
{
"from_name": null,
"id": "17113f2cdcc442a0bb70ea49d81365b3",
"to_name": null,
"type": null,
"value": {
"end": 5633,
"labels": [
"ARG_PETITIONER"
],
"start": 5483,
"text": "\n \"In the said judgment, [Bombay High Court] the contention of the Department predicated on double benefit was turned down in the following manner: 3."
}
},
{
"from_name": null,
"id": "f5449356f4ab4c48a57d033a0304338a",
"to_name": null,
"type": null,
"value": {
"end": 5881,
"labels": [
"ANALYSIS"
],
"start": 5634,
"text": "As stated above, the first question which requires consideration by this court is : whether depreciation was allowable on the assets, the cost of which has been fully allowed as application of income under section 11 in the past years?"
}
},
{
"from_name": null,
"id": "243e74d91e7b442294613d4fe161f427",
"to_name": null,
"type": null,
"value": {
"end": 5947,
"labels": [
"ANALYSIS"
],
"start": 5882,
"text": "In the case of CIT v. Munisuvrat Jain 1994 Tax Law Reporter, 1084"
}
},
{
"from_name": null,
"id": "8f556652f62e491ab5e2f349f740b1bd",
"to_name": null,
"type": null,
"value": {
"end": 5974,
"labels": [
"ANALYSIS"
],
"start": 5948,
"text": "the facts were as follows."
}
},
{
"from_name": null,
"id": "a324327c539e4fc68cc4172d675ff1b3",
"to_name": null,
"type": null,
"value": {
"end": 6011,
"labels": [
"ANALYSIS"
],
"start": 5975,
"text": "The assessee was a Charitable Trust."
}
},
{
"from_name": null,
"id": "df2d30b6fa9e44fd9d51bc1faf9a8736",
"to_name": null,
"type": null,
"value": {
"end": 6147,
"labels": [
"ANALYSIS"
],
"start": 6012,
"text": "It was registered Vs.\n Mangalore Urban Development Authority 7/13 as a Public Charitable Trust."
}
},
{
"from_name": null,
"id": "590caed828b7493699a14cc9e0e1dfce",
"to_name": null,
"type": null,
"value": {
"end": 6199,
"labels": [
"ANALYSIS"
],
"start": 6148,
"text": "It was also registered with the Commissioner, Pune."
}
},
{
"from_name": null,
"id": "4fa39c9ad1824c64a1afcd88d4550f7f",
"to_name": null,
"type": null,
"value": {
"end": 6280,
"labels": [
"ANALYSIS"
],
"start": 6200,
"text": "The assessee derived income from the temple property which was a Trust property."
}
},
{
"from_name": null,
"id": "c6fa091998ba4f0a9715d83253de1d8d",
"to_name": null,
"type": null,
"value": {
"end": 6542,
"labels": [
"ANALYSIS"
],
"start": 6281,
"text": "During the course of assessment proceedings for assessment years 1977-78, 1978- 79 and 1979-80, the assessee claimed depreciation on the value of the building at the rate of 2.5 per cent and they also claimed depreciation on furniture at the rate of 5 per cent."
}
},
{
"from_name": null,
"id": "3ade8a14b3b0430e875398ffe9c5b0c2",
"to_name": null,
"type": null,
"value": {
"end": 6775,
"labels": [
"ANALYSIS"
],
"start": 6543,
"text": "The question which arose before the court for determination was: whether depreciation could be denied to the assessee, as expenditure on acquisition of the assets had been treated as application of income in the year of acquisition?"
}
},
{
"from_name": null,
"id": "9b41f3a140a54e93bcd057a3c78165d9",
"to_name": null,
"type": null,
"value": {
"end": 6926,
"labels": [
"PRE_RELIED"
],
"start": 6776,
"text": "It was held by the Bombay High Court that section 11 of the Income Tax Act makes provision in respect of Vs.\n "
}
},
{
"from_name": null,
"id": "3205abc60ccf4f6cb72831f2ef04f444",
"to_name": null,
"type": null,
"value": {
"end": 7128,
"labels": [
"PRE_RELIED"
],
"start": 6926,
"text": "Mangalore Urban Development Authority 8/13 computation of income of the Trust from the properly held for charitable or religious purposes and it also provides for application and accumulation of income."
}
},
{
"from_name": null,
"id": "1e3338b6a6494dfcbc516110a76d088e",
"to_name": null,
"type": null,
"value": {
"end": 7385,
"labels": [
"ANALYSIS"
],
"start": 7129,
"text": "On the other hand, section 28 of the Income Tax Act deals with chargeability of income from profits and gains of business and section 29 provides that income from profits and gains of business shall be computed in accordance with section 30 to section 43C,"
}
},
{
"from_name": null,
"id": "affbef9412fd47019670c914359c8fd6",
"to_name": null,
"type": null,
"value": {
"end": 7544,
"labels": [
"ANALYSIS"
],
"start": 7386,
"text": "That, section 32(1) of the Act provides for depreciation in respect of building, plant and machinery owned by the assessee and used for the business purposes."
}
},
{
"from_name": null,
"id": "c1f3d0c0dffe46e68de85bb3b2d53a2f",
"to_name": null,
"type": null,
"value": {
"end": 7601,
"labels": [
"ANALYSIS"
],
"start": 7545,
"text": "It further provides for deduction subject to section 34."
}
},
{
"from_name": null,
"id": "c384a7cd1d1a4370ace97a5f97cee5ac",
"to_name": null,
"type": null,
"value": {
"end": 7925,
"labels": [
"ANALYSIS"
],
"start": 7602,
"text": "In that matter also, a similar argument, as in the present case, was advanced on behalf of the revenue, namely, that depreciation can be allowed as deduction only Vs.\n Mangalore Urban Development Authority 9/13 under section 32 of the Income Tax Act and not under general principles."
}
},
{
"from_name": null,
"id": "c0fa1cb3188c4de3a53c45c470af9f6d",
"to_name": null,
"type": null,
"value": {
"end": 7959,
"labels": [
"ANALYSIS"
],
"start": 7926,
"text": "The court rejected this argument."
}
},
{
"from_name": null,
"id": "428812e1511a406f92b3fb3f1eedbcba",
"to_name": null,
"type": null,
"value": {
"end": 8156,
"labels": [
"ANALYSIS"
],
"start": 7960,
"text": "It was held that normal depreciation can be considered as a legitimate deduction in computing the real income of the assessee on general principles or under section 11(1)(a) of the Income Tax Act."
}
},
{
"from_name": null,
"id": "c36db1973f4b4e2cb86326529c75f2ae",
"to_name": null,
"type": null,
"value": {
"end": 8330,
"labels": [
"ANALYSIS"
],
"start": 8157,
"text": "The court rejected the argument on behalf of the revenue that section 32 of the Income Tax Act was the only section granting benefit of deduction on account of depreciation."
}
},
{
"from_name": null,
"id": "9670196e79bc4c4fab5707e036c12fa4",
"to_name": null,
"type": null,
"value": {
"end": 8628,
"labels": [
"ANALYSIS"
],
"start": 8331,
"text": "It was held that income of a Charitable Trust derived from building, plant and machinery and furniture was liable to be computed in normal commercial manner although the Trust may not be carrying on any business and the assets in respect whereof depreciation is claimed may not be business assets."
}
},
{
"from_name": null,
"id": "d9a0c69656d24315b3e3627453a53950",
"to_name": null,
"type": null,
"value": {
"end": 8639,
"labels": [
"ANALYSIS"
],
"start": 8629,
"text": "In all Vs."
}
},
{
"from_name": null,
"id": "fcf0961389694a31a18276769866c9d4",
"to_name": null,
"type": null,
"value": {
"end": 8894,
"labels": [
"ANALYSIS"
],
"start": 8698,
"text": "Mangalore Urban Development Authority 10/13 such cases, section 32 of the Income Tax Act providing for depreciation for computation of income derived from business or profession is not applicable."
}
},
{
"from_name": null,
"id": "4057f515a363416a92798e15cbeaf038",
"to_name": null,
"type": null,
"value": {
"end": 9116,
"labels": [
"ANALYSIS"
],
"start": 8894,
"text": "\n However, the income of the Trust is required to be computed under section 11 on commercial principles after providing for allowance for normal depreciation and deduction thereof from gross income of the Trust."
}
},
{
"from_name": null,
"id": "ed21384cce27465ba3a1a36a1171c75e",
"to_name": null,
"type": null,
"value": {
"end": 9283,
"labels": [
"ANALYSIS"
],
"start": 9117,
"text": "In view of the aforestated Judgment of the Bombay High Court, we answer question No. 1 in the affirmative i.e., in favour of the assessee and against the department.\""
}
},
{
"from_name": null,
"id": "76a78bc169a94347b072da4009b5929f",
"to_name": null,
"type": null,
"value": {
"end": 9297,
"labels": [
"NONE"
],
"start": 9283,
"text": "\n xxxxxxx....."
}
},
{
"from_name": null,
"id": "6c488d521bf8475590afaf9308d51265",
"to_name": null,
"type": null,
"value": {
"end": 9796,
"labels": [
"PRE_RELIED"
],
"start": 9297,
"text": "\n 4. With regard to carrying forward of the losses for being set off against the income of the charitable trust for the present Assessment Year, the controversy is covered by the judgment in Vs.\n Mangalore Urban Development Authority 11/13 Commissioner of Income Tax (Exemptions) and another Vs. Ohio University Christ College rendered on 17.07.2018 in ITA.No.312/2016 and ITA No.313/2016, in which this Court held as under: xxxxxxx.....\n 18."
}
},
{
"from_name": null,
"id": "b233f6b64f2841909381138ebec590d9",
"to_name": null,
"type": null,
"value": {
"end": 10116,
"labels": [
"RATIO"
],
"start": 9797,
"text": "In view of the aforesaid findings of the learned Tribunal, allowing any expenditure of the earlier year which has been brought forward and set off in the year under consideration, is a justified finding of fact based on the correct interpretation of law and the judgment relied upon by it rendered by the cognate Bench."
}
},
{
"from_name": null,
"id": "2b427941df6145658573b5561eff41b6",
"to_name": null,
"type": null,
"value": {
"end": 10168,
"labels": [
"RATIO"
],
"start": 10117,
"text": "Therefore, the same does not call for interference."
}
},
{
"from_name": null,
"id": "484c03fd130d4207a35d8712f2d9e30b",
"to_name": null,
"type": null,
"value": {
"end": 10925,
"labels": [
"PRE_RELIED"
],
"start": 10169,
"text": "A similar view was also taken by the Division Bench of Bombay High Court in Commissioner of Income- tax v. Institute of Banking (2003) 264 ITR 110, wherein the Division Bench of Bombay High Court held that the income derived from the trust property has also got to be computed on commercial Vs.\n Mangalore Urban Development Authority 12/13 principles and if commercial principles are applied, then adjustment of expenses incurred by the trust for charitable and religious purposes in the earlier years against the income earned by the trust in the subsequent year will have to be regarded as application of income of the trust for charitable and religious purposes in the subsequent year."
}
},
{
"from_name": null,
"id": "2d2e78290e3b4fb8b291a7b132628683",
"to_name": null,
"type": null,
"value": {
"end": 10935,
"labels": [
"NONE"
],
"start": 10925,
"text": "\n xxxx...."
}
},
{
"from_name": null,
"id": "c24d343289a6488da8f164bb64713fcc",
"to_name": null,
"type": null,
"value": {
"end": 11176,
"labels": [
"RPC"
],
"start": 10935,
"text": "\n In view of the controversy covered by the above decisions of this Court, we are of the opinion that the substantial question of law as suggested by the appellants does not now arise for our further consideration in the present appeal.\"\n 4."
}
},
{
"from_name": null,
"id": "1a8e79a890d5412eac4a3fc44b6b396e",
"to_name": null,
"type": null,
"value": {
"end": 11323,
"labels": [
"RPC"
],
"start": 11177,
"text": "In view of the aforesaid, we are of the opinion that no substantial question of law arises for our further consideration in the present case also."
}
},
{
"from_name": null,
"id": "b3b26886b81e4cdcb56b794b0c1fc848",
"to_name": null,
"type": null,
"value": {
"end": 11398,
"labels": [
"RPC"
],
"start": 11323,
"text": "\n Vs.\n "
}
},
{
"from_name": null,
"id": "236c50db94cb44eea564cff82ad3801f",
"to_name": null,
"type": null,
"value": {
"end": 11444,
"labels": [
"RPC"
],
"start": 11398,
"text": "Mangalore Urban Development Authority 13/13 5."
}
},
{
"from_name": null,
"id": "1f706bd2ec774b47968132fc5bb11891",
"to_name": null,
"type": null,
"value": {
"end": 11552,
"labels": [
"RPC"
],
"start": 11445,
"text": "The appeal filed by the Revenue is accordingly dismissed in terms of the aforesaid judgments of this Court."
}
},
{
"from_name": null,
"id": "c23231c1a78a44f8b5af33b267e90042",
"to_name": null,
"type": null,
"value": {
"end": 11563,
"labels": [
"RPC"
],
"start": 11552,
"text": "\n No costs."
}
},
{
"from_name": null,
"id": "acf6afca8aec44a5957ee88530bcf1bf",
"to_name": null,
"type": null,
"value": {
"end": 11591,
"labels": [
"NONE"
],
"start": 11563,
"text": "\n Sd/- JUDGE Sd/- JUDGE dn/-"
}
}
]
}
] | 4,202 | {
"text": " 1/13\n\nIN THE HIGH COURT OF KARNATAKA, BENGALURU\n\nDATED THIS THE 30TH DAY OF AUGUST 2018\n\nPRESENT\n\nTHE HON'BLE Dr.JUSTICE VINEET KOTHARI\n\n AND\n\nTHE HON'BLE Mrs.JUSTICE S.SUJATHA\n\nI.T.A.No.174 OF 2016\n\nBetween:\n\n1. Commissioner of\n Income Tax (Exemptions)\n Mangaluru.\n\n2. The Assistant ...Appellants\n Commissioner of Income Tax ...Respondent\n Circle1(1), Mangaluru.\n\n(By Mr.Sanmathi E I, Advocate)\n\nAnd:\n\nMangalore Urban\nDevelopment Authority\nUrva Stores, Ashok Nagar,\nMangalore 575 006.\nPAN: AAALC0002E\n\n(By Mr.S.Parthasarathi, Advocate &\nMrs.Sheetal Borkar, Advocate)\n\n Vs.\n Mangalore Urban Development Authority\n\n 2/13\n\n This Income Tax Appeal is filed under Section 260-A of the\nIncome Tax Act 1961, arising out of order dated 11/03/2015\npassed in ITA No.695/Bang/2014, for the Assessment Year\n2010-11 praying to decide the foregoing question of law and / or\nsuch other questions of law as may be formulated by the Hon'ble\nCourt as deemed fit and set aside the appellate order dated\n11/03/2015 passed by the ITAT, `A' Bench, Bengaluru, in appeal\nproceedings No. ITA No.695/Bang/2014 for Assessment Year\n2010-11, as sought for in this appeal; and to grant such other\nrelief as deemed fit, in the interest of justice.\n\n This Income Tax Appeal coming on for Admission, this day\nS.Sujatha J. delivered the following:-\n\n JUDGMENT\n Mr.Sanmathi E.I., Adv. for Appellants Revenue.\nMr.S.Parthasarathi, Adv. & Mrs.Sheetal Borkar, Adv. for Respondent Assessee.\n 1. Revenue has filed this appeal raising purported substantial questions of law under Section 260-A of the Income Tax Act, 1961 arising from the order of learned Tribunal dated 11.03.2015 in ITA No.695/BNG/2014 for the Assessment Year 2010-2011 - The Asst. Commissioner of Income-tax vs. Mangalore Urban Development Authority.\n Vs.\n Mangalore Urban Development Authority 3/13 2. The suggested substantial questions of law in the memo of appeal of Revenue are quoted below for ready reference:- \"1. Whether on the facts and in the circumstances of the case the Tribunal is right in holding that the assessee is eligible for carry forward of deficit of the assessee to the subsequent years when the income of a charitable or religious trust/institution is required to be computed by applying general commercial principles without referring to the regular provisions of Income Tax as contained under Chapter-IV and as such while arriving at the income of a charitable or religious trust/institution, various heads of income as contemplated under section 14 and specific provisions of computation of income under respective heads as envisaged under section 15 to 59 are not pressed into action?\n 2. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in holding that the assessee is Vs.\n Mangalore Urban Development Authority 4/13 entitled to carry forward of excess application without appreciating that the provisions of sections 70 to 80 of IT Act are not applicable to trusts as they only deal with carry forward and set off of loss and not excess expenditure or deficit?\n 3. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in holding that assessee is entitled to claim depreciation on capital assets when it amounts to double deduction as the income of the assessee is already exempt and amended provisions of the Act also denies such claim for depreciation by Trust?\"\n 3. The learned counsel for Revenue submits that the controversy raised in the present appeal is covered by a decision of this Court in ITA No.231/2018 (D.D 14.08.2018), in the case of Pr. Commissioner of Income- Tax (Exemptions) and Another vs. M/s Green Wood High Vs.\n Mangalore Urban Development Authority 5/13 School. The relevant portion of the said order is extracted hereunder for ready reference: \"3. This Court in the case of `Commissioner of Income Tax-III, Pune v. Rajasthan & Gujarati Charitable Foundation Poona' [2018] 89 taxmann.com 127 [SC] with regard to allowability and Depreciation in the hands of Religious and Charitable Trust held as under: \"5. Learned Counsel at the Bar submitted that so far as the issue regarding claim of Depreciation under Section 32 of the Act is concerned, the controversy is no longer res integra, having been settled by the Hon'ble Supreme Court in the case of `Commissioner of Income Tax-III, Pune v. Rajasthan & Gujarati Charitable Foundation Poona' [2018] 89 taxmann.com 127 [SC], by which the Hon'ble Supreme Court has affirmed the view taken by the Bombay High Court in `Commissioner of Income Tax v.\n Institute of Banking Personnel Vs.\n Mangalore Urban Development Authority 6/13 Selection (IBPS)' [2003] 131 Taxman 386 [Bom.]. The relevant portion of the said Judgment of Bombay High Court as quoted by the Hon'ble Supreme Court and affirmed is quoted below for ready reference.\n \"In the said judgment, [Bombay High Court] the contention of the Department predicated on double benefit was turned down in the following manner: 3. As stated above, the first question which requires consideration by this court is : whether depreciation was allowable on the assets, the cost of which has been fully allowed as application of income under section 11 in the past years? In the case of CIT v. Munisuvrat Jain 1994 Tax Law Reporter, 1084 the facts were as follows. The assessee was a Charitable Trust. It was registered Vs.\n Mangalore Urban Development Authority 7/13 as a Public Charitable Trust. It was also registered with the Commissioner, Pune. The assessee derived income from the temple property which was a Trust property. During the course of assessment proceedings for assessment years 1977-78, 1978- 79 and 1979-80, the assessee claimed depreciation on the value of the building at the rate of 2.5 per cent and they also claimed depreciation on furniture at the rate of 5 per cent. The question which arose before the court for determination was: whether depreciation could be denied to the assessee, as expenditure on acquisition of the assets had been treated as application of income in the year of acquisition? It was held by the Bombay High Court that section 11 of the Income Tax Act makes provision in respect of Vs.\n Mangalore Urban Development Authority 8/13 computation of income of the Trust from the properly held for charitable or religious purposes and it also provides for application and accumulation of income. On the other hand, section 28 of the Income Tax Act deals with chargeability of income from profits and gains of business and section 29 provides that income from profits and gains of business shall be computed in accordance with section 30 to section 43C, That, section 32(1) of the Act provides for depreciation in respect of building, plant and machinery owned by the assessee and used for the business purposes. It further provides for deduction subject to section 34. In that matter also, a similar argument, as in the present case, was advanced on behalf of the revenue, namely, that depreciation can be allowed as deduction only Vs.\n Mangalore Urban Development Authority 9/13 under section 32 of the Income Tax Act and not under general principles. The court rejected this argument. It was held that normal depreciation can be considered as a legitimate deduction in computing the real income of the assessee on general principles or under section 11(1)(a) of the Income Tax Act. The court rejected the argument on behalf of the revenue that section 32 of the Income Tax Act was the only section granting benefit of deduction on account of depreciation. It was held that income of a Charitable Trust derived from building, plant and machinery and furniture was liable to be computed in normal commercial manner although the Trust may not be carrying on any business and the assets in respect whereof depreciation is claimed may not be business assets. In all Vs.\n Mangalore Urban Development Authority 10/13 such cases, section 32 of the Income Tax Act providing for depreciation for computation of income derived from business or profession is not applicable.\n However, the income of the Trust is required to be computed under section 11 on commercial principles after providing for allowance for normal depreciation and deduction thereof from gross income of the Trust. In view of the aforestated Judgment of the Bombay High Court, we answer question No. 1 in the affirmative i.e., in favour of the assessee and against the department.\"\n xxxxxxx.....\n 4. With regard to carrying forward of the losses for being set off against the income of the charitable trust for the present Assessment Year, the controversy is covered by the judgment in Vs.\n Mangalore Urban Development Authority 11/13 Commissioner of Income Tax (Exemptions) and another Vs. Ohio University Christ College rendered on 17.07.2018 in ITA.No.312/2016 and ITA No.313/2016, in which this Court held as under: xxxxxxx.....\n 18. In view of the aforesaid findings of the learned Tribunal, allowing any expenditure of the earlier year which has been brought forward and set off in the year under consideration, is a justified finding of fact based on the correct interpretation of law and the judgment relied upon by it rendered by the cognate Bench. Therefore, the same does not call for interference. A similar view was also taken by the Division Bench of Bombay High Court in Commissioner of Income- tax v. Institute of Banking (2003) 264 ITR 110, wherein the Division Bench of Bombay High Court held that the income derived from the trust property has also got to be computed on commercial Vs.\n Mangalore Urban Development Authority 12/13 principles and if commercial principles are applied, then adjustment of expenses incurred by the trust for charitable and religious purposes in the earlier years against the income earned by the trust in the subsequent year will have to be regarded as application of income of the trust for charitable and religious purposes in the subsequent year.\n xxxx....\n In view of the controversy covered by the above decisions of this Court, we are of the opinion that the substantial question of law as suggested by the appellants does not now arise for our further consideration in the present appeal.\"\n 4. In view of the aforesaid, we are of the opinion that no substantial question of law arises for our further consideration in the present case also.\n Vs.\n Mangalore Urban Development Authority 13/13 5. The appeal filed by the Revenue is accordingly dismissed in terms of the aforesaid judgments of this Court.\n No costs.\n Sd/- JUDGE Sd/- JUDGE dn/- "
} |
{
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{
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{
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"start": 0,
"text": "$~10\n* IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n+ CS(OS) 153/2012\n\n NEW DELHI TELEVISION LIMITED ..... Plaintiff\n Through:"
}
},
{
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"start": 173,
"text": "Mr. Abhinav Vasisht, Sr. Adv."
}
},
{
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"text": "with\n "
}
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{
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],
"start": 238,
"text": "Mr. Sarojanand Jha, Ms. Naina Dubey\n and Ms. Priya, Advs.\n\n Versus\n S.K. SRIVASTAVA"
}
},
{
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"value": {
"end": 574,
"labels": [
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],
"start": 432,
"text": "..... Defendant\n Through: Mr. Om Prakash and Mr. Pradeep\n Kumar Tripathi,"
}
},
{
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],
"start": 575,
"text": "Advs.\n Ms. Sonali Negi, Adv. for Mr. Vishnu"
}
},
{
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"value": {
"end": 730,
"labels": [
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],
"start": 657,
"text": "\n Sharma, Adv. for applicant in IA"
}
},
{
"from_name": null,
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"to_name": null,
"type": null,
"value": {
"end": 784,
"labels": [
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],
"start": 730,
"text": "\n No.15018/2015"
}
},
{
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"value": {
"end": 792,
"labels": [
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],
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"text": ".\nCORAM:"
}
},
{
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"value": {
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"labels": [
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],
"start": 792,
"text": "\nHON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW\n ORDER"
}
},
{
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"id": "c6ef43e5de504e4987486f335aa90ac1",
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"type": null,
"value": {
"end": 968,
"labels": [
"NONE"
],
"start": 872,
"text": "\n% 31.01.2018 IA No.1195/2012 (of plaintiff u/O XXXIX R-1&2 CPC)"
}
},
{
"from_name": null,
"id": "cb3bda791d9c46ca9013ed2c57a2265e",
"to_name": null,
"type": null,
"value": {
"end": 1560,
"labels": [
"FAC"
],
"start": 968,
"text": " 1. In this suit for recovery of damages (the senior counsel for the plaintiff states, for defamation) and for permanent injunction restraining the defendant from further publishing or causing to be published the defamatory contents with respect to the plaintiff, vide ex-parte ad-interim order dated 20th January, 2012 (which continues to be in force), the defendant was restrained from publishing/circulating any defamatory material, internet publication and material as contained in the application dated 24 th November, 2011 filed by the defendant before the Special Judge, New Delhi."
}
},
{
"from_name": null,
"id": "1e7ca10e08b247528d88006f5dc64b06",
"to_name": null,
"type": null,
"value": {
"end": 2194,
"labels": [
"ARG_PETITIONER"
],
"start": 1560,
"text": "\n 2. The senior counsel for the plaintiff has argued that (i) the defendant, at the time of filing of the suit, was working in the Income Tax Department (the counsel for the defendant states that the defendant is still working in the Income Tax Department); (ii) the defendant filed an application before the Court of Sh. O.P. Saini, Special Judge, containing defamatory content with respect to the plaintiff; (iii) the said application was dismissed; (iv) the defendant upholded the said application and/or contents thereof on the internet and also handed over copies of the same to various other news channels and news agencies."
}
},
{
"from_name": null,
"id": "1db6db08782946ff9e60c05dfb425207",
"to_name": null,
"type": null,
"value": {
"end": 2409,
"labels": [
"ISSUE"
],
"start": 2194,
"text": "\n3. I have asked the senior counsel for the plaintiff, how there can be defamation with respect to what is stated in the course of legal proceedings and whether not there is an absolute privilege in such matter."
}
},
{
"from_name": null,
"id": "a52d12f0d4b541679f69948bf3965678",
"to_name": null,
"type": null,
"value": {
"end": 2530,
"labels": [
"ARG_PETITIONER"
],
"start": 2409,
"text": "\n4. The senior counsel for the plaintiff states that the defendant has also uploaded the application on the internet."
}
},
{
"from_name": null,
"id": "0eaf1c9d91c54cd2966894c35e1acb3f",
"to_name": null,
"type": null,
"value": {
"end": 2538,
"labels": [
"ISSUE"
],
"start": 2531,
"text": "5. "
}
},
{
"from_name": null,
"id": "0b42bdce6a9d431aa35305da8935878d",
"to_name": null,
"type": null,
"value": {
"end": 2847,
"labels": [
"ISSUE"
],
"start": 2538,
"text": "I have further enquired from the senior counsel for the plaintiff, whether not in the concept of ‘Open Court’, the loading of the application as it is on the internet, without anything further, would also only be dissemination of what is stated/pleaded in the Court and covered by the concept of ‘Open Court’."
}
},
{
"from_name": null,
"id": "93074e0d220e4173845e1925810907e6",
"to_name": null,
"type": null,
"value": {
"end": 3045,
"labels": [
"ARG_PETITIONER"
],
"start": 2847,
"text": "\n6. The senior counsel for the plaintiff, on specific query, confirms that the defendant, outside the Court, has only circulated the application filed before the Court as it is and nothing more."
}
},
{
"from_name": null,
"id": "b9d988e0ab644840acb04cb05f29cf3b",
"to_name": null,
"type": null,
"value": {
"end": 3053,
"labels": [
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],
"start": 3046,
"text": "7. "
}
},
{
"from_name": null,
"id": "ee311c3a3c9f475d8ce7dd2c71332d92",
"to_name": null,
"type": null,
"value": {
"end": 3213,
"labels": [
"ARG_PETITIONER"
],
"start": 3053,
"text": "At this stage, the senior counsel for the plaintiff states that the defendant has also written and published articles with the same contents as the application."
}
},
{
"from_name": null,
"id": "7361b169ccb54eb1ab5736cbf1af3c20",
"to_name": null,
"type": null,
"value": {
"end": 3290,
"labels": [
"ANALYSIS"
],
"start": 3213,
"text": "\n8. These questions are left open for consideration at appropriate stage."
}
},
{
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"id": "ff92cd64526c4c53b78bc5f5570349b6",
"to_name": null,
"type": null,
"value": {
"end": 3489,
"labels": [
"ISSUE"
],
"start": 3290,
"text": "\n9. I have also asked the senior counsel for the plaintiff, that nearly six years having lapsed since the institution of the suit, what is the last allegedly defamatory act done by the defendant."
}
},
{
"from_name": null,
"id": "34e6d6428e664c50b116aada27f82476",
"to_name": null,
"type": null,
"value": {
"end": 3497,
"labels": [
"ARG_PETITIONER"
],
"start": 3490,
"text": "10. "
}
},
{
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"id": "a8a1a09b0610480592c1873c38997dba",
"to_name": null,
"type": null,
"value": {
"end": 3677,
"labels": [
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],
"start": 3497,
"text": "The senior counsel for the plaintiff states that the plaintiff is seeking a direction at this stage for removal of whatsoever was earlier uploaded by the defendant on the internet."
}
},
{
"from_name": null,
"id": "f90ce25f5e3940188331e1514eae22c2",
"to_name": null,
"type": null,
"value": {
"end": 3685,
"labels": [
"ANALYSIS"
],
"start": 3678,
"text": "11. "
}
},
{
"from_name": null,
"id": "100a8a6a169b415c851f20641c4d4eeb",
"to_name": null,
"type": null,
"value": {
"end": 3740,
"labels": [
"ANALYSIS"
],
"start": 3685,
"text": "Such a direction can be issued only at the final stage."
}
},
{
"from_name": null,
"id": "45f282bb5daa4871b50a1ba77c53d9d7",
"to_name": null,
"type": null,
"value": {
"end": 3748,
"labels": [
"RPC"
],
"start": 3741,
"text": "12. "
}
},
{
"from_name": null,
"id": "effd1a0348d8473ea5b18b52e3ff5095",
"to_name": null,
"type": null,
"value": {
"end": 3956,
"labels": [
"RPC"
],
"start": 3748,
"text": "Today, the application is disposed of by confirming the interim order dated 20th January, 2012 but by clarifying that the same will not come in the way of the defendant stating anything before any legal fora."
}
},
{
"from_name": null,
"id": "dbe20217d0354c6589740c7c77656066",
"to_name": null,
"type": null,
"value": {
"end": 4005,
"labels": [
"NONE"
],
"start": 3956,
"text": "\nIA No.765/2014 (of plaintiff u/O XXXIX R-2A CPC)"
}
},
{
"from_name": null,
"id": "27aa313e01604fbea2544a90ea36a10d",
"to_name": null,
"type": null,
"value": {
"end": 4342,
"labels": [
"ARG_PETITIONER"
],
"start": 4006,
"text": "13. The senior counsel for the plaintiff states that the defendant, inspite of the order dated 20th January, 2012, filed an application before the Disputes Resolution Panel under the Income Tax Act, 1961, with the same allegations as made in the application before Sh. O.P. Saini, Special Judge and which application stood dismissed."
}
},
{
"from_name": null,
"id": "ea5e734f238048f7b71e511fe96be294",
"to_name": null,
"type": null,
"value": {
"end": 4466,
"labels": [
"ARG_PETITIONER"
],
"start": 4343,
"text": "It is further contended that a writ petition filed by defendant on the same allegations also stood dismissed prior thereto."
}
},
{
"from_name": null,
"id": "9f2636a8528648cdb2b8d6a0d16324e5",
"to_name": null,
"type": null,
"value": {
"end": 4635,
"labels": [
"ARG_PETITIONER"
],
"start": 4467,
"text": "It is yet further argued, that the Disputes Resolution Panel also stated that it is not a judicial forum and dismissed the application filed by the defendant before it."
}
},
{
"from_name": null,
"id": "8c31dd92a68c4fa9950f36de5ee581c4",
"to_name": null,
"type": null,
"value": {
"end": 4744,
"labels": [
"ANALYSIS"
],
"start": 4635,
"text": "\n14. The order dated 20th January, 2012 does not restrain the defendant from approaching other legal fora."
}
},
{
"from_name": null,
"id": "f3233de60d674b9faedd4c4c8c10f440",
"to_name": null,
"type": null,
"value": {
"end": 4847,
"labels": [
"ANALYSIS"
],
"start": 4745,
"text": "Even otherwise, for approaching other legal fora, there can be no violation of the interim injunction."
}
},
{
"from_name": null,
"id": "1d493c36b3444ab6b689ac1498b7723a",
"to_name": null,
"type": null,
"value": {
"end": 4992,
"labels": [
"ANALYSIS"
],
"start": 4848,
"text": "Moreover, the injunction granted was conditional in the sense that the defendant was restrained from publishing/circulating defamatory material."
}
},
{
"from_name": null,
"id": "699de7b33abe4da3901727357070edfe",
"to_name": null,
"type": null,
"value": {
"end": 5084,
"labels": [
"ANALYSIS"
],
"start": 4993,
"text": "It is still to be determined in trial, whether the material published is defamatory or not."
}
},
{
"from_name": null,
"id": "0734a53ca01d49a6be1088dfc45f1e84",
"to_name": null,
"type": null,
"value": {
"end": 5129,
"labels": [
"RATIO"
],
"start": 5084,
"text": "\n15. There is no merit in the application."
}
},
{
"from_name": null,
"id": "f7c4924b910c4dc8a2a6521cde8cf192",
"to_name": null,
"type": null,
"value": {
"end": 5147,
"labels": [
"RPC"
],
"start": 5129,
"text": "\n16. Dismissed."
}
},
{
"from_name": null,
"id": "7e23cad09dbb4c168e9b11e6c5886a2b",
"to_name": null,
"type": null,
"value": {
"end": 5194,
"labels": [
"NONE"
],
"start": 5147,
"text": "\nIA No.4792/2014 (of defendant u/O VI R-17 CPC)"
}
},
{
"from_name": null,
"id": "11a6694ff4dd4a4da1803d74173bd2e1",
"to_name": null,
"type": null,
"value": {
"end": 5411,
"labels": [
"FAC"
],
"start": 5194,
"text": " 17. The senior counsel for the plaintiff, without prejudice to the rights and contentions of the plaintiff, has no objection to the application being allowed.\n18. Issues have not been framed in the suit as yet."
}
},
{
"from_name": null,
"id": "81102cf3f39243d698757851be740cbb",
"to_name": null,
"type": null,
"value": {
"end": 5504,
"labels": [
"RATIO"
],
"start": 5412,
"text": "The amendments sought are found to be necessary for determining the controversy in the suit."
}
},
{
"from_name": null,
"id": "5eb6681b1a1e4ed9bbf004b0108c46b7",
"to_name": null,
"type": null,
"value": {
"end": 5536,
"labels": [
"RPC"
],
"start": 5504,
"text": "\n19. Allowed and disposed of."
}
},
{
"from_name": null,
"id": "50b05643718741208f91f9d6bc99e2c5",
"to_name": null,
"type": null,
"value": {
"end": 5584,
"labels": [
"NONE"
],
"start": 5536,
"text": "\nIA No.4797/2014 (of defendant u/O VIII R-3 CPC)"
}
},
{
"from_name": null,
"id": "50219632b35d448690a26ddbfc5018c1",
"to_name": null,
"type": null,
"value": {
"end": 5721,
"labels": [
"RATIO"
],
"start": 5584,
"text": " 20. The additional documents sought to be filed are in support of the defence sought to be taken by way of amendment and are allowed."
}
},
{
"from_name": null,
"id": "ee9b94166a074d42814792568dc74622",
"to_name": null,
"type": null,
"value": {
"end": 5760,
"labels": [
"RPC"
],
"start": 5721,
"text": "\n21. The application is disposed of."
}
},
{
"from_name": null,
"id": "1a187b231f994401ba4f276b365fa669",
"to_name": null,
"type": null,
"value": {
"end": 5815,
"labels": [
"NONE"
],
"start": 5760,
"text": "\nIA No.15018/2015 (of Mr. S. Gurumurthy u/O I R-10 CPC)"
}
},
{
"from_name": null,
"id": "3d47f55b8181499391f562147d290366",
"to_name": null,
"type": null,
"value": {
"end": 6000,
"labels": [
"FAC"
],
"start": 5816,
"text": "22. Ms. Sonali Negi, Advocate appears for the applicant and states that Mr.\nVishnu Sharma, Advocate for the applicant is not available and she does not know anything about the case."
}
},
{
"from_name": null,
"id": "7b51fd797a5f4992a61b5d3ec5d25071",
"to_name": null,
"type": null,
"value": {
"end": 6038,
"labels": [
"RPC"
],
"start": 6000,
"text": "\n23. Dismissed for non-prosecution."
}
},
{
"from_name": null,
"id": "ecc15699125842e0a742670c94361ba3",
"to_name": null,
"type": null,
"value": {
"end": 6061,
"labels": [
"NONE"
],
"start": 6038,
"text": "\nCS(OS) No.153/2012 24."
}
},
{
"from_name": null,
"id": "9ff532b8c9d24042a7c702496221f26b",
"to_name": null,
"type": null,
"value": {
"end": 6194,
"labels": [
"FAC"
],
"start": 6061,
"text": " No amended written statement is stated to have been filed with the application for amendment which has been allowed as aforesaid."
}
},
{
"from_name": null,
"id": "d2dcd46023d14962bc2d889eeb2150ab",
"to_name": null,
"type": null,
"value": {
"end": 6303,
"labels": [
"RPC"
],
"start": 6194,
"text": "\n25. The same be filed on or before 7th February, 2018 with advance copy to the counsel for the plaintiff."
}
},
{
"from_name": null,
"id": "cdbe896b53e1420db4aa4f6ab187189b",
"to_name": null,
"type": null,
"value": {
"end": 6434,
"labels": [
"RPC"
],
"start": 6304,
"text": "If the amended written statement is not so filed, the right of the defendant to file amended written statement shall stand closed."
}
},
{
"from_name": null,
"id": "7c8888861a6144ffb837b8103480180a",
"to_name": null,
"type": null,
"value": {
"end": 6547,
"labels": [
"RPC"
],
"start": 6434,
"text": "\n26. Replication thereto, if any be filed within thirty days from the date of receipt of advance copy thereof."
}
},
{
"from_name": null,
"id": "855335a875ed41e89147113b2adf5ac0",
"to_name": null,
"type": null,
"value": {
"end": 6664,
"labels": [
"RPC"
],
"start": 6547,
"text": "\n27. The parties to file affidavits of admission/denial of each other’s documents before the next date of hearing."
}
},
{
"from_name": null,
"id": "e15c10a6823c4cb0b36d5d520648e213",
"to_name": null,
"type": null,
"value": {
"end": 6818,
"labels": [
"RPC"
],
"start": 6664,
"text": "\n28. The plaintiff is permitted to file additional documents along with its replication in response to the additional documents filed by the defendant."
}
},
{
"from_name": null,
"id": "ef8a51dd1de245f28ce387a19d23b557",
"to_name": null,
"type": null,
"value": {
"end": 6880,
"labels": [
"RPC"
],
"start": 6818,
"text": "\n29. List for framing of issues, if any on 27th July, 2018."
}
},
{
"from_name": null,
"id": "47c1cfef42b04b328d2ede9e84441088",
"to_name": null,
"type": null,
"value": {
"end": 6926,
"labels": [
"NONE"
],
"start": 6880,
"text": "\n RAJIV SAHAI ENDLAW, J.\nJANUARY 31, 2018 ‘bs’"
}
}
]
}
] | 4,282 | {
"text": "$~10\n* IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n+ CS(OS) 153/2012\n\n NEW DELHI TELEVISION LIMITED ..... Plaintiff\n Through: Mr. Abhinav Vasisht, Sr. Adv. with\n Mr. Sarojanand Jha, Ms. Naina Dubey\n and Ms. Priya, Advs.\n\n Versus\n S.K. SRIVASTAVA ..... Defendant\n Through: Mr. Om Prakash and Mr. Pradeep\n Kumar Tripathi, Advs.\n Ms. Sonali Negi, Adv. for Mr. Vishnu\n Sharma, Adv. for applicant in IA\n No.15018/2015.\nCORAM:\nHON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW\n ORDER\n% 31.01.2018 IA No.1195/2012 (of plaintiff u/O XXXIX R-1&2 CPC) 1. In this suit for recovery of damages (the senior counsel for the plaintiff states, for defamation) and for permanent injunction restraining the defendant from further publishing or causing to be published the defamatory contents with respect to the plaintiff, vide ex-parte ad-interim order dated 20th January, 2012 (which continues to be in force), the defendant was restrained from publishing/circulating any defamatory material, internet publication and material as contained in the application dated 24 th November, 2011 filed by the defendant before the Special Judge, New Delhi.\n 2. The senior counsel for the plaintiff has argued that (i) the defendant, at the time of filing of the suit, was working in the Income Tax Department (the counsel for the defendant states that the defendant is still working in the Income Tax Department); (ii) the defendant filed an application before the Court of Sh. O.P. Saini, Special Judge, containing defamatory content with respect to the plaintiff; (iii) the said application was dismissed; (iv) the defendant upholded the said application and/or contents thereof on the internet and also handed over copies of the same to various other news channels and news agencies.\n3. I have asked the senior counsel for the plaintiff, how there can be defamation with respect to what is stated in the course of legal proceedings and whether not there is an absolute privilege in such matter.\n4. The senior counsel for the plaintiff states that the defendant has also uploaded the application on the internet.\n5. I have further enquired from the senior counsel for the plaintiff, whether not in the concept of ‘Open Court’, the loading of the application as it is on the internet, without anything further, would also only be dissemination of what is stated/pleaded in the Court and covered by the concept of ‘Open Court’.\n6. The senior counsel for the plaintiff, on specific query, confirms that the defendant, outside the Court, has only circulated the application filed before the Court as it is and nothing more.\n7. At this stage, the senior counsel for the plaintiff states that the defendant has also written and published articles with the same contents as the application.\n8. These questions are left open for consideration at appropriate stage.\n9. I have also asked the senior counsel for the plaintiff, that nearly six years having lapsed since the institution of the suit, what is the last allegedly defamatory act done by the defendant.\n10. The senior counsel for the plaintiff states that the plaintiff is seeking a direction at this stage for removal of whatsoever was earlier uploaded by the defendant on the internet.\n11. Such a direction can be issued only at the final stage.\n12. Today, the application is disposed of by confirming the interim order dated 20th January, 2012 but by clarifying that the same will not come in the way of the defendant stating anything before any legal fora.\nIA No.765/2014 (of plaintiff u/O XXXIX R-2A CPC) 13. The senior counsel for the plaintiff states that the defendant, inspite of the order dated 20th January, 2012, filed an application before the Disputes Resolution Panel under the Income Tax Act, 1961, with the same allegations as made in the application before Sh. O.P. Saini, Special Judge and which application stood dismissed. It is further contended that a writ petition filed by defendant on the same allegations also stood dismissed prior thereto. It is yet further argued, that the Disputes Resolution Panel also stated that it is not a judicial forum and dismissed the application filed by the defendant before it.\n14. The order dated 20th January, 2012 does not restrain the defendant from approaching other legal fora. Even otherwise, for approaching other legal fora, there can be no violation of the interim injunction. Moreover, the injunction granted was conditional in the sense that the defendant was restrained from publishing/circulating defamatory material. It is still to be determined in trial, whether the material published is defamatory or not.\n15. There is no merit in the application.\n16. Dismissed.\nIA No.4792/2014 (of defendant u/O VI R-17 CPC) 17. The senior counsel for the plaintiff, without prejudice to the rights and contentions of the plaintiff, has no objection to the application being allowed.\n18. Issues have not been framed in the suit as yet. The amendments sought are found to be necessary for determining the controversy in the suit.\n19. Allowed and disposed of.\nIA No.4797/2014 (of defendant u/O VIII R-3 CPC) 20. The additional documents sought to be filed are in support of the defence sought to be taken by way of amendment and are allowed.\n21. The application is disposed of.\nIA No.15018/2015 (of Mr. S. Gurumurthy u/O I R-10 CPC) 22. Ms. Sonali Negi, Advocate appears for the applicant and states that Mr.\nVishnu Sharma, Advocate for the applicant is not available and she does not know anything about the case.\n23. Dismissed for non-prosecution.\nCS(OS) No.153/2012 24. No amended written statement is stated to have been filed with the application for amendment which has been allowed as aforesaid.\n25. The same be filed on or before 7th February, 2018 with advance copy to the counsel for the plaintiff. If the amended written statement is not so filed, the right of the defendant to file amended written statement shall stand closed.\n26. Replication thereto, if any be filed within thirty days from the date of receipt of advance copy thereof.\n27. The parties to file affidavits of admission/denial of each other’s documents before the next date of hearing.\n28. The plaintiff is permitted to file additional documents along with its replication in response to the additional documents filed by the defendant.\n29. List for framing of issues, if any on 27th July, 2018.\n RAJIV SAHAI ENDLAW, J.\nJANUARY 31, 2018 ‘bs’ "
} |
{
"group": "Criminal"
} | [
{
"result": [
{
"from_name": null,
"id": "9b9a14ea25424ce7b8fc6b83e427fb64",
"to_name": null,
"type": null,
"value": {
"end": 119,
"labels": [
"PREAMBLE"
],
"start": 0,
"text": "IN THE COURT OF THE JUDICIAL MAGISTRATE FIRST CLASS-III,\n\n MYSORE\n\n "
}
},
{
"from_name": null,
"id": "589938fe157b45e4b2ddad3098ad4d3f",
"to_name": null,
"type": null,
"value": {
"end": 156,
"labels": [
"PREAMBLE"
],
"start": 119,
"text": "Dated this the 10th day of April 2008"
}
},
{
"from_name": null,
"id": "2665b49951e84cb2a88a13fdb033df5a",
"to_name": null,
"type": null,
"value": {
"end": 557,
"labels": [
"PREAMBLE"
],
"start": 158,
"text": "PRESENT : Smt. Vineetha P Shetty, B.Sc., LL.B.,\n\n III JMFC., Mysore.\n\n C.C. No.1021/2007\n\nComplainant: State by Nazarbad Police.\n\n (By Asst. Public Prosecutor.)\n Vs.\n\nAccused: 1. Ummar S/o Yasin Sab, 40\n years, No.6, `C' Block, Gowsiya\n Nagar, 9th Cross, Masjid Road,\n Mysore.\n\n 2."
}
},
{
"from_name": null,
"id": "ee07b746ce6242fd9f10358dcc2cbdcf",
"to_name": null,
"type": null,
"value": {
"end": 628,
"labels": [
"PREAMBLE"
],
"start": 558,
"text": "Althaf, S/o Abdul Ameed Khan,\n 33 years, behind Beedi"
}
},
{
"from_name": null,
"id": "0ec0526e90344cbf94e1f10c9530358b",
"to_name": null,
"type": null,
"value": {
"end": 697,
"labels": [
"PREAMBLE"
],
"start": 628,
"text": "\n Quarters, Gowsiya Nagar,\n Mysore."
}
},
{
"from_name": null,
"id": "09220b17749f44cca099540ce38551ac",
"to_name": null,
"type": null,
"value": {
"end": 808,
"labels": [
"PREAMBLE"
],
"start": 710,
"text": "3. Akram @ Syed Akram, S/o\n Syed Apeez, 28 years, Revenue\n Site,"
}
},
{
"from_name": null,
"id": "2390f0ce9ab5435396af68340e94070f",
"to_name": null,
"type": null,
"value": {
"end": 830,
"labels": [
"PREAMBLE"
],
"start": 809,
"text": "Gowsiya Nagar, Mysore"
}
},
{
"from_name": null,
"id": "b4ae16267e404d12814eadab899f74de",
"to_name": null,
"type": null,
"value": {
"end": 973,
"labels": [
"PREAMBLE"
],
"start": 843,
"text": "(By Sri C M Jagadeesh\n Advocate for A-1 and A-2 and\n A-3 is in J.C.)\n\n JUDGMENT"
}
},
{
"from_name": null,
"id": "74d8059623454fb3922d63a84ca295ca",
"to_name": null,
"type": null,
"value": {
"end": 984,
"labels": [
"FAC"
],
"start": 973,
"text": "\n Sub"
}
},
{
"from_name": null,
"id": "9ba8d737fba0445c8ca49c7665050460",
"to_name": null,
"type": null,
"value": {
"end": 1204,
"labels": [
"FAC"
],
"start": 984,
"text": "-Inspector of Police attached to Nazarbad Police Station has filed the charge-sheet against the accused no.1 to 3 for the offences punishable under section 86 Karnataka Forest Act read with section 379 Indian Penal Code."
}
},
{
"from_name": null,
"id": "4397147db2224a99b0eaa43faf82f09a",
"to_name": null,
"type": null,
"value": {
"end": 1587,
"labels": [
"FAC"
],
"start": 1206,
"text": "2. The case of prosecution in brief is that on 20/21.11.1999, in between 11.00 p.m. to 6.00 a.m., accused committed theft of sandal wood from the bungalow of CW2 Bagi B Menon situated on Lalithmahal Road within the jurisdiction of Nazarbad Police Station, and committed the offence punishable under section 86 of Karnataka Forest Act read with section 379 of Indian Penal Code.\n 3."
}
},
{
"from_name": null,
"id": "3007e676405b4954a49e21472744e03e",
"to_name": null,
"type": null,
"value": {
"end": 1643,
"labels": [
"FAC"
],
"start": 1588,
"text": "After submission of charge-sheet, cognizance was taken."
}
},
{
"from_name": null,
"id": "b92f369a300d462f9164eb5437dd957f",
"to_name": null,
"type": null,
"value": {
"end": 1678,
"labels": [
"FAC"
],
"start": 1643,
"text": "\n Accused no.1 and 2 are on bail."
}
},
{
"from_name": null,
"id": "c6a0873ec1574c3398195652ca93b9d3",
"to_name": null,
"type": null,
"value": {
"end": 1715,
"labels": [
"FAC"
],
"start": 1679,
"text": "Accused no.3 is in judicial custody."
}
},
{
"from_name": null,
"id": "ed9946a035344880a213fa007a41db41",
"to_name": null,
"type": null,
"value": {
"end": 1760,
"labels": [
"FAC"
],
"start": 1716,
"text": "They engaged the advocate for their defence."
}
},
{
"from_name": null,
"id": "ec12aa7a988c47e5b255cf9ce4bbdac8",
"to_name": null,
"type": null,
"value": {
"end": 1815,
"labels": [
"FAC"
],
"start": 1761,
"text": "The copies of the charge-sheet were furnished to them."
}
},
{
"from_name": null,
"id": "b37d3d9fdd554e2fb9f0628ca34a2b4d",
"to_name": null,
"type": null,
"value": {
"end": 1949,
"labels": [
"FAC"
],
"start": 1816,
"text": "Since the offences under Forest Act are triable by the Court of Sessions, this case was transferred to the Hon'ble Court of Sessions."
}
},
{
"from_name": null,
"id": "018ac0b80f6f45118cf2a1ea6e41aa37",
"to_name": null,
"type": null,
"value": {
"end": 2098,
"labels": [
"FAC"
],
"start": 1950,
"text": "The Hon'ble Fast Track Court-III, Mysore, vide order in S.C.No.265/2007 transferred this case to this Court for its disposal in accordance with law."
}
},
{
"from_name": null,
"id": "875091af963646fab302e47fceafbb33",
"to_name": null,
"type": null,
"value": {
"end": 2264,
"labels": [
"FAC"
],
"start": 2099,
"text": "Thereafter, after hearing both sides, charge for the above offence was framed, readover and explained, for which, accused pleaded not guilty and claimed to be tried."
}
},
{
"from_name": null,
"id": "bc22504b7dd644bebd77d45360749c53",
"to_name": null,
"type": null,
"value": {
"end": 2420,
"labels": [
"FAC"
],
"start": 2265,
"text": "On behalf of the prosecution, PWs 1 and 2 are examined and Exhibits P.1 to 9, Ex.P.1(a), Ex.P.6(a), Ex.P.7(a), Ex.P.8(a), Ex.P.9(a) and also MO1 is marked."
}
},
{
"from_name": null,
"id": "02f68bd90a024baeabaf174252876ce3",
"to_name": null,
"type": null,
"value": {
"end": 2428,
"labels": [
"FAC"
],
"start": 2421,
"text": "Accused"
}
},
{
"from_name": null,
"id": "6076ccaa575148d0b87f61244d7a8597",
"to_name": null,
"type": null,
"value": {
"end": 2484,
"labels": [
"FAC"
],
"start": 2429,
"text": "are examined under section 313 Criminal Procedure Code."
}
},
{
"from_name": null,
"id": "d51e04dd50934285a44288571d50cd48",
"to_name": null,
"type": null,
"value": {
"end": 2543,
"labels": [
"FAC"
],
"start": 2485,
"text": "They have denied the evidence which appeared against them."
}
},
{
"from_name": null,
"id": "656fdd53badd4302bc6096398199eeed",
"to_name": null,
"type": null,
"value": {
"end": 2643,
"labels": [
"FAC"
],
"start": 2544,
"text": "Heard the arguments addressed by the learned APP for the State and learned counsel for the accused."
}
},
{
"from_name": null,
"id": "83c4b40acd874f148d1b7f57ac829fd5",
"to_name": null,
"type": null,
"value": {
"end": 2696,
"labels": [
"ISSUE"
],
"start": 2643,
"text": "\n 4. The following points arise for determination: 1."
}
},
{
"from_name": null,
"id": "0f0bec9d9f74401c8b5adbccb68c4d16",
"to_name": null,
"type": null,
"value": {
"end": 2945,
"labels": [
"ISSUE"
],
"start": 2697,
"text": "Whether the prosecution proves that on 20/21.11.1999, in between 11.00 p.m. to 6.00 a.m., accused committed theft of sandal wood from the bungalow of CW2 Bagi B Menon, situated on Lalithmahal Road within the jurisdiction of Nazarbad Police Station?"
}
},
{
"from_name": null,
"id": "8fdad9c55e6547a6837c947d1800399a",
"to_name": null,
"type": null,
"value": {
"end": 2961,
"labels": [
"ISSUE"
],
"start": 2945,
"text": "\n 2. What order?"
}
},
{
"from_name": null,
"id": "86ee2e9615d1401a99e1ad57ada8dc07",
"to_name": null,
"type": null,
"value": {
"end": 3099,
"labels": [
"ANALYSIS"
],
"start": 2961,
"text": "\n 5. My findings on the above points are; Point No.1: In the Negative Point No.2: As per final order for the following; R E A S O N S 6."
}
},
{
"from_name": null,
"id": "5981dedb808a455287a430f187382887",
"to_name": null,
"type": null,
"value": {
"end": 3186,
"labels": [
"ANALYSIS"
],
"start": 3100,
"text": "Points No.1: The prosecution in order to prove its case has examined only 2 witnesses."
}
},
{
"from_name": null,
"id": "af8d363612c349f3aef4f7d834284bae",
"to_name": null,
"type": null,
"value": {
"end": 3276,
"labels": [
"ANALYSIS"
],
"start": 3187,
"text": "PW1 Ankaiah was working as the Sub-Inspector of Police, C.C.B. Wing at the relevant time."
}
},
{
"from_name": null,
"id": "8c9eeb31eed24bc59e7bab15e41ab54f",
"to_name": null,
"type": null,
"value": {
"end": 3719,
"labels": [
"ANALYSIS"
],
"start": 3276,
"text": "\n He has deposed that on 12.12.1999, he along with his staff Jayasheelan and Mahadeva were appointed for tracing the accused and property in Crime No.74/99 and accordingly, he along with his staff was on raid near Mandi Mohalla and Bamboo Bazaar, Mysore and when they reached near Handihall, Yadavagiri, accused who were present at the spot, on seeing the police tried to run away from the place and therefore, they caught hold of the accused."
}
},
{
"from_name": null,
"id": "3cedfbed1e9544a1b1da585191882daa",
"to_name": null,
"type": null,
"value": {
"end": 3817,
"labels": [
"ANALYSIS"
],
"start": 3720,
"text": "He found two pieces of seesaw, a chopper and a gunny-bag with them and seized the same from them."
}
},
{
"from_name": null,
"id": "38342992ff174324815aaaea786aba49",
"to_name": null,
"type": null,
"value": {
"end": 3959,
"labels": [
"ANALYSIS"
],
"start": 3818,
"text": "Thereafter, he brought the accused and seized properties to C.C.B. Office and submitted a report, true copy of which is marked as per Ex.P.2."
}
},
{
"from_name": null,
"id": "67b2de836fad44f7bcf2b6b83c375f49",
"to_name": null,
"type": null,
"value": {
"end": 4010,
"labels": [
"ANALYSIS"
],
"start": 3960,
"text": "The true copy of seizure mahazar is as per Ex.P.1."
}
},
{
"from_name": null,
"id": "40712798f71d4155b1a193b175d8c28f",
"to_name": null,
"type": null,
"value": {
"end": 4126,
"labels": [
"ANALYSIS"
],
"start": 4010,
"text": "\nIt is in his evidence that he recorded the voluntary statement of accusedno.1 to 3 as per Ex.P.3 to 5 respectively."
}
},
{
"from_name": null,
"id": "e90c2d4330c44bb586d851aca83da256",
"to_name": null,
"type": null,
"value": {
"end": 4488,
"labels": [
"ANALYSIS"
],
"start": 4127,
"text": "He has deposed that accused informed him that they have kept the sandal wood tree, sandal chips and billets in an old house situated Rajiv Nagara, and therefore, he went to the house situated at II Stage, 6th Cross, Rajiv Nagar and seized 9 sandal wood billets and sandal wood chips kept in a plastic bag in the presence of panchas namely Chand and Anwar Pasha."
}
},
{
"from_name": null,
"id": "6111fc15520d4281b90d2d1ba57d11c7",
"to_name": null,
"type": null,
"value": {
"end": 4652,
"labels": [
"ANALYSIS"
],
"start": 4489,
"text": "However, he has specifically stated that the sandal wood chips and 9 billets seized at the instance of voluntary statement of accused are not related to this case."
}
},
{
"from_name": null,
"id": "f37f6d151a3a42a9bcc6c02eadc9053c",
"to_name": null,
"type": null,
"value": {
"end": 4759,
"labels": [
"ANALYSIS"
],
"start": 4653,
"text": "The relevant portion in his evidence reads \" UAzsz ZP v 9 vAqU F PgtP AAgĪŢ\".\n 7. During cross-examination"
}
},
{
"from_name": null,
"id": "cc7842f0c7f8421590710636efa2fcd9",
"to_name": null,
"type": null,
"value": {
"end": 4972,
"labels": [
"ANALYSIS"
],
"start": 4759,
"text": ", suggestion was posed to him that accused were brought from their house and false case has been lodged against them and no sandalwood tree, sandal chips and sandal billets whatsoever were seized from the accused."
}
},
{
"from_name": null,
"id": "d2231c12b848444aad9842ca84a56359",
"to_name": null,
"type": null,
"value": {
"end": 5163,
"labels": [
"ANALYSIS"
],
"start": 4973,
"text": "PW1 has admitted that he has nor made any mark on the properties seized and that he has not obtained the signatures of the panchas on a slip required to be pasted upon the properties seized."
}
},
{
"from_name": null,
"id": "bd0c8375e18e4960aaff162b4124b0df",
"to_name": null,
"type": null,
"value": {
"end": 5268,
"labels": [
"ANALYSIS"
],
"start": 5165,
"text": "8. PW2 Kunjappa is the Sub-Inspector of Police working at Nazarbad Police Station at the relevant time."
}
},
{
"from_name": null,
"id": "ea9f8320d35d41f3a9d1b7bf66907450",
"to_name": null,
"type": null,
"value": {
"end": 5467,
"labels": [
"ANALYSIS"
],
"start": 5269,
"text": "He deposed that on 22.11.1999, at 4.05 p.m., he received the complaint as per Ex.P.6 from one Puttaraju and registered the case and submitted first information report to the Court as per Ex.P.7.\n "
}
},
{
"from_name": null,
"id": "2b21d50998b040fe821c1bc5e45f619d",
"to_name": null,
"type": null,
"value": {
"end": 5523,
"labels": [
"ANALYSIS"
],
"start": 5467,
"text": "Thereafter, he conducted the spot mahazar as per Ex.P.8."
}
},
{
"from_name": null,
"id": "5282351a57d74b26a873892c7218b350",
"to_name": null,
"type": null,
"value": {
"end": 5713,
"labels": [
"ANALYSIS"
],
"start": 5524,
"text": "It is in his evidence that at the time of spot mahazar, it was found that the sandal wood tree measuring 52\" x12\" was cut and the said tree was situated behind the house of one Bagin Menon."
}
},
{
"from_name": null,
"id": "e96fecd912e6482f930aa082e762bed7",
"to_name": null,
"type": null,
"value": {
"end": 5814,
"labels": [
"ANALYSIS"
],
"start": 5714,
"text": "He deposed that he cut the tree into two pieces with the help of coolie workers and seized the same."
}
},
{
"from_name": null,
"id": "42c5b9992be84a10a056e2a0561d3dbe",
"to_name": null,
"type": null,
"value": {
"end": 5870,
"labels": [
"ANALYSIS"
],
"start": 5815,
"text": "He identified the two pieces of sandal wood as per MO1."
}
},
{
"from_name": null,
"id": "b8a966125baf4625bcf86e3dea937f8f",
"to_name": null,
"type": null,
"value": {
"end": 5952,
"labels": [
"ANALYSIS"
],
"start": 5871,
"text": "He has deposed that complainant and one Ramu signed the spot cum seizure mahazar."
}
},
{
"from_name": null,
"id": "db4d5e83b9f6423f85636fd116f74b4c",
"to_name": null,
"type": null,
"value": {
"end": 6044,
"labels": [
"ANALYSIS"
],
"start": 5953,
"text": "He sent the sandal wood to the Conservator of Forest and received the report as per Ex.P.9."
}
},
{
"from_name": null,
"id": "cb8f6466088e4572887623d7654c9a4b",
"to_name": null,
"type": null,
"value": {
"end": 6126,
"labels": [
"ANALYSIS"
],
"start": 6045,
"text": "He filed the charge-sheet after completion of investigation by the C.C.B.\npolice."
}
},
{
"from_name": null,
"id": "d761711c82af446f8943ee1a031b33ac",
"to_name": null,
"type": null,
"value": {
"end": 6234,
"labels": [
"ANALYSIS"
],
"start": 6127,
"text": "Suggestion posed to him that spot cum seizure mahazar was prepared in the Police Station was denied by him."
}
},
{
"from_name": null,
"id": "e04cd982bc9b46308ed97d3a392abee8",
"to_name": null,
"type": null,
"value": {
"end": 6363,
"labels": [
"ANALYSIS"
],
"start": 6236,
"text": "9. Inspite of issuance of repeated warrants, prosecution has not secured the presence of remaining witnesses to prove its case."
}
},
{
"from_name": null,
"id": "3034d58a28944384be0648ec8518143f",
"to_name": null,
"type": null,
"value": {
"end": 6506,
"labels": [
"ANALYSIS"
],
"start": 6364,
"text": "On appreciation of entire evidence on record, it is seen that seizure of MO1 at the instance of accused is not proved beyond reasonable doubt."
}
},
{
"from_name": null,
"id": "3f94f10c0fee490e984704934963964a",
"to_name": null,
"type": null,
"value": {
"end": 6577,
"labels": [
"ANALYSIS"
],
"start": 6507,
"text": "PW1 has not stated anything about MO1 though PW2 has spoken about MO1."
}
},
{
"from_name": null,
"id": "67b202c7405c49c4ba828a870b39ced2",
"to_name": null,
"type": null,
"value": {
"end": 6729,
"labels": [
"ANALYSIS"
],
"start": 6578,
"text": "Evidence of PW2 would clearly show that he seized MO1 from the spot at the time of spot cum seizure mahazar and not from the possession of the accused."
}
},
{
"from_name": null,
"id": "d27fef9380244977abc6ddaa88a113c1",
"to_name": null,
"type": null,
"value": {
"end": 6822,
"labels": [
"ANALYSIS"
],
"start": 6730,
"text": "Absolutely, there is no evidence to show that MO1 was seized at the instance of the accused."
}
},
{
"from_name": null,
"id": "02213215735f41779b2149f522101df5",
"to_name": null,
"type": null,
"value": {
"end": 6923,
"labels": [
"RATIO"
],
"start": 6826,
"text": "As such, there is no connection whatsoever with the property seized in this case and the accused."
}
},
{
"from_name": null,
"id": "f33935126db0443cb439cc6b1543f49b",
"to_name": null,
"type": null,
"value": {
"end": 7015,
"labels": [
"RATIO"
],
"start": 6924,
"text": "Non- examination of spot cum seizure mahazar witnesses is fatal to the case of prosecution."
}
},
{
"from_name": null,
"id": "2943c4ec14b84f1ab549a4a304e40480",
"to_name": null,
"type": null,
"value": {
"end": 7124,
"labels": [
"RATIO"
],
"start": 7016,
"text": "The evidence placed by the prosecution is not sufficient to hold the accused guilty of the alleged offences."
}
},
{
"from_name": null,
"id": "49a303383c454abbbf81c90191a9d7e4",
"to_name": null,
"type": null,
"value": {
"end": 7398,
"labels": [
"RPC"
],
"start": 7126,
"text": "10. In the circumstances and for the reasons stated above, I hold that the prosecution has failed to bring home the guilt of accused no.1 to 3 beyond reasonable doubt for the offence punishable under section 86 Karnataka Forest Act read with section 379 Indian Penal Code."
}
},
{
"from_name": null,
"id": "10e7337b0b214997be45be9501d20dcc",
"to_name": null,
"type": null,
"value": {
"end": 7446,
"labels": [
"RPC"
],
"start": 7399,
"text": "Therefore, I answer point no.1 in the negative."
}
},
{
"from_name": null,
"id": "dac13883c5474bdf8a03b8cb9eb89115",
"to_name": null,
"type": null,
"value": {
"end": 7462,
"labels": [
"RPC"
],
"start": 7446,
"text": "\n 11. Point No.2"
}
},
{
"from_name": null,
"id": "d79217a750e9427c93c004ec2c38048b",
"to_name": null,
"type": null,
"value": {
"end": 7722,
"labels": [
"RPC"
],
"start": 7463,
"text": ": In the result, I proceed to pass the following; O R D E R Under section 248(1) Criminal Procedure Code, accused 1 to 3 are acquitted of the offence punishable under section 86 Karnataka Forest Act read with section 379 Indian Penal Code.\n "
}
},
{
"from_name": null,
"id": "5c8625ea25e849758c371b61e0e0882d",
"to_name": null,
"type": null,
"value": {
"end": 7777,
"labels": [
"RPC"
],
"start": 7722,
"text": "Bail bond of accused no.1 and 2 shall stand discharged."
}
},
{
"from_name": null,
"id": "9e13acab41d14967b3f7329b9b1b8c6e",
"to_name": null,
"type": null,
"value": {
"end": 7899,
"labels": [
"RPC"
],
"start": 7777,
"text": "\n Accusedno.3 shall be set at liberty forthwith, if he is not required to be produced in any other case."
}
},
{
"from_name": null,
"id": "0075361b85e44f8eab2511deda72e256",
"to_name": null,
"type": null,
"value": {
"end": 8001,
"labels": [
"RPC"
],
"start": 7899,
"text": "\n MO1 is ordered to be returned to the Forest Officer attached to Government Sandal Wood Koti, Mysore."
}
},
{
"from_name": null,
"id": "e138e7d086ed43e38950f06e40d91704",
"to_name": null,
"type": null,
"value": {
"end": 8107,
"labels": [
"RPC"
],
"start": 8002,
"text": "However, the order regarding disposal of MO1 shall be given in to effect after the appeal period is over."
}
},
{
"from_name": null,
"id": "a0552af56af843228e2e11d529be7b2e",
"to_name": null,
"type": null,
"value": {
"end": 8225,
"labels": [
"NONE"
],
"start": 8108,
"text": "(Dictated to the Stenographer typed script corrected and the same is pronounced by me in the open Court on 10.4.2008)"
}
},
{
"from_name": null,
"id": "767f45d8c3fa4680868e49fae145ff9f",
"to_name": null,
"type": null,
"value": {
"end": 8265,
"labels": [
"NONE"
],
"start": 8226,
"text": "(VINEETHA P SHETTY), III JMFC., Mysore."
}
},
{
"from_name": null,
"id": "3a3206df88d74c159d4a42c666291657",
"to_name": null,
"type": null,
"value": {
"end": 8275,
"labels": [
"NONE"
],
"start": 8267,
"text": "ANNEXURE"
}
},
{
"from_name": null,
"id": "8f5f90bcd60d411d9c083ba2948b413d",
"to_name": null,
"type": null,
"value": {
"end": 8881,
"labels": [
"NONE"
],
"start": 8276,
"text": "Witnesses examined for the prosecution: PW1 : Ankaia PW2 : Kunjappa Documents marked for the prosecution: Ex.P1 : Mahazar copy Ex.P.1(a): Signature of PW1 Ex.P2 : Report Ex.P3 : Voluntary statement of the accused Ex.P.4 : Voluntary statement of the accused Ex.P.5 : Voluntary statement of the accused Ex.P.6 : Complaint Ex.P.6(a): Signature of PW2 Ex.P.7 : First Information Report Ex.P.7(a): Signature of PW2 Ex.P.8 : Seizure mahazar Ex.P.8(a): Signature of PW2 Ex.P.9: Report Ex.P.9(a): Signature of PW2 List of Material Objects marked: MO 1 : 2 Sandal wood pieces (VINEETHA P SHETTY), III JMFC., Mysore"
}
}
]
}
] | 4,120 | {
"text": "IN THE COURT OF THE JUDICIAL MAGISTRATE FIRST CLASS-III,\n\n MYSORE\n\n Dated this the 10th day of April 2008\n\nPRESENT : Smt. Vineetha P Shetty, B.Sc., LL.B.,\n\n III JMFC., Mysore.\n\n C.C. No.1021/2007\n\nComplainant: State by Nazarbad Police.\n\n (By Asst. Public Prosecutor.)\n Vs.\n\nAccused: 1. Ummar S/o Yasin Sab, 40\n years, No.6, `C' Block, Gowsiya\n Nagar, 9th Cross, Masjid Road,\n Mysore.\n\n 2. Althaf, S/o Abdul Ameed Khan,\n 33 years, behind Beedi\n Quarters, Gowsiya Nagar,\n Mysore.\n\n 3. Akram @ Syed Akram, S/o\n Syed Apeez, 28 years, Revenue\n Site, Gowsiya Nagar, Mysore\n\n (By Sri C M Jagadeesh\n Advocate for A-1 and A-2 and\n A-3 is in J.C.)\n\n JUDGMENT\n Sub-Inspector of Police attached to Nazarbad Police Station has filed the charge-sheet against the accused no.1 to 3 for the offences punishable under section 86 Karnataka Forest Act read with section 379 Indian Penal Code.\n 2. The case of prosecution in brief is that on 20/21.11.1999, in between 11.00 p.m. to 6.00 a.m., accused committed theft of sandal wood from the bungalow of CW2 Bagi B Menon situated on Lalithmahal Road within the jurisdiction of Nazarbad Police Station, and committed the offence punishable under section 86 of Karnataka Forest Act read with section 379 of Indian Penal Code.\n 3. After submission of charge-sheet, cognizance was taken.\n Accused no.1 and 2 are on bail. Accused no.3 is in judicial custody. They engaged the advocate for their defence. The copies of the charge-sheet were furnished to them. Since the offences under Forest Act are triable by the Court of Sessions, this case was transferred to the Hon'ble Court of Sessions. The Hon'ble Fast Track Court-III, Mysore, vide order in S.C.No.265/2007 transferred this case to this Court for its disposal in accordance with law. Thereafter, after hearing both sides, charge for the above offence was framed, readover and explained, for which, accused pleaded not guilty and claimed to be tried. On behalf of the prosecution, PWs 1 and 2 are examined and Exhibits P.1 to 9, Ex.P.1(a), Ex.P.6(a), Ex.P.7(a), Ex.P.8(a), Ex.P.9(a) and also MO1 is marked. Accused are examined under section 313 Criminal Procedure Code. They have denied the evidence which appeared against them. Heard the arguments addressed by the learned APP for the State and learned counsel for the accused.\n 4. The following points arise for determination: 1. Whether the prosecution proves that on 20/21.11.1999, in between 11.00 p.m. to 6.00 a.m., accused committed theft of sandal wood from the bungalow of CW2 Bagi B Menon, situated on Lalithmahal Road within the jurisdiction of Nazarbad Police Station?\n 2. What order?\n 5. My findings on the above points are; Point No.1: In the Negative Point No.2: As per final order for the following; R E A S O N S 6. Points No.1: The prosecution in order to prove its case has examined only 2 witnesses. PW1 Ankaiah was working as the Sub-Inspector of Police, C.C.B. Wing at the relevant time.\n He has deposed that on 12.12.1999, he along with his staff Jayasheelan and Mahadeva were appointed for tracing the accused and property in Crime No.74/99 and accordingly, he along with his staff was on raid near Mandi Mohalla and Bamboo Bazaar, Mysore and when they reached near Handihall, Yadavagiri, accused who were present at the spot, on seeing the police tried to run away from the place and therefore, they caught hold of the accused. He found two pieces of seesaw, a chopper and a gunny-bag with them and seized the same from them. Thereafter, he brought the accused and seized properties to C.C.B. Office and submitted a report, true copy of which is marked as per Ex.P.2. The true copy of seizure mahazar is as per Ex.P.1.\nIt is in his evidence that he recorded the voluntary statement of accusedno.1 to 3 as per Ex.P.3 to 5 respectively. He has deposed that accused informed him that they have kept the sandal wood tree, sandal chips and billets in an old house situated Rajiv Nagara, and therefore, he went to the house situated at II Stage, 6th Cross, Rajiv Nagar and seized 9 sandal wood billets and sandal wood chips kept in a plastic bag in the presence of panchas namely Chand and Anwar Pasha. However, he has specifically stated that the sandal wood chips and 9 billets seized at the instance of voluntary statement of accused are not related to this case. The relevant portion in his evidence reads \" UAzsz ZP v 9 vAqU F PgtP AAgĪŢ\".\n 7. During cross-examination, suggestion was posed to him that accused were brought from their house and false case has been lodged against them and no sandalwood tree, sandal chips and sandal billets whatsoever were seized from the accused. PW1 has admitted that he has nor made any mark on the properties seized and that he has not obtained the signatures of the panchas on a slip required to be pasted upon the properties seized.\n 8. PW2 Kunjappa is the Sub-Inspector of Police working at Nazarbad Police Station at the relevant time. He deposed that on 22.11.1999, at 4.05 p.m., he received the complaint as per Ex.P.6 from one Puttaraju and registered the case and submitted first information report to the Court as per Ex.P.7.\n Thereafter, he conducted the spot mahazar as per Ex.P.8. It is in his evidence that at the time of spot mahazar, it was found that the sandal wood tree measuring 52\" x12\" was cut and the said tree was situated behind the house of one Bagin Menon. He deposed that he cut the tree into two pieces with the help of coolie workers and seized the same. He identified the two pieces of sandal wood as per MO1. He has deposed that complainant and one Ramu signed the spot cum seizure mahazar. He sent the sandal wood to the Conservator of Forest and received the report as per Ex.P.9. He filed the charge-sheet after completion of investigation by the C.C.B.\npolice. Suggestion posed to him that spot cum seizure mahazar was prepared in the Police Station was denied by him.\n 9. Inspite of issuance of repeated warrants, prosecution has not secured the presence of remaining witnesses to prove its case. On appreciation of entire evidence on record, it is seen that seizure of MO1 at the instance of accused is not proved beyond reasonable doubt. PW1 has not stated anything about MO1 though PW2 has spoken about MO1. Evidence of PW2 would clearly show that he seized MO1 from the spot at the time of spot cum seizure mahazar and not from the possession of the accused. Absolutely, there is no evidence to show that MO1 was seized at the instance of the accused.\n As such, there is no connection whatsoever with the property seized in this case and the accused. Non- examination of spot cum seizure mahazar witnesses is fatal to the case of prosecution. The evidence placed by the prosecution is not sufficient to hold the accused guilty of the alleged offences.\n 10. In the circumstances and for the reasons stated above, I hold that the prosecution has failed to bring home the guilt of accused no.1 to 3 beyond reasonable doubt for the offence punishable under section 86 Karnataka Forest Act read with section 379 Indian Penal Code. Therefore, I answer point no.1 in the negative.\n 11. Point No.2 : In the result, I proceed to pass the following; O R D E R Under section 248(1) Criminal Procedure Code, accused 1 to 3 are acquitted of the offence punishable under section 86 Karnataka Forest Act read with section 379 Indian Penal Code.\n Bail bond of accused no.1 and 2 shall stand discharged.\n Accusedno.3 shall be set at liberty forthwith, if he is not required to be produced in any other case.\n MO1 is ordered to be returned to the Forest Officer attached to Government Sandal Wood Koti, Mysore. However, the order regarding disposal of MO1 shall be given in to effect after the appeal period is over.\n(Dictated to the Stenographer typed script corrected and the same is pronounced by me in the open Court on 10.4.2008) (VINEETHA P SHETTY), III JMFC., Mysore.\n ANNEXURE Witnesses examined for the prosecution: PW1 : Ankaia PW2 : Kunjappa Documents marked for the prosecution: Ex.P1 : Mahazar copy Ex.P.1(a): Signature of PW1 Ex.P2 : Report Ex.P3 : Voluntary statement of the accused Ex.P.4 : Voluntary statement of the accused Ex.P.5 : Voluntary statement of the accused Ex.P.6 : Complaint Ex.P.6(a): Signature of PW2 Ex.P.7 : First Information Report Ex.P.7(a): Signature of PW2 Ex.P.8 : Seizure mahazar Ex.P.8(a): Signature of PW2 Ex.P.9: Report Ex.P.9(a): Signature of PW2 List of Material Objects marked: MO 1 : 2 Sandal wood pieces (VINEETHA P SHETTY), III JMFC., Mysore "
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"text": "A unit of Petitioner No.1,\n HUB, G.S. Road, Bhangagarh,"
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"text": ". ……Respondents.\n\n\n\n VIII"
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"text": ". WP(C) No.4479/2014\n M"
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"text": "/s PVR. Ltd.,"
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"text": "61, Basant Lok,\n "
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"text": "Vasant Vihar,\n "
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"text": "New Delhi-110057. …"
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"text": "\n\n BEFORE\n THE HON’BLE MR. JUSTICE HRISHIKESH ROY\n THE HON’BLE"
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"text": "MR. JUSTICE PARAN KUMAR PHUKAN"
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"text": "Advocate(s) for the Petitioner : Dr. Ashok Saraf …Sr. Adv.,\n Mr. P. Baruah,\n Mr. Z. Islam.\n\n Advocate(s) for the Respondents : "
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"text": "Mr. D. Saikia, Addl. A.G., Assam,\n "
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"text": "Mr. B. Choudhury, SC, Finance & Taxation."
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"text": "Date of Hearing : 19.7.2016, 21.7.2016, 22.7.2016, 9.8.2016\n "
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"text": "Date of Judgment :"
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"text": "30th August, 2016"
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"text": "Date of Judgment correction "
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"text": ": 02.09.2016"
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"text": "JUDGMENT AND ORDER"
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"text": "[Hrishikesh Roy, J.] Heard Dr. A. Saraf, learned Senior Counsel appearing for the petitioners in all the cases."
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"text": "Also heard Mr. D. Saikia, the learned Addl. Advocate General representing the respondents."
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"text": "2. "
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"text": "The petitioners operate multiplex/mini cinema halls and the issue here is their liability towards entertainment tax for the relevant period, under the Assam Amusement and Betting Tax Act, 1939 (hereinafter referred to as „the Assam Act‟)."
}
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"text": "The concerned entities, hereinafter referred to as “the Exhibitors” commenced commercial operation in Assam between 1.4.2007—1.2.2008 and therefore, by virtue of the Govt. Notification dated 29.3.2008 (Annexure-I), the exhibitors seek exemption from the liability to payment of tax, for a period of five years."
}
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"text": "The exemption notification was issued under Sub-Section (2) of Section 8 of the Assam Act."
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"text": "The petitioners in this batch of litigations can be divided in two groups."
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"text": "The first is the M/s. PVR Ltd. who have filed the WP(C) No.4477/2014, WP(C) No.4480/2014 and WP(C) No.4479/2014 and they claim that they have not collected the tax, whereas the 2nd group of M/s. Mridul Properties (P) Ltd., in the other five cases, have admittedly recovered the entertainment tax, from the movie-goers."
}
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"text": "\n 3. The cases have common facts and hence for the sake of convenience, the narratives in this order are extracted from the WP(C) No.4477/2014, filed by the M/s. PVR Ltd.\n "
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"text": "BACKGROUND FACTS 4. "
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"text": "Through the notice dated 12.9.2012 (Annexure-IV), the Superintendent of Taxes alleged that the Exhibitors were unauthorisedly collecting tax from the movie-goers and accordingly demand was made for deposit of the collected amount or else, tax would be assessed under the Assam Act."
}
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"text": "In their response, the first group contended that entertainment tax was not collected and accordingly they requested for recall of the tax demand notice."
}
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"text": "\n 5. "
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"end": 7714,
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"start": 7363,
"text": "Dissatisfied with the reply, a show cause notice for assessment under Section 5-A(2) of the Assam Act was issued on 13.12.2012 (Annexure-X), where it was alleged that tax is being illegally collected from the movie-goers, in spite of the exemption notification dated 29.3.2008 (Annexure-I), issued under Sub- Section (2) of Section 8 of the Assam Act."
}
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"end": 7895,
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],
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"text": "According to the notice, the claim of not charging entertainment tax made by the exhibitor is not believable, as the tickets issued for certain films, reflects the charging of tax."
}
},
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"value": {
"end": 7973,
"labels": [
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],
"start": 7896,
"text": "Hence, tax was proposed to be assessed under Section 5-A(2) of the Assam Act."
}
},
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"end": 8190,
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],
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"text": "\n 6. In response to the show cause notice, the exhibitor reiterated that they have not collected any amount towards entertainment tax and they offered to submit their Books-of-Account to support their contention."
}
},
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"end": 8351,
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],
"start": 8191,
"text": "However through the assessment order dated 1.3.2013, the tax was assessed on the basis of the total turnover and interest was also added to the assessed amount."
}
},
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"text": "7. "
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"value": {
"end": 8562,
"labels": [
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"start": 8361,
"text": "Being aggrieved, the exhibitors challenged the assessment through the WP(C) No.2343/2013 and this case was disposed of by the Division Bench on 6.5.2013, by relegating the party to the statutory forum."
}
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"start": 8563,
"text": "Thereafter the appellate authority after considering the rival submission through the impugned order dated 28.7.2014 (Annexure-XXI), opined that when the tax is collected, the same should be deposited in the Govt. exchequer or else, it will amount to unjust enrichment."
}
},
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"value": {
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],
"start": 8833,
"text": "It was also concluded that objective of exemption by the Government was to provide relief to the movie-goers and it is impermissible for the exhibitor to retain the collected tax as this would be contrary to the judgment of the Apex Court in the State of Maharashtra vs. Swanstone Multiplex Cinema Private Ltd. reported in (2009) 8 SCC 235."
}
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"end": 9388,
"labels": [
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],
"start": 9174,
"text": "On the basis of such conclusion, the Appeal was dismissed on 28.7.2014 (Annexure-XXI), by the appellate authority and consequential direction was issued to realize the assessed tax and interest, from the exhibitor."
}
},
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"text": "8. "
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"value": {
"end": 9428,
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"text": "The other group under the M/s."
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"text": "Mridul"
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"text": "Properties"
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"text": "(P) Ltd."
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"text": "admits that entertainment tax was collected on the entry tickets but denied their corresponding obligation to deposit the collected sum on account of the exemption notification."
}
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"text": "Confronted with similar assessment and demand like the first group, the aggrieved exhibitors filed Revision Petition(s) against the assessment order passed by the Superintendent of Taxes."
}
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"text": "But since those were rejected by the common order dated 20.5.2014 (Annexure-XXII), the first group having realized the futility of revision, have decided to challenge the order in the High Court."
}
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"text": "\n SUBMISSION OF PETITIONERS 9. "
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"text": "Dr. A. Saraf, learned Senior Counsel submits that tax is to be charged, levied and paid to the Government under Section 3 of the Assam Act."
}
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"text": "Here incentive to set up multiplex/mini cinema halls was provided by the Government by exempting the liability to payment of entertainment tax to those, who set up their projects in Assam during 1.4.2007—1.2.2008."
}
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"text": "Accordingly it is argued that such incentive to the multiplex/mini cinema halls is intended to encourage business activities and since they are exempted from the tax liability, there can be no assessment for the exhibitors to tax, under Section 5-A of the Assam Act.\n 10. The petitioners refer to the fact that the exemption notice was issued under Sub-Section (2) of Section 8 of the Assam Act and therefore it is contended that there is no absolvement from charging tax but what is exempted is the liability from payment of entertainment tax and therefore it is argued that demand for tax from the exhibitors (whether realized or otherwise) is unauthorized, in the face of the exemption notification.\n 11. "
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"text": "The senior counsel distinguishes the Swanstone Multiplex Cinema Private Ltd. (Supra) by submitting that present facts are different in as much as, in the case before the Supreme Court, the levy of entertainment tax was exempted and only incentives by way of zero or reduced rate of tax was provided under the policy, adopted by the Maharashtra Government."
}
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"text": "But here in Assam unlike the Maharashtra scenario, the beneficiary was exempted from payment liability towards the State exchequer."
}
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"text": "Therefore Dr. Saraf argues that it is not a case of unjust enrichment, since the charging of tax was not exempted by the Notification dated 29.3.2008 (Annexure-I)."
}
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],
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"text": "Hence the Assam situation is nothing but a business incentive for five years, for the new entrepreneurs in the field and retention of the collected sum is not unjust enrichment since this was permitted by the Govt.\n 12. "
}
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"start": 11999,
"text": "The petitioners contend that assuming that assessment is permissible, for the petitioner M/s. PVR Ltd. (who did not realize the tax), the assessment can never be on the total turnover."
}
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],
"start": 12184,
"text": "But if there is any undue collection which can‟t be retained by the exhibitors, recovery would be permissible only through searching enquiry of each and every transaction and not through hypothetical conclusion, based upon the business turnover of the exhibitor."
}
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"text": "\n 13. Alternately Dr. A. Saraf argues that if charging of tax is exempted, then the amount collected by the second group can never be assessed as tax and then the recovery through assessment, is contended to be impermissible.\n 14. "
}
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{
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"text": "The substantial contention of the petitioners is that if the exhibitor is exempted from liability to payment of entertainment tax, retention can‟t be construed as unjust enrichment since it is nothing but an incentive for investment in the fresh field of multiplex and mini cinema halls, in Assam."
}
},
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"text": "SUBMISSION OF RESPONDENTS 15."
}
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"text": " On the other hand, Mr. D. Saikia, the learned Addl. Advocate General submits that the exemption notification was issued to encourage the cine-goers and not intended to benefit the cinema exhibitors and accordingly it is argued that the retention of the collected amount by the exhibitors is impermissible and the collected money has to be deposited in the state exchequer."
}
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"text": "\n 16. The respondents argue that tax is to be collected for entertainment of the movie-goers and the role of the exhibitors is only to collect the tax on behalf of the state."
}
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"text": "But when the tax is exempted under Section 8 of the Assam Act, the movie-goers are to be absolved and if any such tax is collected, the retention thereof in the hand of the exhibitors, will certainly be unjust enrichment."
}
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"text": "\n 17. The learned counsel for the Revenue submits that the benefit envisaged under Section 8 is for the movie-goers and the exhibitors are not the targeted beneficiary."
}
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"start": 13963,
"text": "In support Mr. Saikia refers to the manner of granting exemption, under the Assam Amusement and Betting Tax Rules, 1939 (hereinafter referred to as „the Rules‟)."
}
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"start": 14125,
"text": "Under Rule 2(4) read with Rule 12, every Exhibitor is required to keep at the place of entertainment, the register books of tickets and also registers of payments for admission and the records of stamps denoting the entertainment tax purchased and used in prescribed formats."
}
},
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"text": "He refers to Form No.V, prescribed under Rule 20 which certifies tax exemption."
}
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"start": 14481,
"text": "The exhibitor is obliged to prominently display this certificate at the entry gate, so that the movie-goers are made aware that tax is not being collected for the show in question."
}
},
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"text": "From these provisions of the Rules, it is argued by Mr. Saikia that the benefit of exemption is not envisaged for the exhibitors but for the movie-goers."
}
},
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"start": 14815,
"text": "\n 18. The learned Addl. Advocate General refers to Section 72 of the Indian Contract Act, 1872 to argue that the exhibitors have the legal obligation to refund the mistakenly collected tax."
}
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"text": "\n 19. The respondents argue that by virtue of the exemption, the collection of tax from the movie-goer does not arise for the relevant period and therefore if any sum is collected by the exhibitors, the same is an unjust collection."
}
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"end": 15654,
"labels": [
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],
"start": 15245,
"text": "Mr. Saikia cites Jay Vee Rice & General Mills vs. State of Haryana, reported in (2010) 10 SCC 687, to argue that when tax is unjustly collected, retention thereof by the agent is impermissible and the collected amount should either go back to the person from whom it was collected or it is to be surrendered to the state exchequer, as otherwise the retention by the exhibitor will amount to unjust enrichment."
}
},
{
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"start": 15654,
"text": "\n 20. The respondents rely upon the State of Karnataka vs. Drive-in Enterprises reported in (2001) 4 SCC 60, to contend that the levy is on the person who is entertained and therefore exemption should benefit of the person who is entertained."
}
},
{
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],
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"text": "It is thus argued that the retention of the illegally collected entertainment tax in the hand of the exhibitor would be legally impermissible."
}
},
{
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"labels": [
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],
"start": 16043,
"text": "\n 21. Referring to fundamental principles of interpretation of taxing statute or exemption notification, Mr. Saikia reads Oil & Natural Gas Corporation Ltd. vs.\n Commissioner of Income Tax reported in (2015) 10 SCC 621, to contend that literal rule of interpretation must be followed without distorting the language and common sense approach in interpretation of the exemption notification can have no role.\n 22. To explain the role of the exhibitor, Mr. Saikia reads P. Sankara Narayanan vs. State of Tamil Nadu reported in MANU/TN/8821/2007, to contend that the exhibitors are only collecting agent of the tax on behalf of the state."
}
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"end": 16952,
"labels": [
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],
"start": 16696,
"text": "\n Therefore when the tax is borne by the movie-goers and if the collection is held to be unauthorised, the retention/refund can be only to the person from whom the tax is realized but not to the exhibitors, who acts as agent on behalf of the state."
}
},
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"end": 17178,
"labels": [
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"start": 16952,
"text": "\n 23. Mr. Saikia refers to the Govt. Notification dated 30.3.2007, to contend that whenever tax is exempted under some incentive policy, the exemption notification lays down the manner and mode of disbursal of incentives."
}
},
{
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"end": 17353,
"labels": [
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],
"start": 17179,
"text": "But here it was never indicated that the exhibitors are entitled to retain the collected tax and therefore it is argued that retention of the collected sum, can‟t be allowed."
}
},
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"labels": [
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],
"start": 17353,
"text": "\n 24. The respondents‟ lawyer refers to the assessment proceedings to contend that the exhibitors were given opportunities to produce the ticket counter-foils and also the other documents mentioned in the Rules but they failed to produce them, despite due opportunities."
}
},
{
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"value": {
"end": 17782,
"labels": [
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],
"start": 17629,
"text": "Therefore it is argued that the authorities had rightly made assessment on the basis of best judgment, as provided under Section 5-A(2) of the Assam Act."
}
},
{
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"end": 17819,
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],
"start": 17784,
"text": "DISCUSSION AND CONCLUSION 25. "
}
},
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"text": "The submission made by the rival Counsel have received our earnest consideration."
}
},
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"end": 18073,
"labels": [
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],
"start": 17900,
"text": "\n 26. We find that the charging section of the Assam Act refers to charge, levy and payment of entertainment tax and the taxable event is on admission to entertainment."
}
},
{
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"id": "2f91a1fc0f444ad69309a7a729d9a9e9",
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"end": 18176,
"labels": [
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],
"start": 18074,
"text": "Under sub-section (6) of Section 3, the proprietor of the entertainment is made liable to pay the tax."
}
},
{
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"value": {
"end": 18270,
"labels": [
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],
"start": 18177,
"text": "Three stages for imposition of tax was culled out by the Apex Court in Chatturam Holiram Ltd."
}
},
{
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"end": 18349,
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"start": 18271,
"text": "Vs. CIT reported in AIR 1955 SC 619 and the stages are mentioned as under :- “"
}
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"id": "438b43361b7e4635b7072ffd1a781ada",
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"value": {
"end": 18489,
"labels": [
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],
"start": 18349,
"text": "There is the declaration of liability, that is the part of the statute which determines what persons in respect of what property are liable."
}
},
{
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"id": "f2deb7cd23114aa9811134370cf74f9a",
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"value": {
"end": 18520,
"labels": [
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],
"start": 18490,
"text": "Next, there is the assessment."
}
},
{
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"id": "35f013cd4c44457aa491f569be45eedc",
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"value": {
"end": 18561,
"labels": [
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],
"start": 18521,
"text": "Liability does not depend on assessment."
}
},
{
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"id": "4ef9f68c9e8540f584697b432ba30d96",
"to_name": "text",
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"value": {
"end": 18605,
"labels": [
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],
"start": 18562,
"text": "That, ex hypothesi, has already been fixed."
}
},
{
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"id": "9d70957d728548bea57746a3fbbacd35",
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"value": {
"end": 18683,
"labels": [
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],
"start": 18606,
"text": "But assessment particularizes the exact sum which a person liable has to pay."
}
},
{
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"id": "d5966101141c42b4bd4d5530247451c9",
"to_name": "text",
"type": "labels",
"value": {
"end": 18767,
"labels": [
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],
"start": 18684,
"text": "Lastly, come the methods of recovery if the person taxed does not voluntarily pay”."
}
},
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"text": "\n 27."
}
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"end": 18944,
"labels": [
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],
"start": 18781,
"text": " But what we notice from the Assam Act is that while the charge and the levy is on the exhibitors, the taxable event is on admission to entertainment.\n "
}
},
{
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"id": "096735bf8612466486d9e1e6af9924f2",
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"value": {
"end": 19111,
"labels": [
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],
"start": 18944,
"text": "Hence the submission of the Revenue that tax here is on the person entertained appears to be illogical as this is not found in the charging Section 3 of the Assam Act."
}
},
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"text": "In the enactment we are considering, the payment is on admission to entertainment."
}
},
{
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"text": "Thus there is clear distinction in the manner, the legislative intent is expressed in the Act."
}
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{
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"id": "3bef8ff855cc48c1b04f07d6aca2077b",
"to_name": "text",
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"value": {
"end": 19475,
"labels": [
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],
"start": 19290,
"text": "The words used in the charging section doesn‟t say that the levy is on the person entertained and only through an interpretive exercise, the expression may be understood in that manner."
}
},
{
"from_name": "label",
"id": "b7548a0a3aa54d9484d567c573cf1142",
"to_name": "text",
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"value": {
"end": 19603,
"labels": [
"ANALYSIS"
],
"start": 19476,
"text": "But the question here is what was the intention of the law maker and whether there is any scope for an interpretative exercise."
}
},
{
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"id": "28b24fcd0a244232b4e8b0be983d321b",
"to_name": "text",
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"end": 19846,
"labels": [
"ANALYSIS"
],
"start": 19603,
"text": "\n 28. In the present case, the assessing authority levied entertainment tax only on the ground that the petitioners in spite of the exemption having been granted, charged and collected entertainment tax and appropriated the same to itself."
}
},
{
"from_name": "label",
"id": "d63d073ad9624333815a6c82d61244b1",
"to_name": "text",
"type": "labels",
"value": {
"end": 20140,
"labels": [
"ANALYSIS"
],
"start": 19847,
"text": "But even if the notification dated 29.03.2008 is construed to be exemption from charge and levy of entertainment tax, then also, in case any unauthorized collection was made, the assessing authority has no power and/or jurisdiction to levy the entertainment tax during the period of exemption."
}
},
{
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"id": "f242c2ebae194add9d6b877184549465",
"to_name": "text",
"type": "labels",
"value": {
"end": 20492,
"labels": [
"PRE_RELIED"
],
"start": 20142,
"text": "29. In the above context, the Apex Court in M/s Pine Chemicals Ltd. Vs.\n Assessing Authority reported in (1992)2 SCC 683 declared that whether any amount has been collected unauthorisedly in spite of the exemption, what is the amount and whether it has been collected as tax etc., cannot be scrutinized, in a normal assessment proceeding."
}
},
{
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"id": "1442b5348893414989753192134e20e4",
"to_name": "text",
"type": "labels",
"value": {
"end": 20810,
"labels": [
"PRE_RELIED"
],
"start": 20493,
"text": "One of the contentions raised in the case before the Supreme Court was that there was a finding that, the assessee had collected sales tax in respect of its sale turnover for which exemption was claimed and as such, the said amount was refundable under Section 8(B) of the Jammu & Kashmir General Sales Tax Act, 1962."
}
},
{
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"id": "696b083d38fd4fa5b364a0ac746993f9",
"to_name": "text",
"type": "labels",
"value": {
"end": 21213,
"labels": [
"PRE_RELIED"
],
"start": 20811,
"text": "The Court while leaving the question of applicability of Section 8(B) in that case open, held that whether any element of sale tax had merged in the fixation of the sale price and that amounts to collection of sales tax, would have to be decided in a separate proceeding that may have to be initiated under Section 8(B) of the said Act, if the State demands payment under the said provision of the Act."
}
},
{
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"id": "40297736c4d44fdd86d7766495dab51a",
"to_name": "text",
"type": "labels",
"value": {
"end": 21881,
"labels": [
"PRE_RELIED"
],
"start": 21213,
"text": "\n 30. In a similar situation, where the assessment was completed by levying tax during the period of exemption on the ground that in spite of the exemption being granted, the assessee charged and collected tax, this Court in Mahabir Coke Industries Pvt. Ltd. Vs. Commissioner of Taxes reported in (2003)5 GLR 175 quashed the orders of assessment by holding that if any allegation of unauthorized collection of tax is established, the consequences as provided in Section 65A of the Assam General Sales Tax Act, 1993 which related to forfeiture of the unauthorized collection of tax and/or Section 10 of the Central Sales Tax Act, 1956, as case may be, would follow."
}
},
{
"from_name": "label",
"id": "4326ad0af3cd4a588cb62a4ceb1b7d86",
"to_name": "text",
"type": "labels",
"value": {
"end": 22193,
"labels": [
"PRE_RELIED"
],
"start": 21882,
"text": "It was thus held that the impugned action of making a general assessment of all the transactions in exercise of powers under Section 17(4) and 9(2) of the 1956 Act and raise a demand for tax, without examining each and every transaction to determine whether any tax was at all collected, cannot be countenanced."
}
},
{
"from_name": "label",
"id": "05d817e721f34902a9bece0ee2e4c6b3",
"to_name": "text",
"type": "labels",
"value": {
"end": 22380,
"labels": [
"ANALYSIS"
],
"start": 22193,
"text": "\n 31. The words used in the statute should ordinarily be understood in their natural and grammatical meaning except when it is found to be inconsistent with the rest of the enactment."
}
},
{
"from_name": "label",
"id": "76c10442793b4340be4ad8fb3961b7ae",
"to_name": "text",
"type": "labels",
"value": {
"end": 22533,
"labels": [
"ANALYSIS"
],
"start": 22381,
"text": "Departure from the golden rule of construction is impermissible unless there be something in the context, which warrants a deviation to avoid absurdity."
}
},
{
"from_name": "label",
"id": "75f5fea465a440419739ba40fb78f36b",
"to_name": "text",
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"value": {
"end": 22607,
"labels": [
"ANALYSIS"
],
"start": 22534,
"text": "But admission to entertainment is not the same as the person entertained."
}
},
{
"from_name": "label",
"id": "e4f6caeeaa164746ac2f8c5ac3451fda",
"to_name": "text",
"type": "labels",
"value": {
"end": 22732,
"labels": [
"ANALYSIS"
],
"start": 22608,
"text": "Hence if we construe the expression with its natural and common sense meaning, the levy is upon admittance to entertainment."
}
},
{
"from_name": "label",
"id": "68acf8228aed4d0583755de435f2e145",
"to_name": "text",
"type": "labels",
"value": {
"end": 22950,
"labels": [
"ANALYSIS"
],
"start": 22733,
"text": "Such construction does not clash in any manner even if we read the Assam Act as a whole and no incongruity or absurdity is discernible, if ordinary meaning is attributed to the expression used in the charging section."
}
},
{
"from_name": "label",
"id": "f67eb4676f344572b6919cccbbd0e7d9",
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"value": {
"end": 23136,
"labels": [
"ANALYSIS"
],
"start": 22951,
"text": "Therefore merely because entertainment tax is borne ultimately by the cine-goers will not permit us to import the words person entertained, when such words are missing in the enactment."
}
},
{
"from_name": "label",
"id": "dcb334529b7948708bc1e03228e380d6",
"to_name": "text",
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"value": {
"end": 23277,
"labels": [
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],
"start": 23136,
"text": "\n 32. In fact if we take the analogy of other indirect taxation, the logic of the above manner of construction can be better appreciated."
}
},
{
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"id": "b844aca1292b45f388d6a891e5132f9f",
"to_name": "text",
"type": "labels",
"value": {
"end": 23395,
"labels": [
"ANALYSIS"
],
"start": 23278,
"text": "The charge and levy of central excise duty is on manufacturer but the tax burden is eventually borne by the consumer."
}
},
{
"from_name": "label",
"id": "e0a44c9d207a4c998f6ba6bdb6add542",
"to_name": "text",
"type": "labels",
"value": {
"end": 23591,
"labels": [
"ANALYSIS"
],
"start": 23396,
"text": "Does it then mean that the charge and levy of excise tax is on the person who purchases the manufactured goods at a value which includes the component of excise duty, charged to the manufacturer."
}
},
{
"from_name": "label",
"id": "520d438a54c64392b6b7ffb15cd4b7c6",
"to_name": "text",
"type": "labels",
"value": {
"end": 23694,
"labels": [
"ANALYSIS"
],
"start": 23592,
"text": "Similarly, levy of sales tax is on sale transactions but the tax is eventually borne by the purchaser."
}
},
{
"from_name": "label",
"id": "8b5f036ca28845cd82d4fa75a6fa11e9",
"to_name": "text",
"type": "labels",
"value": {
"end": 23787,
"labels": [
"ANALYSIS"
],
"start": 23695,
"text": "Can it then be said that charge and levy of sales tax is on the person who buys the product."
}
},
{
"from_name": "label",
"id": "f1257b78851944249e66e333c98fe86c",
"to_name": "text",
"type": "labels",
"value": {
"end": 24105,
"labels": [
"ANALYSIS"
],
"start": 23788,
"text": "The logical answer for both example is that charge and levy will continue to be on manufacturer (for central excise) and on seller (for sales tax) and in neither situation, the person who eventually pay the excise duty or sales tax, can be a factor, for roping in the purchaser, for constructing the charging section."
}
},
{
"from_name": "label",
"id": "a5869822b6114220aa16a0d17d3bb93a",
"to_name": "text",
"type": "labels",
"value": {
"end": 24268,
"labels": [
"ANALYSIS"
],
"start": 24106,
"text": "They key words is admission in Section 3 of Assam Act and admission may refer to not only the person admitted (cine-goer) but also the one who admits (exhibitor)."
}
},
{
"from_name": "label",
"id": "824d7cc25c0d4cf1912a925ce03a90cc",
"to_name": "text",
"type": "labels",
"value": {
"end": 24484,
"labels": [
"ANALYSIS"
],
"start": 24269,
"text": "Therefore in our analysis, the person entertained and the person providing entertainment should stand together and this is possible only when, we interpret the words in the charging section in their natural meaning."
}
},
{
"from_name": "label",
"id": "5baf1b84325b4ddcb4cf8c323b189ea3",
"to_name": "text",
"type": "labels",
"value": {
"end": 24582,
"labels": [
"ANALYSIS"
],
"start": 24485,
"text": "In other words, admission to entertainment can‟t have the same meaning as the person entertained."
}
},
{
"from_name": "label",
"id": "4395241789c94794ab3f7c3a623f858d",
"to_name": "text",
"type": "labels",
"value": {
"end": 24760,
"labels": [
"PRE_NOT_RELIED"
],
"start": 24583,
"text": "Thus we hold that the decision in State of Karnataka vs.\n Drive-in-Enterprises reported in (2001) 4 SCC 60 will not apply in these cases in the context of the Assam Act."
}
},
{
"from_name": "label",
"id": "04dbe95dcf184f1197bcb569f2cebde9",
"to_name": "text",
"type": "labels",
"value": {
"end": 24770,
"labels": [
"ANALYSIS"
],
"start": 24760,
"text": "\n 33. "
}
},
{
"from_name": "label",
"id": "787726cf2dd94df88309f061456e9f6a",
"to_name": "text",
"type": "labels",
"value": {
"end": 24922,
"labels": [
"ANALYSIS"
],
"start": 24770,
"text": "The scheme of the Assam Act is that notwithstanding the collection of tax from the cine-goers, the liability to pay the tax remains with the exhibitors."
}
},
{
"from_name": "label",
"id": "bc9c827b69e04779819882a68493e4eb",
"to_name": "text",
"type": "labels",
"value": {
"end": 25055,
"labels": [
"ANALYSIS"
],
"start": 24923,
"text": "To understand the implication thereof, we may again benefit by referring to the levy of sales tax where the charge is on the dealer."
}
},
{
"from_name": "label",
"id": "a6343b539603472eba80f4af4e294bb6",
"to_name": "text",
"type": "labels",
"value": {
"end": 25125,
"labels": [
"ANALYSIS"
],
"start": 25056,
"text": "Similarly for central excise duty, the charge is on the manufacturer."
}
},
{
"from_name": "label",
"id": "b3afe39ade74489db8ae68614c884806",
"to_name": "text",
"type": "labels",
"value": {
"end": 25253,
"labels": [
"ANALYSIS"
],
"start": 25126,
"text": "But in both process, while the taxable event is sale or manufacture as the case may be, the tax is collected from the consumer."
}
},
{
"from_name": "label",
"id": "1ae2b3e630334e929ca58af9979e1180",
"to_name": "text",
"type": "labels",
"value": {
"end": 25374,
"labels": [
"ANALYSIS"
],
"start": 25254,
"text": "But non-payment of tax by the consumer is never a relevant factor to determine the liability of the dealer/manufacturer."
}
},
{
"from_name": "label",
"id": "c2ef718fd12f4d658a713d7115c3cd0f",
"to_name": "text",
"type": "labels",
"value": {
"end": 25452,
"labels": [
"ANALYSIS"
],
"start": 25375,
"text": "Therefore tax liability and actual payment of tax are conceptually different."
}
},
{
"from_name": "label",
"id": "1dec13f2b728444483890b6b120bb37a",
"to_name": "text",
"type": "labels",
"value": {
"end": 25664,
"labels": [
"ANALYSIS"
],
"start": 25453,
"text": "Thus in the event of exemption, since the entertainment tax liability is on the exhibitor, the target of exemption notification needn‟t be the cine-goers, merely because, tax is borne by him under the Assam Act."
}
},
{
"from_name": "label",
"id": "4303e8dd8b8c488f9bdbc301946ab883",
"to_name": "text",
"type": "labels",
"value": {
"end": 25791,
"labels": [
"ANALYSIS"
],
"start": 25664,
"text": "\n 34. The entry 62 of List-II of the 7th Schedule empowers the State Legislature to levy tax, inter alia, on entertainment."
}
},
{
"from_name": "label",
"id": "98fba94147d6406fb19525fee3c108ea",
"to_name": "text",
"type": "labels",
"value": {
"end": 25906,
"labels": [
"ANALYSIS"
],
"start": 25792,
"text": "Under the Assam Act, the taxable event is on admission to entertainment as is specified in the charging section 3."
}
},
{
"from_name": "label",
"id": "bb61d1dd48f24d18af42946968c140aa",
"to_name": "text",
"type": "labels",
"value": {
"end": 26074,
"labels": [
"ANALYSIS"
],
"start": 25907,
"text": "When the taxable event relates to entertainment, the levy and charge is not necessarily on the person entertained, who nevertheless have to bear the entertainment tax."
}
},
{
"from_name": "label",
"id": "4a4f7d26e0534cc89415ee7d066197e1",
"to_name": "text",
"type": "labels",
"value": {
"end": 26276,
"labels": [
"ANALYSIS"
],
"start": 26074,
"text": "\n On proper construction of the charging section which doesn‟t declare that the levy on the person entertained, it will be wrong in our understanding, to import words not found in the Assam Act."
}
},
{
"from_name": "label",
"id": "1b2018e3518a44798dc161ef4057c16c",
"to_name": "text",
"type": "labels",
"value": {
"end": 26396,
"labels": [
"ANALYSIS"
],
"start": 26276,
"text": "\n 35. It is important to keep in mind that charge and levy and the incidence of taxation are conceptually different."
}
},
{
"from_name": "label",
"id": "c61bcee8e9da404096da391456f84b3a",
"to_name": "text",
"type": "labels",
"value": {
"end": 26576,
"labels": [
"ANALYSIS"
],
"start": 26397,
"text": "Under the exemption notification of 29.03.2008 (Annexure-1), charge and levy is not absolved and therefore it is difficult to accept that charging of tax is exempted by the State."
}
},
{
"from_name": "label",
"id": "1fd3a3c921604a56a6b8a4d733fcc457",
"to_name": "text",
"type": "labels",
"value": {
"end": 26746,
"labels": [
"ANALYSIS"
],
"start": 26577,
"text": "This indirect tax is to be borne by the cine-goers on admission to entertainment but the liability to pay the tax to the State under the Assam Act, is on the exhibitors."
}
},
{
"from_name": "label",
"id": "4ace887aa1c541eea946c45f57e046ef",
"to_name": "text",
"type": "labels",
"value": {
"end": 26896,
"labels": [
"ANALYSIS"
],
"start": 26747,
"text": "So when the liability from payment of tax is exempted, the benefit in our understanding, should go to the entity which is made liable to pay the tax."
}
},
{
"from_name": "label",
"id": "517c3271a93e4a81bb2dcae018371bac",
"to_name": "text",
"type": "labels",
"value": {
"end": 27124,
"labels": [
"ANALYSIS"
],
"start": 26897,
"text": "Merely because the tax is ultimately borne by the cine-goers, exemption is not intended for them particularly when, the notification targets those exhibitors, who commenced commercial operation between 1.4.2007 to 1.2.2008.\n 36"
}
},
{
"from_name": "label",
"id": "ac796a8cc76141d0b5cec04e3494af7e",
"to_name": "text",
"type": "labels",
"value": {
"end": 27283,
"labels": [
"ANALYSIS"
],
"start": 27124,
"text": ". The different sections of the Assam Act must be harmoniously construed to understand the purport of the exemption notification issued under Section 8(2)."
}
},
{
"from_name": "label",
"id": "071620f34a414a2b8fd984b78ea96476",
"to_name": "text",
"type": "labels",
"value": {
"end": 27536,
"labels": [
"ANALYSIS"
],
"start": 27284,
"text": "The Section 3(6) imposes the liability to pay tax on the exhibitor and therefore when we construe Section 3(6) together with Section 18(3), it is logical to conclude that the benefit is intended for the exhibitors and was not meant for the movie-goers."
}
},
{
"from_name": "label",
"id": "96afe31345704caebb7d8616ee512af6",
"to_name": "text",
"type": "labels",
"value": {
"end": 27767,
"labels": [
"ANALYSIS"
],
"start": 27536,
"text": "\n 37. The next thing to consider is whether, in the context of the formats and certificates prescribed under the Assam Rules and more particularly Rule 8, it will be correct to conclude that the exemption is for the cine-goers."
}
},
{
"from_name": "label",
"id": "23c53ce382b0412aba3e36ad4b5eea3d",
"to_name": "text",
"type": "labels",
"value": {
"end": 27888,
"labels": [
"ANALYSIS"
],
"start": 27768,
"text": "What is significantly different in sub-sections (1) and (2) of Section 8 is that each one operates on a different field."
}
},
{
"from_name": "label",
"id": "d4748dc2009444ef997d1e2188bd6253",
"to_name": "text",
"type": "labels",
"value": {
"end": 28046,
"labels": [
"ANALYSIS"
],
"start": 27889,
"text": "The sub-section (1) speaks of not charging tax on certain exigencies whereas sub-section (2) speaks of exemption from liability to pay the entertainment tax."
}
},
{
"from_name": "label",
"id": "b9d09ca4cd824a74a56b55cfef906943",
"to_name": "text",
"type": "labels",
"value": {
"end": 28249,
"labels": [
"ANALYSIS"
],
"start": 28047,
"text": "When such distinction is made by the law makers in Section 8 itself, the formats and certificates specified under the Assam Rules has to be understood in the context of the exemption under Section 8(1)."
}
},
{
"from_name": "label",
"id": "e4f2e147a4554bba829a15af8645f11d",
"to_name": "text",
"type": "labels",
"value": {
"end": 28444,
"labels": [
"ANALYSIS"
],
"start": 28250,
"text": "Blind application of the prescribed forms, certificates and registers in the Assam Rules for the sub-section (2) exemption (where they do not fit in), will naturally lead to an absurd situation."
}
},
{
"from_name": "label",
"id": "fb573a278c1b4869a6e5c6798d4efb33",
"to_name": "text",
"type": "labels",
"value": {
"end": 28615,
"labels": [
"ANALYSIS"
],
"start": 28444,
"text": "\n 38. The plain reading of Rule 19 and 20 of the Assam Rules would show that the same is applicable only in respect of exemption granted under Section 8(1) of the Act."
}
},
{
"from_name": "label",
"id": "55bbfb0a9bbd4c16b49759fddb110835",
"to_name": "text",
"type": "labels",
"value": {
"end": 28841,
"labels": [
"ANALYSIS"
],
"start": 28616,
"text": "While the Rule 19 do make reference to Section 8 generally but if we read Rule 19 together with Rule 20 and Form V, it becomes clear that the Rules are not applicable for exemption granted under Section 8(2) of the Assam Act."
}
},
{
"from_name": "label",
"id": "4f5694f0607c48f899952209090b99fe",
"to_name": "text",
"type": "labels",
"value": {
"end": 29001,
"labels": [
"ANALYSIS"
],
"start": 28842,
"text": "In this connection, the contention of the petitioner gets fortified by the circular No.CTA-41/84/9 dated 06.02.1987 issued by the Commissioner of Taxes, Assam."
}
},
{
"from_name": "label",
"id": "77ff7282adbe402da6e26e2059d47e0c",
"to_name": "text",
"type": "labels",
"value": {
"end": 29101,
"labels": [
"ANALYSIS"
],
"start": 29001,
"text": "\n The govt. circular says that the exemption is to be applied under Section 8(1) of the Act."
}
},
{
"from_name": "label",
"id": "1516dc0a35ba4209936fa0679cb655ed",
"to_name": "text",
"type": "labels",
"value": {
"end": 29264,
"labels": [
"ANALYSIS"
],
"start": 29102,
"text": "The Rule 20 clarifies the issue further when it provides that the application for exemption has to be made not less than 30 days before the date of entertainment."
}
},
{
"from_name": "label",
"id": "a2def65a5d464adcaa33ba5da18cd4d8",
"to_name": "text",
"type": "labels",
"value": {
"end": 29435,
"labels": [
"ANALYSIS"
],
"start": 29265,
"text": "When the Rules are framed for carrying out the purpose of the Act the provision of the statute cannot be interpreted on the basis of the Rules framed under the Assam Act."
}
},
{
"from_name": "label",
"id": "2d4c87c72c6248d78a0eced53b276ba4",
"to_name": "text",
"type": "labels",
"value": {
"end": 29608,
"labels": [
"ANALYSIS"
],
"start": 29436,
"text": "If a particular Rule does not fit in with a specific provision of the Act, the scope of the concerned section cannot be curtailed and/or widened, on the basis of the Rules."
}
},
{
"from_name": "label",
"id": "c465b8e1eb0f4325bc0e87c2c4d7e2c4",
"to_name": "text",
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"value": {
"end": 29693,
"labels": [
"ANALYSIS"
],
"start": 29609,
"text": "Such forced interpretation will in our view, subvert the clear words in the statute."
}
},
{
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"id": "d8abb5ad1b5b463ab5de377aaa94617d",
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"end": 29776,
"labels": [
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],
"start": 29694,
"text": "In any case, the Rules are intended to support the Act and can‟t abrogate the Act."
}
},
{
"from_name": "label",
"id": "03abfb20586c4f8692d9054cc4edc38a",
"to_name": "text",
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"value": {
"end": 29867,
"labels": [
"ANALYSIS"
],
"start": 29777,
"text": "Therefore the argument raised to the contrary by the counsel for the revenue, is rejected."
}
},
{
"from_name": "label",
"id": "26487fd8d0cd4be79ef89fb76d242f5f",
"to_name": "text",
"type": "labels",
"value": {
"end": 29930,
"labels": [
"ANALYSIS"
],
"start": 29867,
"text": "\n 39. Unambiguous intention is essential in fiscal statute."
}
},
{
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"id": "2c55a1ab309049cab5a9c51e207e8efb",
"to_name": "text",
"type": "labels",
"value": {
"end": 30034,
"labels": [
"ANALYSIS"
],
"start": 29931,
"text": "It is not stated anywhere in the Assam Act that the exemption benefit was intended for the cine- goers."
}
},
{
"from_name": "label",
"id": "f81fe31edc9e4c0cba83f4b3a6d2529e",
"to_name": "text",
"type": "labels",
"value": {
"end": 30190,
"labels": [
"ANALYSIS"
],
"start": 30035,
"text": "Therefore when nothing as such is mentioned, it will be erroneous to import words to construe the exemption notification, as a benefit for the cine- goers."
}
},
{
"from_name": "label",
"id": "646d83b4deec48a68d15c74b239cd164",
"to_name": "text",
"type": "labels",
"value": {
"end": 30377,
"labels": [
"ANALYSIS"
],
"start": 30191,
"text": "It can‟t also be overlooked that cine-goers form a class of their own without any rational differentiation between those who watch movies in normal cinema halls and those in multiplexes."
}
},
{
"from_name": "label",
"id": "38434ba4fb8e4da49afad1ce5eebba0b",
"to_name": "text",
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"value": {
"end": 30578,
"labels": [
"ANALYSIS"
],
"start": 30378,
"text": "But there is clear distinction between two categories of exhibitors (ordinary cinema halls and multiplexes) where the quality of entertainment, ambience and comfort provided, are surely of two levels."
}
},
{
"from_name": "label",
"id": "edc9ca625dbb445aad1f9fa0c646478b",
"to_name": "text",
"type": "labels",
"value": {
"end": 30796,
"labels": [
"ANALYSIS"
],
"start": 30579,
"text": "The exemption notification speaks of those multiplexes which commenced commercial operation in Assam on or after 1.4.2007 but prior to 1.2.2008 and they are exempted from the liability to payment of entertainment tax."
}
},
{
"from_name": "label",
"id": "27e31b3b019e437a92fc74691712cc82",
"to_name": "text",
"type": "labels",
"value": {
"end": 30897,
"labels": [
"ANALYSIS"
],
"start": 30797,
"text": "Therefore it is natural to infer from the words used that, exemption is intended for the exhibitors."
}
},
{
"from_name": "label",
"id": "05eb3b0249284318a71de45926706785",
"to_name": "text",
"type": "labels",
"value": {
"end": 31023,
"labels": [
"ANALYSIS"
],
"start": 30898,
"text": "According to our perception, contrary conclusion will be illogical when the literal Rules of interpretation is to be applied."
}
},
{
"from_name": "label",
"id": "33ee7faa3c1e4cdc8ecc626c68b73d72",
"to_name": "text",
"type": "labels",
"value": {
"end": 31231,
"labels": [
"ANALYSIS"
],
"start": 31023,
"text": "\n 40. The concept of cineplex is new in Assam and the state has obviously tried to encourage establishment of cineplexes through incentives by way of exemption from the liability to pay entertainment tax."
}
},
{
"from_name": "label",
"id": "87c28e2c51044928bedf79f3cfcd8ba9",
"to_name": "text",
"type": "labels",
"value": {
"end": 31422,
"labels": [
"ANALYSIS"
],
"start": 31232,
"text": "The mere fact that incidence of tax is on the cine-goers, the exemption notification in the face of clear words can‟t be understood to target those, who pay to be admitted for entertainment."
}
},
{
"from_name": "label",
"id": "b9489a06883d428cbd57c0eaaa7a0600",
"to_name": "text",
"type": "labels",
"value": {
"end": 31493,
"labels": [
"ANALYSIS"
],
"start": 31422,
"text": "\n 41. Next we have to deal with the submission of the learned Addl."
}
},
{
"from_name": "label",
"id": "84a6b89e954447c595953b5479e61e91",
"to_name": "text",
"type": "labels",
"value": {
"end": 31510,
"labels": [
"ANALYSIS"
],
"start": 31494,
"text": "Advocate General"
}
},
{
"from_name": "label",
"id": "38bc7234bd424618a5e4bdfb22971333",
"to_name": "text",
"type": "labels",
"value": {
"end": 31759,
"labels": [
"ANALYSIS"
],
"start": 31511,
"text": "that the exemption notification shouldn‟t be construed in favour of the petitioners since mode and manner of disbursal of incentives is not prescribed here unlike in the Govt. notification dated 30.3.2007 issued under the State‟s Industrial Policy."
}
},
{
"from_name": "label",
"id": "f1eea539a1a1421eb53d7b69b46c2c42",
"to_name": "text",
"type": "labels",
"value": {
"end": 31913,
"labels": [
"ANALYSIS"
],
"start": 31760,
"text": "The context in which tax incentive was granted by the Govt.\n notification dated 30.3.2007 are clearly distinguishable from the present situation."
}
},
{
"from_name": "label",
"id": "32c9d28fc81f4a4e9b8d66886f558469",
"to_name": "text",
"type": "labels",
"value": {
"end": 32074,
"labels": [
"ANALYSIS"
],
"start": 31914,
"text": "In our perception, elaborate mechanism is unnecessary here since the exhibitors are simply made free of their obligation to pay to the State, the collected tax."
}
},
{
"from_name": "label",
"id": "914174cd83d04fca9577ee9fb273c0d6",
"to_name": "text",
"type": "labels",
"value": {
"end": 32139,
"labels": [
"ANALYSIS"
],
"start": 32075,
"text": "Therefore the argument on this issue do not aid the respondents."
}
},
{
"from_name": "label",
"id": "615cc060f4fe46f0ba550d693a620af6",
"to_name": "text",
"type": "labels",
"value": {
"end": 32397,
"labels": [
"PRE_NOT_RELIED"
],
"start": 32139,
"text": "\n 42. The Madras High Court in P. Sankara Narayanan (supra) while examining a challenge to levy of higher tax for dubbed films had described that exhibitors is simply a collection agent since the burden of taxation is ultimately passed on the cine-goers."
}
},
{
"from_name": "label",
"id": "fb7abadcb0e04c0ea4b43cce28c837ce",
"to_name": "text",
"type": "labels",
"value": {
"end": 32776,
"labels": [
"ANALYSIS"
],
"start": 32398,
"text": "But in the face of the exhibitor‟s obligation under Section 3(6) of the Assam Act, the primary liability to pay the entertainment tax under the enactment we are considering, is on the exhibitors and therefore the passing observation of the learned Judge of the Madras High Court in the context of the Tamil Nadu case, can have no bearing on our decision, in the present matters."
}
},
{
"from_name": "label",
"id": "f24ea983bf71437589e8cb8374fb6cef",
"to_name": "text",
"type": "labels",
"value": {
"end": 32987,
"labels": [
"ANALYSIS"
],
"start": 32776,
"text": "\n 43. Now we have to analyse whether the decision in Swanstone Multiplex (Supra) can be applied here to deny the benefit of the exemption notification to the exhibitors on the principle of unjust enrichment."
}
},
{
"from_name": "label",
"id": "2f1b91cd168644ab9fed4a3984fcb627",
"to_name": "text",
"type": "labels",
"value": {
"end": 33170,
"labels": [
"ANALYSIS"
],
"start": 32988,
"text": "As earlier noted, the charging of tax is not exempted but liability from payment of tax is exempted, under the Notification dated 29.3.2008 issued under sub-section (2) of Section 8."
}
},
{
"from_name": "label",
"id": "36082c23581a400f9ea507d0b9255b88",
"to_name": "text",
"type": "labels",
"value": {
"end": 33285,
"labels": [
"ANALYSIS"
],
"start": 33170,
"text": "\n But on the other hand, the charging of tax exempted, when a notification is issued under sub-section (1)."
}
},
{
"from_name": "label",
"id": "3bff681aa65c46dab087fa8337899885",
"to_name": "text",
"type": "labels",
"value": {
"end": 33556,
"labels": [
"ANALYSIS"
],
"start": 33286,
"text": "When the tax liability is imposed on the cineplex owners under Section 3(6) of the Assam Act, the exemption notification under Section 8(2) has to be construed in our view as one, intended to provide incentives to new multiplexes established during the specified period."
}
},
{
"from_name": "label",
"id": "67efff6274b54501bf89d8b67b213a1f",
"to_name": "text",
"type": "labels",
"value": {
"end": 33725,
"labels": [
"ANALYSIS"
],
"start": 33557,
"text": "Therefore when charge of tax has not been exempted (since Section 8(1) notification is not issued here), the collection of tax can‟t be described as illegal collection."
}
},
{
"from_name": "label",
"id": "a4d2fab5152a443b8b98a3971340d731",
"to_name": "text",
"type": "labels",
"value": {
"end": 33845,
"labels": [
"ANALYSIS"
],
"start": 33726,
"text": "Thus retention of the collected tax (when levy is not exempted), do not amount to unjust enrichment for the exhibitors."
}
},
{
"from_name": "label",
"id": "dafb3dd9f6af431692de3a5f7864557e",
"to_name": "text",
"type": "labels",
"value": {
"end": 33990,
"labels": [
"ANALYSIS"
],
"start": 33846,
"text": "Therefore we hold that the decision in Swanstone Multiplex (Supra) can‟t be applied to deny the benefit to the petitioners in the present cases."
}
},
{
"from_name": "label",
"id": "7a9e95cc945944bd99c79855cedeef3d",
"to_name": "text",
"type": "labels",
"value": {
"end": 34283,
"labels": [
"ANALYSIS"
],
"start": 33990,
"text": "\n 44. Consequently the tax recovered by the exhibitors, as admitted by the 2nd group of litigants, in our view is not collected illegally and therefore we declare that they have no obligation under Section 172 of the Contract Act, to refund any entertainment tax for the exempted period."
}
},
{
"from_name": "label",
"id": "fbac2d4faa51406b86c79897fccd21e4",
"to_name": "text",
"type": "labels",
"value": {
"end": 34449,
"labels": [
"RATIO"
],
"start": 34283,
"text": "\n 45. As earlier noted the charge and levy of tax was never exempted and therefore the cine-goers were not provided any relief under the exemption notification."
}
},
{
"from_name": "label",
"id": "2d094325d5c14bb6b214f5dc87f8b11b",
"to_name": "text",
"type": "labels",
"value": {
"end": 34626,
"labels": [
"RATIO"
],
"start": 34450,
"text": "On the other hand, the exhibitor was freed of their obligation from the liability to the entertainment tax, through the notification issued under Section 8(2) of the Assam Act."
}
},
{
"from_name": "label",
"id": "c338f251ffb64345b668feb212abddc1",
"to_name": "text",
"type": "labels",
"value": {
"end": 34866,
"labels": [
"RATIO"
],
"start": 34627,
"text": "Therefore we have no hesitation to hold that incentive was intended for the investors on cineplexes and consequently for the relevant period, the exhibitors can‟t be forced to discharge their obligation under Section 3(6) of the Assam Act."
}
},
{
"from_name": "label",
"id": "eb268fd052ae4dfb93844ff1a29dd688",
"to_name": "text",
"type": "labels",
"value": {
"end": 35223,
"labels": [
"RPC"
],
"start": 34867,
"text": "Since in the present case, entertainment tax has been levied only on the ground that in spite of the exemption having been granted by the notification dated 29.03.2008, petitioners allegedly collected entertainment tax, the impugned orders of assessment are declared to be illegal, without jurisdiction and therefore the same are set aside and quashed.\n 46"
}
},
{
"from_name": "label",
"id": "9899bcd0dbf14adabc8d6d958e2d353b",
"to_name": "text",
"type": "labels",
"value": {
"end": 35589,
"labels": [
"RPC"
],
"start": 35223,
"text": ". Following the above discussion and our conclusion in favour of the exhibitors on all the issues as delineated above, we declare that the demand of entertainment tax from the exhibitors for the period specified in the notification dated 29.3.2008 (Annexure-I) is illegal and therefore the assessment to tax under the Assam Act for the petitioners are quashed."
}
},
{
"from_name": "label",
"id": "e49e71e343a34623a7c0a77f4f08e29a",
"to_name": "text",
"type": "labels",
"value": {
"end": 35634,
"labels": [
"RPC"
],
"start": 35590,
"text": "The cases are allowed with this declaration."
}
},
{
"from_name": "label",
"id": "ca21d7eb81c0418db08a023dc8e95e13",
"to_name": "text",
"type": "labels",
"value": {
"end": 35643,
"labels": [
"RPC"
],
"start": 35635,
"text": "No cost."
}
},
{
"from_name": "label",
"id": "adc27a6f0a9e411b978cae9f358ea9d5",
"to_name": "text",
"type": "labels",
"value": {
"end": 35697,
"labels": [
"NONE"
],
"start": 35643,
"text": "\n JUDGE JUDGE Barman/Roy/Datta"
}
}
]
}
] | 1,718 | {
"text": " IN THE GAUHATI HIGH COURT\n (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)\n\n\n I. WP(C) No.4477/2014\n M/s PVR Ltd.,\n 61, Basant Lok,\n Vasant Vihar,\n New Delhi-110057.\n ……Petitioner.\n -Versus-\n 1. The State of Assam,\n Represented by the Commissioner & Secretary to the\n Govt. of Assam, Department of Finance & Taxation,\n Dispur, Guwahati-781006.\n 2. The Commissioner of Taxes, Assam,\n Kar Bhawan, Dispur, Guwahati, Assam.\n 3. The Deputy Commissioner of Taxes, Zone A (Appeals),\n Kar Bhawan, Dispur, Guwahati-6.\n 4. The Superintendent of Taxes,\n Unit-D, Guwahati, Kar Bhawan,\n Dispur, Guwahati, Assam.\n ……Respondents.\n II. WP(C) No.4480/2014\n M/s PVR Ltd.,\n 61, Basant Lok,\n Vasant Vihar,\n New Delhi-110057. ……Petitioner.\n\n -Versus-\n\n The State of Assam and 3 others. ……Respondents.\n\n\n III. WP(C) No.3439/2014\n 1. Mridul Properties (P) Ltd.,\n G.S. Road, Bhangagarh, Guwahati-781005.\n 2. Fun Cinemas,\n A unit of Petitioner No.1,\n HUB, G.S. Road, Bhangagarh,\n Guwahati-781005. ……Petitioners.\n -Versus-\n The State of Assam and 3 others. ……Respondents.\n\n\n\n\n IV. WP(C) No.3440/2014\n 1. Mridul Properties (P) Ltd.,\n G.S. Road, Bhangagarh, Guwahati-781005.\n 2. Fun Cinemas,\n A unit of Petitioner No.1,\n HUB, G.S. Road, Bhangagarh,\n Guwahati-781005. ……Petitioners.\n -Versus-\n The State of Assam and 3 others. ……Respondents.\n\n\n V. WP(C) No.3443/2014\n 1. Mridul Properties (P) Ltd.,\n G.S. Road, Bhangagarh, Guwahati-781005.\n 2. Fun Cinemas,\n A unit of Petitioner No.1,\n HUB, G.S. Road, Bhangagarh,\n Guwahati-781005. ……Petitioners.\n -Versus-\n The State of Assam and 3 others. ……Respondents.\n\n\n VI. WP(C) No.3444/2014\n 1. Mridul Properties (P) Ltd.,\n G.S. Road, Bhangagarh, Guwahati-781005.\n 2. Fun Cinemas,\n A unit of Petitioner No.1,\n HUB, G.S. Road, Bhangagarh,\n Guwahati-781005. ……Petitioners.\n -Versus-\n The State of Assam and 3 others. ……Respondents.\n\n\n VII. WP(C) No.3445/2014\n 1. Mridul Properties (P) Ltd.,\n G.S. Road, Bhangagarh, Guwahati-781005.\n 2. Fun Cinemas,\n A unit of Petitioner No.1,\n HUB, G.S. Road, Bhangagarh,\n Guwahati-781005. ……Petitioners.\n -Versus-\n The State of Assam and 3 others. ……Respondents.\n\n\n\n VIII. WP(C) No.4479/2014\n M/s PVR. Ltd.,\n 61, Basant Lok,\n Vasant Vihar,\n New Delhi-110057. ……Petitioner.\n -Versus-\n The State of Assam and 3 others. ……Respondents.\n\n BEFORE\n THE HON’BLE MR. JUSTICE HRISHIKESH ROY\n THE HON’BLE MR. JUSTICE PARAN KUMAR PHUKAN\n\n Advocate(s) for the Petitioner : Dr. Ashok Saraf …Sr. Adv.,\n Mr. P. Baruah,\n Mr. Z. Islam.\n\n Advocate(s) for the Respondents : Mr. D. Saikia, Addl. A.G., Assam,\n Mr. B. Choudhury, SC, Finance & Taxation.\n\n Date of Hearing : 19.7.2016, 21.7.2016, 22.7.2016, 9.8.2016\n Date of Judgment : 30th August, 2016\n Date of Judgment correction : 02.09.2016\n\n\n JUDGMENT AND ORDER [Hrishikesh Roy, J.] Heard Dr. A. Saraf, learned Senior Counsel appearing for the petitioners in all the cases. Also heard Mr. D. Saikia, the learned Addl. Advocate General representing the respondents.\n 2. The petitioners operate multiplex/mini cinema halls and the issue here is their liability towards entertainment tax for the relevant period, under the Assam Amusement and Betting Tax Act, 1939 (hereinafter referred to as „the Assam Act‟). The concerned entities, hereinafter referred to as “the Exhibitors” commenced commercial operation in Assam between 1.4.2007—1.2.2008 and therefore, by virtue of the Govt. Notification dated 29.3.2008 (Annexure-I), the exhibitors seek exemption from the liability to payment of tax, for a period of five years. The exemption notification was issued under Sub-Section (2) of Section 8 of the Assam Act. The petitioners in this batch of litigations can be divided in two groups. The first is the M/s. PVR Ltd. who have filed the WP(C) No.4477/2014, WP(C) No.4480/2014 and WP(C) No.4479/2014 and they claim that they have not collected the tax, whereas the 2nd group of M/s. Mridul Properties (P) Ltd., in the other five cases, have admittedly recovered the entertainment tax, from the movie-goers.\n 3. The cases have common facts and hence for the sake of convenience, the narratives in this order are extracted from the WP(C) No.4477/2014, filed by the M/s. PVR Ltd.\n BACKGROUND FACTS 4. Through the notice dated 12.9.2012 (Annexure-IV), the Superintendent of Taxes alleged that the Exhibitors were unauthorisedly collecting tax from the movie-goers and accordingly demand was made for deposit of the collected amount or else, tax would be assessed under the Assam Act. In their response, the first group contended that entertainment tax was not collected and accordingly they requested for recall of the tax demand notice.\n 5. Dissatisfied with the reply, a show cause notice for assessment under Section 5-A(2) of the Assam Act was issued on 13.12.2012 (Annexure-X), where it was alleged that tax is being illegally collected from the movie-goers, in spite of the exemption notification dated 29.3.2008 (Annexure-I), issued under Sub- Section (2) of Section 8 of the Assam Act. According to the notice, the claim of not charging entertainment tax made by the exhibitor is not believable, as the tickets issued for certain films, reflects the charging of tax. Hence, tax was proposed to be assessed under Section 5-A(2) of the Assam Act.\n 6. In response to the show cause notice, the exhibitor reiterated that they have not collected any amount towards entertainment tax and they offered to submit their Books-of-Account to support their contention. However through the assessment order dated 1.3.2013, the tax was assessed on the basis of the total turnover and interest was also added to the assessed amount.\n 7. Being aggrieved, the exhibitors challenged the assessment through the WP(C) No.2343/2013 and this case was disposed of by the Division Bench on 6.5.2013, by relegating the party to the statutory forum. Thereafter the appellate authority after considering the rival submission through the impugned order dated 28.7.2014 (Annexure-XXI), opined that when the tax is collected, the same should be deposited in the Govt. exchequer or else, it will amount to unjust enrichment. It was also concluded that objective of exemption by the Government was to provide relief to the movie-goers and it is impermissible for the exhibitor to retain the collected tax as this would be contrary to the judgment of the Apex Court in the State of Maharashtra vs. Swanstone Multiplex Cinema Private Ltd. reported in (2009) 8 SCC 235. On the basis of such conclusion, the Appeal was dismissed on 28.7.2014 (Annexure-XXI), by the appellate authority and consequential direction was issued to realize the assessed tax and interest, from the exhibitor.\n 8. The other group under the M/s. Mridul Properties (P) Ltd. admits that entertainment tax was collected on the entry tickets but denied their corresponding obligation to deposit the collected sum on account of the exemption notification. Confronted with similar assessment and demand like the first group, the aggrieved exhibitors filed Revision Petition(s) against the assessment order passed by the Superintendent of Taxes. But since those were rejected by the common order dated 20.5.2014 (Annexure-XXII), the first group having realized the futility of revision, have decided to challenge the order in the High Court.\n SUBMISSION OF PETITIONERS 9. Dr. A. Saraf, learned Senior Counsel submits that tax is to be charged, levied and paid to the Government under Section 3 of the Assam Act. Here incentive to set up multiplex/mini cinema halls was provided by the Government by exempting the liability to payment of entertainment tax to those, who set up their projects in Assam during 1.4.2007—1.2.2008. Accordingly it is argued that such incentive to the multiplex/mini cinema halls is intended to encourage business activities and since they are exempted from the tax liability, there can be no assessment for the exhibitors to tax, under Section 5-A of the Assam Act.\n 10. The petitioners refer to the fact that the exemption notice was issued under Sub-Section (2) of Section 8 of the Assam Act and therefore it is contended that there is no absolvement from charging tax but what is exempted is the liability from payment of entertainment tax and therefore it is argued that demand for tax from the exhibitors (whether realized or otherwise) is unauthorized, in the face of the exemption notification.\n 11. The senior counsel distinguishes the Swanstone Multiplex Cinema Private Ltd. (Supra) by submitting that present facts are different in as much as, in the case before the Supreme Court, the levy of entertainment tax was exempted and only incentives by way of zero or reduced rate of tax was provided under the policy, adopted by the Maharashtra Government. But here in Assam unlike the Maharashtra scenario, the beneficiary was exempted from payment liability towards the State exchequer. Therefore Dr. Saraf argues that it is not a case of unjust enrichment, since the charging of tax was not exempted by the Notification dated 29.3.2008 (Annexure-I). Hence the Assam situation is nothing but a business incentive for five years, for the new entrepreneurs in the field and retention of the collected sum is not unjust enrichment since this was permitted by the Govt.\n 12. The petitioners contend that assuming that assessment is permissible, for the petitioner M/s. PVR Ltd. (who did not realize the tax), the assessment can never be on the total turnover. But if there is any undue collection which can‟t be retained by the exhibitors, recovery would be permissible only through searching enquiry of each and every transaction and not through hypothetical conclusion, based upon the business turnover of the exhibitor.\n 13. Alternately Dr. A. Saraf argues that if charging of tax is exempted, then the amount collected by the second group can never be assessed as tax and then the recovery through assessment, is contended to be impermissible.\n 14. The substantial contention of the petitioners is that if the exhibitor is exempted from liability to payment of entertainment tax, retention can‟t be construed as unjust enrichment since it is nothing but an incentive for investment in the fresh field of multiplex and mini cinema halls, in Assam.\n SUBMISSION OF RESPONDENTS 15. On the other hand, Mr. D. Saikia, the learned Addl. Advocate General submits that the exemption notification was issued to encourage the cine-goers and not intended to benefit the cinema exhibitors and accordingly it is argued that the retention of the collected amount by the exhibitors is impermissible and the collected money has to be deposited in the state exchequer.\n 16. The respondents argue that tax is to be collected for entertainment of the movie-goers and the role of the exhibitors is only to collect the tax on behalf of the state. But when the tax is exempted under Section 8 of the Assam Act, the movie-goers are to be absolved and if any such tax is collected, the retention thereof in the hand of the exhibitors, will certainly be unjust enrichment.\n 17. The learned counsel for the Revenue submits that the benefit envisaged under Section 8 is for the movie-goers and the exhibitors are not the targeted beneficiary. In support Mr. Saikia refers to the manner of granting exemption, under the Assam Amusement and Betting Tax Rules, 1939 (hereinafter referred to as „the Rules‟). Under Rule 2(4) read with Rule 12, every Exhibitor is required to keep at the place of entertainment, the register books of tickets and also registers of payments for admission and the records of stamps denoting the entertainment tax purchased and used in prescribed formats. He refers to Form No.V, prescribed under Rule 20 which certifies tax exemption. The exhibitor is obliged to prominently display this certificate at the entry gate, so that the movie-goers are made aware that tax is not being collected for the show in question. From these provisions of the Rules, it is argued by Mr. Saikia that the benefit of exemption is not envisaged for the exhibitors but for the movie-goers.\n 18. The learned Addl. Advocate General refers to Section 72 of the Indian Contract Act, 1872 to argue that the exhibitors have the legal obligation to refund the mistakenly collected tax.\n 19. The respondents argue that by virtue of the exemption, the collection of tax from the movie-goer does not arise for the relevant period and therefore if any sum is collected by the exhibitors, the same is an unjust collection. Mr. Saikia cites Jay Vee Rice & General Mills vs. State of Haryana, reported in (2010) 10 SCC 687, to argue that when tax is unjustly collected, retention thereof by the agent is impermissible and the collected amount should either go back to the person from whom it was collected or it is to be surrendered to the state exchequer, as otherwise the retention by the exhibitor will amount to unjust enrichment.\n 20. The respondents rely upon the State of Karnataka vs. Drive-in Enterprises reported in (2001) 4 SCC 60, to contend that the levy is on the person who is entertained and therefore exemption should benefit of the person who is entertained. It is thus argued that the retention of the illegally collected entertainment tax in the hand of the exhibitor would be legally impermissible.\n 21. Referring to fundamental principles of interpretation of taxing statute or exemption notification, Mr. Saikia reads Oil & Natural Gas Corporation Ltd. vs.\n Commissioner of Income Tax reported in (2015) 10 SCC 621, to contend that literal rule of interpretation must be followed without distorting the language and common sense approach in interpretation of the exemption notification can have no role.\n 22. To explain the role of the exhibitor, Mr. Saikia reads P. Sankara Narayanan vs. State of Tamil Nadu reported in MANU/TN/8821/2007, to contend that the exhibitors are only collecting agent of the tax on behalf of the state.\n Therefore when the tax is borne by the movie-goers and if the collection is held to be unauthorised, the retention/refund can be only to the person from whom the tax is realized but not to the exhibitors, who acts as agent on behalf of the state.\n 23. Mr. Saikia refers to the Govt. Notification dated 30.3.2007, to contend that whenever tax is exempted under some incentive policy, the exemption notification lays down the manner and mode of disbursal of incentives. But here it was never indicated that the exhibitors are entitled to retain the collected tax and therefore it is argued that retention of the collected sum, can‟t be allowed.\n 24. The respondents‟ lawyer refers to the assessment proceedings to contend that the exhibitors were given opportunities to produce the ticket counter-foils and also the other documents mentioned in the Rules but they failed to produce them, despite due opportunities. Therefore it is argued that the authorities had rightly made assessment on the basis of best judgment, as provided under Section 5-A(2) of the Assam Act.\n DISCUSSION AND CONCLUSION 25. The submission made by the rival Counsel have received our earnest consideration.\n 26. We find that the charging section of the Assam Act refers to charge, levy and payment of entertainment tax and the taxable event is on admission to entertainment. Under sub-section (6) of Section 3, the proprietor of the entertainment is made liable to pay the tax. Three stages for imposition of tax was culled out by the Apex Court in Chatturam Holiram Ltd. Vs. CIT reported in AIR 1955 SC 619 and the stages are mentioned as under :- “There is the declaration of liability, that is the part of the statute which determines what persons in respect of what property are liable. Next, there is the assessment. Liability does not depend on assessment. That, ex hypothesi, has already been fixed. But assessment particularizes the exact sum which a person liable has to pay. Lastly, come the methods of recovery if the person taxed does not voluntarily pay”.\n 27. But what we notice from the Assam Act is that while the charge and the levy is on the exhibitors, the taxable event is on admission to entertainment.\n Hence the submission of the Revenue that tax here is on the person entertained appears to be illogical as this is not found in the charging Section 3 of the Assam Act. In the enactment we are considering, the payment is on admission to entertainment. Thus there is clear distinction in the manner, the legislative intent is expressed in the Act. The words used in the charging section doesn‟t say that the levy is on the person entertained and only through an interpretive exercise, the expression may be understood in that manner. But the question here is what was the intention of the law maker and whether there is any scope for an interpretative exercise.\n 28. In the present case, the assessing authority levied entertainment tax only on the ground that the petitioners in spite of the exemption having been granted, charged and collected entertainment tax and appropriated the same to itself. But even if the notification dated 29.03.2008 is construed to be exemption from charge and levy of entertainment tax, then also, in case any unauthorized collection was made, the assessing authority has no power and/or jurisdiction to levy the entertainment tax during the period of exemption.\n 29. In the above context, the Apex Court in M/s Pine Chemicals Ltd. Vs.\n Assessing Authority reported in (1992)2 SCC 683 declared that whether any amount has been collected unauthorisedly in spite of the exemption, what is the amount and whether it has been collected as tax etc., cannot be scrutinized, in a normal assessment proceeding. One of the contentions raised in the case before the Supreme Court was that there was a finding that, the assessee had collected sales tax in respect of its sale turnover for which exemption was claimed and as such, the said amount was refundable under Section 8(B) of the Jammu & Kashmir General Sales Tax Act, 1962. The Court while leaving the question of applicability of Section 8(B) in that case open, held that whether any element of sale tax had merged in the fixation of the sale price and that amounts to collection of sales tax, would have to be decided in a separate proceeding that may have to be initiated under Section 8(B) of the said Act, if the State demands payment under the said provision of the Act.\n 30. In a similar situation, where the assessment was completed by levying tax during the period of exemption on the ground that in spite of the exemption being granted, the assessee charged and collected tax, this Court in Mahabir Coke Industries Pvt. Ltd. Vs. Commissioner of Taxes reported in (2003)5 GLR 175 quashed the orders of assessment by holding that if any allegation of unauthorized collection of tax is established, the consequences as provided in Section 65A of the Assam General Sales Tax Act, 1993 which related to forfeiture of the unauthorized collection of tax and/or Section 10 of the Central Sales Tax Act, 1956, as case may be, would follow. It was thus held that the impugned action of making a general assessment of all the transactions in exercise of powers under Section 17(4) and 9(2) of the 1956 Act and raise a demand for tax, without examining each and every transaction to determine whether any tax was at all collected, cannot be countenanced.\n 31. The words used in the statute should ordinarily be understood in their natural and grammatical meaning except when it is found to be inconsistent with the rest of the enactment. Departure from the golden rule of construction is impermissible unless there be something in the context, which warrants a deviation to avoid absurdity. But admission to entertainment is not the same as the person entertained. Hence if we construe the expression with its natural and common sense meaning, the levy is upon admittance to entertainment. Such construction does not clash in any manner even if we read the Assam Act as a whole and no incongruity or absurdity is discernible, if ordinary meaning is attributed to the expression used in the charging section. Therefore merely because entertainment tax is borne ultimately by the cine-goers will not permit us to import the words person entertained, when such words are missing in the enactment.\n 32. In fact if we take the analogy of other indirect taxation, the logic of the above manner of construction can be better appreciated. The charge and levy of central excise duty is on manufacturer but the tax burden is eventually borne by the consumer. Does it then mean that the charge and levy of excise tax is on the person who purchases the manufactured goods at a value which includes the component of excise duty, charged to the manufacturer. Similarly, levy of sales tax is on sale transactions but the tax is eventually borne by the purchaser. Can it then be said that charge and levy of sales tax is on the person who buys the product. The logical answer for both example is that charge and levy will continue to be on manufacturer (for central excise) and on seller (for sales tax) and in neither situation, the person who eventually pay the excise duty or sales tax, can be a factor, for roping in the purchaser, for constructing the charging section. They key words is admission in Section 3 of Assam Act and admission may refer to not only the person admitted (cine-goer) but also the one who admits (exhibitor). Therefore in our analysis, the person entertained and the person providing entertainment should stand together and this is possible only when, we interpret the words in the charging section in their natural meaning. In other words, admission to entertainment can‟t have the same meaning as the person entertained. Thus we hold that the decision in State of Karnataka vs.\n Drive-in-Enterprises reported in (2001) 4 SCC 60 will not apply in these cases in the context of the Assam Act.\n 33. The scheme of the Assam Act is that notwithstanding the collection of tax from the cine-goers, the liability to pay the tax remains with the exhibitors. To understand the implication thereof, we may again benefit by referring to the levy of sales tax where the charge is on the dealer. Similarly for central excise duty, the charge is on the manufacturer. But in both process, while the taxable event is sale or manufacture as the case may be, the tax is collected from the consumer. But non-payment of tax by the consumer is never a relevant factor to determine the liability of the dealer/manufacturer. Therefore tax liability and actual payment of tax are conceptually different. Thus in the event of exemption, since the entertainment tax liability is on the exhibitor, the target of exemption notification needn‟t be the cine-goers, merely because, tax is borne by him under the Assam Act.\n 34. The entry 62 of List-II of the 7th Schedule empowers the State Legislature to levy tax, inter alia, on entertainment. Under the Assam Act, the taxable event is on admission to entertainment as is specified in the charging section 3. When the taxable event relates to entertainment, the levy and charge is not necessarily on the person entertained, who nevertheless have to bear the entertainment tax.\n On proper construction of the charging section which doesn‟t declare that the levy on the person entertained, it will be wrong in our understanding, to import words not found in the Assam Act.\n 35. It is important to keep in mind that charge and levy and the incidence of taxation are conceptually different. Under the exemption notification of 29.03.2008 (Annexure-1), charge and levy is not absolved and therefore it is difficult to accept that charging of tax is exempted by the State. This indirect tax is to be borne by the cine-goers on admission to entertainment but the liability to pay the tax to the State under the Assam Act, is on the exhibitors. So when the liability from payment of tax is exempted, the benefit in our understanding, should go to the entity which is made liable to pay the tax. Merely because the tax is ultimately borne by the cine-goers, exemption is not intended for them particularly when, the notification targets those exhibitors, who commenced commercial operation between 1.4.2007 to 1.2.2008.\n 36. The different sections of the Assam Act must be harmoniously construed to understand the purport of the exemption notification issued under Section 8(2). The Section 3(6) imposes the liability to pay tax on the exhibitor and therefore when we construe Section 3(6) together with Section 18(3), it is logical to conclude that the benefit is intended for the exhibitors and was not meant for the movie-goers.\n 37. The next thing to consider is whether, in the context of the formats and certificates prescribed under the Assam Rules and more particularly Rule 8, it will be correct to conclude that the exemption is for the cine-goers. What is significantly different in sub-sections (1) and (2) of Section 8 is that each one operates on a different field. The sub-section (1) speaks of not charging tax on certain exigencies whereas sub-section (2) speaks of exemption from liability to pay the entertainment tax. When such distinction is made by the law makers in Section 8 itself, the formats and certificates specified under the Assam Rules has to be understood in the context of the exemption under Section 8(1). Blind application of the prescribed forms, certificates and registers in the Assam Rules for the sub-section (2) exemption (where they do not fit in), will naturally lead to an absurd situation.\n 38. The plain reading of Rule 19 and 20 of the Assam Rules would show that the same is applicable only in respect of exemption granted under Section 8(1) of the Act. While the Rule 19 do make reference to Section 8 generally but if we read Rule 19 together with Rule 20 and Form V, it becomes clear that the Rules are not applicable for exemption granted under Section 8(2) of the Assam Act. In this connection, the contention of the petitioner gets fortified by the circular No.CTA-41/84/9 dated 06.02.1987 issued by the Commissioner of Taxes, Assam.\n The govt. circular says that the exemption is to be applied under Section 8(1) of the Act. The Rule 20 clarifies the issue further when it provides that the application for exemption has to be made not less than 30 days before the date of entertainment. When the Rules are framed for carrying out the purpose of the Act the provision of the statute cannot be interpreted on the basis of the Rules framed under the Assam Act. If a particular Rule does not fit in with a specific provision of the Act, the scope of the concerned section cannot be curtailed and/or widened, on the basis of the Rules. Such forced interpretation will in our view, subvert the clear words in the statute. In any case, the Rules are intended to support the Act and can‟t abrogate the Act. Therefore the argument raised to the contrary by the counsel for the revenue, is rejected.\n 39. Unambiguous intention is essential in fiscal statute. It is not stated anywhere in the Assam Act that the exemption benefit was intended for the cine- goers. Therefore when nothing as such is mentioned, it will be erroneous to import words to construe the exemption notification, as a benefit for the cine- goers. It can‟t also be overlooked that cine-goers form a class of their own without any rational differentiation between those who watch movies in normal cinema halls and those in multiplexes. But there is clear distinction between two categories of exhibitors (ordinary cinema halls and multiplexes) where the quality of entertainment, ambience and comfort provided, are surely of two levels. The exemption notification speaks of those multiplexes which commenced commercial operation in Assam on or after 1.4.2007 but prior to 1.2.2008 and they are exempted from the liability to payment of entertainment tax. Therefore it is natural to infer from the words used that, exemption is intended for the exhibitors. According to our perception, contrary conclusion will be illogical when the literal Rules of interpretation is to be applied.\n 40. The concept of cineplex is new in Assam and the state has obviously tried to encourage establishment of cineplexes through incentives by way of exemption from the liability to pay entertainment tax. The mere fact that incidence of tax is on the cine-goers, the exemption notification in the face of clear words can‟t be understood to target those, who pay to be admitted for entertainment.\n 41. Next we have to deal with the submission of the learned Addl. Advocate General that the exemption notification shouldn‟t be construed in favour of the petitioners since mode and manner of disbursal of incentives is not prescribed here unlike in the Govt. notification dated 30.3.2007 issued under the State‟s Industrial Policy. The context in which tax incentive was granted by the Govt.\n notification dated 30.3.2007 are clearly distinguishable from the present situation. In our perception, elaborate mechanism is unnecessary here since the exhibitors are simply made free of their obligation to pay to the State, the collected tax. Therefore the argument on this issue do not aid the respondents.\n 42. The Madras High Court in P. Sankara Narayanan (supra) while examining a challenge to levy of higher tax for dubbed films had described that exhibitors is simply a collection agent since the burden of taxation is ultimately passed on the cine-goers. But in the face of the exhibitor‟s obligation under Section 3(6) of the Assam Act, the primary liability to pay the entertainment tax under the enactment we are considering, is on the exhibitors and therefore the passing observation of the learned Judge of the Madras High Court in the context of the Tamil Nadu case, can have no bearing on our decision, in the present matters.\n 43. Now we have to analyse whether the decision in Swanstone Multiplex (Supra) can be applied here to deny the benefit of the exemption notification to the exhibitors on the principle of unjust enrichment. As earlier noted, the charging of tax is not exempted but liability from payment of tax is exempted, under the Notification dated 29.3.2008 issued under sub-section (2) of Section 8.\n But on the other hand, the charging of tax exempted, when a notification is issued under sub-section (1). When the tax liability is imposed on the cineplex owners under Section 3(6) of the Assam Act, the exemption notification under Section 8(2) has to be construed in our view as one, intended to provide incentives to new multiplexes established during the specified period. Therefore when charge of tax has not been exempted (since Section 8(1) notification is not issued here), the collection of tax can‟t be described as illegal collection. Thus retention of the collected tax (when levy is not exempted), do not amount to unjust enrichment for the exhibitors. Therefore we hold that the decision in Swanstone Multiplex (Supra) can‟t be applied to deny the benefit to the petitioners in the present cases.\n 44. Consequently the tax recovered by the exhibitors, as admitted by the 2nd group of litigants, in our view is not collected illegally and therefore we declare that they have no obligation under Section 172 of the Contract Act, to refund any entertainment tax for the exempted period.\n 45. As earlier noted the charge and levy of tax was never exempted and therefore the cine-goers were not provided any relief under the exemption notification. On the other hand, the exhibitor was freed of their obligation from the liability to the entertainment tax, through the notification issued under Section 8(2) of the Assam Act. Therefore we have no hesitation to hold that incentive was intended for the investors on cineplexes and consequently for the relevant period, the exhibitors can‟t be forced to discharge their obligation under Section 3(6) of the Assam Act. Since in the present case, entertainment tax has been levied only on the ground that in spite of the exemption having been granted by the notification dated 29.03.2008, petitioners allegedly collected entertainment tax, the impugned orders of assessment are declared to be illegal, without jurisdiction and therefore the same are set aside and quashed.\n 46. Following the above discussion and our conclusion in favour of the exhibitors on all the issues as delineated above, we declare that the demand of entertainment tax from the exhibitors for the period specified in the notification dated 29.3.2008 (Annexure-I) is illegal and therefore the assessment to tax under the Assam Act for the petitioners are quashed. The cases are allowed with this declaration. No cost.\n JUDGE JUDGE Barman/Roy/Datta "
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"text": "The accused did not repay the cheque amount."
}
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"end": 2369,
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"start": 2348,
"text": "Hence, the complaint."
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"start": 2369,
"text": "\n 3. The court after taking cognizance recorded the sworn statement of the complainant, issued process to the accused, who appeared before the court through his learned counsel and obtained bail."
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"end": 2632,
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"start": 2565,
"text": "Copies of the complaint and documents are furnished to the accused."
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"end": 2751,
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"start": 2633,
"text": "On 03.06.2011, the plea of the accused was recorded, for which the accused pleaded not guilty and claimed to be tried."
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"start": 2751,
"text": "\n 4. During trial, on behalf of the complainant, he himself got examined as PW1 and examined one more witness as PW.2 and got marked the documents Ex.P1 to Ex.P7."
}
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"start": 2914,
"text": "With that the complainant closed his side."
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"end": 3107,
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"start": 2957,
"text": "The Statement of the accused as required under Section 313 of Cr.P.C. was recorded, wherein the accused denied the incriminating evidence against her."
}
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"end": 3210,
"labels": [
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"start": 3108,
"text": "On her defence, the accused got examined herself as DW.1 and got marked documents at Ex.D.1 to Ex.D.4."
}
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"end": 3249,
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"start": 3211,
"text": "With that the accused closed her side."
}
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"text": "\n 5. Heard."
}
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"end": 3325,
"labels": [
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"start": 3261,
"text": "The learned counsel for the complainant filed written arguments."
}
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"end": 3346,
"labels": [
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"start": 3326,
"text": "Perused the records."
}
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"end": 3412,
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"start": 3348,
"text": "6. The points for consideration of this Court are as under: - 1."
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"value": {
"end": 3665,
"labels": [
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"start": 3413,
"text": "Whether the complainant proves beyond all reasonable doubt that, the cheque bearing No.319609 dated 05.07.2008 for Rs.85,000/- drawn on Karnataka Bank, Mysore branch was issued by the accused to the complainant in discharge of legally recoverable debt?"
}
},
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"end": 3876,
"labels": [
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],
"start": 3667,
"text": "2. Whether the complainant further proves that the accused has failed to pay the cheque amount inspite of a legal demand and thereby committed an offence punishable U/Sec.138 of the Negotiable Instruments Act?"
}
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"end": 3892,
"labels": [
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"start": 3876,
"text": "\n 3. What order?"
}
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"start": 3892,
"text": "\n 7. The findings of this Court on the above points are as under:- Point no.1 : In the Negative.\n Point no.2 : In the Negative.\n Point no.3 :"
}
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"end": 4382,
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"start": 4082,
"text": "As per final order, for the following: REASONS 8. Point Nos.1 & 2 : As these points are inter-linked, they are taken up for common discussion to avoid repetition.\n 9. PW1- Sri. D. Chandru, the complainant herein has filed affidavit in lieu of chief examination and reiterated the complaint averments."
}
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{
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"id": "41c45a20eb594e509eb1b939810c44a2",
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"value": {
"end": 4570,
"labels": [
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],
"start": 4383,
"text": "In support of his contention, he has produced a cheque dated 05.07.2008 for Rs.85,000/- drawn on Karnataka Bank at Ex.P.1 and identified the signature of the accused therein as Ex.P.1(a)."
}
},
{
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"id": "ccf0484cc0ee41e0b4d26d4698285c48",
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"value": {
"end": 4722,
"labels": [
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],
"start": 4571,
"text": "Further he produced the bank endorsement at Ex.P.2, which discloses that the cheque-Ex.P.1 was dishonoured for the reasons `payment stopped by drawer'."
}
},
{
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"id": "7cbc3d2cbcf34834aa9558de6ac0d6a5",
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"value": {
"end": 4926,
"labels": [
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"start": 4723,
"text": "Further PW.1 produced legal notice dated 18.07.2008 at Ex.P.3, C.O.P. at Ex.P.4, postal receipt at Ex.P.5, R.P.A.D. cover returned unserved at Ex.P.6 and copy of the legal notice in it at Ex.P.6(a).\n 10."
}
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{
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"id": "8e6b4631b89f45e589e28631bea01582",
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"value": {
"end": 5184,
"labels": [
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"start": 4927,
"text": "On the other hand, DW.1-Smt. Rajeshwari, the accused has adduced in her evidence taking a defence that she had not borrowed hand loan of Rs.85,000/- from the complainant and issued the cheque at Ex.P.1 in discharge of that loan in favour of the complainant."
}
},
{
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"id": "a44f2d97dfd248cfb016e7c2768d86ff",
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"value": {
"end": 5506,
"labels": [
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],
"start": 5185,
"text": "Further, stated that the complainant is a contractor and she entered into an agreement with the complainant in the month of January 2005 for construction of her house as per the agreement at Ex.D.3 for a total sum of Rs.3,60,000/- and then an additional sum of Rs.50,000/- was agreed to be paid by her to the complainant."
}
},
{
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"id": "38f6f4fbb18c4e16a1e07a17892f8281",
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"end": 5644,
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"start": 5506,
"text": "\n 11. The fact that the complainant took the contract of the construction of accused's house is admitted by PW.1 in his cross-examination."
}
},
{
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"id": "96586643239540aaa3346556d7a14963",
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"value": {
"end": 5781,
"labels": [
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],
"start": 5645,
"text": "He also admitted about the entering into the agreement between himself and the accused as per Ex.D.2 (Ex.D.3 is the original of Ex.D.2)."
}
},
{
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"id": "37d7bffe3dd1442b83d507f2de3b94f8",
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"value": {
"end": 5837,
"labels": [
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],
"start": 5782,
"text": "The PW.1 admitted his signature in Ex.D.2 as Ex.D.2(a)."
}
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{
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"id": "ab69b93ef9ca4cf5a388fe908d8c6572",
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"value": {
"end": 6033,
"labels": [
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],
"start": 5838,
"text": "Hence, it is clearly proved that the complainant being a contractor had taken the construction work of the accused's house under the agreement Ex.D.3 (Ex.D.2) for total sum of Rs.3,60,000/-.\n 12."
}
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{
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"id": "ab5f16da99e44197a25cbf6d7472e4f3",
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"value": {
"end": 6261,
"labels": [
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"start": 6034,
"text": "Now, it is the defence of DW.1 that she had made part payment under the agreement Ex.D.3, at that time, the complainant took one cheque for Rs.85,000/- and another blank signed cheque drawn on Karnataka bank and also a pronote."
}
},
{
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"id": "fcc28ffbbb9f4c59a93a4284fd276b98",
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"value": {
"end": 6377,
"labels": [
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],
"start": 6262,
"text": "Further, DW.1 adduced that she was due to pay in all Rs.85,000/- towards the contract work done by the complainant."
}
},
{
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"id": "e197311f3c3d4481a5f320ee475ecb5d",
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"value": {
"end": 6496,
"labels": [
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],
"start": 6378,
"text": "Out of that she paid Rs.45,000/- by cash and Rs.40,000/- through a cheque, which has been encashed by the complainant."
}
},
{
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"id": "9d174e123fb8412685f0eaf2a1d2c510",
"to_name": "text",
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"value": {
"end": 6667,
"labels": [
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],
"start": 6497,
"text": "Further DW.1 adduced that she has paid entire amount due to the complainant, but when she demanded him to return the cheque, he gave lame excuses and failed to return it."
}
},
{
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"id": "3d77f5bdf39b460f9582f0b9de418faa",
"to_name": "text",
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"value": {
"end": 6878,
"labels": [
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],
"start": 6668,
"text": "In support of her contention, DW.1 produced a document drawn on a stamp paper at Ex.D.1, which when confronted to PW.1, he admitted the signature therein and also states that while he signed it, it was written."
}
},
{
"from_name": "label",
"id": "0614778c62ac46828f0f31ff8b69019e",
"to_name": "text",
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"value": {
"end": 6987,
"labels": [
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],
"start": 6878,
"text": "\nEx.D.1 depicts that on 05.05.2008, the accused paid Rs.40,000/- through cheque No.330575 to the complainant."
}
},
{
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"id": "1167a99d6bc7415d947a1da68c97581c",
"to_name": "text",
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"value": {
"end": 7162,
"labels": [
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],
"start": 6987,
"text": "\nIn fact, in his cross-examination at page-5, PW.1 made attempt to deny the payment made by the accused on 05.05.2008 through cheque No.330575 and that he had got it encashed."
}
},
{
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"id": "98666a8ed35a45208221c9a1113683b7",
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"value": {
"end": 7544,
"labels": [
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],
"start": 7162,
"text": "\n 13. The above denial of the complainant as to receipt of Rs.40,000/- through cheque from the accused is proved to be false by his own witness PW.2-Smt. Manjula, Manager, Karnataka Bank, who produced account statement of the accused Smt. Rajeshwari at Ex.P.7, which discloses that the accused got encashed Rs.40,000/- through cheque No.330575, belongs to the accused on 04.05.2008."
}
},
{
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"id": "d6e2fcc41cfa4919b871196540b98888",
"to_name": "text",
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"value": {
"end": 7817,
"labels": [
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],
"start": 7545,
"text": "This fact is further substantiated by the accused by producing her pass-book at Ex.D.4, issued by Karnataka bank, wherein the relevant entry is marked at Ex.D.4(a),, which clearly shows that on 04.05.2008, the accused Chandru encashed Rs.40,000/- through cheque No.330575."
}
},
{
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"id": "0a039db021f44fe1b4d5e0dfcb256e23",
"to_name": "text",
"type": "labels",
"value": {
"end": 7940,
"labels": [
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],
"start": 7818,
"text": "Thus, accused has proved with cogent documentary evidence as to payment of Rs40,000/- by way of cheque to the complainant."
}
},
{
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"id": "1480c330b25045f8b2be3f350b253676",
"to_name": "text",
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"value": {
"end": 8216,
"labels": [
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],
"start": 7941,
"text": "In fact, when the accused produced Ex.D.4-Passbook, while cross- examining her, it was suggested that, that amount of Rs.40,000/- was paid towards the contract pertains to the construction of the accused's house and it is not related to the transaction narrated in this case."
}
},
{
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"id": "d346a1c2ac724da0b2c364af4792b117",
"to_name": "text",
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"value": {
"end": 8293,
"labels": [
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],
"start": 8217,
"text": "Thereby, the complainant admits the receipt of Rs.40,000/- from the accused."
}
},
{
"from_name": "label",
"id": "691d45c82aec4e0a82e610d950c12eff",
"to_name": "text",
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"value": {
"end": 8404,
"labels": [
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],
"start": 8294,
"text": "That being the fact, the above denial by PW.1 as to receipt of Rs.40,000/- through cheque is false contention."
}
},
{
"from_name": "label",
"id": "f5719085a0fc4b0cbb6d80d9be5d806a",
"to_name": "text",
"type": "labels",
"value": {
"end": 8485,
"labels": [
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],
"start": 8405,
"text": "It shows that PW.1 has made attempt to suppress the real truth before the court."
}
},
{
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"id": "3906be502f5a4ee1a963dcfb049ebf97",
"to_name": "text",
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"value": {
"end": 8563,
"labels": [
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],
"start": 8486,
"text": "Thereby the court has to draw an inference that he is not a reliable witness."
}
},
{
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"id": "8a9add76ffe64fda881b91552c190398",
"to_name": "text",
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"value": {
"end": 9063,
"labels": [
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],
"start": 8563,
"text": "\n 14. When the accused has taken a specific defence, that the cheque Ex.P.1 was issued in respect of a separate transaction pertains to construction of her house and she had no money transaction with the complainant as narrated in the complaint and when there is evidence to show that the complainant had taken the contract work of the accused's house, the burden lies on the co to prove that the cheque Ex.P.1 was actually issued in discharge of the hand loan of Rs.85,000/- borrowed by the accused."
}
},
{
"from_name": "label",
"id": "74dddf51618a4004b2c925d904e8dac7",
"to_name": "text",
"type": "labels",
"value": {
"end": 9255,
"labels": [
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],
"start": 9064,
"text": "The accused has made out a probable case that she was due of Rs.85,000/- to the complainant and out of that Rs.40,000/- was paid through cheque and remaining amount was paid through the cash."
}
},
{
"from_name": "label",
"id": "26411ae311074ff2ba619ebe3fc0a07c",
"to_name": "text",
"type": "labels",
"value": {
"end": 9392,
"labels": [
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],
"start": 9256,
"text": "Though the complainant admits the receipt of Rs.40,000/- he contends it was paid not towards the loan transaction pertains to this case."
}
},
{
"from_name": "label",
"id": "517dfeacba754e17b4d28b8f9f34288a",
"to_name": "text",
"type": "labels",
"value": {
"end": 9619,
"labels": [
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],
"start": 9393,
"text": "Except the self serving testimony of PW.1, absolutely there is no evidence placed by the complainant that on 05.06.2008 he had lent Rs.85,000/- to the accused and on that day the accused issued post dated cheque in his favour."
}
},
{
"from_name": "label",
"id": "45e0ecefc7634fc386801fe467d71a7f",
"to_name": "text",
"type": "labels",
"value": {
"end": 9804,
"labels": [
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],
"start": 9620,
"text": "When according to the complainant the accused is due to pay the amount towards the contract work of her house, what was the occasion for him to pay hand loan to her is not forthcoming."
}
},
{
"from_name": "label",
"id": "04438df46d6540ac9db57e7cce55b0f7",
"to_name": "text",
"type": "labels",
"value": {
"end": 9984,
"labels": [
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],
"start": 9805,
"text": "No prudent man under similar circumstances would lend loan of Rs.85,000/- to another, when already the other person is due to pay certain sum in respect of some other transaction."
}
},
{
"from_name": "label",
"id": "b0dd3c6ac29c4002936019b0c98bb3be",
"to_name": "text",
"type": "labels",
"value": {
"end": 10192,
"labels": [
"ANALYSIS"
],
"start": 9985,
"text": "It is relevant to mention that in her cross-examination PW.2, the Bank manager has specifically stated as follows: \" rfn ZP Ag Īig 2004 QAv Az Ev. 2008 g 16 rfn ZP Ag ZAiİv. 1 ZP 2003-04 ZP DVgvzAzg j.\"\n "
}
},
{
"from_name": "label",
"id": "924c92abee164346ab600e36aba8b98b",
"to_name": "text",
"type": "labels",
"value": {
"end": 10264,
"labels": [
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],
"start": 10192,
"text": "Thus, it is clear that the cheque Ex.P.1 pertains to the year 2003-2004."
}
},
{
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"id": "55558865d3444be2b7ac6795c47c3cfe",
"to_name": "text",
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"value": {
"end": 10386,
"labels": [
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],
"start": 10265,
"text": "If that were to be true, then issuing that cheque-Ex.P.1 on 05.06.2008 in favour of the complainant is highly improbable."
}
},
{
"from_name": "label",
"id": "4b0baa3e69214e3396f6e4372ae64c2b",
"to_name": "text",
"type": "labels",
"value": {
"end": 10582,
"labels": [
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],
"start": 10387,
"text": "That evidence of PW.2 supports the defence of the accused that it was issued in favour of the complainant at the time of entering into the contract agreement at Ex.D.3, way back in the year 2006."
}
},
{
"from_name": "label",
"id": "ee711a880f9d45b0bd58694e2fd5fa7d",
"to_name": "text",
"type": "labels",
"value": {
"end": 10860,
"labels": [
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],
"start": 10583,
"text": "Moreover, in the cross-examination of DW.1 at page-4 it was suggested as follows: \"gzgg PAmP Pɮ iqvgAzg j.\n ģ PUjAi gzgjU PAmP P nz JAzg j. v gzgg DU ZɣVzê JAzg j. gzgg ģ PAmP Pɮ irz AAz g. 85 g g Q GPArz JAzg j. 1 ZP̣ gzgj U 2006 EAiİ ģ PAmP Pɮ AAz Q Pq Ez tP Pngvã.\"\n "
}
},
{
"from_name": "label",
"id": "8f517bd5a31946d684ca8e179789f65f",
"to_name": "text",
"type": "labels",
"value": {
"end": 11021,
"labels": [
"ANALYSIS"
],
"start": 10860,
"text": "From the above suggestion, it can be make out that the complainant also admits that the accused was due to pay Rs.85,000/- towards the contract work done by him."
}
},
{
"from_name": "label",
"id": "a2e09a51cb8e4085a8889c1a833e87ac",
"to_name": "text",
"type": "labels",
"value": {
"end": 11168,
"labels": [
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],
"start": 11022,
"text": "When DW.1 stated that Ex.P.1 was issued in the year 2006 in favour of the complainant towards that contract work, the complainant did not deny it."
}
},
{
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"id": "132737fdcc4942ec85b4d3ccb9b02c3f",
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"value": {
"end": 11298,
"labels": [
"ANALYSIS"
],
"start": 11169,
"text": "Thereby, it clearly establishes that the cheque-Ex.P.1 was issued while executing the contract agreement Ex.D.3 in the year 2006."
}
},
{
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"id": "89643fbab0a84f58bb726ba8bc95d1e0",
"to_name": "text",
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"value": {
"end": 11390,
"labels": [
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],
"start": 11299,
"text": "There is no evidence led by the complainant to rebut the above evidence led by the accused."
}
},
{
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"id": "c353ff88a1ca4ce98a6ee1794b7feb08",
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"end": 11606,
"labels": [
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],
"start": 11391,
"text": "Moreover, the amount mentioned in Ex.P.1-cheque i.e. Rs.85,000/- clearly tallies with the due amount payable by the accused to the complainant towards the contract work as suggested above to DW.1 by the complainant."
}
},
{
"from_name": "label",
"id": "c14e6f47fd294ced99527807ed3e8277",
"to_name": "text",
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"value": {
"end": 11774,
"labels": [
"ANALYSIS"
],
"start": 11607,
"text": "As such, the contention of the complainant that the accused issued the post dated cheque-Ex.P.1 on 05.06.2008 shall falls to the ground and that has to be disbelieved."
}
},
{
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"id": "ea8eeee388e64199ae5c7c3a5b93e5de",
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"end": 12044,
"labels": [
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],
"start": 11774,
"text": "\n 15. The learned counsel for the complainant has argued that the accused has admitted her signature in the cheque and therefore the court has to draw presumption that the cheque was issued by the accused for valid consideration in discharge of legally recoverable debt."
}
},
{
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"id": "4f36adb9822746b5b0974fba4e38fc68",
"to_name": "text",
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"value": {
"end": 12153,
"labels": [
"ARG_PETITIONER"
],
"start": 12045,
"text": "No doubt, under the N.I. Act, there are presumptions under Section 139 and 118 in favour of the complainant."
}
},
{
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"id": "3e378069e6e742e58d6cccf6efd66dfb",
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"end": 12308,
"labels": [
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],
"start": 12154,
"text": "But, so as to invoke that presumption, it is the bounden duty of the complainant to prove his case first, then only the court has to draw the presumption."
}
},
{
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"id": "dac41e601a8846f78fe833559d01deb2",
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"end": 12451,
"labels": [
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],
"start": 12309,
"text": "If the complainant has failed to prove his case at the inception itself, then there is no question of drawing presumption available under law."
}
},
{
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"id": "2a015fb049ff40f19d8efc038b5461d7",
"to_name": "text",
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"end": 12628,
"labels": [
"ARG_PETITIONER"
],
"start": 12452,
"text": "Hence, the complainant must first satisfy the court that there exist legally enforceable debt or liability and the accused had issued the cheque in discharge of that liability."
}
},
{
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"id": "53f7aa034f954873b1e532824b9bcdc1",
"to_name": "text",
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"value": {
"end": 12722,
"labels": [
"ARG_PETITIONER"
],
"start": 12629,
"text": "Then only the court could have proceed to draw presumption under Section 139 of the N.I.\nAct."
}
},
{
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"id": "ab43750320e540b4b624b8bae32ce1de",
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"type": "labels",
"value": {
"end": 13061,
"labels": [
"ARG_PETITIONER"
],
"start": 12723,
"text": "The learned counsel for the complainant has relied upon a decisions reported in 2011 (2) DCR 189 (Balwant Singh V/s Ram Singh), wherein the Hon'ble court held that signature on cheque is admitted, then the story set up by the defence that the cheque was procured under police pressure cannot be accepted in the absence of cogent evidence."
}
},
{
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"id": "4ee88798020742cd9245c1ebaf6e32bb",
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"type": "labels",
"value": {
"end": 13398,
"labels": [
"ARG_PETITIONER"
],
"start": 13061,
"text": "\nFurther, he also relied upon a decision reported in ILR 2007 KAR 311 (Mr. Umraz Khan V/s Mr.A.Jameel Ahmed and another), wherein the Hon'ble courts held that admission that the cheque was issued as security for repayment of loan will not make any difference and it will not take the transaction out of sweep of Sec. 138 of the N.I. Act."
}
},
{
"from_name": "label",
"id": "edf3552246464d09888628ffed11daf8",
"to_name": "text",
"type": "labels",
"value": {
"end": 13499,
"labels": [
"PRE_NOT_RELIED"
],
"start": 13399,
"text": "The principles of law laid down in the above decisions are not applicable to the facts of this case."
}
},
{
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"id": "2a33968d2bb1415b8a9e21d519b6a19d",
"to_name": "text",
"type": "labels",
"value": {
"end": 13628,
"labels": [
"ANALYSIS"
],
"start": 13500,
"text": "In the case on hand, the accused has not admitted that the cheque Ex.P.1 was issued by her as security for the loan transaction."
}
},
{
"from_name": "label",
"id": "f03c37252e354575943a00a447c17699",
"to_name": "text",
"type": "labels",
"value": {
"end": 13855,
"labels": [
"ANALYSIS"
],
"start": 13629,
"text": "On the contrary, she had totally denied the loan transaction as alleged by the complainant, but she contended that the cheque Ex.P.1 was issued towards the contract work undertaken by the complainant way back in the year 2006."
}
},
{
"from_name": "label",
"id": "2e90178907374b34bd4a7e9d17a34bcb",
"to_name": "text",
"type": "labels",
"value": {
"end": 13987,
"labels": [
"ANALYSIS"
],
"start": 13856,
"text": "Further, the accused by leading probable evidence shown how the possession of the cheque Ex.P.1 has been passed to the complainant."
}
},
{
"from_name": "label",
"id": "f7ddbbcb659a4503a523cc80c38424a1",
"to_name": "text",
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"value": {
"end": 14165,
"labels": [
"ANALYSIS"
],
"start": 13987,
"text": "\n 16. Moreover, mere admission of signature in the cheque itself is not sufficient to hold that the cheque was actually issued for discharge of the loan amount mentioned therein."
}
},
{
"from_name": "label",
"id": "2e2a77643df544e2b6f13689ad7be00d",
"to_name": "text",
"type": "labels",
"value": {
"end": 14792,
"labels": [
"PRE_RELIED"
],
"start": 14166,
"text": "At this stage, this court relies upon decisions reported in ILR 2009 KAR 2331 (B. Indramma V/s Sri.\nEshwar), wherein the Hon'ble court held as follows: \"When the very factum of delivery of the cheque in question by the accused to the complainant and its receipt by the complainant from the accused itself is seriously disputed by the accused, his admission in his evidence that the cheque in question bears his signature would not be sufficient proof of the fact that he delivered the said cheque to the complainant and the latte `received it from the former' so as to raise the presumption under Section 139 of the N.I. Act.\""
}
},
{
"from_name": "label",
"id": "918aa00783e54a0fa0321aa3db93f7ac",
"to_name": "text",
"type": "labels",
"value": {
"end": 15173,
"labels": [
"PRE_RELIED"
],
"start": 14792,
"text": "\n 17. In another decision reported in 2012 (1) DCR 385 (Santhi V/s Mary Sherly), wherein the Hon'ble court held as follows: \"On consideration of the various aspects and provisions of the Act, I am of view that the contention raised by an accused in a prosecution under Section 138 of the Act that he issued a blank signed cheque will not amount to admission of execution of cheque."
}
},
{
"from_name": "label",
"id": "365c161ac4eb405ebfa89ea2ccb507da",
"to_name": "text",
"type": "labels",
"value": {
"end": 15318,
"labels": [
"PRE_RELIED"
],
"start": 15174,
"text": "A signed blank cheque leaf is very often referred to as a blank \"cheque\", but, strictly speaking, it is not a \"cheque\" as defined under the Act."
}
},
{
"from_name": "label",
"id": "d8d32b7771ab4edfafe443b600285aa0",
"to_name": "text",
"type": "labels",
"value": {
"end": 15402,
"labels": [
"PRE_RELIED"
],
"start": 15319,
"text": "It can be treated only as a \"cheque leaf\" containing admitted signature of accused."
}
},
{
"from_name": "label",
"id": "de259ed275ec46e4a01c51b30665de2b",
"to_name": "text",
"type": "labels",
"value": {
"end": 15514,
"labels": [
"PRE_RELIED"
],
"start": 15403,
"text": " The admission of signature in a cheque leaf along will not constitute admission of execution of the cheque.\"\n "
}
},
{
"from_name": "label",
"id": "d7c4a05481b547de9abf4e903136d182",
"to_name": "text",
"type": "labels",
"value": {
"end": 15616,
"labels": [
"PRE_RELIED"
],
"start": 15514,
"text": "The principles of law laid down in the above decisions are aptly applicable to the facts of this case."
}
},
{
"from_name": "label",
"id": "575a9e2976ed41ff8e535c5cb2077de7",
"to_name": "text",
"type": "labels",
"value": {
"end": 15783,
"labels": [
"ANALYSIS"
],
"start": 15617,
"text": "In the case on hand also, just because the accused has admitted her signature in Ex.P.1-cheque, that alone will not construed as admission of execution of the cheque."
}
},
{
"from_name": "label",
"id": "8dfe8cdfdca247338af3c5a6e65f8a3a",
"to_name": "text",
"type": "labels",
"value": {
"end": 15972,
"labels": [
"ANALYSIS"
],
"start": 15783,
"text": "\n 18. Of course, the accused took a contention that the legal notice is not duly served on her and therefore the complainant has not duly complied the provisions of Sec. 138 of the N.I.Act."
}
},
{
"from_name": "label",
"id": "7dcdab6297f04d8c9c379f60ca512263",
"to_name": "text",
"type": "labels",
"value": {
"end": 16125,
"labels": [
"ANALYSIS"
],
"start": 15973,
"text": "However, the postal endorsement on the R.P.A.D. cover- Ex.P.4 would indicate that it was returned for the reason `returned to sender as not in station'."
}
},
{
"from_name": "label",
"id": "8daf13ad85d74bd38a4254c55030765c",
"to_name": "text",
"type": "labels",
"value": {
"end": 16227,
"labels": [
"ANALYSIS"
],
"start": 16126,
"text": "Though the accused contended that at the relevant point of time, she was not staying in that address."
}
},
{
"from_name": "label",
"id": "1e5bab25390143198dcc90b1ea96aa36",
"to_name": "text",
"type": "labels",
"value": {
"end": 16270,
"labels": [
"ANALYSIS"
],
"start": 16228,
"text": "She did not laid any evidence to prove it."
}
},
{
"from_name": "label",
"id": "c638f55ca15a497091b4bba3588b0308",
"to_name": "text",
"type": "labels",
"value": {
"end": 16421,
"labels": [
"ANALYSIS"
],
"start": 16271,
"text": "On the contrary in her cross-examination, at page-3, she admits the address mentioned Ex.P.3 notice and Ex.P.6 R.P.A.D. cover are her correct address."
}
},
{
"from_name": "label",
"id": "a27426ec766943c3883f3484d0606871",
"to_name": "text",
"type": "labels",
"value": {
"end": 16559,
"labels": [
"ANALYSIS"
],
"start": 16422,
"text": "If the accused contends that there is no due service of notice, then the burden lies on her to prove her contention with cogent evidence."
}
},
{
"from_name": "label",
"id": "15421230105f488b8f79d1022bc31461",
"to_name": "text",
"type": "labels",
"value": {
"end": 16743,
"labels": [
"ANALYSIS"
],
"start": 16560,
"text": "It is settled law that if a notice is served to the proper and correct address, though it is returned with the shara `returned unserved' it shall be deemed to be served on the accused"
}
},
{
"from_name": "label",
"id": "3a818ecd1ec34d439c5cbdaaac1bf6b8",
"to_name": "text",
"type": "labels",
"value": {
"end": 17428,
"labels": [
"ARG_PETITIONER"
],
"start": 16743,
"text": ". In fact, the learned counsel for the complainant has relied upon the decisions reported in AIR 2005 Supreme court 109 (V.Raja Kumari V/s P. Subbarama Naidu and another), 2004 (2) DCR 384 (Nirdosh Enterprises, Hyderabad V/s State of A.P. and another), 2010 (1) DCR 766 (Babulal V/s Gafur & Another), ILR 2007 KAR 311 (Mr. Umraz Khan V/s Mr.A.Jameel Ahmed and another), 2012 (1) KCCR 156 (B.Jayarama Shetty V/s Biviyas Finance and Leasing Limited, Kundapura Taluk,), Wherein the Hon'ble courts held that though the notice was returned as refusal by the addressee, but the notice is dispatched by the sender to the correct address, then it shall be deemed to be served to the addressee."
}
},
{
"from_name": "label",
"id": "169eef31472348659aca7d1155512ca8",
"to_name": "text",
"type": "labels",
"value": {
"end": 17530,
"labels": [
"ANALYSIS"
],
"start": 17429,
"text": "Hence, whatever contention taken by the accused about non-service of legal notice has to be rejected."
}
},
{
"from_name": "label",
"id": "c8156142db9246dda5d0052f72116ef0",
"to_name": "text",
"type": "labels",
"value": {
"end": 17929,
"labels": [
"ARG_PETITIONER"
],
"start": 17530,
"text": "\n 19. However, the learned counsel for the complainant has relied upon the decisions reported in 2003(2) DCR 145 (M/s Jayam Company and another V/s T.Ravichandran) and 2012 (1) DCR 242 R.Raju V/s K.Sivasamy), wherein the Hon'ble courts held that if the accused fails to reply the notice inspite of due service of the legal notice without denying the allegations then it cannot be easily overlooked.\n"
}
},
{
"from_name": "label",
"id": "41913ad4e4184f88ad4cbcd7f0a8656f",
"to_name": "text",
"type": "labels",
"value": {
"end": 18063,
"labels": [
"ANALYSIS"
],
"start": 17929,
"text": "Of course, in the normal circumstances, non issuance of reply notice by the accused inspite of due service has to be viewed seriously."
}
},
{
"from_name": "label",
"id": "87ccae42514347d9a5127327d50666fc",
"to_name": "text",
"type": "labels",
"value": {
"end": 18201,
"labels": [
"ANALYSIS"
],
"start": 18064,
"text": "In the case on hand, though there is deemed service, there is no proper evidence to show that it has been actually served to the accused."
}
},
{
"from_name": "label",
"id": "65b07d8e6a9d466f9ec4cff9292cc6dc",
"to_name": "text",
"type": "labels",
"value": {
"end": 18335,
"labels": [
"ANALYSIS"
],
"start": 18202,
"text": "Further, non-issuance of the reply notice can be taken as one of the corroborative ground so as to reject the defence of the accused."
}
},
{
"from_name": "label",
"id": "4d38ae5b3cae4985a35b87dc95de73e3",
"to_name": "text",
"type": "labels",
"value": {
"end": 18413,
"labels": [
"ANALYSIS"
],
"start": 18336,
"text": "But, that cannot be only ground to disbelieve the entire case of the accused."
}
},
{
"from_name": "label",
"id": "3a352cab5acc41c38cb22b590ce5258f",
"to_name": "text",
"type": "labels",
"value": {
"end": 18703,
"labels": [
"ANALYSIS"
],
"start": 18414,
"text": "In the case on hand, the accused by leading probable evidence, has put forth her defence so as to show that she has not borrowed the hand loan as asserted in the complaint, but the cheque-Ex.P.1 was issued in respect of contract work of her house given to the complainant in the year 2006."
}
},
{
"from_name": "label",
"id": "609c4ba9819f43a6abc05595dd4fbde4",
"to_name": "text",
"type": "labels",
"value": {
"end": 18770,
"labels": [
"PRE_RELIED"
],
"start": 18704,
"text": "Therefore, the above decisions are not helpful to the complainant."
}
},
{
"from_name": "label",
"id": "0323261e3ecf420895a490cd319e28eb",
"to_name": "text",
"type": "labels",
"value": {
"end": 19177,
"labels": [
"PRE_RELIED"
],
"start": 18772,
"text": "20. As per the decisions of the Hon'ble Supreme Court of India reported in (2008) 2 Supreme Court Cases (Criminal) 166 (Krishna Janardhan Bhat V/s Dattatraya G.\n Hegde) and 2010 AIR SCW 2946 (Rangappa V/s Mohan) and also in the decisions relied by the learned counsel for the accused reported in 2010 (2) Kar.L.J. 284 (B. Girish V/s S.\nRamaiah), 2013 (3) KCCR 1940 (Smt. Lakshmi Subramanya v/s B.V. Nagesh"
}
},
{
"from_name": "label",
"id": "010a4308ec8647da81a528d0c1e749b2",
"to_name": "text",
"type": "labels",
"value": {
"end": 19319,
"labels": [
"PRE_RELIED"
],
"start": 19177,
"text": "), it was held that the standard of evidence to be led by the accused is preponderance of probabilities and not proof beyond reasonable doubt."
}
},
{
"from_name": "label",
"id": "c4bbde509b7a45418c5423e9c75cd635",
"to_name": "text",
"type": "labels",
"value": {
"end": 19408,
"labels": [
"PRE_RELIED"
],
"start": 19320,
"text": "On the contrary, for the complaint he should prove his case beyond all reasonable doubt."
}
},
{
"from_name": "label",
"id": "60e91bc308bb4004888a510106b273ef",
"to_name": "text",
"type": "labels",
"value": {
"end": 20029,
"labels": [
"PRE_RELIED"
],
"start": 19409,
"text": "In other decisions reported in 2010(1) DCR 231 (N.Chiraj Travels (Pvt) Ltd. V/s Ashwani Kumar and another) and 2011 (1) DCR 254 (Mahendra Gulabchind Kohar V/s Cakharam Ramdas Patil) the Hon'ble Delhi and Bombay High courts having relied upon the decisions of Hon'ble Supreme Court of India referred supra, held that the presumption under Section 139 of N.I. Act is rebutable and the accused can prove the non- existence of any debt or liability by raising probable defence or by demolishing or discrediting the case of complainant and it is not necessary for the accused to prove his defence beyond all reasonable doubt."
}
},
{
"from_name": "label",
"id": "70da879d490d4adaa54028709c14c7fa",
"to_name": "text",
"type": "labels",
"value": {
"end": 20379,
"labels": [
"PRE_RELIED"
],
"start": 20030,
"text": "Further, this court relies upon a decision reported in 2011(3) Crimes 158 (Bom) (Sriniwas Ramdas Siwerwat V/s Shantaram Pandurang Deotale) wherein the Hon'ble Court held at page-13 as follows: \"The statutory presumptions in favour of the complainant are not by themselves evidence but only make out the prima-facie case in favour of the complainant."
}
},
{
"from_name": "label",
"id": "2b5b194aaf374037b6353b5af43629ab",
"to_name": "text",
"type": "labels",
"value": {
"end": 20591,
"labels": [
"PRE_RELIED"
],
"start": 20380,
"text": "They can exist, live and survive the contrary evidence is proved by the accused sufficient enough to believe that the cheques in question were not issued by the accused for any consideration / debt or liability."
}
},
{
"from_name": "label",
"id": "4eab5f4dcedc47d5867e630a7b566e78",
"to_name": "text",
"type": "labels",
"value": {
"end": 20795,
"labels": [
"PRE_RELIED"
],
"start": 20592,
"text": "It is open for the accused to rebut the statutory presumption by proving that the cheques were not issued for any consideration or that there was no any debt or liability to be discharged by the accused."
}
},
{
"from_name": "label",
"id": "ef7aff85df34477cbaa24ec9b8196636",
"to_name": "text",
"type": "labels",
"value": {
"end": 20866,
"labels": [
"PRE_RELIED"
],
"start": 20796,
"text": "The accused can succeed upon proof of preponderance of probabilities.\""
}
},
{
"from_name": "label",
"id": "a662e4078b064a3f9a013004e15a33e2",
"to_name": "text",
"type": "labels",
"value": {
"end": 20970,
"labels": [
"ANALYSIS"
],
"start": 20866,
"text": "\n The principles of law laid down in the above decisions are aptly applicable to the facts of this case."
}
},
{
"from_name": "label",
"id": "75fccb5dbffa4ba3a7eb187fc131905e",
"to_name": "text",
"type": "labels",
"value": {
"end": 21216,
"labels": [
"ANALYSIS"
],
"start": 20971,
"text": "In the case on hand also, the accused by leading cogent evidence in all probabilities proved that she issued the cheque-Ex.P1 in favour of the complainant in respect of contract work in the year 2006 and that has been misused by the complainant."
}
},
{
"from_name": "label",
"id": "ed7f763dd2ba4fd7848b0b3882aa087b",
"to_name": "text",
"type": "labels",
"value": {
"end": 21340,
"labels": [
"ANALYSIS"
],
"start": 21216,
"text": "\n The initial burden always lies on the complainant and if she proves her case prima facie, then onus shifts on the accused."
}
},
{
"from_name": "label",
"id": "f2e92c7ff5a1460cb5b63c68dea85cc8",
"to_name": "text",
"type": "labels",
"value": {
"end": 21479,
"labels": [
"PRE_RELIED"
],
"start": 21340,
"text": "\n Thus the complainant has failed to discharge the initial burden so as to attract the necessary ingredients of S.138 of the N.I. Act.\n 21."
}
},
{
"from_name": "label",
"id": "5b72a4e5e8004379bba0d1d29c9903ac",
"to_name": "text",
"type": "labels",
"value": {
"end": 21862,
"labels": [
"PRE_RELIED"
],
"start": 21480,
"text": "In another decision reported in: AIR 2007 NOC 2612 A.P.(G. Veeresham V/s Shivashankar and Another) the Hon'ble Court has held as under: \"Negotiable Instruments Act (26 of 1881), S.138 Dishonour of cheque Presumptions available to complainant under S.118 and S.139 of Act- Rebuttal of cheque in question was allegedly issued by accused to discharge hand loan taken from complainant."
}
},
{
"from_name": "label",
"id": "6f36845f3fa942218cde5fdee7eb242a",
"to_name": "text",
"type": "labels",
"value": {
"end": 22162,
"labels": [
"PRE_RELIED"
],
"start": 21863,
"text": "However, no material placed on record by complainant to prove alleged lending of hand loan said fact is sufficient to infer that accused is liable to rebut presumptions available in favour of complainant under sections 118 and 139 of Act, Order acquitting accused for offence under S.138, proper\".\n "
}
},
{
"from_name": "label",
"id": "86c85d68346b450eb9a1c01554fafcf0",
"to_name": "text",
"type": "labels",
"value": {
"end": 22255,
"labels": [
"ANALYSIS"
],
"start": 22162,
"text": "The principle of law laid down in the above decision is applicable to the facts of this case."
}
},
{
"from_name": "label",
"id": "67da1becc8234dc589d6ee836217253b",
"to_name": "text",
"type": "labels",
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"end": 22415,
"labels": [
"ANALYSIS"
],
"start": 22256,
"text": "In the case on hand also, as discussed above, the complainant has failed to prove with cogent evidence as to the lending of loan of Rs.85,000/- to the accused."
}
},
{
"from_name": "label",
"id": "6533ae70f31344ae9ced0b8a798b4ffc",
"to_name": "text",
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"value": {
"end": 22582,
"labels": [
"ANALYSIS"
],
"start": 22416,
"text": "Thus, that fact itself is sufficient to infer that accused is able to rebut presumptions available in favour of complainant under sections 118 and 139 of the N.I.Act."
}
},
{
"from_name": "label",
"id": "fc35883b1e1546d6b11e3dc005a83fa0",
"to_name": "text",
"type": "labels",
"value": {
"end": 22848,
"labels": [
"PRE_RELIED"
],
"start": 22583,
"text": "In a decision reported in AIR 2006 Supreme Court 3366 (M.S.Narayana Menon alias Mani V/s State of Kerala & Anr.), the Hon'ble Apex court held that once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution."
}
},
{
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"id": "18a6f43e533641d7bc38a838f66a540c",
"to_name": "text",
"type": "labels",
"value": {
"end": 23023,
"labels": [
"PRE_RELIED"
],
"start": 22849,
"text": "In this case on hand also, the accused has proved in all probability that she is not liable to pay Ex.P1-cheque amount of Rs. 85,000/- and it is not legally recoverable debt."
}
},
{
"from_name": "label",
"id": "9b688ff90a1945778d13e1685de2b458",
"to_name": "text",
"type": "labels",
"value": {
"end": 23205,
"labels": [
"PRE_RELIED"
],
"start": 23024,
"text": "So, the burden is on the complainant to prove strictly with cogent and believable evidence that the accused has borrowed the cheque amount and she is legally liable to pay the same."
}
},
{
"from_name": "label",
"id": "b0a0b5931d5340f6895871f4860740f6",
"to_name": "text",
"type": "labels",
"value": {
"end": 23391,
"labels": [
"ANALYSIS"
],
"start": 23206,
"text": "But, except some inconsistent and improbable evidences as discussed above, the complainant has failed to prove with satisfactory evidence the lending of Rs.85,000/- loan to the accused."
}
},
{
"from_name": "label",
"id": "440d743e9a7d411c9ea57848028c2782",
"to_name": "text",
"type": "labels",
"value": {
"end": 23632,
"labels": [
"ANALYSIS"
],
"start": 23392,
"text": "Just because, there is a presumption under Section 139 of N.I.\nAct, that will not create any special right to the complainant so as to initiate a proceeding against the drawer of the cheque who is not at all liable to pay the cheque amount."
}
},
{
"from_name": "label",
"id": "9fef1df06af046a499bf59912570331b",
"to_name": "text",
"type": "labels",
"value": {
"end": 23878,
"labels": [
"ANALYSIS"
],
"start": 23633,
"text": "From the above elaborate discussions, it very much clear that the complainant has failed to adduce cogent and corroborative evidence to show that accused has issued cheque- Ex.P.1 in discharge of her legally payable debt for valid consideration."
}
},
{
"from_name": "label",
"id": "04e9aa51d8b04818af0ae1541410df0a",
"to_name": "text",
"type": "labels",
"value": {
"end": 24020,
"labels": [
"ANALYSIS"
],
"start": 23878,
"text": "\nOn the other hand, the accused has successfully rebutted the legal presumptions under Section 139 and 118 of Negotiable Instruments Act.\n 22."
}
},
{
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"id": "a531ab099db84f3a81423ae0e4cbed0f",
"to_name": "text",
"type": "labels",
"value": {
"end": 24212,
"labels": [
"ANALYSIS"
],
"start": 24020,
"text": "\nBasically, insertion of the penal provision under section 138 of the N.I. Act, 1881, is to maintain a healthy business transaction between the people based on faith, belief and understanding."
}
},
{
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"id": "bbb1de9d3a4e40fb8e7dd4b6914fbbcf",
"to_name": "text",
"type": "labels",
"value": {
"end": 24325,
"labels": [
"ANALYSIS"
],
"start": 24213,
"text": "That is why, the drawer of a cheque should not be allowed to abuse the accommodation given to him by a creditor."
}
},
{
"from_name": "label",
"id": "4cf1bfd298a34e53839d261c4bd6ba7f",
"to_name": "text",
"type": "labels",
"value": {
"end": 24488,
"labels": [
"ANALYSIS"
],
"start": 24326,
"text": "At the same time, the payee or holder of a cheque cannot be permitted to use that penal provision under law as a weapon for unlawful gain or to harass the debtor."
}
},
{
"from_name": "label",
"id": "40624c26a8294d7fb4a46ce23717844e",
"to_name": "text",
"type": "labels",
"value": {
"end": 24666,
"labels": [
"ANALYSIS"
],
"start": 24489,
"text": "To initiate a penal action under Section 138 of the N.I.Act, against a drawer of a cheque, there should not be any kind of lapse or lacuna on the part of the holder of a cheque."
}
},
{
"from_name": "label",
"id": "7cabb1101a7545c4a53a71ff52457a7a",
"to_name": "text",
"type": "labels",
"value": {
"end": 24855,
"labels": [
"ANALYSIS"
],
"start": 24667,
"text": "Because, the proceeding under section 138 of the N.I.Act is not for recovery of money but to punish a dishonest and incredible debtor, who intentionally tries to escape from his liability."
}
},
{
"from_name": "label",
"id": "4df925d62172462f93b544c6f8c619bc",
"to_name": "text",
"type": "labels",
"value": {
"end": 25006,
"labels": [
"ANALYSIS"
],
"start": 24856,
"text": "That is why, it is the duty of the complainant in a given case under the NI Act, 1881, to place a stable and firm case on his behalf before the court."
}
},
{
"from_name": "label",
"id": "db69be7605fe458f9486b6dfa4fd41af",
"to_name": "text",
"type": "labels",
"value": {
"end": 25192,
"labels": [
"ANALYSIS"
],
"start": 25007,
"text": "When the case of the complainant is shaky, unstable, untrustworthy and doubtful one, then in the opinion of this court, no presumption that is available under law will come to his help."
}
},
{
"from_name": "label",
"id": "bfe9bb194d3445feb2dc905c9545957a",
"to_name": "text",
"type": "labels",
"value": {
"end": 25356,
"labels": [
"ANALYSIS"
],
"start": 25193,
"text": "In the case on hand, the accused has taken several contentions before the court and made out grounds to show that the case of the complainant is highly improbable."
}
},
{
"from_name": "label",
"id": "bcc4ca3294d049378c03e4c9ae413f12",
"to_name": "text",
"type": "labels",
"value": {
"end": 25515,
"labels": [
"ANALYSIS"
],
"start": 25357,
"text": "The conduct of the complainant shows his dishonest intention to defraud the accused and for wrongful gain filed this false compliant against the accused.\n 23."
}
},
{
"from_name": "label",
"id": "d5f84a0bce544c53a260bf4296fa10ca",
"to_name": "text",
"type": "labels",
"value": {
"end": 25952,
"labels": [
"ANALYSIS"
],
"start": 25516,
"text": "From the documents produced before the court it is very much clear that within 6 months from the date of cheque the complainant has presented the cheque for encashment and within one month from the date of issuance of the bank memo, the complainant has issued notice to the accused and after 15 days from the date of service of the said notice to the accused, within one month the complainant has filed this complaint before this court."
}
},
{
"from_name": "label",
"id": "4ecd02f9456b4132ac50c297e62eaab8",
"to_name": "text",
"type": "labels",
"value": {
"end": 26088,
"labels": [
"ANALYSIS"
],
"start": 25953,
"text": "As such, the complainant has complied with all the statutory requirements so as to initiate a proceeding under Section 138 of N.I. Act."
}
},
{
"from_name": "label",
"id": "6a10178a2ca44644bac6a37b045e0a51",
"to_name": "text",
"type": "labels",
"value": {
"end": 26415,
"labels": [
"ANALYSIS"
],
"start": 26088,
"text": "\nBut, the fact to be considered is, when the complainant has failed to prove that there was legally recoverable debt and in discharge of that debt only cheque-Ex.P.1 was issued, even if the legal notice was served on the accused and the accused has failed to pay the cheque amount, still the accused cannot be found fault with."
}
},
{
"from_name": "label",
"id": "21685e867d5449ff8de13a1addddf7a4",
"to_name": "text",
"type": "labels",
"value": {
"end": 26585,
"labels": [
"ANALYSIS"
],
"start": 26416,
"text": "Because, when the accused is not liable to pay the amount demanded under the notice, then, the accused is not liable to pay the amount what is demanded under the notice."
}
},
{
"from_name": "label",
"id": "5efc3900819f4dfb834e92b22d6a8f49",
"to_name": "text",
"type": "labels",
"value": {
"end": 26700,
"labels": [
"ANALYSIS"
],
"start": 26586,
"text": "In the opinion of this court, the accused has got every right not to pay that amount so demanded under the notice."
}
},
{
"from_name": "label",
"id": "d5bf99ba5e90423c836505616f6595ca",
"to_name": "text",
"type": "labels",
"value": {
"end": 26810,
"labels": [
"ANALYSIS"
],
"start": 26701,
"text": "The drawee has no right to demand any amount, which is not legally recoverable from the drawer of the cheque."
}
},
{
"from_name": "label",
"id": "79fce8897849405ab05f4913ebd6f042",
"to_name": "text",
"type": "labels",
"value": {
"end": 26991,
"labels": [
"ANALYSIS"
],
"start": 26811,
"text": "Hence, non-payment of the cheque amount as demanded by the complainant under the notice cannot be termed as intentional default on the part of the accused to pay the cheque amount."
}
},
{
"from_name": "label",
"id": "6df2d9b387eb487c8949d274b8ca65db",
"to_name": "text",
"type": "labels",
"value": {
"end": 27203,
"labels": [
"RATIO"
],
"start": 26991,
"text": "\n 24. On perusal of the entire oral and documentary evidence placed on record on behalf of both the parties, it is clear that, the case of the complainant is not cogent, convincing, corroborative and trustworthy."
}
},
{
"from_name": "label",
"id": "6ac06d9f0a7442edac288e2ed2c93a44",
"to_name": "text",
"type": "labels",
"value": {
"end": 27395,
"labels": [
"RATIO"
],
"start": 27204,
"text": "The material omissions, inconsistencies, discrepancies and contradictions in the evidence of P.W.1 itself is sufficient to rebut the legal presumptions available in favour of the complainant."
}
},
{
"from_name": "label",
"id": "001927b7a6f348169999db916c1bc6fc",
"to_name": "text",
"type": "labels",
"value": {
"end": 27517,
"labels": [
"RATIO"
],
"start": 27396,
"text": "Thus, this court is of the considered view that the complainant has failed to prove his case beyond all reasonable doubt."
}
},
{
"from_name": "label",
"id": "e5f95f1ecc5749ef859db05da9c33601",
"to_name": "text",
"type": "labels",
"value": {
"end": 27597,
"labels": [
"RPC"
],
"start": 27517,
"text": "\nAccordingly point Nos.1 and 2 are answered in the `Negative'.\n 25. Point no.3:-"
}
},
{
"from_name": "label",
"id": "6392a4cb4bf14b6bb1704f071d54230c",
"to_name": "text",
"type": "labels",
"value": {
"end": 27872,
"labels": [
"RPC"
],
"start": 27598,
"text": "Having thus discussed in detail, this court proceed to pass the following: ORDER Acting under Sec.255 (1) of the Criminal Procedure Code, 1973, the accused is found not guilty and she is acquitted for the offence punishable under Sec.138 of Negotiable Instruments Act, 1881."
}
},
{
"from_name": "label",
"id": "3fe57d0ee7d447d3b52695b48681b24a",
"to_name": "text",
"type": "labels",
"value": {
"end": 27936,
"labels": [
"RPC"
],
"start": 27872,
"text": "\n The bail bond and surety bond of the accused stands cancelled."
}
},
{
"from_name": "label",
"id": "3f202bc9ae784a06a8af0b7bfeb2779e",
"to_name": "text",
"type": "labels",
"value": {
"end": 28847,
"labels": [
"NONE"
],
"start": 27936,
"text": "\n [Dictated to the Stenographer in the open court, corrected, signed and then pronounced by me in the Open Court on this the 31st day of October 2013] (H.Shashidhara Shetty), Prl. I Civil Judge and J.M.F.C., Mysore A N N E X U R E S List of witnesses examined on behalf of the complainant: PW-1 D.Chandru Pw.2 Manjula List of documents marked on behalf of the Complainant: Ex.P.1 Cheque Ex.P.2 Bank memo Ex.P.3 Notice Ex.P.4 C.O.P.\nEx.P.5 Postal receipt Ex.P.6 Unserved R.P. cover Ex.P.6(a) Unserved notice Ex.P.7 Account statement List of witnesses examined marked on behalf of the accused: D.W.1 Rajeshwari List of documents marked on behalf of the accused: Ex.D.1 letter Ex.D.1(a) Signature Ex.D.2 & 3 Agreement Ex.D.2(a) Signature 3(a) Ex.D.4 Pass book Prl. I Civil Judge and J.M.F.C., Mysore Judgement pronounced in the open court (Vide separate order)"
}
},
{
"from_name": "label",
"id": "2262b8bcc1434322a8d43323813fdf99",
"to_name": "text",
"type": "labels",
"value": {
"end": 28853,
"labels": [
"RPC"
],
"start": 28847,
"text": " ORDER"
}
},
{
"from_name": "label",
"id": "af41fc777205400592afd99ae5d1d0d9",
"to_name": "text",
"type": "labels",
"value": {
"end": 29047,
"labels": [
"RPC"
],
"start": 28854,
"text": "Acting under Sec.255 (1) of the Criminal Procedure Code, 1973, the accused is found not guilty and she is acquitted for the offence punishable under Sec.138 of Negotiable Instruments Act, 1881."
}
},
{
"from_name": "label",
"id": "a5be112946c44857a481b4c982f657f9",
"to_name": "text",
"type": "labels",
"value": {
"end": 29111,
"labels": [
"RPC"
],
"start": 29047,
"text": "\n The bail bond and surety bond of the accused stands cancelled."
}
},
{
"from_name": "label",
"id": "c1d6cd5c90a54453a01be8274e0fcbee",
"to_name": "text",
"type": "labels",
"value": {
"end": 29483,
"labels": [
"NONE"
],
"start": 29111,
"text": "\n Prl. I Civil Judge and J.M.F.C., Mysore 2010 (2) DCR 73 (Gujrat Ambuja Proteins Limited V/s Rajeev Khandelwal and others) ILR 2005 KAR 409 Supreme Court (V.Raja Kumari V/s P.Subbarama Naidu and another) AIR 2010 Supreme Court 1898 (Rangappa V/s Mohan) ILR 2008 KAR 1883 Latha K.Nair V/s M/s Gold Mohar Foods and Feeds Ltd., 2011 (2) DCR 189 (Balwant Singh V/s Ram Singh)"
}
}
]
}
] | 1,739 | {
"text": "IN THE COURT OF THE PRL. 1st CIVIL JUDGE & J.M.F.C.,\n AT MYSORE\n\n PRESENT: Sri H.Shashidhara Shetty, B.A.L., LL.M.,\n Prl.First Civil Judge & JMFC, Mysore.\n\n DATED THIS THE 31st DAY OF OCTOBER 2013\n\n :: C.C.No.2784/2008 ::\n\nCOMPLIANANT :- Sri.D. Chandru,\n S/o Dasegowda,\n Aged about 26 years,\n R/o No.492, 5th Cross,\n Hebbal 2nd Stage, (M.G.Koppal)\n Mysore\n\nACCUSED :- (By: Sri.K.K, Advocate)\n\n -V/s-\n\n Smt. Rajeshwari.M\n W/o Hanumanthraju\n Aged about 44 years,\n R/o No.142, L.I.G., 2\n Laxmikanthanagar,\n Hebbal, 1st Stage,\n Mysore. 18\n\n (By: Sri.A.K.J., Advocate)\n\n *****\n\n\n J U D G M E N T\n The Complainant has filed the complaint under Section 200 of the Code of Criminal Procedure, 1973, against the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (herein after referred to as `the N.I.Act').\n 2. In brief the complaint averments are as follows:- The complainant and the accused are known to each other and on 05.06.2008, the accused requested the complainant for financial assistance of Rs.85,000/- to meet urgent legal necessities and to clear the hand loan raised by the accused. The complainant lent Rs.85,000/- on 05.06.2008 and the accused promised to repay the same within a month with interest at 2% and issued a post dated cheque bearing No.319609 dated 05.07.2008 drawn on Karnataka bank, Vijayanagar, Mysore for a sum of Rs.85,000/-.\nThe complainant presented the said cheque for collection on 07.07.2008 through his banker Oriental bank of Commerce, Kuvempunagar, Mysore, which returned dishonoured for the reasons ` payment stopped by the drawer' vide endorsement dated 09.07.2008. The complainant caused legal notice on 18.07.2008, both through R.P.A.D. and C.O.P., but the notice sent through R.P.A.D. with share ` addressee not in station' on 29.07.2008 and the notice sent through C.O.P. is deemed to be served on the accused. The accused did not repay the cheque amount. Hence, the complaint.\n 3. The court after taking cognizance recorded the sworn statement of the complainant, issued process to the accused, who appeared before the court through his learned counsel and obtained bail. Copies of the complaint and documents are furnished to the accused. On 03.06.2011, the plea of the accused was recorded, for which the accused pleaded not guilty and claimed to be tried.\n 4. During trial, on behalf of the complainant, he himself got examined as PW1 and examined one more witness as PW.2 and got marked the documents Ex.P1 to Ex.P7. With that the complainant closed his side. The Statement of the accused as required under Section 313 of Cr.P.C. was recorded, wherein the accused denied the incriminating evidence against her. On her defence, the accused got examined herself as DW.1 and got marked documents at Ex.D.1 to Ex.D.4. With that the accused closed her side.\n 5. Heard. The learned counsel for the complainant filed written arguments. Perused the records.\n 6. The points for consideration of this Court are as under: - 1. Whether the complainant proves beyond all reasonable doubt that, the cheque bearing No.319609 dated 05.07.2008 for Rs.85,000/- drawn on Karnataka Bank, Mysore branch was issued by the accused to the complainant in discharge of legally recoverable debt?\n 2. Whether the complainant further proves that the accused has failed to pay the cheque amount inspite of a legal demand and thereby committed an offence punishable U/Sec.138 of the Negotiable Instruments Act?\n 3. What order?\n 7. The findings of this Court on the above points are as under:- Point no.1 : In the Negative.\n Point no.2 : In the Negative.\n Point no.3 : As per final order, for the following: REASONS 8. Point Nos.1 & 2 : As these points are inter-linked, they are taken up for common discussion to avoid repetition.\n 9. PW1- Sri. D. Chandru, the complainant herein has filed affidavit in lieu of chief examination and reiterated the complaint averments. In support of his contention, he has produced a cheque dated 05.07.2008 for Rs.85,000/- drawn on Karnataka Bank at Ex.P.1 and identified the signature of the accused therein as Ex.P.1(a). Further he produced the bank endorsement at Ex.P.2, which discloses that the cheque-Ex.P.1 was dishonoured for the reasons `payment stopped by drawer'. Further PW.1 produced legal notice dated 18.07.2008 at Ex.P.3, C.O.P. at Ex.P.4, postal receipt at Ex.P.5, R.P.A.D. cover returned unserved at Ex.P.6 and copy of the legal notice in it at Ex.P.6(a).\n 10. On the other hand, DW.1-Smt. Rajeshwari, the accused has adduced in her evidence taking a defence that she had not borrowed hand loan of Rs.85,000/- from the complainant and issued the cheque at Ex.P.1 in discharge of that loan in favour of the complainant. Further, stated that the complainant is a contractor and she entered into an agreement with the complainant in the month of January 2005 for construction of her house as per the agreement at Ex.D.3 for a total sum of Rs.3,60,000/- and then an additional sum of Rs.50,000/- was agreed to be paid by her to the complainant.\n 11. The fact that the complainant took the contract of the construction of accused's house is admitted by PW.1 in his cross-examination. He also admitted about the entering into the agreement between himself and the accused as per Ex.D.2 (Ex.D.3 is the original of Ex.D.2). The PW.1 admitted his signature in Ex.D.2 as Ex.D.2(a). Hence, it is clearly proved that the complainant being a contractor had taken the construction work of the accused's house under the agreement Ex.D.3 (Ex.D.2) for total sum of Rs.3,60,000/-.\n 12. Now, it is the defence of DW.1 that she had made part payment under the agreement Ex.D.3, at that time, the complainant took one cheque for Rs.85,000/- and another blank signed cheque drawn on Karnataka bank and also a pronote. Further, DW.1 adduced that she was due to pay in all Rs.85,000/- towards the contract work done by the complainant. Out of that she paid Rs.45,000/- by cash and Rs.40,000/- through a cheque, which has been encashed by the complainant. Further DW.1 adduced that she has paid entire amount due to the complainant, but when she demanded him to return the cheque, he gave lame excuses and failed to return it. In support of her contention, DW.1 produced a document drawn on a stamp paper at Ex.D.1, which when confronted to PW.1, he admitted the signature therein and also states that while he signed it, it was written.\nEx.D.1 depicts that on 05.05.2008, the accused paid Rs.40,000/- through cheque No.330575 to the complainant.\nIn fact, in his cross-examination at page-5, PW.1 made attempt to deny the payment made by the accused on 05.05.2008 through cheque No.330575 and that he had got it encashed.\n 13. The above denial of the complainant as to receipt of Rs.40,000/- through cheque from the accused is proved to be false by his own witness PW.2-Smt. Manjula, Manager, Karnataka Bank, who produced account statement of the accused Smt. Rajeshwari at Ex.P.7, which discloses that the accused got encashed Rs.40,000/- through cheque No.330575, belongs to the accused on 04.05.2008. This fact is further substantiated by the accused by producing her pass-book at Ex.D.4, issued by Karnataka bank, wherein the relevant entry is marked at Ex.D.4(a),, which clearly shows that on 04.05.2008, the accused Chandru encashed Rs.40,000/- through cheque No.330575. Thus, accused has proved with cogent documentary evidence as to payment of Rs40,000/- by way of cheque to the complainant. In fact, when the accused produced Ex.D.4-Passbook, while cross- examining her, it was suggested that, that amount of Rs.40,000/- was paid towards the contract pertains to the construction of the accused's house and it is not related to the transaction narrated in this case. Thereby, the complainant admits the receipt of Rs.40,000/- from the accused. That being the fact, the above denial by PW.1 as to receipt of Rs.40,000/- through cheque is false contention. It shows that PW.1 has made attempt to suppress the real truth before the court. Thereby the court has to draw an inference that he is not a reliable witness.\n 14. When the accused has taken a specific defence, that the cheque Ex.P.1 was issued in respect of a separate transaction pertains to construction of her house and she had no money transaction with the complainant as narrated in the complaint and when there is evidence to show that the complainant had taken the contract work of the accused's house, the burden lies on the co to prove that the cheque Ex.P.1 was actually issued in discharge of the hand loan of Rs.85,000/- borrowed by the accused. The accused has made out a probable case that she was due of Rs.85,000/- to the complainant and out of that Rs.40,000/- was paid through cheque and remaining amount was paid through the cash. Though the complainant admits the receipt of Rs.40,000/- he contends it was paid not towards the loan transaction pertains to this case. Except the self serving testimony of PW.1, absolutely there is no evidence placed by the complainant that on 05.06.2008 he had lent Rs.85,000/- to the accused and on that day the accused issued post dated cheque in his favour. When according to the complainant the accused is due to pay the amount towards the contract work of her house, what was the occasion for him to pay hand loan to her is not forthcoming. No prudent man under similar circumstances would lend loan of Rs.85,000/- to another, when already the other person is due to pay certain sum in respect of some other transaction. It is relevant to mention that in her cross-examination PW.2, the Bank manager has specifically stated as follows: \" rfn ZP Ag Īig 2004 QAv Az Ev. 2008 g 16 rfn ZP Ag ZAiİv. 1 ZP 2003-04 ZP DVgvzAzg j.\"\n Thus, it is clear that the cheque Ex.P.1 pertains to the year 2003-2004. If that were to be true, then issuing that cheque-Ex.P.1 on 05.06.2008 in favour of the complainant is highly improbable. That evidence of PW.2 supports the defence of the accused that it was issued in favour of the complainant at the time of entering into the contract agreement at Ex.D.3, way back in the year 2006. Moreover, in the cross-examination of DW.1 at page-4 it was suggested as follows: \"gzgg PAmP Pɮ iqvgAzg j.\n ģ PUjAi gzgjU PAmP P nz JAzg j. v gzgg DU ZɣVzê JAzg j. gzgg ģ PAmP Pɮ irz AAz g. 85 g g Q GPArz JAzg j. 1 ZP̣ gzgj U 2006 EAiİ ģ PAmP Pɮ AAz Q Pq Ez tP Pngvã.\"\n From the above suggestion, it can be make out that the complainant also admits that the accused was due to pay Rs.85,000/- towards the contract work done by him. When DW.1 stated that Ex.P.1 was issued in the year 2006 in favour of the complainant towards that contract work, the complainant did not deny it. Thereby, it clearly establishes that the cheque-Ex.P.1 was issued while executing the contract agreement Ex.D.3 in the year 2006. There is no evidence led by the complainant to rebut the above evidence led by the accused. Moreover, the amount mentioned in Ex.P.1-cheque i.e. Rs.85,000/- clearly tallies with the due amount payable by the accused to the complainant towards the contract work as suggested above to DW.1 by the complainant. As such, the contention of the complainant that the accused issued the post dated cheque-Ex.P.1 on 05.06.2008 shall falls to the ground and that has to be disbelieved.\n 15. The learned counsel for the complainant has argued that the accused has admitted her signature in the cheque and therefore the court has to draw presumption that the cheque was issued by the accused for valid consideration in discharge of legally recoverable debt. No doubt, under the N.I. Act, there are presumptions under Section 139 and 118 in favour of the complainant. But, so as to invoke that presumption, it is the bounden duty of the complainant to prove his case first, then only the court has to draw the presumption. If the complainant has failed to prove his case at the inception itself, then there is no question of drawing presumption available under law. Hence, the complainant must first satisfy the court that there exist legally enforceable debt or liability and the accused had issued the cheque in discharge of that liability. Then only the court could have proceed to draw presumption under Section 139 of the N.I.\nAct. The learned counsel for the complainant has relied upon a decisions reported in 2011 (2) DCR 189 (Balwant Singh V/s Ram Singh), wherein the Hon'ble court held that signature on cheque is admitted, then the story set up by the defence that the cheque was procured under police pressure cannot be accepted in the absence of cogent evidence.\nFurther, he also relied upon a decision reported in ILR 2007 KAR 311 (Mr. Umraz Khan V/s Mr.A.Jameel Ahmed and another), wherein the Hon'ble courts held that admission that the cheque was issued as security for repayment of loan will not make any difference and it will not take the transaction out of sweep of Sec. 138 of the N.I. Act. The principles of law laid down in the above decisions are not applicable to the facts of this case. In the case on hand, the accused has not admitted that the cheque Ex.P.1 was issued by her as security for the loan transaction. On the contrary, she had totally denied the loan transaction as alleged by the complainant, but she contended that the cheque Ex.P.1 was issued towards the contract work undertaken by the complainant way back in the year 2006. Further, the accused by leading probable evidence shown how the possession of the cheque Ex.P.1 has been passed to the complainant.\n 16. Moreover, mere admission of signature in the cheque itself is not sufficient to hold that the cheque was actually issued for discharge of the loan amount mentioned therein. At this stage, this court relies upon decisions reported in ILR 2009 KAR 2331 (B. Indramma V/s Sri.\nEshwar), wherein the Hon'ble court held as follows: \"When the very factum of delivery of the cheque in question by the accused to the complainant and its receipt by the complainant from the accused itself is seriously disputed by the accused, his admission in his evidence that the cheque in question bears his signature would not be sufficient proof of the fact that he delivered the said cheque to the complainant and the latte `received it from the former' so as to raise the presumption under Section 139 of the N.I. Act.\"\n 17. In another decision reported in 2012 (1) DCR 385 (Santhi V/s Mary Sherly), wherein the Hon'ble court held as follows: \"On consideration of the various aspects and provisions of the Act, I am of view that the contention raised by an accused in a prosecution under Section 138 of the Act that he issued a blank signed cheque will not amount to admission of execution of cheque. A signed blank cheque leaf is very often referred to as a blank \"cheque\", but, strictly speaking, it is not a \"cheque\" as defined under the Act. It can be treated only as a \"cheque leaf\" containing admitted signature of accused. The admission of signature in a cheque leaf along will not constitute admission of execution of the cheque.\"\n The principles of law laid down in the above decisions are aptly applicable to the facts of this case. In the case on hand also, just because the accused has admitted her signature in Ex.P.1-cheque, that alone will not construed as admission of execution of the cheque.\n 18. Of course, the accused took a contention that the legal notice is not duly served on her and therefore the complainant has not duly complied the provisions of Sec. 138 of the N.I.Act. However, the postal endorsement on the R.P.A.D. cover- Ex.P.4 would indicate that it was returned for the reason `returned to sender as not in station'. Though the accused contended that at the relevant point of time, she was not staying in that address. She did not laid any evidence to prove it. On the contrary in her cross-examination, at page-3, she admits the address mentioned Ex.P.3 notice and Ex.P.6 R.P.A.D. cover are her correct address. If the accused contends that there is no due service of notice, then the burden lies on her to prove her contention with cogent evidence. It is settled law that if a notice is served to the proper and correct address, though it is returned with the shara `returned unserved' it shall be deemed to be served on the accused. In fact, the learned counsel for the complainant has relied upon the decisions reported in AIR 2005 Supreme court 109 (V.Raja Kumari V/s P. Subbarama Naidu and another), 2004 (2) DCR 384 (Nirdosh Enterprises, Hyderabad V/s State of A.P. and another), 2010 (1) DCR 766 (Babulal V/s Gafur & Another), ILR 2007 KAR 311 (Mr. Umraz Khan V/s Mr.A.Jameel Ahmed and another), 2012 (1) KCCR 156 (B.Jayarama Shetty V/s Biviyas Finance and Leasing Limited, Kundapura Taluk,), Wherein the Hon'ble courts held that though the notice was returned as refusal by the addressee, but the notice is dispatched by the sender to the correct address, then it shall be deemed to be served to the addressee. Hence, whatever contention taken by the accused about non-service of legal notice has to be rejected.\n 19. However, the learned counsel for the complainant has relied upon the decisions reported in 2003(2) DCR 145 (M/s Jayam Company and another V/s T.Ravichandran) and 2012 (1) DCR 242 R.Raju V/s K.Sivasamy), wherein the Hon'ble courts held that if the accused fails to reply the notice inspite of due service of the legal notice without denying the allegations then it cannot be easily overlooked.\nOf course, in the normal circumstances, non issuance of reply notice by the accused inspite of due service has to be viewed seriously. In the case on hand, though there is deemed service, there is no proper evidence to show that it has been actually served to the accused. Further, non-issuance of the reply notice can be taken as one of the corroborative ground so as to reject the defence of the accused. But, that cannot be only ground to disbelieve the entire case of the accused. In the case on hand, the accused by leading probable evidence, has put forth her defence so as to show that she has not borrowed the hand loan as asserted in the complaint, but the cheque-Ex.P.1 was issued in respect of contract work of her house given to the complainant in the year 2006. Therefore, the above decisions are not helpful to the complainant.\n 20. As per the decisions of the Hon'ble Supreme Court of India reported in (2008) 2 Supreme Court Cases (Criminal) 166 (Krishna Janardhan Bhat V/s Dattatraya G.\n Hegde) and 2010 AIR SCW 2946 (Rangappa V/s Mohan) and also in the decisions relied by the learned counsel for the accused reported in 2010 (2) Kar.L.J. 284 (B. Girish V/s S.\nRamaiah), 2013 (3) KCCR 1940 (Smt. Lakshmi Subramanya v/s B.V. Nagesh), it was held that the standard of evidence to be led by the accused is preponderance of probabilities and not proof beyond reasonable doubt. On the contrary, for the complaint he should prove his case beyond all reasonable doubt. In other decisions reported in 2010(1) DCR 231 (N.Chiraj Travels (Pvt) Ltd. V/s Ashwani Kumar and another) and 2011 (1) DCR 254 (Mahendra Gulabchind Kohar V/s Cakharam Ramdas Patil) the Hon'ble Delhi and Bombay High courts having relied upon the decisions of Hon'ble Supreme Court of India referred supra, held that the presumption under Section 139 of N.I. Act is rebutable and the accused can prove the non- existence of any debt or liability by raising probable defence or by demolishing or discrediting the case of complainant and it is not necessary for the accused to prove his defence beyond all reasonable doubt. Further, this court relies upon a decision reported in 2011(3) Crimes 158 (Bom) (Sriniwas Ramdas Siwerwat V/s Shantaram Pandurang Deotale) wherein the Hon'ble Court held at page-13 as follows: \"The statutory presumptions in favour of the complainant are not by themselves evidence but only make out the prima-facie case in favour of the complainant. They can exist, live and survive the contrary evidence is proved by the accused sufficient enough to believe that the cheques in question were not issued by the accused for any consideration / debt or liability. It is open for the accused to rebut the statutory presumption by proving that the cheques were not issued for any consideration or that there was no any debt or liability to be discharged by the accused. The accused can succeed upon proof of preponderance of probabilities.\"\n The principles of law laid down in the above decisions are aptly applicable to the facts of this case. In the case on hand also, the accused by leading cogent evidence in all probabilities proved that she issued the cheque-Ex.P1 in favour of the complainant in respect of contract work in the year 2006 and that has been misused by the complainant.\n The initial burden always lies on the complainant and if she proves her case prima facie, then onus shifts on the accused.\n Thus the complainant has failed to discharge the initial burden so as to attract the necessary ingredients of S.138 of the N.I. Act.\n 21. In another decision reported in: AIR 2007 NOC 2612 A.P.(G. Veeresham V/s Shivashankar and Another) the Hon'ble Court has held as under: \"Negotiable Instruments Act (26 of 1881), S.138 Dishonour of cheque Presumptions available to complainant under S.118 and S.139 of Act- Rebuttal of cheque in question was allegedly issued by accused to discharge hand loan taken from complainant. However, no material placed on record by complainant to prove alleged lending of hand loan said fact is sufficient to infer that accused is liable to rebut presumptions available in favour of complainant under sections 118 and 139 of Act, Order acquitting accused for offence under S.138, proper\".\n The principle of law laid down in the above decision is applicable to the facts of this case. In the case on hand also, as discussed above, the complainant has failed to prove with cogent evidence as to the lending of loan of Rs.85,000/- to the accused. Thus, that fact itself is sufficient to infer that accused is able to rebut presumptions available in favour of complainant under sections 118 and 139 of the N.I.Act. In a decision reported in AIR 2006 Supreme Court 3366 (M.S.Narayana Menon alias Mani V/s State of Kerala & Anr.), the Hon'ble Apex court held that once the accused discharges the initial burden placed on him the burden of proof would revert back to the prosecution. In this case on hand also, the accused has proved in all probability that she is not liable to pay Ex.P1-cheque amount of Rs. 85,000/- and it is not legally recoverable debt. So, the burden is on the complainant to prove strictly with cogent and believable evidence that the accused has borrowed the cheque amount and she is legally liable to pay the same. But, except some inconsistent and improbable evidences as discussed above, the complainant has failed to prove with satisfactory evidence the lending of Rs.85,000/- loan to the accused. Just because, there is a presumption under Section 139 of N.I.\nAct, that will not create any special right to the complainant so as to initiate a proceeding against the drawer of the cheque who is not at all liable to pay the cheque amount. From the above elaborate discussions, it very much clear that the complainant has failed to adduce cogent and corroborative evidence to show that accused has issued cheque- Ex.P.1 in discharge of her legally payable debt for valid consideration.\nOn the other hand, the accused has successfully rebutted the legal presumptions under Section 139 and 118 of Negotiable Instruments Act.\n 22.\nBasically, insertion of the penal provision under section 138 of the N.I. Act, 1881, is to maintain a healthy business transaction between the people based on faith, belief and understanding. That is why, the drawer of a cheque should not be allowed to abuse the accommodation given to him by a creditor. At the same time, the payee or holder of a cheque cannot be permitted to use that penal provision under law as a weapon for unlawful gain or to harass the debtor. To initiate a penal action under Section 138 of the N.I.Act, against a drawer of a cheque, there should not be any kind of lapse or lacuna on the part of the holder of a cheque. Because, the proceeding under section 138 of the N.I.Act is not for recovery of money but to punish a dishonest and incredible debtor, who intentionally tries to escape from his liability. That is why, it is the duty of the complainant in a given case under the NI Act, 1881, to place a stable and firm case on his behalf before the court. When the case of the complainant is shaky, unstable, untrustworthy and doubtful one, then in the opinion of this court, no presumption that is available under law will come to his help. In the case on hand, the accused has taken several contentions before the court and made out grounds to show that the case of the complainant is highly improbable. The conduct of the complainant shows his dishonest intention to defraud the accused and for wrongful gain filed this false compliant against the accused.\n 23. From the documents produced before the court it is very much clear that within 6 months from the date of cheque the complainant has presented the cheque for encashment and within one month from the date of issuance of the bank memo, the complainant has issued notice to the accused and after 15 days from the date of service of the said notice to the accused, within one month the complainant has filed this complaint before this court. As such, the complainant has complied with all the statutory requirements so as to initiate a proceeding under Section 138 of N.I. Act.\nBut, the fact to be considered is, when the complainant has failed to prove that there was legally recoverable debt and in discharge of that debt only cheque-Ex.P.1 was issued, even if the legal notice was served on the accused and the accused has failed to pay the cheque amount, still the accused cannot be found fault with. Because, when the accused is not liable to pay the amount demanded under the notice, then, the accused is not liable to pay the amount what is demanded under the notice. In the opinion of this court, the accused has got every right not to pay that amount so demanded under the notice. The drawee has no right to demand any amount, which is not legally recoverable from the drawer of the cheque. Hence, non-payment of the cheque amount as demanded by the complainant under the notice cannot be termed as intentional default on the part of the accused to pay the cheque amount.\n 24. On perusal of the entire oral and documentary evidence placed on record on behalf of both the parties, it is clear that, the case of the complainant is not cogent, convincing, corroborative and trustworthy. The material omissions, inconsistencies, discrepancies and contradictions in the evidence of P.W.1 itself is sufficient to rebut the legal presumptions available in favour of the complainant. Thus, this court is of the considered view that the complainant has failed to prove his case beyond all reasonable doubt.\nAccordingly point Nos.1 and 2 are answered in the `Negative'.\n 25. Point no.3:- Having thus discussed in detail, this court proceed to pass the following: ORDER Acting under Sec.255 (1) of the Criminal Procedure Code, 1973, the accused is found not guilty and she is acquitted for the offence punishable under Sec.138 of Negotiable Instruments Act, 1881.\n The bail bond and surety bond of the accused stands cancelled.\n [Dictated to the Stenographer in the open court, corrected, signed and then pronounced by me in the Open Court on this the 31st day of October 2013] (H.Shashidhara Shetty), Prl. I Civil Judge and J.M.F.C., Mysore A N N E X U R E S List of witnesses examined on behalf of the complainant: PW-1 D.Chandru Pw.2 Manjula List of documents marked on behalf of the Complainant: Ex.P.1 Cheque Ex.P.2 Bank memo Ex.P.3 Notice Ex.P.4 C.O.P.\nEx.P.5 Postal receipt Ex.P.6 Unserved R.P. cover Ex.P.6(a) Unserved notice Ex.P.7 Account statement List of witnesses examined marked on behalf of the accused: D.W.1 Rajeshwari List of documents marked on behalf of the accused: Ex.D.1 letter Ex.D.1(a) Signature Ex.D.2 & 3 Agreement Ex.D.2(a) Signature 3(a) Ex.D.4 Pass book Prl. I Civil Judge and J.M.F.C., Mysore Judgement pronounced in the open court (Vide separate order) ORDER Acting under Sec.255 (1) of the Criminal Procedure Code, 1973, the accused is found not guilty and she is acquitted for the offence punishable under Sec.138 of Negotiable Instruments Act, 1881.\n The bail bond and surety bond of the accused stands cancelled.\n Prl. I Civil Judge and J.M.F.C., Mysore 2010 (2) DCR 73 (Gujrat Ambuja Proteins Limited V/s Rajeev Khandelwal and others) ILR 2005 KAR 409 Supreme Court (V.Raja Kumari V/s P.Subbarama Naidu and another) AIR 2010 Supreme Court 1898 (Rangappa V/s Mohan) ILR 2008 KAR 1883 Latha K.Nair V/s M/s Gold Mohar Foods and Feeds Ltd., 2011 (2) DCR 189 (Balwant Singh V/s Ram Singh) "
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